WENDE - NO ISSUE BRIEFS
In People v. Wende (1979) 25 Cal.3d 436, the California Supreme Court specified the nature of the brief which is to be filed when defense counsel is unable to find a non-frivolous issue to argue. As approved by the U.S. Supreme Court, counsel’s duty is to file a brief:
“that summarizes the procedural and factual history of the case, with citations to the record. He also attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file a pro se supplemental brief. He further requests that the court independently examine the record for arguable issues . . . [C]ounsel following Wende neither explicitly states that his review led him to conclude that an appeal would be frivolous . . . nor requests leave to withdraw. Instead, he is silent on the merits of the case and expresses his availability to brief any issues on which the court might desire briefing. [Citation.]” (Smith v. Robbins (2000) 528 U.S. 259, 265.)
Deciding whether an issue is merely weak or wholly frivolous is not an easy task. Nonetheless, the courts have provided some guidance by which the merit of an issue is to be measured. As one court has observed:
"an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
While reasonable lawyers will no doubt differ on the application of the cited test in a particular case, the reality remains that it is probably as precise a measure as we are likely to obtain.
Before filing a Wende brief, appellate counsel should recall that there is an ethical duty to zealously represent the client and “resolve all doubts and ambiguous legal questions in favor of his or her client.” (McCoy v. Court of Appeals of Wisconsin (1988) 486 U.S. 429, 444.) Thus, if a good faith, albeit weak, issue can be plausibly raised, a Wende brief is not appropriate. This is especially true if it can be maintained that existing law should be changed. (People v. Feggans, supra, 67 Cal.2d 444, 447; attorneys have a duty to advocate for changes in the law.)
If you believe that a Wende brief is appropriate, you must first submit the record to SDAP for its independent review. A Wende brief may not be filed unless a SDAP staff attorney has authorized the filing of the brief.
Finally, with respect to the format of a Wende brief, SDAP recommends, but does not require, the following approach. Counsel should prepare a statement of the proceedings which is detailed enough to alert the appellate court to any motions, objections, evidentiary rulings or instructions which could ordinarily give rise to an arguable issue. Include a statement that you are requesting the court's independent review of the record for identification of any arguable issue. Do not describe the case as frivolous, do not assert you have been unable to locate arguable issues, or request to withdraw. That way, if the court requests briefing on an issue, you are not disabled from advocating it.
In Smith v. Robbins (2000) 528 U.S. 259, the United States Supreme Court ruled that providing a factual and procedural summary and requesting that the court independently examine the record for arguable issues is sufficient to satisfy the federal constitution.
In People v. Serrano (2012) 211 Cal.App.4th 496, the Sixth District Court of Appeal decided it was not going to conduct a full Wende review "in criminal appeals arising from proceedings other than the first appeal of right." (Id. at p. 503.) The Supreme Court has generally permitted courts of appeal to not do a full record review in post-judgment appeals. (People v. Delgadillo (2022) 14 Cal.5th 216, 226-227.) "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel’s brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter. [Citations.] [¶] If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues. [Citation.] If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] If the appeal is dismissed as abandoned, the Court of Appeal does not need to write an opinion but should notify the defendant when it dismisses the matter. [Citation.] While it is wholly within the court’s discretion, the Court of Appeal is not barred from conducting its own independent review of the record[.]" (Ibid.) This procedure has been extended to appeals from civil commitments (which does not include a judgment from a verdict of not guilty by reason of insanity). (See, e.g., Conservatorship of Ben C. (2007) 40 Cal.4th 529, 538.)