People v. McLeod CA4/1

California Court of Appeal · D076854 · 2020-09-10 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD280820, SCD281704
Trial judge: Yvonne E. Campos
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Cynthia Aaron, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:23Z · confidence low

The trial court convicted the defendant of multiple counts including possession of personal identifying information and possession of a forged driver's license, and sentenced him to six years in local custody. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to *People v. Wende* and finding no arguable issues.

Ruling reviewed	Standard	The court	The model
Independent review of the record for potential errors (consolidation, Marsden motions, Prop 47 reduction, sufficiency of evidence, and stay of counts) “we have examined the record and conclude there are no arguable issues which would result in modification or reversal.”	de novo	not reached	agree with court agree with court

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record in cases where appointed appellate counsel finds no arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying no arguable issues and request independent review.
relied: People v. Jimenez (2020) 9 Cal.5th 53 — Guides the scope of independent review in Wende/Anders cases.
relied: People v. Marsden (1970) 2 Cal.3d 118 — Standard for discharging appointed counsel.
relied: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Requires a hearing on ability to pay before imposing fines and fees.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to conduct an independent review. However, it is a 'sound with gaps' opinion because it lists six specific potential issues raised by counsel but provides no substantive analysis or reasoning for why each specific issue was rejected, relying solely on a blanket conclusion that no arguable issues exist.

How this analysis was made · dispute it

unusual disposition unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

After a jury convicted John Paul McLeod of felony and misdemeanor identity-theft, forgery, and theft offenses in two consolidated San Diego cases and found a bail enhancement true, the trial court sentenced him to six years in local custody under section 1170, subdivision (h)(5)(A), staying restitution fines under Dueñas. On appeal, appointed counsel filed a Wende/Anders brief identifying six potential issues; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Overall Wende/Anders independent review of the record for arguable issues “we have examined the record and conclude there are no arguable issues which would result in modification or reversal.”	unclear	correct	agree with court The court followed the Wende procedure: counsel filed a no-issues brief, defendant was offered and declined the chance to file a supplemental brief, and the court states it independently examined the record. Nothing in the opinion suggests the procedure was misapplied, and no supplemental brief triggered any duty to address specific contentions.
Granting of prosecution's motion to consolidate the two cases “1) the granting of the prosecution's motion to consolidate his two cases;”	unclear	correct	unsure The opinion lists this as a potential issue but gives no facts or analysis about the consolidation beyond noting the two cases involved similar credit-card and PII offenses. Consolidation of same-class offenses is ordinarily reviewed for abuse of discretion, and the related nature of the charges makes the ruling plausible, but the opinion provides no record detail to evaluate it.
Denial of defendant's first Marsden motion (preliminary hearing) based on insufficient discussion of discovery “defendant's first preliminary hearing motion to discharge appointed counsel”	unclear	correct	unsure Marsden denials are reviewed for abuse of discretion, but the opinion does not describe the hearing, counsel's responses, or the court's findings. A complaint that counsel did not discuss discovery more thoroughly is typically a tactical disagreement that does not compel substitution, yet without the record the ruling cannot be independently assessed.
Denial of defendant's second Marsden motion based on failure to subpoena a witness “defendant's second Marsden motion, to discharge his counsel for failing to subpoena a witness”	unclear	correct	unsure Again the opinion supplies no detail about the witness, counsel's explanation, or the court's inquiry. Decisions about which witnesses to call are generally tactical and do not establish inadequate representation under Marsden, but the opinion's silence on the record prevents confirmation. Notably a later Marsden motion was granted after conviction, which does not itself show the earlier denials were wrong.
Refusal to reduce counts 1 and 3 (section 530.5 identity-theft offenses) to misdemeanors under Proposition 47 “whether the court should have reduced counts 1 and 3 to misdemeanors pursuant to Proposition 47”	unclear	correct	agree with court The court expressly invoked People v. Jimenez (2020) 9 Cal.5th 53, which held that section 530.5 identity-theft offenses are not theft offenses eligible for reduction to misdemeanor shoplifting under Proposition 47. That binding authority directly forecloses the claimed issue as to the section 530.5 counts.
Sufficiency of the evidence supporting count 1 (possession of PII of 10 or more persons with intent to defraud, section 530.5, subd. (c)(3)) “5) whether there was enough evidence for conviction of count 1; and”	unclear	correct	unsure The opinion incorporates the facts from counsel's brief rather than reciting them, so the evidence of the number of victims and intent to defraud is not set out. The substantial-evidence standard is deferential and the jury convicted on this count, but the opinion itself does not allow verification of the evidentiary basis.
Imposition of consecutive sentences on counts 3 and 4 rather than staying them under section 654 “6) whether the court should have stayed counts 3 and 4.”	unclear	correct	unsure Whether offenses arose from a single intent and objective under section 654 is a factual question reviewed for substantial evidence, but the opinion gives no facts about the relationship between the use of Suzanne and John S.'s PII (count 3) and possession of a forged check (count 4). Separate victims or objectives would support separate punishment, but the record is not described.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal, with the court then conducting its own examination.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking to discharge appointed counsel must be permitted to state the reasons, and substitution is required only where counsel is providing inadequate representation or an irreconcilable conflict exists.
relied: People v. Jimenez (2020) 9 Cal.5th 53 — Misuse of personal identifying information under section 530.5 is not a theft offense and is therefore not eligible for reduction to misdemeanor shoplifting under Proposition 47.
relied: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Due process requires an ability-to-pay determination before imposing certain fees and requires staying execution of a restitution fine until the court holds such a hearing; the trial court applied this in staying the restitution and parole revocation fines.

The appellate opinion: sound — The opinion correctly follows the Wende/Anders procedure, lists the potential issues identified by counsel, notes defendant declined to file a supplemental brief, and cites the controlling Supreme Court decision in Jimenez that disposes of the Proposition 47 claim. Because no supplemental brief was filed, the court was not required to explain its rejection of each potential issue, so its summary disposition is procedurally proper even though it offers no substantive analysis for most of the listed issues.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 9/10/20 P. v. McLeod 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, D076854

Plaintiff and Respondent, v. (Super. Ct. Nos. SCD280820, SCD281704) JOHN PAUL MCLEOD, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Yvonne Esperanza Campos, Judge. Affirmed.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. ACTUAL AND PROCEDURAL BACKGROUND The District Attorney for San Diego County charged defendant John Paul McLeod in a consolidated information with a variety of offenses related to stealing and using credit cards, and unlawfully taking individuals' personal identifying identification (PII). The names of the victims and facts surrounding their victimizations are covered in defendant's brief and incorporated herein. The consolidated information charged defendant with possessing the PII of 10 or more persons with the intent to defraud (Pen. Code,1 § 530.5, subd. (c)(3); count 1); possession of metal knuckles (§ 21810; count 2); obtaining the PII of Suzanne and John S. and using that information for an unlawful purpose (530.5, subd. (a); count 3); possessing a forged check with the intent to defraud (§§ 475, subd. (a) & 473, subd. (b); count 4); possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 5); possessing a forged driver's license (§ 470b; count 6); misdemeanor petty theft (§§ 484 & 490.5; count 7); and four counts of misdemeanor obtaining PII with intent to defraud (§ 530.5, subd. (c)(1); counts 8, 9, 10, & 11). The information further alleged that defendant was presumptively ineligible for probation due to four prior felony convictions dating back to October 2006 (§ 1203, subd. (e)(4)); that counts 1 through 5 were alleged to have occurred between February 26 and March 1, 2019, and counts 6 through 11 were alleged to have occurred on May 9, 2019. On July 30, 2019, the trial court granted defendant's motion to bifurcate the trial on the bail enhancement allegation. On August 7, 2019, the jury acquitted defendant of possession of metal knuckles (count 2) and possession of methamphetamine (count 5), but found him guilty on the remaining counts. The jury in the bifurcated trial found true the allegation defendant committed count 6, possession of a forged driver's license, while released from custody on bail. (See § 12022.1, subd. (b).)

1 All further statutory references are to the Penal Code unless otherwise noted. 2 Following his conviction, the court granted defendant's motion brought pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). New counsel was appointed from the Alternate Public Defender's office. On November 15, 2019, defendant was sentenced as follows to six years in local custody pursuant to section 1170, subdivision (h)(5)(A): the middle term of two years on count 1; consecutive eight-month terms on counts 3, 4, and 6; a consecutive two-year term pursuant to the section 12022.1, subdivision (b) enhancement; and concurrent one-year jail terms for the remaining counts. The court imposed miscellaneous fees and assessments, but stayed an $8,400 restitution fine (§ 1202.4, subd. (b)) and a matching parole revocation fine (§ 1202.45) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. The court ordered direct restitution award of $55 to one named victim and retained jurisdiction to award other restitution awards. Defendant filed a timely notice of appeal. ANALYSIS Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, defendant's counsel has filed a brief asking that we independently review the record to determine if it reveals any issues that would, if resolved favorably to defendant, result in modification or reversal of the judgment. To assist this court in conducting its review, counsel directs our attention to six potential issues: 1) the granting of the prosecution's motion to consolidate his two cases; 2) defendant's first preliminary hearing motion to discharge appointed counsel pursuant to Marsden, supra, 2 Cal.3d 118 for failing to discuss pretrial discovery more thoroughly;

3 3) defendant's second Marsden motion, to discharge his counsel for failing to subpoena a witness; 4) whether the court should have reduced counts 1 and 3 to misdemeanors pursuant to Proposition 47; 5) whether there was enough evidence for conviction of count 1; and 6) whether the court should have stayed counts 3 and 4. Pursuant to counsel's request and based on applicable law including the newly decided case of People v. Jimenez (2020) 9 Cal.5th 53, we have examined the record and conclude there are no arguable issues which would result in modification or reversal. Defendant has been offered the opportunity to personally file a supplemental brief on his own behalf. He has declined to do so. Defendant has been represented by competent counsel on appeal. DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

Cites, in this corpus

People v. Jimenez S249397 · 2020-03-02
People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26