People v. Courtney CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD272365, SCD276467, SCD281209
- Trial judge
- Michael S. Groch
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Patricia D. Benke
Analysis
The trial court revoked Courtney's probation for violating terms related to a residential treatment program and reinstated it with conditions of extra custody. 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 reinstatement with extra custody“Following a contested hearing, the court revoked probation and then reinstated probation conditioned upon extra custody.” | unclear | not reached | unsure The appellate court did not explicitly state a standard of review for the probation revocation decision, nor did it analyze the merits of the trial court's ruling. Instead, the court relied on its independent review under Wende to determine that no arguable issues for reversal existed in the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to identify arguable issues or file a brief stating no issues are found, and mandates the court to independently review the record for error.
- 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 to ensure the defendant's rights are protected.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel who finds no arguable issues. However, it is a 'sound with gaps' analysis because it fails to explicitly address the specific hearsay issue identified by counsel or the standard of review for the probation revocation, relying solely on the conclusion that no arguable issues were found after independent review.
How this analysis was made · dispute it
unusual dispositionThe trial court found Lorenzo Courtney violated probation in three cases by failing to complete a residential treatment program, revoked probation, and reinstated it on condition of additional custody with early release authorized upon placement in a residential program. On appeal, counsel filed a Wende brief identifying a possible hearsay issue, 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 reinstatement with additional custody) based on finding that Courtney violated probation by failing to complete residential treatment“Following a contested hearing, the court revoked probation and then reinstated probation conditioned upon extra custody.” | unclear | correct | agree with court The opinion recites that Courtney admitted smoking crack cocaine within the prior ten days and that the facility reported a curfew violation and positive cocaine test resulting in his discharge; his own admission independently supports the finding that he failed to complete the program. A probation violation need only be shown by a preponderance of the evidence and the court's disposition (reinstatement with modest additional custody) was within its discretion. Nothing in the opinion suggests error, though the record described is thin. |
Admission of hearsay evidence (the facility's phone report to the probation officer) regarding Courtney's status at the rehabilitation program“Whether the trial court improperly admitted hearsay evidence regarding Courtney’s status at the rehabilitation program.” | unclear | correct | agree with court Hearsay is admissible at probation revocation hearings when it bears sufficient indicia of reliability or good cause is shown, and in any event Courtney's own admission that he smoked crack cocaine made any error in admitting the facility's report harmless. The court did not analyze the issue expressly, which is permissible in a Wende review, but the result is defensible on this record. |
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 arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit must 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 Wende/Anders procedure, identifies the one potential issue counsel flagged, and states the court reviewed the entire record without finding arguable error, which is all a Wende disposition requires. It does not discuss the hearsay question or the governing authorities on hearsay at revocation hearings, but Courtney's admitted cocaine use independently supports the violation finding, so the affirmance is well founded.
Opinion
Filed 8/27/20 P. v. Courtney 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, D076773
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD272365, SCD276467, SCD281209) LORENZO COURTNEY, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This appeal arises from probation revocation proceedings involving three different cases. In case No. SCD272365, Courtney pleaded guilty to violating Health and Safety Code section 11350, subdivision (a). In case No. SCD276467, Courtney pleaded guilty to failing to register as a sex offender (Pen. Code,1 § 290.018, subd. (b)). In case No. SCD281209, Courtney pleaded guilty to another charge of failing to register as a sex offender (§ 290.018, subd. (b)). Courtney was granted formal probation in all three cases. Later, the probation officer filed an order to show cause with the trial court alleging Courtney violated the terms of his probation by failing to complete a residential treatment program. Following a contested hearing, the court revoked probation and then reinstated probation conditioned upon extra custody. The court authorized early release if Courtney could be placed in a residential treatment program. Courtney filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issue for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Courtney the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The probation officer received a phone call from the residential treatment facility where Courtney was an in-patient. The call reported that 1 All further statutory references are to the Penal Code unless otherwise specified. 2 Courtney had violated his curfew and that he had tested positive for cocaine. Courtney was no longer welcome at the facility. Courtney admitted he had smoked crack cocaine within the previous 10 days. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record for error. 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 the following possible issue that was considered in evaluating the potential merits of the appeal: Whether the trial court improperly admitted hearsay evidence regarding Courtney’s status at the rehabilitation program. We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Courtney on this 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