Andrew B., In re

• Decision Date: 30 November 1995
• Docket Number: No. G017193,G017193
• Citation: 47 Cal.Rptr.2d 604,40 Cal.App.4th 825
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9184, 95 Daily Journal D.A.R. 15,977 In re ANDREW B. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT B., Defendant and Appellant.

Page 604

47 Cal.Rptr.2d 604

40 Cal.App.4th 825, 95 Cal. Daily Op. Serv. 9184,

95 Daily Journal D.A.R. 15,977

In re ANDREW B. et al., Persons Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT B., Defendant and Appellant.

No. G017193.

Court of Appeal, Fourth District, Division 3, California.

Nov. 30, 1995.

Linda M. Fabian, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Terry C. Andrus, County Counsel, and Margaret E. Eastman, Deputy County Counsel, for Plaintiff and Respondent.

Harold F. LaFlamme, Santa Ana, under appointment by the Court of Appeal, for Minors.

CROSBY, Associate Justice.

Is the Court of Appeal compelled, per Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, its progeny, and People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, to independently review the record when appointed counsel in a juvenile dependency appeal brought as a matter of statutory right submits a brief that does not argue against the client, but advises the appellate court no issues were found to raise on the client's behalf? Yes.

I

The juvenile court terminated dependency jurisdiction over these three siblings on January 17, 1995, and granted their mother sole legal and physical custody. Father Herbert B. exercised his statutory right to appeal; and because he is presently unable to afford counsel, this court appointed an attorney to represent him (Welf. & Inst.Code, § 317). The record was prepared at no cost to the father (Welf. & Inst.Code, § 395). His attorney filed an opening brief setting forth the facts of the case. She did not argue against her client, but advised she found no issue to assert on his behalf and asked this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071; In re Joyleaf W. (1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114; In re Brian B. (1983) 141 Cal.App.3d 397, 190 Cal.Rptr. 153; In re Jesse H. (1981) 126 Cal.App.3d 1048, 178 Cal.Rptr. 205.)

Pursuant to an invitation by this court, Herbert filed a brief in his own behalf. He raised no issue that could be cognizable on an appeal from a judgment terminating dependency jurisdiction.

Under Wende procedures that have long been mainstays of the Court of Appeal throughout the state, we dispensed with full briefing on behalf of the other parties (the Orange County Social Services Agency, the minors, and appellant's former spouse) and with oral argument and independently reviewed the record. We have found no arguable issue.

But the obligation to conduct Wende review in dependency appeals is no longer universally accepted by California appellate jurists, and the Supreme Court has agreed to put an end to the current difference of opinion. ¹ Because the issue is one of continuing public interest, we publish this decision.

II

We readily admit to an essentially blind acceptance of Wende over the years, not only in criminal appeals, but in juvenile dependency, juvenile delinquency, conservatorship, and paternity appeals as well. ² And the Wende process, as practitioners well know, is customarily a streamlined and swift affair: In the overwhelming number of cases where appointed counsel finds no arguable issue and files a Wende brief, the Court of Appeal, after independently reviewing the record, also fails to discover any arguable issue. No brief is submitted by the client; the respondent's brief, if any, is a pro forma document; and no oral argument is presented.

The written opinion affirms the conviction, but consists of only several boilerplate paragraphs. ³ And this court's decision invariably brings an end to the litigation: We have yet to see a petition for hearing to the Supreme Court after the filing of a Wende opinion. Moreover, our independent review of the record and concurrence with appointed counsel's assessment that the appeal lacks merit shields the attorney from an incompetency charge. (McCoy v. Court of Appeals (1988) 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440; see Welf. & Inst.Code, § 317.) In short, the Wende process results in an opinion that is filed and final much sooner than one in an appeal that proceeds in the more conventional manner.

But attacks on the appellate court's duty of independent review have increased of late, in both frequency and intensity. ⁴ Extensive research convinces us our previously unquestioned acceptance of Wende in the non-criminal contexts listed above is compelled. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) We also believe it is cost effective.

Moreover, the salvos directed against the Anders/ Wende mandate for independent examination of the record by the reviewing court are misplaced. The duty of independent review is just the small tip of a very large iceberg called "right to counsel." Rejecting an overly broad and contrary statement by our colleagues in another district, we hold that Anders/ Wende procedures are required simply because there is a right to appointed counsel. This right is not the sole criterion, of course; but without it, the Anders/ Wende procedures cannot be triggered. In short, so long as attorneys are appointed to represent indigents in appeals guaranteed as of right to rich and poor alike, so long as indigent criminal defendants and parents in juvenile dependency proceedings are entitled to the effective assistance of counsel, and so long as those appointed attorneys are required to conduct themselves as advocates, Anders/ Wende review must follow as a matter of course.

III

A Analytical Overview

The Court of Appeal's duty to independently examine the record when appointed counsel finds no arguable issues in an appeal prosecuted as a matter of statutory right has come to be known in California as Wende review; in the rest of the country and in the federal system, the moniker is Anders review. ⁵ But the Anders/ Wende doctrine did not simply spring forth one day as a fully matured legal concept, a la the goddess in Botticelli's Birth of Venus. It was the product of 20 years of jurisprudential Ping Pong between the California and United States Supreme Courts concerning an indigent appellant's federal constitutional right to appointed counsel on a first appeal, allowed as a matter of statutory right.

Preliminarily, we emphasize that Anders/ Wende review is invariably limited to appeals where all the following conditions exist: (1) The indigent appellant is represented by appointed counsel on appeal. (2) The respondent is the state or governmental subdivision. (3) The right to appeal is guaranteed by statute and not discretionary with the reviewing court. ⁶

To date, all the appellants in United States Supreme Court cases involving Anders review have been indigent convicted criminals with a Sixth Amendment right to counsel in the trial court. Although the Anders ball started rolling with the recognition of the Sixth Amendment right (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), Anders review was not developed to vindicate that constitutional guarantee. And we emphatically disagree with the line of authority limiting Anders/ Wende review solely to appeals where the indigent appellant has a constitutional--as opposed to a statutory--right to counsel in the trial court. ⁷

Rather, Anders is triggered whenever appointed counsel in a nondiscretionary first appeal determines, after a careful review of the record, that no arguable issue exists. At that point the attorney--obliged to act as an advocate, but with the ethical obligation not to present frivolous issues to the appellate court--can only file an Anders brief. (Rule 3-200, Rules Prof.Conduct of State Bar.) And the decision to affirm the judgment on the basis no arguable issue exists can only be made by the reviewing court after it examines the record. (Anders v. California, supra, 386 U.S. at p. 744, 87 S.Ct. at p. 1400.)

B Historical Overview

Given the roiling debate concerning the wisdom of Anders and Wende, it is appropriate to begin our analysis with a more comprehensive history of the doctrine and overview of its acceptance in other jurisdictions than is usually found in appellate decisions. ⁸ As already mentioned, an indigent appellant's right to Anders/ Wende review is a natural and necessary consequence of his or her right to the appointment of counsel on appeal. Accordingly, we begin our analysis with the decisions establishing the latter right.

The historical detour includes numerous and frequently lengthy excerpts from United States and California Supreme Court decisions. We include them because they best exemplify the factors critical to the decision we reach today. Similarly, the appendix includes brief quotations from various out-of-state decisions to demonstrate the almost universal acceptance of Anders review.

A few points must be stressed at the outset: (1) Although Wende did not adopt every aspect of the Anders decision, its mandate for independent court review of the record in a criminal appeal was compelled by, and did not extend, Anders. (See, e.g., Penson v. Ohio (1988) 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.) (2) The appellate court's duty to independently review the record was a mainstay of California appellate jurisprudence for at least a generation before Anders.

C Precursors to Wende and Anders

Ulysses Simpson Grant was President and Stanley had only recently located Livingstone in Ujiji when California enacted Penal Code section 1237, guaranteeing every convicted criminal defendant the right to an appeal. But no statute guaranteed the appointment of counsel to prosecute that appeal on behalf of an indigent criminal appellant. And almost 100 years elapsed before the United States Supreme Court determined, "as a matter of constitutional law [that] 'adequate appellate review' is impossible...