People v. Cole CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF27233
- Trial judge
- William D. Lehman
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Truc T. Do
Analysis
The trial court denied Ralph Cole's motion to vacate his 2011 conviction for possession of marijuana in a custodial facility, relying on the principle that Proposition 64 did not repeal Penal Code section 4573.6. 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 |
|---|---|---|---|
Denial of motion to vacate conviction for possession of marijuana in a custodial facility (Pen. Code, § 4573.6) in light of Proposition 64.“People v. Raybon (2021) 11 Cal. 5th 1056 held Proposition 64 did not repeal Penal Code section 4573.6.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Raybon (2021) 11 Cal.5th 1056 — Proposition 64 did not repeal Penal Code section 4573.6.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must review the record for error when unable to identify arguable issues for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Appellate counsel must file a brief identifying any possible issues and the court must independently review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a case where appointed counsel finds no arguable issues. It correctly relies on the binding Supreme Court of California authority in People v. Raybon to affirm that the specific statute at issue was not repealed by Proposition 64.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Ralph Cole's 2021 motion to vacate his 2011 conviction for possessing marijuana in a custodial facility (Pen. Code, § 4573.6) based on Proposition 64. 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 |
|---|---|---|---|
Denial of motion to vacate conviction under Penal Code section 4573.6 in light of Proposition 64“People v. Raybon (2021) 11 Cal. 5th 1056 held Proposition 64 did not repeal Penal Code section 4573.6.” | unclear | correct | agree with court The California Supreme Court in People v. Raybon squarely held that Proposition 64 did not repeal or decriminalize possession of cannabis in prison under section 4573.6, so the motion to vacate had no legal basis and the trial court correctly denied it. The appellate court conducted the independent Wende/Anders review and found no arguable issue, which is consistent with binding Supreme Court authority. |
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 must file a brief referring to anything in the record that might arguably support the appeal, and the court must then independently examine the record.
- relied: People v. Raybon (2021) 11 Cal.5th 1056 — Proposition 64 did not repeal Penal Code section 4573.6; possession of cannabis in a state prison remains a felony.
The appellate opinion: sound — The opinion correctly identifies the sole potential issue and disposes of it by reference to Raybon, which is binding Supreme Court authority directly on point. The opinion is brief and does not state a standard of review or discuss the procedural vehicle for the motion, but the result is compelled by Raybon.
Opinion
Filed 2/16/22 P. v. Cole 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, D079263
Plaintiff and Respondent, v. (Super. Ct. No. JCF27233)
RALPH COLE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2011, Ralph Cole pleaded no contest to possession of marijuana in a custodial facility (Pen. Code, § 4573.6). He was sentenced to three years in prison, to be served consecutively to his existing prison terms. In 2021, Cole filed a motion to vacate his conviction in light of Proposition 64, which changed the laws regarding possession of marijuana.
The trial court denied the motion.1 Cole 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 Cole the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The probation report states that Cole possessed 8.7 grams and 44.3 grams of marijuana while in a state prison. 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, 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 this appeal: Whether the trial court erred in denying Cole’s motion to vacate his conviction for possessing marijuana in state prison. 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 Cole on this appeal.
1 People v. Raybon (2021) 11 Cal. 5th 1056 held Proposition 64 did not repeal Penal Code section 4573.6. 2 DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DO, J.
Cites, in this corpus
- People v. Raybon S256978 · 2021-08-12
- People v. Wende Crim. 20851 · 1979-10-12