People v. Lemus CA4/1

California Court of Appeal · D078553 · 2021-12-13 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN411606
Trial judge: Sim Von Kalinowski
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:57Z · confidence low

The trial court revoked Lemus's probation after finding he violated a condition by possessing a folding knife, and sentenced him to four years in prison plus a consecutive three-year enhancement. The Court of Appeal affirmed the judgment after a Wende review of the record, finding no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Probation revocation based on the finding that possession of a folding knife violated probation terms. “The trial court found the possession of the knife violated the terms of probation.”	unclear	not reached	unsure The appellate court conducted a Wende review of the entire record and stated it had not discovered any arguable issues for reversal, thereby affirming the judgment without addressing the specific merits of the probation violation finding.
Classification of the folding knife as a deadly weapon. “Whether the court erred by finding the folding knife found in Lemus’s possession was a deadly weapon.”	unclear	not reached	unsure The court listed this as a potential issue identified by counsel but concluded after review that no arguable issues for reversal existed, effectively rejecting the argument without detailed analysis.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying potential issues and the court to review the record independently.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the required Wende/Anders protocol for reviewing a record when counsel identifies no arguable issues. However, it provides no substantive legal analysis or reasoning for why the specific issues raised (knife classification and probation violation) were meritless, relying solely on the negative conclusion of the review.

How this analysis was made · dispute it

unusual disposition

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

The trial court found Jose Lemus in violation of probation after officers found a folding knife on his person, and sentenced him to four years for assault with a deadly weapon plus a consecutive three-year great bodily injury enhancement. 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
Finding that Lemus violated probation by possessing a folding knife (including whether the knife qualified as a deadly weapon under the probation terms) “A search of his person produced a folding knife. The trial court found the possession of the knife violated the terms of probation.”	unclear	correct	unsure The opinion is a Wende review; the court states it reviewed the entire record and found no arguable issue, but it does not set out the probation conditions, the evidence about the knife, or the standard applied. Without those details I cannot independently verify that the finding was supported, though nothing in the opinion suggests error.
Imposition of the aggravated four-year term for assault plus a consecutive three-year section 12022.7 enhancement, with fines, fees, and assessments, following revocation “Lemus was sentenced to a four-year term for the assault count plus a consecutive three-year term for the enhancement. The court also imposed various fines, fees, and assessments.”	unclear	correct	unsure The court conducted independent Wende/Anders review and found no arguable sentencing issue. The opinion does not state whether the four-year upper term was imposed at the original grant of probation or at revocation, nor the reasons for selecting it, so I cannot assess whether the sentencing choice was properly supported.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Counsel who finds no meritorious issues should identify 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 established Wende/Anders procedure, notes counsel's two suggested issues, and states that the court reviewed the entire record and found no arguable issue, which is all that procedure requires. It does not, however, explain why the folding-knife finding or the sentence withstands scrutiny, so the reader cannot evaluate the merits from the opinion alone.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 12/13/21 P. v. Lemus 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, D078553

Plaintiff and Respondent, v. (Super. Ct. No. SCN411606)

JOSE LEMUS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Jose Lemus pleaded guilty to one count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and admitted he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Lemus was placed on probation for three years on various terms and conditions.

1 All further statutory references are to the Penal Code. Two months later, the court issued an order to show cause why probation should not be revoked. Thereafter, the court held a contested revocation hearing. At the conclusion of the hearing, the court found Lemus in violation of probation. Lemus was sentenced to a four-year term for the assault count plus a consecutive three-year term for the enhancement. The court also imposed various fines, fees, and assessments. Lemus 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 issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Lemus the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The evidence at the probation revocation hearing demonstrated that after being placed on probation, Lemus was stopped by Oceanside police officers. A search of his person produced a folding knife. The trial court found the possession of the knife violated the terms of probation. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the 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 issues that were considered in evaluating the potential merits of this appeal. 1. Whether the court erred by finding the folding knife found in Lemus’s possession was a deadly weapon.

2 2. Assuming the knife is not a deadly weapon did the court err in revoking probation. We have reviewed the entire record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Lemus on this appeal. DISPOSITION The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12