Metropolitan News-Enterprise


Thursday, June 29, 2017


Page 1


C.A. Panel Withdraws Threat to Appellants’ Counsel

Div. Six of This District Removes Warning From an Opinion That Lawyers Who Challenge Sentences Within Judges’ Discretion Face Sanctions


By a MetNews Staff Writer


The Ventura-based panel of this district’s Court of Appeal yesterday rescinded its threat to impose sanctions on appellate lawyers who appeal sentences that are within the trial court’s discretion.

At the outset of the opinion, as it read when it was filed on June 8, this admonishment appeared in a footnote:

“The appeal is frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) We may impose sanctions for a frivolous criminal appeal. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 738, fn. 16.) We elect not to do so here. But counsel is warned that in the future we may impose sanctions where a criminal appeal is maintained despite an insurmountable procedural bar or contrary to long-standing precedent precluding an appellate court from “second guessing” the lawful exercise of sentencing discretion.”

Modification of the opinion was sought not only by the appellant’s lawyers, Alan Eisner and Dmitry Gorin of Eisner Gorin, but by the Los Angeles County Public Defender’s Office, the California Appellate Defense Council, and the California Appellate Project.

Yesterday’s order excises “footnote 1” from the opinion.

It also adds further discussion concerning the defendant having waived his challenge to the eight-year sentence by virtue of his attorney not objecting at the time the sentence was rendered.

Concurring Opinion Added

The opinion was authored for Div. Six by Acting Presiding Justice Kenneth Yegan, and was joined in by Justices Steven Z. Perren and Martin T. Tangeman. The order modifying the opinion adds a concurring opinion by Yegan.

Retreating from his position that the appeal filed in the case by Eisner and Gorin was frivolous, he now addresses a hypothetical scenario of privately retained counsel filing a meritless appeal in a criminal case.

Writing for himself, he said:

 “We do not rule or opine that the instant appeal is frivolous. The appeal [judgment] is easily affirmed by the application of long standing rules. But in my view, the appeal raises the hypothetical issue of the proper role of retained counsel in a criminal appeal.”

Rhetorical Question

He asked: “What should retained counsel in a criminal appeal do when he or she examines the record and determines that the appeal is not only without merit but that—citing language from Flaherty—“‘no reasonable attorney could have thought it meritorious...’[?]”

Yegan answered:

“Such an appeal is ‘frivolous.’ ”

The jurist continued:

“There is a statutory right to appeal and counsel is duty bound to represent his or her client. At the same time, counsel is an officer of the court and is duty bound not to maintain or continue a ‘frivolous’ proceeding.”

Third District Opinion

He pointed to a 1992 decision from the Third District saying that in that circumstance, a retained lawyer should suggest the appeal be dropped, advise the client to get another lawyer, or move for leave to withdraw.

The jurist noted that the “Wende procedures”—requiring court-appointed counsel who can find no arguable issues to say so in a Wende brief—“do not apply to retained counsel.”

Yegan observed, however:

“This does not mean that a defendant with financial resources to retain counsel has the right to maintain or continue a ‘frivolous’ proceeding.”

There is, he declared, a duty not to do so.

The defendant, Gary Wayne Sperling, pled guilty to sodomy and oral copulation of a woman, identified as “Amanda,” who, owing to her mental retardation, was incapable of giving consent. Leniency was sought at the sentencing hearing based on Sperling, 68, suffering from Parkinson’s disease and back pain.

Yegan said that Sperling “is fortunate that he was not sentenced to prison for the maximum 10-year term.”

Sealed Brief

Last September, Eisner attempted to file the opening brief under seal, along with a publicly filed redacted brief. The court ordered the briefs returned to him, and six days later he filed the brief publicly.

The order said:

“The facts of the crime and appellant’s medical condition, which he placed in issue, are not confidential. The victim is appropriately referred to in the unredacted opening brief by her initials. Thus, no confidential information appears in the unredacted opening brief. Accordingly, appellant’s motion is denied.”

It did specify that confidential documents—the probation report and psychological reports—not be made public.

The case is People v. Sperling, B272275.

Deputy Attorneys General Noah P. Hill and David A. Voet acted for the People.


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