Filed 2/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311161
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA120015)
KEITH A. WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig Veals, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
THE COURT.*
We conclude we have no jurisdiction to entertain defendant
Keith Williams’s (defendant’s) appeal. We publish our opinion to
emphasize an attorney’s duty of candor to this court.
I. BACKGROUND
A. Trial Court Proceedings
The facts of defendant’s crime are not important for our
purposes. A trial jury found him guilty of robbery and burglary.
In 1996, the trial court sentenced him to 35 years to life in prison,
with the bulk of that sentence attributable to the “Three Strikes”
law.
Decades later, in early 2021, defendant filed in the trial
court what he styled as a “Petition for Modification of Sentence
(Pursuant to P.C. 1170(d)(1).).” Defendant asked the court to
modify his 1996 judgment based on “charging and sentencing
policies” adopted by Los Angeles County District Attorney George
Gascón. In a memorandum of points and authorities
accompanying his petition, defendant quoted Penal Code section
1170, subdivision (d)(1)1 and argued his 1996 sentence could be
*
Baker, Acting P. J., Moor, J., Kim, J.
1
In relevant part, the statute at the time of defendant’s
petition provided: “When a defendant subject to this
section . . . has been sentenced to be imprisoned in the state
prison or a county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county
correctional administrator, the court may, within 120 days of the
date of commitment on its own motion, or at any time upon the
2
modified or recalled because “the district attorney’s office
considers that only 15 years of the 25 years [he] already served is
more than enough” and the court could consider, under the same
statutory provision, his good conduct in prison.
The trial court denied defendant’s section 1170, subdivision
(d)(1) petition for modification of sentence without appointing
counsel for defendant. A minute order memorializing the court’s
ruling explains the petition was “denied as untimely” (coming, as
it did, well after the 120-day period and without the requisite
accompanying recommendation).
B. Proceedings on Appeal
Defendant, in propria persona, noticed an appeal from the
trial court’s ruling. That set in motion the key events for our
purposes.
Upon receipt of the notice of appeal, the clerk of this court
forwarded it to the California Appellate Project (CAP) for a
recommendation on appointment of counsel. The case was later
assigned to this Division of the Court of Appeal for decision, and
CAP was appointed to represent defendant in this appeal.
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates . . . or the district attorney of
the county in which the defendant was sentenced, recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if they had not previously been
sentenced, provided the new sentence, if any, is no greater than
the initial sentence. . . . The court may consider postconviction
factors, including, but not limited to, the inmate’s disciplinary
record and record of rehabilitation while incarcerated . . . .”
Undesignated statutory references that follow are to the Penal
Code.
3
After CAP’s Executive Director assumed responsibility for
serving as counsel for defendant in this appeal, counsel filed a
brief in this court captioned “APPELLANT’S OPENING BRIEF
(PEOPLE V. SERRANO (2012) 211 Cal.App.4th 496
[(Serrano)]).”
The short statement of the case in the brief included,
pursuant to the provisions of the Rules of Court that require it
(Cal. Rules of Court, rules 8.204(a)(2)(B), 8.360(a)), a one-
sentence statement purporting to explain why the order appealed
from is appealable. This is that sentence: “Appellant filed a
Notice of Appeal from the ruling as an order after judgment
affecting substantial rights. ([ ] Pen. Code, § 1237, subd. (b).)”
The remainder of the brief requested this court to follow the
procedures described in Serrano.2
2
Serrano directs, in criminal appeals arising from
proceedings other than the first appeal of right, that an
appointed attorney who finds no arguable issues “should (1)
inform the court he or she has found no arguable issues to be
pursued on appeal and (2) file a brief setting out the applicable
facts and the law.” (Serrano, supra, 211 Cal.App.4th at 503.)
Upon receipt of such a brief, a reviewing court following the
Serrano procedure will inform the defendant that he or she may
personally file a supplemental brief. (Ibid.) If such a brief is
filed, there is authority holding that a reviewing court must then
evaluate any arguments presented in that brief and issue a
written opinion that disposes of the trial court’s order on the
merits. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040 (Cole).)
On the other hand, if no supplemental brief is filed, the court
“will then either retain the appeal or dismiss it on [its] own
motion.” (Serrano, supra, at 503; accord, Cole, supra, at 1039-
1040.)
4
Submitted with the opening brief itself was a sworn
declaration of counsel stating it was made “IN SUPPORT OF
REQUEST THAT THIS COURT FOLLOW THE PROCEDURES
SET FORTH IN PEOPLE v. SERRANO [Citation].” Counsel
declared he informed defendant of the “right to file a
supplemental brief” and further stated he did not move to
withdraw as counsel “at this time” but “remain[ed] available to
brief any issues that the Court requests.”3 As is customary when
such a brief is filed, the Attorney General did not file a
respondent’s brief or otherwise appear in this proceeding.
Upon receipt of the opening brief and assignment of the
cause to a panel for decision, this court sought to discharge its
duty to assure itself that it had jurisdiction to decide the appeal.
(See, e.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Naturally, that first involved reviewing the statement of
appealability included in the opening brief that we have already
quoted (“Appellant filed a Notice of Appeal from the ruling as an
order after judgment affecting substantial rights”) and counsel’s
request that we process the appeal in accordance with the
procedures outlined in Serrano. Independent research by the
court, however, uncovered published authority—never cited in
the opening brief—holding that a reviewing court has no
jurisdiction to entertain an appeal of a section 1170, subdivision
(d)(1) ruling of the type here because it is a nonappealable order.
(See, e.g., People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726
3
Upon receipt of this self-styled Serrano brief, the clerk of
this court transmitted to defendant the invitation to file a
supplemental brief that Serrano contemplates. No supplemental
brief was filed.
5
[“[S]ince we have concluded the trial court no longer had
jurisdiction to recall Chlad’s sentence when it issued the order
denying his motion, denial of the motion could not have affected
Chlad’s substantial rights. (See People v. Roe (1983) 148
Cal.App.3d 112, 118 [ ] [judgment entered by the court after
losing its jurisdiction under § 1170, subd. (d), has no effect and
cannot be appealed]. [¶] The trial court’s . . . order denying
Chlad’s motion to modify sentence is not an appealable order”])]
(Chlad).)
After reviewing authority that supports finding the order in
question to be a nonappealable order, this court directed counsel
to submit a letter brief addressing: “(1) whether, consistent with
the holding in [Chlad], the appeal is taken from a nonappealable
order, and (2) whether the absence of a citation to Chlad (or other
authority to the same effect) in the opening brief constitutes a
violation of the Rules of Professional Conduct.” By citation, this
court specifically directed counsel’s attention to the rule that
states a lawyer shall not “fail to disclose to the tribunal[ ] legal
authority in the controlling jurisdiction known[ ] to the lawyer to
be directly adverse to the position of the client and not disclosed
by opposing counsel . . . .” (Rules Prof. Conduct, rule 3.3(a)(2)
(Rule 3.3(a)(2)).)
Counsel submitted a short letter in response to this court’s
direction. It is remarkable both for what it says, and what it does
not.
Beginning with what the letter does not say, there is no
contention that Chlad is distinguishable, nor any argument that
Chlad should not be followed. There is no assertion in the letter
that Chlad (or authority to the same effect) was unknown to
counsel at the time he filed the opening brief. There is no
6
assertion that the absence of a citation to such authority in the
opening brief was attributable to mistake, inadvertence, or
administrative error.
Turning to what the letter does say, counsel asserts he
appropriately did not cite authority indicating we have no
jurisdiction to entertain this appeal. In counsel’s words: “While
Rule 3.3 requires attorneys to disclose controlling legal authority
adverse to a position which he is arguing, counsel did not here
advocate any legal position in his brief. At no point did counsel
argue or state that the appeal was proper. Counsel only stated
the basis of his client’s belief that the appeal was proper, as
required by this Court.” (Emphasis ours.) The letter further
asserts that including “[a] statement in the brief that the ruling
appealed from is not appealable or a statement citing case law
holding that a given ruling is not appealable would be equivalent
to stating that the appeal is frivolous,” which counsel believes
(chiefly relying on People v. Wende (1979) 25 Cal.3d 436 (Wende))
he cannot do consistent with his duties as a defense attorney who
does not seek to withdraw from representation of a client.
After receiving the letter brief, we set the matter for oral
argument. Counsel waived his appearance.
II. DISCUSSION
The summary of the pertinent background facts we have
already provided well foreshadows the reasons for our bottom-
line disposition of this appeal. We shall accordingly spend the
bulk of our discussion reviewing a lawyer’s duty of candor to the
court.
7
A. A Defense Attorney Has an Obligation to Disclose
Known Authority Holding This Court Has No
Jurisdiction to Decide an Appeal When the People Do
Not Cite Such Authority
Application of Rule 3.3(a)(2) is, on the face of the rule itself,
rather straightforward under these circumstances. It prohibits
an attorney from (1) failing to disclose to (2) a tribunal (3) legal
authority in this State that is (4) known to the lawyer to be
directly adverse to the position of the client and (5) not disclosed
by opposing counsel. Each of these elements is satisfied on the
record here. There is an undisputed failure to disclose Chlad and
like authority to this court. That authority is directly adverse to
defendant’s position, at least insofar as he maintains he should
be able to prosecute this appeal. And there is no assertion from
counsel that Chlad and similar authority was unknown to him
(or unknown to be adverse to his prosecution of this appeal) at
the time counsel filed the opening brief.
Counsel, however, offers two arguments seemingly directed
at establishing he did not fail to comply with his duty of candor to
this court. He argues, first, that he personally made no
affirmative representation that the order appealed from is an
appealable order such that this court has jurisdiction. And
counsel contends, second, that he need not make this court aware
of applicable authority under the circumstances because
disclosing authority that the appeal is taken from a
nonappealable order is tantamount to a concession that the
appeal is frivolous, which he cannot concede without withdrawing
from the representation. Both points are unpersuasive.
Take first counsel’s contention that he personally made no
affirmative representation in the opening brief that the order
8
appealed from is an appealable order. Even taken on its own
terms, the contention is irrelevant: Rule 3.3(a)(2) prohibits a
lawyer from knowingly failing to disclose adverse authority, not
just from making affirmative representations that are
inconsistent with such authority. But the argument should not
be taken on its own terms. Counsel is responsible for the content
of briefs he files in this court (see, e.g., In re Rozzo (2009) 172
Cal.App.4th 40, 64, fn. 11), and asserting a legal basis for taking
the appeal that reads as a representation by counsel but is
perhaps phrased in a sufficiently ambiguous manner to later
permit attribution solely to a client does not properly evade that
responsibility.4 Furthermore, counsel’s assertion that he did not
advocate any legal position in his opening brief and “at no
point . . . state[d] that the lower court’s ruling was legally
appealable” is incorrect. The brief itself “requests this Court to
follow the procedures set forth in People v. Serrano” and counsel’s
accompanying declaration is expressly submitted in support of
the request that this court follow the Serrano procedure. We
4
Contentions and arguments advanced in appellate briefing
are routinely phrased in terms of what the party, not the lawyer,
contends or argues. Appellate practice would become quite
uncertain if reviewing courts were forced to parse briefs to
somehow try to determine whether every sentence stating that a
party contends or asserts some proposition should be understood
as a contention or assertion that the lawyer does or does not join
in advocating on behalf of the client. If, for example, a brief
asserts that the “defendant contends” the evidence is insufficient
to support a conviction, a court should have every right to expect
that the defendant’s lawyer appearing at oral argument will not
concede the evidence is sufficient and attribute the contrary
position taken in the brief solely to his or her client.
9
have already summarized that procedure in the margin (a
defendant is invited to personally file a supplemental brief with
any contentions he or she wishes to raise and, at least in the eyes
of Cole and other courts, a reviewing court must address any such
contentions in a written opinion). That procedure should not be
followed in an appeal where a court determines it has no
jurisdiction to proceed. In other words, by the very act of
prosecuting the appeal and requesting Serrano procedures to be
followed, counsel represented to this court that we had the
jurisdiction that permits following those procedures.
Consider next counsel’s argument that his duty to refrain
from arguing against his client trumps the duty of candor he
owes to this court. This is a false choice; the two duties are
readily reconciled because the duty of candor is one of disclosure,
not acquiescence. That is to say, adverse on-point authority must
be cited, but a lawyer is free to marshal arguments to persuade a
court to reach a contrary conclusion. In more concrete terms,
counsel here had an obligation to cite Chlad or similar authority
in his opening brief’s statement of appealability, but he was free
to argue that the case authority is somehow distinguishable on
its facts or unpersuasively reasoned such that this court should
not follow it.5 That, of course, is not what counsel did, and failing
5
Pursuing such an approach does not invariably require
lengthy exposition. Indeed, in this case, counsel could have kept
to his short statement of appealability by simply adding an
introductory clause: “Although there is authority finding a
similar order nonappealable (People v. Chlad (1992) 6
Cal.App.4th 1719), this court should decline to follow that
authority and permit the appeal to proceed as one taken from an
order after judgment affecting substantial rights.”
10
to cite applicable authority is all the more unfortunate when done
in an appeal where, as here, an attorney knows the adverse party
will not be making an appearance.
Counsel protests, though, that his chosen course of action is
compelled by Wende, supra, 25 Cal.3d 436; People v. Feggans
(1967) 67 Cal.2d 444 (Feggans); and Serrano, supra, 211
Cal.App.4th 496. Again, the claim is incorrect even when taken
on its own terms.
In Feggans, our Supreme Court explained that United
States Supreme Court precedent requires a defense attorney to
“prepare a brief to assist the court in understanding the facts and
the legal issues in the case. The brief must set forth a statement
of the facts with citations to the transcript, discuss the legal
issues with citations of appropriate authority, and argue all
issues that are arguable. Moreover, counsel serves both the court
and his client by advocating changes in the law if argument can
be made supporting change. If counsel concludes that there are
no arguable issues and the appeal is frivolous, he may limit his
brief to a statement of the facts and applicable law and may ask
to withdraw from the case, but he must not argue the case
against his client.” (Feggans, supra, 67 Cal.2d at 447.)
Subsequently in Wende, our Supreme Court clarified that it is not
“necessary” for a defense attorney to seek leave to withdraw as
counsel when he or she concludes no arguable issues can be
raised on appeal. (Wende, supra, 25 Cal.3d at 442 [“So long as
counsel has not disabled himself from effectively representing his
client by describing the case as frivolous, no reason appears why
he should be required to request to withdraw. Indeed, there may
be practical benefits to the court and the client from counsel’s
remaining on the case, as has been noted by some commentators
11
and courts”].) Both Feggans and Wende (in citing Feggans)
accordingly require an attorney who believes there are no
arguable issues to nonetheless provide the reviewing court with a
statement of “applicable law”; counsel concedes as much in his
letter brief. The requirement to inform the court of applicable
law applies to a brief’s statement of appealability just as it does
to any other statement of the law. Much like a defense attorney
cannot knowingly refrain from citing applicable law to give the
incorrect impression that only force, and not fear, can be an
appropriate predicate for a robbery conviction, counsel cannot
knowingly fail to cite applicable law that discusses what qualifies
as an appealable order to give the incorrect impression that this
court has jurisdiction when it does not.
We hasten to add, however, that we do not accept the
premise of counsel’s argument in the first place. The Wende line
of cases is of limited relevance because the question here is not
whether any issue raised on appeal would be frivolous; the
question is whether this court has jurisdiction to entertain the
appeal regardless of its substantive merit. We reiterate that
attorneys have significant latitude to make arguments that an
order is appealable and jurisdiction appropriate—and such
arguments can be made even in the face of significant published
authority holding to the contrary. (Cf. Feggans, supra, 67 Cal.2d
at 447 [“counsel serves both the court and his client by
advocating changes in the law if argument can be made
supporting change”].) But in the infrequent circumstance where
appointed counsel determines that there is in fact no argument
that he or she can responsibly make in service of the proposition
that this court has jurisdiction to hear and decide an appeal, it is
appropriate for counsel in that circumstance to withdraw from
12
the representation. What cannot be done is to prosecute an
appeal that counsel knows a reviewing court has no jurisdiction
to decide while refraining from citing known, applicable law that
would reveal the jurisdictional flaw.
We shall address one additional question, albeit not one
raised in counsel’s letter brief: if appointed counsel files a
Serrano brief that most often leads to dismissal of an appeal, why
does it matter whether that dismissal occurs because the court
finds the appeal to be abandoned or because jurisdiction is
lacking? There are two responses. First, following the Serrano
procedure, with its solicitation for supplemental briefing from the
defendant, invariably and unnecessarily delays dismissal of
nonappealable cases. Second, unnecessary delay is compounded,
and other problems arise, in those circumstances where the
defendant does file a supplemental brief. When that occurs, the
defendant expends wasted time and effort in preparing a brief,
this court expends wasted time and effort in reviewing that brief,
and—if the appealability problem is not discovered by the court
on its own—courts customarily expend wasted time and effort
preparing a written opinion that addresses the defendant’s
contentions in a case where it has no jurisdiction to do so.
B. Defendant’s Appeal Must Be Dismissed for Lack of
Jurisdiction
Fortunately, this court’s own research in this case has
mitigated some of the aforementioned problems. The trial court
here denied defendant’s section 1170, subdivision (d) petition
because it was untimely and unaccompanied by a statutorily
authorized recommendation for resentencing. We follow
precedent holding the trial court’s denial is a nonappealable
13
order. (See, e.g., Chlad, supra, 6 Cal.App.4th 1725-1726 [order
denying a section 1170, subdivision (d) motion to recall sentence
is not an appealable order because the trial court no longer had
jurisdiction to recall the defendant’s sentence when it issued the
order denying his motion; a defendant has no standing to bring
an untimely section 1170, subdivision (d) motion]; see also People
v. Torres (2020) 44 Cal.App.5th 1081, 1084 [“If the trial court
does not have jurisdiction to rule on a motion to vacate or modify
a sentence, an order denying such a motion is nonappealable, and
any appeal from such an order must be dismissed”] (Torres);
People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; People v.
Roe, supra, 148 Cal.App.3d at 117.) Indeed, we were given no
reason not to follow this authority when we invited counsel to so
argue (nor by defendant when the clerk, upon receiving the
opening brief claiming the matter should proceed according to
Serrano procedures, invited defendant to submit a supplemental
brief). Being taken from a nonappealable order, we are obligated
to dismiss the appeal for lack of jurisdiction. (People v. Durham
(1969) 70 Cal.2d 171, 176, fn. 1; Torres, supra, at 1084.)
C. Conclusion
An order akin to the order here denying section 1170,
subdivision (d)(1) relief is not an appealable order. An order
denying a habeas corpus petition is not an appealable order. (In
re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) An attorney who
prosecutes an appeal while failing to cite known authority that
this court has no jurisdiction to entertain it violates the
attorney’s duty of candor (where the authority is not otherwise
brought to the attention of the court by another party to the
appeal). Any such future violation, in the view of this court, may
14
warrant disciplinary review by the State Bar or other corrective
action.
DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION
15