People v. Brigham

• Citation: 25 Cal.3d 283,157 Cal.Rptr. 905
• Decision Date: 07 September 1979
• Docket Number: Cr. 20766
• Parties: , 599 P.2d 100 The PEOPLE, Plaintiff and Respondent, v. Fred David BRIGHAM, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 905

157 Cal.Rptr. 905

25 Cal.3d 283, 599 P.2d 100

The PEOPLE, Plaintiff and Respondent, v. Fred David BRIGHAM, Defendant and Appellant.

Cr. 20766.

Supreme Court of California.

Sept. 7, 1979.

Rehearing Denied Oct. 18, 1979.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ezra Hendon and Gary S. Goodpaster, Chief Asst. State Public Defenders, Richard Phillips, Laurance S. Smith and Gretchen T. Dumas, Deputy State Public Defenders, for defendant and appellant.

Michael D. McGlinn, San Diego, and Robert Seligson, San Francisco, as amici curiae on behalf of defendant and appellant.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Nelson P. Kempsky, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This court must decide (1) whether a litigant has a right to oral argument on appeal, and (2) whether an instruction embodying former CALJIC No. 22 (rev.) may be properly given in a trial.

I

This appeal is from a conviction for two counts of robbery (Pen.Code, § 211) and one count of attempted robbery (Pen.Code, §§ 664, 211). Only one issue was raised in the Court of Appeal in appellant's brief. He claimed the court had erred in giving former CALJIC No. 22 (rev.) along with the standard instruction defining proof "beyond a reasonable doubt" (former CALJIC No. 2.90 (3d ed. 1970); see now CALJIC No. 2.90 (1979 rev.).) ¹ The Court of Appeal upon the motion of the Attorney General granted summary affirmance of appellant's conviction. Appellant requested but was denied oral argument. This petition followed.

Does a Court of Appeal have the power to decide an appeal on its merits without affording counsel for appellant an opportunity for oral argument on the issues presented? The right to oral argument on appeal is recognized in the California Rules of Court, the Penal Code, the state Constitution, and prior decisions of this court.

Rule 22 of the California Rules of Court provides: "Unless otherwise ordered: (1) counsel for each party shall be allowed 30 minutes for oral argument; (2) not more than one counsel on a side may be heard except that different counsel for the appellant or the moving party may make opening and closing arguments; (3) each party and intervener who appeared separately in the court below may be heard by his own counsel; and (4) the appellant or the moving party shall have the right to open and close." ²

The drafter of rule 22 has recognized the right to present oral argument. "The right of counsel to argue a cause orally before the reviewing court is implicit in Rule 22 and Rule 28(f). ³ Generally speaking, the right exists in any appeal or original proceeding which is considered on the merits and decided by a written opinion . . . ." (Witkin, New California Rules on Appeal, part two (1944) 17 So.Cal.L.Rev. 232, 243-244, fn. omitted.) ⁴

The implicit right to oral argument on appeal found in the Rules of Court ⁵ is buttressed by the provisions of Penal Code section 1254. "Upon the argument of the appeal, if the offense is punishable with death, two counsel must be heard on each side, if they require it. In any other case the Court may, in its discretion, restrict the argument to one counsel on each side." (Pen.Code, § 1254.) Implicit in the wording of this statute is the fact that at least one counsel on each side must be allowed to orally argue his or her case in all noncapital appeals.

In People v. Medina (1972) 6 Cal.3d 484, 489, 99 Cal.Rptr. 630, 633, 492 P.2d 686, 689, this court explicitly stated that oral argument on appeal was a "right." "Important incidents of the right to appeal from a superior court's judgment are the right to present oral argument in the appellate court (see Pen.Code, § 1254; Cal.Rules of Court, rules 22, 30) . . . ." (See also, People v. Getty (1975) 50 Cal.App.3d 101, fn. 3, 106 at p. 107, 123 Cal.Rptr. 704; Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 230-231, 124 Cal.Rptr. 427.)

Forty years ago, a rule of court which authorized summary affirmances of judgments in Civil cases was repealed. Former rule V, section 3, adopted in 1932 and repealed in 1939, read in pertinent part: "At any time after the filing of the opening brief of an appellant in a civil action, the respondent may, upon due notice, move for a dismissal of the appeal or an affirmance of the judgment or order on the ground that the appeal was taken for delay only or that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument." ⁶

"(A)dopted under the supposition it would facilitate the weeding-out . . . of appeals presenting no substantial question, and thereby alleviate the crowded condition of the appellate court calendars . . ., on the whole, the conditions brought about by the rule were unsatisfactory and the burden on the courts was increased rather than lightened, with no practical benefit to the litigants." (Whitworth, Reasons for Repeal of Appellate Court Dismiss-or-Affirm Motion Explained (1939) 14 State Bar J. 334, 335.) Appellate justices found themselves having to review briefs twice, once on motion for summary affirmance and again at the time of oral argument. When section 3 of former rule V was repealed, it was noted that "the summary affirmance of judgments is likely at an end . . . ." (Id., at p. 336.)

The Constitution of the State of California recognizes a right to oral argument on appeal. Article VI, section 3 provides that: "(c)oncurrence of 2 judges present at the argument is necessary for a judgment" by the Court of Appeal. Adopted in November 1966, this provision evolved from former article VI, section 4a which read, "the concurrence of two justices shall be necessary to pronounce a judgment." The phrase "present at the argument" was added in 1966 to ensure that article VI, section 3 was "parallel" with article VI, section 2, which governed the Supreme Court. ⁷ (Cal.Const.Revision Com., Proposed Revision of arts. III, IV, V, VI, VII, VIII, and XXIV of the Cal. Constitution (Feb. 1966) at p. 86.)

In Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463, 122 P.2d 257, this court recognized that article VI, section 2 had to be complied with if a valid appellate judgment on the merits was to be handed down by the Supreme Court. "(T)he right to oral argument in matters on the calendar in open sessions of the court has always been accorded and the necessity for the concurrence of four members of the court who were present at the argument in pronouncing judgment in the cause has always been scrupulously adhered to and enforced." (Id., at p. 468, 122 P.2d, at p. 259.) However, a vote to rehear a case was Not to be construed as a judgment on the merits, so article VI, section 2 was not applicable.

This court implicitly recognized the right to oral argument in Philbrook v. Newman (1905) 148 Cal. 172, 82 P. 772. In that case, the court held that appellant's failure to appear for argument constituted a waiver. Due to the waiver of oral argument, the court could properly decide the issues presented on the briefs alone. (Id., at pp. 178-179, 82 P. 772.)

Again, implicit recognition of the right to present oral argument was made in Luco v. De Toro (1891) 88 Cal. 26, 27, 25 P. 983. This court had to set aside its own decision in the case because the decision was concurred in by a fourth justice who was not present at argument. Since counsel for appellant had not stipulated to that justice's participation, he had a right to invoke the requirement of article VI, section 2 that the justice be present at oral argument.

The case law, the constitutional provisions, the applicable rules of court and the Penal Code sections all point to one result, the Court of Appeal cannot summarily affirm a criminal conviction without first holding oral argument.

Respondent's cases are inapposite. Brown v. Gow (1932) 126 Cal.App. 113, 14 P.2d 322, involved the now repealed section 3 of former rule V as it applied to a Civil case. At the time, the state Constitution did not require the presence of the justices at oral argument before a judgment could be rendered by the Courts of Appeal. Similarly, in People v. Sumner (1968) 262 Cal.App.2d 409, 69 Cal.Rptr. 15, the court dismissed appellant's appeal after relieving appointed counsel under the procedures outlined in Anders v. California (1967) 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 and People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21. (People v. Sumner, supra, 262 Cal.App. at p. 410, 69 Cal.Rptr. 15.) Then, when appellant failed to file any brief, he was notified by the court that his appeal would be dismissed unless a brief were received within 30 days. He failed to respond and the court reviewed appellant's petition for a writ of error Coram nobis, found his contentions wholly frivolous, and only then dismissed the appeal. (Id., at pp. 415-416, 69 Cal.Rptr. 15, 19.) The court drew the line "between a frivolous appeal and one which simply has no merit." Id., at p. 415, 69 Cal.Rptr., at p. 20.) It went on to hold that courts should not dismiss an appeal as frivolous except "in all but the clearest of cases." This rare occurrence would be present if appellant and his counsel were unable to find any arguable issue And the Court of Appeal agreed after its own careful review.

In the present case, the Court of Appeal found appellant's claim "theoretically arguable," although "as a practical matter hopeless." Anders and Feggans require appellant's counsel to argue any issue that is arguable. Similarly, the appellate court had an obligation to hear the arguable argued. Appellant's counsel never sought to withdraw from the case for lack of an arguable issue as was the situation in Sumner.

People v. Browning (1978) 79 Cal.App.3d 320, 145 Cal.Rptr. 45, is cited by respondent as support for the procedure...