Metropolitan News-Enterprise


Monday, October 17, 2022


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C.A. Justice Raphael Says Colleagues Are Wasting Time

There’s No Need to Review Entire Record in Acting on Appeals From Denials of Post judgment Motions, He Writes


By a MetNews Staff Writer


A Court of Appeal justice on Friday accused his colleagues of wasting the division’s time and resources in combing the record, in response to an appeal from a post judgment motion, to see if some issue could be spotted that the appointed counsel for an inmate missed.

Justice Michael J. Raphael of the Fourth District’s Div. Two expressed his disgruntlement in a dissent to an opinion by Justice Art W. McKinister, in which Presiding Justice Manuel A. Ramirez joined. The opinions were not certified for publication.

That same division has twice considered the issue in published decisions, with differing results. The issue is now before the California Supreme Court.

People v. Wende

In its Oct. 12, 1979 opinion in People v. Wende, the state high court declared that where appointed counsel in an appeal from a conviction finds no arguable issue, the Court of Appeal “itself must expressly determine whether the appeal is wholly frivolous,” entailing a “review of the entire record must be made regardless of whether the defendant has availed himself of the opportunity to submit a brief.”

Although Wende applies only to initial appeals, disagreement has developed among the courts of appeal as to whether there ought to be a review of the entire record in appeals from denial of post judgment motions.

McKinister, in Friday’s opinion, said that a review of the entire record (a task generally relegated to staff attorneys) is a procedure that “provides defendants an added layer of due process while consuming comparatively little in judicial resources.”

He declared:

“[W]e have independently reviewed the record for potential error and find no arguable issues.”

The opinion comes in an appeal by Alex Jennings III from the denial by Riverside Superior Court Judge John D. Molloy of a petition for resentencing.

Raphael’s Dissent

Raphael, a former Los Angeles Superior Court judge, said in his dissent:

“This is defendant and appellant Alex Jennings’ second appeal from a post judgment motion where he raises no issues. We are nevertheless issuing an opinion stating that we have reviewed the whole record and found no potential error. As with the first uncontested appeal, I would dismiss this appeal as abandoned in a brief unpublished order….

“Jennings was convicted of attempted murder after he stabbed a victim. We affirmed Jennings’s attempted murder conviction in 2013….This appeal comes from the denial of Jennings’s petition for resentencing under Penal Code section 1172.6, which applies to some defendants convicted on an imputed-malice murder theory, not to those who themselves kill or attempt to kill.

“Neither Jennings nor his lawyer raised any arguments. There is no need to review the entire record and no need to generate a substance-free opinion. We should instead dismiss the appeal as abandoned.”

The case is People v. Jennings, E079203.

Two Other Cases

In People v. Gallo, decided by the Fourth District’s Div. Two on Nov 19, 2020, Acting Presiding Justice Douglas P. Miller wrote for the majority in embracing a view expressed on Sept. 3 of that year by the district’s Div. Three in People v. Flores. There, Justice Eileen C. Moore said:

“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.

Here, we have reviewed the entire record on appeal and found no arguable issues.”

Miller said in Gallo:

We agree with Flores that dismissal is discretionary, and that we can and should independently review the record on appeal in the interests of justice.

Having reviewed the record, the denial of resentencing was affirmed because the appellant had been the actual killer, ineligible for relief.

Justice Carol D. Codrington signed Miller’s opinion. Justice Frank J. Menetrez dissented, saying:

“No matter how small the record in this case may be, it in no way serves the interests of justice for us to read it to try to find arguable grounds for reversal, just as it would not serve the interests of justice for us to read the record searching for ways to square the circle or turn lead into gold or get blood from a stone….[W]e know without reading the record that it is legally impossible that reversible error was committed in this case. Consequently, reading the record to try to find arguable grounds for reversal serves no legitimate purpose and is undeniably a waste of judicial resources.”

On Dec. 22, 2020, Div. Two expressed the view, in a majority opinion by Raphael in People v. Scott, that “[t]his case is a typical example of a post judgment appeal that could be dismissed as abandoned by a simple order.” On the face of it, the appellant was ineligible for resentencing, he explained, commenting:

“We are obligated to serve the public, and independently reviewing records to craft unneeded opinions in uncontested cases does not do so. Our court system is heavily burdened, but by choosing to issue scores of opinions in cases like this one we are the ones doing the burdening. That burden falls on other litigants.”

Raphael was joined by Menetrez. Miller, the acting presiding justice, dissented from the order of dismissal. , although he said he had independently reviewed the record before determining that the judgment should be affirmed.

 The California Supreme Court on March 17, 2021, granted review.

Review Granted

The Supreme Court has granted review in a number of cases other than Scott which raise the same issue. These include the earlier case of People v. Cole, decided by this district’s Div. Two on Aug. 3, 2020.

Justice Brian M. Hoffstadt wrote that where there is an appeal from a post judgment order, “[t]he Court of Appeal has no independent duty to review the record for reasonably arguable issues” and where “the defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned.”

The Third District Court of Appeal followed Hoffstadt’s approach in its Feb. 22, 2021 decision in People v. Figueras

In People v. Weisner, a Third District case decided last April 4, Justice Harry E. Hull Jr. took a different stance. He said in the majority opinion:

“Once we hold an appeal from a denial of postconviction relief is not subject to Wende review, we then have before us a ‘standard’ appeal from an order denying postconviction relief in which defendant, through counsel, has stated there are no issues that properly can be raised on appeal Under these circumstances, the appeal is abandoned and we will dismiss it.”

Unlike the circumstance where Wende applies, he continued, where the inmate has a right to offer his or her own brief, no such right exists in a non-Wende context, Hull set forth, explaining that “neither the Sixth Amendment nor the due process clause of the Fourteenth Amendment to the federal Constitution furnishes a basis for finding” a right of self-representation on appeal.

“The issues we here consider are pending before our Supreme Court and the court may in the future extend what have become known as ‘Wende procedures’ to appeals such as this one from orders denying postconviction relief. But it must be left up to that court to do so,” he wrote. “Until it does, appeals such as the one presently before us must be considered abandoned and ordered dismissed.”


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