People v. Delgadillo

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE DE JESUS DELGADILLO,
Defendant and Appellant.
S266305
Second Appellate District, Division Four
B304441
Los Angeles County Superior Court
BA436900
December 19, 2022
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Jenkins, and Guerrero concurred.
PEOPLE v. DELGADILLO
S266305
Opinion of the Court by Groban, J.
In People v. Wende (1979) 25 Cal.3d 436 (Wende), we held
the Courts of Appeal must conduct a review of the entire record
whenever appointed counsel submits a brief on direct appeal
which raises no specific issues or describes the appeal as
frivolous. (Id. at p. 441.) This procedure is applicable to the first
appeal as of right and is compelled by the constitutional right to
counsel under the Fourteenth Amendment of the United States
Constitution. (Wende, at pp. 439, 441; see Pennsylvania v.
Finley (1987) 481 U.S. 551, 554–557 (Finley); In re Sade C.
(1996) 13 Cal.4th 952, 983–984 (Sade C.).) In this case, we
granted review to determine the procedures appointed counsel
and the Courts of Appeal must follow when counsel determines
that an appeal from an order denying postconviction relief under
recently enacted remedial legislation lacks arguable merit and
to decide whether defendants are entitled to notice of these
procedures.
The Court of Appeal found that it has no duty to
independently review an order denying a petition for
postconviction relief under Penal Code former section 1170.95,
which defendant Jose De Jesus Delgadillo filed here, when
appointed counsel submits notice that the appeal lacks arguable
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
merit.1 The Court of Appeal concluded that since Delgadillo’s
appeal does not implicate a constitutional right to counsel, the
procedures set out in Wende do not apply. (Finley, supra,481 U.S. at pp. 556–557; Sade C., supra, 13 Cal.4th at p. 978.)
We agree with the Court of Appeal as to this issue.
We further exercise our inherent supervisory powers to
establish the appellate procedures and the requirements for
providing notice to a defendant before a Court of Appeal
dismisses an appeal from the denial of a petition under section
1172.6. When counsel submits notice that such an appeal lacks
arguable merit, the Court of Appeal should provide notice to the
defendant that counsel was unable to find any arguable issues;
the defendant may file a supplemental brief or letter raising any
argument the defendant wishes the court to consider; and if no
such supplemental brief or letter is timely filed, the court may
dismiss the appeal as abandoned. In this case, although the
Court of Appeal did provide notice to Delgadillo, the notice was
suboptimal because it indicated that the Wende procedures
would apply when they did not, and it did not inform Delgadillo
that the appeal would be dismissed as abandoned if no
supplemental brief or letter was filed. However, based on our
own independent review of the record, which we undertake
voluntarily in the interest of judicial economy, we determine
that Delgadillo is not entitled to relief under section 1172.6.
1
Assembly Bill No. 200 (Reg. Sess. 2021–2022; Assembly
Bill 200) has since renumbered section 1170.95 as section
1172.6. (See Stats. 2022, ch. 58, § 10.) For clarity, we refer
simply to section 1172.6 throughout the discussion section. All
undesignated statutory references are to the Penal Code.
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
I. BACKGROUND
On the afternoon of May 27, 2015, Delgadillo’s Ford
Explorer crossed into incoming traffic and collided head on into
a Mazda sedan occupied by a driver and passenger in the front
two seats.2 The passenger died from injuries sustained in the
accident. The driver of the Ford Explorer, later identified as
Delgadillo, fled the scene on foot, and a police dog located him
hiding in a building nearby. Approximately two and a half hours
after the accident, two breath tests showed Delgadillo’s blood-
alcohol level to be .13 and .14 percent. Two hours later,
Delgadillo provided a blood sample that showed a blood-alcohol
level of .13 percent.
A jury convicted Delgadillo of second degree murder under
an actual implied malice theory (§ 187, subd. (a)) and gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a)).
The jury also found true allegations that Delgadillo fled the
scene (Veh. Code, § 20001, subd. (c)) and had two prior
convictions for driving while under the influence of alcohol (Veh.
Code, § 23152). The court sentenced Delgadillo to a term of 15
years to life. The judgment was affirmed on appeal.
After the appeal was final, Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437; Stats. 2018, ch. 1015) went
into effect and barred a conviction for murder under the natural
and probable consequences theory as well as limited the scope
of the felony-murder rule. (§ 188, subd. (a)(3), as amended by
Stats. 2018, ch. 1015, § 2; § 189; see People v. Gentile (2020)
10 Cal.5th 830, 838.) This change in the law was “to ensure that
2
The brief summary of facts is drawn from the Court of
Appeal’s prior opinion in Delgadillo’s direct appeal.
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Sen. Bill 1437, § 1, subd. (f).)
Senate Bill 1437 further created a procedure under former
section 1170.95 for persons convicted of felony murder or
murder under a natural and probable consequences theory to
petition for retroactive relief.3
Delgadillo filed a petition for resentencing pursuant to
this new law. After the cause was submitted upon written
briefing, the superior court denied the petition at a hearing. The
superior court found no “grounds whatsoever for re-sentencing”
because “defendant was the actual and only participant” in the
crime. An order to show cause did not issue.
Delgadillo filed an appeal. Appointed counsel found no
arguable issues in the appeal and filed a brief in accordance with
the procedures outlined in Wende. The brief set out the
procedural history and relevant facts of the case and requested
that the Court of Appeal conduct an independent review of the
3
The Legislature has since amended former section 1170.95
with the passage of Senate Bill No. 775 (2021–2022 Reg. Sess.)
(Senate Bill 775; Stats. 2021, ch. 551). Senate Bill 775 codified
and clarified People v. Lewis (2021) 11 Cal.5th 952, 961–972
(Lewis), reaffirmed that beyond a reasonable doubt is the proper
burden of proof for a former section 1170.95 resentencing
hearing, and expanded former section 1170.95’s provisions to
apply also to persons convicted of attempted murder or
manslaughter. (Sen. Bill 775, § 1, subds. (a)–(d).) As mentioned
above, with the passage of Assembly Bill 200, the Legislature
then renumbered former section 1170.95 to section 1172.6
without any further substantive change. (See People v. Strong
(2022) 13 Cal.5th 698, 708, fn. 2.)
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
record in accordance with Wende. In an accompanying
declaration, counsel stated she had advised Delgadillo by letter
“that a brief on his behalf would be filed according to the
procedures outlined” in Wende and that he would receive a copy
of the brief. Counsel further stated she had also advised
Delgadillo that “he may personally file a supplemental brief”
raising “any points which he chooses to call to the court’s
attention” and that she had provided him with the record.
The Court of Appeal directed counsel to send the record
and a copy of appointed counsel’s brief to Delgadillo. The Court
of Appeal sent notice to Delgadillo and counsel that “[c]ounsel
appointed to represent appellant on appeal has filed appellant’s
opening brief. Counsel’s inability to find any arguable issues
may be readily inferred from the failure to raise any. (People v.
Wende[, supra,] 25 Cal.3d [at p.] 442.) [¶] Appointed counsel is
directed to send the record on this appeal and a copy of
appellant’s opening brief to appellant immediately. Within 30
days of the date of this notice, appellant may submit by brief or
letter any grounds of appeal contentions, or argument which
appellant wishes this court to consider.” Delgadillo did not
submit a brief or letter within the requisite time.
Following People v. Cole (2020) 52 Cal.App.5th 1023,
review granted October 14, 2020, S264278 (Cole), the Court of
Appeal found, “[T]he procedures set forth in Wende are not
constitutionally compelled if a criminal defendant’s appeal is not
his or her initial appeal of right.” (People v. Delgadillo (Nov. 18,
2020, B304441) [nonpub. opn.].) Since Delgadillo did not file a
brief or letter, the Court of Appeal presumed the order appealed
from was correct and dismissed Delgadillo’s appeal as
abandoned without conducting an independent review. The
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
Court of Appeal denied Delgadillo’s petition for rehearing. We
then granted review.
II. DISCUSSION
A. Wende Procedures
The Attorney General argues that Wende and related
cases are designed to protect only the indigent criminal
defendant’s constitutional right to counsel on direct appeal from
a criminal conviction. We agree that since Delgadillo’s appeal
from the denial of his petition does not implicate a constitutional
right to counsel, the procedures set out in Wende do not apply.
The prophylactic procedures in Wende are “relevant when,
and only when, a litigant has a previously established
constitutional right to counsel.” (Finley, supra, 481 U.S. at
p. 555.) Criminal defendants have a right to the effective
assistance of counsel on the first appeal granted as a matter of
right from a criminal conviction. (Evitts v. Lucey (1985) 469 U.S.
387, 394 [“right to counsel is limited to the first appeal as of
right”]; Douglas v. California (1963) 372 U.S. 353, 356.) In
Anders v. California (1967) 386 U.S. 738 (Anders), the United
States Supreme Court considered “the extent of the duty of a
court-appointed appellate counsel to prosecute a first appeal
from a criminal conviction, after that attorney has
conscientiously determined that there is no merit to the
indigent’s appeal.” (Id. at p. 739.) In the state appellate court,
court-appointed counsel concluded, after reviewing the record
and consulting petitioner, that an appeal of the conviction had
no merit. (Ibid.) Counsel advised the court by letter that the
appeal had no merit and that petitioner wished to file a pro se
brief. (Id. at pp. 739–740.) After the pro se brief was filed, the
court affirmed the conviction. (Id. at p. 740.) The United States
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
Supreme Court ultimately reversed, concluding that the
procedure was inadequate under the Fourteenth Amendment.
(Anders, at p. 741.)
The high court reasoned, “The constitutional requirement
of substantial equality and fair process can only be attained
where counsel acts in the role of an active advocate [o]n behalf
of his client, as opposed to that of amicus curiae. The no-merit
letter and the procedure it triggers do not reach that dignity. . . .
Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court
and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in the
record that might arguably support the appeal. A copy of
counsel’s brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court — not
counsel — then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.”
(Anders, supra, 386 U.S. at p. 744, fn. omitted.)
Subsequently, in Wende, supra, 25 Cal.3d 436, we
“approved a modified procedure to ensure an indigent criminal
defendant’s right to effective assistance of counsel.” (People v.
Kelly (2006) 40 Cal.4th 106, 118.) In Wende, counsel filed a brief
that summarized the proceedings and facts, raised no specific
issues, and requested that the court review the entire record to
determine whether there were any arguable issues. Counsel
submitted a declaration stating that he had advised defendant
of the nature of the brief, that he would send defendant a copy
of the brief, and that he had informed defendant that the court
would permit him to file a brief on his own behalf. Counsel also
stated that he would advise his client that he could move to have
counsel relieved. The defendant did not file a brief. (Wende, at
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
p. 438.) Ultimately, after undertaking “a review of the entire
record in this case,” a “thorough review of the merits,” and
hearing oral argument, we affirmed the judgment. (Id. at
p. 443.) In the process, we interpreted Anders to require that
“[t]he court itself must expressly determine whether the appeal
is wholly frivolous. Since the court’s concern [in Anders] was
with not merely accepting counsel’s assessment of the case, it
follows that the determination and concomitant review of the
entire record must be made regardless of whether the defendant
has availed himself of the opportunity to submit a brief.” (Id. at
p. 441.)
The United States Supreme Court approved our Wende
procedure in Smith v. Robbins (2000) 528 U.S. 259, 276. The
high court reasoned that the equal protection clause of the
Fourteenth Amendment and the due process clause of that
amendment “largely converge to require that a State’s
procedure ‘affor[d] adequate and effective appellate review to
indigent defendants,’ [citation]. A State’s procedure provides
such review so long as it reasonably ensures that an indigent’s
appeal will be resolved in a way that is related to the merit of
that appeal.” (Robbins, at pp. 276–277.) The high court
concluded that “the Wende procedure reasonably ensures that
an indigent’s appeal will be resolved in a way that is related to
the merit of that appeal.” (Id. at pp. 278–279.) Specifically,
Wende provides at least two tiers of review and “ensures that a
trained legal eye has searched the record for arguable issues and
assists the reviewing court in its own evaluation of the case.”
(Id. at p. 281.)
However, the procedures set out in Anders and Wende do
not apply to an appeal from the denial of postconviction relief,
even if the defendant has a state-created right to the
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
appointment of counsel for that appeal. (Finley, supra, 481 U.S.
at pp. 556–557; Sade C., supra, 13 Cal.4th at p. 978; see also
Austin v. United States (1994) 513 U.S. 5, 8.) This is because
“there is no constitutional right to the effective assistance of
counsel” in state postconviction proceedings. (People v. Boyer
(2006) 38 Cal.4th 412, 489; see People v. Young (2005)
34 Cal.4th 1149, 1232–1233; People v. Kipp (2001) 26 Cal.4th
1100, 1139–1140; Coleman v. Thompson (1991) 501 U.S. 722,
755 (Coleman).) “Anders established a prophylactic framework
that is relevant when, and only when, a litigant has a previously
established constitutional right to counsel.” (Finley, at p. 555.)
“Postconviction relief is even further removed from the criminal
trial than is discretionary direct review. It is not part of the
criminal proceeding itself, and it is in fact considered to be civil
in nature. See Fay v. Noia, 372 U.S. 391, 423–424 (1963). It is
a collateral attack that normally occurs only after the defendant
has failed to secure relief through direct review of his conviction.
States have no obligation to provide this avenue of relief, cf.
United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality
opinion), and when they do, the fundamental fairness mandated
by the Due Process Clause does not require that the State supply
a lawyer as well.” (Finley, at pp. 556–557.) After the first
appeal as a right, “the Constitution does not put the State to the
difficult choice between affording no counsel whatsoever or
following the strict procedural guidelines annunciated in
Anders.” (Id. at p. 559.)
“Anders’s ‘prophylactic’ procedures are limited in their
applicability to appointed appellate counsel’s representation of
an indigent criminal defendant in his first appeal as of right.
(Pennsylvania v. Finley, supra, 481 U.S. at pp. 554–559 [95
L.Ed.2d at pp. 545–549]; see Anders v. California, supra,9
PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
386 U.S. at pp. 739, 741–742, 744–745 [18 L.Ed.2d at pp. 495,
496–497, 498–499]; see also Austin v. U.S., supra, 513 U.S. at
p. [8] [130 L.Ed.2d at p. 223, 115 S.Ct. at p. 381].) They do not
extend to an appeal, even on direct review, that is discretionary.
(See Austin v. U.S., supra, 513 U.S. at p. [8] [130 L.Ed.2d at p.
223, 115 S.Ct. at p. 381].) A fortiori, they do not reach collateral
postconviction proceedings.” (Sade C., supra, 13 Cal.4th at
p. 978 [Anders and Wende do not apply to an indigent parent
appealing a child custody or parental status decision]; see also
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.)
[Anders and Wende do not apply to conservatorship proceedings
under the Lanterman-Petris-Short Act].) The reasoning that led
to the procedures in Anders and Wende thus does not apply to
Delgadillo’s postconviction proceeding here.
Furthermore, we have recently affirmed the proposition,
specifically in the context of section 1172.6, that “[t]here is no
unconditional state or federal constitutional right to counsel to
pursue collateral relief from a judgment of conviction.” (Lewis,
supra, 11 Cal.5th at p. 972, citing In re Barnett (2003) 31 Cal.4th
466, 475 [no federal or state “constitutional right to counsel for
seeking collateral relief from a judgment of conviction via state
habeas corpus proceedings”]; People v. Shipman (1965)
62 Cal.2d 226, 232 (Shipman) [observing the same in the context
of coram nobis relief]; Finley, supra, 481 U.S. at p. 557
[concluding “respondent has no underlying constitutional right
to appointed counsel in state postconviction proceedings”].) As
Delgadillo concedes, there is no federal constitutional right to
counsel under subdivision (c) of section 1172.6, and the right to
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
counsel at that point in the proceedings is purely statutory.4
Given there is no constitutional right to counsel in a proceeding
under section 1172.6, subdivision (c), it would “defy logic” to
conclude there is a constitutional right to counsel “to appeal
[that] state collateral determination.” (Coleman, supra,
501 U.S. at pp. 756, 757.) Courts below have uniformly agreed
that Wende procedures are not constitutionally required on an
appeal from a denial of a postconviction petition under section
1172.6. (See People v. Griffin (2022) 85 Cal.App.5th 329, 333;
People v. Figueras (2021) 61 Cal.App.5th 108, 111, review
granted May 12, 2021, S267870 (Figueras); People v. Scott
(2020) 58 Cal.App.5th 1127, 1130–1131, review granted March
17, 2021, S266853 (Scott); People v. Gallo (2020) 57 Cal.App.5th
594, 598–599; People v. Allison (2020) 55 Cal.App.5th 449, 456
(Allison); Cole, supra, 52 Cal.App.5th at pp. 1028, 1039, review
granted; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273
(Flores).) Indeed, at oral argument, Delgadillo’s counsel
abandoned the position that federal constitutional principles
require Wende review in this case.
We have noted that a defendant can have a constitutional
due process right to the appointment of counsel in habeas corpus
or coram nobis proceedings after a defendant establishes a
prima facie case for postconviction relief. (Lewis, supra,
11 Cal.5th at p. 973 [“ ‘if a [habeas corpus] petition attacking the
validity of a judgment states a prima facie case leading to
issuance of an order to show cause, the appointment of counsel
is demanded by due process concerns’ ”], quoting In re Clark
(1993) 5 Cal.4th 750, 780; Shipman, supra, 62 Cal.2d at p. 232
4
Subdivision (c) of section 1172.6 describes the process for
determining whether a prima facie case for relief has been made.
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
[when “an indigent petitioner has stated facts sufficient to
satisfy the court that a hearing is required, his claim can no
longer be treated as frivolous and he is entitled to have counsel
appointed to represent him”].) The questions raised in such
cases that attack the validity of the original conviction “are as
crucial as those that may be raised on direct appeal.” (Shipman,
at p. 231.) Our Shipman precedents have never extended the
right to counsel to an appeal from a ruling in an ameliorative
legislative scheme. In any event, an order to show cause did not
issue in this case, and Delgadillo did not establish a prima facie
case for section 1172.6 relief. (See Shipman, at p. 232 [“in the
absence of adequate factual allegations stating a prima facie
case, counsel need not be appointed either in the trial court or
on appeal from a summary denial of relief in that court”].)
Anders and Wende, accordingly, do not apply in this case.
Rather than rely upon constitutional right to counsel
principles that would compel Wende review, Delgadillo
alternatively contends that general due process principles
requiring fundamental fairness constitutionally mandate
Wende-type procedures for his appeal under the test set forth in
Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27.
“[D]ue process does not call for the same procedures in every
situation. Instead, ‘ “[d]ue process is flexible and calls for such
procedural protections as the particular situation
demands.” ’ ” (People v. Tilbury (1991) 54 Cal.3d 56, 68.) “[W]e
evaluate and balance these three elements in order to determine
whether the Fourteenth Amendment’s due process clause
requires Anders’s ‘prophylactic’ procedures for fundamental
fairness: (1) the private interests at stake; (2) the state’s
interests involved; and (3) the risk that the absence of the
procedures in question will lead to an erroneous resolution of
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Opinion of the Court by Groban, J.
the appeal.” (Sade C., supra, 13 Cal.4th at p. 987; see also
Lassiter, at p. 27; Mathews v. Eldridge (1976) 424 U.S. 319, 335.)
We note at the outset that the Lassiter test has more
typically been applied to determine whether Anders and Wende
should be extended to protect a right to counsel that has already
been identified, which is not the case here. (E.g., Sade C., supra,
13 Cal.4th at p. 986.) It is unclear whether Lassiter has any role
where, as here, the United States Supreme Court has already
determined that the right to effective assistance of counsel does
not extend to postconviction proceedings generally. (See Finley,
supra, 481 U.S. at p. 557.) Nonetheless, the parties do not
dispute that the Lassiter balancing test should be applied here
in determining whether Wende procedures should be applied to
section 1172.6 appeals. At oral argument, Delgadillo’s counsel
argued that Lassiter provided the appropriate framework
following the examples of Sade C., supra, 13 Cal.4th 952 and
Ben C., supra, 40 Cal.4th 529. He argued that these cases
suggest that even after we determined that Anders/Wende did
not apply directly to the circumstances before the court, we then
went on nonetheless to determine whether the Lassiter test
favored extending Anders/Wende prophylactic procedures to the
new context. (Sade C., at pp. 986–991; Ben C., at pp. 537–543].)
We need not decide whether the Lassiter test must be applied
here given Finley’s determination that the right to effective
assistance of counsel does not extend to postconviction
proceedings generally. We apply the Lassiter balancing test
here only because the parties assume its applicability, and we
do not now decide its applicability to the current circumstances.
In any event, general due process principles requiring
fundamental fairness do not alter the outcome. Applying the
first factor, “[i]n an appeal from a denial of a section [1172.6]
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Opinion of the Court by Groban, J.
petition, the private interests at stake are the liberty interests
of the person who may be in custody and seeking release.”
(Flores, supra, 54 Cal.App.5th at p. 274.) The potential for relief
under section 1172.6 from a prior murder, attempted murder, or
manslaughter conviction is a “significant” interest. (Ben C.,
supra, 40 Cal.4th at p. 540.) We agree with Delgadillo that this
factor weighs in his favor.
The state, however, also has an interest in an “economical
and expeditious resolution” of an appeal from a decision that is
“presumptively accurate and just.” (Sade C., supra, 13 Cal.4th
at p. 990.) Independent review in Wende appeals consumes
substantial judicial resources. (People v. Serrano (2012)
211 Cal.App.4th 496, 503 (Serrano).) Though not as onerous as
independent review on direct appeal, requiring appellate courts
to independently review the records of numerous postconviction
appeals after appointed counsel found no arguable issues would
still impose a significant burden on the court system.
Ultimately, “[t]he salient question here is whether the
absence of the Anders/Wende procedures significantly increases
the risk of erroneous resolutions.” (Ben C., supra, 40 Cal.4th at
p. 538.) Delgadillo and the Office of State Public Defender cite
a handful of cases, mostly unpublished, where the Court of
Appeal identified (or, they contend should have identified
meritorious issues) in a section 1172.6 appeal, even though a no-
issue brief was filed. However, this largely anecdotal recitation
of errors ignores the broader procedural protections already in
place. To proceed to an evidentiary hearing, there is only a
“limited” prima facie inquiry. (Lewis, supra, 11 Cal.5th at
p. 971.) The “ ‘prima facie bar was intentionally and correctly
set very low.’ ” (Id. at p. 972.) In all cases, the superior court
will review the petition before deciding the matter. While
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Opinion of the Court by Groban, J.
section 1172.6 does not require the appointment of counsel on
appeal, some courts have a routine practice of appointing
counsel to represent defendants appealing from the denial of
postconviction relief. (See, e.g., Cole, supra, 52 Cal.App.5th at
p. 1029, review granted.) As Delgadillo concedes in arguing for
a more limited review, appellate courts can often readily confirm
that a defendant is ineligible for relief as a matter of law without
conducting an independent review of the entire record. As
discussed below, the defendant is also permitted to file a
supplemental brief if counsel files a brief raising no arguable
issues. As also detailed below, if the appellate court wishes, it
may also exercise its discretion to conduct its own independent
review of the record in the interest of justice.
Indeed, the procedures implemented with respect to
Delgadillo’s petition demonstrate the elaborate protections
already in place. After the appointment of counsel, a review of
the record, briefing, and a hearing, the superior court concluded
Delgadillo was ineligible for relief as a matter of law because the
record showed he was the actual and only participant in the
crime. On appeal from that determination, Delgadillo again had
the assistance of appointed counsel, who again examined the
record and determined there were no grounds upon which to
challenge the superior court’s determination. The Legislature
has already given petitioners broad access to counsel in the
superior courts (Lewis, supra, 11 Cal.5th at p. 968) and
considered the competing policy considerations in enacting the
postconviction procedures in section 1172.6. (Lewis, at p. 969
[the “legislative background shows the Legislature did, in fact,
engage in the exact type of cost-benefit assessment and policy
determination it was entitled to make”].) Accordingly, once
appointed counsel here concluded there are no arguable issues,
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“the value of applying the procedures required by our decision
in Wende in criminal appeals is ‘too slight to compel their
invocation.’ ” (In re Phoenix H. (2009) 47 Cal.4th 835, 844,
quoting Sade C., supra, 13 Cal.4th at p. 991.)
Delgadillo argues that the state Constitution provides its
own due process guarantee and that we are free to interpret it
to afford more protection of a defendant’s rights than is required
under the federal Constitution. However, for similar reasons,
the Court of Appeal’s refusal to undertake an independent
review of the record does not violate the due process clause of
article I, section 7, subdivision (a), of the California Constitution
because, again, the balance of interests and risks does not
mandate such a procedure. The analysis under the state
constitutional provision would take into account not only the
three elements discussed above, “but also, under the first, ‘the
dignitary interest in informing individuals of the nature,
grounds and consequences of the [governmental] action [in
question] and in enabling them to present their side of the story
before a responsible governmental official . . . .’ ” (Sade C.,
supra, 13 Cal.4th at p. 991, fn. 18, quoting People v. Ramirez
(1979) 25 Cal.3d 260, 269 (plur. opn. of Mosk, J.).) However,
independent review does not further an individual’s dignitary
interest when counsel has already been given an opportunity to
present any arguments, found no issues warranting briefing,
and the defendant was notified that counsel found no issues but
that the defendant could file supplemental briefing presenting
16
PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
any arguments. We therefore find that the procedures set out
in Wende do not apply to Delgadillo’s appeal.5
B. Procedures Required in Section 1172.6
Proceedings
The Attorney General and Delgadillo both suggest that we
prescribe guidance for counsel and courts to follow in
postconviction appeals where counsel finds no arguable issues.
The Attorney General also notes that the appropriate
procedures may vary depending on the particular context. We
agree that it is possible that some more unusual postconviction
context will call for additional or more specialized requirements.
We agree though that we should invoke our inherent
supervisory powers to prescribe a few basic procedures going
forward, while leaving it to the Courts of Appeal to tailor and
develop any additional procedures as they see fit. (See Robinson
v. Lewis (2020) 9 Cal.5th 883, 899 [“This court has ‘inherent
authority to establish “rules of judicial procedure” ’ ”].)
On an appeal from the denial of a section 1172.6 petition,
we therefore prescribe the following framework. When
appointed counsel finds no arguable issues to be pursued on
appeal: (1) counsel should file a brief informing the court of that
5
In this case, we are not deciding Wende’s application to
other postconviction contexts, which may present different
considerations. (E.g., Coleman, supra, 501 U.S. at p. 755 [not
answering whether “an exception to the rule of Finley” provides
for a right to effective counsel in state postconviction
proceedings “where state collateral review is the first place a
prisoner can present a challenge to his conviction”]; Martinez v.
Ryan (2012) 566 U.S. 1, 8 [not resolving the question Coleman
“left open” of “whether a prisoner has a right to effective counsel
in collateral proceedings which provide the first occasion to raise
a claim of ineffective assistance at trial”].)
17
PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
determination, including a concise recitation of the facts bearing
on the denial of the petition; and (2) the court should send, with
a copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter. (Scott, supra, 58 Cal.App.5th at p. 1131,
review granted; Serrano, supra, 211 Cal.App.4th at p. 503; Cole,
supra, 52 Cal.App.5th at p. 1039, review granted; Figueras,
supra, 61 Cal.App.5th at p. 112, review granted.)
If the defendant subsequently files a supplemental brief or
letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues. (Cole, supra, 52 Cal.App.5th at p. 1028, review granted;
Figueras, supra, 61 Cal.App.5th at p. 113, review granted.) If
the defendant does not file a supplemental brief or letter, the
Court of Appeal may dismiss the appeal as abandoned.
(Serrano, supra, 211 Cal.App.4th at pp. 503–504.) If the appeal
is dismissed as abandoned, the Court of Appeal does not need to
write an opinion but should notify the defendant when it
dismisses the matter. (Ben C., supra, 40 Cal.4th at p. 544.)
While it is wholly within the court’s discretion, the Court of
Appeal is not barred from conducting its own independent
review of the record in any individual section 1172.6 appeal.
(Scott, supra, 58 Cal.App.5th at p. 1131, review granted;
Figueras, at p. 113, fn. 2, review granted.)
The procedures announced here, however, are not
intended to be exhaustive, and the Courts of Appeal are well
suited to identify any additional procedures for counsel and
courts to follow in postconviction appeals where counsel finds no
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
arguable issues. The Courts of Appeal are free to adopt
additional procedures as they see fit.
C. Notice of the Procedures the Court of Appeal
Employed
Delgadillo argues the Court of Appeal provided
inadequate notice of its procedures in violation of due process
within the meaning of the Fourteenth Amendment. He
contends that the court should have notified his counsel that
involuntary dismissal was being considered and requested
briefing on that issue. The Attorney General counters that
Delgadillo had adequate notice and every reason to anticipate
that his appeal could be dismissed.
We conclude that the notice provided in this case was
suboptimal. Delgadillo’s counsel did file a brief raising no
arguable issues. The Court of Appeal also sent Delgadillo notice
of his right to file a supplemental brief, and yet he declined to
do so. However, the notice the Court of Appeal sent Delgadillo
and counsel affirmatively cited Wende after Delgadillo’s counsel
had filed a brief pursuant to Wende. The court advised
Delgadillo by letter that “[c]ounsel appointed to represent
appellant on appeal has filed appellant’s opening brief.
Counsel’s inability to find any arguable issues may be readily
inferred from the failure to raise any. (People v. Wende[, supra,
] 25 Cal.3d [at p.] 442.)” This notice directly implicates the core
holding of Wende: “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. This obligation is triggered by
the receipt of such a brief from counsel and does not depend on
the subsequent receipt of a brief from the defendant personally.”
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PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
(Wende, at pp. 441–442.) Delgadillo reasonably could have
concluded from this notice that the Wende procedures would
apply and that the Court of Appeal would conduct an
independent review of the record, even absent a supplemental
brief — even though the Court of Appeal later determined,
without providing an opportunity to be heard on the matter, that
Wende was inapplicable. The notice further did not inform
Delgadillo that the appeal would be dismissed as abandoned if
no supplemental brief or letter were filed. While arguing that
the notice was adequate, the Attorney General concedes that the
court should ordinarily “give the appellant clear notice that the
court will dismiss the appeal as abandoned if no supplemental
brief is received.” We therefore conclude that the notice in this
case was suboptimal.
Nevertheless, we determine, based on our independent
review of the record, that Delgadillo is not entitled to any relief
under section 1172.6. Indeed, the record here makes clear that
Delgadillo was the actual killer and the only participant in the
killing. Specifically, eyewitnesses identified him as the driver
of a Ford Explorer that crossed into incoming traffic and crashed
into another vehicle, killing the passenger. At trial, defense
counsel conceded that the accident occurred while Delgadillo
was driving on the wrong side of the road. (See § 1172.6, subd.
(a) [“A person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter
may file a petition with the court” to have the conviction
vacated].) We affirm the Court of Appeal’s holding that Wende
20
PEOPLE v. DELGADILLO
Opinion of the Court by Groban, J.
procedures are not constitutionally compelled on Delgadillo’s
appeal.6
III. DISPOSITION
For the reasons discussed above, the judgment of the
Court of Appeal is affirmed.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
6
We are choosing to conduct independent review in the
interest of judicial economy, but we emphasize that the decision
to conduct independent review is solely up to the discretion of
the Courts of Appeal and is not required. In light of our own
independent review of the record, we do not reach the
constitutional question raised by Delgadillo of whether the
notice he received violated due process.
21
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Delgadillo
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 11/18/20 – 2d Dist.
Div. 4
Rehearing Granted
__________________________________________________________
Opinion No. S266305
Date Filed: December 19, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Katherine Mader
__________________________________________________________
Counsel:
Nancy J. King and Eric R. Larson, under appointments by the
Supreme Court, for Defendant and Appellant.
Rob Bonta, Attorney General, Michael J. Mongan, State Solicitor
General, Lance E. Winters, Chief Assistant Attorney General, Janill L.
Richards, Principal Deputy State Solicitor General, Julie L. Garland
and Charles Ragland, Assistant Attorneys General, Samuel P. Siegel,
Deputy State Solicitor General, Lynne G. McGinnis, Deputy Attorney
General, and Amari L. Hammonds, Associate Deputy State Solicitor
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Eric R. Larson
Attorney at Law
330 J Street, #609
San Diego, CA 92101
(619) 238-5575
Samuel P. Siegel
Deputy State Solicitor General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3917