People v. Garcia

Filed 6/5/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D073825

Plaintiff and Respondent,

v. (San Diego County
Super. Ct. No. SCN340086)
JOSE EPIFANIO GARCIA,
ORDER STRIKING
Defendant and Appellant. WENDE/ANDERS BRIEF FILED
BY COUNSEL FOR APPELLANT

THE COURT:

A jury convicted Jose Epifanio Garcia1 of attempted voluntary manslaughter and

assault with a semiautomatic firearm (Pen. Code, §§ 664, 192, subd. (a), 245, subd. (b)),2

and Jose filed an appeal. For reasons we discuss, the Wende/Anders3 brief filed by Jose's

* This matter has been considered by Justices Benke, O'Rourke, and Irion. Justice
Irion concurs in parts I and II and concurs in the result in part III.

1 Jose was jointly tried with his brother, Salvador. For the sake of clarity, we refer
to the Garcia brothers by their first names.

2 Further unspecified statutory references are to the Penal Code.

3 People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967)
386 U.S. 738 (Anders).
appointed appellate counsel is stricken. Counsel is ordered to file a new brief in

conformity with Wende, supra, 25 Cal.3d 436, or file a merits brief.

FACTUAL AND PROCEDURAL BACKGROUND

Jose is Salvador's older brother. Salvador insulted the sister of victim Gerardo M.,

causing animosity between Salvador and Gerardo. A few months later, when Salvador

and Gerardo next saw each other, the unresolved animosity between them led to a

physical fight between two groups of men in the parking lot of Gerardo's apartment

complex. One group included Jose, Salvador, and two of their friends. The other group

included Gerardo, his cousin, and friend, Erik R. Armed with guns, Jose and Salvador

approached Gerardo's unarmed group. Erik, who was a former gang member, suggested

that Jose's group put their guns away and fight "one on one." Members of Jose's group

then began fist fighting with members of Gerardo's group.

During the fight, Salvador pointed a gun at Erik's head. Out of concern for Erik's

life, Gerardo threw a beer bottle at Salvador's head, but missed. The fighting continued,

Gerardo got shot in the torso, and fell to the ground. While Gerardo was down on his

back, Salvador and his friend punched him. Next, Salvador pulled out a gun from his

waistband area and shot Gerardo in the face. At that point, Gerardo's father stopped the

fight. Salvador pointed his gun at several of Gerardo's family members while threatening

to shoot. Jose and Salvador fled the area together.

Gerardo, who survived his gunshot wounds, and his sister identified Salvador as

the shooter. Gerardo identified Jose as a person who had been holding a gun during the

fight.

2
 Jose and Salvador were charged with attempted murder (§§ 664, 187, subd. (a))

and assault with a semiautomatic firearm (§ 245, subd. (b)). During their joint trial, the

People's theory, with respect to attempted murder, was that (1) Salvador shot Gerardo;

and (2) Jose intended to aid and abet Salvador with committing assault with a

semiautomatic firearm, a natural and probable consequence of which was attempted

murder. The court instructed the jury accordingly. The court also instructed the jury on

the lesser included offense of attempted voluntary manslaughter based on heat of

passion/sudden quarrel and imperfect self-defense.

After deliberating, the jury convicted Jose of attempted voluntary manslaughter

and assault with a semiautomatic firearm. (§§ 664, 192, subd. (a), 245, subd. (b).) The

court sentenced him to a prison term of nine years for assault with a semiautomatic

firearm.4 Jose filed a timely appeal.5

APPELLATE PROCEEDINGS

Jose's appointed appellate counsel submitted a brief on Jose's behalf "pursuant to

the procedures outlined in [Wende, supra,] 25 Cal.3d 436 and Anders[, supra,] 386 U.S.

738."

The discussion section of the brief states as follows:

4 The court stayed his sentence on attempted voluntary manslaughter under section
654.

5 Jose's appeal initially proceeded under the same case number as Salvador's appeal.
On the court's own motion, we bifurcated the appeals and assigned this appeal a different
case number.
3
 "When counsel files a brief which sets forth a summary of the
proceedings and facts with citations to the transcript, but raises no
specific issues, the Court of Appeal must conduct a review of the
entire record to determine whether the record reveals any issues
which would, if resolved favorably to the appellant, result in reversal
or modification of the judgment. ([Wende, supra,] 25 Cal.3d 436;
People v. Feggans (1967) 67 Cal.2d 444; Anders[, supra,] 386 U.S
738 . . . ; see also People v. Johnson (1981) 123 Cal.App.3d 106,
109-112.)"

"This brief, with the attached declaration of appellate counsel, is
filed in accordance with the procedures outlined in [Wende, supra,]
25 Cal.3d 436, and People v. Feggans, supra, 67 Cal.2d 444, as
interpreted by the court in People v. Johnson, supra, 123 Cal.App.3d
106. The following information about claims appearing in the
record is provided pursuant to Anders[, supra,] 386 U.S 738, to
assist the court in conducting its independent review of the record."
(Boldface added.)

The brief then identifies general and specific "claims" appearing in the record. Under the

claim headings are citations to the clerk's transcripts and/or reporter's transcripts, and

each claim is accompanied by string citations listed in no particular order, as follows:

"A. ERROR FOR FAILURE TO SEVER APPELLANT'S
CASE FROM THAT OF HIS BROTHER
SALVADOR?

"(CT 1:209, 215-216, RT 1:114-116, RT 16:1260; Pen. Code,
§ 1098; Zafiro v. United States (1993) 506 U.S. 534, 544; People v.
Thompson (2016) 1 Cal.5th 1043, 1081; People v. Homick (2012) 55
Cal.4th 816, 850; People v. Coffman and Marlow (2004) 34 Cal.4th
1, 41; People v. Burney (2009) 47 Cal.4th 203, 236-237; Williams v.
Superior Court (1984) 36 Cal.3d 441, 447-448; People v. Massie
(1967) 66 Cal.2d 899, 917; People v. Cummings (1993) 4 Cal.4th
1233, 1287; United States v. Tootick (9th Cir. 1991) 952 F.2d 1078,
1082; United States v. Romanello (5th Cir. 1984) 726 F.2d 173, 174
People v. Boyde (1988) 46 Cal.3d 212, 231; People v. Jackson
(1996) 13 Cal.4th 1164, 1208-1209; People v. Souza (2012) 54
Cal.4th 90, 110-111; People v. Greenberger (1997) 58 Cal.App.4th
298, 343; People v. Garcia (2008) 168 Cal.App.4th 261, 280; People
v. Hardy (1992) 2 Cal.4th 86, 168; United States v. Sherlock (9th

4
Cir. 1989) 962 F.2d 1349, 1362; United States v. Buena Lopez (9th
Cir. 1993) 987 F.2d 657, 661.)

"B. SUFFICIENCY OF EVIDENCE RE AIDING AND
ABETTING?

"(Juan H. v. Allen (9th Cir.2005) 408 F.3d 1262, 1277-1278; People
v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Covarrubias
(2016) 1 Cal.5th 838, 903; People v. Garcia (2008) 168 Cal.App.4th
261, 272-273; People v. Campbell (1994) 25 Cal.App.4th 402 (30
Cal.Rptr.2d 525, 529); People v. Hickles (1997) 56 Cal.App.4th
1183, 1194; People v. Laster (1997) 52 Cal.App.4th 1450, 1463-
1466; People v. Joiner (2000) 84 Cal.App.4th 946, 967; People v.
Hill (1946) 77 Cal.App.2d 287, 293-294; People v. Olguin (1994) 31
Cal.App.4th 1355, 1376; People v. Godinez (1992) 2 Cal.App.4th
492, 499; People v. Favor (2012) 54 Cal.4th 868, 879-880.)

"C. DID APPELLANT SUFFER PREJUDICE AS A
RESULT OF AN IMPEACHMENT GANG PRIOR AS
TO CODEFENDANT SALVADOR?

"(RT 9:808-812, CALCRIM No. 316 [evidence limited], Evid.
Code, § 352; People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7;
People v. Heckathorne (1988) 202 Cal.App.3d 458, 462-463; People
v. McClellan (1969) 71 Cal.2d 793, 809; People v. Castro (1985) 38
Cal.3d 301, 316; In re Wing Y. (1977) 67 Cal.App.3d 69, 76-
79; People v. Tassell (1984) 36 Cal.3d 77, 88; People v. Williams
(1997) 16 Cal.4th 153, 193; People v. Maestas (1993) 20
Cal.App.4th 1482, 1495; People v. Perez (1981) 114 Cal.App.3d
470, 479; People v. Champion (1995) 9 Cal.4th at 879, 922;
McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1381 and fn. 2;
Henry v. Estelle (9th Cir. 1993) 993 F.2d 1423, 1427-1428.)

"D. ERROR NOT TO GIVE DEFENSE-REQUESTED
CALCRIM NOS. 224 AND 225?

"(RT 11:1018-1019; CALCRIM No. 223 [direct/circumstantial
evidence] and CALCRIM No. 224 [circumstantial evidence] (CT
1:112-113); People v. McKinnon (2011) 52 Cal.4th 610, 676; People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1170; People v. Rogers
(2006) 39 Cal.4th 826, 885; People v. Cole (2004) 33 Cal.4th 1158,
1222; People v. Brown (2003) 31 Cal.4th 518, 562; People v.

5
Marshall (1996) 13 Cal.4th 799, 849; People v. Hughes (2002) 27
Cal.4th 287, 347.)

"E. WERE AIDING AND ABETTING/NATURAL AND
PROBABLE CONSEQUENCES INSTRUCTIONS
PROPER?

"(CT 1:134-137; People v. Beeman (1984) 35 Cal.3d 547, 560-56;
People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118; People v.
Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107-109; People v. Patterson (1989) 209
Cal.App.3d 610, 614; People v. Boyd (1990) 222 Cal.App.3d 541,
557 fn. 14; In re Michael T. (1978) 84 Cal.App.3d 907, 911.)

"F. WERE ALL RELEVANT LESSER-INCLUDED
OFFENSES GIVEN?

"(CT 1:131 [general instruction]; 139 [heat of passion/sudden
quarrel]; CT 1:141 [imperfect self-defense]; People v. Gutierrez
(2003) 112 Cal.App.4th 704, 708); CT 1:145 [assault with a
firearm]; CT 1:147 [simple assault]; CT 1:149 [brandishing] (Pen.
Code, § 417; People v. Wilson (1967) 66 Cal.2d 749, 764; People v.
Carmen (1951) 36 Cal.2d 768, 774; People v. Huynh (2002) 99
Cal.App.4th 662, 677-678; Pen. Code, § 663; People v. Prettyman
(1996) 14 Cal.4th 248, 267; People v. Woods (1992) 8 Cal.App.4th
1570, 1586-1588.)

"G. INCONSISTENT VERDICTS/SUFFICIENT
EVIDENCE - (MOTION FOR ACQUITTAL –
MOTION FOR NEW TRIAL)

"(CT 1:209, 212-215, RT 9:874-875, RT 16:1258-1269; United
States v. Powell (1984) 469 U.S. 57; People v. Lewis (2001) 25
Cal.4th 610, 656; People v. Palmer (2001) 24 Cal. 4th 856, 860-861;
People v. Chagolla (1983) 144 Cal.App.3d 422, 428-429; People v.
Santamaria, supra, 8 Cal. 4th at p. 911; People v. Polowicz (1992) 5
Cal.App.4th 1082, 1089; People v. Pahl (1991) 226 Cal. App. 3d
1651, 1656; People v. Miranda (2011) 192 Cal.App.4th 398, 405;
Count 2: Assault with semiautomatic weapon: Pen. Code, § 245,
subdivision (b); CALCRIM No. 875, CT 1: 143-146 [definition of
firearm vs. semiautomatic]; Pen. Code, § 17140; People v. Dokins
(2015) 241 Cal.App.4th 1179, 1184; In re Jorge M. (2000) 23

6
 Cal.4th 866, 874, fn. 4; People v. Lawley (2002) 27 Cal.4th 102,
132; People v. Bassett (1968) 69 Cal.2d 122, 141.)

"H. CAN VOLUNTARY MANSLAUGHTER EVER BE A
NATURAL AND PROBABLE CONSEQUENCE OF A
MISDEMEANOR LIKE SIMPLE ASSAULT OR
BRANDISHING A WEAPON?

"(RT 11:1023-1027; CT 1:132, CALCRIM No. 252 [aiding and
abetting "requires a specific intent or mental state]; CT 1:136,
CALCRIM No. 402 [aider and abettor must be found guilty of
offense triggering non-target charged offense]; People v.
Canizalez (2011) 197 Cal.App.4th 832, 854; People v. Edwards
(2015) 241 Cal.App. 4th 213, 275 [depub.]; People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 299-300 [simple assault]; People v.
Montes (1999) 74 Cal.App.4th 1050, 1054-1055 [simple assault and
breach of the peace for fighting in public]; People v.Chui (2014) 59
Cal.4th 155, 164; People v. Favor (2012) 54 Cal.4th 868, 872;
People v. Huynh (2002) 99 Cal.App.4th 662, 681; People v. Flores
(2016) 2 Cal.App.5th 855, 866; People v. King (1938) 30
Cal.App.2d 185, 200; People v. Lucas (1997) 55 Cal.App.4th 721,
732-733; People v. Medina (2009) 46 Cal.4th 913, 922-923; People
v. Butts (1965) 236 Cal.App.2d 817, 836; People v. Hickles
(1997) 56 Cal.App.4th 1183, 1197.)

"I. DID THE COURT ABUSE ITS DISCRETION BY
SENTENCING APPELLANT, A MERE AIDER AND
ABETTOR, TO AN UPPER TERM OF 9 YEARS?

"(RT 16:1286-1287, Williams v. New York (1949) 337 U.S. 241,
247; United States v. Barker (9th Cir. 1985) 771 F.2d 1362, 1365;
People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Black
(2007) 41 Cal.4th 799, 817.)"

Although counsel presented the foregoing list of "claims," she states in a declaration

attached to the brief that she has thus far not "uncovered any arguable appellate issues."6

6 We notified Jose that his counsel filed a Wende brief stating no arguable issues
could be found, and granted him 30 days to file any supplemental brief he deemed
necessary. Jose did not file any supplemental brief.
7
 COURT'S CONCERNS WITH COUNSEL'S BRIEF

Because of the nature of the claims raised by counsel, this court could not

unequivocally discern whether counsel was presenting arguable appellate issues for our

adjudication. For example, claim E. asks, "Were aiding and abetting/natural and

probable consequences instructions proper?" Counsel further asks in claim I., "Did the

court abuse its discretion by sentencing appellant, a mere aider and abettor, to an upper

term of 9 years?" Since the term "claim" generally means to demand or assert as one's

own right,7 we requested supplemental briefing, asking directly of Jose's counsel what

she meant by describing the issues as " 'claims' . . . i.e., what is a 'claim'? "

In response, counsel stated: "The use of the word 'claim' is in compliance with

this court's policy of requiring an Anders 'listing' to assist the court in its review."

We remain concerned about the propriety of counsel's brief. There is no court

policy requiring counsel to present claims in a Wende brief. Moreover, counsel did not

directly answer our request that she explain the meaning behind her use of the phrase

"claims appearing in the record." We still do not fully understand what, exactly, Jose's

counsel is requesting that we do with the claims, or demands, she has set forth.

It is possible that counsel was following the guidance provided to all appointed

counsel panel attorneys by Appellate Defenders, Inc. (ADI), a nonprofit law firm that

administers the appointed counsel system for the California Court of Appeal, Fourth

Appellate District. ADI disseminates an appellate practice manual (ADI, Appellate

7 Black's Law Dict. (10th ed. 2014) p. 301, col. 2. "Claim" also means to state "that
something yet to be proved is true."
8
Practice Manual (2d Ed., rev. Sept. 2017); Manual) as a guide to appointed counsel, and

the Manual includes a section on the filing of Wende/Anders briefs. (Manual, § 4.77 et

seq.) The Manuel provides:

"A question of some disagreement is whether a no-issue filing
should describe the issues counsel considered. [Anders, supra,] 386
U.S 738, 744-745, held counsel must file a 'brief referring to
anything in the record that might arguably support the appeal' and
pointed out such a brief would 'induce the court to pursue all the
more vigorously its own review because of the ready references not
only to the record, but also to the legal authorities as furnished it by
counsel.' In Smith v. Robbins (2000) 528 U.S. 259 [(Smith)],
however, the United States Supreme Court held listing possible
issues is not invariably required by the Constitution, if other
safeguards are in place.

"Some courts have strong preferences one way or the other as to
the listing of issues, and counsel should naturally heed those. Some
courts indifferently leave the matter to counsel's discretion, and
some are not clear one way or another. (See, e.g., People v. Kent
(2014) 229 Cal.App.4th 293 [Fourth Dis., Div. 3: encouraging listing
of issues and disagreeing with since-withdrawn opinion from
another panel of same court criticizing that practice].)

"ADI for the most part encourages listing of issues. It is a way of
stimulating and organizing counsel's thoughts, suggesting issues to
the Court of Appeal it might not otherwise consider, and
demonstrating counsel's efforts to the court, the project, and the
client." (Manual, supra, § 4.79, p. 44.)8

Three things at once stand out. First, the Manual states that there is

"disagreement" (presumably among Supreme Court opinions), as to whether an Anders

listing of issues in a Wende brief is constitutionally required. The Manual indicates that

8 The Manual is publicly available online, free of charge. The most recent version
of the Manual can be viewed at http://www.adi-sandiego.com/panel/manual.asp (last
visited May 23, 2018).
9
Anders requires a listing, while Smith, supra, 528 U.S. 259, does not. Second, the

Manual observes there is wide variation among California appellate courts as to how and

when Anders issues may be raised in a "no-issue filing." Thus, per the Manual, there is

no uniformity in California with respect to providing a list of Anders issues. Third, given

the lack of definitive law on the practice of listing Anders issues, the Manual encourages

appellate counsel to list issues, ranging from those that help to organize counsel's

thoughts to those that might otherwise be overlooked by the court, all of which ADI

believes will demonstrate counsel's efforts to the court, ADI, and the client.

We agree there is no definitive statement of law regarding whether Anders issues

may be included in a Wende brief or whether the practice is uniformly beneficial to

appellants. In this case, we see no legitimate purpose served by the presentation of

Anders issues, where from counsel's listing of "claims," it cannot be discerned which

claims counsel deems worthy of further analysis or which were merely nascent,

"organizational" issues. Therefore, as we explain, we strike the Wende/Anders brief filed

in this case.

I

We first state what we believe is clear: there is no constitutional requirement that

issues arguably supporting an appeal be listed in a Wende brief. That is, neither the

United States Supreme Court nor the California Supreme Court has ever held that a

listing of Anders issues is required in a Wende brief. Moreover, we do not perceive any

inconsistency on this point of law.

10
 In Smith, the court clarified and emphasized that the Anders framework, including

the step in which counsel lists arguable issues in support of his or her motion to

withdraw, was only a "suggestion." (Smith, supra, 528 U.S. at pp. 273-274.) The Smith

court noted that Anders "sketched" out merely one method of protecting an indigent

defendant's constitutional right to appellate counsel, and individual states are free to

adopt different procedures "so long as those procedures adequately safeguard a

defendant's right to appellate counsel." (Smith, at pp. 265, 272-276.) Thus, Anders does

not require any state's procedure for treating frivolous appeals to include a step of

presenting arguable legal issues. (Smith, at pp. 272-273.)

II

Having concluded that an Anders "listing" is not constitutionally required in all

states, the question arises whether an Anders listing is a required step in California's

Wende process. We have found no case holding that listing Anders issues is a

requirement in California's Wende procedure. On the contrary, every relevant authority

we have consulted holds that full compliance with the Wende procedure alone sufficiently

safeguards an indigent's right to effective counsel. (E.g., Smith, supra, 528 U.S. at p. 284

["It is enough to say that the Wende procedure . . . affords adequate and effective

appellate review for criminal indigents. Thus, there was no constitutional violation in

this case . . . ."]; People v. Kelly (2006) 40 Cal.4th 106, 118 (Kelly) [Wende is a

"modified procedure [from Anders] to ensure an indigent criminal defendant's right to

effective assistance of counsel."].)

11
 III

The only remaining question is whether an Anders listing is beneficial to a

reviewing court and more so, to the interests of appellants seeking review. We conclude

the answer is, it can be (see People v. Kent (2014) 229 Cal.App.4th 293, 296), but not

always.

Providing a list of Anders issues is a problematic endeavor. As three dissenting

justices in Anders pointedly observed, "[t]he Court today . . . imposes upon appointed

counsel who wishes to withdraw from a case he deems 'wholly frivolous' the requirement

of filing 'a brief referring to anything in the record that might arguably support the

appeal.' But if the record did present any such 'arguable' issues, the appeal would not be

frivolous and counsel would not have filed a 'no-merit' letter in the first place." (Anders,

supra, 386 U.S. at p. 746 (dis. opn. of Stewart, J.), italics added.)

Many years later, the Smith court, in approving California's Wende procedure and

contrasting it with Wisconsin's procedure discussed in McCoy v. Court of Appeals, Dist.

1 (1988) 486 U.S. 429, pointed out the weaknesses inherent in the Anders process. The

Smith court addressed the concerns of the Anders dissent, and the criticism of others, that

the Anders procedure is incoherent and impossible to follow: "Those making this

criticism point to our language in Anders suggesting that an appeal could be both 'wholly

frivolous' and at the same time contain arguable issues, even though we also said that an

issue that was arguable was 'therefore not frivolous.' [Citation.] In other words, the

Anders procedure appears to adopt gradations of frivolity and to use two different

meanings for the phrase 'arguable issue.' The Wende procedure attempts to resolve this

12
problem as well, by drawing the line at frivolity and by defining arguable issues as those

that are not frivolous." (Smith, supra, 528 U.S. at p. 282, fn. omitted.)

The Smith court also addressed the related ethical problems—created by Anders

and arguably exacerbated by the Wisconsin procedure discussed in McCoy—from

counsel's having to characterize an appeal as frivolous and at the same time set forth

arguable issues. The court noted that, under Wende, these ethical problems are mitigated

because appellant's counsel is not required to describe the appeal as frivolous or raise

specific legal issues. (Smith, supra, 528 U.S. at pp. 281-282, 283-284.)

The Supreme Court observed that listing Anders issues comes with a potential

downside—the use of scarce resources and diverting a Court of Appeal from more

meritorious issues—avoided under the Wende procedure. (Smith, supra, 528 U.S. at pp.

282, fn. 13, 283-284.) Unlike the procedure in McCoy, in which the court reviews only

parts of the record cited by counsel in support of the "arguable" issues raised, the Wende

procedure requires "a more thorough treatment of the record by both counsel and court."

(Smith, at p. 283.) The Smith court noted that a McCoy-like process does assist the

reviewing court "by directing it to particular legal issues; as to those issues, this is

presumably a good thing. But it is also possible that bad judgment by the attorney in

selecting the issues to raise might divert the court's attention from more meritorious,

unmentioned, issues." (Id. at p. 284, italics added.) Moreover, as to the issues that

counsel raises in a McCoy-type brief, the one-sided briefing on why those issues are

frivolous may predispose the court to reach the same conclusion. "The Wende procedure

reduces these risks, by omitting from the brief signals that may subtly undermine the

13
independence and thoroughness of the second review of an indigent's case." (Ibid.,

italics added; see Kelly, supra, 40 Cal.4th at p. 119 [summarizing Wende procedure and

highlighting "the importance of the appellate court's responsibility in Wende appeals to

perform a thorough review of the record"].)

CONCLUSION

The case before us demonstrates a misuse of the Anders process. As we have

discussed, listing Anders issues is not a mandatory step in California's Wende procedure,

which defines an arguable issue as one that is not frivolous. Further, an Anders listing is

not necessarily helpful to the reviewing court or to an appellant. The laundry list of nine

"claims" or issues included in the Wende/Anders brief filed here illustrates the difficulty

of grafting an "Anders list" into California's Wende procedure. Some "claims" are quite

specific and phrased in the form of arguable issues, while others are broad and academic

with no apparent application in this case. Counsel gives us scant assistance by her

inclusion of unorganized, voluminous string citations.

Accordingly, we strike the Wende/Anders brief filed in this appeal and direct

appellate counsel, within 20 days of the date of this order, to either file a Wende brief

devoid of so-called "claims" appearing in the record (Anders issues), or file a brief on the

merits containing fully developed arguments on specific claims or issues. Any merits

14
brief will be treated as an opening brief and must be filed according to the California

Rules of Court governing appeals.

BENKE, Acting P. J.

Copies to: All parties

15