Filed 2/24/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH A. WILLIAMS,

Defendant and Appellant.

 B311161

 (Los Angeles County

 Super. Ct. No. 

BA120015)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Craig Veals, Judge. Dismissed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

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)1and argued his 1996 sentence could be 

* Baker, Acting P. J., Moor, J., Kim, J.

1

In relevant part, the statute at the time of defendant’s 

petition provided: “When a defendant subject to this 

section . . . has been sentenced to be imprisoned in the state 

prison or a county jail pursuant to subdivision (h) and has been 

committed to the custody of the secretary or the county 

correctional administrator, the court may, within 120 days of the 

date of commitment on its own motion, or at any time upon the 
3

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.

recommendation of the secretary or the Board of Parole Hearings 

in the case of state prison inmates . . . or the district attorney of 

the county in which the defendant was sentenced, recall the 

sentence and commitment previously ordered and resentence the 

defendant in the same manner as if they had not previously been 

sentenced, provided the new sentence, if any, is no greater than 

the initial sentence. . . . The court may consider postconviction 

factors, including, but not limited to, the inmate’s disciplinary 

record and record of rehabilitation while incarcerated . . . .” 

Undesignated statutory references that follow are to the Penal 

Code.
4

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

[(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 onesentence 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

2 Serrano directs, in criminal appeals arising from 

proceedings other than the first appeal of right, that an 

appointed attorney who finds no arguable issues “should (1) 

inform the court he or she has found no arguable issues to be 

pursued on appeal and (2) file a brief setting out the applicable 

facts and the law.” (Serrano, supra, 211 Cal.App.4th at 503.) 

Upon receipt of such a brief, a reviewing court following the 

Serrano procedure will inform the defendant that he or she may

personally file a supplemental brief. (Ibid.) If such a brief is 

filed, there is authority holding that a reviewing court must then 

evaluate any arguments presented in that brief and issue a 

written opinion that disposes of the trial court’s order on the 

merits. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040 (Cole).) 

On the other hand, if no supplemental brief is filed, the court 

“will then either retain the appeal or dismiss it on [its] own 

motion.” (Serrano, supra, at 503; accord, Cole, supra, at 1039-

1040.)
5

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.) 

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 

3 Upon receipt of this self-styled Serrano brief, the clerk of 

this court transmitted to defendant the invitation to file a 

supplemental brief that Serrano contemplates. No supplemental 

brief was filed.
6

[“[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 [ ] [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 
7

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 (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 bottomline disposition of this appeal. We shall accordingly spend the 

bulk of our discussion reviewing a lawyer’s duty of candor to the 

court.
8

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 
9

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 failing to disclose adverse authority, not 

just from making affirmative representations that are 

inconsistent with such authority. But the argument should not 

be taken on its own terms. Counsel is responsible for the content 

of briefs he files in this court (see, e.g., In re Rozzo (2009) 172 

Cal.App.4th 40, 64, fn. 11), and asserting a legal basis for taking 

the appeal that reads as a representation by counsel but is

perhaps phrased in a sufficiently ambiguous manner to later 

permit attribution solely to a client does not properly evade that 

responsibility.

4

 Furthermore, counsel’s assertion that he did not 

advocate any legal position in his opening brief and “at no 

point . . . state[d] that the lower court’s ruling was legally 

appealable” is incorrect. The brief itself “requests this Court to 

follow the procedures set forth in People v. Serrano” and counsel’s 

accompanying declaration is expressly submitted in support of 

the request that this court follow the Serrano procedure. We 

4 Contentions and arguments advanced in appellate briefing 

are routinely phrased in terms of what the party, not the lawyer, 

contends or argues. Appellate practice would become quite 

uncertain if reviewing courts were forced to parse briefs to 

somehow try to determine whether every sentence stating that a 

party contends or asserts some proposition should be understood 

as a contention or assertion that the lawyer does or does not join 

in advocating on behalf of the client. If, for example, a brief 

asserts that the “defendant contends” the evidence is insufficient 

to support a conviction, a court should have every right to expect

that the defendant’s lawyer appearing at oral argument will not 

concede the evidence is sufficient and attribute the contrary 

position taken in the brief solely to his or her client.
10

have already summarized that procedure in the margin (a 

defendant is invited to personally file a supplemental brief with 

any contentions he or she wishes to raise and, at least in the eyes

of Cole and other courts, a reviewing court must address any such 

contentions in a written opinion). That procedure should not be 

followed in an appeal where a court determines it has no 

jurisdiction to proceed. In other words, by the very act of 

prosecuting the appeal and requesting Serrano procedures to be 

followed, counsel represented to this court that we had the 

jurisdiction that permits following those procedures.

Consider next counsel’s argument that his duty to refrain 

from arguing against his client trumps the duty of candor he 

owes to this court. This is a false choice; the two duties are 

readily reconciled because the duty of candor is one of disclosure, 

not acquiescence. That is to say, adverse on-point authority must 

be cited, but a lawyer is free to marshal arguments to persuade a

court to reach a contrary conclusion. In more concrete terms, 

counsel here had an obligation to cite Chlad or similar authority

in his opening brief’s statement of appealability, but he was free 

to argue that the case authority is somehow distinguishable on 

its facts or unpersuasively reasoned such that this court should 

not follow it.5 That, of course, is not what counsel did, and failing 

5 Pursuing such an approach does not invariably require 

lengthy exposition. Indeed, in this case, counsel could have kept 

to his short statement of appealability by simply adding an 

introductory clause: “Although there is authority finding a 

similar order nonappealable (People v. Chlad (1992) 6 

Cal.App.4th 1719), this court should decline to follow that 

authority and permit the appeal to proceed as one taken from an 

order after judgment affecting substantial rights.”
11

to cite applicable authority is all the more unfortunate when done 

in an appeal where, as here, an attorney knows the adverse party 

will not be making an appearance.

Counsel protests, though, that his chosen course of action is 

compelled by Wende, supra, 25 Cal.3d 436; People v. Feggans

(1967) 67 Cal.2d 444 (Feggans); and Serrano, supra, 211 

Cal.App.4th 496. Again, the claim is incorrect even when taken 

on its own terms.

In Feggans, our Supreme Court explained that United 

States Supreme Court precedent requires a defense attorney to 

“prepare a brief to assist the court in understanding the facts and 

the legal issues in the case. The brief must set forth a statement 

of the facts with citations to the transcript, discuss the legal 

issues with citations of appropriate authority, and argue all 

issues that are arguable. Moreover, counsel serves both the court 

and his client by advocating changes in the law if argument can 

be made supporting change. If counsel concludes that there are 

no arguable issues and the appeal is frivolous, he may limit his 

brief to a statement of the facts and applicable law and may ask 

to withdraw from the case, but he must not argue the case 

against his client.” (Feggans, supra, 67 Cal.2d at 447.) 

Subsequently in Wende, our Supreme Court clarified that it is not 

“necessary” for a defense attorney to seek leave to withdraw as 

counsel when he or she concludes no arguable issues can be 

raised on appeal. (Wende, supra, 25 Cal.3d at 442 [“So long as 

counsel has not disabled himself from effectively representing his 

client by describing the case as frivolous, no reason appears why 

he should be required to request to withdraw. Indeed, there may 

be practical benefits to the court and the client from counsel’s

remaining on the case, as has been noted by some commentators 
12

and courts”].) Both Feggans and Wende (in citing Feggans) 

accordingly require an attorney who believes there are no 

arguable issues to nonetheless provide the reviewing court with a 

statement of “applicable law”; counsel concedes as much in his 

letter brief. The requirement to inform the court of applicable 

law applies to a brief’s statement of appealability just as it does 

to any other statement of the law. Much like a defense attorney 

cannot knowingly refrain from citing applicable law to give the 

incorrect impression that only force, and not fear, can be an 

appropriate predicate for a robbery conviction, counsel cannot 

knowingly fail to cite applicable law that discusses what qualifies 

as an appealable order to give the incorrect impression that this 

court has jurisdiction when it does not.

We hasten to add, however, that we do not accept the 

premise of counsel’s argument in the first place. The Wende line 

of cases is of limited relevance because the question here is not 

whether any issue raised on appeal would be frivolous; the 

question is whether this court has jurisdiction to entertain the 

appeal regardless of its substantive merit. We reiterate that 

attorneys have significant latitude to make arguments that an 

order is appealable and jurisdiction appropriate—and such

arguments can be made even in the face of significant published 

authority holding to the contrary. (Cf. Feggans, supra, 67 Cal.2d 

at 447 [“counsel serves both the court and his client by 

advocating changes in the law if argument can be made 

supporting change”].) But in the infrequent circumstance where 

appointed counsel determines that there is in fact no argument 

that he or she can responsibly make in service of the proposition 

that this court has jurisdiction to hear and decide an appeal, it is 

appropriate for counsel in that circumstance to withdraw from 
13

the representation. What cannot be done is to prosecute an 

appeal that counsel knows a reviewing court has no jurisdiction 

to decide while refraining from citing known, applicable law that 

would reveal the jurisdictional flaw.

We shall address one additional question, albeit not one

raised in counsel’s letter brief: if appointed counsel files a 

Serrano brief that most often leads to dismissal of an appeal, why 

does it matter whether that dismissal occurs because the court 

finds the appeal to be abandoned or because jurisdiction is 

lacking? There are two responses. First, following the Serrano

procedure, with its solicitation for supplemental briefing from the 

defendant, invariably and unnecessarily delays dismissal of 

nonappealable cases. Second, unnecessary delay is compounded,

and other problems arise, in those circumstances where the 

defendant does file a supplemental brief. When that occurs, the 

defendant expends wasted time and effort in preparing a brief, 

this court expends wasted time and effort in reviewing that brief, 

and—if the appealability problem is not discovered by the court 

on its own—courts customarily expend wasted time and effort 

preparing a written opinion that addresses the defendant’s 

contentions in a case where it has no jurisdiction to do so.

B. Defendant’s Appeal Must Be Dismissed for Lack of 

Jurisdiction

Fortunately, this court’s own research in this case has 

mitigated some of the aforementioned problems. The trial court 

here denied defendant’s section 1170, subdivision (d) petition 

because it was untimely and unaccompanied by a statutorily 

authorized recommendation for resentencing. We follow 

precedent holding the trial court’s denial is a nonappealable 
14

order. (See, e.g., Chlad, supra, 6 Cal.App.4th 1725-1726 [order 

denying a section 1170, subdivision (d) motion to recall sentence 

is not an appealable order because the trial court no longer had 

jurisdiction to recall the defendant’s sentence when it issued the 

order denying his motion; a defendant has no standing to bring 

an untimely section 1170, subdivision (d) motion]; see also People 

v. Torres (2020) 44 Cal.App.5th 1081, 1084 [“If the trial court 

does not have jurisdiction to rule on a motion to vacate or modify 

a sentence, an order denying such a motion is nonappealable, and 

any appeal from such an order must be dismissed”] (Torres); 

People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; People v. 

Roe, supra, 148 Cal.App.3d at 117.) Indeed, we were given no 

reason not to follow this authority when we invited counsel to so 

argue (nor by defendant when the clerk, upon receiving the 

opening brief claiming the matter should proceed according to 

Serrano procedures, invited defendant to submit a supplemental 

brief). Being taken from a nonappealable order, we are obligated 

to dismiss the appeal for lack of jurisdiction. (People v. Durham

(1969) 70 Cal.2d 171, 176, fn. 1; Torres, supra, at 1084.)

C. Conclusion

An order akin to the order here denying section 1170, 

subdivision (d)(1) relief is not an appealable order. An order

denying a habeas corpus petition is not an appealable order. (In 

re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) An attorney who

prosecutes an appeal while failing to cite known authority that 

this court has no jurisdiction to entertain it violates the

attorney’s duty of candor (where the authority is not otherwise 

brought to the attention of the court by another party to the 

appeal). Any such future violation, in the view of this court, may
15

warrant disciplinary review by the State Bar or other corrective 

action.

DISPOSITION

The appeal is dismissed.

CERTIFIED FOR PUBLICATION