People v. Roberson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN381361
- Trial judge
- Robert J. Kearney
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Patricia D. Benke
Analysis
The trial court revoked Roberson's probation for a second violation and executed a previously stayed six-year prison sentence. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende, finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and execution of the stayed six-year prison term“Whether the court abused its discretion in formally revoking Roberson’s probation and executing the previously stayed six-year term.” | abuse of discretion | not reached | unsure The court stated it reviewed the record for error but did not explicitly analyze the merits of the abuse of discretion claim, instead concluding no arguable issues were found. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to identify arguable issues or request the court to review the record for error when no issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a record when counsel finds no issues. However, it is a 'sound with gaps' analysis because it fails to provide any substantive legal reasoning or application of the abuse of discretion standard to the specific facts of the probation violation, relying solely on the negative finding of no arguable issues.
How this analysis was made · dispute it
unusual dispositionThe trial court found Roberson violated probation after an evidentiary hearing, revoked probation, and lifted the stay on a previously imposed six-year prison term. On appeal, counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and execution of the previously imposed but suspended six-year prison sentence following an evidentiary hearing on the second probation violation allegation“Whether the court abused its discretion in formally revoking Roberson’s probation and executing the previously stayed six-year term.” | abuse of discretion | correct | agree with court The record as described shows an evidentiary hearing at which an officer's search produced a push-button knife, methamphetamine, and a pipe; the trial court was entitled to disbelieve Roberson's testimony that he found the items and did not know what they were. Revocation on a second violation after a previously suspended sentence is within the trial court's broad discretion, and executing an already-imposed term is the ordinary consequence. Nothing in the opinion suggests legal or procedural error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, identifies the single potential issue counsel raised, and states the court independently reviewed the record and found no arguable issues. The result is defensible on the facts recited, though the opinion offers no analysis of the revocation itself and does not cite the probation-revocation standard (e.g., People v. Rodriguez (1990) 51 Cal.3d 437), which is typical for Wende opinions but leaves the reasoning thin.
Opinion
Filed 8/20/20 P. v. Roberson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077129
Plaintiff and Respondent, v. (Super. Ct. No. SCN381361)
MICHAEL ROBERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In March 2018, Michael Roberson pleaded guilty to corporal injury on a significant other (Pen. Code,1 § 273.5, subd. (a)) and admitted he personally inflicted great bodily injury (§ 12022.7, subd. (e)); he also pleaded guilty to 1 All further statutory references are to the Penal Code. battery with serious bodily injury (§ 243, subd. (d)) and admitted the allegation under section 1192.7, subdivision (c)(8). The court granted Roberson probation on various terms and conditions. On June 29, 2019, Roberson admitted he violated the terms of his probation. The court imposed, but suspended execution of a six-year prison term. Roberson was readmitted to probation. In December 2019, the court held an evidentiary hearing on the second allegation of violation of probation. At the conclusion of the evidence, the court found Roberson violated the terms of his probation and revoked probation. The court later lifted the stay of the six year prison sentence and committed Roberson to prison. Roberson filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error. We offered Roberson the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS We take the facts from the transcript of the December 2019 revocation proceeding. In September 2019, Roberson was stopped by an Oceanside Police Officer. A search during the stop produced a push button knife and a plastic baggie containing methamphetamine. The officer also found a “broken meth pipe”. Roberson testified he had recently found the knife and baggie lying on the ground. He picked them up but didn’t know the knife was unlawful or that the baggie contained a controlled substance.
2 DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record for error as mandated by Wende. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of the appeal: Whether the court abused its discretion in formally revoking Roberson’s probation and executing the previously stayed six-year term. We have reviewed the entire record for error as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Roberson on appeal. DISPOSITION The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O’ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12