1

Filed 9/22/21 P. v. Williams CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN WILLIAMS,

Defendant and Appellant. C092913

(Super. Ct. No. 94F04063)

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal. 3d

436.



### F ACTS AND 

### H ISTORY OF THE 

### P ROCEEDINGS

Most of the background facts are taken from People v. Williams (July 14, 1997,

C021467) [nonpub. opn.], the opinion from the direct appeal for defendant Brian

William s ’s convictions.

In 1994, defendant shot and killed the victim, his girlfriend’s estranged husband,

after an argument. A jury found defendant guilty of second degree murder (Pen. Code,

§§ 187, 189; statutory section citations that follow are to the Penal Code) and found t rue

a personal firearm use enhancement (former § 12022.5, subd. (a)(1)) . D efendant pleaded2

no contest to unlawful possession of a firearm (former § 12021, subd. (a)(1)) and

admitted a prior strike conviction (§ 667, subds. (b)

- (i)). We affirmed defenda nt’s

convictions on appeal but remanded the case for the court to exercise its discretion as to a

sentencing issue.

In 2019, defendant filed a section 1170.95 petition for resentencing under recently

enacted Senate Bill No. 1437 (2017

- 2018 Reg. Sess.). The trial court received briefing

from the parties. The court then issued a written order denying the petition, saying

defendant was ineligible for relief because “[h]e was the actual killer, and no felony

murder instruction was given [at trial], nor any instruction on the natural and probable

consequences doctrine that applies to accomplice liability.”

Defendant appeal s.

Appointed counsel for defendant asked this court to independently review the

record pursuant to Wende

.

Defendant filed a 34

- page sup plemental brief and attach ed five exhibits

.



### D ISCUSSION

Review pursuant to Wende or its federal constitutional counterpart Anders v.

California (1967) 386 U.S. 738 [18 L.Ed.2d 493] is required only in the first appeal of

right from a criminal conviction. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 555

[95 L.Ed.2d 539, 545

- 546]; Conservatorship of Ben C . (2007) 40 Cal. 4th 529, 536

- 537;

People v. Serrano (2012) 211 Cal. App.4th 496, 500

- 501.)

California’s “ Wende procedure” does not apply to appeals such as this one which

is from a denial of post

- conviction relief. ( People v. Figueras (2021) 61 Cal. App.5th

108, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal. App.5th

266; People v. Cole (2020) 52 Cal. App.5th 1023, review granted Oct. 14, 2020,

S264278.) This is so because this is not the defendant’s first appeal as of right. (See,3

In re Sade C. (1996) 13 Cal. 4th 952, 986 [ Wende/Anders review “mandated for only

one [situation]

— the indigent criminal defendant in his first appeal as of r ight”].)

We thus have before us a “standard” appeal from an order denying post

conviction relief in which the defendant, through counsel, has stated that there are no

issues that properly can be raised on appeal. Under these circumstances and for the

following reasons, we consider the appeal abandoned and order the appeal dismiss ed

.
There is disagreement among the California courts of appeal regarding the

proper disposition of non

- Wende appeals where, as here, the defendant/appellant has

chosen to rais e issues in the appeal on his own and notwithstanding the fact that his

appointed counsel has reported to the court that he or she cannot find any arguable

appellate issues. Must or should the court review and resolve those issues, thus

adopting the Wende procedure in a non

- Wende appeal?

“The general rule that a defendant who is represented by an attorney of record will

not be personally recognized by the court in the conduct of his case ( People v.

Merkouris (1956)[ ] 46 Cal. 2d 540, 554) applies to the fil ing of pro se documents on

appeal ( Electric Utilities Co. v. Small

- page (1934), 137 Cal. Ap p. 640, 641

- 642).”

( People v. Mattson ( 1956) 51 Cal. 2d 777, 798 ( Mattson ).)

“[T]here is no right

– constitutional, statutory, or otherwise

– to self

- representation

in a criminal appeal in California. (See People v. Stanworth (1969) 71 Cal. 2d 820,

834

– 835[ ] [no right to dismiss counsel in capital appeals]; People v. Scott [ (1998)]

64 Cal. App.4th [550,] 569 573[ ] [noncapital appeals].) In particular, neither the Sixth

Amendment nor the due process clause of the Fourteenth Amendment to t he federal

Constitution furnishes a basis for finding such a right. ( Martinez [ (2000)] 528 U.S.

[152,] 160

– 163 [145 L.Ed.2d 597 ] [( Martinez )].) As the United States Supreme Court

recently explained, the sole constitutional right to self

- representation derives from the

Sixth Amendment, which pertains strictly to the basic rights that an accused enjoys in

defending against a criminal prosecution and does n ot extend beyond the point of4

conviction. ( Martinez, supra , 528 U.S. at p p. 154, 160

– 161.) Emphasizing that the

change in one’s position from ‘defendant’ to ‘appellant’ is a significant one, the high

court found that the balance between a criminal defend ant’s interest in acting as his or

her own lawyer and a state’s interest in ensuring the fair and efficient administration of

justice ‘surely tips in favor of the [s]tate’ once the defendant is no longer presumed

innocent but found guilty beyond a reasonab le doubt. ( Id . at p. 162.) Consequently, the

court concluded, states may exercise broad discretion when considering what

representation to allow and may require an indigent inmate ‘to accept against his will a

state

- appointed attorney’ for representation on a direct appeal without violating the

federal Constitution. ( Martinez, supra
, 528 U.S. at p. 164.)

“As relevant here, represented capital inmates are not permitted to present their

automatic appeals personally to this court. That is, such inmates have no right

personally to supplement or supersede counsel’s briefs and arguments on the merits of

their appeals. ( [ People v. ] Clark [ (1992) ] 3 Cal. 4th [41,] 173 [( Clark )]; Mattson [

(1959)] 51 Cal. 2d [777, 798 [].) As we explained in Mattson , pr o se submissions

pertaining to an appeal will not be filed or considered ‘[b]ecause of the undesirability of

fruitlessly adding to the burdens of this court the time

- consuming task of reading pro se

documents which are not properly before us, and, if they be read, of consequently

enlarging [the] opinion by a recountal and discussion of the contentions made in propria

persona .

. . .’ ( Mattson, supra , 51 Cal. 2d at p. 798.)

“Thus, all appellate motions and briefs must be prepared and filed by counsel

and may not be submitted pro se. ( Clark, supra , 3 Cal. 4th at p. 173.) Although we

will accept and consider pro se motions regarding representation (i.e., Marsden

motions to substitute counsel), such motions ‘must be clearly labeled as such’ an d

‘must be limited to matters concerning representation.’ ( Clark, supra , 3 Cal. 4th at

p. 173.) Any other pro se document offered in an appeal ‘will be returned unfiled’

( ibid .), or, if mistakenly filed, will be stricken from the docket ( Mattson, supra
,5

51 Cal. 2d at p. 798).” ( In re Barnett (2003) 31 Cal. 4th 466, 473

- 474 ( Barnett)

,
emphasis added; accord, Clark, supra, 3 Cal. 4th at p. 173 [reiterating the rule that a

defendant who is represented by an attorney will not be personally recognized by the

court in the conduct of his case applies to a defendant’s filing of pro se documents on

appeal].)

Thus, in a non

- Wende appeal, the defendant, as an individual, does not have

the right to submit his or her own arguments to the court for resolution.

Some appellate courts have adopted a procedure that allows them to consider

and decide an appellant’s arguments raised in his or her own supplemental briefs by

turning to the court’s supervisory power to control the proceedings before it. (See e.g.,

People v. Cole, supra, 52 Cal. App.5th 1023, review granted.) We submit those courts

simply do not have the authority to do so given the California Supreme Court’s holdings

in Mattson, Clark, and Barnett

.
The issues we here consider are pendin g before our Supreme Court and the

court may in the future extend what have become known as “ Wende procedures” to

appeals such as this one from orders denying post

- conviction relief. But it must be

left up to that court to do so. Until it does, appeals such as the one presently before

us must be considered abandoned and ordered dismissed.6 

### D ISPOSITION

The appeal is dismissed.

HULL, J.

We concur:

BLEASE, Acting P. J.

KRAUSE, J.