People v. Freeman

• Citation: 61 Cal.App.5th 126,275 Cal.Rptr.3d 387
• Decision Date: 22 February 2021
• Docket Number: A160437
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James FREEMAN, Defendant and Appellant.

61 Cal.App.5th 126

275 Cal.Rptr.3d 387

The PEOPLE, Plaintiff and Respondent,

v.James FREEMAN, Defendant and Appellant.

A160437

Court of Appeal, First District, Division 4, California.

Filed February 22, 2021

Certified for Partial Publication.^*

Kelley Fleming, by Court-Appointment under the First District Appellate Project for Plaintiff and Appellant

Xavier Becerra, Attorney General of California for Defendant and Respondent

TUCHER, J.

James Freeman appeals from an order finding that he violated a condition of his Post Release Community Supervision (PRCS). Freeman's appellate counsel has filed a brief that raises no issue for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ). We conclude that Freeman is not entitled to Wende review and, in the unpublished portion of this opinion, that the issues he raises in a pro se supplemental brief lack merit. Accordingly, we affirm.

BACKGROUND

In February 2017, Freeman sustained convictions in Marin County for assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(4) ; statutory references are to the Penal Code) and for buying or receiving a stolen vehicle or equipment (§ 495d, subd. (a)). In June 2018, Freeman was released on PRCS in Sonoma County.

Prior to the incident that led to this appeal, Freeman's PRCS was revoked and reinstated several times. In December 2018, he was charged with possession of weapons and methamphetamine, admitted PRCS violations in exchange for dismissal of criminal charges, was required to serve 110 days in County jail, and had his PRCS reinstated. In July 2019, Freeman was arrested in connection with a hit and run car accident, admitted a PRCS violation, received a 180-day jail term, and had his PRCS reinstated. In November 2019, Freeman was arrested for possession of a replica handgun, a fixed blade knife, and a methamphetamine pipe, he again admitted violating PRCS, served a short jail term, and had his PRCS reinstated.

On February 7, 2020, the Probation Department filed a petition for revocation on the ground that Freeman violated a condition of PRCS requiring him to submit to electronic monitoring at the direction of his probation officer. According to the petition, Freeman was placed on electronic monitoring on January 24 but stopped charging his monitor, which caused the battery to die on February 2. Consequently, a warrant was issued on February 4 and Freeman was arrested on February 6, 2020.

Recommending that the court once again revoke PRCS, the Department emphasized Freeman's pattern of noncompliance with PRCS requirements despite being subjected to multiple "[f]lash" incarcerations. According to the Department, since Freeman was released from prison in 2018, he "has committed multiple new law violations, possessed weapons and controlled substances, and absconded from supervision." The Department requested that the court impose a 180-day jail term for the current violation and that PRCS be reinstated.

Freeman did not admit the PRCS violation, so a hearing was set for March 13, 2020. At the hearing, the People requested a continuance, acknowledging they were not prepared to proceed. The court denied the continuance, dismissed the petition, and reinstated Freeman on PRCS. That same day, the Department filed another petition re-alleging that Freeman had violated his electronic monitoring condition. Therefore, Freeman remained in custody, and, on March 17, his PRCS was summarily revoked. However, on April 17, Freeman was released from custody and reinstated on PRCS pending a hearing on the revocation petition, which was held on June 12, 2020.

At the revocation hearing, the People presented evidence that Freeman violated PRCS by failing to charge his electronic monitor in early February 2020, causing it not to function for several days. Their primary witness was Gary Sewell, a senior analyst at a private company that assists Sonoma County in administering its electronic monitoring program. Sewell described how the electronic monitor tracks the movements of the client and generates data that is reported to his company and then relayed to the client's probation officer. Sewell also testified that clients are trained how to use the monitor, how to charge and replace the monitor's removable battery, and how often the battery needs to be changed. Users also receive instruction about "alerts" that the monitor issues to signify when the battery is too low, and they are given a telephone number to call if the monitor stops functioning for any reason.

The People also presented evidence regarding Freeman's electronic monitor, which showed that it was affixed to Freeman's ankle on January 24, 2020, and was fully charged as of January 31. However, on February 1, a battery that was not fully charged was installed in the device, and the next day a battery was installed that had zero percent charge. On February 4, 2020, the reserve battery inside the device was depleted and the monitor stopped functioning.

Freeman did not testify at the revocation hearing but defense counsel argued the petition should be denied based on evidence that Freeman had been changing the batteries in his device during the period prior to his arrest. Counsel argued that this evidence supported a finding that the batteries malfunctioned and that any violation of the PRCS condition was not willful.

After the matter was submitted, the court made an initial finding that Freeman violated PRCS by failing to maintain the battery in his electronic monitor. The court's ruling turned on evidence that Freeman knew or should have known that the battery was dead and that his device was not sending a signal. Evidence that Freeman had used the monitor since January 24 showed that he had charged the batteries properly multiple times because the device was fully operational prior to February 1. Further, Sewell's testimony showed that users receive an alert when their battery runs too low, and have ample opportunity to correct the problem before the device stops transmitting.

Next, the court turned to the recommendation to impose a 180-day jail term. The probation officer reported that Freeman had accrued 72 days in custody since the initial revocation petition was filed and would also be entitled to 72 days of conduct credit, which meant Freeman would be required to serve an additional 18 days to complete the 180-day term. Defense counsel argued the time Freeman had already served was sufficient penalty for his violation. However, the People disagreed because this was not an isolated incident. Freeman's probation officer, who was at the hearing, confirmed that after Freeman was released from custody in April (pending completion of the revocation hearing) there had been ongoing issues regarding his failure to keep his monitor fully charged.

The court elected to impose the full 180-day term, and emphasized to Freeman that his PRCS conditions specifically required him to "maintain that monitor in a working, functional order at all times." The court gave Freeman 144 credit days and ordered that after Freeman completed the jail term, he was to be released on PRCS, which was to be reinstated on all previous terms. In closing, the court reiterated to Freeman that he needed to keep his monitor charged as that was "a really specific term of [his] release on PRCS."

DISCUSSION

I. This Appeal Is Not Subject to Wende Review

California's Wende procedure was adopted to fulfill the requirements of Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( Anders ). ( People v. Kelly (2006) 40 Cal.4th 106, 117–118, 51 Cal.Rptr.3d 98, 146 P.3d 547 ; Wende, supra , 25 Cal.3d at pp. 441–442, 158 Cal.Rptr. 839, 600 P.2d 1071.) Anders addresses the constitutional duty of appointed counsel to represent an indigent criminal defendant in his or her first appeal of right from a judgment of conviction. In that context, the United States Supreme Court held that effective assistance of counsel cannot be assured when court-appointed appellate counsel is allowed simply to move to withdraw when unable to identify a meritorious issue. ( Anders , at p. 744, 87 S.Ct. 1396.) Instead, appointed counsel must file a brief referring to matters that might arguably support an appeal and the appellate court must independently review the record to decide whether the appeal is frivolous. ( Ibid . )

Because the federal constitutional right to counsel in a criminal case "extends to the first appeal of right, and no further," the United States Supreme Court has refused to extend Anders to discretionary appeals or to appeals from orders in postconviction proceedings that seek to collaterally attack an underlying conviction. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 554–555, 107 S.Ct. 1990, 95 L.Ed.2d 539 ( Finley ).) Finley reasons that Anders "establishe[s] a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel," and, "since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process." ( Finley , at pp. 554–555, 107 S.Ct. 1990, italics omitted.)

Applying Finley , California courts have declined to require Wende review in any appeal other than a first appeal of right from a judgment of criminal conviction. For example, the California Supreme Court has held that Anders does not require appellate courts to undertake a Wende review of orders in conservatorship proceedings or dependency proceedings because such appeals are not first appeals of right from a criminal conviction. ( Conservatorship of Ben C . (2007) 40 Cal.4th 529, 535–537, 53 Cal.Rptr.3d 856, 150 P.3d 738 ; In re Sade C . (1996) 13 Cal.4th 952, 982–983, 55 Cal.Rptr.2d 771, 920 P.2d...