Filed 7/29/14




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G049024

        v.                                           (Super. Ct. No. 13CF1955)

STEVEN AKEEL HERNANDEZ,                              OPINION

    Defendant and Appellant.


                  Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                  Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
                  No appearance by Plaintiff and Respondent.


                                 *             *               *
              A jury convicted defendant Steven Akeel Hernandez of having committed
vandalism causing less than $400 in damages (Pen. Code, § 594, subd. (a) & (b)(2)(A);
all further statutory references are to this code). Because the jury also found the
vandalism was committed for the benefit of a criminal street gang (§ 186.22, subd. (d)),
the crime is a felony. The trial court suspended imposition of sentence and placed
defendant on three years formal probation, with conditions that included service of 170
days in the county jail, and the payment of a restitution fine and fees. He filed a timely
notice of appeal.
              We appointed counsel to represent defendant. Counsel filed a brief
summarizing the facts of the case and, while not arguing against defendant, advised us he
found no issues to argue in his behalf. (Anders v. California (1967) 386 U.S. 738 [87
S.Ct. 1396, 18 L.Ed.2d 493] (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).)
We notified defendant he could file written argument on his own behalf, but the period to
do so has passed and we have received no communication from him.
              While appellant counsel’s opening brief states he could not find any
arguable issues to raise, he does suggest some issues for us to consider in conducting our
independent review of the record. We decline to do so and publish this opinion to
reaffirm our long-standing rejection of Anders/Wende briefs presenting “‘arguable-but-
unmeritorious’ issue[s].” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)


                                          FACTS


              Park patrons alerted Sandra Garcia, a worker at a community center, to
apparent graffiti spraying. From her window, she saw a man shaking a can, then moving
to a tree, making a circular motion. She called 911 and reported the incident. Garcia
described two men. She identified defendant as the person she had seen with the spray
can.

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              Police officer Abelardo Oropeza was nearby. He noticed two persons,
including defendant, standing near the tree. He also observed graffiti on the tree and on
the wall of a nearby handball court. The paint was fresh. Oropeza confronted the two
persons and defendant became angry and yelled profanities at the officer. When
defendant was apprehended shortly thereafter, Oropeza noticed black paint on his finger.
              Oropeza also qualified as an expert on criminal street gangs. He testified as
to the existence and nature of a criminal street gang named the Alley Boyz, identified the
individual arrested with defendant as a member of that gang, and expressed the opinion
defendant acted for the benefit of the Alley Boyz gang.


                                      DISCUSSION


              We independently examined the record, including a sealed transcript of a
hearing on defendant’s unsuccessful motion for discovery of Officer Oropeza’s personnel
records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and found no arguable issue.
              Appellate counsel’s opening brief suggests we consider two other issues:
(1) whether the court erred in failing to bifurcate the vandalism charge from the gang
enhancement; and (2) whether the court erred in admitting certain out-of-court statements
for a nonhearsay purpose. Long ago, this court discredited the custom of raising
“‘arguable-but-unmeritorious’ issue[s]” in Anders/Wende appeals; yet this practice
persists. As Justice Gardner noted in People v. Johnson, supra, 123 Cal.App.3d 106, “In
this case we reject a concept which has crept into our judicial literature—the ‘arguable-
but-unmeritorious’ issue on appeal. We hold that an arguable issue on appeal consists of
two elements. First, the issue must be one which, in counsel’s professional opinion, is
meritorious. That is not to say that the contention must necessarily achieve success.
Rather, it must have a reasonable potential for success. Second, if successful, the issue



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must be such that, if resolved favorably to the appellant, the result will either be a
reversal or a modification of the judgment.” (Id. at p. 109.)
              Justice Gardner, in support of this holding, quotes from a pre-Wende case,
People v. McGee (1978) 82 Cal.App.3d 127, where Justice Kaus stated: “We might point
out that appellate counsel who eschews manufacturing issues where none exists achieves
a real benefit for his client. Here . . . we carefully considered the record before advising
defendant that he could file his own brief and before filing this opinion dismissing the
case. In doing so we reviewed not only those portions of the record which counsel
discussed but the entire record—an inspection we are not compelled to make when
counsel only raises specific issues on appeal. An attorney who cannot discover an
arguable issue thus secures an appellate review of the record which is not necessarily
enjoyed by his more feisty counterpart who raises one or two frivolous issues, easily
disposed of by the inspection of a few pages of transcript.” (Id. at p. 129.) Justice
Gardner concluded “the answer to this dilemma is to jettison the concept of ‘arguable-
but-unmeritorious’ issues.” (People v. Johnson, supra, 123 Cal.App.3d at p. 111.) We
agree.
              We recognize that, in AndersWende appeals, we are obligated to briefly
describe the defendant’s crimes, the facts and procedural history of his or her conviction,
plus the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.) Also, if
the defendant personally files a brief, we must address the issues raised by him or her.
(Id. at p. 124.) But there is no such obligation with respect to counsel supplied so-called
“‘arguable-but-unmeritorious’ issues.” (People v. Johnson, supra, 123 Cal.App.3d at p.
111.) Therefore, as to the issues suggested by counsel, we agree with counsel the issues
are not meritorious and we therefore decline to address them further.




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                                DISPOSITION


          The judgment is affirmed.


CERTIFIED FOR PUBLICATION




                                          RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




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