Filed 3/26/14 P. v. Morrone CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

JOS EPH EUGENE MO RRONE , Defendant and Appellant. G04 9 0 12
(Super. Ct. No. 13 N F 0992 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer , Judge. A ffirmed

.

Stephanie M. A d raktas , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 A jury convicted d efendant Joseph Eugene Morrone of first degree burglary of a residence. (Pen. Code , §§ 459, 460

. ) After the v erdict, Morrone admitted he committed that offense while he was released from custody on bail on another offense. (Pen. Code , § 1 2022.1, subd

. (b). ) He was sentence d to four years in prison

. This timely appeal followed

.

After Morrone appealed we appoi nted counsel to represent him. Counsel filed a brief which set forth the facts and the disposition of the case

. Sh e did not argue against Perrone , but advised s he had not found any issues to argue on Perrone’s behalf. ( People v. Wende (1979) 25 Cal.3d 4 36 ( Wende ) .) And , ostensibly t o assist us in our independent review of the record, s h e suggested we consider certain specific issues pursuant to Anders v. California (1967) 386 U.S. 738 ( Anders )

. C ounsel advised Morrone of the filing of a Wende brief and his opportunity to file his own supplemental brief. More than 30 days has passed and we have received
no communication from him

. FACTS

I n March 2013 at about 12:30 p.m., Maria Sanchez returned to her apartment in Anaheim. She was pushing an infan t in a stroller. As she walked toward the apartment she saw two men wearing dark clothing leaning on a fence. She said “hey” and the two men ran away.

Sanchez’s apartment door was open. Mo r rone came out of a window of her apartment and fell to the p avement as he tried to get over the fence. H e was wearing an orange shirt. He ran pas t her and she saw his clothes. She called 911.

Sanchez opened her front door and began to back into th e apartment with
the stroller. A fourth man pushed past her ou t of the apartment, knocking the baby out of the stroller. The man was carrying a silver object in his hand.

Sanchez saw the four men standing on the corner of the barbecue area of the apartment complex talking to each other. One of them called her a “bitch.” Sanchez,3

pointed at the group, which included Mor r one , and three of the men ran away. Anaheim
Police Officer Ma u Huynh then detained and handcuffed Mo r rone , who had not tr ied to run away. Sanchez pointed at Mo r rone and said that he was one of the men in her apartment. Sanchez’s apartment had been ransacked and her property, including $300 cash, an engagement ring and a Nintendo game console had been taken . Near the back door, Officer Huynh found a pair of bent scissors that had been used a s a burglary tool. The sliding door had pry marks on it

. DISCUSSION

C ounsel represents her opening brief is filed in accordance with Wende

. The court in Wende held: “We conclude that Anders requires the court to conduct a
review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous.” ( Wende , supra , 25 Cal.3d at p. 441 .)
A Wende brief, therefore, is one that sets forth a summary of proceedings and facts b ut raises no spec ific issues. ( Ibid .)

In this case, while purporting to file a Wende brief, counsel has listed a number of legal issues, with citations to cases but no supporting argument. These issues
include: (1) whether there is constitutionally sufficient evidence to support Morrone ’ s conviction ; and (2) whether the prosecutor committed misconduct in closing argument. This list of legal issues goes beyond pointing to “anything in the record that might arguably support the appeal.” ( Anders , supra , 386 U.S. at p. 7 44

. ) When specific issues are raised by the appellant himself in a Wende proceeding, we must expressly address them in our opi nion and explain why they fail. ( People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) However, in this case t he is sues
were p resented by appellate counsel, not the appellant, and thus Kelly does not apply.

The fact that counsel filed the opening brief under Wende confirms s he does not believe the issues listed are arguable. If s he thought they were arguable, s he4

could not rely on the Wende procedure and would instead be oblig at ed to file a brief that included written argument on th ese issues. (Cal. Rules of Court , rule 8.204(a)(1)(B).) Indeed, if her listing of these issues makes h er brief something other than a Wende brief,
then h er failure to provide supporting legal argument allow s us to disregard th em

. ( Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)

Regardl ess , we have considered the issues listed by counsel and co nclude they fail on the merits. We have also reviewed the record in accordance with our obligations under Wende and Anders , and we find no arguable issues on appeal. There are no legal issues tha t require further briefing.
DISPOSITION

T he judgment is affirmed

.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON , J.