Filed 8/17/20 P. v. Cisneros CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C089994
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-
2015-0013591)
v.
GREGORIO CISNEROS,
Defendant and Appellant.
Appointed counsel for defendant Gregorio Cisneros asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm the trial court’s order.
1
BACKGROUND
The People’s October 20, 2015, felony complaint charged defendant with assault
with a deadly weapon, to wit scissors (Pen. Code, § 245, subd. (a)(1)),1 with a special
allegation that defendant had inflicted great bodily injury (§ 12022.7, subd. (a)).
Defendant’s competence to stand trial was questioned, and he was referred for evaluation.
Both individuals evaluating defendant diagnosed him with unspecified schizophrenia
spectrum and other psychotic disorder, but only one thought he was incompetent to stand
trial. Ultimately, the court found defendant incompetent, suspended criminal
proceedings, and committed defendant for mental health treatment. On August 4, 2016,
criminal proceedings were reinstated after the court determined that defendant’s
competency had been restored.
Thereafter, on August 9, 2016, the People amended the complaint to charge
defendant with assault with force likely to produce great bodily injury (§ 245, subd.
(a)(4)), to which defendant pleaded no contest. The trial court suspended imposition of
sentence and placed defendant on five years’ formal probation with 364 days in county
jail. On January 8, 2019, and following defendant’s successful graduation from mental
health court, the superior court granted the probation department’s request to change
defendant’s probation from formal to informal.
Thereafter, on June 12, 2019, defendant filed a motion to reduce the felony charge
to a misdemeanor pursuant to section 17, subdivision (b)(1). The People opposed the
motion arguing: (1) there had been a negotiated disposition and (2) that it was necessary
to keep defendant on felony probation for the remaining two years of his term so he
would remain subject to search. Ultimately, the superior court denied the motion without
prejudice, indicating that in light of defendant’s ongoing mental illness and the court’s
1 Undesignated statutory references are to the Penal Code.
2
uncertainty that defendant’s unspecified schizophrenia and other psychotic disorder2
could ever be cured, the court would be “more comfortable keeping him on felony
probation with the search conditions and with a little bit of time—a little bit of a hammer
over his head.” Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the relevant procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days from the date the opening brief was filed and has not
done so.
We directed the parties to address the appealability of the court’s order denying
the section 17, subdivision (b) motion. Having reviewed that briefing, we now conclude
the order was appealable as an order after judgment affecting the substantial rights of
defendant.3 (§ 1237, subd. (b); see also People v. Douglas (1999) 20 Cal.4th 85, 90-91
[order reducing the defendant’s conviction to a misdemeanor following grant of
probation and suspension of imposition of sentence was postjudgment order affecting the
rights of the People under § 1238, subd. (a)(5)].)
A question nonetheless remains, whether the protections afforded by Wende and
the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738
2 While this was defendant’s initial diagnosis by officials evaluating his
competency, by the time defendant’s competency had been restored, this diagnosis had
been changed to schizophrenia.
3 We disagree with the People’s unsupported assertion that defendant’s substantial
rights have not been affected merely because his motion was denied without prejudice,
and thus, he may request section 17 subdivision (b) relief again at a later date.
3
[18 L.Ed.2d 493] apply to an appeal from an order to reduce a felony to a misdemeanor
under section 17, subdivision (b). Our Supreme Court has not spoken.
The Anders/Wende procedures address appointed counsel’s representation of an
indigent criminal defendant in the first appeal as a matter of right and courts have been
loath to expand their application to other proceedings or appeals. (See Pennsylvania v.
Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007)
40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008)
161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman
(2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)
Nonetheless, in the absence of our Supreme Court’s authority to the contrary, we believe
it prudent to adhere to Wende in the present case, where counsel has already undertaken
to comply with Wende requirements.
Having examined the entire record pursuant to Wende we find no arguable error
that would result in a disposition more favorable to defendant. Consequently, we affirm
the trial court’s order.
DISPOSITION
The order is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
MURRAY, J.
/s/
KRAUSE, J.
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