Filed 8/3/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FREDDIE COLE, 

Defendant and Appellant.

 B304329

 (Los Angeles County

 Super. Ct. No. NA061968)

APPEAL from an order of the Superior Court of Los 

Angeles County, Jesus I. Rodriguez, Judge. Dismissed.

Mark Alan Hart, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * *

This appeal presents a problem that is both commonplace 

and elusive. When counsel appointed to represent a criminal 

defendant during the initial appeal of his conviction concludes 

that there are no reasonably arguable issues to present to the 

Court of Appeal, People v. Wende (1979) 25 Cal.3d 436 (Wende) 
2

delineates the procedures both counsel and the Court of Appeal

are to follow. What procedures apply when the appeal is from the 

denial of postconviction relief (rather than, as in Wende, the 

defendant’s first appeal of right)? Do Wende’s procedures still 

apply? And if not, on what basis may a Court of Appeal prescribe 

the procedures that counsel and the court are to follow? A 

handful of courts have addressed the first question, but the 

second has yet to be confronted.

We publish to provide our views and guidance on both 

questions. Taking the second question first, we hold that Wende’s 

constitutional underpinnings do not apply to appeals from the 

denial of postconviction relief; consequently, the procedures we 

and other courts have prescribed are grounded solely in our 

supervisory powers to control the proceedings before us. We 

further hold that, in the exercise of these powers, counsel 

appointed in such appeals is required to independently review 

the entire record and, if counsel so finds, file a brief advising the 

appellate court that there are “no arguable issues to raise on 

appeal”; the defendant has a right to file a supplemental brief; 

and this court has the duty to address any issues raised by the 

defendant but otherwise may dismiss the appeal without 

conducting an independent review of the record. Because the 

defendant who has appealed the denial of postconviction relief in 

this case has not filed a supplemental brief, we dismiss this 

appeal as abandoned.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In 2007, a jury convicted Freddie Cole (defendant) of (1) 

murder (Pen. Code, § 187, subd. (a)),1 and (2) arson of an 

inhabited structure (§ 451, subd. (b)). That same year, the trial 

court sentenced defendant to prison for 35 years to life. This was 

a “third strike” sentence under our state’s Three Strikes Law 

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)), plus 10 years 

because each of his two prior strikes also constituted prior serious 

felonies (§ 667, subd. (a)(1)); one of defendant’s prior “strikes” was 

also for arson of an inhabited structure. We affirmed his 

convictions and sentence in 2008. (People v. Cole (Aug. 7, 2008,

B202387) [nonpub. opn.].) 

II. Procedural Background

In April 2019, defendant filed a petition seeking 

resentencing under section 1170.95. In the form petition, 

defendant checked the boxes for the allegations that he had been 

charged with murder, that he was convicted “pursuant to the 

felony murder rule or the natural and probable consequences 

doctrine,” and that his murder conviction would be invalid under 

the “changes made to Penal Code §§ 188 and 189, effective 

January 1, 2019.” In explaining why his murder conviction 

would be invalid under the 2019 changes to sections 188 and 189, 

defendant did not check the box alleging that he “was not the 

actual killer.” He also requested counsel.

On January 15, 2020, and after appointing defendant 

counsel, the trial court summarily denied defendant’s petition. 

Based upon the recitation of facts in our opinion affirming his 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
4

conviction, which showed defendant had acted alone in splashing 

gasoline on the porch of the apartment where the murder victim 

lived moments before the fire started and had repeatedly 

threatened to “burn this mother fucker down and everybody 

that’s in it,” the trial court concluded that defendant was “the 

actual killer” and hence categorically ineligible for relief under 

section 1170.95. 

Defendant filed a timely notice of appeal. 

Pursuant to the California Rules of Court and our district’s 

routine practice of appointing counsel to represent defendants 

appealing from the denial of postconviction relief, we appointed 

appellate counsel for defendant. (Cal. Rules of Court, rule 

8.300(a)(1).) Citing Wende, supra, 25 Cal.3d 436, counsel filed an 

opening brief setting out the procedural history and relevant 

facts of this case, and a declaration indicating that counsel had 

“reviewed the entire record” and had informed defendant “of his 

right to file a supplemental brief.” Counsel has invited us to 

“independently review the entire record on appeal for arguable 

issues.” 

We sent a letter to defendant advising him that he had 30 

days to file a supplemental brief. 

Defendant has not filed a timely supplemental brief.

DISCUSSION

The questions presented in this appeal are straightforward: 

(1) What procedures must appointed counsel and this court follow 

when counsel determines that an appeal of an order denying 

postconviction relief lacks arguable merit, and (2) By what 

authority do we prescribe those procedures? Discerning 

definitive answers to these questions, however, is more akin to 

navigating the Labyrinth of Crete. The need for these answers is
5

nevertheless great: In recent years, our Legislature and voters 

have enacted an increasing number of laws that empower 

convicted defendants to seek postconviction relief reducing their 

sentences, reducing their crimes of conviction, or vacating their 

pleas. (See, e.g., § 1170.126 [defendants convicted of “third 

strike” offenses may seek reduction in sentence if their “third 

strike” offense does not qualify as a “strike” offense], § 1170.18 

[defendants convicted of certain low-level felonies may seek 

reduction of those crimes to misdemeanors], § 1473.7 [defendants 

may seek to vacate their pleas if they did not “meaningfully 

understand” the “immigration consequences” of their pleas], 

§ 1016.8 [defendants may seek to vacate their pleas if predicated 

upon a waiver of the “future benefits of . . . changes in the law 

that may retroactively apply”].) Section 1170.95 is one such law, 

as it empowers a defendant convicted of murder to vacate his 

murder conviction if it was based upon a theory of vicarious 

liability—and, in particular, upon a theory of felony murder or 

natural and probable consequences—unless he acted with the 

intent to kill or was “a major participant” in an underlying felony 

and “act[ed] with reckless indifference to human life”; it does not 

provide relief to a “person [who] was the actual killer.” 

(§ 1170.95; see also, §§ 188, 189, subd. (e).)

In many respects, we are not writing on a tabula rasa. 

Several cases have addressed what procedures appointed counsel 

and the Court of Appeal should follow when counsel finds no 

arguable merit to an appeal from the denial of postconviction 

relief. First among them is People v. Serrano (2012) 211 

Cal.App.4th 496 (Serrano). But these cases have not settled upon 

the same procedures. (Compare Serrano, at pp. 501, 503 [counsel 

must file brief, defendant has right to file supplemental brief, 
6

court has no duty to independently review the record] with People 

v. Soto (July 9, 2020, H047581) __ Cal.App.5th __, 2020 

Cal.App.LEXIS 637, *1 (Soto) [same, except court went on to 

independently “review[] the briefs and record”]; People v. Johnson

(2016) 244 Cal.App.4th 384, 389, fn. 5 (Johnson) [same]; In re 

J.S. (2015) 237 Cal.App.4th 452, 457 (In re J.S.) [same].) And 

none of this precedent has squarely confronted the question of the 

legal basis for prescribing these procedures.

I. Procedures When Counsel Finds No Reasonably 

Arguable Issues On Appeal, Generally

In the universe of law defining what procedures appointed 

counsel and the Court of Appeal must follow when counsel 

determines there are no arguably meritorious issues to raise on 

appeal, the proverbial Delphi—or center—of that universe is 

Wende, supra, 25 Cal.3d 436. As noted above, Wende set forth 

the procedures to be followed during the defendant’s “first appeal 

of right”—that is, during the direct appeal of his judgment of 

conviction and sentence. (Id. at pp. 438, 443.) At this stage in 

criminal proceedings, a criminal defendant has a federal 

constitutional right to the effective assistance of counsel. (Evitts 

v. Lucey (1985) 469 U.S. 387, 392-400, 405 (Evitts) [so holding]; In 

re Sade C. (1996) 13 Cal.4th 952, 978 (Sade C.) [so noting]; see 

generally Douglas v. California (1963) 372 U.S. 353, 353-358 

[indigent defendant has right to counsel on first appeal of right].) 

The right to effective assistance of counsel during the first appeal 

of right is based partly on the due process-based incorporation of 

the Sixth Amendment right to counsel to the states and partly on 

the equal protection-based concern that indigent defendants be 

treated the same as non-indigent defendants. (Evitts, at p. 405.) 

The purpose of Wende’s procedures is “to ensure [the] indigent 

criminal defendant’s right to effective assistance of counsel” 
7

during the first appeal of right. (People v. Kelly (2006) 40 Cal.4th 

106, 118 (Kelly); Sade C., at p. 978; see also People v. Feggans

(1967) 67 Cal.2d 444, 447 (Feggans) [so holding, as to pre-Wende

procedures on the first appeal of right].) 

Wende requires (1) appellate counsel (a) to independently 

evaluate the “entire record” and, if counsel determines there are 

no “reasonably arguable” issues (that is, no non-frivolous issues) 

to raise on appeal, (b) to file a brief that so indicates and that sets 

forth certain information about the trial court proceedings, (2) 

the defendant to be given the opportunity to file a supplemental 

brief raising issues, and (3) the Court of Appeal to independently 

review the record to determine whether there are any nonfrivolous arguments to be addressed on appeal. (Wende, supra,

25 Cal.3d at pp. 438, 442-443; Feggans, supra, 67 Cal.2d at p.

448; Kelly, supra, 40 Cal.4th at pp. 109-110, 118; Sade C., supra, 

13 Cal.4th at pp. 977, 979; accord, Anders v. California (1967) 

386 U.S. 738, 744 (Anders).) By conscripting both appointed 

counsel and the Court of Appeal to the task of independently 

poring over the record for reasonably arguable issues, 

presumably on the Argus-inspired theory that the more eyes, the 

better, Wende’s procedures are able to fulfill their chief purpose, 

noted above, of “prophylactic[ally]” “safeguard[ing]” the 

defendant’s constitutional right to the effective assistance of 

counsel during his first appeal of right. (Smith v. Robbins (2000) 

528 U.S. 259, 265, 273, 276 (Smith); Pa. v. Finley (1987) 481 U.S. 

551, 554 (Finley)).

Wende’s procedures are inextricably moored to their 

constitutional justification: “When [a] defendant ‘has no 

underlying constitutional right to [the effective assistance of] 

appointed counsel,’ he ‘has no constitutional right to insist on the 
8

[Wende] procedures which were designed solely to protect that 

underlying constitutional right.’” (Sade C., supra, 13 Cal.4th at 

p. 973, quoting Finley, supra, 481 U.S. at p. 557.) To be sure, a 

defendant sometimes has a constitutionally grounded, due 

process-based right to the appointment of counsel in 

postconviction proceedings. That right is a limited one, however, 

and only kicks in once the defendant makes a prima facie 

showing of entitlement of postconviction relief. (People v. 

Shipman (1965) 62 Cal.2d 226, 232 (Shipman) [so noting, as to 

defendant seeking a writ of coram nobis]; In re Clark (1993) 5 

Cal.4th 750, 779-780 (Clark) [so noting, as to defendant seeking a 

writ of habeas corpus], superseded by statute on other grounds as 

stated in Briggs v. Brown (2017) 3 Cal.5th 808, 842 (Briggs); 

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981-982 [so noting, 

as to defendant seeking relief under section 1473.7 in trial 

court].) But having a constitutional right to the appointment of 

counsel is not the same as having a constitutional right to the 

effective assistance of that counsel (see Sade C., at p. 978 [noting 

a distinction between entitlement to “nominal assistance” of 

counsel and “effective assistance” of counsel]), and our Supreme 

Court has steadfastly held that “there is no constitutional right to 

the effective assistance of counsel” in state postconviction 

proceedings (People v. Boyer (2006) 38 Cal.4th 412, 489; People v. 

Young (2005) 34 Cal.4th 1149, 1232-1233; People v. Kipp (2001) 

26 Cal.4th 1100, 1139-1140). Consequently, the procedures set 

forth in Wende do not apply to appeals from the denial of 

postconviction relief, even if the defendant might have a right to 

the appointment of counsel. (Finley, at p. 556; Sade C., at p. 972; 

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben 

C.).)
9

With this background, we now turn to the questions 

presented: (1) On what authority may we impose Wende-like 

procedures to an appeal of the denial of postconviction relief, and,

if we possess such authority, (2) Which procedures should we 

adopt?

II. Procedures When Counsel Finds No Reasonably 

Arguable Issues On Appeals In Postconviction 

Proceedings

A. Authority to impose Wende-like procedures in 

postconviction proceedings

Our Supreme Court has extended a subset of Wende’s 

procedures to appeals not involving a criminal defendant’s first 

appeal of right, but its decisions have not definitively articulated 

the justification for doing so. 

In Ben C., supra, 40 Cal.4th at p. 535, the court held that 

the full panoply of Wende procedures do not apply when appellate 

counsel determines that an appeal of an order declaring a 

conservatorship over the appellant has no arguable merit. The 

court declined to extend Wende either as a matter of 

constitutional imperative or under its “inherent authority.” 

(Ibid.) Ben C. went on to hold that appellate counsel was 

required to file a Wende-like brief and that the conservatee had a 

right to file a supplemental brief (id. at p. 544 & fn. 6), but did 

not explain on what authority it was prescribing this subset of 

Wende procedures. The Court of Appeal decisions that have 

followed Ben C.’s lead in prescribing a subset of Wende

procedures in the postconviction and other contexts have been 

similarly silent on their basis for doing so. (Serrano, supra, 211 

Cal.App.4th at p. 503; People v. Dobson (2008) 161 Cal.App.4th 

1422, 1438-1439 (Dobson) [appeal from order denying petition for 

restoration of competency following a finding of not guilty by 
10

reason of insanity]; People v. Martinez (2016) 246 Cal.App.4th 

1226, 1239-1240 (Martinez) [appeal from order extending civil 

commitment of person found not guilty by reason of insanity]; 

People v. Taylor (2008) 160 Cal.App.4th 304, 311-312 [appeal 

from order denying challenge to civil commitment placement as a 

medically disordered offender].) 

In Sade C., supra, 13 Cal.4th 952, and In re Phoenix H.

(2009) 47 Cal.4th 835 (Phoenix H.), the court held that the full 

panoply of Wende procedures do not apply when appellate counsel 

determines that an appeal of an order terminating a parent’s 

rights over his or her child in juvenile dependency proceedings 

has no arguable merit. (Sade C., at pp. 961, 985-993; Phoenix H., 

at p. 838.) These cases went on to hold that appellate counsel 

was required to file a Wende-like brief, but that the parent could 

file a supplemental brief only if the parent made a “showing of 

good cause” to do so and that the Court of Appeal had no duty to 

independently review the record for arguable issues. (Phoenix H., 

at p. 844.) In holding that the court would “not exercise [its]

supervisory powers” to grant parents a right to file a 

supplemental brief (ibid.), Phoenix H. strongly suggests that the 

court was exercising its supervisory powers in requiring appellate 

counsel to file a brief and in requiring appellate courts to accept 

supplemental briefs preceded by a showing of good cause. 

We make explicit what Phoenix H. implies: Courts of 

Appeal, like all courts, “have inherent supervisory or 

administrative powers which enable them to carry out their 

duties,” and these powers include the power to “‘formulate rules 

of procedure’ [citation].” (Rutherford v. Owens-Illinois, Inc.

(1997) 16 Cal.4th 953, 967; Citizens Utilities Co. v. Superior 

Court (1963) 59 Cal.2d 805, 812-813.) We invoke these inherent 
11

supervisory powers to prescribe the procedures to be followed in 

this court when appellate counsel determines that the appeal 

from the denial of postconviction relief lacks any reasonably 

arguable issues. 

At the same time, and like all the decisions cited above, we 

reject the notion that the Constitution compels the adoption or 

extension of Wende procedures (or any subset of them) for appeals 

other than a criminal defendant’s first appeal of right because, 

beyond that appeal, there is no right to the effective assistance of 

counsel. Time and again, the United States Supreme Court and 

our Supreme Court have rejected the very same argument. (See 

Finley, supra, 481 U.S. at p. 555; Ben C., supra, 40 Cal.4th at pp. 

538-543; Sade C., supra, 13 Cal.4th at pp. 986-993.) Relying 

upon our supervisory powers rather than due process and equal 

protection also avoids what might be viewed as an absurd result, 

particularly with respect to appeals of orders summarily denying 

postconviction relief. As noted above, for many forms of 

postconviction relief, the applicant has no due process right to the 

appointment of counsel before the trial court unless and until he 

makes a prima facie showing of entitlement to relief (e.g., Clark, 

supra, 5 Cal.4th at pp. 779-780; Shipman, supra, 62 Cal.2d at p. 

232), and many applications are summarily denied for the failure 

to make that showing before counsel is ever appointed. If an 

applicant does not from the outset need counsel to assure he 

receives due process before the trial court that is entrusted with 

litigating his or her claim in the first instance, on what basis 

would Wende-like procedures premised on a fully-fledged right to 

the effective assistance of counsel suddenly spring into existence 
12

for the first time on appeal like a fully-grown Athena bursting 

from Zeus’s skull? We perceive no such basis.2

B. Procedures to be followed in postconviction 

proceedings

1. Analysis

Despite the seemingly unanimous agreement of the courts 

that Wende procedures are not constitutionally required in 

appeals other than a criminal defendant’s first appeal of right, 

those courts have not been unanimous in prescribing which 

procedures they require in the implicit exercise of their 

supervisory powers. 

2 Recognizing a due process-based right to Wende-like review 

in all postconviction proceedings would lead to a particularly 

bizarre result in light of a recent change to the law of habeas 

corpus. Until recently, a defendant whose petition for habeas 

corpus was denied by the trial court had no right to appeal that 

denial to the Court of Appeal (Briggs, supra, 3 Cal.5th at p. 836); 

instead, the defendant had to file a new writ with the Court of 

Appeal (Robinson v. Lewis (July 20, 2020, S228137) __ Cal.5th __, 

2020 Cal.LEXIS 4360, *11-*13), and, as with all such writs, the 

petitioner would have a due process-based right to counsel only if 

the Court of Appeal found he or she made a prima facie showing 

for relief and issued an order to show cause (Clark, at p. 780). In 

2016, however, the law changed to grant defendants “[under] a 

judgment of death” a right to appeal the denial of their habeas 

corpus petitions to the Court of Appeal. (§§ 1509, 1509.1.) If 

Wende-like procedures were grounded in due process, habeas 

petitioners under a judgment of death would suddenly have a 

due-process right to counsel long before they made any prima 

facie showing simply by virtue of being granted the right to 

appeal to the Court of Appeal (rather than the right to file a new 

writ with that court).
13

The variety of different procedures the courts have 

prescribed can be placed on a spectrum. At one end of the 

spectrum are procedures that mimic Wende procedures in their 

entirety—that is, counsel has a duty to independently review the 

record and file a brief; the appellant has a right to file a 

supplemental brief; and the Court of Appeal engages in an 

independent review of the record. (E.g., Soto, supra, __ 

Cal.App.5th__ [2020 Cal.App.LEXIS 637, *7-*8]; Johnson, supra, 

244 Cal.App.4th at p. 389, fn. 5; In re J.S., supra, 237 

Cal.App.4th at pp. 456-457.) Next along the spectrum are 

procedures that require counsel’s independent review of the 

record and assure the appellant a right to file a supplemental 

brief, but do not obligate the appellate court to conduct a second, 

independent review of the record. (E.g., Ben C., supra, 40 Cal.4th 

at p. 544 & fn. 7; Dobson, supra, 161 Cal.App.4th at pp. 1438-

1439.) Further along the spectrum are procedures that require 

counsel’s independent review of the record, but which make the 

appellant’s right to file a supplemental brief contingent upon a 

showing of “good cause” and which do not obligate the appellate 

court to independently review the record. (E.g., Sade C., supra, 

13 Cal.4th at pp. 961, 985-993; Phoenix H., supra, 47 Cal.4th at 

pp. 838, 844.) And at the far end of the spectrum would be no 

Wende-like procedures even if appellate counsel is appointed, 

although no court has ever so held (and we doubt they would, 

given counsel’s duty to zealously advocate for his client (People v. 

McKenzie (1983) 34 Cal.3d 616, 631 (McKenzie) [“‘The duty of a 

lawyer both to his client and to the legal system, is to represent 

his client zealously within the bounds of the law.’”], italics 

omitted)).
14

Unfortunately, none of these courts has articulated why 

they have adopted one set of procedures along this spectrum 

rather than another. In other words, they have not set forth the 

criteria by which they have calibrated which procedures are 

appropriate in the implicit exercise of their supervisory power. 

Fortunately, however, there is a ready analogy—namely, the 

criteria used to calibrate which procedures are necessary to 

assure that a given procedure is fundamentally fair in order to 

comply with due process. (Lassiter v. Dep’t of Social Services

(1981) 452 U.S. 18, 27 (Lassiter).) While legally distinct, the due 

process guarantee and the exercise of supervisory powers both 

seek to fix the procedures that best calibrate competing interests 

in order to provide the just and efficient adjudication of disputes. 

The criteria relevant to both inquiries should accordingly be the 

same.

What are those criteria? They are (1) “the private interests 

at stake,” (2) “the government’s interests,” and (3) “the risk that 

the procedures used will lead to erroneous decisions.” (Lassiter, 

supra, 452 U.S. at p. 27; Mathews v. Eldridge (1976) 424 U.S. 

319, 334-335.) 

The private interests at stake when adjudicating a criminal 

defendant’s postconviction request for relief are undoubtedly 

significant and weighty. Such a defendant may still be 

incarcerated and seeking release from physical confinement. 

(Ben C., supra, 40 Cal.4th at p. 540 [confinement due to 

conservatorship is a “significant” private interest].) Even if the 

defendant has fully served the sentence imposed, he or she may 

be seeking to relieve themselves of the opprobrium and stigma of 

their prior conviction(s), or the collateral consequences that flow 
15

from the conviction(s). (E.g., Serrano, supra, 211 Cal.App.4th at 

p. 502 [petition under section 1473.7 to avoid deportation].) 

The private interest in this situation is less weighty than 

the interests at stake in Wende itself. A defendant’s interest 

during the first appeal of right at issue in Wende is ensuring that 

his liberty is not taken away unless he is found guilty beyond a 

reasonable doubt at a trial where his constitutional and statutory 

rights are scrupulously honored; the failure to protect this 

interest results in wrongful incarceration. A defendant’s interest 

when seeking postconviction relief, in most cases, seeks the 

“benefit of ameliorative changes” in the law rendered applicable 

to the defendant by legislative grace rather than constitutional 

imperative (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 

(Perez); Dillon v. United States (2010) 560 U.S. 817, 828); the 

failure to protect this interest results in the failure to reduce or 

eliminate a conviction or sentence that was previously imposed 

and adjudicated to be valid. (People v. Osuna (2014) 225 

Cal.App.4th 1020, 1040 [“A finding [that] an inmate is not 

eligible for [the postconviction relief at issue] does not increase or 

aggravate that individual’s sentence; rather, it leaves him or her 

subject to the sentence originally imposed.”], overruled in part on 

other grounds as stated in People v. Frierson (2017) 4 Cal.5th

225, 240, fn. 8; Shipman, supra, 62 Cal.2d at p. 232 [“the 

ordinary processes of trial and appeal are presumed to result in 

valid adjudications”].) Less is at stake in the postconviction 

context, which explains why the Sixth Amendment’s right to a 

jury’s finding of guilt does not apply to fact-finding in support of 

postconviction relief. (Perez, at pp. 1063-1064; People v. Anthony

(2019) 32 Cal.App.5th 1102, 1156-1157.) Conversely, the private 

interest at stake here is weightier than the interests of parents 
16

seeking to retain the rights to their children and whose personal 

liberty is not at stake. (Sade C., supra, 13 Cal.4th at pp. 982, 987 

[“‘“punitive”’” proceedings have higher stakes].) A defendant’s 

private interest in seeking postconviction relief is most 

comparable to a denial of release following a finding he is not 

guilty by reason of insanity; in both situations, the defendant’s 

personal liberty is at stake but what he is seeking is a 

modification of a previously adjudicated order that deprived him 

of that liberty in the first place. (Accord, Dobson, supra, 161 

Cal.App.4th at pp. 1438-1439.)

The government interest in adjudicating appeals denying 

postconviction relief is two-fold. As with all appeals, the state 

has an “‘important’” “interest in an accurate and just resolution of 

the . . . appeal.” (Sade C., supra, 13 Cal.4th at p. 989; Martinez,

supra, 246 Cal.App.4th at p. 1235.) The state also has a 

“legitimate” “‘fiscal and administrative interest in reducing the 

cost and burden of [the appellant] proceedings.’” (Sade C., at p. 

989, quoting Santosky v. Kramer (1982) 455 U.S. 745, 766; 

Martinez, at p. 1235.) This latter interest recognizes that judicial 

resources are scarce and that many of the steps of Wende review,

including the independent review of a record by a court, are 

resource-intensive. (Serrano, supra, 211 Cal.App.4th at p. 503.) 

It also recognizes that the more mechanisms there are for 

postconviction relief, the more time they will take to adjudicate 

and the less time that will remain for appeals where greater 

private interests are at stake, such as first appeals of right.

The risk that providing fewer procedures on appeal from an 

order denying postconviction relief will lead to an erroneous 

decision is not especially great. That is partly because, as noted 

above, defendants seeking postconviction relief have already had 
17

their convictions affirmed following their first appeal of right, 

such that the risk of error due to the absence of Wende

procedures on an appeal from the denial of postconviction relief is 

correspondingly less. And it is partly because of our experience 

that “appointed appellate counsel faithfully conduct themselves 

as active advocates” on behalf of their clients, and thus will 

invoke Wende-like procedures only when their careful review has 

turned up no reasonably arguable issues. (Sade C., supra, 13 

Cal.4th at p. 990.)

2. The procedures we prescribe

In balancing the private interests of defendants seeking 

postconviction relief that will reduce or eliminate conviction(s) 

and sentences previously adjudicated as valid, the government’s 

interests in just adjudication and intelligently allocating 

resources, and the relatively small risk of error should Wende’s 

procedures not be fully imported, we invoke our supervisory 

powers to prescribe that the procedures set forth below be 

followed when counsel is appointed to represent a defendant who 

is appealing the denial of postconviction relief.

3

a. Duty of appellate counsel

When a Court of Appeal exercises its authority to appoint 

counsel to represent a defendant appealing from the denial of 

postconviction relief (Cal. Rules of Court, rule 8.300(a)(1)), that 

counsel has three duties. 

3 In setting forth these procedures, we do not reach the 

question of whether they are sufficient when the sentence 

imposed was death. “[D]eath is different” (Gregg v. Georgia 

(1976) 428 U.S. 153, 188), and may well alter the interests at 

stake and hence the calculus of assessing which procedures must 

be followed.
18

First, counsel must independently review the “entire 

record” and “thoroughly research the law.” (Phoenix H., supra, 47 

Cal.4th at p. 840; Sade C., supra, 13 Cal.4th at p. 974.) Once 

counsel has done so, he or she must assess whether there are any 

reasonably arguable issues—that is, any non-frivolous issues—to 

present on appeal as to how the trial court erred. (Smith, supra, 

528 U.S. at p. 282 [noting how “the Wende procedure . . . defin[es] 

arguable issues as those that are not frivolous”].) 

Second, and if counsel determines that there are no 

reasonably arguable issues to present on appeal, counsel must 

file a brief with the Court of Appeal setting forth (1) a brief 

statement of the pertinent procedural history of the case, (2) a 

brief summary of the pertinent facts, (3) counsel’s declaration 

that there are no reasonably arguable issues to present on 

appeal, and (4) counsel’s affirmation that he or she remains ready 

to brief any issues at the request of the Court of Appeal. We 

recognize that requiring counsel to declare that there are no 

reasonably arguable issues is asking counsel to navigate between 

Scylla and Charybdis—that is, to walk gingerly between duty of 

counsel to zealously advocate for her client (McKenzie, supra, 34 

Cal.3d at p. 631) and her concomitant duty to the court not to 

present frivolous arguments. (McCoy v. Court of Appeals, Dist. 1

(1988) 486 U.S. 429, 436-437; accord, Smith, supra, 528 U.S. at 

pp. 281-282 [so noting].) Although some cases suggest that a 

declaration by counsel that there are “no arguable issues” 

automatically disqualifies counsel (Anders, supra, 386 U.S. at p. 

744) or is unnecessary because it is implied by the filing of the 

brief itself (Wende, supra, 25 Cal.3d at p. 442), Wende rejected 

that view and held that counsel may expressly inform the court 

regarding the non-existence of any reasonably arguable issues 
19

(ibid.). To create a clear record, we require counsel to so state 

and to remain available to brief any issues. (E.g., In re J.S.,

supra, 237 Cal.App.4th at p. 456-457.) We will not require 

counsel to set forth the “applicable law” in the brief because (1) 

the cases requiring counsel to do so in first appeals of right do not 

uniformly require counsel to do so (cf., Feggans, supra, 67 Cal.2d 

at p. 447 [pre-Wende case requiring counsel to set forth “a 

statement of the facts and applicable law”]), especially once 

counsel has identified no reasonably arguable issues (Wende, at 

p. 438 [requiring only a “summary of the proceedings and facts” 

when counsel determined there were no “arguable issues”]; Kelly,

supra, 40 Cal.4th at p. 121, fn.3 [same]), and (2) the purpose of 

requiring counsel to set forth the “applicable law”—that is, to aid 

the Court of Appeal in its independent review of the record 

(Feggans, at p. 447; Sade C., supra, 13 Cal.4th at p. 979)—is 

irrelevant where, as here, a court has no duty to conduct such a 

review.

Third, at the time counsel files the brief, counsel must (1) 

inform his or her client that the client has the right to file a 

supplemental brief to the Court of Appeal within 30 days, and (2) 

provide the client with a copy of counsel’s brief.

b. Defendant’s right to file a supplemental 

brief

If counsel files a brief as outlined above, the defendant has 

a right to file a supplemental brief. This is a departure from the 

“general rule that a represented defendant has no right 

personally to present supplemental arguments” to the court 

(Kelly, supra, 40 Cal.4th at p. 120), but is warranted here given 

the private interests at stake.
20

Even if counsel has notified the defendant of his or her 

right to file a supplemental brief, the Court of Appeal must also 

do so.

c. Obligations of the Court of Appeal

The Court of Appeal has no independent duty to review the 

record for reasonably arguable issues. (Accord, Serrano, supra, 

211 Cal.App.4th at pp. 501, 503.)

If the defendant does not file a supplemental brief, the 

Court of Appeal may dismiss the appeal as abandoned. This is 

because the order appealed from is presumed to be correct (e.g., 

Jameson v. Desta (2018) 5 Cal.5th 594, 608-609), and in the 

absence of any arguments to the contrary, ineluctably leads to 

the conclusion that the appellant has not carried his or her 

burden of proving otherwise (e.g., People v. Bryant, Smith and 

Wheeler (2014) 60 Cal.4th 335, 364). What is more, when an 

appeal is dismissed, the court need not write an opinion because 

“[n]othing is served by requiring a written opinion when the court 

does not actually decide any contested issues.” (Ben C., supra, 40 

Cal.4th at p. 544.)

However, if the defendant files a supplemental brief, the 

Court of Appeal is required to evaluate any arguments presented 

in that brief and to issue a written opinion that disposes of the 

trial court’s order on the merits (that is, by affirming, reversing 

or other like disposition). (Kelly, supra, 40 Cal.4th at pp. 120, 

124.)

III. Application In This Case

Defendant did not file a supplemental brief. In accordance 

with the procedures articulated above, we dismiss this appeal as 

abandoned.
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DISPOSITION

The appeal is dismissed.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ