California Court of Appeal Aug 31, 2016 No. D069884Unpublished
Filed 8/31/16 P. v. Moreno CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D069884
Plaintiff and Respondent,
v. (Super. Ct. No. SCD263534)
RONALD MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen
M. Lewis, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Ronald Moreno appeals a judgment sentencing him to seven years, eight months
in prison after a jury convicted him of three counts of robbery and one count of attempted
robbery. Appointed appellate counsel filed a brief pursuant to Anders v. California
(1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We
granted defendant Moreno an opportunity to file a supplemental brief on his own behalf,
but he did not do so. After independent review, we discern no arguable appellate issues
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings in the trial court. Counsel presented no argument for reversal but asked this
court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d
436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified two issues that "might
arguably support the appeal": (1) whether the trial court erred in denying Moreno's
motion for acquittal as to counts 2 and 4 (Pen. Code, § 1118.1), and (2) whether the trial
court abused its discretion in imposing the upper term of five years for count 1.
On July 6, 2016, after receiving counsel's Wende brief, we granted Moreno
permission to file a supplemental brief within 30 days. Moreno has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders,
supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed
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no reasonably arguable appellate issues. As to the issues identified by counsel, there is
sufficient evidence to support the jury's verdict on all four counts (People v. Kelly (2006)
40 Cal.4th 106, 126), and "a single factor in aggravation [such as the fact Moreno was
armed] suffices to support an upper term" for count 1 (People v. Osband (1996) 13
Cal.4th 622, 730).
On independent review, we noted and considered whether Moreno could argue on
direct appeal a Sixth Amendment violation of his right to effective assistance of counsel
due to his trial counsel's failure to object to testimony regarding communications between
Moreno and his wife, Annette Thornton. (See, e.g., People v. Dorsey (1975) 46
Cal.App.3d 706.) At trial, Thornton and Detective Brown both testified about Moreno's
alleged statement to his wife that he should get a gun to commit robbery. Defense
counsel did not object to the testimony on the basis it constituted confidential marital
communications (Evid. Code, § 980) but instead elicited testimony during
cross-examination that Thornton had told Brown that Moreno made the statement in
jest.2 Considering this testimony, trial counsel's failure to object would properly be
raised by a petition for writ of habeas corpus rather than by direct appeal. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
2 The confidential marital communications privilege "applies only in the case of a valid marriage" between Thornton and Moreno; it does not extend to unmarried persons who live together in a manner " 'tantamount to marriage.' " (People v. Catlin (2001) 26 Cal.4th 81, 130; People v. Hunt (1982) 133 Cal.App.3d 543, 559.)
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Having reviewed the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders,
supra, 386 U.S. 738, including the issues referred to by appellate counsel, we find no
reasonably arguable appellate issues. Moreno has been adequately represented by
counsel on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
O'ROURKE, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 8
AI Brief
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Holding. The court affirmed the defendant's conviction and sentence after finding no reasonably arguable appellate issues upon independent review of the record pursuant to People v. Wende.
Issues
Whether the trial court erred in denying the motion for acquittal on counts 2 and 4.
Whether the trial court abused its discretion in imposing the upper term sentence for count 1.
Whether trial counsel provided ineffective assistance by failing to object to testimony regarding marital communications.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“After independent review, we discern no arguable appellate issues and affirm.”
“a single factor in aggravation [such as the fact Moreno was armed] suffices to support an upper term”
“Having reviewed the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, we find no reasonably arguable appellate issues.”