P. v. Alvarado CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS252155
- Trial judge
- Kathleen M. Lewis
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Alex C. McDonald, O'Rourke
Analysis
The trial court sentenced the defendant to the upper term of 10 years in state prison following a guilty plea to a lewd act on a minor. The Court of Appeal affirmed the judgment after finding no reasonably arguable issues on independent review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term of 10 years in state prison“Whether the trial court abused its discretion in imposing the upper term.” | abuse of discretion | not reached | unsure The appellate court did not analyze the merits of the sentencing issue because appointed counsel identified it as a 'possible, but not arguable' issue under Anders v. California, and the court's independent review disclosed no reasonably arguable appellate issues. Consequently, the court affirmed the judgment without addressing whether the trial court abused its discretion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify reasonably arguable issues when no argument is presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible, but not arguable, issues to ensure the defendant's right to counsel is protected.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel who finds no arguable issues. However, it provides no substantive legal analysis of the sentencing decision, relying entirely on the negative finding of no arguable issues.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Alvarado's guilty plea to one count of forcible lewd act on a child under 14 (Pen. Code, § 288, subd. (b)(1)) with a stipulated range of five to ten years and imposed the upper term of ten years after considering victim and psychologist statements and defense mitigation letters. On appeal, appointed counsel filed a Wende/Anders brief identifying only the upper-term choice as a possible issue; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term of 10 years within the stipulated five-to-ten-year sentencing range“Whether the trial court abused its discretion in imposing the upper term.” | abuse of discretion | correct | agree with court The sentence fell within the range Alvarado stipulated to in his plea agreement, and the opinion recites that the court had before it the victim's statement of continuing trauma and the psychologist's statement of irreparable harm, which are legitimate aggravating considerations under the sentencing rules. Nothing in the opinion suggests reliance on an improper factor or a failure to consider the mitigation letters, so an abuse-of-discretion challenge would not be reasonably arguable on this record. |
Entry of judgment on the guilty plea and the adequacy of the proceedings generally (Wende independent review)“has disclosed no reasonably arguable appellate issues.” | unclear | correct | agree with court The court followed the Wende/Anders procedure: counsel filed a no-issues brief, the defendant was given an opportunity to file a supplemental brief and did not, and the court reviewed the record. The opinion is conclusory as Wende opinions typically are, so the result is defensible but cannot be independently verified from the text. |
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 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 opinion correctly applies the Wende/Anders framework, notes the defendant was invited to and did not file a supplemental brief, and addresses the one potential issue (upper term), which is weak given the stipulated range and the aggravating victim-impact evidence recited. It does not cite People v. Kelly (2006) 40 Cal.4th 106 or discuss the sentencing rules, but a Wende affirmance does not require more and the result is sound.
Opinion
Filed 5/30/13 P. v. Alvarado 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 APPEA, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062206
Plaintiff and Respondent, v. (Super. Ct. No. SCS252155)
ALFONSO ALVARADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.
Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant Alfonso Alvarado pled guilty to one count of forcibly committing a lewd act on a person under the age of 14 and admitted that at the time of the offense he was over the age of 16. (Pen. Code, § 288, subd. (b)(1); Welf. & Inst. Code, § 707, subd. (d)(1).) In exchange for the plea, the district attorney agreed to dismiss one count of sodomy by force on a person under the age of 14 (Pen. Code, § 286, subd. (c)(2)(A) & (B)) and four other counts of forcible lewd acts on a person under the age of 14. Alvarado stipulated to a sentencing range of from five to 10 years.
At sentencing, the victim, who is Alvarado's cousin, submitted a statement describing his continuing trauma, and the victim's psychologist submitted a statement in which he described the victim's continuing and irreparable harm. Although Alvarado submitted statements from a number of family members and other individuals in mitigation, the trial court imposed the upper term of 10 years in state prison.
Appointed appellate counsel has filed a brief summarizing the 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. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists as a possible, but not arguable, issue:
Whether the trial court abused its discretion in imposing the upper term.
We granted Alvarado permission to file a brief on his own behalf. He has not responded. Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders v. California, has disclosed no reasonably arguable appellate issues.
We find that Alvarado was adequately represented both at trial and on appeal.
2 DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12