People v. Sumner

• Citation: 69 Cal.Rptr. 15,262 Cal.App.2d 409
• Decision Date: 23 May 1968
• Docket Number: Cr. 12707
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Tommy Bud SUMNER, Defendant and Appellant.

Page 15

69 Cal.Rptr. 15

262 Cal.App.2d 409

The PEOPLE of the State of California, Plaintiff and Respondent, v. Tommy Bud SUMNER, Defendant and Appellant.

Cr. 12707.

Court of Appeal, Second District, Division 5, California.

May 23, 1968.

As Modified May 28, 1968.

No appearance for appellant.

No appearance for respondent.

KAUS, Presiding Justice.

On November 12, 1965, the District Attorney of Los Angeles County charged defendant with kidnapping and three violations of section 288a of the Penal Code. With respect to each of the latter charges it was also alleged that the act was done 'by force, violence, duress, menace and threats of great bodily harm.' Two prior felonies--escape and burglary--were also charged. After pleading not guilty and denying the priors, defendant eventually pleaded guilty to one of the 288a counts. The priors and the allegation with respect to force, etc., were stricken. On February 16, 1966, he was sentenced to state prison and the remaining accounts were dismissed. On July 27, 1966, he filed a petition for a writ of error Coram nobis which was denied the same day. Notice of appeal was filed on August 2, 1966. At defendant's request we appointed Bertram H. Ross, Esq., to represent him on the appeal. Mr. Ross thereafter filed an application to be permitted to withdraw. In the application counsel reviews the procedural facts of the case, states his conclusion that the petition below does not state facts which would entitle defendant to relief by way of writ of error Coram nobis and asks to be relieved. A copy of the application was served on defendant. After careful review of the record we found the appeal to be wholly frivolous and relieved counsel. Defendant was then given an opportunity to file a brief, being allowed over 30 days within which to do so. No brief by defendant was received. Defendant was then notified that unless he filed a brief within an additional 30 days, his appeal would be dismissed. Again no brief was received.

Appointed counsel and this court have thus followed the procedure outlined in Anders v. State of California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493. Our examination of the record indicates that the appeal is frivolous. Therefore, we need not appoint new counsel (Anders v. California, supra)--indeed we have not received any request to do so. We are thus at the point where Anders permits us to dismiss the appeal 'insofar as federal requirements are concerned * * *.' The permission thus extended by the Supreme Court of the United States contains, however, the following proviso: '* * * or proceed to a decision on the merits, if state law so requires.'

The problem is whether California law does so require. The point was not decided in the leading California case in this area. (People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21.)

Section 1248 of the Penal Code provides as follows: 'If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may order it to be dismissed.' On its face this section appears a formidable hurdle to the assertion of a power to dismiss a criminal appeal as frivolous. Indeed People v. McNulty, 95 Cal. 594, 30 P. 963, held that an appeal from an appealable order made after final judgment could not be dismissed on that ground.

Although McNulty used pretty plain language, the fact of the matter is that our appellate courts have dismissed appeals on the ground of frivolity. The impetus was the Supreme Court's decision in People v. Shorts, 32 Cal.2d 502, 197 P.2d 330. Shorts, like McNulty, was a death penalty case ¹ and the appeal was from the denial of a motion to vacate the judgment made after it had become final. In dismissing the appeal the court took note of section 1248, but said: 'We deem it incontrovertible that in a death penalty case such as this wherein, on an appeal from an order denying the writ Coram nobis, there is an utter lack of showing of merit and diligence sufficient to warrant a stay of execution, the appeal itself may properly be held to have been taken solely for delay, Therefore to be iregular as having no proper appellate objective and, hence, to be sham and frivolous and subject to dismissal. In such circumstances not only will the stay be denied but the appeal will be dismissed. (See People v. Smith (1933), 218 Cal. 484, 487, 489, 24 P.2d 166; Pen.Code, § 1248 ('If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may order it to be dismissed.').)' (Ibid., p. 516, 197 P.2d p. 338. Italics ours.)

In the next paragraph of the Shorts opinion the court takes issue with McNulty's reliance on section 1248, holding that: '(W)here it appears without any serious contention to the contrary that an appeal from an order after final judgment in a death penalty case is taken solely for purposes of delay, the appeal must be held to be irregular in a most fundamental sense. * * *' (Ibid., p. 517, 197 P.2d p. 339.) The court also held that section 681a ² of the Penal Code, enacted after McNulty, weakened that decision. ³

The italicized portion of the first passage quoted from Shorts may be interpreted in different ways. Read narrowly, it simply means that where the objective of an appeal is not really review, but delay, section 1248 does not apply. If that is all Shorts stands for, its impact would be limited to cases where the death penalty has been imposed or where the execution of another type of judgment has somehow been stayed. It is impossible to tell from any holding of the Supreme Court whether it intended Shorts to have such a limited application, since the only other cases in which the Shorts rule was applied (People v. Rittger, 55 Cal.2d 849, 855--856, 13 Cal.Rptr. 406, 362 P.2d 38; Williams v. Duffy, 32 Cal.2d 578, 583, 197 P.2d 341) were death penalty cases. ⁴

Read literally, however, the passage says that if the appeal has no proper appellate objective it is sham and frivolous and therefore subject to dismissal. In other words, it is the total lack of merit, not the improper objective which makes it dismissable.

It appears that several courts of appeal have, tacitly perhaps, given Shorts the latter interpretation. In People v. Malone, 96 Cal.App.2d 270, 215 P.2d 109 the Court of Appeal for the Third District granted a motion to dismiss an appeal from an order denying a writ of error Coram nobis on the ground that it was frivolous. This was followed by three decisions by the same court (Edwards v. People, 99 Cal.App.2d 216, 221 P.2d 336; People v. Schuman, 98 Cal.App.2d 140, 219 P.2d 36; and People v. Chapman, 96 Cal.App.2d 668, 216 P.2d 112) in which similar appeals were dismissed on the same ground. It is to be noted that the rationale of these dismissals was not the theory enunciated in a later series of cases that the very appealability of appeals from orders denying Coram nobis depends on the substance of the facts alleged or proved in the trial court. (See People v. Williams, 238 Cal.App.2d 585, 587, 48 Cal.Rptr. 67 and cases cited therein.)

In any event, whatever may be the limitations on appealability with respect to appeals from orders after judgment (Pen.Code § 1237, subd. 3), until 1965 appeals from judgments which followed a plea of guilty were freely appealable, even though not very much was reviewable. (People v. Ward, 66 Cal.2d 571, 575, 58 Cal.Rptr. 313, 426 P.2d 881; Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182.) Yet in People v. Martin, 230 Cal.App.2d 62, 40 Cal.Rptr. 700, division three of the first district followed its own precedent of People v. Wallace, 217 Cal.App.2d 440, 31 Cal.Rptr. 697, and dismissed an appeal following a plea of guilty as frivolous.

Although the Court of Appeal of the Fifth District refused to dismiss an appeal as frivolous in People v. Rosalez, 201 Cal.App.2d 643, 20 Cal.Rptr. 80, it expressly recognized the power to dismiss, pointing to Shorts and People v. Mattson, 51 Cal.2d 777, 796--797, 336 P.2d 937, 951, footnote 8. ⁵

One of the reasons given in Rosalez for not exercising the power to dismiss the appeal is the one frequently voiced (see Witkin, California Criminal Procedure, § 722) that appeals should not be dismissed where, in ruling on a motion to dismiss, the record must be examined. ⁶ That rule, however, is no more than a rule which governs the exercise of discretion--a 'rule of convenience,' (Hibernia Sav. & Loan Soc. v. Doran, 161 Cal. 118, 120, 118 P. 526; Shank v. Blackburn, 61 Cal.App. 577, 580, 215 P. 559) not a canon limiting power. This is demonstrated by cases holding that frivolous appeals may be dismissed if their nature appears on a 'mere inspection' of the record (see cases collected in 3 Witkin, California Procedure (1954) §§ 160, 164) and others which simply ignore the rule (People v. Martin, supra and People v. Wallace, supra). The rule is certainly quite out of place in cases like the present one where, in order to pass on counsel's motion to be relieved, the court has already examined the entire record as directed by Anders and Feggans. ⁷

We therefore conclude that California appellate courts do have the power to dismiss frivolous appeals in criminal cases. Needless to say, for the reasons given in PEOPLE V. ROSALEZ , SUPRA⁸, it is a power which should be most sparingly exercised.

Where, as here, eminently competent counsel (see People v. Ross, 67 Cal.2d 64, 60 Cal.Rptr. 254, 429 P.2d 606; People v. Charles, 66 Cal.2d 330, 57 Cal.Rptr. 745, 425 P.2d 545; People v. Wadkins, 63 Cal.2d 110, 45 Cal.Rptr. 173, 403 P.2d 429; People v. Jones, 42 Cal.2d 219, 266 P.2d 38; People v. Southack, 39 Cal.2d 578, 248 P.2d 12) has failed to find an arguable issue, where the record is extremely short and where before relieving counsel, we already found the appeal to be frivolous, it seems proper to exercise our discretion and rid the docket of the court of some dead wood.

We are not blind to the obvious: the borderline...