People v. Flores

• Decision Date: 03 September 2020
• Docket Number: G058486
• Citation: 268 Cal.Rptr.3d 512,54 Cal.App.5th 266
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alberto FLORES, Defendant and Appellant.

54 Cal.App.5th 266

268 Cal.Rptr.3d 512

The PEOPLE, Plaintiff and Respondent,

v.Alberto FLORES, Defendant and Appellant.

G058486

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

Filed September 3, 2020

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Robin Urbanski, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

MOORE, J.

"In an indigent criminal defendant's first appeal as a matter of right , the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues." ( Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, 53 Cal.Rptr.3d 856, 150 P.3d 738, italics added; see People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ).)

In this case, a trial court summarily denied defendant's postjudgment petition for resentencing under Penal Code section 1170.95.¹ Appointed counsel found no arguable issues to raise on appeal. Counsel filed a " Wende brief" asserting this court must independently review the record. Defendant did not file a brief on his own behalf.

This is not defendant's first appeal as a matter of right; therefore, we are not required to independently review the record. (See Conservatorship of Ben C., supra , 40 Cal.4th at p. 535, 53 Cal.Rptr.3d 856, 150 P.3d 738.) However, we have found no legal authority that prohibits us from conducting such an independent review in the interests of justice.

Here, we have reviewed the entire record on appeal and found no arguable issues. Thus, we affirm the order denying defendant's section 1170.95 petition.

IFACTS AND PROCEDURAL BACKGROUND

In 2002, a jury convicted defendant Alberto Flores of murder, robbery, and a substantive gang offense. The jury found true gang allegations and an allegation that defendant had personally used a weapon (a knife) in the commission of the crimes. The trial court imposed a life sentence. We affirmed the judgment on direct appeal. ( People v. Flores (May 5, 2004, G030799), 2004 WL 958452 [nonpub. opn.].)

In 2019, defendant filed a section 1170.95 petition for resentencing claiming he was convicted of murder under the felony-murder rule or under the natural and probable consequences doctrine. The trial court summarily denied the petition: "A review of court records indicates defendant is not eligible for relief under the statute because ... defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of liability for aiders and abettors."

Defendant filed a notice of appeal from the trial court's denial of the section 1170.95 petition. Defendant's appointed counsel filed a Wende brief summarizing the case with citations to the record, but counsel raised no arguable issues on appeal.² Counsel asserted: "the Court of Appeal must conduct a review of the entire record ...." Counsel and this court notified defendant he could file a brief on his own behalf, but he did not do so.

We later invited the parties to address: "Whether the procedural protections under Anders [v. California (1967) ] 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] [ ( Anders ) ], and Wende, supra , 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], apply to an appeal from a trial court's order denying a defendant's petition under Penal Code section 1170.95."

We received opposing briefs and we now consider the issue.

IIDISCUSSION

In a matter of first impression, we hold that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice. This is a pure question of law, so our review is de novo. ( In re Richards (2012) 55 Cal.4th 948, 960, 150 Cal.Rptr.3d 84, 289 P.3d 860.)

We will discuss: A) the basis of an appellate court's required independent review of the record in a first appeal as a matter of right; B) why such an independent review is therefore not required in a postjudgment appeal from a trial court's denial of a section 1170.95 petition; and C) how an independent review of the entire record on appeal is nonetheless allowable and serves the interests of justice.

A. An Appellate Court's Independent Review of the Record

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." In a landmark decision, the Supreme Court held this fundamental right extends to all indigent criminal defendants. ( Gideon v. Wainwright (1963) 372 U.S. 335, 336-345, 83 S.Ct. 792, 9 L.Ed.2d 799.) Consequently, state courts are required to appoint counsel for an indigent defendant "at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake." ( People v. Crayton (2002) 28 Cal.4th 346, 362, 121 Cal.Rptr.2d 580, 48 P.3d 1136.)

Perhaps surprisingly, the federal Constitution does not guarantee criminal defendants the right to an appeal. ( McKane v. Durston (1894) 153 U.S. 684, 687-688, 14 S.Ct. 913, 38 L.Ed. 867.) However, on the same day the Supreme Court issued its ruling in Gideon v. Wainwright, supra , 372 U.S. 335, 83 S.Ct. 792, the Court held that if a state does, in fact, grant a criminal defendant the right to an appeal, then it must appoint counsel in the "one and only appeal" as a matter of right. ( Douglas v. California (1963) 372 U.S. 353, 356-357, 83 S.Ct. 814, 9 L.Ed.2d 811.)

When counsel is appointed for a defendant on appeal, ethical and procedural predicaments often arise when counsel can find no meritorious issues to raise in the appellate court. Appellate counsel is torn between the duty to provide zealous advocacy to his or her client, and the duty of candor to the court. ( Anders, supra , 386 U.S. at p. 744, 87 S.Ct. 1396.) Further, the appellate court itself has a duty to protect the constitutional rights of the defendant. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 362-363, 86 S.Ct. 1507, 16 L.Ed.2d 600.)

Accordingly, the United States Supreme Court has established minimum constitutional standards for appointed counsel and appellate courts in "no merit" appeals. ( Anders, supra , 386 U.S. 738, 87 S.Ct. 1396.) California courts have since applied Anders and further developed a body of case law and rules to address what are colloquially known in California as either Anders / Wende or simply Wende appeals.

In its own landmark decision, the California Supreme Court held that when appointed counsel files an opening brief for an indigent defendant that raises no arguable issues, an appellate court is required to conduct an independent review of the record. ( Wende, supra , 25 Cal.3d at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.) In Wende , a trial court found defendant guilty of two counts of robbery and imposed a five-year sentence. ( Id. at p. 438, 158 Cal.Rptr. 839, 600 P.2d 1071.) Defendant filed a notice of appeal and was appointed counsel. Defendant's counsel filed a brief that summarized the facts and the proceedings but raised no arguable issues. Defendant was notified he could file a brief on his own behalf, but he did not do so. The Court of Appeal dismissed the appeal as abandoned, without conducting an independent review of the record. ( Id. at pp. 438-439, 158 Cal.Rptr. 839, 600 P.2d 1071.) The Supreme Court disagreed with that procedure, conducted its own independent review, and affirmed the judgment. ( Id. at p. 443, 158 Cal.Rptr. 839, 600 P.2d 1071.)

The California Supreme Court held " Anders requires the [appellate] court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues .... This obligation is triggered by the receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally." ( Wende, supra , 25 Cal.3d at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.) If an arguable issue is found during the independent review of the record on appeal, then the appellate court "should inform counsel for both sides and provide them an opportunity to brief and argue the point." ( Id. at p. 442, fn. 3, 158 Cal.Rptr. 839, 600 P.2d 1071.)

Subsequently, all federal and California opinions have repeatedly and consistently held that an appellate court's obligation to conduct an independent review of the record only applies when appointed counsel raises no arguable issues in a criminal defendant's first appeal as a matter of right. (See, e.g., Smith v. Robbins (2000) 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d 756 [ Anders / Wende procedure provides minimum constitutional safeguards in a " ‘first appeal as of right’ "]; Pennsylvania v. Finley (1987) 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 [state created right to counsel in postconviction proceedings did not require application of Anders procedures]; In re Sade C. (1996) 13 Cal.4th 952, 959, 55 Cal.Rptr.2d 771, 920 P.2d 716 [appellate court not required to independently review the record in juvenile dependency proceedings³ ]; Conservatorship of Ben C., supra , 40 Cal.4th at pp. 536-537, 53 Cal.Rptr.3d 856, 150 P.3d 738 [same as to conservatorship proceedings]; People v. Serrano (2012) 211 Cal.App.4th 496, 503, 149 Cal.Rptr.3d 706 [same as to postconviction motions to vacate]; People v. Placencia (1992) 9 Cal.App.4th 422, 424, 11 Cal.Rptr.2d 727 [independent review not required in case where defendant has retained private counsel].)

B. A Postjudgment Section 1170.95 Petition

Effective January 1, 2019, with the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), the Legislature reduced the scope of the felony-murder rule and eliminated vicarious liability for murder under the natural and probable consequences doctrine. Generally, liability for murder now requires that the defendant: 1) was the actual killer; 2) was a direct aider and abettor who acted...