People v. Swain CA4/1

California Court of Appeal · D080595 · 2023-02-22 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE396969, SCE399200
Trial judge: Robert O. Amador
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:38Z · confidence low

The trial court denied Swain's motion for mental health diversion and sentenced him to an aggregate term of seven years and four months following his guilty pleas. The Court of Appeal affirmed the judgment, finding no arguable issues for reversal after an independent review of the record pursuant to People v. Wende.

Ruling reviewed	Standard	The court	The model
Denial of motion for pretrial mental health diversion “The motion for mental health diversion was denied because there was no evidence to establish that Swain’s mental health issues had anything to do with committing the crimes in these cases.”	abuse of discretion	not reached	unsure The appellate court did not explicitly analyze the trial court's ruling under the abuse of discretion standard; instead, it stated that no arguable issues for reversal were found after reviewing the record. The opinion notes the trial court found no nexus between the mental health issues and the crimes, which is the statutory requirement for diversion, but the appellate court did not formally affirm the trial court's discretion, merely finding no error in the record.
Sentence imposed (including selection of upper term) “We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.”	unclear	not reached	unsure The appellate court identified the sentence as a potential issue in the Wende brief but did not provide specific reasoning or apply a standard of review to the sentencing decision. It simply concluded that no arguable issues for reversal existed in the entire record.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and the court to independently review the record for error when counsel finds no arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying potentially meritorious issues and allowing the court to review the record.

The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol by identifying potential issues and conducting an independent review. However, it is substantively thin, as it fails to provide any specific legal analysis or reasoning for why the identified issues (diversion denial and sentencing) were not arguable, relying solely on a blanket statement that no errors were found.

How this analysis was made · dispute it

unusual disposition unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court denied Swain's pretrial motion for mental health diversion under Penal Code section 1001.36, finding he had mental health issues but no evidence linked them to the charged crimes, after which Swain pleaded guilty in two cases and received an aggregate sentence of seven years four months. On appeal, counsel filed a Wende brief, Swain filed a supplemental brief relying on materials outside the record, and the Court of Appeal declined to consider the new evidence, found no arguable issues after independent review, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of motion for pretrial mental health diversion (Pen. Code, § 1001.36) “The court found Swain had mental health issues, but the court could not find any evidence that Swain’s mental health issues had anything to do with the crimes with which he was charged.”	abuse of discretion	correct	unsure The appellate court accepted the trial court's finding that nothing connected Swain's mental disorder to the offenses and treated this as dispositive. However, effective January 1, 2023 (before this opinion was filed), section 1001.36 was amended to presume that a qualifying disorder was a significant factor in the offense unless the court finds by clear and convincing evidence that it was not a motivating factor; under Frahs and Estrada principles such ameliorative amendments apply to nonfinal judgments. A finding of 'no evidence' of a link is not the same as a clear-and-convincing finding of no link, and the opinion does not address the amendment, so I cannot be confident the result is correct.
Imposition of sentence, including selection of the upper term “Whether the sentence imposed, including the selection of the upper term was statutorily correct.”	unclear	correct	unsure Counsel flagged the upper term as a possible issue, and the court found no arguable error after Wende review. The opinion does not state the sentencing date, whether the plea agreement stipulated to the upper term, or whether aggravating facts were admitted or found as required by amended section 1170(b) (Senate Bill 567, effective January 1, 2022). Without those facts the conclusion cannot be verified from the opinion.
Refusal to consider new evidence (disability certificate and 2021 psychological evaluation) submitted with the supplemental brief “We decline Swain’s request to take “new evidence” on appeal.”	de novo	correct	agree with court Appellate review is confined to the record before the trial court, and the materials Swain offered were either postconviction or not shown to have been presented below; moreover the trial court had already accepted that Swain had mental health issues, so the materials would not have addressed the dispositive nexus finding. Declining to take new evidence was proper.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-issue brief should identify potential issues to assist the court's independent review.
missed: People v. Frahs (2020) 9 Cal.5th 618 — Ameliorative amendments to section 1001.36 mental health diversion apply retroactively to all cases not yet final on appeal; the court did not address whether the January 1, 2023 amendment creating a presumption that the disorder was a significant factor applied to Swain's nonfinal judgment.
missed: People v. Flores (2022) 73 Cal.App.5th 1032 — Senate Bill 567's amendments to section 1170(b), limiting upper-term sentences to cases where aggravating facts are stipulated or found true beyond a reasonable doubt, apply retroactively to nonfinal judgments; the opinion did not explain how the upper term satisfied amended section 1170(b).

The appellate opinion: sound with gaps — The court properly conducted Wende/Anders review, addressed the supplemental brief, and correctly declined extra-record evidence, reaching a defensible result. It did not, however, discuss the 2023 amendment to section 1001.36 that shifted the nexus inquiry to a presumption rebuttable only by clear and convincing evidence, nor explain how the upper term complied with amended section 1170(b), both of which applied to this nonfinal judgment.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 2/22/23 P. v. Swain 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, D080595

Plaintiff and Respondent, v. (Super. Ct. Nos. SCE396969, SCE399200) MATTHEW K. SWAIN, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Matthew K. Swain, in pro. per.; and Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This appeal follows convictions in two separate criminal cases. In case No. SCE396969, Matthew Swain pleaded guilty to making criminal threats (Pen. Code,1 § 422) and inflicting corporal injury on his girlfriend (§ 273.5, 1 All further statutory references are to the Penal Code. subd. (a)). Swain also admitted the use of a knife in the commission of the criminal threats (§ 12022, subd. (b)(1)). In case No. SCE399200, Swain pleaded guilty to dissuading a witness while out on bail (§§ 136.1, subd. (b)(2), 12022.1, subd. (b)). The remaining charges and allegations in each of the cases were dismissed. Swain was sentenced to an aggregate term of seven years and four months. Prior to pleading guilty, Swain filed a motion for mental health diversion. The court held a hearing on the motion. The court found Swain had mental health issues, but the court could not find any evidence that Swain’s mental health issues had anything to do with the crimes with which he was charged. Swain filed a timely notice of appeal and obtained a certificate of probable cause. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Swain the opportunity to file his own brief on appeal. Swain has responded by filing a supplemental brief. We will discuss his submission later in this opinion. STATEMENT OF FACTS The convictions in each case are based on guilty pleas and not on evidentiary hearings. In case No. SCE396969, Swain admitted he made a criminal threat and that he used a knife in the commission of the offense. In case No. SCE399200, he attempted to dissuade a witness from testifying in case No. SCE396969.

2 DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that have been considered in evaluating the potential merits of these appeals. 1. Whether the trial court abused its discretion in denying Swain’s motion for pretrial mental health diversion. 2. Whether the sentence imposed, including the selection of the upper term was statutorily correct. In his submission, Swain discusses matters outside the record on appeal in this case. He offers a “Certificate of Disability” which he has received from a postconviction school program in which he has been involved. Swain has also filed a copy of a 2021 phycological evaluation he wishes us to consider. We decline Swain’s request to take “new evidence” on appeal. The parties agreed and the court accepted the fact that Swain had mental health issues. The motion for mental health diversion was denied because there was no evidence to establish that Swain’s mental health issues had anything to do with committing the crimes in these cases. Swain’s supplemental brief has not raised any arguable issues for reversal on appeal. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Swain on this appeal.

3 DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

BUCHANAN, J.

Cites, in this corpus

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