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Third District C.A. Differs With Opinion Calling for Independent Review of Record
Raye Says Appeals Court Has No Duty to Conduct Wende-Like Search to Determine If Appointed Counsel Failed to Spot an Issue Relating to Petition for Resentencing
By a MetNews Staff Writer
The Third District Court of Appeal yesterday voiced disagreement with an opinion of the Fourth District’s Div. Three that declared that an appeals court “can and should” independently comb the record for possible error when appointed counsel finds no arguable basis for reversing an order denying a petition for resentencing.
Yesterday’s decision came in People v. Figueras, 2021 S.O.S. 763. Presiding Justice Vance W. Raye wrote the opinion.
While parting company with the Orange County-based panel in People v. Flores, decided on Sept. 3, Raye indicated agreement with the Aug. 3 opinion by Justice Brian M. Hoffstadt of this district’s Div. Two in People v. Cole. There, the view was expressed that if appointed counsel finds no arguable issue, “this court has the duty to address any issues raised by the defendant but otherwise may dismiss the appeal without conducting an independent review of the record.”
The California Supreme Court on Oct. 14 granted review in Cole.
Limit of Wende
All three opinions say that the independent review required by the California Supreme Court’s 1979 decision in People v. Wende applies only to an initial appeal by an indigent defendant. The opinions involve appeals from orders denying resentencing of murder defendants pursuant to Penal Code §1170.95 which has changed the scope of the felony murder rule and the natural and probable consequences doctrine.
In Flores, Justice Eileen C. Moore wrote:
“This is not defendant’s first appeal as a matter of right; therefore, we are not required to independently review the record….However, we have found no legal authority that prohibits us from conducting such an independent review in the interests of justice.”
She went on to say:
“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. That is, although it is not required under law, we think an appellate court can and should independently review the record on appeal when an indigent defendant’s appointed counsel has filed a Wende brief in a postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of whether the petitioner has filed a supplemental brief).”
Raye’s Opinion
Raye countered in a footnote in yesterday’s opinion:
“Certainly, an appellate court is free to correct error whenever and however it is discovered. However, we agree with Cole that appellate courts are not obligated to routinely conduct the searching review contemplated by Wende. Despite the importance of the private interest at stake, that interest is outweighed by the fiscal and administrative burdens imposed on the courts by conducting such independent review, and by the low risk of an erroneous decision if an independent review of the record is not conducted.”
The appellant, Luis Juan Figueras, did not file a brief after his appointed lawyer advised the court that he could find no arguable issue, and the appeal was dismissed, as abandoned, on May 29. Figueras petitioned for a rehearing, arguing that an independent review was required, which was granted on June 22.
He filed two supplemental briefs which apparently only addressed the issue of whether san independent review is required. Raye wrote:
“After supplemental briefing, we again conclude the appeal has been abandoned, and accordingly again dismiss the appeal.”
Also yesterday, the First District’s Div. Four denied an independent review of the record to a defendant appealing from an order finding that he violated a condition of his post release community supervision. In a published portion of the opinion, Justice Alison M. Tucher said:
“This appeal is not subject to Wende review… because it is not a direct appeal from a judgment of conviction.”
The case is People v. Freeman, A160437.
Copyright 2021, Metropolitan News Company