People v. Delgadillo

14 Cal.5th 216

521 P.3d 360

302 Cal.Rptr.3d 153

The PEOPLE, Plaintiff and Respondent,

v.Jose De Jesus DELGADILLO, Defendant and Appellant.

S266305

Supreme Court of California.

December 19, 2022

As Modified February 15, 2023

Nancy J. King and Eric R. Larson, San Diego, under appointments by the Supreme Court, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael J. Mongan, State Solicitor General, Lance E. Winters, Chief Assistant Attorney General, Janill L. Richards, Principal Deputy State Solicitor General, Julie L. Garland and Charles Ragland, Assistant Attorneys General, Samuel P. Siegel, Deputy State Solicitor General, Lynne G. McGinnis, Deputy Attorney General, and Amari L. Hammonds, Associate Deputy State Solicitor General, for Plaintiff and Respondent.

Opinion of the Court by Groban, J.

In People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ), we held the Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous. ( Id . at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071.) This procedure is applicable to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution. ( Wende , at pp. 439, 441, 158 Cal.Rptr. 839, 600 P.2d 1071 ; see Pennsylvania v. Finley (1987) 481 U.S. 551, 554–557, 107 S.Ct. 1990, 95 L.Ed.2d 539 ( Finley ); In re Sade C. (1996) 13 Cal.4th 952, 983–984, 55 Cal.Rptr.2d 771, 920 P.2d 716 ( Sade C. ).) In this case, we granted review to determine the procedures appointed counsel and the Courts of Appeal must follow when counsel determines that an appeal from an order denying postconviction relief under recently enacted remedial legislation lacks arguable merit and to decide whether defendants are entitled to notice of these procedures.

The Court of Appeal found that it has no duty to independently review an order denying a petition for postconviction relief under Penal Code former section 1170.95, which defendant Jose De Jesus Delgadillo filed here, when appointed counsel submits notice that the appeal lacks arguable merit.

¹ The Court of Appeal concluded that since Delgadillo's appeal does not implicate a constitutional right to counsel, the procedures set out in Wende do not apply. ( Finley, supra , 481 U.S. at pp. 556–557, 107 S.Ct. 1990 ; Sade C., supra , 13 Cal.4th at p. 978, 55 Cal.Rptr.2d 771, 920 P.2d 716.) We agree with the Court of Appeal as to this issue.

We further exercise our inherent supervisory powers to establish the appellate procedures and the requirements for providing notice to a defendant before a Court of Appeal dismisses an appeal from the denial of a petition under section 1172.6. When counsel submits notice that such an appeal lacks arguable merit, the Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief or letter raising any argument the defendant wishes the court to consider; and if no such supplemental brief or letter is timely filed, the court may dismiss the appeal as abandoned. In this case, although the Court of Appeal did provide notice to Delgadillo, the notice was suboptimal because it indicated that the Wende procedures would apply when they did not, and it did not inform Delgadillo that the appeal would be dismissed as abandoned if no supplemental brief or letter was filed. However, based on our own independent review of the record, which we undertake voluntarily in the interest of judicial economy, we determine that Delgadillo is not entitled to relief under section 1172.6.

I. BACKGROUND

On the afternoon of May 27, 2015, Delgadillo's Ford Explorer crossed into incoming traffic and collided head on into a Mazda sedan occupied by a driver and passenger in the front two seats.² The passenger died from injuries sustained in the accident. The driver of the Ford Explorer, later identified as Delgadillo, fled the scene on foot, and a police dog located him hiding in a building nearby. Approximately two and a half hours after the accident, two breath tests showed Delgadillo's blood-alcohol level to be .13 and .14 percent. Two hours later, Delgadillo provided a blood sample that showed a blood-alcohol level of .13 percent.

A jury convicted Delgadillo of second degree murder under an actual implied malice theory ( § 187, subd. (a) ) and gross vehicular manslaughter while intoxicated ( § 191.5, subd. (a) ). The jury also found true allegations that Delgadillo fled the scene ( Veh. Code, § 20001, subd. (c) ) and had two prior convictions for driving while under the influence of alcohol ( Veh. Code, § 23152 ). The court sentenced Delgadillo to a term of 15 years to life. The judgment was affirmed on appeal.

After the appeal was final, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437; Stats. 2018, ch. 1015) went into effect and barred a conviction for murder under the natural and probable consequences theory as well as limited the scope of the felony-murder rule. ( § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2 ; § 189 ; see People v. Gentile (2020) 10 Cal.5th 830, 838, 272 Cal.Rptr.3d 814, 477 P.3d 539.) This change in the law was "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Sen. Bill 1437, § 1, subd. (f).) Senate Bill 1437 further created a procedure under former section 1170.95 for persons convicted of felony murder or murder under a natural and probable consequences theory to petition for retroactive relief.³

Delgadillo filed a petition for resentencing pursuant to this new law. After the cause was submitted upon written briefing, the superior court denied the petition at a hearing. The superior court found no "grounds whatsoever for re-sentencing" because "defendant was the actual and only participant" in the crime. An order to show cause did not issue.

Delgadillo filed an appeal. Appointed counsel found no arguable issues in the appeal and filed a brief in accordance with the procedures outlined in Wende . The brief set out the procedural history and relevant facts of the case and requested that the Court of Appeal conduct an independent review of the record in accordance with Wende . In an accompanying declaration, counsel stated she had advised Delgadillo by letter "that a brief on his behalf would be filed according to the procedures outlined" in Wende and that he would receive a copy of the brief. Counsel further stated she had also advised Delgadillo that "he may personally file a supplemental brief" raising "any points which he chooses to call to the court's attention" and that she had provided him with the record.

The Court of Appeal directed counsel to send the record and a copy of appointed counsel's brief to Delgadillo. The Court of Appeal sent notice to Delgadillo and counsel that "[c]ounsel appointed to represent appellant on appeal has filed appellant's opening brief. Counsel's inability to find any arguable issues may be readily inferred from the failure to raise any. ( People v. Wende [, supra, ] 25 Cal.3d [at p.] 442, 158 Cal.Rptr. 839, 600 P.2d 1071.) [¶] Appointed counsel is directed to send the record on this appeal and a copy of appellant's opening brief to appellant immediately. Within 30 days of the date of this notice, appellant may submit by brief or letter any grounds of appeal contentions, or argument which appellant wishes this court to consider." Delgadillo did not submit a brief or letter within the requisite time.

Following People v. Cole (2020) 52 Cal.App.5th 1023, 267 Cal.Rptr.3d 113, review granted October 14, 2020, S264278 ( Cole ), the Court of Appeal found, "[T]he procedures set forth in Wende are not constitutionally compelled if a criminal defendant's appeal is not his or her initial appeal of right." ( People v. Delgadillo (Nov. 18, 2020, B304441) 2020 WL 6777380 [nonpub. opn.].) Since Delgadillo did not file a brief or letter, the Court of Appeal presumed the order appealed from was correct and dismissed Delgadillo's appeal as abandoned without conducting an independent review. The Court of Appeal denied Delgadillo's petition for rehearing. We then granted review.

II. DISCUSSION

A. Wende Procedures

The Attorney General argues that Wende and related cases are designed to protect only the indigent criminal defendant's constitutional right to counsel on direct appeal from a criminal conviction. We agree that since Delgadillo's appeal from the denial of his petition does not implicate a constitutional right to counsel, the procedures set out in Wende do not apply.

The prophylactic procedures in Wende are "relevant when, and only when, a litigant has a previously established constitutional right to counsel." ( Finley, supra , 481 U.S. at p. 555, 107 S.Ct. 1990.) Criminal defendants have a right to the effective assistance of counsel on the first appeal granted as a matter of right from a criminal conviction. ( Evitts v. Lucey (1985) 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 ["right to counsel is limited to the first appeal as of right"]; Douglas v. California (1963) 372 U.S. 353, 356, 83 S.Ct. 814, 9 L.Ed.2d 811.) In Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( Anders ), the United States Supreme Court considered "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." ( Id . at p. 739, 87 S.Ct. 1396.) In the state appellate court, court-appointed counsel concluded, after reviewing the record and consulting petitioner, that an appeal of the conviction had no merit. ( Ibid . )...