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California Supreme Court:
Wende Does Not Apply Where Counsel Cannot Find Arguable Basis for §1172.6 Resentencing
By a MetNews Staff Writer
The California Supreme Court declared yesterday that where appointed counsel for an inmate convicted of murder advises a court of appeal that there is no arguable basis for an appeal from a denial of resentencing under Code of Civil Procedure §1172.6, no independent review of the entire record need take place.
People v. Wende, handed down by the high court in 1979, only requires such a review in connection with “the first appeal as of right,” Justice Joshua P. Groban said in an opinion for a unanimous court, saying that such Wende review “is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution.”
The appellant, Jose De Jesus Delgadillo, who was convicted of second-degree murder, sought a resentencing pursuant to what was then Penal Code §1170.95 and is now §1172.6. It provides relief where a conviction was founded on now-repudiated theories entailing malice that is fictionally imputed based on the act of another.
Then-Los Angeles Superior Court Judge Katherine Mader on Dec. 9, 2019, denied Delgadillo’s petition, finding that there were no “grounds whatsoever for re-sentencing” because “defendant was the actual and only participant.”
Wende Brief Filed
San Diego attorney Nancy J. King was appointed as appellate counsel on May 3, 2020 by Div. Four of the Court of Appeal for this district. On July 6 of that year, King filed a Wende brief setting forth that she saw no bases for a reversal.
On Nov 18, 2020, Div. Four dismissed the appeal, saying, in an opinion by Justice Thomas L. Willhite Jr. that “the procedures set forth in Wende are not constitutionally compelled if a criminal defendant’s appeal is not his or her initial appeal of right.”
In his opinion affirming that action, Groban said:
“[I]ndependent review does not further an individual’s dignitary interest when counsel has already been given an opportunity to present any arguments, found no issues warranting briefing, and the defendant was notified that counsel found no issues but that the defendant could file supplemental briefing presenting any arguments. We therefore find that the procedures set out in Wende do not apply to Delgadillo’s appeal.”
He specified in a footnote:
“In this case, we are not deciding Wende’s application to other postconviction contexts, which may present different considerations.”
Appellate Procedures Established
Groban’s opinion goes beyond affirming the Court of Appeal’s dismissal of the appeal. The jurist wrote:
“We further exercise our inherent supervisory powers to establish the appellate procedures and the requirements for providing notice to a defendant before a Court of Appeal dismisses an appeal from the denial of a petition under section 1172.6. When counsel submits notice that such an appeal lacks arguable merit, the Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief or letter raising any argument the defendant wishes the court to consider; and if no such supplemental brief or letter is timely filed, the court may dismiss the appeal as abandoned.”
Delgadillo was given notice that King had found no bases for a reversal and that he could submit his own brief, but was not advised that there would not be an independent review and was not warned that if he failed to provide a brief, the appeal would be dismissed as abandoned.
Groban said that while the notice was “suboptimal,” the record shows that Delgadillo “was the actual killer and the only participant in the killing,” so that the felony-murder rule and the natural and probable consequences theory are not implicated and there is no entitlement to relief under the ameliorative statute.
The case is People v. Delgadillo, 2022 S.O.S. 6125.
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