P. v. Phimmasone CA4/1

California Court of Appeal · D062561 · 2013-03-05 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD240227
Trial judge: Joan P. Weber
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Alex C. McDonald (author), Cynthia Aaron, Patricia D. Benke

Analysis

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A jury convicted Ai Phimmasone of felony evading a police officer (Veh. Code, § 2800.2, subd. (a)), he admitted four prior prison terms and a strike, and the trial court denied his Romero motion and imposed nine years (upper term doubled plus three one-year prior-prison-term enhancements, striking the fourth as duplicative of the strike). On appeal appointed counsel filed a Wende/Anders brief identifying six possible but non-arguable issues; Phimmasone filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Judgment of conviction and nine-year sentence as a whole (independent Wende/Anders record review) “A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues”	de novo	correct	agree with court The court followed the Wende procedure: counsel filed a no-issue brief listing possible issues, the defendant was given the opportunity to file a supplemental brief and did not, and the court independently reviewed the record. The opinion recites the facts, procedural history, crime, and punishment, which satisfies the Wende/Anders framework. Nothing in the recited facts (speeding, running a stop sign, fleeing with lights and siren activated, crashing, fleeing on foot) suggests an arguable sufficiency or other issue.
Denial of Romero motion to strike the prior strike conviction “(6) whether denial of Phimmasone's Romero motion was an abuse of discretion.”	abuse of discretion	correct	unsure The opinion identifies the applicable abuse-of-discretion standard but provides no facts about the prior strike, the defendant's record, or the trial court's stated reasons. With four prior prison terms admitted, denial is facially plausible, but the opinion does not supply enough to independently confirm the ruling.
Denial of Marsden motion to substitute appointed counsel “(4) whether denial of Phimmasone's motion under People v. Marsden (1970) 2 Cal.3d 118 was error”	unclear	correct	unsure The opinion names the issue as a potential one but does not describe the Marsden hearing or the grounds asserted. The court's conclusion that it is not arguable follows from its independent review, but the opinion gives no facts on which to evaluate it.
Jury instructions on identification evidence and the evading offense, and omission of unanimity and lesser-included-offense instructions “(1) whether the instructions concerning identification evidence and the evading offense were adequate; (2) whether it was error not to give a unanimity instruction or a lesser included offense instruction”	unclear	correct	unsure Instructional claims are reviewed de novo, but the opinion does not state the standard or describe the instructions given. The facts recited describe a single continuous evasion, which makes a unanimity issue unlikely, but the opinion does not analyze the point.
Acceptance of waiver of jury trial on and admission of prior prison term and prior strike allegations “(5) whether Phimmasone was adequately advised of his rights when he waived trial on and admitted the prior prison terms and prior strike allegations”	unclear	correct	unsure The opinion states the defendant waived jury trial and admitted the priors but does not describe the advisements given, so the adequacy of the waiver cannot be independently evaluated from the opinion.
Claimed ineffective assistance of trial counsel “(3) whether Phimmasone received ineffective assistance of counsel”	unclear	correct	unsure No facts concerning counsel's performance are recited. Such claims are rarely cognizable on direct appeal absent a record explaining counsel's conduct, so treating it as non-arguable is consistent with ordinary practice, but the opinion gives no basis to assess it.

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 issues before affirming.
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 conduct its own examination of the record.
relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — A trial court has discretion under Penal Code section 1385 to strike a prior strike conviction allegation in furtherance of justice.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be allowed to state the reasons for the request, and the court must inquire into them.

The appellate opinion: sound — The opinion follows the Wende/Anders procedure correctly: it recites the facts, procedural history, offense, and sentence, lists the issues counsel identified, notes the defendant declined to file a supplemental brief, and reports an independent record review disclosing no arguable issues. Because Wende opinions need not discuss the identified issues, the absence of analysis is not a defect, although it leaves the reader unable to verify any individual ruling.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/5/13 P. v. Phimmasone 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, D062561

Plaintiff and Respondent, v. (Super. Ct. No. SCD240227)

AI PHIMMASONE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.

Ai Phimmasone was convicted by a jury of felony evading a police officer (Veh.

Code, § 2800.2, subd. (a).)1 He waived jury trial on and admitted allegations he had served four prior prison terms (Pen. Code § 667.5) and a prior strike conviction (Pen.

Code, § 667, subds. (b)-(i)). The court denied Phimmasone's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced him to a prison term of 1 All further statutory references are to the Vehicle Code unless otherwise specified. nine years, consisting of the upper term of three years doubled for the current offense under the three strikes law (Pen. Code, § 667, subds. (b)-(i)), plus three additional consecutive one-year terms for three of Phimmasone's prior prison terms; the court struck the one-year enhancement for the fourth prior prison term because it was based on the prior strike conviction. Phimmasone appeals. We affirm the judgment.

FACTS

On April 6, 2012, Officer Luth and his partner were driving a marked patrol car and began following a car driven by Phimmasone. Phimmasone made an unsafe left turn at a T-intersection and was speeding in violation of section 22350. After Phimmasone ignored a stop sign in violation of section 22450, subdivision (a), Luth activated his lights and siren; Phimmasone did not stop but instead accelerated. After making a wide left turn, Phimmasone lost control of the car and drove into a yard. He drove across the yards of other houses before crashing into a flatbed trailer. He then fled on foot, with Luth and his partner in pursuit, and did not heed shouted demands from Luth to stop. Although Luth lost sight of Phimmasone, other officers, responding to Luth's earlier request for assistance, set up a perimeter and apprehended Phimmasone.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel identifies as possible, but not arguable, issues: (1) whether the instructions concerning identification evidence and the 2 evading offense were adequate; (2) whether it was error not to give a unanimity instruction or a lesser included offense instruction; (3) whether Phimmasone received ineffective assistance of counsel; (4) whether denial of Phimmasone's motion under People v. Marsden (1970) 2 Cal.3d 118 was error; (5) whether Phimmasone was adequately advised of his rights when he waived trial on and admitted the prior prison terms and prior strike allegations; and (6) whether denial of Phimmasone's Romero motion was an abuse of discretion.

We granted Phimmasone permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues, and Phimmasone has been competently represented by counsel on this appeal.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

Cites, in this corpus

People v. Superior Court (Romero) S045097 · 1996-06-20
People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26