People v. Palomino CA4/1

California Court of Appeal · D082849 · 2024-03-27 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD298334
Trial judge: Robert O. Amador
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Truc T. Do (author), Laurence D. Rubin, Julia C. Kelety

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:15Z · confidence low

The trial court convicted Palomino of resisting a peace officer, possession of a controlled substance, and possession of drug paraphernalia, sentencing him to time served. The Court of Appeal affirmed the judgment after a Wende review found no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Admission of police officers' testimony regarding the department's use of force policy “Whether the trial court erred in allowing the police officers to testify to the department’s use of force policy”	unclear	not reached	unsure The appellate court identified this as a potential issue but concluded after reviewing the record that it did not constitute an arguable issue for reversal, thereby affirming the trial court's implicit ruling without detailed analysis.
Giving of CALCRIM No. 333 jury instruction “Whether the trial court erred in giving CALCRIM No. 333”	unclear	not reached	unsure The court listed this as a potential issue considered by counsel but determined it was not an arguable issue for reversal, resulting in an affirmation of the trial court's instruction.
Giving of CALCRIM No. 2673 jury instruction “Whether the trial court erred in giving CALCRIM No. 2673”	unclear	not reached	unsure The court identified this as a potential issue but found no arguable error upon review of the record, leading to the affirmation of the judgment.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified, and the court to conduct an independent review.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and the court to review the record independently to ensure no errors were overlooked.
relied: People v. Duenas (2019) 30 Cal.App.5th 1157 — Guides the trial court in staying fines to avoid imposing an unconstitutional financial burden on indigent defendants.

The appellate opinion: sound with gaps — The opinion is a memorandum decision that relies on the Wende/Anders framework to affirm the judgment. It states that counsel identified potential issues but the court's independent review found no arguable errors, which is procedurally correct for this type of appeal.

How this analysis was made · dispute it

unusual disposition

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

A jury convicted Palomino of resisting a peace officer, possession of methamphetamine, and possession of drug paraphernalia, and the trial court sentenced him to time served with fines stayed under Duenas. On appeal, appointed counsel filed a Wende brief identifying three possible issues, Palomino filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Admission of police officer testimony about the department's use of force policy “(1) Whether the trial court erred in allowing the police officers to testify to the department’s use of force policy”	unclear	not reached	unsure The opinion merely lists this as an issue counsel considered under Anders and states that independent Wende review disclosed no arguable issue; it does not analyze the evidentiary ruling or state a standard. Evidentiary rulings are ordinarily reviewed for abuse of discretion, but the opinion provides no record detail permitting independent evaluation.
Giving CALCRIM No. 333 (opinion testimony of lay witness) “(2) Whether the trial court erred in giving CALCRIM No. 333”	unclear	not reached	unsure Instructional issues are reviewed de novo, but the opinion does not analyze the instruction or the evidence supporting it; it simply reports that Wende review revealed no arguable issue. Given that officers testified to beliefs about intoxication, a lay opinion instruction appears facially appropriate, but the record is not described sufficiently to be certain.
Giving CALCRIM No. 2673 (lawful performance of duties; use of force) “(3) Whether the trial court erred in giving CALCRIM No. 2673”	unclear	not reached	unsure The opinion does not analyze this instruction. Because a section 148(a) conviction requires the officer to have been lawfully performing duties, and the facts describe a struggle with officers, an instruction on lawful use of force appears consistent with the evidence, but the opinion provides no analysis to confirm.
Judgment of conviction as a whole (Wende/Anders independent review) “We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.”	unclear	correct	agree with court The court followed the Wende/Anders procedure: counsel filed a no-issues brief identifying potential issues, the defendant was given an opportunity to file a supplemental brief and did not, and the court independently reviewed the record. The facts recited (sleeping in a travel lane, syringe and methamphetamine found, striking and kicking officers) amply support the convictions, so affirmance appears correct, though the memorandum opinion provides no substantive analysis.

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.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacking in merit should file a brief referring to anything in the record that might arguably support the appeal.
relied: People v. Duenas (2019) 30 Cal.App.5th 1157 — A court must consider a defendant's ability to pay before imposing fines and fees; the trial court stayed fines on this basis.

The appellate opinion: sound with gaps — The court correctly applied the Wende/Anders procedure, offered the defendant an opportunity to file his own brief, and independently reviewed the record before affirming, and the recited facts strongly support the convictions. As a memorandum opinion it contains no analysis of the three potential issues counsel flagged, so the soundness of the result cannot be independently verified beyond the procedural compliance shown.

How this analysis was made · dispute it

Opinion

Filed 3/27/24 P. v. Palomino 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, D082849

Plaintiff and Respondent, v. (Super. Ct. No. SCD298334)

ENRIQUE FABIAN PALOMINO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Laura Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. MEMORANDUM OPINION In March 2023, a bystander found Enrique Fabian Palomino asleep behind the wheel with his car parked in a travel lane. Palomino was unresponsive to the bystander’s attempts to rouse him, and the bystander called 911. Palomino did not answer the police officers’ questions. Police believed he was under the influence of a controlled substance and detained him, explaining that they did not want to use force against him. Palomino replied that they “might have to.” During the subsequent frisk search, Palomino warned officers so they would not get “poked.” Police discovered a loaded and uncapped syringe in his pocket as well as two crystalline rocks of methamphetamine. When police put the rocks on the hood of the car, Palomino twice leaned forward and tried to blow them off the car. When he was not successful in blowing the drugs off the car, Palomino began to struggle against the handcuffs and police officers. He used his head to strike one officer and struck another in the chest using his arm. The officers elected to bring Palomino to the ground to get him under control, at which point he began kicking and attempted to bite an officer. Palomino grabbed at an ammunition magazine on one of the officer’s tactical belts before becoming compliant. Following a three-day trial, a jury convicted Palomino of resisting a peace officer (Pen. Code, § 148(a)), possession of a controlled substance (Health & Saf. Code, § 11377(a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364). The trial court sentenced him to time served and stayed his fines pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157, 1172. Palomino now appeals his conviction. We appointed appellate counsel, who filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) stating that she had not been able to identify any arguable issues for reversal on appeal. Counsel asked the court to review the record for error as mandated by Wende. We offered Palomino the opportunity to file his own brief on appeal, but he did not respond. As we have noted, appellate counsel filed a Wende brief and asks us to review the record for error. To assist the court in its review, and in 2 compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal: (1) Whether the trial court erred in allowing the police officers to testify to the department’s use of force policy; (2) Whether the trial court erred in giving CALCRIM No. 333; and (3) Whether the trial court erred in giving CALCRIM No. 2673. 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 Palomino on this appeal. DISPOSITION The judgment is affirmed.

DO, Acting P. J.

WE CONCUR:

KELETY, J.

RUBIN, J.

Cites, in this corpus

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