People v. Cole

Filed 8/3/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304329
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA061968)
v.
FREDDIE COLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jesus I. Rodriguez, Judge. Dismissed.
Mark Alan Hart, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
******
This appeal presents a problem that is both commonplace
and elusive. When counsel appointed to represent a criminal
defendant during the initial appeal of his conviction concludes
that there are no reasonably arguable issues to present to the
Court of Appeal, People v. Wende (1979) 25 Cal.3d 436 (Wende)
delineates the procedures both counsel and the Court of Appeal
are to follow. What procedures apply when the appeal is from the
denial of postconviction relief (rather than, as in Wende, the
defendant’s first appeal of right)? Do Wende’s procedures still
apply? And if not, on what basis may a Court of Appeal prescribe
the procedures that counsel and the court are to follow? A
handful of courts have addressed the first question, but the
second has yet to be confronted.
We publish to provide our views and guidance on both
questions. Taking the second question first, we hold that Wende’s
constitutional underpinnings do not apply to appeals from the
denial of postconviction relief; consequently, the procedures we
and other courts have prescribed are grounded solely in our
supervisory powers to control the proceedings before us. We
further hold that, in the exercise of these powers, counsel
appointed in such appeals is required to independently review
the entire record and, if counsel so finds, file a brief advising the
appellate court that there are “no arguable issues to raise on
appeal”; the defendant has a right to file a supplemental brief;
and this court has the duty to address any issues raised by the
defendant but otherwise may dismiss the appeal without
conducting an independent review of the record. Because the
defendant who has appealed the denial of postconviction relief in
this case has not filed a supplemental brief, we dismiss this
appeal as abandoned.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In 2007, a jury convicted Freddie Cole (defendant) of (1)
murder (Pen. Code, § 187, subd. (a)),1 and (2) arson of an
inhabited structure (§ 451, subd. (b)). That same year, the trial
court sentenced defendant to prison for 35 years to life. This was
a “third strike” sentence under our state’s Three Strikes Law
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), plus 10 years
because each of his two prior strikes also constituted prior serious
felonies (§ 667, subd. (a)(1)); one of defendant’s prior “strikes” was
also for arson of an inhabited structure. We affirmed his
convictions and sentence in 2008. (People v. Cole (Aug. 7, 2008,
B202387) [nonpub. opn.].)
II. Procedural Background
In April 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” In explaining why his murder conviction
would be invalid under the 2019 changes to sections 188 and 189,
defendant did not check the box alleging that he “was not the
actual killer.” He also requested counsel.
On January 15, 2020, and after appointing defendant
counsel, the trial court summarily denied defendant’s petition.
Based upon the recitation of facts in our opinion affirming his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
3
conviction, which showed defendant had acted alone in splashing
gasoline on the porch of the apartment where the murder victim
lived moments before the fire started and had repeatedly
threatened to “burn this mother fucker down and everybody
that’s in it,” the trial court concluded that defendant was “the
actual killer” and hence categorically ineligible for relief under
section 1170.95.
Defendant filed a timely notice of appeal.
Pursuant to the California Rules of Court and our district’s
routine practice of appointing counsel to represent defendants
appealing from the denial of postconviction relief, we appointed
appellate counsel for defendant. (Cal. Rules of Court, rule
8.300(a)(1).) Citing Wende, supra, 25 Cal.3d 436, counsel filed an
opening brief setting out the procedural history and relevant
facts of this case, and a declaration indicating that counsel had
“reviewed the entire record” and had informed defendant “of his
right to file a supplemental brief.” Counsel has invited us to
“independently review the entire record on appeal for arguable
issues.”
We sent a letter to defendant advising him that he had 30
days to file a supplemental brief.
Defendant has not filed a timely supplemental brief.
DISCUSSION
The questions presented in this appeal are straightforward:
(1) What procedures must appointed counsel and this court follow
when counsel determines that an appeal of an order denying
postconviction relief lacks arguable merit, and (2) By what
authority do we prescribe those procedures? Discerning
definitive answers to these questions, however, is more akin to
navigating the Labyrinth of Crete. The need for these answers is
4
nevertheless great: In recent years, our Legislature and voters
have enacted an increasing number of laws that empower
convicted defendants to seek postconviction relief reducing their
sentences, reducing their crimes of conviction, or vacating their
pleas. (See, e.g., § 1170.126 [defendants convicted of “third
strike” offenses may seek reduction in sentence if their “third
strike” offense does not qualify as a “strike” offense], § 1170.18
[defendants convicted of certain low-level felonies may seek
reduction of those crimes to misdemeanors], § 1473.7 [defendants
may seek to vacate their pleas if they did not “meaningfully
understand” the “immigration consequences” of their pleas],
§ 1016.8 [defendants may seek to vacate their pleas if predicated
upon a waiver of the “future benefits of . . . changes in the law
that may retroactively apply”].) Section 1170.95 is one such law,
as it empowers a defendant convicted of murder to vacate his
murder conviction if it was based upon a theory of vicarious
liability—and, in particular, upon a theory of felony murder or
natural and probable consequences—unless he acted with the
intent to kill or was “a major participant” in an underlying felony
and “act[ed] with reckless indifference to human life”; it does not
provide relief to a “person [who] was the actual killer.”
(§ 1170.95; see also, §§ 188, 189, subd. (e).)
In many respects, we are not writing on a tabula rasa.
Several cases have addressed what procedures appointed counsel
and the Court of Appeal should follow when counsel finds no
arguable merit to an appeal from the denial of postconviction
relief. First among them is People v. Serrano (2012) 211
Cal.App.4th 496 (Serrano). But these cases have not settled upon
the same procedures. (Compare Serrano, at pp. 501, 503 [counsel
must file brief, defendant has right to file supplemental brief,
5
court has no duty to independently review the record] with People
v. Soto (July 9, 2020, H047581) __ Cal.App.5th __, 2020
Cal.App.LEXIS 637, *1 (Soto) [same, except court went on to
independently “review[] the briefs and record”]; People v. Johnson
(2016) 244 Cal.App.4th 384, 389, fn. 5 (Johnson) [same]; In re
J.S. (2015) 237 Cal.App.4th 452, 457 (In re J.S.) [same].) And
none of this precedent has squarely confronted the question of the
legal basis for prescribing these procedures.
I. Procedures When Counsel Finds No Reasonably
Arguable Issues On Appeal, Generally
In the universe of law defining what procedures appointed
counsel and the Court of Appeal must follow when counsel
determines there are no arguably meritorious issues to raise on
appeal, the proverbial Delphi—or center—of that universe is
Wende, supra, 25 Cal.3d 436. As noted above, Wende set forth
the procedures to be followed during the defendant’s “first appeal
of right”—that is, during the direct appeal of his judgment of
conviction and sentence. (Id. at pp. 438, 443.) At this stage in
criminal proceedings, a criminal defendant has a federal
constitutional right to the effective assistance of counsel. (Evitts
v. Lucey (1985) 469 U.S. 387, 392-400, 405 (Evitts) [so holding]; In
re Sade C. (1996) 13 Cal.4th 952, 978 (Sade C.) [so noting]; see
generally Douglas v. California (1963) 372 U.S. 353, 353-358
[indigent defendant has right to counsel on first appeal of right].)
The right to effective assistance of counsel during the first appeal
of right is based partly on the due process-based incorporation of
the Sixth Amendment right to counsel to the states and partly on
the equal protection-based concern that indigent defendants be
treated the same as non-indigent defendants. (Evitts, at p. 405.)
The purpose of Wende’s procedures is “to ensure [the] indigent
criminal defendant’s right to effective assistance of counsel”
6
during the first appeal of right. (People v. Kelly (2006) 40 Cal.4th
106, 118 (Kelly); Sade C., at p. 978; see also People v. Feggans
(1967) 67 Cal.2d 444, 447 (Feggans) [so holding, as to pre-Wende
procedures on the first appeal of right].)
Wende requires (1) appellate counsel (a) to independently
evaluate the “entire record” and, if counsel determines there are
no “reasonably arguable” issues (that is, no non-frivolous issues)
to raise on appeal, (b) to file a brief that so indicates and that sets
forth certain information about the trial court proceedings, (2)
the defendant to be given the opportunity to file a supplemental
brief raising issues, and (3) the Court of Appeal to independently
review the record to determine whether there are any non-
frivolous arguments to be addressed on appeal. (Wende, supra,
25 Cal.3d at pp. 438, 442-443; Feggans, supra, 67 Cal.2d at p.
448; Kelly, supra, 40 Cal.4th at pp. 109-110, 118; Sade C., supra,
13 Cal.4th at pp. 977, 979; accord, Anders v. California (1967)
386 U.S. 738, 744 (Anders).) By conscripting both appointed
counsel and the Court of Appeal to the task of independently
poring over the record for reasonably arguable issues,
presumably on the Argus-inspired theory that the more eyes, the
better, Wende’s procedures are able to fulfill their chief purpose,
noted above, of “prophylactic[ally]” “safeguard[ing]” the
defendant’s constitutional right to the effective assistance of
counsel during his first appeal of right. (Smith v. Robbins (2000)
528 U.S. 259, 265, 273, 276 (Smith); Pa. v. Finley (1987) 481 U.S.
551, 554 (Finley)).
Wende’s procedures are inextricably moored to their
constitutional justification: “When [a] defendant ‘has no
underlying constitutional right to [the effective assistance of]
appointed counsel,’ he ‘has no constitutional right to insist on the
7
[Wende] procedures which were designed solely to protect that
underlying constitutional right.’” (Sade C., supra, 13 Cal.4th at
p. 973, quoting Finley, supra, 481 U.S. at p. 557.) To be sure, a
defendant sometimes has a constitutionally grounded, due
process-based right to the appointment of counsel in
postconviction proceedings. That right is a limited one, however,
and only kicks in once the defendant makes a prima facie
showing of entitlement of postconviction relief. (People v.
Shipman (1965) 62 Cal.2d 226, 232 (Shipman) [so noting, as to
defendant seeking a writ of coram nobis]; In re Clark (1993) 5
Cal.4th 750, 779-780 (Clark) [so noting, as to defendant seeking a
writ of habeas corpus], superseded by statute on other grounds as
stated in Briggs v. Brown (2017) 3 Cal.5th 808, 842 (Briggs);
People v. Fryhaat (2019) 35 Cal.App.5th 969, 981-982 [so noting,
as to defendant seeking relief under section 1473.7 in trial
court].) But having a constitutional right to the appointment of
counsel is not the same as having a constitutional right to the
effective assistance of that counsel (see Sade C., at p. 978 [noting
a distinction between entitlement to “nominal assistance” of
counsel and “effective assistance” of counsel]), and our Supreme
Court has steadfastly held that “there is no constitutional right to
the effective assistance of counsel” in state postconviction
proceedings (People v. Boyer (2006) 38 Cal.4th 412, 489; People v.
Young (2005) 34 Cal.4th 1149, 1232-1233; People v. Kipp (2001)
26 Cal.4th 1100, 1139-1140). Consequently, the procedures set
forth in Wende do not apply to appeals from the denial of
postconviction relief, even if the defendant might have a right to
the appointment of counsel. (Finley, at p. 556; Sade C., at p. 972;
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben
C.).)
8
With this background, we now turn to the questions
presented: (1) On what authority may we impose Wende-like
procedures to an appeal of the denial of postconviction relief, and,
if we possess such authority, (2) Which procedures should we
adopt?
II. Procedures When Counsel Finds No Reasonably
Arguable Issues On Appeals In Postconviction
Proceedings
A. Authority to impose Wende-like procedures in
postconviction proceedings
Our Supreme Court has extended a subset of Wende’s
procedures to appeals not involving a criminal defendant’s first
appeal of right, but its decisions have not definitively articulated
the justification for doing so.
In Ben C., supra, 40 Cal.4th at p. 535, the court held that
the full panoply of Wende procedures do not apply when appellate
counsel determines that an appeal of an order declaring a
conservatorship over the appellant has no arguable merit. The
court declined to extend Wende either as a matter of
constitutional imperative or under its “inherent authority.”
(Ibid.) Ben C. went on to hold that appellate counsel was
required to file a Wende-like brief and that the conservatee had a
right to file a supplemental brief (id. at p. 544 & fn. 6), but did
not explain on what authority it was prescribing this subset of
Wende procedures. The Court of Appeal decisions that have
followed Ben C.’s lead in prescribing a subset of Wende
procedures in the postconviction and other contexts have been
similarly silent on their basis for doing so. (Serrano, supra, 211
Cal.App.4th at p. 503; People v. Dobson (2008) 161 Cal.App.4th
1422, 1438-1439 (Dobson) [appeal from order denying petition for
restoration of competency following a finding of not guilty by
9
reason of insanity]; People v. Martinez (2016) 246 Cal.App.4th
1226, 1239-1240 (Martinez) [appeal from order extending civil
commitment of person found not guilty by reason of insanity];
People v. Taylor (2008) 160 Cal.App.4th 304, 311-312 [appeal
from order denying challenge to civil commitment placement as a
medically disordered offender].)
In Sade C., supra, 13 Cal.4th 952, and In re Phoenix H.
(2009) 47 Cal.4th 835 (Phoenix H.), the court held that the full
panoply of Wende procedures do not apply when appellate counsel
determines that an appeal of an order terminating a parent’s
rights over his or her child in juvenile dependency proceedings
has no arguable merit. (Sade C., at pp. 961, 985-993; Phoenix H.,
at p. 838.) These cases went on to hold that appellate counsel
was required to file a Wende-like brief, but that the parent could
file a supplemental brief only if the parent made a “showing of
good cause” to do so and that the Court of Appeal had no duty to
independently review the record for arguable issues. (Phoenix H.,
at p. 844.) In holding that the court would “not exercise [its]
supervisory powers” to grant parents a right to file a
supplemental brief (ibid.), Phoenix H. strongly suggests that the
court was exercising its supervisory powers in requiring appellate
counsel to file a brief and in requiring appellate courts to accept
supplemental briefs preceded by a showing of good cause.
We make explicit what Phoenix H. implies: Courts of
Appeal, like all courts, “have inherent supervisory or
administrative powers which enable them to carry out their
duties,” and these powers include the power to “‘formulate rules
of procedure’ [citation].” (Rutherford v. Owens-Illinois, Inc.
(1997) 16 Cal.4th 953, 967; Citizens Utilities Co. v. Superior
Court (1963) 59 Cal.2d 805, 812-813.) We invoke these inherent
10
supervisory powers to prescribe the procedures to be followed in
this court when appellate counsel determines that the appeal
from the denial of postconviction relief lacks any reasonably
arguable issues.
At the same time, and like all the decisions cited above, we
reject the notion that the Constitution compels the adoption or
extension of Wende procedures (or any subset of them) for appeals
other than a criminal defendant’s first appeal of right because,
beyond that appeal, there is no right to the effective assistance of
counsel. Time and again, the United States Supreme Court and
our Supreme Court have rejected the very same argument. (See
Finley, supra, 481 U.S. at p. 555; Ben C., supra, 40 Cal.4th at pp.
538-543; Sade C., supra, 13 Cal.4th at pp. 986-993.) Relying
upon our supervisory powers rather than due process and equal
protection also avoids what might be viewed as an absurd result,
particularly with respect to appeals of orders summarily denying
postconviction relief. As noted above, for many forms of
postconviction relief, the applicant has no due process right to the
appointment of counsel before the trial court unless and until he
makes a prima facie showing of entitlement to relief (e.g., Clark,
supra, 5 Cal.4th at pp. 779-780; Shipman, supra, 62 Cal.2d at p.
232), and many applications are summarily denied for the failure
to make that showing before counsel is ever appointed. If an
applicant does not from the outset need counsel to assure he
receives due process before the trial court that is entrusted with
litigating his or her claim in the first instance, on what basis
would Wende-like procedures premised on a fully-fledged right to
the effective assistance of counsel suddenly spring into existence
11
for the first time on appeal like a fully-grown Athena bursting
from Zeus’s skull? We perceive no such basis.2
B. Procedures to be followed in postconviction
proceedings
1. Analysis
Despite the seemingly unanimous agreement of the courts
that Wende procedures are not constitutionally required in
appeals other than a criminal defendant’s first appeal of right,
those courts have not been unanimous in prescribing which
procedures they require in the implicit exercise of their
supervisory powers.
2 Recognizing a due process-based right to Wende-like review
in all postconviction proceedings would lead to a particularly
bizarre result in light of a recent change to the law of habeas
corpus. Until recently, a defendant whose petition for habeas
corpus was denied by the trial court had no right to appeal that
denial to the Court of Appeal (Briggs, supra, 3 Cal.5th at p. 836);
instead, the defendant had to file a new writ with the Court of
Appeal (Robinson v. Lewis (July 20, 2020, S228137) __ Cal.5th __,
2020 Cal.LEXIS 4360, *11-*13), and, as with all such writs, the
petitioner would have a due process-based right to counsel only if
the Court of Appeal found he or she made a prima facie showing
for relief and issued an order to show cause (Clark, at p. 780). In
2016, however, the law changed to grant defendants “[under] a
judgment of death” a right to appeal the denial of their habeas
corpus petitions to the Court of Appeal. (§§ 1509, 1509.1.) If
Wende-like procedures were grounded in due process, habeas
petitioners under a judgment of death would suddenly have a
due-process right to counsel long before they made any prima
facie showing simply by virtue of being granted the right to
appeal to the Court of Appeal (rather than the right to file a new
writ with that court).
12
The variety of different procedures the courts have
prescribed can be placed on a spectrum. At one end of the
spectrum are procedures that mimic Wende procedures in their
entirety—that is, counsel has a duty to independently review the
record and file a brief; the appellant has a right to file a
supplemental brief; and the Court of Appeal engages in an
independent review of the record. (E.g., Soto, supra, __
Cal.App.5th__ [2020 Cal.App.LEXIS 637, *7-*8]; Johnson, supra,
244 Cal.App.4th at p. 389, fn. 5; In re J.S., supra, 237
Cal.App.4th at pp. 456-457.) Next along the spectrum are
procedures that require counsel’s independent review of the
record and assure the appellant a right to file a supplemental
brief, but do not obligate the appellate court to conduct a second,
independent review of the record. (E.g., Ben C., supra, 40 Cal.4th
at p. 544 & fn. 7; Dobson, supra, 161 Cal.App.4th at pp. 1438-
1439.) Further along the spectrum are procedures that require
counsel’s independent review of the record, but which make the
appellant’s right to file a supplemental brief contingent upon a
showing of “good cause” and which do not obligate the appellate
court to independently review the record. (E.g., Sade C., supra,
13 Cal.4th at pp. 961, 985-993; Phoenix H., supra, 47 Cal.4th at
pp. 838, 844.) And at the far end of the spectrum would be no
Wende-like procedures even if appellate counsel is appointed,
although no court has ever so held (and we doubt they would,
given counsel’s duty to zealously advocate for his client (People v.
McKenzie (1983) 34 Cal.3d 616, 631 (McKenzie) [“‘The duty of a
lawyer both to his client and to the legal system, is to represent
his client zealously within the bounds of the law.’”], italics
omitted)).
13
Unfortunately, none of these courts has articulated why
they have adopted one set of procedures along this spectrum
rather than another. In other words, they have not set forth the
criteria by which they have calibrated which procedures are
appropriate in the implicit exercise of their supervisory power.
Fortunately, however, there is a ready analogy—namely, the
criteria used to calibrate which procedures are necessary to
assure that a given procedure is fundamentally fair in order to
comply with due process. (Lassiter v. Dep’t of Social Services
(1981) 452 U.S. 18, 27 (Lassiter).) While legally distinct, the due
process guarantee and the exercise of supervisory powers both
seek to fix the procedures that best calibrate competing interests
in order to provide the just and efficient adjudication of disputes.
The criteria relevant to both inquiries should accordingly be the
same.
What are those criteria? They are (1) “the private interests
at stake,” (2) “the government’s interests,” and (3) “the risk that
the procedures used will lead to erroneous decisions.” (Lassiter,
supra, 452 U.S. at p. 27; Mathews v. Eldridge (1976) 424 U.S.
319, 334-335.)
The private interests at stake when adjudicating a criminal
defendant’s postconviction request for relief are undoubtedly
significant and weighty. Such a defendant may still be
incarcerated and seeking release from physical confinement.
(Ben C., supra, 40 Cal.4th at p. 540 [confinement due to
conservatorship is a “significant” private interest].) Even if the
defendant has fully served the sentence imposed, he or she may
be seeking to relieve themselves of the opprobrium and stigma of
their prior conviction(s), or the collateral consequences that flow
14
from the conviction(s). (E.g., Serrano, supra, 211 Cal.App.4th at
p. 502 [petition under section 1473.7 to avoid deportation].)
The private interest in this situation is less weighty than
the interests at stake in Wende itself. A defendant’s interest
during the first appeal of right at issue in Wende is ensuring that
his liberty is not taken away unless he is found guilty beyond a
reasonable doubt at a trial where his constitutional and statutory
rights are scrupulously honored; the failure to protect this
interest results in wrongful incarceration. A defendant’s interest
when seeking postconviction relief, in most cases, seeks the
“benefit of ameliorative changes” in the law rendered applicable
to the defendant by legislative grace rather than constitutional
imperative (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064
(Perez); Dillon v. United States (2010) 560 U.S. 817, 828); the
failure to protect this interest results in the failure to reduce or
eliminate a conviction or sentence that was previously imposed
and adjudicated to be valid. (People v. Osuna (2014) 225
Cal.App.4th 1020, 1040 [“A finding [that] an inmate is not
eligible for [the postconviction relief at issue] does not increase or
aggravate that individual’s sentence; rather, it leaves him or her
subject to the sentence originally imposed.”], overruled in part on
other grounds as stated in People v. Frierson (2017) 4 Cal.5th
225, 240, fn. 8; Shipman, supra, 62 Cal.2d at p. 232 [“the
ordinary processes of trial and appeal are presumed to result in
valid adjudications”].) Less is at stake in the postconviction
context, which explains why the Sixth Amendment’s right to a
jury’s finding of guilt does not apply to fact-finding in support of
postconviction relief. (Perez, at pp. 1063-1064; People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156-1157.) Conversely, the private
interest at stake here is weightier than the interests of parents
15
seeking to retain the rights to their children and whose personal
liberty is not at stake. (Sade C., supra, 13 Cal.4th at pp. 982, 987
[“‘“punitive”’” proceedings have higher stakes].) A defendant’s
private interest in seeking postconviction relief is most
comparable to a denial of release following a finding he is not
guilty by reason of insanity; in both situations, the defendant’s
personal liberty is at stake but what he is seeking is a
modification of a previously adjudicated order that deprived him
of that liberty in the first place. (Accord, Dobson, supra, 161
Cal.App.4th at pp. 1438-1439.)
The government interest in adjudicating appeals denying
postconviction relief is two-fold. As with all appeals, the state
has an “‘important’” “interest in an accurate and just resolution of
the . . . appeal.” (Sade C., supra, 13 Cal.4th at p. 989; Martinez,
supra, 246 Cal.App.4th at p. 1235.) The state also has a
“legitimate” “‘fiscal and administrative interest in reducing the
cost and burden of [the appellant] proceedings.’” (Sade C., at p.
989, quoting Santosky v. Kramer (1982) 455 U.S. 745, 766;
Martinez, at p. 1235.) This latter interest recognizes that judicial
resources are scarce and that many of the steps of Wende review,
including the independent review of a record by a court, are
resource-intensive. (Serrano, supra, 211 Cal.App.4th at p. 503.)
It also recognizes that the more mechanisms there are for
postconviction relief, the more time they will take to adjudicate
and the less time that will remain for appeals where greater
private interests are at stake, such as first appeals of right.
The risk that providing fewer procedures on appeal from an
order denying postconviction relief will lead to an erroneous
decision is not especially great. That is partly because, as noted
above, defendants seeking postconviction relief have already had
16
their convictions affirmed following their first appeal of right,
such that the risk of error due to the absence of Wende
procedures on an appeal from the denial of postconviction relief is
correspondingly less. And it is partly because of our experience
that “appointed appellate counsel faithfully conduct themselves
as active advocates” on behalf of their clients, and thus will
invoke Wende-like procedures only when their careful review has
turned up no reasonably arguable issues. (Sade C., supra, 13
Cal.4th at p. 990.)
2. The procedures we prescribe
In balancing the private interests of defendants seeking
postconviction relief that will reduce or eliminate conviction(s)
and sentences previously adjudicated as valid, the government’s
interests in just adjudication and intelligently allocating
resources, and the relatively small risk of error should Wende’s
procedures not be fully imported, we invoke our supervisory
powers to prescribe that the procedures set forth below be
followed when counsel is appointed to represent a defendant who
is appealing the denial of postconviction relief.3
a. Duty of appellate counsel
When a Court of Appeal exercises its authority to appoint
counsel to represent a defendant appealing from the denial of
postconviction relief (Cal. Rules of Court, rule 8.300(a)(1)), that
counsel has three duties.
3 In setting forth these procedures, we do not reach the
question of whether they are sufficient when the sentence
imposed was death. “[D]eath is different” (Gregg v. Georgia
(1976) 428 U.S. 153, 188), and may well alter the interests at
stake and hence the calculus of assessing which procedures must
be followed.
17
First, counsel must independently review the “entire
record” and “thoroughly research the law.” (Phoenix H., supra, 47
Cal.4th at p. 840; Sade C., supra, 13 Cal.4th at p. 974.) Once
counsel has done so, he or she must assess whether there are any
reasonably arguable issues—that is, any non-frivolous issues—to
present on appeal as to how the trial court erred. (Smith, supra,528 U.S. at p. 282 [noting how “the Wende procedure . . . defin[es]
arguable issues as those that are not frivolous”].)
Second, and if counsel determines that there are no
reasonably arguable issues to present on appeal, counsel must
file a brief with the Court of Appeal setting forth (1) a brief
statement of the pertinent procedural history of the case, (2) a
brief summary of the pertinent facts, (3) counsel’s declaration
that there are no reasonably arguable issues to present on
appeal, and (4) counsel’s affirmation that he or she remains ready
to brief any issues at the request of the Court of Appeal. We
recognize that requiring counsel to declare that there are no
reasonably arguable issues is asking counsel to navigate between
Scylla and Charybdis—that is, to walk gingerly between duty of
counsel to zealously advocate for her client (McKenzie, supra, 34
Cal.3d at p. 631) and her concomitant duty to the court not to
present frivolous arguments. (McCoy v. Court of Appeals, Dist. 1
(1988) 486 U.S. 429, 436-437; accord, Smith, supra, 528 U.S. at
pp. 281-282 [so noting].) Although some cases suggest that a
declaration by counsel that there are “no arguable issues”
automatically disqualifies counsel (Anders, supra, 386 U.S. at p.
744) or is unnecessary because it is implied by the filing of the
brief itself (Wende, supra, 25 Cal.3d at p. 442), Wende rejected
that view and held that counsel may expressly inform the court
regarding the non-existence of any reasonably arguable issues
18
(ibid.). To create a clear record, we require counsel to so state
and to remain available to brief any issues. (E.g., In re J.S.,
supra, 237 Cal.App.4th at p. 456-457.) We will not require
counsel to set forth the “applicable law” in the brief because (1)
the cases requiring counsel to do so in first appeals of right do not
uniformly require counsel to do so (cf., Feggans, supra, 67 Cal.2d
at p. 447 [pre-Wende case requiring counsel to set forth “a
statement of the facts and applicable law”]), especially once
counsel has identified no reasonably arguable issues (Wende, at
p. 438 [requiring only a “summary of the proceedings and facts”
when counsel determined there were no “arguable issues”]; Kelly,
supra, 40 Cal.4th at p. 121, fn.3 [same]), and (2) the purpose of
requiring counsel to set forth the “applicable law”—that is, to aid
the Court of Appeal in its independent review of the record
(Feggans, at p. 447; Sade C., supra, 13 Cal.4th at p. 979)—is
irrelevant where, as here, a court has no duty to conduct such a
review.
Third, at the time counsel files the brief, counsel must (1)
inform his or her client that the client has the right to file a
supplemental brief to the Court of Appeal within 30 days, and (2)
provide the client with a copy of counsel’s brief.
b. Defendant’s right to file a supplemental
brief
If counsel files a brief as outlined above, the defendant has
a right to file a supplemental brief. This is a departure from the
“general rule that a represented defendant has no right
personally to present supplemental arguments” to the court
(Kelly, supra, 40 Cal.4th at p. 120), but is warranted here given
the private interests at stake.
19
Even if counsel has notified the defendant of his or her
right to file a supplemental brief, the Court of Appeal must also
do so.
c. Obligations of the Court of Appeal
The Court of Appeal has no independent duty to review the
record for reasonably arguable issues. (Accord, Serrano, supra,
211 Cal.App.4th at pp. 501, 503.)
If the defendant does not file a supplemental brief, the
Court of Appeal may dismiss the appeal as abandoned. This is
because the order appealed from is presumed to be correct (e.g.,
Jameson v. Desta (2018) 5 Cal.5th 594, 608-609), and in the
absence of any arguments to the contrary, ineluctably leads to
the conclusion that the appellant has not carried his or her
burden of proving otherwise (e.g., People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 364). What is more, when an
appeal is dismissed, the court need not write an opinion because
“[n]othing is served by requiring a written opinion when the court
does not actually decide any contested issues.” (Ben C., supra, 40
Cal.4th at p. 544.)
However, if the defendant files a supplemental brief, the
Court of Appeal is required to evaluate any arguments presented
in that brief and to issue a written opinion that disposes of the
trial court’s order on the merits (that is, by affirming, reversing
or other like disposition). (Kelly, supra, 40 Cal.4th at pp. 120,
124.)
III. Application In This Case
Defendant did not file a supplemental brief. In accordance
with the procedures articulated above, we dismiss this appeal as
abandoned.
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DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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