People v. Gonzales CA4/3 ( 2024 )

Filed 10/3/24 P. v. Gonzales CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063428
v. (Super. Ct. No. 21NF0139)
ANDREW JOSEPH GONZALES, OPINION
JR.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Affirmed.
Lisa M. Zember, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2022, Andrew Joseph Gonzales, Jr., pleaded guilty to various
crimes and enhancements. Under the terms of a plea agreement, the trial
court suspended a four-year prison sentence and granted formal probation
with terms and conditions. In 2023, after the trial court presided over an
evidentiary violation of probation (VOP) hearing, the court revoked
Gonzales’s probation and imposed the four-year prison sentence.
Gonzales filed a notice of appeal from the trial court’s order
revoking probation. This court appointed counsel for Gonzales on appeal.
Appointed appellate counsel filed an affidavit and an opening brief raising no
arguable issues.1 (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders
v. California (1967) 386 U.S. 738 (Anders).) Gonzales did not file a
supplemental brief on his own behalf.
In the interest of justice, this court has independently reviewed
the record. (See People v. Freeman (2021) 61 Cal.App.5th 126, 133–134
[Wende review is generally not available following a VOP hearing]; but see
People v. Delgadillo (2022) 14 Cal.5th 216, 230 [“if the appellate court wishes,
it may . . . exercise its discretion to conduct its own independent review of the
record in the interests of justice”].)
We find no arguable issues and affirm the trial court’s order.
1
We note that appointed appellate counsel failed to set out the
applicable facts presented at the evidentiary VOP hearing. (People v. Serrano
(2012) 211 Cal.App.4th 496, 503 [“In all future criminal appeals arising from
proceedings other than the first appeal of right, where appointed counsel
finds no arguable issues, counsel need not and should not file a motion to
withdraw. Instead, counsel should (1) inform the court he or she has found no
arguable issues to be pursued on appeal; and (2) file a brief setting out the
applicable facts and the law”], italics added.)
2
I.
FACTS AND PROCEDURAL BACKGROUND
On March 25, 2022, the People filed an amended information
charging Gonzales with residential burglary, child abuse, and resisting
arrest. Under a plea agreement, Gonzales pleaded guilty to the charged
crimes. The court suspended execution of the sentence (four years) and placed
Gonzales on formal probation with various terms and conditions: one year in
jail, pay fines and fees, use no unauthorized drugs, complete a 52-week
batterer’s treatment program, etc.
On May 3, 2023, the probation department filed a VOP petition.
The petition alleged 12 probation violations, which included: multiple failures
to report to probation, a failure to enroll and attend a drug treatment
program, a violation of law (misdemeanor brandishing of a weapon), positive
drug tests, a failure to complete the batterer’s treatment program, and failure
to notify probation when changing residences.
On October 30, 2023, the trial court began a multiday evidentiary
VOP hearing. A civilian witness testified as to the misdemeanor brandishing
of a weapon charge. The witness said that after Gonzales had cut him off
with his vehicle, Gonzales came after the witness with some kind of weapon
in his hand. A probation officer testified as to Gonzales’s other alleged
violations. Gonzales testified on his own behalf.
On November 6, 2023, at the conclusion of the evidentiary
hearing, the court found “there is a probation violation as to all counts, even
with mitigating information as presented by counsel, and I’m going to be
imposing the four-year sentence that was stayed when Mr. Gonzales was
originally sentenced.”
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On December 8, 2023, Gonzales filed a notice of appeal from the
trial court’s order. This court appointed counsel who filed a Wende/Anders
brief.
II.
DISCUSSION
When a defendant’s appointed appellate counsel identifies no
arguable issues on appeal from a postjudgment proceeding, an appellate
court may independently review the record for arguable issues. (Delgadillo,
supra, 14 Cal.5th at p. 230; Wende, supra, 25 Cal.3d at pp. 441-442.)
Generally, “an arguable issue on appeal consists of two elements.
First, the issue must be one which, in counsel’s professional opinion, is
meritorious. That is not to say that the contention must necessarily achieve
success. Rather, it must have a reasonable potential for success. Second, if
successful, the issue must be such that, if resolved favorably to the appellant,
the result will either be a reversal or a modification of the judgment.” (People
v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Here, we have independently reviewed the record in the interests
of justice and concur with appointed counsel that there are no arguable
issues. (See People v. Johnson, supra, 123 Cal.App.3d at pp. 109–110.)
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III.
DISPOSITION
The trial court’s order revoking probation and imposing a
suspended four-year prison sentence is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
GOODING, J.
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