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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

FACTS AND HISTORY OF THE PROCEEDINGS

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 

Williams’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 true 

a personal firearm use enhancement (former § 12022.5, subd. (a)(1)). Defendant pleaded 
2

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 defendant’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 felonymurder instruction was given [at trial], nor any instruction on the natural and probable 

consequences doctrine that applies to accomplice liability.” 

Defendant appeals.

Appointed counsel for defendant asked this court to independently review the 

record pursuant to Wende. 

Defendant filed a 34-page supplemental brief and attached five exhibits.

DISCUSSION

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 right”].)

We thus have before us a “standard” appeal from an order denying postconviction 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 dismissed.

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 raise 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 filing of pro se documents on 

appeal (ElectricUtilities Co. v. Small-page (1934), 137 Cal.App. 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 the 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 not extend beyond the point of 
4

conviction. (Martinez, supra, 528 U.S. at pp. 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 defendant’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 reasonable 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, pro 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’ and 

‘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 pending 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

DISPOSITION

The appeal is dismissed. 

 

HULL, J.

We concur:

 

BLEASE, Acting P. J.

 

KRAUSE, J.