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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                         G049012

         v.                                                            (Super. Ct. No. 13NF0992)

JOSEPH EUGENE MORRONE,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   Stephanie M. Adraktas, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.




                                          *                  *                  *
              A jury convicted defendant Joseph Eugene Morrone of first degree burglary
of a residence. (Pen. Code, §§ 459, 460.) After the verdict, Morrone admitted he
committed that offense while he was released from custody on bail on another offense.
(Pen. Code, § 12022.1, subd. (b).) He was sentenced to four years in prison. This timely
appeal followed.
              After Morrone appealed we appointed counsel to represent him. Counsel
filed a brief which set forth the facts and the disposition of the case. She did not argue
against Perrone, but advised she had not found any issues to argue on Perrone’s behalf.
(People v. Wende (1979) 25 Cal.3d 436 (Wende ).) And, ostensibly to assist us in our
independent review of the record, she suggested we consider certain specific issues
pursuant to Anders v. California (1967) 386 U.S. 738 (Anders).
              Counsel 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
              In March 2013 at about 12:30 p.m., Maria Sanchez returned to her
apartment in Anaheim. She was pushing an infant 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. Morrone came out of a window of her
apartment and fell to the pavement as he tried to get over the fence. He was wearing an
orange shirt. He ran past her and she saw his clothes. She called 911.
              Sanchez opened her front door and began to back into the apartment with
the stroller. A fourth man pushed past her out 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,

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pointed at the group, which included Morrone, and three of the men ran away. Anaheim
Police Officer Mau Huynh then detained and handcuffed Morrone, who had not tried to
run away. Sanchez pointed at Morrone 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 as a burglary tool.
The sliding door had pry marks on it.
                                        DISCUSSION
              Counsel 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 but
raises no specific 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. 744.)
              When specific issues are raised by the appellant himself in a Wende
proceeding, we must expressly address them in our opinion and explain why they fail.
(People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) However, in this case the issues
were presented by appellate counsel, not the appellant, and thus Kelly does not apply.
              The fact that counsel filed the opening brief under Wende confirms she
does not believe the issues listed are arguable. If she thought they were arguable, she

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could not rely on the Wende procedure and would instead be obligated to file a brief that
included written argument on these issues. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
Indeed, if her listing of these issues makes her brief something other than a Wende brief,
then her failure to provide supporting legal argument allows us to disregard them.
(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.)
              Regardless, we have considered the issues listed by counsel and conclude
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 that require further briefing.
                                       DISPOSITION
              The judgment is affirmed.




                                                     THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




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