Unreported / Non-Citable
Background
John Murillo appealed from the judgment entered against him by the San Bernardino County Superior Court, Judge Alexander R. Martinez, following a jury conviction. The prosecution arose from a November 2024 incident in which a friend of Murillo (the victim) greeted him and, for no apparent reason, Murillo attacked the victim and stabbed him with a knife, causing the victim to bleed from his face and chest. An information charged Murillo with assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (count 1), and also alleged 18 aggravating factors under section 1170, subdivision (b)(2) that 'may apply' to his case.
In bifurcated proceedings, a jury convicted Murillo of the assault charge, and the trial court found three aggravating factors true beyond a reasonable doubt: that his prior adult convictions or sustained juvenile delinquency petitions were numerous or of increasing seriousness; that he was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and that his prior performance on such supervision was unsatisfactory. By the time of the sentencing hearing, however, the trial court observed that the law had changed so that defendants must waive the right to have a jury decide aggravating factors before a trial court may make that decision.
Because Murillo did not waive his right to have the jury consider the aggravating factors and the People declined to pursue a jury trial on those issues, the court found there were no applicable factors in aggravation and imposed the midterm sentence of three years in state prison. Murillo appealed, the Court of Appeal appointed Jake E. Stanton to represent him, and the People made no appearance in the appeal.
The Court’s Holding
Appointed appellate counsel filed an opening brief that set forth statements of the case and facts but presented no issues for adjudication, noting that the court was required to independently review the record under People v. Wende (1979) 25 Cal.3d 436. Counsel identified one possible issue—whether the trial court abused its discretion by declining to strike a portion of an exhibit, a transcript of the victim's conversation with a deputy sheriff in which the victim discussed Murillo's 'potential drug use'—but did not specify either where in the transcript the drug-use discussion appeared or where in the record an objection to its admission appeared.
The court reminded counsel that any reference to a matter in the record must be supported by a citation to the record volume where the matter appears, citing California Rules of Court, rules 8.204(a)(1)(C) and 8.360(a), and In re S.C. The court also offered Murillo an opportunity to file a personal supplemental brief, which he did not do.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, the court conducted an independent review of the record and found no arguable issues. The disposition states simply: 'The judgment is affirmed,' leaving the assault conviction and the three-year state prison sentence intact.
Key Takeaways
- A Wende opening brief may set forth the case and facts without presenting any issue, but it triggers the appellate court's duty to independently review the entire record for arguable error.
- Murillo did not file a personal supplemental brief after the Court of Appeal offered him the opportunity to do so.
- The trial court imposed the three-year midterm after concluding that no aggravating factors could be applied because Murillo had not waived a jury determination and the People declined a jury trial on those issues.
- Counsel's possible evidentiary issue about the drug-use transcript passage was not developed with citations locating either the challenged passage or an objection in the record.
- The Court of Appeal found no arguable issues on independent review and affirmed the judgment without altering the conviction or the sentence.
Why It Matters
The decision applies the established Wende and Kelly procedure in a direct criminal appeal in which appointed counsel could identify no issue for adjudication, and it confirms that an affirmance in that posture rests on the court's independent review of the record rather than on a merits ruling of any particular claim. It also illustrates the practical importance of precise record citations: counsel's reference to a possible evidentiary dispute about the victim's drug-use remarks did not locate the challenged material or a corresponding objection, so the court did not reach it.