In Re Kayla G. , 47 Cal. Rptr. 2d 86 ( 1995 )

I concur in the decision to affirm the judgment terminating Kevin J.'s parental rights, but disagree generally with my colleagues' position concerning People v. Wende (1979)25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] and particularly with their view that Auto Equity Sales, Inc. v. SuperiorCourt (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] does not oblige us to independently examine the record in juvenile dependency appeals when court-appointed counsel is unable to find an arguable issue. My analysis is exhaustively set forth in the companion case filed today (In re Andrew B. (1995)40 Cal.App.4th 825 [47 Cal.Rptr.2d 604), and I will not belabor those points here. I do take this opportunity, however, to make several observations.

The escalating farrago concerning Wende review has, with one exception (People v. Hackett (1995) 36 Cal.App.4th 1297 [43 Cal.Rptr.2d 219]), arisen in the context of juvenile dependency appeals. Apparently they are perceived as the Achilles heel in assault against Wende because the right of an indigent parent to appointed counsel in California juvenile dependency proceedings is statutory, while the indigent criminal defendant's right is constitutional. But juvenile dependency appeals are a very small portion of an appellate court's workload. The real goal of Wende's detractors is to eliminate the duty to examine the record in a statistically more significant area — criminal appeals. Accordingly, I take the majority's bait and primarily address that issue.

As I read my colleagues' decision, they conclude Wende review is not constitutionally compelled in juvenile dependency appeals because it is not, and should not be, constitutionally compelled in criminal appeals. They assert, ". . . the California Supreme Court in Wende reinterpreted [People v.] Feggans [(1967) 67 Cal.2d 444 (62 Cal.Rptr. 419,43 P.2d 21)] and Anders [v. California (1967) 386 U.S. 738 (18 L.Ed.2d 493, 87 S.Ct. 1396)] to require independent judicial review of the entire record as distinguished from theproceedings" (maj. opn. ante, at pp. 881-882) and conclude the United States Supreme Court never intended its statement inAnders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493,87 S.Ct. 1396] that "the court — not counsel [conduct] a full examination of all the proceedings" (id. at p. 744 [18 L.Ed.2d at p. 498], italics added) to be interpreted as requiring a reviewing court to conduct a full examination of the record. This view, of course, is not new: It was the basis for Justice Clark's dissent in Wende itself. (People v. Wende, supra,25 Cal.3d at pp. 445-447 (conc. and dis. opn. of Clark, J.).) But a casual perusal of post-Anders decisions across the country demonstrates the United States Supreme Court unequivocally intended "proceedings" to mean "record."

Nowhere is the point more forcefully made than in Penson v.Ohio (1988) 488 U.S. 75 [102 L.Ed.2d 300, 109 S.Ct. 346]: "[T]he Court of Appeals should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel's evaluation of the case was sound. This requirement was plainly stated in Ellis v. UnitedStates, 356 U.S. 674, 675 (1958) [2 L.Ed.2d 1060, 1061-1062,78 S.Ct. 974], it was repeated in Anders, 386 U.S., at 744, and it was reiterated last Term in McCoy [v. Court of Appeals ofWisconsin (1988)], 486 U.S., [429] at 442 [100 L.Ed.2d 440,108 S.Ct. 1895]." (Id. at pp. 82-83 [102 L.Ed.2d at p. 310], italics added, fn omitted.) In the footnote appended to this excerpt, the court added, "Obviously, a court cannot determine whether counsel is in fact correct in concluding that an appeal is frivolous without itself examining the record for arguable appellate issues."¹ (Id. at p. 83, fn. 6 [102 L.Ed.2d at p. 310], italics added.)

Federal courts and more than 30 other states acknowledge and accept this view. The quotations included in the appendix to Inre Andrew B., supra, 40 Cal.App.4th 825 are not intended as filler. They were carefully chosen to demonstrate that courts in other jurisdictions recognize the reviewing court's duty underAnders is to examine nothing less than the record.

Moreover, 16 months before the Supreme Court rendered its decision in Wende, the Court of Appeal expressed its clear understanding of the duty imposed by Anders and People v. Feggans (1967) 67 Cal.2d 444 [62 Cal.Rptr. 419, 43 P.2d 21]: "We might point out that appellate counsel who eschews manufacturing issues where none exists achieves a real benefit for his client. Here, in order to comply with the mandate of Anders-Feggans 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 therecord 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." (People v. McGee (1978) 82 Cal.App.3d 127, 129 [146 Cal.Rptr. 833], italics added.)

And, of course, 21 years before Wende, the California Supreme Court admonished appellate courts to either appoint an attorney for an indigent criminal appellant at the outset of an appeal or "make an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. This investigation should be made solely by the justices of the appellate courts." (People v. Hyde (1958) 51 Cal.2d 152, 154 [331 P.2d 42], italics added.) Then, as now, the scope of the required review was the same. Only then, the examination of the record was conducted before any briefing

In any event, the semantic tug of war between "proceedings" and "record" appears to miss the critical point of Justice Clark's dissent in Wende. I read the dissenting portion of his opinion as pretty much acquiescing in the notion that a reviewing court must examine the record to ensure the appointed attorney correctly concluded no arguable issue exists.² But Justice Clark vehemently disagreed with the corollary obligation imposed by his colleagues: the sua sponte duty, after an examination of the record, to actually suggest specific arguable issues. He lamented this responsibility cast the reviewing court in the role of "an advocate [and] . . . burdened [it] with determining what contentions should be urged on appeal and then, with resolving those contentions." (25 Cal.3d at p. 444 (conc. and dis. opn. of Clark, J.).) He returned to this theme twice more in his brief opinion, noting, "Further, it seems clear the Supreme Court intended that it not be the appellate court's function to search the record to ascertain arguable issues because only after defendant is afforded an opportunity ``to raise any points that he chooses,' is the appellate court to appoint new counsel if it finds ``any of the legal points' arguable on the merits. [Citation to Anders.] Thus the appellate court shall respond only to issues raise to it, not to issues raised by it." (Id. at p. 445 (conc. and dis. opn. of Clark, J.), italics in original.) Several paragraphs later, he reiterated that when appointed counsel seeks leave to withdraw, the "defendant [is] to be given an opportunity to present a brief and thereafter the court is to determine whetherthe appeal is without merit. However, even then the courtresponds only to issues raised rather than to issues it seeks outby an independent examination of the record." (Id. at p. 446 (conc. and dis. opn. of Clark, J.), italics added.)

But the United States Supreme Court addressed this precise point in both McCoy v. Court of Appeals of Wisconsin (1988)486 U.S. 429 [100 L.Ed.2d 440, 108 S.Ct. 1895] and Penson v.Ohio, supra, 488 U.S. 75, and again Justice Clark's view did not carry the day. In McCoy the Supreme Court held, "The Anders brief is . . . a device for assuring that the constitutional rights of indigent defendants are scrupulously honored. . . . Of course, if the court concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate's brief before deciding the merits." (McCoy, supra, at p. 444 [100 L.Ed.2d at pp. 456-457].) Similarly, ". . . a court cannot determine whether counsel is in fact correct in concluding that an appeal is frivolous without itself examining the record for arguable appellate issues." (Penson, supra, at p. 83, fn. 6 [102 L.Ed.2d at p. 310].)

In sum, the procedures described in Anders v. California,supra, 386 U.S. 738, its progeny, and People v. Wende,supra, 25 Cal.3d 436 are constitutionally compelled in any nondiscretionary first appeal, whether criminal or civil, when court-appointed counsel has searched the record and concluded no arguable issue exists. The failure to conduct an Anders/Wende review under these circumstances deprives indigent appellants of substantially equal access to the reviewing court and violates their right to due process and equal protection. (Douglas v.California (1963) 372 U.S. 353, 356 [9 L.Ed.2d 811, 814,83 S.Ct. 814].)

¹ My colleagues are not the only ones to have overlooked this clear admonition in Penson. The same omission appears in at least one law review article: "While the United States Supreme Court has not specifically addressed it, the court's duty to review the record at some point in such proceedings seems almost to be assumed. . . . Penson v. Ohio, 488 U.S. 75, 82, n. 5 [102 L.Ed.2d 300, 310, 109 S.Ct. 346] (1988)." (Anderson, Are theAmerican Bar Association's Time Standards Relevant for CaliforniaCourts of Appeal? (1993) 27 U.S.F.L.Rev. 301, 338, fn. 153.)

² For example, Justice Clark wrote, "In fact, both the Court of Appeal and all members of this court have agreed with counsel there is simply no arguable issue." (People v. Wende, supra,25 Cal.3d at p. 446 (conc. and dis. opn. of Clark, J.).) Presumably, Justice Clark reached his conclusion in the same manner as his colleagues did, i.e., by examining the record.