Opinion
D075257
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. EZEQUIEL FRIAS, Defendant and Appellant.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF001736) APPEAL from a judgment of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
As part of a plea agreement, Ezequiel Frias pleaded no contest to evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 2), and possession of an assault weapon (§ 30605, subd. (a); count 3). The parties agreed Frais would receive a middle term prison sentence on each count.
All further statutory references are to the Penal Code unless otherwise specified. --------
Frias was sentenced to the middle term of two years on each count, the sentences to run concurrently. The court also imposed various fines and fees but has since stayed such amounts pending a hearing on the defendant's ability to pay.
Frias filed a timely notice of appeal but did not seek a certificate of probable cause. (§ 1237.5)
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We invited Frias to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
At the time of the plea, the parties stipulated to a factual basis for the pleas based on material in the El Centro Police report. The report is not in the record, but it is summarized in the probation officer's report.
The offenses arose from Frias driving a stolen car at speeds more than 100 miles per hour to avoid police officers. When arrested he had an assault rifle in his possession.
DISCUSSION
As we have noted, appellate counsel has asked this court to review the record for error as mandated by Wende. Customarily, appointed appellate counsel seek to comply with Anders v. California (1967) 386 U.S. 738 (Anders) by sharing with the court the issues counsel has considered in concluding there are no arguable issues for reversal on appeal. Such information assists the appellate court in reviewing the record for error. It also is instructive on the question of whether counsel has provided effective assistance of counsel to the indigent defendant. In this case counsel refuses to comply with Anders. Such refusal is justified with the following, illogical statements: "Counsel acknowledges that some justices have expressed a strong desire for listing issues under Anders v. California (1967) 386 U.S. 738, but counsel has carefully weighed the situation and concluded the approach needed to promote the client's interests in this particular case is to invite court review of the record unfettered by counsel's prior thought processes." Frankly, we do not understand that statement.
We assume counsel is implying the court will be more thorough in its review of the record if counsel does not identify issues he has considered. Put simply counsel implies the court will not do its job to search for arguable issues. Either appellate counsel is ignorant of this court's process for Wende reviews or is burdened by unjustified cynicism. Either way, we disapprove of counsel's comments and failure to comply with Anders. Requiring counsel to share its "thought process" can help the court in its review of a cold record, as well as demonstrating the defendant has received the diligent assistance to which the person was entitled.
The question remaining is what to do with this appeal. We have thoroughly reviewed the entire record. The record is small and the proceedings straight-forward. Thus, after careful compliance with the requirements of Wende and Anders, we are confident there are no arguable issues for reversal on appeal contained in the record before us. While we disapprove of counsel's approach to this case, we are satisfied counsel was otherwise competent and that no prejudice to Frias has occurred.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.