People v. DelgadilloPeople v. Delgadillo
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
The Court of Appeal found that it has no duty to independently review an order denying a petition for postconviction relief under
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
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 (
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. (
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
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
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
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 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
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
”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, 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
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
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
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
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
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
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
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
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
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
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
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
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.”
Nevertheless, we determine, based on our independent review of the record, that Delgadillo is not entitled to any relief under
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.