People v. Hackett, A067229

• Citation: 36 Cal.App.4th 1297,43 Cal.Rptr.2d 219
• Decision Date: 20 July 1995
• Docket Number: No. A067229,A067229
• Parties: , 95 Cal. Daily Op. Serv. 5716, 95 Daily Journal D.A.R. 9691 The PEOPLE, Plaintiff and Respondent, v. Danny Ray HACKETT, Defendant and Appellant.
• Court: California Court of Appeals

Page 219

43 Cal.Rptr.2d 219

36 Cal.App.4th 1297, 95 Cal. Daily Op. Serv. 5716,

95 Daily Journal D.A.R. 9691

The PEOPLE, Plaintiff and Respondent, v. Danny Ray HACKETT, Defendant and Appellant.

No. A067229.

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

July 20, 1995.

Rehearing Denied Aug. 17, 1995.

Frances M. Ternus, San Francisco, under appointment by the Court of Appeal, for appellant Danny Ray Hackett.

Susan E. Myster, Deputy Atty. Gen., San Francisco, for the people.

HAERLE, Associate Justice.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (hereafter Wende) from a conviction, after a plea of no contest, on charges of robbery (Pen.Code, § 211), attempted carjacking (Pen.Code, §§ 215/664), possession for sale of rock cocaine (Health & Saf.Code, § 11351.5) and child abuse (Pen.Code, § 273a, subd. (1)), and from the six year prison term sentence imposed by the trial court for that conviction. We find no error in the post-plea proceedings and hence affirm. However, in the process, we respectfully suggest that, for the reasons discussed at length below, it is appropriate for our Supreme Court to re-examine the vitality of Wende.

I. FACTUAL AND PROCEDURAL BACKGROUND

At about 8:30 a.m. on the morning of November 15, 1993, Denise Earl (Earl), a medical assistant and certified phlebotomist, parked her 1990 Thunderbird in the parking lot of the doctors' office building where she worked in Antioch and started toward the door of that building. She was, at the time, three and a half months pregnant. After she locked her car and started moving up a pathway from the parking lot to the door to the building, she noticed two men standing by a fence near the walkway. One was wearing a ski mask. As Earl walked quickly toward the office building door, the two men came up behind her; the one without the mask used his arm to prevent her from opening the door. The one with the mask said: "Bitch, give me your keys." With that, according to the police report, he "struck her in the face with his open right palm causing the back of her head to strike against the door." Frightened, Earl threw her car keys to the ground; the two men rushed to get them and then to the Thunderbird. Earl quickly entered her building and she and a co-worker called 911. While talking to the 911 operator, Earl was able to look out a window and watch the two men try to start her car. As they did so, the one wearing the ski mask raised that mask sufficiently to give Earl a good look at his face from just a few feet away. In court she identified that man as appellant.

Appellant and his confederate, unable to start Earl's Thunderbird because its ignition-deactivating alarm had been set, hastily exited the location via another car. Within a short time, however, they left that car and tried to escape separately on foot. As the police pursued, appellant was seen jumping over fences accompanied by a small child, later identified as his two-year old son. Other witnesses told police that appellant had thrown the boy over several fences as he tried to escape; when appellant was finally captured (his confederate was also), the two-year old boy was visibly hurt and screaming.

A search of appellant revealed about 40 lumps of rock cocaine; $780 in cash was also concealed in his socks. Both he and his confederate, a juvenile, were promptly identified by Earl.

Appellant was charged with the four counts noted above. The information also alleged that appellant was ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4), because of two prior felony convictions. At his February 1994 arraignment, he pled not guilty to the charges but, after three days of trial two months later, changed his plea to no contest and admitted the probation ineligibility clause. He requested immediate sentencing and got it: the upper term of six years on the child abuse count and concurrent midterms of three and four years, respectively, on the robbery and cocaine-for-sale counts. Sentencing was stayed pursuant to Penal Code section 654 on the carjacking count. In sum, appellant was sentenced to prison for a term of six years, with 212 days presentence credit, and ordered to pay a $200 restitution fine.

This court granted appellant's counsel's motion to file a late notice of appeal; when filed, that notice complied with California Rules of Court, rule 31(d) in that it purported to appeal only from sentencing issues arising after appellant's no contest plea.

When appellant's opening brief was filed in May of 1995 (after two extensions of time and one "thirty day letter" from this court) its "Discussion" consisted only of the following standard form "Wende brief" language: "Pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], this court is requested to independently review the entire record on appeal in order to determine, for itself, whether it contains any arguable issues. [p] As noted by the Supreme Court in Wende at 441-442 [158 Cal.Rptr. 839, 600 P.2d 1071] 'We conclude that Anders [Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493] requires the court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous. This obligation is triggered by receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally.' [p] In accordance with this Wende procedure and the attached declaration of counsel, this court is requested to conduct an independent review of the entire record on appeal."

That portion of the brief is followed by a declaration of counsel which is also a standard form in these cases. It reads: "1. I am an active member of the California State Bar. [p] 2. I am appointed counsel on appeal for appellant. [p] 3. I have thoroughly reviewed the entire record on appeal in this case. [p] 4. Based upon my review of this case, I have determined that a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 is appropriate in this case. [p] 5. I have written to appellant at his last known address and advised him that a Wende brief would be filed in this case, and I am serving a copy of this brief on appellant in conjunction with the filing of the brief. [p] 6. I have advised appellant that he is entitled to tender to the court a written statement of any issues which he wishes to call to the attention of the court. [p] 7. I do not request to be relieved as counsel, and I remain available to file any further briefs the court might request. I have, however, advised appellant that he has the right to request of the court that the court relieve me as appointed counsel."

II. DISCUSSION

As the forgoing recitation makes clear, we are thus presented with a rather standard Wende appeal. We shall, in due course, dispose of it as required by that decision. However, before doing so, we feel compelled to discuss the past, present and possible future of the Wende doctrine.

A. Wende and Its Ancestry.

By way of introduction to this subject, we can do no better than to quote from Justice Sims of the Third District who, in People v. Placencia (1992) 9 Cal.App.4th 422, 11 Cal.Rptr.2d 727, briefly summarized the background of Wende in the following words:

"Since 1963, an indigent defendant in a criminal case has had the right to appointed counsel on the first appeal. [Citation.] Until 1967, appointed counsel was required to file only a 'no merit' letter when no meritorious issues were found. [Citation.] In Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], the United States Supreme Court held such a practice unconstitutional. In order to ensure the indigent defendant received equal access to justice, Anders required appointed counsel to act in the role of an 'active advocate.' (Id. at pp. 742-744 .) [p] Anders set forth a procedure for appointed counsel to follow. If, after examining the record, counsel found the case was 'wholly frivolous,' counsel was required to advise the court and seek permission to withdraw. That request was to be accompanied by a brief setting out anything in the record that might arguably support the appeal. Counsel also was required to provide the indigent defendant with a copy of the brief; the latter was given the opportunity to raise any points he chose. Finally, the court was required to examine the record and determine whether the appeal was a frivolous one. ( [Id.] at pp. 744-745 .)" (People v. Placencia, supra, 9 Cal.App.4th at pp. 424-425, 11 Cal.Rptr.2d 727.)

For present purposes, two aspects of Anders deserve further elaboration. In the first place, it should be noted that, in it, the Supreme Court strongly stressed the desirability, indeed almost the necessity, of the advocacy of counsel. It stated: "[Counsel's] role as advocate requires that he support his client's appeal to the best of his ability." (Anders v. California, supra, 386 U.S. at p. 744, 87 S.Ct. at p. 1400.)

Second, the Supreme Court also reemphasized the constitutional goal behind the requirement it was laying down, to wit, to assure equality for indigent appellants as compared to those able to retain counsel: "This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain.... This procedure will assure penniless defendants the same rights and opportunities on appeal--as nearly as is practicable--as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel." (Anders v. California, supra, 386 U.S. at p. 745, 87 S.Ct. at p. 1400.)

Our Supreme Court had its first opportunity to consider the impact of Anders in People v. Feggans (1967) 67 Cal.2d 444, 447-448, 62 Cal.Rptr....