P. v. Duran CA4/1

California Court of Appeal · D062133 · 2013-03-05 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of Imperial County · No. JCF25723JCF25259
Trial judge: Christopher W. Yeager
Outcome: affirmed — Affirmed.
Area: delinquency
Panel: McINTYRE (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:57Z · confidence low

The trial court revoked Duran's probation for failing to report, obey laws, and pay fines, and sentenced him to the upper term of four years. The Court of Appeal affirmed the judgment after a Wende review found no reasonably arguable issues.

Ruling reviewed	Standard	The court	The model
Revocation of probation and imposition of upper term sentence “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	not reached	unsure The court did not explicitly state the standard of review for the underlying trial court rulings because it concluded via a Wende review that no issues were reasonably arguable. The opinion relies on the presumption that competent counsel identified all viable issues, and since none were argued, the court affirmed without addressing the specific merits of the revocation or sentencing.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no issues are presented.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially meritorious issues while arguing they are not arguable.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the established Wende/Anders protocol for cases where appointed counsel finds no arguable issues. However, it is a 'sound with gaps' analysis in terms of substantive legal review because it provides no independent analysis of the specific evidentiary or sentencing issues flagged by counsel, relying entirely on the negative finding of the Wende review.

How this analysis was made · dispute it

unusual disposition

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

The Imperial County Superior Court found that Duran violated probation (granted after a no contest plea to Penal Code section 273.5, subdivision (a)) by failing to report to his probation officer, failing to obey all laws after methamphetamine was found during a compliance check, and failing to pay fines, then revoked probation and imposed the upper term of four years based on his criminal history. On appeal, appointed counsel filed a Wende/Anders brief, Duran 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
Finding that Duran violated probation conditions (failure to report, failure to obey all laws, failure to pay fines) and revocation of probation “The trial court found Duran had violated the conditions of his probation by failing to (1) report to the probation officer, (2) obey all laws, and (3) pay his fines.”	unclear	correct	agree with court The opinion recites testimony from the probation officer that Duran reported only twice and paid nothing, and from five officers that 32 bindles of methamphetamine, a scale and cash were found at the residence and one bindle in Duran's pocket, with an incriminating remark at booking. This evidence comfortably satisfies the preponderance standard that governs probation revocation, so the Wende conclusion that no arguable sufficiency or hearsay issue exists is supported by the recited facts, though the court did not state a standard of review because it was conducting independent Wende review.
Decision not to reinstate probation and imposition of the upper term of four years based on criminal history “The court said it was imposing the upper term on the basis of Duran's criminal history.”	unclear	correct	agree with court A single valid aggravating factor such as criminal history (Duran had two prior prison term allegations dismissed as part of the plea) supports an upper term under the post-Cunningham determinate sentencing scheme, and declining reinstatement after a new drug offense while on probation for domestic violence is within the trial court's discretion. The opinion gives no detail on credits, fines or fees, so I cannot independently verify those, but nothing in the recited record suggests error.
Wende/Anders independent review of the record finding no reasonably arguable appellate issues “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 required Wende procedure: counsel identified possible issues, the defendant was given the opportunity to file his own brief and did not, and the court independently reviewed the record and described the facts, offense, and sentence. The opinion's recitation is enough to show that the identified issues are not arguable.

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 before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may file a brief referring to anything in the record that might arguably support the appeal, and the defendant must be allowed to raise points on his own.

The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure, identifies the issues counsel flagged, confirms Duran was offered and declined the chance to file his own brief, and recites facts that plainly support the revocation and sentence. It is a routine no-issue affirmance with the minimal statement of facts and procedure the Supreme Court requires, and nothing in it suggests a misreading of law.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/5/13 P. v. Duran 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, D062133

Plaintiff and Respondent, v. (Super. Ct. Nos. JCF25723 & JCF25259) DAVID BARBA DURAN, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Affirmed.

David Barba Duran appeals from the judgment entered following revocation of probation previously granted after his plea of no contest to inflicting corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)). Duran received a four-year prison term after the revocation. FACTS On July 26, 2010, Duran entered a negotiated no contest plea to inflicting corporal injury on Miriam Gallegos, who had sustained a broken ankle three months earlier during an argument. Gallegos subsequently recanted her initial statements to police. As part of the plea bargain, a misdemeanor battery count and two prior prison term allegations were dismissed. The parties also agreed to Duran being placed on formal probation for three years.

At the sentencing hearing on August 25, the court suspended imposition of sentence and placed Duran on formal probation for three years under standard probationary conditions, including staying in regular contact with his probation officer, paying the imposed fines and obeying all laws.

On March 28, 2011, Duran's probation officer filed a petition for revocation of probation. As amended, the petition alleged Duran had not (1) reported as directed to the probation officer, (2) obeyed all laws and (3) paid fines totaling $310. Duran denied the allegations of the petition.

At trial, Horacio Carranza, Duran's probation officer, testified he met with Duran in August 2010 and reviewed his probation conditions. Carranza also told Duran to report to him each month by phone. Duran did not report to Carranza other than calling him in October 2010 and once after the probation violation notice was filed. Carranza also testified Duran had not made any payments on his fines.

Five law enforcement members of the Imperial Valley Street Interdiction Team testified about a probation compliance check on Duran and Gallegos's residence on 2 March 25. Duran and Gallegos were standing outside the residence when the team members arrived and said they were going to check the house. Gallegos became somewhat hysterical, and her teenage daughter ran into the house and grabbed a woman's white sweater and a tan purse. Police retrieved these items from the teenager. Inside the sweater was a baggie containing 32 bindles of methamphetamine and more than $200.

Inside the purse were Gallegos's driver's license and a scale with white residue on it.

Gallegos and Duran were taken into custody, and, during the booking process, authorities found one bindle in Duran's right front pocket. Also, during the booking process, Gallegos and Duran discussed the white sweater and Duran was heard making an incriminating remark.

The trial court found Duran had violated the conditions of his probation by failing to (1) report to the probation officer, (2) obey all laws, and (3) pay his fines.

Subsequently, the court revoked probation and sentenced Duran to the upper term of four years. The court said it was imposing the upper term on the basis of Duran's criminal history.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. 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. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues:

(1) whether the trial court allowed inadmissible hearsay; (2) whether there was sufficient evidence to revoke Duran's probation; (3) whether the court erred by not reinstating 3 probation; (4) whether the court improperly imposed the maximum sentence; and (5)

whether the court imposed proper credits, fines and fees.

We granted Duran permission to file a brief on his own behalf. 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. Competent counsel has represented Duran on this appeal.

DISPOSITION

The judgment is affirmed.

MCINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus

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