People v. Williams, B311161

Defendant Keith A. Williams was convicted of robbery and burglary in 1996 and sentenced to 35 years to life, largely under the Three Strikes law.
In early 2021 Williams filed a Penal Code §1170(d)(1) petition to modify/recall his sentence, arguing prosecutorial charging/sentencing policies and his prison conduct supported relief.
The trial court denied the petition as untimely and not accompanied by the required recommendation; no counsel was appointed for the petition in the trial court.
Williams appealed; the California Appellate Project (CAP) appointed counsel who filed an opening brief invoking People v. Serrano procedures and stating the appeal was from an order after judgment affecting substantial rights (§1237(b)).
Appellate counsel did not cite published authority (e.g., People v. Chlad) holding that orders denying §1170(d) motions in similar circumstances are nonappealable; the court sua sponte identified that authority and asked counsel to explain.
The Court of Appeal held the order was nonappealable, dismissed the appeal for lack of jurisdiction, and criticized counsel for failing to disclose adverse controlling authority in violation of Rule of Professional Conduct 3.3(a)(2).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an order denying a §1170(d)(1) motion (untimely/lacking recommendation) is appealable	No respondent brief; court’s research: precedent finds such denials nonappealable	Williams: appeal is from an "order after judgment affecting substantial rights" under §1237(b); asked for Serrano procedures	Order is nonappealable; appeal dismissed for lack of jurisdiction
Whether appointed counsel violated duty to disclose controlling adverse authority to the court	No respondent argument; court required counsel to cite adverse on‑point authority	Counsel: he did not advocate that the appeal was proper and relied on Wende/Feggans to avoid conceding frivolousness	Counsel violated duty of candor (Rules Prof. Conduct, rule 3.3(a)(2)) by failing to cite known adverse authority; disclosure is required even while advocating for client
Whether Wende/Feggans permit counsel to avoid citing adverse authority or to refrain from withdrawing	—	Counsel: Wende/Feggans allow counsel to remain and avoid stating appeal is frivolous, so he should not cite adverse authority or withdraw	Wende/Feggans do not excuse nondisclosure; counsel must cite adverse controlling law and may argue to distinguish or, if no responsible argument exists, should withdraw

People v. Chlad, 6 Cal.App.4th 1719 (Cal. Ct. App. 1992) (denial of §1170(d) motion when trial court lacks jurisdiction is nonappealable)
People v. Torres, 44 Cal.App.5th 1081 (Cal. Ct. App. 2020) (order denying motion to vacate or modify sentence is nonappealable if trial court lacked jurisdiction)
People v. Wende, 25 Cal.3d 436 (Cal. 1979) (appointed counsel may remain on frivolous appeals without seeking leave to withdraw under certain circumstances)
People v. Feggans, 67 Cal.2d 444 (Cal. 1967) (defense counsel must prepare a brief discussing facts and applicable law and may seek to withdraw if appeal is frivolous)
People v. Serrano, 211 Cal.App.4th 496 (Cal. Ct. App. 2012) (procedure for appointed counsel who finds no arguable issues to file a brief and invite defendant to file a supplemental brief)
People v. Cole, 52 Cal.App.5th 1023 (Cal. Ct. App. 2020) (discussing the scope and consequences of Serrano supplemental briefing)
In re Clark, 5 Cal.4th 750 (Cal. 1993) (order denying habeas corpus is not appealable)