P. v. Millan CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN268130, SCN233183SCN264484
- Trial judge
- K. Michael Kirkman
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Judith L. Haller, Joan K. Irion
Analysis
The trial court summarily revoked Millan's probation in three cases and reinstated it with a suspended four-year prison term. The Court of Appeal affirmed the judgment after finding no reasonably arguable issues on independent review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary revocation of probation and reinstatement with suspended sentence“A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | de novo | not reached | agree with court The court did not explicitly state a standard of review for the underlying trial court rulings because it found no arguable issues to review under the Wende/Anders procedure. The court affirmed the judgment based on the absence of error in the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel must conduct an independent review of the record to identify arguable issues when no issues are presented in the brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel must file a brief identifying any arguable issues, even if none are found, to ensure the right to counsel is protected.
The appellate opinion: sound — The opinion is procedurally sound as it follows the standard Wende/Anders protocol for appointed counsel appeals. It correctly identifies that no arguable issues were found in the record, leading to an affirmance.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily revoked Miguel Millan's probation in three cases (burglary, receiving stolen property, and first degree burglary) after a probation search uncovered a methamphetamine pipe with residue in a bedroom containing his belongings, then reinstated probation for three years and suspended execution of a four-year prison sentence. On appeal, appointed counsel filed a Wende/Anders brief identifying four possible but non-arguable issues, Millan 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 |
|---|---|---|---|
Revocation of probation in three cases, reinstatement of probation, and suspended execution of a four-year prison sentence“In July, the court reinstated probation for three years and suspended execution of a four-year prison sentence: the four-year middle term in No. SCN268130 and concurrent two-year middle term sentences in each of the other two cases.” | unclear | correct | agree with court The court conducted the independent record review required by Wende and Anders, gave the defendant an opportunity to file his own brief, and found no arguable issue; nothing in the recited facts (middle terms, concurrent sentences, reinstatement rather than execution) suggests an unauthorized sentence. The procedure followed is the one Wende prescribes, so the affirmance is supported on this record. |
Sufficiency of the evidence to support revocation of probation“(1) whether there was sufficient evidence to support the summary revocation of probation” | unclear | correct | unsure Probation may be revoked on a preponderance of the evidence, and the opinion recites that a pipe containing methamphetamine was found on a dresser in a bedroom with Millan's photographs, documents and passport, which is some evidence of constructive possession. The opinion does not describe the hearing testimony in any detail, so I cannot independently verify the court's conclusion beyond noting it is plausible. |
Whether defense counsel's stipulation to laboratory test results, if used at the revocation hearing, was permissible under Proposition 115“(2) whether counsel's stipulation regarding laboratory test results fell under Proposition 115, if the stipulation was used as a basis for the probation revocation evidentiary hearing” | unclear | correct | unsure A stipulation by counsel to lab results is a routine, tactical evidentiary concession and probation revocation hearings permit relaxed evidentiary rules; the court found no arguable issue. The opinion gives no facts about the stipulation or how it was used, so there is nothing to evaluate beyond the court's bare conclusion. |
Admission of evidence of methamphetamine found in the passenger's purse“(3) whether the court committed prejudicial error in admitting evidence of methamphetamine found in the passenger's purse” | unclear | correct | unsure Admission of evidence at a revocation hearing is reviewed for abuse of discretion and any error would require a showing of prejudice; the court found none arguable. The opinion's background does not even mention the passenger's purse, so the record quoted is insufficient to assess the point independently. |
Whether the quantity of methamphetamine in the pipe was a usable amount sufficient to support revocation“(4) whether 0.2 grams of methamphetamine is enough to meet the standard for revocation of probation, when Drug Enforcement Administration guidelines state that a usable amount is 0.05 grams” | unclear | correct | unsure California's usable-quantity rule bars liability only for useless traces or residue, not for any quantity below an agency threshold, and the revocation also rested on possession of paraphernalia, which does not depend on quantity. The opinion is internally inconsistent, reciting .02 grams in the background and 0.2 grams in the issues list, and does not resolve which figure the record supports, so I cannot confirm the conclusion. |
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 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.
The appellate opinion: sound — The court followed the Wende/Anders procedure correctly: it identified counsel's possible issues, invited a supplemental brief from the defendant, independently reviewed the record, and found no arguable issue, which is all a Wende affirmance requires. The opinion recites almost no detail about the revocation hearing and contains an unresolved inconsistency between .02 and 0.2 grams of methamphetamine, but neither affects the validity of the disposition.
How this analysis was made · dispute it
record incompleteOpinion
Filed 5/1/13 P. v. Millan 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, D062562
Plaintiff and Respondent, v. (Super. Ct. Nos. SCN268130, SCN233183 & SCN264484) MIGUEL A. MILLAN, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
In 2009, the court placed Miguel A. Millan on three years' probation for burglary (Pen. Code, § 459; case No. SCN233183) and receiving stolen property (Id., § 496, subd.
(a); case No. SCN264484). In 2010, the court placed him on three years' probation for first degree burglary (Id., §§ 459 & 460; case No. SCN268130). In June 2012, the court summarily revoked probation in all three cases. In July, the court reinstated probation for three years and suspended execution of a four-year prison sentence: the four-year middle term in No. SCN268130 and concurrent two-year middle term sentences in each of the other two cases. Millan appeals.
BACKGROUND
On April 6, 2012, sheriff's deputies stopped a car Millan was driving. Law enforcement officers conducted a probation search at a residence and, on a dresser in a bedroom, found a methamphetamine pipe containing .02 grams of methamphetamine.
Also in the bedroom were photographs, documents and a passport, all belonging to Millan. The officers arrested Millan for possessing a controlled substance (Health & Saf.
Code, § 11377, subd. (a)) and possessing drug paraphernalia (Id., § 11364).
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 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible, but not arguable, issues: (1) whether there was sufficient evidence to support the summary revocation of probation; (2) whether counsel's stipulation regarding laboratory test results fell under Proposition 115, if the stipulation was used as a basis for the probation revocation evidentiary hearing; (3) whether the court committed prejudicial error in admitting evidence of methamphetamine found in the passenger's purse; and (4) whether 0.2 grams of methamphetamine is enough to meet the standard for revocation of probation, when Drug Enforcement Administration guidelines state that a usable amount is 0.05 grams.
2 We granted Millan permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.
Millan has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HALLER, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12