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C.A. Justice Raphael SaysColleagues Are Wasting Time
There’s No Need to Review Entire Record in Acting on AppealsFrom Denials of Post judgment Motions, He Writes
Bya MetNews Staff Writer
ACourt of Appeal justice on Friday accused his colleagues of wasting thedivision’s time and resources in combing the record, in response to an appealfrom a post judgment motion, to see if some issue could be spotted that theappointed counsel for an inmate missed.
JusticeMichael J. Raphael of the Fourth District’s Div. Two expressed hisdisgruntlement in a dissent to an opinion by Justice Art W. McKinister, inwhich Presiding Justice Manuel A. Ramirez joined. The opinions were notcertified for publication.
Thatsame division has twice considered the issue in published decisions, withdiffering results. The issue is now before the California Supreme Court.
People v. Wende
Inits Oct. 12, 1979 opinion in People v. Wende,the state high court declared that where appointed counsel in an appeal from aconviction finds no arguable issue, the Court of Appeal “itself must expresslydetermine whether the appeal is wholly frivolous,” entailing a “review of theentire record must be made regardless of whether the defendant has availedhimself of the opportunity to submit a brief.”
AlthoughWende applies only to initial appeals,disagreement has developed among the courts of appeal as to whether there oughtto be a review of the entire record in appeals from denial of post judgmentmotions.
McKinister,in Friday’s opinion, said that a review of the entire record (a task generallyrelegated to staff attorneys) is a procedure that “provides defendants an addedlayer of due process while consuming comparatively little in judicialresources.”
Hedeclared:
“[W]ehave independently reviewed the record for potential error and find no arguableissues.”
Theopinion comes in an appeal by Alex Jennings III from the denial by RiversideSuperior Court Judge John D. Molloy of a petition for resentencing.
Raphael’s Dissent
Raphael,a former Los Angeles Superior Court judge, said in his dissent:
“Thisis defendant and appellant Alex Jennings’ second appeal from a post judgmentmotion where he raises no issues. We are nevertheless issuing an opinionstating that we have reviewed the whole record and found no potential error. Aswith the first uncontested appeal, I would dismiss this appeal as abandoned ina brief unpublished order….
“Jenningswas convicted of attempted murder after he stabbed a victim. We affirmedJennings’s attempted murder conviction in 2013….This appeal comes from thedenial of Jennings’s petition for resentencing under Penal Code section 1172.6,which applies to some defendants convicted on an imputed-malice murder theory,not to those who themselves kill or attempt to kill.
“NeitherJennings nor his lawyer raised any arguments. There is no need to review theentire record and no need to generate a substance-free opinion. We shouldinstead dismiss the appeal as abandoned.”
Thecase is People v. Jennings, E079203.
Two Other Cases
InPeople v. Gallo, decided by the Fourth District’sDiv. Two on Nov 19, 2020, Acting Presiding Justice Douglas P. Miller wrote forthe majority in embracing a view expressed on Sept. 3 of that year by thedistrict’s Div. Three in People v. Flores.There, Justice Eileen C. Moore said:
“Thisis not defendant’s first appeal as a matter of right; therefore, we are not requiredto independently review the record….However, we have found no legal authoritythat prohibits us from conducting such anindependent review in the interests of justice.
Here,we have reviewed the entire record on appeal and found no arguable issues.”
Millersaid in Gallo:
Weagree with Flores that dismissal is discretionary, and that we can andshould independently review the record on appeal in the interests of justice.
Havingreviewed the record, the denial of resentencing was affirmed because theappellant had been the actual killer, ineligible for relief.
JusticeCarol D. Codrington signed Miller’s opinion. Justice Frank J. Menetrezdissented, saying:
“Nomatter how small the record in this case may be, it in no way serves theinterests of justice for us to read it to try to find arguable grounds forreversal, just as it would not serve the interests of justice for us to readthe record searching for ways to square the circle or turn lead into gold orget blood from a stone….[W]e know without reading the record that it is legallyimpossible that reversible error was committed in this case. Consequently,reading the record to try to find arguable grounds for reversal serves nolegitimate purpose and is undeniably a waste of judicial resources.”
OnDec. 22, 2020, Div. Two expressed the view, in a majority opinion by Raphael inPeople v. Scott,that “[t]his case is a typical example of a post judgment appeal that could bedismissed as abandoned by a simple order.” On the face of it, the appellant wasineligible for resentencing, he explained, commenting:
“Weare obligated to serve the public, and independently reviewing records to craftunneeded opinions in uncontested cases does not do so. Our court system isheavily burdened, but by choosing to issue scores of opinions in cases likethis one we are the ones doing the burdening. That burden falls on otherlitigants.”
Raphaelwas joined by Menetrez. Miller, the acting presiding justice, dissented fromthe order of dismissal. , although he said he had independently reviewed therecord before determining that the judgment should be affirmed.
TheCalifornia Supreme Court on March 17, 2021, granted review.
Review Granted
TheSupreme Court has granted review in a number of cases other than Scottwhich raise the same issue. These include the earlier case of Peoplev. Cole, decided by this district’s Div. Two on Aug. 3, 2020.
JusticeBrian M. Hoffstadt wrote that where there is an appeal from a post judgmentorder, “[t]he Court of Appeal has no independent duty to review the record forreasonably arguable issues” and where “the defendant does not file asupplemental brief, the Court of Appeal may dismiss the appeal as abandoned.”
TheThird District Court of Appeal followed Hoffstadt’s approach in its Feb. 22,2021 decision in People v. Figueras
InPeople v. Weisner, a Third District casedecided last April 4, Justice Harry E. Hull Jr. took a different stance. Hesaid in the majority opinion:
“Oncewe hold an appeal from a denial of postconviction relief is not subject to Wendereview, we then have before us a ‘standard’ appeal from an order denyingpostconviction relief in which defendant, through counsel, has stated there areno issues that properly can be raised on appeal Under these circ*mstances, theappeal is abandoned and we will dismiss it.”
Unlikethe circ*mstance where Wendeapplies, he continued, where the inmate has a right to offer his or her ownbrief, no such right exists in a non-Wende context,Hull set forth, explaining that “neither the Sixth Amendment nor the dueprocess clause of the Fourteenth Amendment to the federal Constitutionfurnishes a basis for finding” a right of self-representation on appeal.
“Theissues we here consider are pending before our Supreme Court and the court mayin the future extend what have become known as ‘Wende procedures’to appeals such as this one from orders denying postconviction relief. But itmust be left up to that court to do so,” he wrote. “Until it does, appeals suchas the one presently before us must be considered abandoned and ordereddismissed.”
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