People v. Resendiz CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD290583
- Trial judge
- Runston G. Maino
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Truc T. Do
Analysis
The trial court convicted the defendant of assault with force likely to cause great bodily injury, inflicting corporal injury, and petty theft, and granted probation with specific conditions. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Admission of evidence of an alleged prior threat to kill an unborn child under Evidence Code section 1109“Whether the trial court prejudicially erred by admitting evidence of an alleged prior threat to kill an unborn child under Evidence Code section 1109.” | unclear | not reached | unsure The court identified this as a potential issue considered by counsel but stated it had not discovered any arguable issues for reversal, implying the error was not prejudicial or did not exist, without providing specific legal analysis. |
Overruling defense objection to prosecutor's closing argument that the defense had tried to 'hide the ball'“Whether the trial court prejudicially erred by overruling a defense objection to the prosecutor’s closing argument that the defense had tried to “hide the ball.”” | unclear | not reached | unsure The court listed this as a potential issue evaluated by counsel but concluded no arguable issues for reversal were found, effectively affirming the trial court's ruling without detailed analysis. |
Overruling defense objection to the electronic search condition of probation“Whether the trial court erred by overruling the defense objection to the electronic search condition of probation.” | unclear | not reached | unsure The court noted this as a potential issue but found no arguable issues for reversal, thereby affirming the probation condition without specific legal justification in the text. |
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, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues and request the court to review the record for error.
The appellate opinion: sound — The opinion is a standard Wende/Anders review where the court affirms based on its own independent review of the record. It is sound because it follows the mandatory procedure for such appeals, although it provides no substantive legal analysis for the specific issues raised by counsel.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Resendiz of assault by means likely to produce great bodily injury, infliction of corporal injury on a dating partner, and petty theft, and the trial court granted probation with 120 days in custody and an electronic search condition. On appeal, appointed counsel filed a Wende/Anders brief identifying three possible issues, Resendiz filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Admission under Evidence Code section 1109 of evidence of Resendiz's prior threat to kill the unborn child“Whether the trial court prejudicially erred by admitting evidence of an alleged prior threat to kill an unborn child under Evidence Code section 1109.” | unclear | correct | unsure The opinion identifies this as an issue counsel considered but offers no analysis, no description of the trial court's ruling, and no statement of the governing standard (ordinarily abuse of discretion). A threat to the same victim two days before the charged incident plausibly qualifies as prior domestic violence under section 1109 and would be subject to Evidence Code section 352 balancing, but nothing in the opinion permits evaluation of how the trial court exercised its discretion. |
Overruling defense objection to the prosecutor's closing argument that the defense tried to "hide the ball"“Whether the trial court prejudicially erred by overruling a defense objection to the prosecutor’s closing argument that the defense had tried to “hide the ball.”” | unclear | correct | unsure The opinion does not describe the context of the remark, the objection, or any admonition, and performs no analysis of prosecutorial misconduct standards or prejudice. Characterizing the defense as hiding the ball may be permissible comment on the evidence or may improperly disparage counsel depending on context; the opinion supplies none, so the conclusion cannot be independently assessed. |
Overruling defense objection to the electronic search condition of probation“Whether the trial court erred by overruling the defense objection to the electronic search condition of probation.” | unclear | correct | unsure The facts recited show Resendiz took the victim's phone to delete a video and the victim later posted about him on Instagram, which supplies a plausible nexus between electronic devices and the offense that could satisfy the Lent/Ricardo P. proportionality analysis. However, the opinion does not cite In re Ricardo P. or describe the condition's scope, so the result appears defensible but the reasoning is absent. |
Judgment of conviction and grant of probation (Wende independent review of entire record)“We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | unclear | correct | agree with court The court followed the Wende procedure: counsel filed a no-issue brief with Anders issues identified, the defendant was given an opportunity to file a supplemental brief, and the court states it independently reviewed the record. The procedure complies with Wende and Kelly, and the summarized evidence (victim testimony corroborated by forensic nurse findings consistent with strangulation) supports the convictions. |
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 frivolous should file a brief referring to anything in the record that might arguably support the appeal.
- missed: In re Ricardo P. (2019) 7 Cal.5th 1113 — An electronic search probation condition is invalid under the Lent test where the burden on privacy is substantially disproportionate to the condition's legitimate supervisory interests; some nexus between electronics and the offense or the probationer's rehabilitation is required.
The appellate opinion: sound with gaps — The court properly followed the Wende/Anders procedure, identified the issues counsel flagged, and stated it reviewed the full record, which is all People v. Kelly requires of a Wende disposition, and the recited facts support the convictions. The opinion nonetheless contains no analysis of the three flagged issues and does not mention In re Ricardo P. on the electronic search condition, so the correctness of those rulings cannot be verified from the opinion itself.
How this analysis was made · dispute it
record incompleteOpinion
Filed 11/16/22 P. v. Resendiz 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, D080148
Plaintiff and Respondent, v. (Super. Ct. No. SCD290583)
JOEL ISAIAS RESENDIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Joel Isaias Resendiz of assault with force likely to cause great bodily injury (Pen. Code,1 § 245, subd. (a)(4)); inflicting corporal injury (§ 273.5, subd. (a)); and petty theft (§ 484). The jury also found the 1 All further statutory references are to the Penal Code unless otherwise stated. victim was a person within the meaning of section 1203.097, subdivision (a). Resendiz was granted probation subject to 120 days in custody among other conditions. Resendiz 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 Resendiz the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS Appellate counsel has provided an accurate summary of the facts of the offenses in the opening brief. We will adopt that summary here for convenience. “PROSECUTION EVIDENCE “Leslie T. dated Resendiz from May 20, 2020 to February 2021. In 2021, she was 22 years old. In January 2021, Leslie learned that she was pregnant with Resendiz’s baby. “On February 19, 2021, Resendiz had told Leslie he would push her down the stairs of his two-story apartment. “On February 21, 2021, Resendiz contacted Leslie by telephone. He was upset that she had gone out the previous night with friends. The conversation ended when Resendiz stated, “I’m going to kill the baby.” “Thirty minutes later, Resendiz arrived uninvited to the apartment Leslie shared with her mother. He was calm at that time. After Leslie allowed Resendiz to use the restroom inside, he returned outside. They talked through the screen door. After Resendiz became angry, Leslie closed the front door.
2 “Resendiz banged on the window for several minutes. Leslie alleged that Resendiz stated that he would break the window, and that he eventually did break the window. “Leslie began recording Resendiz with her phone. He crawled through the window and pointed a piece of broken glass at her before taking her phone. They continued arguing. “Resendiz picked Leslie up and dropped her to the ground. After she ran away, he picked her up again and threw her to the ground. While she was on the ground, he put his knees on her elbows. “After Leslie wriggled away and went to the kitchen, Resendiz grabbed her neck from behind with his forearm choked her for 10 to 15 seconds. She was unable to breathe or talk. She pushed him away and ran outside. He followed her and told her to come back inside. “The argument resumed when they returned inside. Resendiz picked Leslie up for the third time and then threw her across the room, causing her right leg to hit the sofa. “After Leslie’s leg hit the couch, Resendiz ran away. “During the incident, Leslie’s neighbor called 911. The police arrived within 10 minutes of Resendiz leaving the area. Leslie was taken to the emergency room, where she was discharged after six hours. She experienced pain at the back of her head and to her right leg. She also had a sore throat and difficulty swallowing. “A forensic nurse observed bruising along Leslie’s jawline and an abrasion inside her mouth; these injuries were consistent with a person’s fight-or-flight response to manual strangulation. Leslie also complained of a headache, which also is a common symptom resulting from a chokehold. Additional symptoms such as a sore throat, gravelly voice, and difficulty 3 swallowing are also consistent with strangulation and could be indicative of internal swelling even if the outward appearance of the neck appears normal. According to the nurse, application of force to a person’s neck for about ten seconds could cause internal injury and lead to death. “Leslie also had an abrasion on her neck, which might have been caused by a necklace she was wearing A bruise also was observed on Leslie’s right leg. “Leslie never recovered her phone, which she had paid $700 to purchase. “In November 2021, Leslie posted a video to Instagram titled, “The truth about my abuser”; she tagged Resendiz’s social media accounts. “DEFENSE EVIDENCE “In February 2021, Resendiz was 21 years old. He is [five feet six inches] and at that time weighed about 125 or 130 pounds. “On February 21, 2021, Resendiz told Leslie that he wanted to talk. During their conversation outside her apartment, he raised the issue of suspected infidelity. When she closed the door on him, he knocked on her window. He never threatened to break the window and didn’t intend to break the window; it was an accident. “When Leslie began recording their argument, he became concerned that she would post the video to social media. He entered her apartment so that he could delete the video. When she wouldn’t reveal her password, he put the phone in his pocket. She grabbed his shirt, kneed his genital area, and scratched him. “Resendiz briefly left the apartment but returned when Leslie said she would provide the password to her phone. But he left after she became more aggressive. When he drove away, he threw her phone out of the window.
4 “Resendiz denied making any threats and maintained that he never threw her to the ground or strangled her. He insisted that he never touched her at all.” 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 several possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether the trial court prejudicially erred by admitting evidence of an alleged prior threat to kill an unborn child under Evidence Code section 1109. 2. Whether the trial court prejudicially erred by overruling a defense objection to the prosecutor’s closing argument that the defense had tried to “hide the ball.” 3. Whether the trial court erred by overruling the defense objection to the electronic search condition of probation. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Resendiz on this appeal.
5 DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12