Filed 6/28/22 P. v. Ortega CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095041
Plaintiff and Respondent, (Super. Ct. No. 08F07509)
v.
VICTOR ANTHONY ORTEGA,
Defendant and Appellant.
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
In 2010, a jury found defendant Victor Anthony Ortega guilty of first degree
murder and found true the allegation he personally and intentionally discharged a firearm
causing death or injury. Sentenced to 50 years to life in prison, defendant appeals the
trial court’s order entered at his October 2021 hearing, held pursuant to People v.
Franklin (2016) 63 Cal.4th 261, denying him the right to self-representation under
Faretta v. California (1975) 422 U.S. 806. He also purports to appeal the denial of his
separate July 2021 motion to modify his restitution fine.
1
Appointed counsel for defendant filed an opening brief setting forth the facts of
the case and asking this court to review the record to determine whether there are any
arguable issues on appeal. Defendant filed two supplemental briefs, arguing the trial
court erred in declining to allow him to represent himself at the Franklin hearing and also
erred in not “resentencing” him at that hearing, adding that his counsel was ineffective;
he also raises multiple arguments concerning his original murder conviction as well as his
Penal Code1 section 1170.95 petition, which was previously denied by the trial court and
is now pending in our Supreme Court.
We shall affirm the trial court’s orders entered at the Franklin hearing.
We shall dismiss the remainder of defendant’s claims, for reasons we explain post.
BACKGROUND
During a fight with the victim and another, defendant shot and killed the victim.
(People v. Ortega (Apr. 10, 2012, C065027 [nonpub. opn.].)2 In April 2012, we affirmed
the judgment on appeal. (Ortega, supra, C065027.) That judgment became final later in
2012, after the denial of defendant’s petition for review to the Supreme Court. Since that
1 Further undesignated statutory references are to the Penal Code.
2 On our own motion, we take judicial notice of our opinion affirming the judgment of
conviction and sentence on direct appeal. (Evid. Code, §§ 459, subd. (a) [“The reviewing
court may take judicial notice of any matter specified in Section 452”], 452, subd. (d)
[permitting a court to take judicial notice of records of “any court of this state”].) We
also take judicial notice of the numerous appeals filed by defendant in his case: People v.
Ortega, case No. C091229 [motion to modify or strike restitution fine; dismissed as
nonappealable order]; People v. Ortega, case No. C092671 [motion for resentencing
under § 1170.95; dismissed as abandoned, review granted May 12, 2021, pending
People v. Delgadillo, S266305]; People v. Ortega, case No. C093824 [motion to modify
restitution fine and fees; dismissed as nonappealable order]; People v. Ortega, case
No. C094166 [motion to modify or strike restitution fine and three other motions;
dismissed as nonappealable order]; In re Victor Anthony Ortega on Habeas Corpus, case
No. C093587 [ineffective assistance of counsel at trial; petition denied].)
2
time, defendant has filed six appeals and one petition for habeas corpus purporting to
challenge various aspects of the judgment in this case.
Of those, one is relevant here. In case No. C092671, defendant appealed the trial
court’s September 1, 2020, denial of his petition seeking to be resentenced pursuant to
section 1170.95. After his counsel filed a Wende brief, this court dismissed that case as
abandoned. Defendant filed a petition for review in the Supreme Court, which was
granted on May 12, 2021. The Supreme Court deferred consideration of the matter
pending the disposition of another case; defendant’s appeal from that postjudgment order
remains pending in the Supreme Court.
On July 30, 2021, defendant filed a new motion in the trial court challenging his
restitution fine and other fees not relevant here. The trial court dismissed the motion as
to the restitution fine, recognizing it lacked jurisdiction to modify that fine. Defendant
purported to appeal that dismissal.
On a parallel track, in August 2021, defendant submitted a packet of information
to the trial court pursuant to Franklin and section 3051 for the parole board to consider at
a future parole hearing. The trial court held the Franklin hearing on October 8, 2021;
defendant was personally present. At that hearing, the court stated: “I read through your
packet [defense counsel], and I want to commend you for the thoroughness of it. You
and your investigator have gone through a lot of work on behalf of [defendant], and it
shows in the thoroughness and completeness of your investigation. I want to commend
you on behalf of your client.” The prosecution echoed the court’s sentiments and agreed
to everything that was submitted. The trial court ordered the packet be forwarded to the
Department of Corrections and Rehabilitation for future consideration.
As the hearing was ending, defense counsel stated, “Your honor, Mr. Ortega is
requesting to proceed pro per.” The trial court responded, “We are done. We are done,
Mr. Ortega. Thank you.” Defendant filed a timely notice of appeal from that
postjudgment order, and raises several claims related thereto in his supplemental filings.
3
DISCUSSION
I
Wende Review
We consider both appeals together in this case.
Counsel filed an opening brief setting forth the facts and procedural history of the
case and requested this court review the record and determine whether there are any
arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was
advised of his right to file a supplemental brief within 30 days of the date of filing of the
opening brief. He has filed two briefs we will discuss below.
Our Supreme Court has not yet addressed whether the protections afforded by
Wende and Anders v. California (1967) 386 U.S. 738 apply to an appeal from
postjudgment orders. (People v. Serrano (2012) 211 Cal.App.4th 496, 503; People v.
Freeman (2021) 61 Cal.App.5th 126, 132-133.) “Published decisions by our courts of
appeal uniformly agree that Wende/Anders does not require independent review of
appeals from postjudgment orders in criminal proceedings, though they are split on
whether in certain contexts a court should nonetheless exercise discretion independently
to review a summary denial.” (Freeman, at p. 133.)
Although we agree that Wende appeals from postjudgment orders should routinely
be dismissed as abandoned if defendant does not file a supplemental brief, where
defendant has submitted a supplemental brief, the appeal has not been abandoned.
Specific issues have been raised, and those issues are properly decided. (See People v.
Freeman, supra, 61 Cal.App.5th at p. 134.) We acknowledge this view has been
criticized (see People v. Scott (2020) 58 Cal.App.5th 1127, 1132-1135, review granted
Mar. 17, 2021, S266853), but note that even the majority in the Scott case opined an
appellate court should address those contentions where the defendant filed a timely
supplemental brief. (Id. at p. 1134.) We understand our dissenting colleague disagrees
with this view, see People v. Weisner (2022) 77 Cal.App.5th 1072, 1077, but respectfully
4
submit that where, as here, appointed counsel explicitly advises a defendant that they are
now on their own and must raise their own points, if any, on appeal, we should consider
those issues raised, even though defendant remains technically represented by counsel.
For this reason and those set forth in the dissenting opinion in Weisner, at page 1079, we
shall consider defendant’s arguments here.
II
Cognizability of Issues Raised in Defendant’s Briefing
Defendant argues the trial court erred in not allowing him to represent himself at
the Franklin hearing. He adds several claims regarding his right to resentencing at the
Franklin hearing or upon the hearing of his motion to modify his fine and fees, and
alternatively argues his counsel was ineffective for not asking the prosecutor to
recommend resentencing or directly asking the trial court for resentencing at the Franklin
hearing.3
Defendant also raises claims about his original trial; he argues that he is entitled to
a new trial, that the jury should have been apprised of his mental health condition, and
that the contents of his Franklin packet demonstrate his trial counsel and original
appellate counsel provided him with ineffective assistance. In his second filing, he
appears to claim the trial court erred in denying his subsequent section 1170.95 petition
and mentions the court’s denial of his motions to strike restitution, to strike his gun
enhancement, to disqualify the trial judge, and to suppress a pretrial identification at trial.
Defendant thus asks us to review three types of claims. First, he requests us to
rule on issues related to his initial trial, including his initial sentencing and desire for a
resentencing hearing unrelated to section 1170.95. But his judgment is long since final.
3 Defendant’s statements regarding his Franklin attorney’s conduct are contradictory.
He states his attorney said they would ask the prosecutor and the court to reconsider his
sentence, but later states his attorney told him that they would not ask for this relief.
5
Second, defendant seeks review of the trial court’s denial of his section 1170.95
petition; this postjudgment order is currently before the Supreme Court and we do not
have jurisdiction to address any claims challenging any aspects of the order.
Third, defendant raises issues regarding his Franklin hearing. We conclude the
orders made at the Franklin hearing are the only orders properly before us, and shall
address defendant’s claims and affirm the challenged orders.
A. Claims Related to the Final Judgment
Turning first to the claims related to his original trial, defendant raises challenges
based on evidence not presented to the jury, the denial of trial motions, his trial and
appellate counsels’ effectiveness, and sentencing issues. As we explained ante,
defendant’s judgment after trial was affirmed on appeal and became final in 2012. “[A]
judgment becomes final ‘ “where the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed.” ’
[Citations.] Once that process ends, the judgment may be challenged on collateral
review. Merely filing a collateral attack does not make the judgment nonfinal.”
(People v. Padilla (2022) 13 Cal.5th 152, 162.)
Defendant’s many claims of error related to his original trial are long final, and are
not cognizable on this appeal. These claims must be dismissed. This is also the situation
with defendant’s challenges to his current sentence, the restitution ordered, the gun
enhancement, and his request for resentencing under section 1170, subdivision (d). The
trial court had no jurisdiction to address these claims, and neither do we.
B. Section 1170.95 Petition
We next turn to defendant’s claim pertaining to his section 1170.95 petition, which
is not cognizable here because of defendant’s appeal currently pending in the Supreme
Court. An appeal from an order in a criminal case removes the subject matter of that
order from the jurisdiction of the trial court. (Anderson v. Superior Court of Solano
County (1967) 66 Cal.2d 863, 865.) “Pending the appeal the superior court has no
6
jurisdiction to vacate the judgment or make any order affecting it.” (People v. Sonoqui
(1934) 1 Cal.2d 364, 366.)
In the case currently before the Supreme Court, defendant sought to vacate his first
degree murder conviction and to be resentenced under section 1170.95. The trial court
rejected this petition; we dismissed his subsequent appeal as abandoned. The Supreme
Court granted review, and the case remains pending.
To the extent defendant’s appeal can be construed to raise any issues that have
anything to do with his section 1170.95 petition, those issues are not cognizable before
this court because they are within the subject matter of the order currently on review at
the Supreme Court. We dismiss those claims as well.
C. Claims Related to Defendant’s Franklin Hearing
The denial of the Franklin hearing resulted in an appealable postjudgment order;
claims related to that hearing are properly before us on this appeal.
Under section 3051, the parole board is required to conduct a “youth offender
parole hearing” during the 15th, 20th, or 25th year of the offender’s incarceration. In
People v. Franklin, supra, 63 Cal.4th at pages 268-269, the Supreme Court provided for a
proceeding that allows a youthful defendant to make a record of mitigating evidence tied
to his youth. At that hearing, a youthful offender is entitled to “place on the record any
documents, evaluations, or testimony (subject to cross-examination) that may be relevant
at his eventual youth offender parole hearing, and the prosecution likewise may put on
the record any evidence that demonstrates the juvenile offender’s culpability or cognitive
maturity, or otherwise bears on the influence of youth-related factors.” (Id. at p. 284.)
1. Faretta Motion
Defendant contends the trial court erred when it denied his request to represent
himself at the Franklin hearing. We disagree. Although the trial court did not expressly
discuss the relevant factors in denying defendant’s untimely motion, the record
7
demonstrates the court had those factors in mind in making its ruling and those factors
supported denial of his motion.
“[I]n order to invoke the constitutionally mandated unconditional right of self-
representation a defendant in a criminal trial should make an unequivocal assertion of
that right within a reasonable time prior to the commencement of trial.” (People v.
Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted.) An untimely Faretta motion is
left to the sound discretion of the trial court. (Windham, at p. 128.) In ruling on the
motion, “the trial court shall inquire sua sponte into the specific factors underlying the
request thereby ensuring a meaningful record in the event that appellate review is later
required. Among other factors to be considered by the court in assessing such requests
made after the commencement of trial are the quality of counsel’s representation of the
defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the
request, the length and stage of the proceedings, and the disruption or delay which might
reasonably be expected to follow the granting of such a motion.” (Ibid.)
“[W]hile the trial court may not have explicitly considered each of the Windham
factors, there were sufficient reasons on the record to constitute an implicit consideration
of these factors.” (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) First, the Faretta
motion was made for the first time after the business of the Franklin hearing had been
completed and the court ordered the packet to be submitted to the Department of
Corrections and Rehabilitation. Defendant was present in court during the entire hearing
as the court and counsel discussed the contents of his Franklin packet. Defendant
responded to the court’s greeting, but made no other statements. The court was cognizant
of the quality of defendant’s counsel’s representation; it commented favorably on the
content and thoroughness counsel put into the Franklin packet submitted and went out of
its way to commend counsel on the quality of the work.
In terms of the motion’s timing, the postjudgment hearing had successfully
concluded and no further action was necessary or appropriate.
8
Further, the record demonstrates no reason proffered for defendant’s request to
represent himself. Defendant did not attempt to provide a reason to the trial court.
Defendant’s supplemental brief suggests the reasons he sought to represent himself were
to seek a new trial, to seek resentencing, or to declare his trial counsel and appellate
counsel ineffective. As noted ante, the purpose of a Franklin hearing is limited. None of
defendant’s reasons for seeking new counsel fall within the limited nature of the issues
that may be entertained during a Franklin hearing, nor could the trial court provide any
relief on these subjects.
The trial court could have reasonably expected disruption of its proceedings as
well as delay due to the late timing of this request after the business of this particular
hearing was completed. Thus, we conclude the trial court did not err in denying
defendant’s untimely Faretta motion.
2. Ineffective Assistance of Counsel
Defendant also argues that his counsel was ineffective at the Franklin hearing
because counsel did not obtain and include a “psych[ological] report” in the packet.
To establish ineffective assistance of counsel, a defendant must show counsel’s
performance was “deficient, in that it fell below an objective standard of reasonableness
under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) A
defendant must also show “resulting prejudice, i.e., a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding would have been
different.” (Ibid.) On review, the “court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range of reasonable professional
assistance.” (Ibid.) Reversal is appropriate only if: “(1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there simply could be
no satisfactory explanation.” (Ibid.) All other ineffective assistance of counsel claims
“are more appropriately resolved in a habeas corpus proceeding.” (Ibid.)
9
Here, the record establishes the trial court found counsel did a commendable job
of gathering the facts and documents necessary for defendant’s future parole hearings.
Defendant has not demonstrated how failing to add another report to this assembly was
objectively deficient, nor has he established how this caused him prejudice. Further, this
record does not affirmatively disclose counsel had no rational tactical purposes for
selecting the documentation and evidence submitted, or that there is no satisfactory
explanation for his actions. Indeed, defendant states counsel gave him a legitimate
tactical reason--there was no reason to add a report like this to a packet already
containing the same information.
Having further examined the record pursuant to Wende, we find no arguable error
during the course of the Franklin hearing that would result in a disposition more
favorable to defendant.
DISPOSITION
The trial court’s orders entered at the Franklin hearing are affirmed. All other
claims are dismissed, as described by this opinion.
/s/
Duarte, J.
I concur:
/s/
Renner, J.
10
HULL, J., Concurring.
I concur in the result, but I do not agree with the majority’s adoption of “Wende-
like” procedures in appeals such as these.
While the majority does not decide the question, I am of the opinion that
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, review
granted May 12, 2021, S267870, (Figueras); People v. Flores (2020) 54 Cal.App.5th 266
(Flores); People v. Cole (2020) 52 Cal.App.5th 1023, 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]—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 [(1987)] 481 U.S. [551,] 555];
[Conservatorship of] Ben C. [(2007)] 40 Cal.4th [529,] 538–543; Sade C., supra,
13 Cal.4th at pp. 986–993.)’ (Cole, supra, 52 Cal.App.5th at p. 1034, review granted;
[Flores, supra,] 54 Cal.App.5th[ at p.] 271.)” (Figueras, supra, 61 Cal.App.5th at p. 111,
review granted.) Thus, these courts held that the Constitution does not require “the
adoption or extension” of Wende procedures to appeals from postconviction proceedings.
I agree with this.
Nonetheless, the Figueras court decided, again following Cole, that in appeals
such as these, due process requires that (1) appointed counsel must independently review
the entire record and if counsel concludes there are no arguable issues on appeal file a
1
brief with the court saying so, (2) appointed counsel must inform the defendant that the
defendant has the right file a supplemental brief, and (3) the court has a duty to address
any issues raised by the defendant in a supplemental brief.
It is here that we part company.
In both Cole and Figueras the courts correctly decided the Constitution did not
require an “adoption or extension” of Wende procedures to appeals seeking
postconviction relief, but then, invoking their powers to control the proceedings before
them, declared that due process required Wende-like procedures and the application of
Wende-type procedures to appeals seeking postconviction relief. Neither court explains
adequately why due process requires what are in practical measure Wende procedures in
non-Wende appeals.
I agree that in the circumstances before us appointed counsel should independently
review the record to decide whether there are any arguable issues on appeal and, if there
are not, notify the court of counsel’s determination. I do not agree that, in those
circumstances, the appellate court is then required to conduct a review of the entire
record searching for error or that counsel must advise the defendant of a “right” to file a
supplemental brief. Nor do I agree the court has a duty to address issues raised solely by
the defendant.
Once we hold that 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 the defendant, through counsel, has stated that there are no
issues that properly can be raised on appeal. Under these circumstances, I would
consider the appeal abandoned and dismiss the appeal.
I first address a requirement that 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.
2
In Sade C., 13 Cal.4th 952, our supreme court considered whether the
“prophylactic” procedures of Anders v. California (1967) 386 U.S. 738 and People v.
Wende 25 Cal.3d 436 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.
While the context of the decision was slightly different in Sade C., I find it
instructive. As to a concern that that the risk of the absence of Anders (and, in my view,
Wende) procedures will lead to an erroneous resolution of a parent’s 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 In
re Angelica V. having applied the procedures in question for more than a decade under its
holdings in Brian B. and Joyleaf W., 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.
3
“. . . .[W]e 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.” (Sade C., supra, 13 Cal.4th at pp.
990-991, fn. omitted.)
In my view, 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 that counsel can find no arguable issues
on appeal or required to receive and resolve issues raised individually by the defendant.
I would add that, in my 24 years’ experience at the Court of Appeal, after
reviewing hundreds of supplemental briefs filed by defendants in Wende appeals, I have
not found one that had any merit. But they each have required the court’s staff attorneys
and justices to spend additional time, and sometimes much additional time, addressing
and resolving what are routinely, if not exclusively, frivolous arguments.
As to the view that these supplemental briefs are of right and require the court’s
resolution, I would also point to the following.
“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
(1956) 51 Cal.2d 777, 798 (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[ ] [no right to dismiss counsel in capital appeals]; People v.
4
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[ (2000)]
528 U.S. [152,] 160–163 [] [(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, [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 interest in acting as his or her own lawyer and a
state’s interest in ensuring the fair and efficient administration of justice ‘surely tips in
favor of the [s]tate’ once the defendant is no longer presumed innocent but found guilty
beyond a reasonable doubt. (Id. at p. 162.) Consequently, the court concluded, states
may exercise broad discretion when considering what representation to allow and may
require an indigent inmate ‘to accept against his will a state-appointed attorney’ for
representation on a direct appeal without violating the federal Constitution. (Martinez,
[at p.] 164.)
“As relevant here, represented capital inmates are not permitted to present their
automatic appeals personally to this court. That is, such inmates have no right personally
to supplement or supersede counsel’s briefs and arguments on the merits of their appeals.
(Clark[ (1992)] 3 Cal.4th [41,] 173 [(Clark)]; Mattson, supra, 51 Cal.2d at p. 798 [].) As
we explained in Mattson, pro se submissions pertaining to an appeal will not be filed or
considered ‘[b]ecause of the undesirability of fruitlessly adding to the burdens of this
court the time-consuming task of reading pro se documents which are not properly before
us, and, if they be read, of consequently enlarging [the] opinion by a recountal and
discussion of the contentions made in propria persona . . . .’ (Mattson, supra, 51 Cal.2d
at p. 798.)
5
“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 will
accept and consider pro se motions regarding representation (i.e., Marsden motions to
substitute counsel), such motions ‘must be clearly labeled as such’ and ‘must be limited
to matters concerning representation.’ (Clark, [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.4th 466, 473-474, emphasis added.)
Although Barnett was a capital appeal, notably, the Supreme Court cited with
approval People v. Scott and People v. Mattson, thus extending the same appellate rules
to noncapital appeals.
Thus, in a non-Wende appeal such as this, the defendant, as an individual, does not
have the right to submit his or her own arguments to the court for resolution.
I recognize that some courts have adopted a procedure that allows them to
consider and decide an appellant’s arguments raised in his or her own supplemental briefs
by turning to the court’s supervisory powers to control the proceedings before it. (See
e.g., Cole, supra, 52 Cal.App.5th 1023, review granted.) I submit that those courts
simply do not have the authority to do so given the California Supreme Court’s holding
in Barnett.
I recognize also that the issues we here consider are pending before our Supreme
Court and the court may in the future extend what have become known as “Wende
procedures” to appeals such as this one from orders denying postconviction relief. But it
must be left up to that court to do so. Until it does, I would dismiss appeals such as the
one presently before us.
/s/
Hull, Acting P.J.
6