Filed 4/27/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE, C095039
Plaintiff and Respondent, (Super. Ct. No.
LODCRFE20170002477)
v.
FRANKIE JAMES WEISNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County,
Richard J. 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 Weisner pleaded no contest to second degree robbery
(Pen. Code § 211) (statutory section citations that follow are to the Penal Code), and
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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
section 1170.18, 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 Anders v.
California (1967) 386 U.S. 738 (Anders) is required only in the first appeal of right from
a criminal conviction. (Pennsylvania v. 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 from a denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th
108, 111, review granted May 12, 2021, S267870; People v. Flores (2020)
54 Cal.App.5th 266, 271; People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
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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[, supra,] 481 U.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 will dismiss 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
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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
In re Angelica V. having applied the procedures in question for more than a decade under
its holdings in Brian B. [(1983) 141 Cal.App.3d 397] and Joyleaf W. [(1984)
150 Cal.App.3d 865], 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.”
(Sade C., 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)]
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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 proper disposition of non-Wende appeals where, as here, the
defendant/appellant has chosen to raise issues in the appeal on his own and
notwithstanding the fact that his appointed counsel 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 a non-Wende appeal?
“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. 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[ v. Court of Appeal of
Cal., Fourth Appellate Dist. (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
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extend beyond the point of conviction. (Martinez, supra, 528 U.S. 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, supra, 528 U.S. 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. ([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 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.)
“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, 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,
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51 Cal.2d at p. 798).” (In re Barnett (2003) 31 Cal.4th 466, 473-474 (Barnett),
italics added; 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-Wende appeal, the defendant, as an individual, does not have
the right to submit his or her own arguments to the court for resolution.
Some appellate 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 power to control the proceedings before it. (See,
e.g., People v. Cole, supra, 52 Cal.App.5th 1023, review granted.) Those courts lack
that authority given the California Supreme Court’s holdings in Mattson, 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 “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, appeals such as the one presently
before us must be considered abandoned and ordered dismissed.
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DISPOSITION
The appeal is dismissed.
HULL, J.
I concur:
BLEASE, Acting P. J.
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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.
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