Metropolitan News-Enterprise


Friday, September 4, 2020


Page 1


Court of Appeal:

Independent Review Should Be Conducted in Resentencing Bid

Opinion Says Wende Review Is Not Mandated Where Defendant Seeks Postjudgment Relief, But Should Take Place in Interests of Justice; Conflicts With Aug. 3 Decision


By a MetNews Staff Writer


A court of appeal can and should conduct an independent review of the record where a criminal defendant seeks resentencing based on a change in law regarding the felony murder rule and appointed counsel is unable to spot any arguable issues, Div. Three of the Fourth District Court of Appeal declared yesterday.

The approach contrasts with that taken on Aug. 3 by Div. Two of this district’s Court of Appeal.

Justice Eileen C. Moore wrote yesterday’s opinion. It affirms an order by Orange Superior Court Judge Kimberly Menninger denying a motion by Alberto Flores for resentencing pursuant to Penal Code §1170.95.

Statutory Provision

That section, effective Jan. 1, 2019, provides that “[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”

The obligation of the Court of Appeal to conduct an independent review where an indigent defendant’s appointed lawyer files a brief stating an inability to present any arguments for reversal was established by the California Supreme Court in its 1979 decision in People v. Wende. That court’s 2007 opinion in Conservatorship of Ben C. the duty to undertake an independent examination to a defendant’s “first appeal.”

Flores’s 2002 murder conviction was affirmed by the Court of Appeal in 2004.

First Impression

Moore wrote:

“In a matter of first impression, we hold that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice.”

The jurist noted that “there is nothing preventing an appellate court from implementing its own procedures in the interests of justice,” and pointed to its inherent and supervisory powers.

Elaborating on why a court of appeal “should” conduct such a review, she said:

“When we weigh the paramount liberty interests of the petitioner, the modest fiscal and administrative burdens to the courts, and the possible (while presumably low) risk of a petitioner’s unlawful incarceration due to an unreviewed meritorious issue on appeal, we lean toward caution.”

Menninger found that Flores does not qualify for resentencing because he was not convicted under the felony murder rule or based on a theory liability of aiders and abettors based on the natural and probable consequences of their acts.

Moore said that after conducting an independent review, no arguable issues emerge.

The case is People v. Flores, 2020 S.O.S. 4342.

Hoffstadt’s Opinion

Justice Brian M. Hoffstadt wrote the Aug. 3 opinion in People v. Cole, in which an appeal from a denial of a motion pursuant to §1170.95 was dismissed.

There, the appointed lawyer filed a Wende brief, the defendant was advised of his right to file his own brief, and didn’t.

Hoffstadt said that where such a brief is filed relating to a postjudgment motion, “[t]he Court of Appeal has no independent duty to review the record for reasonably arguable issues.”

He continued:

“If the defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned. This is  because the order appealed from is presumed to be correct…, and in the absence of any arguments to the contrary, ineluctably leads to  the conclusion that the appellant has not carried his or her  burden of proving otherwise…What is more, when an  appeal is dismissed, the court need not write an opinion….”

If a supplemental brief is filed, Hoffstadt, added, “the Court of Appeal is required to evaluate any arguments presented in that brief and to issue a written opinion that disposes of the trial court’s order on the merits (that is, by affirming, reversing or other like disposition).”


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