P. v. Cardwell CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Riverside County · No. SWF025954
- Trial judge
- Larrie R. Brainard (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith L. Haller, McINTYRE
Analysis
The trial court sentenced the defendant to eight years and four months for grand theft after dismissing a burglary charge on remand, and responded to a jury question regarding the independence of charges without consulting counsel. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on Wende review and determining that the trial court's response to the jury was accurate and non-prejudicial.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's response to jury question regarding aiding and abetting and charge independence“The record shows the trial court's response to the jury's question was accurate and thus any failure to consult counsel did not cause any prejudice.” | de novo | correct | agree with court The appellate court reviewed the record to determine if the trial court's instruction to the jury was legally accurate. The court concluded that the statement that each charge is independent is correct under California law, and therefore the procedural error of not consulting counsel was harmless. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the duty of appointed appellate counsel to conduct an independent review of the record for error when no issues are presented.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende standard to review the record for error. It addresses the specific argument raised by the pro se appellant regarding the jury instruction and correctly identifies that the substantive accuracy of the instruction renders the procedural lapse harmless.
How this analysis was made · dispute it
unusual dispositionAfter a prior appeal reversed Cardwell's burglary conviction, the prosecutor dismissed that count on remand and the trial court resentenced Cardwell to eight years four months on the remaining grand theft and resisting-officer convictions, adding six days of section 4019 credit. On this second appeal, appointed counsel filed a Wende brief, Cardwell filed his own supplemental brief complaining that the trial court answered a jury question without consulting counsel, and the Court of Appeal found no arguable issues and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's response to the jury's question about aiding and abetting ('Each charge is to be decided separately, thus each is independent of the other') given without consulting counsel“The record shows the trial court's response to the jury's question was accurate and thus any failure to consult counsel did not cause any prejudice.” | unclear | harmless error (procedure) | agree with court Section 1138 requires that further jury instruction be given in the presence of or after notice to counsel, and ex parte responses are error, but California law treats such error as harmless where the response is legally correct and non-prejudicial. The stated answer that each charge must be decided separately is a correct statement of law consistent with standard instructions, so the no-prejudice conclusion is defensible, though the opinion does not cite section 1138 or the governing harmless-error cases and does not disclose whether counsel objected. |
Resentencing on remand to eight years four months on the grand theft conviction (after dismissal of burglary) with six additional days of section 4019 credit, reviewed under Wende for arguable error“Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues.” | unclear | correct | agree with court The court conducted the independent record review Wende requires and found no arguable issues; the opinion recites no facts suggesting a sentencing or credit-calculation error, and nothing in the record as described contradicts the conclusion. Without more detail about the sentence components, I cannot independently verify the calculation, but no specific legal error appears. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues before affirming.
The appellate opinion: sound with gaps — The court performed the Wende review, addressed the single contention Cardwell raised in his supplemental brief, and reached a defensible result because the jury-question response was a correct statement of law and thus could not have prejudiced him. The opinion is sparse, however: it does not cite section 1138 or the harmless-error authorities governing ex parte jury communications and does not describe the resentencing record in enough detail to show the independent review of the credit and term calculation.
Opinion
Filed 6/5/13 P. v. Cardwell 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, D062674
Plaintiff and Respondent, v. (Super. Ct. No. SWF025954)
GABRIEL ANTHONY CARDWELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Larrie R.
Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant Gabriel Anthony Cardwell of commercial burglary by use of an acetylene torch, grand theft, and threat of force on a peace officer. (Pen. Code,1 1 All further statutory references are to the Penal Code. §§ 464, 487, subd. (a) & 69.) Cardwell admitted a three strikes prior within the meaning of section 667, subdivisions (c) and (e)(1) and a prison prior within the meaning of section 667.5, subdivision (b). Initially, the trial court sentenced Cardwell to a total term of 16 years four months and awarded him a total of 1143 days of actual and section 4019 credits.
On Cardwell's first appeal, we reversed his burglary conviction and remanded for further proceedings. On remand, the district attorney elected to dismiss the burglary charge and the trial court sentenced Cardwell to a term of eight years four months on the grand theft conviction. The trial court also gave Cardwell an additional six days of credit under section 4019.
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.
We granted Cardwell permission to file a brief on his own behalf, and he did so.
In his brief, Cardwell argues the trial court erred when, without consulting counsel, the trial court responded to a jury question. The record shows that during trial, the jury asked the trial court the following question: "Does aiding and abetting apply to each charge individually or all three as a whole[?]" The trial court responded: "Each charge is to be decided separately, thus each is independent of the other."
Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues. The record shows the trial court's 2 response to the jury's question was accurate and thus any failure to consult counsel did not cause any prejudice.
We find that Cardwell was adequately represented both at trial and on appeal.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12