P. v. King CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD240450
- Trial judge
- Peter L. Gallagher
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), McINTYRE, Joan K. Irion
Analysis
The trial court convicted Maurice King of assault with a deadly weapon and carrying a concealed dirk or dagger, sentencing him to three years in state prison. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable appellate issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction and sentence for assault with a deadly weapon and carrying a concealed dirk or dagger“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues.” | de novo | not reached | unsure The court conducted an independent review of the record as required by Wende and Anders but did not explicitly analyze the sufficiency of the evidence or the specific constitutional claims raised in the supplemental brief, instead concluding no arguable issues existed. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues and the court to conduct an independent review of the record if no issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying arguable issues and the court to conduct an independent review of the record if no issues are found.
The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the Wende/Anders protocol by stating an independent review was conducted. However, it is substantively thin because it fails to address the specific constitutional arguments (confrontation and speedy trial) raised in the defendant's supplemental brief, merely asserting no arguable issues were found without explanation.
How this analysis was made · dispute it
unusual dispositionThe trial court convicted Maurice King of assault with a deadly weapon and carrying a concealed dirk or dagger, imposed the three-year middle term on count 1, and stayed count 2 under Penal Code section 654. On appeal, appointed counsel filed a Wende/Anders brief, King filed a supplemental brief raising confrontation and speedy trial claims, and the Court of Appeal, after independent review of the record, found no arguable issues and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence as a whole (Wende/Anders independent review of the record)“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues.” | de novo | correct | agree with court The facts recited (eyewitness security guard saw King strike the victim's head with a metal cane causing bleeding gashes, King was found blocks away with a blood-spattered cane and a five-inch steak knife in his pocket, and was identified at a field show-up and at trial) amply support both counts, and the middle-term sentence with a section 654 stay is unremarkable. Independent review under Wende is the proper procedure when counsel finds no arguable issues. |
King's supplemental claim that his Sixth Amendment confrontation right was violated (rejected as not reasonably arguable)“In that supplemental brief he asserts that (1) his Sixth Amendment right to confront witnesses was violated; and (2) his right to a speedy trial was violated. We affirm.” | unclear | correct | unsure The opinion indicates the victim never identified King and could not be located, and the conviction rested on Boyd's live eyewitness testimony and the officer's observations, so no testimonial hearsay from the absent victim appears to have been admitted; the claim thus likely lacks merit. But the opinion gives no reasons for rejecting it, as People v. Kelly requires when a defendant files a supplemental brief, so the result cannot be verified from the opinion alone. |
King's supplemental claim (also listed by counsel) that his right to a speedy trial was violated (rejected as not reasonably arguable)“he listed as possible but not arguable issues (1) whether the evidence is sufficient to support the conviction, (2) whether King was denied his right to a speedy trial” | unclear | correct | unsure The offense occurred April 22, 2012 and the appeal was decided in March 2013, suggesting a prompt trial, but the opinion recites no dates for arraignment, trial, continuances, or any time waiver, and gives no analysis of the claim. Without that record the conclusion cannot be independently confirmed. |
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 to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal, the Court of Appeal's opinion must describe the facts, procedural history, crimes and punishment, and, when the defendant files a supplemental brief, must address the contentions personally raised by the defendant and explain why they fail.
The appellate opinion: sound with gaps — The result is defensible: the recited evidence overwhelmingly supports the convictions and the Wende procedure was followed. But the court merely listed King's confrontation and speedy trial contentions without stating why they fail, which falls short of the explanatory obligation People v. Kelly (2006) 40 Cal.4th 106 imposes when a defendant files a supplemental brief.
How this analysis was made · dispute it
record incompleteOpinion
Filed 3/27/13 P. v. King 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, D062629
Plaintiff and Respondent, v. (Super. Ct. No. SCD240450)
MAURICE SIMEON KING,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Peter L.
Gallagher, Judge. Affirmed.
Defendant Maurice King was convicted of one count of assault with a deadly weapon (count 1) and one count of carrying a concealed dirk or dagger (count 2). King was sentenced to the middle term of three years in state prison for count 1, and the sentence on count 2 was stayed under Penal Code section 654.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered King the opportunity to file his own brief on appeal, and he responded with a supplemental brief. In that supplemental brief he asserts that (1) his Sixth Amendment right to confront witnesses was violated; and (2) his right to a speedy trial was violated. We affirm.
FACTUAL BACKGROUND
On April 22, 2012, Stephen Boyd was working as a security guard at the entrance to East Village Tavern on Market Street in San Diego. At approximately midnight, he observed two men. The first one (the victim) walked quickly past him. The second man (King) was following, twirling a metal walking cane. Boyd turned to check a couple of ID's of customers entering the bar when he heard a "smack." When he turned around he saw King beating the victim over the head with the cane. The victim was hunched over with the back of his head toward the King. He had his hands up in what appeared to be a defensive position.
The victim pushed himself away from King and moved around to the front of a vehicle to make space between him and King. King then went into the middle of Market Street and walked eastbound. The victim came back to the front of the bar and sat down.
Boyd saw that the victim had two gashes on his head and was bleeding. Boyd called 911 and reported the incident.
Sergeant Benjerwin Manansala of the San Diego Police Department responded to a radio call just after midnight on the night of the incident. When he arrived, he encountered the victim and saw that he was bleeding from lacerations on the head.
Officers on the scene obtained a description of King.
2 Sergeant Manansala drove around the area and encountered King approximately five or six blocks away. He was carrying a cane. He approached King and placed him in handcuffs. He saw that the cane was spattered with blood.
After detaining King, Sergeant Manansala patted him down for weapons. He asked King if he had any weapons on him and King responded that he had a knife in his pocket. Sergeant Manansala recovered a steak knife with a five-inch blade from King's left jacket pocket.
Boyd was brought from the bar to where King had been apprehended and he identified King as the assailant. )! At trial, Boyd also identified King as the person who swung the cane.
The victim had refused to give his address and did not identify King as the assailant as he had been transported to the hospital. Later efforts to locate the victim were unsuccessful.
DISCUSSION
On appeal, King's appointed appellate counsel filed an opening brief pursuant to Wende, requesting that we conduct an independent review of the record to determine whether there are any arguable appellate issues. (Wende, supra, 25 Cal.3d 436.) Under Anders, supra, 386 U.S. 738, he listed as possible but not arguable issues (1) whether the evidence is sufficient to support the conviction, (2) whether King was denied his right to a speedy trial, (3) whether the amount of the security fee ($80) imposed was correct, (4)
whether the $60 criminal conviction assessment was correct, (5) whether the trial court should have considered the ability to pay restitution; (6) whether the issue of an ability to 3 pay was waived, and (7) whether a cane may be considered a deadly weapon. As we have previously noted, at our invitation King filed a supplemental brief asserting (1) a violation of his right to confront witnesses; and (2) a violation of his right to a speedy trial.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented King on appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12