People v. Maher CA4/3 ( 2014 )

Filed 6/18/14 P. v. Maher 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G049119
v. (Super. Ct. No. R00333)
DAVID WAYNE MAHER, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Vickie
Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.) Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant David Wayne Maher pleaded guilty to possessing a dirk or
dagger in violation of Penal Code section 12020, subdivision (a)(1). The factual basis for
the plea states: “In Orange County, California, on July 10, 2010, I did unlawfully possess
a weapon commonly known as a dirk/dagger.”
Defendant was initially placed on probation, but it was later revoked and he
was sentenced to two years in state prison. Thereafter, he violated the conditions of his
postrelease community supervision several times.
In October 2013, defendant was again found to be in violation of the
conditions of his postrelease community supervision. The court revoked and reinstated
supervision, and ordered defendant to serve an additional 160 days in custody. This
appeal followed, without a certificate of probable cause. (Pen. Code, § 1237.)
After defendant appealed we appointed counsel to represent him. Counsel
filed a brief which set forth the facts and the disposition of the case. He did not argue
against defendant, but advised he had not found any issues to argue on defendant’s
behalf. (People v. Wende (1979) 25 Cal. 3d 436 (Wende ).) And, ostensibly to assist us in
our independent review of the record, he suggested we consider certain specific issues
pursuant to Anders v. California (1967) 386 U.S. 738 (Anders).
Because defendant is a transient, his counsel was unable to contact him to
advise him of the filing of a Wende brief and his opportunity to file his own supplemental
brief. And we have received no communication from defendant.
DISCUSSION
Counsel represents his opening brief is filed in accordance with Wende.
The court in Wende held: “We conclude that Anders requires the court to conduct a
review of the entire record whenever appointed counsel submits a brief which raises no
specific issues or describes the appeal as frivolous.” (Wende, supra, 25 Cal.3d at p. 441.)
A Wende brief, therefore, is one that sets forth a summary of proceedings and facts but
raises no specific issues. (Ibid.)
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In this case, while purporting to file a Wende brief, counsel has listed a
number of legal issues, with citations to cases but no supporting argument. These issues
are: (1) whether the court violated defendant’s constitutional due process and/or
confrontation rights by finding defendant violated the conditions of his postrelease
community supervision, based solely on a “‘Probation Officer’s Allegation of Violation
of Postrelease Community Supervision’”; and (2) whether his conviction is a legal
nullity, because Penal Code section 12020, subdivision (a)(1) did not prohibit possessing
a dirk or dagger. This list of legal issues goes beyond pointing to “anything in the record
that might arguably support the appeal.” (Anders, supra, 386 U.S. at p. 744.)
When specific issues are raised by the appellant himself in a Wende
proceeding, we must expressly address them in our opinion and explain why they fail.
(People v. Kelly (2006) 40 Cal. 4th 106, 110, 120, 124.) However, in this case the issues
were presented by appellate counsel, not the appellant, and thus Kelly does not apply.
The fact that counsel filed the opening brief under Wende confirms he does
not believe the issues listed are arguable. If he thought they were arguable, he could not
rely on the Wende procedure and would instead be obligated to file a brief that included
written argument on these issues. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Indeed, if
his listing of these issues makes his brief something other than a Wende brief, then his
failure to provide supporting legal argument allows us to disregard them. (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal. 4th 352, 366,
fn. 2; People v. Barnett (1998) 17 Cal. 4th 1044, 1107, fn. 37.)
Regardless, we have considered the issues listed by counsel and conclude
they fail on the merits. We have also reviewed the record in accordance with our
obligations under Wende and Anders, and we find no arguable issues on appeal. There
are no legal issues that require further briefing.
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DISPOSITION
The judgment is affirmed.
THOMPSON, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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