P. v. Weisner

Filed 4/27/22; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and 8.1115 (and corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKIE JAMES WEISNER,

Defendant and Appellant.

C095039

(Super. Ct. No. LODCRFE20170002477)

APPEAL from a judgment of the Superior Court of San Joaquin County, RichardJ. Guiliani, Judge. Dismissed.

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

No appearance for Plaintiff and Respondent.

Defendant Frankie James Weisnerpleaded 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 section1170.18, 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 (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.)
Discussion
Review pursuant to Wende or its federal constitutional counterpart Andersv. California (1967) 386 U.S. 738 (Anders)is required only in the first appeal of right from a criminal conviction. (Pennsylvaniav. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.)
California’s “Wende procedure” does not apply to appeals such as this one which is froma denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108, 111, review grantedMay12,2021,S267870;People v.Flores(2020)54 Cal.App.5th266, 271;People v. Cole (2020) 52 Cal.App.5th 1023, 1032, 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 (Sade. C.) [Wende/Anders review “mandated for only one [situation]—theindigentcriminaldefendantinhisfirstappealasofright”].)
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 [Pennsylvaniav.] Finley[, supra,] 481U.S. [at p.]555; [Conservatorship of] Ben C.[, supra,] 40 Cal.4th [at pp.] 538-543; [[Sade C., supra,] 13 Cal.4th [at pp.] 986-993.)’ (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, 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 willdismiss 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, 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.)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 [].) 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).In accord is the experience of Division One of the Fourth Appellate District of the Court of Appeal, as it recently recounted in Inre Angelica V. having applied the procedures in question for more than a decade under its holdings in Brian B. [(1983) 141Cal.App.3d 397] and Joyleaf W. [(1984) 150Cal.App.3d 865], the court declared that ‘we have discovered, to the best of our present recollection, no unbriefed issues warranting further attention.’ (Inre 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.” (SadeC., supra, 13 Cal.4th at p. 990.)
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[(1981)] 455 U.S. [745,] 764 [].) Such value, however, is too slight to compel their invocation.” (In re Sade C., supra, 13 Cal.4th at pp. 990-991, 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 properdisposition of non-Wende appeals where, as here, the defendant/appellant has chosen toraise issues in the appeal on his own and notwithstanding the fact that his appointedcounsel 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 anon-Wende appeal?
“Thegeneralrulethatadefendantwhoisrepresentedbyanattorneyofrecordwill 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 (ElectricUtilitiesCo. v.Small-page(1934),137 Cal.App.640,641-642).” (People v.Mattson (1956)51 Cal.2d777,798(Mattson).)
“[T]hereisnoright⸺constitutional,statutory,orotherwise⸺toself-representation in a criminal appeal in California. (See People v. Stanworth (1969)71 Cal.2d 820, 834-835[] [no right to dismiss counsel in capital appeals]; People v.Scott[(1998)]64Cal.App.4th[550,]569573[][noncapitalappeals].) Inparticular, neithertheSixthAmendmentnorthedueprocessclauseoftheFourteenthAmendment to thefederalConstitutionfurnishesabasisforfindingsucharight. (Martinez[ v. Court of Appeal of Cal., Fourth Appellate Dist.(2000)] 528 U.S.[152,]160-163[] [(Martinez)].) AstheUnitedStatesSupreme Court recently explained, the sole constitutional right to self-representationderives from the Sixth Amendment, which pertains strictly to the basic rights that anaccused enjoys in defending against a criminal prosecution and does not extend beyondthe point of conviction.(Martinez, supra, 528 U.S. at pp. 154, 160-161.)Emphasizingthat the change in one’s position from ‘defendant’ to ‘appellant’ is a significant one, thehigh court found that the balance between a criminal defendant’s interest in acting as hisor her own lawyer and a state’s interest in ensuring the fair and efficient administration ofjustice ‘surely tips in favor of the [s]tate’ once the defendant is no longer presumedinnocent but found guilty beyond a reasonable doubt. (Id. at p. 162.) Consequently, thecourt concluded, states may exercise broad discretion when considering whatrepresentation to allow and may require an indigent inmate ‘to accept against his will astate-appointed attorney’ for representation on a direct appeal without violating thefederalConstitution. (Martinez,supra,528 U.S.atp. 164.)
“Asrelevanthere,representedcapitalinmatesarenotpermittedtopresenttheir automatic appeals personally to this court. That is, such inmates have no right personallyto supplement or supersede counsel’s briefs and arguments on the merits of their appeals. ([People v.]Clark[(1992)]3 Cal.4th[41,]173[(Clark)];Mattson, supra,51 Cal.2d[777,]798.)As we explained in Mattson, pro se submissions pertaining to an appeal will not be filedor considered ‘[b]ecause of the undesirability of fruitlessly adding to the burdens of thiscourtthetime-consumingtaskofreadingprosedocumentswhicharenotproperlybefore us, and, if they be read, of consequently enlarging [the] opinion by a recountal anddiscussion of the contentions made in propria persona . . . .’ (Mattson, supra, 51 Cal.2datp. 798.)
“Thus, all appellate motions and briefs must be prepared and filed by counsel and may not be submitted pro se. (Clark, supra, 3 Cal.4th at p. 173.) Although we willaccept and consider pro se motions regarding representation (i.e., Marsden motions tosubstitute counsel), such motions ‘must be clearly labeled as such’ and ‘must be limitedto matters concerning representation.’ (Clark, supra, 3 Cal.4th at p. 173.)Any other pro se document offered in an appeal ‘will be returned unfiled’ (ibid.), or, if mistakenly filed,will be stricken from the docket (Mattson, supra, 51 Cal.2d at p. 798).” (In re Barnett(2003)31 Cal.4th466,473-474(Barnett),italicsadded; accord, Clark, at p. 173,overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462[reiterating the rule a defendant who is represented by an attorney will not be personally recognized by the court in the conduct of his case applies only to a defendant’s filing of pro se documents on appeal].)
Although Barnett was a capital appeal, notably, the Supreme Court cited with approval People v. Scott and Mattson, thus extending the same appellate rules to noncapital appeals.
Thus, in a non-Wendeappeal, the defendant, as an individual, does not have therighttosubmithisorherownargumentstothecourtforresolution.
Some appellate courtshaveadoptedaprocedurethatallowsthemtoconsider and decide an appellant’s arguments raised in his or her own supplemental briefsby turning to the court’s supervisory power to control the proceedings before it. (See,e.g., People v. Cole, supra, 52 Cal.App.5th 1023, review granted.) Thosecourts lack that authority given the California Supreme Court’sholdingsinMattson, Clark, and Barnett.
The issues we here consider are pending before our Supreme Court and the court may in the future extend what have become known as“Wendeprocedures”toappealssuchasthisonefromordersdenyingpostconviction relief. Butitmustbeleftuptothatcourttodoso. Untilitdoes,appeals suchastheonepresentlybeforeus must be considered abandoned and ordered dismissed.
Disposition
The appeal is dismissed.

HULL, J.

I concur:

BLEASE, Acting P. J.

Renner, J., Dissenting.
I respectfully dissent. I disagree with the majority’s conclusion that we lack the authority to consider and decide defendant’s arguments raised in his supplemental brief under our supervisory power. (Maj. opn., at p. 7.) (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Other courts of appeal have authorized the filing of a supplemental brief by a defendant in an appeal from the denial of postconviction relief when counsel has filed a brief advising the appellate court that there are no arguable issues on appeal. (E.g., People v. Gallo (2020) 57 Cal.App.5th 594, 598 [“We offered defendant an opportunity to file a personal supplemental brief, and he has not done so”]; People v. Cole (2020) 52 Cal.App.5th 1023, 1028, 1039, rev. granted Oct. 14, 2020, S264278.) This court has implicitly done so as well. (See People v. Figueras (2021) 61 Cal.App.5th 108, 113, rev. granted May 12, 2021, S267870 [“Because defendant has not filed a supplemental brief, we dismiss the appeal as abandoned”].) While we await further guidance from our Supreme Court on what procedures we must follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit, I would address the issues raised in defendant’s pro per supplemental brief.

RENNER, J.