Tuesday, September 12, 2017
C.A. Questions Whether Wende Applies to Appeals From Resentencing Denials
By a MetNews Staff Writer
The Third District Court of Appeal has expressed uncertainty as to whether a defendant seeking resentencing under Proposition 47 is entitled to a Wende review.
“Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967)…apply to an appeal from an order denying a petition brought pursuant to Proposition 47 remains an open question,” Justice Vance Raye wrote in an unpublished opinion Friday. “Our Supreme Court has not spoken.”
The United States Supreme Court in Anders disapproved of California’s system under which counsel appointed for a defendant could file a “no-merit” letter. It held that counsel must assume “the role of an active advocate in behalf of his client, as opposed to that of amicus curiae” but that “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.”
In Wende, the defendant’s appointed lawyer told the Court of Appeal that he found no arguable issues and had advised the defendant he could file a brief himself. The Office of Attorney General argued that the lawyer was compelled by Anders to withdraw.
The California Supreme Court, in its 1979 opinion, rejected the People’s view. It said:
“We believe that counsel may properly remain in the case so long as he has not described the appeal as frivolous and has informed the defendant that he may request the court to have counsel relieved if he so desires.”
It also said that if the appointed lawyer finds no arguable issues, and whether the defendant files a brief or not, the Court of Appeal must “conduct a review of the entire record.”
In Friday’s opinion, Raye said:
“The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals….Nonetheless, in the absence of Supreme Court authority to the contrary, we will adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.
“Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant.”
The defendant, convicted of the unlawful taking of a vehicle, was seeking resentencing, under Proposition 47, as a misdemeanant. Raye noted that the question of whether a sentence for that particular crime is subject to reduction under the proposition is before the California Supreme Court.
He noted that “here relief is precluded in any event for failure to demonstrate that the value of the vehicle did not exceed $950.”
The case is People v. Dickinson, C084882.
Most decisions filed after the Court of Appeal has received a Wende brief recite that the defendant was afforded an opportunity to file a brief and didn’t; provide a brief statement of the facts and procedural history, as required by the state high court’s 2006 decision in People v. Kelly; and declare that after examining the entire record, no arguable issues were spotted and the judgment is affirmed. The opinions are almost invariably short.
On Friday, however, Div. One of the Fourth District Court of Appeal filed a 77-page unpublished opinion in a case where a Wende brief was filed. Writing for the panel, Acting Presiding Justice Patricia D. Benke pointed to two issues.
It was a multi-count theft case. She said a fine must be lowered from $1,542 to $10 because the fine is imposed per “case” and not per “count.”
The case was remanded for a determination as to which members of a theft-ring conspiracy were liable for restitution.
The bulk of the decision addresses three conceivable issues pointed to by counsel, but not labeled “arguable,” and a count-by-count discussion.
That case is People v. Venegas, D069813.
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