In re Kevin, B164799 (Cal. App. 11/6/2003), B164799.

CourtCalifornia Court of Appeals
Writing for the CourtTurner
Docket NumberB164799.
PartiesIn re KEVIN S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEVIN S., Defendant and Appellant.
Decision Date06 November 2003

Page 1

In re KEVIN S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
KEVIN S., Defendant and Appellant.
Court of Appeals of California, Second District, Division Five.
Filed November 6, 2003.

APPEAL from orders of the Superior Court of Los Angeles County, No. TJ10950, Mark R. Frazin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Orders affirmed as modified.

Michele A. Douglass and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Deputy Attorney General, for Plaintiff and Respondent.



Kevin S., a minor, appeals from the juvenile court's January 27, 2003, orders that he remain a ward of the court pursuant to Welfare and Institutions Code1 section 602, subdivision (a), and placing him in a camp program for a period not to exceed three years, eight months. Counsel appointed by us to represent the minor on appeal filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende); see Smith v. Robbins (2000) 528 U.S. 259, 264 (Smith).) On August 21, 2003, we advised the minor he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. No response was received.

We asked the parties to brief two questions. First, we requested briefing as to whether Wende—outlining procedures designed to protect an indigent adult criminal defendant's Fourteenth Amendment right to appointed counsel on appeal—applies to an appeal in a juvenile delinquency matter. Second, we requested briefing as to whether the juvenile court correctly calculated the minor's predisposition credit. In the published portion of this opinion, we conclude a delinquency proceeding is sufficiently similar in substance and import to a criminal prosecution that indigent juveniles, like criminal defendants, are entitled pursuant to the Fourteenth Amendment of the United States Constitution to appointed counsel on a first appeal as of right. Consequently, a Wende brief was properly filed in this case. Pursuant to Wende, we then were required to conduct an independent evaluation of the record for error. Additionally, in the unpublished portion of this decision, we find the minor received inadequate custody credit for his predisposition detentions. We modify the juvenile court's orders to award the minor 333 days of predisposition credit. We affirm the juvenile court's January 27, 2003, orders in all other respects.


A. An Indigent Minor Adjudged a Juvenile Delinquent has a Fourteenth Amendment Right to Appointed Counsel on a First Appeal and Therefore the Procedures Set Forth in Wende Apply to this Case

Pursuant to what is apparently an unwritten practice, reflected primarily in unpublished opinions, the California Courts of Appeal have for many years accepted Wende briefs in appeals from juvenile delinquency cases. (See, e.g., In re Brittany L. (2002) 99 Cal.App.4th 1381, 1385-1386; In re Edward S. (1982) 133 Cal.App.3d 154, 157-158.) However, no published California decision has discussed whether Wende in fact applies to an appeal in a juvenile delinquency matter. As noted earlier, we asked the parties to address that question in this case.

1. The extent of an indigent criminal defendant's right to appointed counsel on appeal

a. Griffin and Douglas

We first consider the federal constitutional right to counsel on appeal as it relates to indigent adult criminal defendants. There is no federal constitutional right to appeal in a criminal case. (Abney v. U.S. (1977) 431 U.S. 651, 656; McKane v. Durston (1894) 153 U.S. 684, 685-689.) A state is not obligated, under the Fourteenth Amendment, to provide an appeal for a criminal defendant. (Abney v. U.S., supra, 431 U.S. at p. 656; Griffin v. Illinois (1956) 351 U.S. 12, 18 (plur. opn. of Black, J.).) However, where a state grants appellate review, it may not discriminate against some convicted defendants because of their poverty. (Griffin v. Illinois, supra, 351 U.S. at p. 18.) In Griffin, the United States Supreme Court plurality held adult defendants' Fourteenth Amendment due process and equal protection guarantees were violated when indigents could not secure appellate review because they were too poor to purchase transcripts of the trial court proceedings. (Id. at pp. 16-18.) Justice Black reasoned: "But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations." (Id. at p. 18.) The plurality further noted, "There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance." (Ibid.)

The duty of a state to provide an indigent criminal defendant appointed counsel on a first appeal granted as a matter of right was established in Douglas v. California (1963) 372 U.S. 353, 357. The Supreme Court emphasized it was addressing only the issue of the constitutionally guaranteed access to counsel for indigents during a first appeal granted as a matter of right. (Id. at p. 356.) In Douglas, the United States Supreme Court held an adult indigent criminal defendant has a constitutional right, under the Fourteenth Amendment, to the assistance of counsel on a first appeal as of right; "fair procedure" and "equality" demand that the indigent be given the benefit of counsel. (Id. at pp. 357-358.) Discussing the counsel issue solely in the context of a first appeal as a matter of right, the Supreme Court explained: to deny counsel on appeal to an indigent defendant would result in "a discrimination at least as invidious as that condemned in [Griffin]" (id. at p. 355); "For there can be no equal justice where the kind of an appeal a [woman or a] man enjoys `depends on the amount of money [she or] he has,' (Griffin v. Illinois, supra, [351 U.S.] at p. 19 [])" (Douglas v. California, supra, 372 U.S. at p. 355); "[T]he type of appeal a person is afforded" cannot be allowed to "hinge[] upon whether or not he [or she] can pay for the assistance of counsel" (id. at pp. 355-356); and to allow a criminal defendant's appeal to be decided without benefit of an attorney on account of poverty would be "a denial of due process or an `invidious discrimination.'" (Id. at pp. 355-357.) As it did in Griffin, the court in Douglas cited the risk that one may be deprived of life, liberty or property: "`When society acts to deprive one of its members of his [or her] life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.' Coppedge v. United States [(1962)] 369 U.S. 438, 449 []." (Douglas v. California, supra, 372 U.S. at p. 357, fn. 2.)

The Supreme Court has explained the Griffin and Douglas analyses as follows: "The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment. Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. `Due process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. `Equal protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable." (Ross v. Moffitt (1974) 417 U.S. 600, 608-609, fn. omitted; accord, Bearden v. Georgia (1983) 461 U.S. 660, 665.) The Supreme Court has described the relationship between the two clauses in Griffin and its progeny, "Due process and equal protection principles converge in this Court's analysis in these cases." (Bearden v. Georgia, supra, 461 U.S. at p. 665; accord, Evitts v. Lucey (1985) 469 U.S. 387, 403.) Later, the Supreme Court explained: "A `precise rationale' has not been composed, Ross, 417 U.S., at 608 [], because cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' Bearden, 461 U.S., at 666 []. Nevertheless, `[m]ost decisions in this area,' the Court has recognized, `res[t] on an equal protection framework,' id., at 665 [], . . . for due process does not independently require that the State provide a right to appeal. . . ." (M.L.B. v. S.L.J. (1996) 519 U.S. 102, 104.)

Regardless of the lack of absolute theoretical certitude of the Supreme Court's precise analysis, it is clear the due process and equal protection principles articulated the Griffin plurality and Douglas majority opinions require that as a practical matter a criminal defendant be provided with effective merits related appellate review. In Smith v. Robbins, supra, 528 U.S. at pages 276-277, the Supreme Court held: "[T]he two Clauses . . . require that a State's procedure `affor[d] adequate and effective appellate review to indigent...

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