People v. Weisner

• Decision Date: 27 April 2022
• Docket Number: C095039
• Citation: 77 Cal.App.5th 1072,293 Cal.Rptr.3d 184
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frankie James WEISNER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 1072

293 Cal.Rptr.3d 184

The PEOPLE, Plaintiff and Respondent,

v.Frankie James WEISNER, Defendant and Appellant.

C095039

Court of Appeal, Third District, California.

Filed April 27, 2022

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

HULL, J.

Defendant Frankie James Weisner pleaded no contest to second degree robbery ( Pen. Code § 211 ) (statutory section citations that follow are to the Penal Code), and grand theft (§ 487, subd. (c)), and admitted he personally used a firearm in the robbery (§ 12022.5, subd. (a)). After his initial appeal was denied as untimely, defendant sought to reduce his conviction on the grand theft count to a misdemeanor under section 1170.18, which the trial court denied. Defendant appeals from the trial court's order denying his petition for resentencing.

FACTS AND HISTORY OF THE PROCEEDINGS

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ) and following defendant's filing of a pro. per. supplemental brief arguing (1) the trial court improperly sentenced him contrary to his original plea agreement, (2) his counsel was ineffective and concealed evidence, and (3) the prosecution refused to disclose exculpatory evidence in the original proceedings.

We note that the trial court denied defendant's two requests for certificates of probable cause. Despite the expansive claims in the notice of appeal, the only issue cognizable on appeal is the denial of his motion to reduce the grand theft charge to a misdemeanor. ( Cal. Rules of Court, rule 8.304(b)(3) ; People v. Aguilar (2003) 112 Cal.App.4th 111, 114, 4 Cal.Rptr.3d 802.)

DISCUSSION

Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( Anders ) is required only in the first appeal of right from a criminal conviction. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 ; Conservatorship of Ben C . (2007) 40 Cal.4th 529, 536-537, 53 Cal.Rptr.3d 856, 150 P.3d 738 ; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501, 149 Cal.Rptr.3d 706.)

California's " Wende procedure" does not apply to appeals such as this one which is from a denial of postconviction relief. ( People v. Figueras (2021) 61 Cal.App.5th 108, 111, 275 Cal.Rptr.3d 376, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th 266, 271, 268 Cal.Rptr.3d 512 ; People v. Cole (2020) 52 Cal.App.5th 1023, 1032, 267 Cal.Rptr.3d 113, review granted Oct. 14, 2020, S264278 ( Cole ).) This is so because this is not the defendant's first appeal as of right. (See In re Sade C. (1996) 13 Cal.4th 952, 986, 55 Cal.Rptr.2d 771, 920 P.2d 716 ( Sade. C. ) [ Wende / Anders review "mandated for only one [situation]—the indigent criminal defendant in his first appeal as of right"].)

In Figueras , this court said, quoting Cole , "we ‘reject the notion that the Constitution compels the adoption or extension of Wende procedures (or any subset of them) for appeals other than a criminal defendant's first appeal of right because, beyond that appeal, there is no right to the effective assistance of counsel. Time and again, the United States Supreme Court and our Supreme Court have rejected the very same argument. (See [ Pennsylvania v .] Finley [, supra ,] 481 U.S. [at p.] 555 ; [ Conservatorship of ] Ben C .[, supra ,] 40 Cal.4th [at pp.] 538-543 [53 Cal.Rptr.3d 856, 150 P.3d 738] ; [[ Sade C., supra ,] 13 Cal.4th [at pp.] 986-993 [55 Cal.Rptr.2d 771, 920 P.2d 716].)’ ( Cole, supra, 52 Cal.App.5th at p. 1034 , review granted; People v. Flores [, supra ] 54 Cal.App.5th [at p.] 271 .)" ( Figueras, supra , 61 Cal.App.5th at p. 111, 275 Cal.Rptr.3d 376, review granted.) Thus, these courts held the Constitution does not require "the adoption or extension" of Wende procedures to appeals from postconviction proceedings.

Once we hold an appeal from a denial of postconviction relief is not subject to Wende review, we then have before us a "standard" appeal from an order denying postconviction relief in which defendant, through counsel, has stated there are no issues that properly can be raised on appeal. Under these circumstances, the appeal is abandoned and we will dismiss it.

In reaching this conclusion, we start with the question whether the appellate court can or should or must review the record looking for error when the defendant's counsel has found none and has so declared. In Sade C., supra , 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716, our supreme court considered whether the "prophylactic" procedures of Anders and Wende applied to an indigent parent's appeal from a judgment or order adversely affecting a parent's right to the custody of a child or the parent's status as a parent of the child. The Court concluded they did not. ( Sade C. , at p. 990, 55 Cal.Rptr.2d 771, 920 P.2d 716.) As to a concern that the risk of the absence of Anders (and Wende ) procedures will lead to an erroneous resolution of an appeal, the Court said: "As a practical matter, we believe that the chance of error is negligible. We do not ignore the fact that such error may be irremediable. (See, e.g., Adoption of Alexander S . (1988) 44 Cal.3d 857, 868 [245 Cal.Rptr. 1, 750 P.2d 778].) Nevertheless, our consideration of the many cases that have come before us on petition for review reveals that appointed appellate counsel faithfully conduct themselves as active advocates [on] behalf of indigent parents. This causes no surprise: the attorneys are enabled, and indeed encouraged, to effectively represent their clients by the procedural protections accorded them in the Court of Appeal, including the right to precedence over all other causes ( Welf. & Inst. Code, § 395 ), which parallel those accorded them in the juvenile court (see, e.g., In re Marilyn H .[ (1993)] 5 Cal.4th [295,] 306-310 [19 Cal.Rptr.2d 544, 851 P.2d 826] ). In accord is the experience of Division One of the Fourth Appellate District of the Court of Appeal, as it recently recounted in In re Angelica V . having applied the procedures in question for more than a decade under its holdings in Brian B . [(1983) 141 Cal.App.3d 397 ] and Joyleaf W . [(1984) 150 Cal.App.3d 865, 198 Cal.Rptr. 114 ], the court declared that ‘we have discovered, to the best of our present recollection, no unbriefed issues warranting further attention.’ ( In re Angelica V .[ (1995)] 39 Cal.App.4th [1007,] 1015 , italics added [holding the Court of Appeal would no longer apply Wende procedures to parental rights cases].) As a result, it judged the procedures ‘unproductive’ ( id. at p. 1016 ), and overruled Brian B . and Joyleaf W ." ( Sade C., supra , 13 Cal.4th at p. 990, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

Our Supreme Court continued, "we believe that the requirement of fundamental fairness contained in the Fourteenth Amendment's due process clause does not compel imposition of Anders ’s ‘prophylactic’ procedures. Procedures that are practically ‘unproductive,’ like those in question, need not be put into place, no matter how many and how weighty the interests that theoretically support their use. To be sure, these procedures may have ‘symbolic’ value of some kind. ( Santosky v. Kramer [(1982)] 455 U.S. [745,] 764 [102 S.Ct. 1388, 71 L.Ed.2d 599] [ ].) Such value, however, is too slight to compel their invocation." ( In re Sade C., supra, 13 Cal.4th at pp. 990-991, 55 Cal.Rptr.2d 771, 920 P.2d 716, fn. omitted.)

These observations apply equally to review of postconviction relief orders and the court is not required, in order to satisfy due process or otherwise, to review the record in these cases once counsel has stated counsel can find no arguable issues on appeal nor are we required to accept and resolve issues raised individually by the defendant.

We acknowledge there is disagreement among the California Courts of Appeal regarding the proper disposition of non- Wende appeals where, as here, the defendant/appellant has chosen to raise issues in the appeal on his own and notwithstanding the fact that his appointed counsel has reported to the court he or she cannot find any arguable appellate issues. Must or should the court review and resolve those issues, thus adopting the Wende procedure in a non- Wende appeal?

"The general rule that a defendant who is represented by an attorney of record will not be personally recognized by the court in the conduct of his case ( People v. Merkouris (1956)[ ] 46 Cal.2d 540, 554 ) applies to the filing of pro se documents on appeal ( Electric Utilities Co. v. Small-page (1934), 137 Cal.App. 640, 641-642 )." ( People v. Mattson (1959) 51 Cal.2d 777, 798, 336 P.2d 937 ( Mattson ).)

"[T]here is no right—constitutional, statutory, or otherwise—to self-representation in a criminal appeal in California. (See People v. Stanworth (1969) 71 Cal.2d 820, 834-835 [80 Cal.Rptr. 49, 457 P.2d 889] [no right to dismiss counsel in capital appeals]; People v. Scott [ (1998)] 64 Cal.App.4th [550,] 569 573 [ ] [noncapital appeals].) In particular, neither the Sixth Amendment nor the due process clause of the Fourteenth Amendment to the federal Constitution furnishes a basis for finding such a right. ( Martinez[v. Court of Appeal of Cal., Fourth Appellate Dist. (2000)] 528 U.S. [152,] 160-163 [120 S.Ct. 684, 145 L.Ed.2d 597] [( Martinez )].) As the United States Supreme Court recently explained, the sole constitutional right to self-representation derives from the Sixth Amendment, which pertains strictly to the basic rights that an accused enjoys in defending against a criminal prosecution and does not extend beyond the point of conviction. ( Martinez, supra , 528 U.S. at pp. 154, 160-161 .) Emphasizing that the change in one's position from ‘defendant’ to ‘appellant’ is a significant one, the high court found that the balance between a criminal defendant's...