People v. Williams

290 Cal.Rptr.3d 582

The PEOPLE, Plaintiff and Respondent,

v.Keith A. WILLIAMS, Defendant and Appellant.

B311161

Court of Appeal, Second District, Division 5, California.

Filed February 24, 2022

Richard B. Lennon, Los Angeles, 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 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.

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, 149 Cal.Rptr.3d 706 [( 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

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, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) 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, 8 Cal.Rptr.2d 610 ["[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, 195 Cal.Rptr. 802 [ ] [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 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, 158 Cal.Rptr. 839, 600 P.2d 1071 ( 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.

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 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...