58 Cal.App.5th 1127
Cal. Ct. App.2020Background
- Derrick Anthony Scott was convicted in 2009 of attempted murder (and related lesser offenses) based on aiding-and-abetting instructions; not convicted of murder.
- After Senate Bill No. 1437 created Penal Code § 1170.95 (retroactive review for some murder convictions), Scott filed a § 1170.95 petition in 2019; the trial court denied relief.
- On appeal, appointed counsel filed a Wende brief asserting no arguable issues; Scott declined to file a supplemental brief.
- The Court of Appeal applied the division’s prevailing practice (the Serrano rule) and dismissed the appeal as abandoned, concluding Scott was ineligible for § 1170.95 relief as a matter of law.
- The court explained its preference for concise unpublished dismissal orders in uncontested postjudgment appeals—citing resource burdens—while noting discretion to conduct full review when warranted; a separate concurrence/dissent urged broader independent review in the interests of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellate court must perform a Wende-style independent record review in a postjudgment appeal when counsel files a brief raising no issues | People: Serrano rule permits dismissal as abandoned; no mandatory independent review in postjudgment context | Scott / dissent: appellate court should independently review the record in interests of justice (protect liberty) | Court: Wende review is not required in postjudgment appeals; dismissal as abandoned is permissible though review remains discretionary |
| Whether § 1170.95 relief is available to a defendant convicted of attempted murder by aiding and abetting | People: § 1170.95 applies only to murder convictions premised on felony-murder or natural-and-probable-consequences theories; Scott is not eligible | Scott: (sought relief under § 1170.95) | Court: Scott is ineligible as a matter of law—§ 1170.95 applies only to murder and his conviction was attempted murder by aiding/abetting |
| Whether the court should issue a full written opinion or a concise unpublished dismissal order in uncontested postjudgment appeals | People / majority: resource and docket concerns justify concise dismissal orders for uncontested appeals | Dissent / Flores: liberty interests and low marginal burden justify independent review and written opinions in some postjudgment cases | Court: Prefer concise unpublished dismissal orders for uncontested appeals; reserve written opinions for contested appeals or when a justice deems review necessary |
Key Cases Cited
- People v. Wende, 25 Cal.3d 436 (Cal. 1979) (established duty to review record on first appeal as of right when counsel finds appeal frivolous)
- In re Sade C., 13 Cal.4th 952 (Cal. 1996) (distinguishing Wende review as limited to first appeals as of right)
- People v. Serrano, 211 Cal.App.4th 496 (Cal. Ct. App. 2012) (endorsing dismissal-as-abandoned rule for postjudgment appeals when no issues raised)
- People v. Cole, 52 Cal.App.5th 1023 (Cal. Ct. App. 2020) (applied Serrano rule to § 1170.95 appeals)
- People v. Flores, 54 Cal.App.5th 266 (Cal. Ct. App. 2020) (held appellate court may independently review postjudgment § 1170.95 appeals in interests of justice)
- Conservatorship of Ben C., 40 Cal.4th 529 (Cal. 2007) (noting counsel’s no-issue brief can provide basis to dismiss without written opinion)
- People v. Love, 55 Cal.App.5th 273 (Cal. Ct. App. 2020) (held § 1170.95 does not authorize relief for attempted murder convictions)