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Does Wende Apply to Appeal Denying 1170.95 Relief?
Luis Juan Figueras was convicted of murder and later filed a petition for resentencing under the new felony murder rule, as is permitted under Penal Code § 1170.95.
The San Joaquin County judge ruling on the 1170.95 petition denied his request. It is not known (or really important) why the petition was denied for purposes of this article.
Why This Article Matters: When counsel is appointed for a defendant in an appeal of an SB 1437 denial and that attorney files a “Wende” brief, advising the appellate court that there are no grounds for appeal and gives notice to defendant to file a supplemental brief within 30 days if he or she can set forth grounds for appeal, but then defendant does not file anything, the appellate court is not obligated to conduct an independent review on its own for any grounds for relief. The appellate court may properly regard the appeal as abandoned.
What is important is that counsel was appointed to represent Figueras on appeal and that attorney found nothing in the lower court’s ruling appealable. He filed an opening brief setting forth the facts of the case and requested that the appellate court (the Third Appellate District) review the record for any arguable issues on appeal in accordance with People v. Wende (1979) 25 Cal.3d 436; see also Anders v. California (1967) 386 U.S. 738, 18 L.Ed.2d 493.
When appointed counsel filed such a “Wende Brief,” as it is called, he advised Figueras that he had a right to file a supplemental brief within 30 days of filing the opening brief. Thirty days then elapsed and Mr. Figueras did nothing. The Third Appellate District then dismissed the appeal as abandoned. It did not review the record for any arguable issues as Wende directs in other types of appeals.
Appointed counsel for Figueras then filed a petition for rehearing, arguing that the Wende procedure applies or should apply to a postconviction petition seeking relief under Penal Code § 1170.95.
Court of Appeal Third Appellate District SacramentoThe Third Appellate District, on rehearing, acknowledged that it was an open question of whether the Wende procedure applied to a postconviction petition such as under 1170.95. It noted that the California Supreme Court had not addressed the issue yet.
However, the Third Appellate District pointed out that the Second Appellate District (for Los Angeles and Ventura Counties) had in People v. Cole (2020) 52 Cal.App.5th 1023, distinguished between the need for the bench to review a record of a lower court for error in a conviction and in post-conviction relief. They are fundamentally different indeed.
“A defendant’s interest when seeking postconviction relief, in most cases, seeks the benefit of ameliorative changes in the law rendered applicable to defendant by legislative grace rather than constitutional imperative; the failure to protect this interest results in the failure to reduce or eliminate a conviction or sentence that was previously imposed and adjudicated to be valid.” Cole, supra, 52 Cal.5th at 1036.
The government interest in adjudicating appeals denying postconviction relief is twofold. As with all appeals, the state has an “important” “interest in an accurate and just resolution of the appeal. The state also has a “legitimate fiscal and administrative interest in reducing the cost and burden of [the appellant’s] proceedings” Cole, supra, at 1037.
“The risk that providing fewer procedures on appeal from an order denying postconviction relief will lead to an erroneous decision is not especially great. That is partly because, as noted above, defendants seeking postconviction relief have already had their convictions affirmed following their first appeal of right, such that the risk of error due to the absence of Wende procedures on an appeal from the denial of postconviction relief is correspondingly less. And it is partly because of our experience that appointed appellate counsel faithfully conduct themselves as active advocates on behalf of their clients, and this will invoke Wende-like procedures only when their carefully review has turned up no reasonably arguable issues.” ([In re] Sade C. (1996) 13 Cal.4th 952, 990.
Balancing these criteria, the Third Appellate District Court decided that in its role of managing the proceedings before it, the review already undertaken in Figueras met the requirements of due process: “Counsel appointed in such appeals is required to independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are “no arguable issues to raise on appeal; [counsel must inform] the defendant [that he or she] has a right to file a supplemental brief [within 30 days of the filing of counsel’s brief]; and this court has the duty to address any issue raised by the defendant but otherwise may dismiss any appeal without conducting an independent review of the record.” Cole, supra, at 1028. “Because defendant has not filed a supplemental brief, we dismiss the appeal as abandoned.”
In other words, on an appeal from a denial of postconviction relief, the court may conduct the searching review that Wende contemplates in an appeal of right, but it is not required to do so.
The citation for the Third Appellate District Court ruling discussed above is People v. Luis Juan Figueras (3rd App. Dist., 2021) 61 Cal. App. 5th 108, 275 Cal. Rptr. 3d 376.
For more information about Wende issues and Penal Code § 1170.95 petitions, please click on the following articles:
