People v. Cole

• Citation: 52 Cal.App.5th 1023,267 Cal.Rptr.3d 113
• Decision Date: 03 August 2020
• Docket Number: B304329
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Freddie COLE, Defendant and Appellant.

52 Cal.App.5th 1023

267 Cal.Rptr.3d 113

The PEOPLE, Plaintiff and Respondent,

v.Freddie COLE, Defendant and Appellant.

B304329

Court of Appeal, Second District, Division 2, California.

Filed August 3, 2020

Mark Alan Hart, Northridge, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

HOFFSTADT, J.

This appeal presents a problem that is both commonplace and elusive. When counsel appointed to represent a criminal defendant during the initial appeal of his conviction concludes that there are no reasonably arguable issues to present to the Court of Appeal, People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ) delineates the procedures both counsel and the Court of Appeal are to follow. What procedures apply when the appeal is from the denial of postconviction relief (rather than, as in Wende , the defendant's first appeal of right)? Do Wende ’ s procedures still apply? And if not, on what basis may a Court of Appeal prescribe the procedures that counsel and the court are to follow? A handful of courts have addressed the first question, but the second has yet to be confronted.

We publish to provide our views and guidance on both questions. Taking the second question first, we hold that Wende ’s constitutional underpinnings do not apply to appeals from the denial of postconviction relief; consequently, the procedures we and other courts have prescribed are grounded solely in our supervisory powers to control the proceedings before us. We further hold that, in the exercise of these powers, counsel appointed in such appeals is required to independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are "no arguable issues to raise on appeal"; the defendant has a right to file a supplemental brief; and this court has the duty to address any issues raised by the defendant but otherwise may dismiss the appeal without conducting an independent review of the record. Because the defendant who has appealed the denial of postconviction relief in this case has not filed a supplemental brief, we dismiss this appeal as abandoned.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In 2007, a jury convicted Freddie Cole (defendant) of (1) murder ( Pen. Code, § 187, subd. (a) ),¹ and (2) arson of an inhabited structure (§ 451, subd. (b)). That same year, the trial court sentenced defendant to prison for 35 years to life. This was a "third strike" sentence under our state's Three Strikes Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), plus 10 years because each of his two prior strikes also constituted prior serious felonies (§ 667, subd. (a)(1)); one of defendant's prior "strikes" was also for arson of an inhabited structure. We affirmed his convictions and sentence in 2008. ( People v. Cole (Aug. 7, 2008, B202387) 2008 WL 3123807 [nonpub. opn.].)

II. Procedural Background

In April 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019." In explaining why his murder conviction would be invalid under the 2019 changes to sections 188 and 189, defendant did not check the box alleging that he "was not the actual killer." He also requested counsel.

On January 15, 2020, and after appointing defendant counsel, the trial court summarily denied defendant's petition. Based upon the recitation of facts in our opinion affirming his conviction, which showed defendant had acted alone in splashing gasoline on the porch of the apartment where the murder victim lived moments before the fire started and had repeatedly threatened to "burn this mother fucker down and everybody that's in it," the trial court concluded that defendant was "the actual killer" and hence categorically ineligible for relief under section 1170.95.

Defendant filed a timely notice of appeal.

Pursuant to the California Rules of Court and our district's routine practice of appointing counsel to represent defendants appealing from the denial of postconviction relief, we appointed appellate counsel for defendant. ( Cal. Rules of Court, rule 8.300(a)(1).) Citing Wende , supra , 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, counsel filed an opening brief setting out the procedural history and relevant facts of this case, and a declaration indicating that counsel had "reviewed the entire record" and had informed defendant "of his right to file a supplemental brief." Counsel has invited us to "independently review the entire record on appeal for arguable issues."

We sent a letter to defendant advising him that he had 30 days to file a supplemental brief.

Defendant has not filed a timely supplemental brief.

DISCUSSION

The questions presented in this appeal are straightforward: (1) What procedures must appointed counsel and this court follow when counsel determines that an appeal of an order denying postconviction relief lacks arguable merit, and (2) By what authority do we prescribe those procedures? Discerning definitive answers to these questions, however, is more akin to navigating the Labyrinth of Crete. The need for these answers is nevertheless great: In recent years, our Legislature and voters have enacted an increasing number of laws that empower convicted defendants to seek postconviction relief reducing their sentences, reducing their crimes of conviction, or vacating their pleas. (See, e.g., § 1170.126 [defendants convicted of "third strike" offenses may seek reduction in sentence if their "third strike" offense does not qualify as a "strike" offense], § 1170.18 [defendants convicted of certain low-level felonies may seek reduction of those crimes to misdemeanors], § 1473.7 [defendants may seek to vacate their pleas if they did not "meaningfully understand" the "immigration consequences" of their pleas], § 1016.8 [defendants may seek to vacate their pleas if predicated upon a waiver of the "future benefits of ... changes in the law that may retroactively apply"].) Section 1170.95 is one such law, as it empowers a defendant convicted of murder to vacate his murder conviction if it was based upon a theory of vicarious liability—and, in particular, upon a theory of felony murder or natural and probable consequences—unless he acted with the intent to kill or was "a major participant" in an underlying felony and "act[ed] with reckless indifference to human life"; it does not provide relief to a "person [who] was the actual killer." (§ 1170.95; see also, §§ 188, 189, subd. (e).)

In many respects, we are not writing on a tabula rasa. Several cases have addressed what procedures appointed counsel and the Court of Appeal should follow when counsel finds no arguable merit to an appeal from the denial of postconviction relief. First among them is People v. Serrano (2012) 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 ( Serrano ). But these cases have not settled upon the same procedures. (Compare Serrano , at pp. 501, 503, 149 Cal.Rptr.3d 706 [counsel must file brief, defendant has right to file supplemental brief, court has no duty to independently review the record] with People v. Soto (July 9, 2020, H047581) 51 Cal.App.5th 1043, 1048-49, 265 Cal.Rptr.3d 571, 573-74, 2020 Cal.App.LEXIS 637, *1 ( Soto ) [same, except court went on to independently "review[ ] the briefs and record"]; People v. Johnson (2016) 244 Cal.App.4th 384, 389, fn. 5, 198 Cal.Rptr.3d 636 ( Johnson ) [same]; In re J.S. (2015) 237 Cal.App.4th 452, 457, 187 Cal.Rptr.3d 713 ( In re J.S. ) [same].) And none of this precedent has squarely confronted the question of the legal basis for prescribing these procedures.

I. Procedures When Counsel Finds No Reasonably Arguable Issues On Appeal, Generally

In the universe of law defining what procedures appointed counsel and the Court of Appeal must follow when counsel determines there are no arguably meritorious issues to raise on appeal, the proverbial Delphi—or center—of that universe is Wende , supra , 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. As noted above, Wende set forth the procedures to be followed during the defendant's "first appeal of right"—that is, during the direct appeal of his judgment of conviction and sentence. ( Id. at pp. 438, 443, 158 Cal.Rptr. 839, 600 P.2d 1071.) At this stage in criminal proceedings, a criminal defendant has a federal constitutional right to the effective assistance of counsel. ( Evitts v. Lucey (1985) 469 U.S. 387, 392-400, 405, 105 S.Ct. 830, 83 L.Ed.2d 821 ( Evitts ) [so holding]; In re Sade C. (1996) 13 Cal.4th 952, 978, 55 Cal.Rptr.2d 771, 920 P.2d 716 ( Sade C. ) [so noting]; see generally Douglas v. California (1963) 372 U.S. 353, 353-358, 83 S.Ct. 814, 9 L.Ed.2d 811 [indigent defendant has right to counsel on first appeal of right].) The right to effective assistance of counsel during the first appeal of right is based partly on the due process-based incorporation of the Sixth Amendment right to counsel to the states and partly on the equal protection-based concern that indigent defendants be treated the same as non-indigent defendants. ( Evitts , at p. 405, 105 S.Ct. 830.) The purpose of Wende ’s procedures is "to ensure [the] indigent criminal defendant's right to effective assistance of counsel" during the first appeal of right. ( People v. Kelly (2006) 40 Cal.4th 106, 118, 51 Cal.Rptr.3d 98, 146 P.3d 547 ( Kelly ); Sade C. , at p. 978, 55 Cal.Rptr.2d 771, 920 P.2d 716 ; see also People v. Feggans (1967) 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21 ( Feggans ) [so holding, as to pre- Wende procedures on the first appeal of right].)

Wende requires (1) appellate counsel (a) to independently evaluate the "entire record" and, if...