IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DE JESUS DELGADILLO,

Defendant and Appellant.

S266305

Second Appellate District, Division Four

B304441

Los Angeles County Superior Court

BA436900

December 19, 2022

Justice Groban authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Kruger, Jenkins, and Guerrero concurred.
1

PEOPLE v. DELGADILLO

S266305

Opinion of the Court by Groban, J.

In People v. Wende (1979) 25 Cal.3d 436 (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.) 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; see Pennsylvania v. 

Finley (1987) 481 U.S. 551, 554–557 (Finley); In re Sade C.

(1996) 13 Cal.4th 952, 983–984 (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 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

2

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; Sade C., supra, 13 Cal.4th at p. 978.)

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.

1 Assembly Bill No. 200 (Reg. Sess. 2021–2022; Assembly 

Bill 200) has since renumbered section 1170.95 as section 

1172.6. (See Stats. 2022, ch. 58, § 10.) For clarity, we refer 

simply to section 1172.6 throughout the discussion section. All 

undesignated statutory references are to the Penal Code.
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

3

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 bloodalcohol 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.) This change in the law was “to ensure that 

2 The brief summary of facts is drawn from the Court of 

Appeal’s prior opinion in Delgadillo’s direct appeal. 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

4

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 

3 The Legislature has since amended former section 1170.95 

with the passage of Senate Bill No. 775 (2021–2022 Reg. Sess.)

(Senate Bill 775; Stats. 2021, ch. 551). Senate Bill 775 codified 

and clarified People v. Lewis (2021) 11 Cal.5th 952, 961–972

(Lewis), reaffirmed that beyond a reasonable doubt is the proper 

burden of proof for a former section 1170.95 resentencing 

hearing, and expanded former section 1170.95’s provisions to 

apply also to persons convicted of attempted murder or 

manslaughter. (Sen. Bill 775, § 1, subds. (a)–(d).) As mentioned 

above, with the passage of Assembly Bill 200, the Legislature 

then renumbered former section 1170.95 to section 1172.6 

without any further substantive change. (See People v. Strong

(2022) 13 Cal.5th 698, 708, fn. 2.)
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

5

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.) [¶] 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, 

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) [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 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

6

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.) 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 [“right to counsel is limited to the first appeal as of 

right”]; Douglas v. California (1963) 372 U.S. 353, 356.) In 

Anders v. California (1967) 386 U.S. 738 (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.) 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.) Counsel advised the court by letter that the 

appeal had no merit and that petitioner wished to file a pro se

brief. (Id. at pp. 739–740.) After the pro se brief was filed, the 

court affirmed the conviction. (Id. at p. 740.) The United States 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

7

Supreme Court ultimately reversed, concluding that the 

procedure was inadequate under the Fourteenth Amendment. 

(Anders, at p. 741.)

The high court reasoned, “The constitutional requirement 

of substantial equality and fair process can only be attained 

where counsel acts in the role of an active advocate [o]n behalf 

of his client, as opposed to that of amicus curiae. The no-merit 

letter and the procedure it triggers do not reach that dignity. . . .

Of course, if counsel finds his case to be wholly frivolous, after a 

conscientious examination of it, he should so advise the court 

and request permission to withdraw. That request must, 

however, be accompanied by a brief referring to anything in the 

record that might arguably support the appeal. A copy of 

counsel’s brief should be furnished the indigent and time 

allowed him to raise any points that he chooses; the court — not 

counsel — then proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous.” 

(Anders, supra, 386 U.S. at p. 744, fn. omitted.) 

Subsequently, in Wende, supra, 25 Cal.3d 436, we 

“approved a modified procedure to ensure an indigent criminal 

defendant’s right to effective assistance of counsel.” (People v.

Kelly (2006) 40 Cal.4th 106, 118.) In Wende, counsel filed a brief 

that summarized the proceedings and facts, raised no specific 

issues, and requested that the court review the entire record to 

determine whether there were any arguable issues. Counsel 

submitted a declaration stating that he had advised defendant 

of the nature of the brief, that he would send defendant a copy 

of the brief, and that he had informed defendant that the court 

would permit him to file a brief on his own behalf. Counsel also 

stated that he would advise his client that he could move to have 

counsel relieved. The defendant did not file a brief. (Wende, at 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

8

p. 438.) Ultimately, after undertaking “a review of the entire 

record in this case,” a “thorough review of the merits,” and 

hearing oral argument, we affirmed the judgment. (Id. at 

p. 443.) In the process, we interpreted Anders to require that

“[t]he court itself must expressly determine whether the appeal 

is wholly frivolous. Since the court’s concern [in Anders] was 

with not merely accepting counsel’s assessment of the case, it 

follows that the determination and concomitant review of the 

entire record must be made regardless of whether the defendant 

has availed himself of the opportunity to submit a brief.” (Id. at 

p. 441.)

The United States Supreme Court approved our Wende

procedure in Smith v. Robbins (2000) 528 U.S. 259, 276. The 

high court reasoned that the equal protection clause of the 

Fourteenth Amendment and the due process clause of that 

amendment “largely converge to require that a State’s 

procedure ‘affor[d] adequate and effective appellate review to 

indigent defendants,’ [citation]. A State’s procedure provides 

such review so long as it reasonably ensures that an indigent’s 

appeal will be resolved in a way that is related to the merit of 

that appeal.” (Robbins, at pp. 276–277.) The high court 

concluded that “the Wende procedure reasonably ensures that 

an indigent’s appeal will be resolved in a way that is related to 

the merit of that appeal.” (Id. at pp. 278–279.) Specifically, 

Wende provides at least two tiers of review and “ensures that a 

trained legal eye has searched the record for arguable issues and 

assists the reviewing court in its own evaluation of the case.” 

(Id. at p. 281.)

However, the procedures set out in Anders and Wende do 

not apply to an appeal from the denial of postconviction relief, 

even if the defendant has a state-created right to the 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

9

appointment of counsel for that appeal. (Finley, supra, 481 U.S. 

at pp. 556–557; Sade C., supra, 13 Cal.4th at p. 978; see also 

Austin v. United States (1994) 513 U.S. 5, 8.) This is because 

“there is no constitutional right to the effective assistance of 

counsel” in state postconviction proceedings. (People v. Boyer

(2006) 38 Cal.4th 412, 489; see People v. Young (2005) 

34 Cal.4th 1149, 1232–1233; People v. Kipp (2001) 26 Cal.4th 

1100, 1139–1140; Coleman v. Thompson (1991) 501 U.S. 722, 

755 (Coleman).) “Anders established a prophylactic framework 

that is relevant when, and only when, a litigant has a previously 

established constitutional right to counsel.” (Finley, at p. 555.) 

“Postconviction relief is even further removed from the criminal 

trial than is discretionary direct review. It is not part of the 

criminal proceeding itself, and it is in fact considered to be civil 

in nature. See Fay v. Noia, 372 U.S. 391, 423–424 (1963). It is 

a collateral attack that normally occurs only after the defendant 

has failed to secure relief through direct review of his conviction. 

States have no obligation to provide this avenue of relief, cf. 

United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality 

opinion), and when they do, the fundamental fairness mandated 

by the Due Process Clause does not require that the State supply 

a lawyer as well.” (Finley, at pp. 556–557.) After the first 

appeal as a right, “the Constitution does not put the State to the 

difficult choice between affording no counsel whatsoever or 

following the strict procedural guidelines annunciated in 

Anders.” (Id. at p. 559.)

“Anders’s ‘prophylactic’ procedures are limited in their 

applicability to appointed appellate counsel’s representation of 

an indigent criminal defendant in his first appeal as of right. 

(Pennsylvania v. Finley, supra, 481 U.S. at pp. 554–559 [95 

L.Ed.2d at pp. 545–549]; see Anders v. California, supra, 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

10

386 U.S. at pp. 739, 741–742, 744–745 [18 L.Ed.2d at pp. 495, 

496–497, 498–499]; see also Austin v. U.S., supra, 513 U.S. at 

p. [8] [130 L.Ed.2d at p. 223, 115 S.Ct. at p. 381].) They do not 

extend to an appeal, even on direct review, that is discretionary. 

(See Austin v. U.S., supra, 513 U.S. at p. [8] [130 L.Ed.2d at p. 

223, 115 S.Ct. at p. 381].) A fortiori, they do not reach collateral 

postconviction proceedings.” (Sade C., supra, 13 Cal.4th at 

p. 978 [Anders and Wende do not apply to an indigent parent 

appealing a child custody or parental status decision]; see also 

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.) 

[Anders and Wende do not apply to conservatorship proceedings 

under the Lanterman-Petris-Short Act].) The reasoning that led 

to the procedures in Anders and Wende thus does not apply to 

Delgadillo’s postconviction proceeding here.

Furthermore, we have recently affirmed the proposition, 

specifically in the context of section 1172.6, that “[t]here is no 

unconditional state or federal constitutional right to counsel to 

pursue collateral relief from a judgment of conviction.” (Lewis, 

supra, 11 Cal.5th at p. 972, citing In re Barnett (2003) 31 Cal.4th 

466, 475 [no federal or state “constitutional right to counsel for 

seeking collateral relief from a judgment of conviction via state

habeas corpus proceedings”]; People v. Shipman (1965) 

62 Cal.2d 226, 232 (Shipman) [observing the same in the context 

of coram nobis relief]; Finley, supra, 481 U.S. at p. 557

[concluding “respondent has no underlying constitutional right 

to appointed counsel in state postconviction proceedings”].) As 

Delgadillo concedes, there is no federal constitutional right to 

counsel under subdivision (c) of section 1172.6, and the right to 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

11

counsel at that point in the proceedings is purely statutory.4 

Given there is no constitutional right to counsel in a proceeding

under section 1172.6, subdivision (c), it would “defy logic” to 

conclude there is a constitutional right to counsel “to appeal 

[that] state collateral determination.” (Coleman, supra, 

501 U.S. at pp. 756, 757.) Courts below have uniformly agreed

that Wende procedures are not constitutionally required on an 

appeal from a denial of a postconviction petition under section 

1172.6. (See People v. Griffin (2022) 85 Cal.App.5th 329, 333; 

People v. Figueras (2021) 61 Cal.App.5th 108, 111, review 

granted May 12, 2021, S267870 (Figueras); People v. Scott

(2020) 58 Cal.App.5th 1127, 1130–1131, review granted March 

17, 2021, S266853 (Scott); People v. Gallo (2020) 57 Cal.App.5th

594, 598–599; People v. Allison (2020) 55 Cal.App.5th 449, 456

(Allison); Cole, supra, 52 Cal.App.5th at pp. 1028, 1039, review

granted; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273 

(Flores).) Indeed, at oral argument, Delgadillo’s counsel 

abandoned the position that federal constitutional principles 

require Wende review in this case. 

We have noted that a defendant can have a constitutional

due process right to the appointment of counsel in habeas corpus 

or coram nobis proceedings after a defendant establishes a 

prima facie case for postconviction relief. (Lewis, supra, 

11 Cal.5th at p. 973 [“ ‘if a [habeas corpus] petition attacking the 

validity of a judgment states a prima facie case leading to 

issuance of an order to show cause, the appointment of counsel 

is demanded by due process concerns’ ”], quoting In re Clark

(1993) 5 Cal.4th 750, 780; Shipman, supra, 62 Cal.2d at p. 232 

4 Subdivision (c) of section 1172.6 describes the process for 

determining whether a prima facie case for relief has been made.
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

12

[when “an indigent petitioner has stated facts sufficient to 

satisfy the court that a hearing is required, his claim can no 

longer be treated as frivolous and he is entitled to have counsel 

appointed to represent him”].) The questions raised in such 

cases that attack the validity of the original conviction “are as 

crucial as those that may be raised on direct appeal.” (Shipman, 

at p. 231.) Our Shipman precedents have never extended the 

right to counsel to an appeal from a ruling in an ameliorative 

legislative scheme. In any event, an order to show cause did not 

issue in this case, and Delgadillo did not establish a prima facie 

case for section 1172.6 relief. (See Shipman, at p. 232 [“in the 

absence of adequate factual allegations stating a prima facie 

case, counsel need not be appointed either in the trial court or 

on appeal from a summary denial of relief in that court”].) 

Anders and Wende, accordingly, do not apply in this case.

Rather than rely upon constitutional right to counsel 

principles that would compel Wende review, Delgadillo 

alternatively contends that general due process principles

requiring fundamental fairness constitutionally mandate

Wende-type procedures for his appeal under the test set forth in 

Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27. 

“[D]ue process does not call for the same procedures in every 

situation. Instead, ‘ “[d]ue process is flexible and calls for such 

procedural protections as the particular situation 

demands.” ’ ” (People v. Tilbury (1991) 54 Cal.3d 56, 68.) “[W]e 

evaluate and balance these three elements in order to determine 

whether the Fourteenth Amendment’s due process clause 

requires Anders’s ‘prophylactic’ procedures for fundamental 

fairness: (1) the private interests at stake; (2) the state’s 

interests involved; and (3) the risk that the absence of the 

procedures in question will lead to an erroneous resolution of 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

13

the appeal.” (Sade C., supra, 13 Cal.4th at p. 987; see also 

Lassiter, at p. 27; Mathews v. Eldridge (1976) 424 U.S. 319, 335.)

We note at the outset that the Lassiter test has more 

typically been applied to determine whether Anders and Wende

should be extended to protect a right to counsel that has already 

been identified, which is not the case here. (E.g., Sade C., supra, 

13 Cal.4th at p. 986.) It is unclear whether Lassiter has any role 

where, as here, the United States Supreme Court has already 

determined that the right to effective assistance of counsel does 

not extend to postconviction proceedings generally. (See Finley, 

supra, 481 U.S. at p. 557.) Nonetheless, the parties do not 

dispute that the Lassiter balancing test should be applied here 

in determining whether Wende procedures should be applied to 

section 1172.6 appeals. At oral argument, Delgadillo’s counsel 

argued that Lassiter provided the appropriate framework 

following the examples of Sade C., supra, 13 Cal.4th 952 and 

Ben C., supra, 40 Cal.4th 529. He argued that these cases 

suggest that even after we determined that Anders/Wende did 

not apply directly to the circumstances before the court, we then 

went on nonetheless to determine whether the Lassiter test 

favored extending Anders/Wende prophylactic procedures to the 

new context. (Sade C., at pp. 986–991; Ben C., at pp. 537–543].) 

We need not decide whether the Lassiter test must be applied 

here given Finley’s determination that the right to effective 

assistance of counsel does not extend to postconviction 

proceedings generally. We apply the Lassiter balancing test 

here only because the parties assume its applicability, and we 

do not now decide its applicability to the current circumstances.

In any event, general due process principles requiring 

fundamental fairness do not alter the outcome. Applying the 

first factor, “[i]n an appeal from a denial of a section [1172.6]
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

14

petition, the private interests at stake are the liberty interests 

of the person who may be in custody and seeking release.”

(Flores, supra, 54 Cal.App.5th at p. 274.) The potential for relief

under section 1172.6 from a prior murder, attempted murder, or 

manslaughter conviction is a “significant” interest. (Ben C., 

supra, 40 Cal.4th at p. 540.) We agree with Delgadillo that this 

factor weighs in his favor.

The state, however, also has an interest in an “economical 

and expeditious resolution” of an appeal from a decision that is 

“presumptively accurate and just.” (Sade C., supra, 13 Cal.4th 

at p. 990.) Independent review in Wende appeals consumes 

substantial judicial resources. (People v. Serrano (2012) 

211 Cal.App.4th 496, 503 (Serrano).) Though not as onerous as 

independent review on direct appeal, requiring appellate courts 

to independently review the records of numerous postconviction 

appeals after appointed counsel found no arguable issues would 

still impose a significant burden on the court system. 

Ultimately, “[t]he salient question here is whether the 

absence of the Anders/Wende procedures significantly increases 

the risk of erroneous resolutions.” (Ben C., supra, 40 Cal.4th at 

p. 538.) Delgadillo and the Office of State Public Defender cite 

a handful of cases, mostly unpublished, where the Court of 

Appeal identified (or, they contend should have identified 

meritorious issues) in a section 1172.6 appeal, even though a noissue brief was filed. However, this largely anecdotal recitation 

of errors ignores the broader procedural protections already in 

place. To proceed to an evidentiary hearing, there is only a

“limited” prima facie inquiry. (Lewis, supra, 11 Cal.5th at

p. 971.) The “ ‘prima facie bar was intentionally and correctly 

set very low.’ ” (Id. at p. 972.) In all cases, the superior court 

will review the petition before deciding the matter. While 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

15

section 1172.6 does not require the appointment of counsel on 

appeal, some courts have a routine practice of appointing 

counsel to represent defendants appealing from the denial of 

postconviction relief. (See, e.g., Cole, supra, 52 Cal.App.5th at 

p. 1029, review granted.) As Delgadillo concedes in arguing for 

a more limited review, appellate courts can often readily confirm 

that a defendant is ineligible for relief as a matter of law without 

conducting an independent review of the entire record. As 

discussed below, the defendant is also permitted to file a 

supplemental brief if counsel files a brief raising no arguable 

issues. As also detailed below, if the appellate court wishes, it 

may also exercise its discretion to conduct its own independent 

review of the record in the interest of justice.

Indeed, the procedures implemented with respect to 

Delgadillo’s petition demonstrate the elaborate protections 

already in place. After the appointment of counsel, a review of 

the record, briefing, and a hearing, the superior court concluded 

Delgadillo was ineligible for relief as a matter of law because the 

record showed he was the actual and only participant in the 

crime. On appeal from that determination, Delgadillo again had 

the assistance of appointed counsel, who again examined the 

record and determined there were no grounds upon which to 

challenge the superior court’s determination. The Legislature 

has already given petitioners broad access to counsel in the 

superior courts (Lewis, supra, 11 Cal.5th at p. 968) and 

considered the competing policy considerations in enacting the 

postconviction procedures in section 1172.6. (Lewis, at p. 969 

[the “legislative background shows the Legislature did, in fact, 

engage in the exact type of cost-benefit assessment and policy 

determination it was entitled to make”].) Accordingly, once 

appointed counsel here concluded there are no arguable issues, 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

16

“the value of applying the procedures required by our decision 

in Wende in criminal appeals is ‘too slight to compel their 

invocation.’ ” (In re Phoenix H. (2009) 47 Cal.4th 835, 844, 

quoting Sade C., supra, 13 Cal.4th at p. 991.) 

Delgadillo argues that the state Constitution provides its 

own due process guarantee and that we are free to interpret it 

to afford more protection of a defendant’s rights than is required 

under the federal Constitution. However, for similar reasons, 

the Court of Appeal’s refusal to undertake an independent 

review of the record does not violate the due process clause of 

article I, section 7, subdivision (a), of the California Constitution 

because, again, the balance of interests and risks does not 

mandate such a procedure. The analysis under the state 

constitutional provision would take into account not only the 

three elements discussed above, “but also, under the first, ‘the 

dignitary interest in informing individuals of the nature, 

grounds and consequences of the [governmental] action [in 

question] and in enabling them to present their side of the story 

before a responsible governmental official . . . .’ ” (Sade C., 

supra, 13 Cal.4th at p. 991, fn. 18, quoting People v. Ramirez

(1979) 25 Cal.3d 260, 269 (plur. opn. of Mosk, J.).) However, 

independent review does not further an individual’s dignitary 

interest when counsel has already been given an opportunity to 

present any arguments, found no issues warranting briefing, 

and the defendant was notified that counsel found no issues but 

that the defendant could file supplemental briefing presenting 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

17

any arguments. We therefore find that the procedures set out 

in Wende do not apply to Delgadillo’s appeal.5

B. Procedures Required in Section 1172.6

Proceedings

The Attorney General and Delgadillo both suggest that we 

prescribe guidance for counsel and courts to follow in 

postconviction appeals where counsel finds no arguable issues. 

The Attorney General also notes that the appropriate 

procedures may vary depending on the particular context. We 

agree that it is possible that some more unusual postconviction 

context will call for additional or more specialized requirements.

We agree though that we should invoke our inherent 

supervisory powers to prescribe a few basic procedures going 

forward, while leaving it to the Courts of Appeal to tailor and 

develop any additional procedures as they see fit. (See Robinson 

v. Lewis (2020) 9 Cal.5th 883, 899 [“This court has ‘inherent 

authority to establish “rules of judicial procedure” ’ ”].) 

On an appeal from the denial of a section 1172.6 petition, 

we therefore prescribe the following framework. When 

appointed counsel finds no arguable issues to be pursued on 

appeal: (1) counsel should file a brief informing the court of that 

5

In this case, we are not deciding Wende’s application to 

other postconviction contexts, which may present different 

considerations. (E.g., Coleman, supra, 501 U.S. at p. 755 [not 

answering whether “an exception to the rule of Finley” provides 

for a right to effective counsel in state postconviction 

proceedings “where state collateral review is the first place a 

prisoner can present a challenge to his conviction”]; Martinez v. 

Ryan (2012) 566 U.S. 1, 8 [not resolving the question Coleman

“left open” of “whether a prisoner has a right to effective counsel 

in collateral proceedings which provide the first occasion to raise 

a claim of ineffective assistance at trial”].)
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

18

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. (Scott, supra, 58 Cal.App.5th at p. 1131, 

review granted; Serrano, supra, 211 Cal.App.4th at p. 503; Cole, 

supra, 52 Cal.App.5th at p. 1039, review granted; Figueras, 

supra, 61 Cal.App.5th at p. 112, review granted.) 

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. (Cole, supra, 52 Cal.App.5th at p. 1028, review granted; 

Figueras, supra, 61 Cal.App.5th at p. 113, review granted.) If 

the defendant does not file a supplemental brief or letter, the 

Court of Appeal may dismiss the appeal as abandoned. 

(Serrano, supra, 211 Cal.App.4th at pp. 503–504.) 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. (Ben C., supra, 40 Cal.4th at p. 544.) 

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 in any individual section 1172.6 appeal.

(Scott, supra, 58 Cal.App.5th at p. 1131, review granted; 

Figueras, at p. 113, fn. 2, review granted.)

The procedures announced here, however, are not 

intended to be exhaustive, and the Courts of Appeal are well 

suited to identify any additional procedures for counsel and 

courts to follow in postconviction appeals where counsel finds no 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

19

arguable issues. The Courts of Appeal are free to adopt 

additional procedures as they see fit.

C. Notice of the Procedures the Court of Appeal 

Employed

Delgadillo argues the Court of Appeal provided 

inadequate notice of its procedures in violation of due process 

within the meaning of the Fourteenth Amendment. He 

contends that the court should have notified his counsel that 

involuntary dismissal was being considered and requested 

briefing on that issue. The Attorney General counters that 

Delgadillo had adequate notice and every reason to anticipate 

that his appeal could be dismissed. 

We conclude that the notice provided in this case was 

suboptimal. Delgadillo’s counsel did file a brief raising no 

arguable issues. The Court of Appeal also sent Delgadillo notice 

of his right to file a supplemental brief, and yet he declined to 

do so. However, the notice the Court of Appeal sent Delgadillo 

and counsel affirmatively cited Wende after Delgadillo’s counsel 

had filed a brief pursuant to Wende. The court advised 

Delgadillo by letter 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.)” This notice directly implicates the core 

holding of Wende: “We conclude that Anders requires the court 

to conduct a review of the entire record whenever appointed 

counsel submits a brief which raises no specific issues or 

describes the appeal as frivolous. This obligation is triggered by 

the receipt of such a brief from counsel and does not depend on 

the subsequent receipt of a brief from the defendant personally.” 
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

20

(Wende, at pp. 441–442.) Delgadillo reasonably could have 

concluded from this notice that the Wende procedures would 

apply and that the Court of Appeal would conduct an 

independent review of the record, even absent a supplemental 

brief — even though the Court of Appeal later determined, 

without providing an opportunity to be heard on the matter, that 

Wende was inapplicable. The notice further did not inform 

Delgadillo that the appeal would be dismissed as abandoned if 

no supplemental brief or letter were filed. While arguing that 

the notice was adequate, the Attorney General concedes that the 

court should ordinarily “give the appellant clear notice that the 

court will dismiss the appeal as abandoned if no supplemental 

brief is received.” We therefore conclude that the notice in this 

case was suboptimal. 

Nevertheless, we determine, based on our independent 

review of the record, that Delgadillo is not entitled to any relief 

under section 1172.6. Indeed, the record here makes clear that 

Delgadillo was the actual killer and the only participant in the 

killing. Specifically, eyewitnesses identified him as the driver 

of a Ford Explorer that crossed into incoming traffic and crashed 

into another vehicle, killing the passenger. At trial, defense 

counsel conceded that the accident occurred while Delgadillo 

was driving on the wrong side of the road. (See § 1172.6, subd. 

(a) [“A person convicted of felony murder or murder under the 

natural and probable consequences doctrine or other theory 

under which malice is imputed to a person based solely on that 

person’s participation in a crime, attempted murder under the 

natural and probable consequences doctrine, or manslaughter 

may file a petition with the court” to have the conviction 

vacated].) We affirm the Court of Appeal’s holding that Wende
PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

21

procedures are not constitutionally compelled on Delgadillo’s 

appeal.6

III. DISPOSITION

For the reasons discussed above, the judgment of the 

Court of Appeal is affirmed.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

GUERRERO, J.

6 We are choosing to conduct independent review in the 

interest of judicial economy, but we emphasize that the decision 

to conduct independent review is solely up to the discretion of 

the Courts of Appeal and is not required. In light of our own 

independent review of the record, we do not reach the 

constitutional question raised by Delgadillo of whether the 

notice he received violated due process.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Delgadillo

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) XX NP opn. filed 11/18/20 – 2d Dist.

Div. 4

Rehearing Granted

__________________________________________________________

Opinion No. S266305

Date Filed: December 19, 2022

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Katherine Mader

__________________________________________________________

Counsel:

Nancy J. King and Eric R. Larson, 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.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Eric R. Larson

Attorney at Law

330 J Street, #609

San Diego, CA 92101

(619) 238-5575

Samuel P. Siegel

Deputy State Solicitor General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3917