People v. Johnson

• Decision Date: 27 August 1981
• Docket Number: Cr. 14117
• Citation: 123 Cal.App.3d 106,176 Cal.Rptr. 390
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Wautausa Ahejalia JOHNSON, Defendant and Appellant.

Page 390

176 Cal.Rptr. 390

123 Cal.App.3d 106

PEOPLE of the State of California, Plaintiff and Appellant, v. Wautausa Ahejalia JOHNSON, Defendant and Appellant.

Cr. 14117.

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

Aug. 27, 1981.

Hearing Denied Nov. 18, 1981.

Floyd J. Siegal, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

GARDNER, Presiding Justice.

In this case we reject a concept which has crept into our judicial literature the "arguable-but-unmeritorious" issue on appeal. We hold that an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.

Some historical perspective is necessary.

Prior to 1967, the procedure in California when appointed counsel could find no meritorious grounds for appeal was to file a "no merit" letter to that effect. (In re Nash, 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405.) Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, found that practice to be constitutionally infirm. Supplementing Anders, People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21, held that counsel must set forth the facts and the applicable law and "argue all issues that are arguable." (Feggans, p. 447, 62 Cal.Rptr. 419, 432 P.2d 21.) Feggans was followed by People v. Rhoden, 6 Cal.3d 519, 99 Cal.Rptr. 751, 492 P.2d 1143, and In re Smith, 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969, which discussed the subject of arguable issues in the context of the facts of those cases. Then the Court of Appeal in People v. Scobie, 36 Cal.App.3d 97, 111 Cal.Rptr. 600, held that Smith and Rhoden had developed a new concept: the "arguable-but-unmeritorious" issue which had to be argued as a requirement of due process. People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, held that when counsel has submitted a brief which raises no specific issues, there is an obligation on the appellate court to independently review the record for arguable issues.

Thus, the usual practice is for counsel to either raise a substantive issue or submit a so-called Wende brief in which no substantive issue is raised but a request for independent review is made. In this case appointed counsel has raised a substantive issue and requested our independent review. This he presents on equal protection grounds, i. e., that the appellant whose counsel presents a substantive issue does not get as thorough a review by the court as the one who submits a Wende brief. On behalf of his client, he wants both a substantive issue presented by himself, plus an independent review by the court.

We reject the equal protection argument. Under recognized principles of equal protection, Wende relief must be given to all persons similarly situated. That group would consist of all persons whose appointed counsel can find no arguable issue on appeal. Appellant is not in this group. Her counsel has found and argued a substantive contention of error. Thus, under any equal protection analysis, appellant is not entitled to the format established by Wende.

Nevertheless, counsel has a point. As long as the "arguable-but-unmeritorious" concept exists, appointed counsel finds himself in a pretty pickle. Under this concept, he must present marginal, nay, hopeless issues which at the same time prevents an independent review by the court.

This problem has not escaped the notice of the Supreme Court. In Wende, the court noted under its rule counsel might ultimately secure a more complete review for their clients when they cannot find an arguable issue than when specific issues are raised "for a review of the entire record is not necessarily required in the latter situation." (Wende, supra, p. 442, 158 Cal.Rptr. 839, 600 P.2d 1071.)

So, too, the dissent in Wende took additional note of this problem. "The majority opinion leads to a further anomaly. Counsel who determines after conscientious examination of the record there may be marginal error could prejudice his client by asserting such error. If instead of urging the error he states the appeal is without merit and withdraws, and defendant asserts such error, the appellate court will afford defendant a more thorough, careful review of the entire record." (Wende, supra, p. 446, fn. 2, 158 Cal.Rptr. 839, 600 P.2d 1071.)

So, too, in a pre-Wende case, ¹ People v. McGee, 82 Cal.App.3d 127, at 129, 146 Cal.Rptr. 833, Justice Kaus said:

"We might point out that appellate counsel who eschews manufacturing issues where none exists achieves a real benefit for his client. Here, in order to comply with the mandate of Anders-Feggans we carefully considered the record before advising defendant that he could file his own brief and before filing this opinion dismissing the case. In doing so, we reviewed not only those portions of the record which counsel discussed but the entire record an inspection we are not compelled to make when counsel only raises specific issues on appeal. An attorney who cannot discover an arguable issue thus secures an appellate review of the record which is not necessarily enjoyed by his more feisty counterpart who raises one or two frivolous issues, easily disposed of by the inspection of a few pages of transcript."

We think that the answer to this dilemma is to jettison the concept of "arguable-but- unmeritorious" issues. In so doing, we must part company with Scobie. In all candor, we are unable to read into Smith or Rhoden any such concept.

Smith repeatedly discusses "crucial" assignments of error. "(C)rucial assignments of error, which arguably might have resulted in a reversal...." (at p. 202, 90 Cal.Rptr. 1, 474 P.2d 969.) An assignment of error is "crucial in the context of the particular circumstances at hand." (at p. 203, 90 Cal.Rptr. 1, 474 P.2d 969.) A "crucial matter" must be "raised as an assignment of error." (at p. 203, fn. 3, 90 Cal.Rptr. 1, 474 P.2d 969.) While Smith does not contain an exact definition of what is "crucial", it refers to issues which are "potentially successful contentions on appeal", (at p. 203, 90 Cal.Rptr. 1, 474 P.2d 969), and issues which "arguably might have justified a reversal." (at p. 201, 90 Cal.Rptr. 1, 474 P.2d 969.) Smith definitely made it clear that it is not the duty of counsel to "contrive arguable issues." (at p. 198, 90 Cal.Rptr. 1, 474 P.2d 969.)

Rhoden simply followed the lead of Smith and did not purport to redefine or change the rules of the game devised by Smith. Again, the court referred to "crucial assignments of error, which arguably might have resulted in reversal." (Rhoden, 6 Cal.3d p. 529, 99 Cal.Rptr. 751, 492 P.2d 1143.)

In discussing this subject, we said at p. 175 of People v. Von Staich, 101 Cal.App.3d 172, at 175, 161 Cal.Rptr. 448: "(t)o us an arguable issue means an issue of sufficient substance that it is going to result either in a reversal or a modification of the judgment or is going to make new law. (Fn. omitted.) This whole process of appellate review is not some kind of a WPA project for the continued employment of judges, lawyers, secretaries, clerks, book sellers and office equipment salesmen. Hopefully, we do not engage in a process of setting up straw men and then knocking them down in a search for 'arguable' issues."

Thus, we reject the concept of "arguable-but-unmeritorious" issues on appeal and adopt the definition set forth in the opening paragraph of this opinion as the proper definition of an arguable issue. Once this determination is made, the dilemma now facing counsel disappears. No longer...