DISCUSSION

Defendant’s counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738 setting forth

statements of the case and facts, and a potential arguable issue: Whether the trial court

erred when it denied defendant’s motion to dismiss the probation violation allegation as

section 3000.08, subdivision (g), provides the maximum period of confinement for parole

violation is 180 days. Counsel also requested this court to undertake a review of the

entire record.

When, in an indigent defendant’s first appeal of right, appointed appellate counsel

files an opening brief that does not present an arguable issue, it is well settled that the

appellate court is required to offer the defendant an opportunity to submit a personal

supplemental brief and to review the entire record whether or not the defendant files a

brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)

We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review

granted October 14, 2020, S264278, held the constitutional bases for Wende procedures

apply only to a defendant’s direct appeal from the judgment. We also recognize,

however, that we have discretion to exercise our inherent supervisory powers to apply

Wende procedures to appeals from denials of postconviction relief in which appointed

appellate counsel files a no-issues brief. (Cole, at pp. 1038-1039 [Second App. Dist.,

Div. Two, did not review the record and exercised discretion to dismiss the appeal as

3 abandoned when defendant did not file a supplemental brief]; People v. Flores (2020) 54

Cal.App.5th 266, 269, 273-274 [Div. Three of this court exercised discretion to conduct

independent review of the record even though defendant did not file a supplemental

brief]; see generally Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fns. 7, 8

[court has inherent power to retain or dismiss an appeal from a conservatorship

proceeding upon receipt of a no-issues brief from appointed counsel].)

In this case, appointed appellate counsel filed a no-issues brief in an appeal from

orders denying an indigent defendant post-conviction relief. We offered defendant an

opportunity to file a personal supplemental brief, which he has not done. We exercised

our discretion to conduct an independent review of the record in keeping with People v.

Kelly (2006) 40 Cal.4th 106 and found no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

McKINSTER J.

4 [People v. Ulery, E075109]

Slough, J., Dissenting. 1 Once again, this majority, in cut-and-paste fashion, elect to perform a full Anders/Wende

review in a postconviction setting after receiving a brief from appellant’s attorney identifying no

arguable issues and after he declined to submit a supplemental brief. I again dissent, because we

should dismiss the appeal as abandoned.

Anders/Wende review is required only when a defendant has a constitutional right to

counsel, which extends only to the first appeal of right. (People v. Kelly (2006) 40 Cal.4th 106,

119; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537, 544.) The procedure is

grounded in the constitutional right to counsel, and courts have repeatedly declined to apply it in

other contexts. (Pennsylvania v. Finley (1987) 481 U.S. 551, 554-555; In re Sade C. (1996) 13

Cal.4th 952, 959; People v. Kisling (2015) 239 Cal.App.4th 288, 290; People v. Dobson (2008)

161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304, 307-308; Glen C. v.

Superior Court (2000) 78 Cal.App.4th 570, 579.)

Here we have a postconviction appeal, not a first appeal of right. Ulery was alleged to

have violated the terms of his parole. At the hearing, his attorney asked the trial court to dismiss

the petition because he had already served two days more than legally allowed for the violation.

The trial court denied the request, Ulery admitted the violation, and the court sentenced him to

time served. He now appeals, and statute, not the constitution, gives him a right to appointed

1 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.

1 appellate counsel. (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c).)

However, his counsel filed an opening brief identifying no issues warranting review. As is our

standard procedure, we offered Ulery the opportunity to file a supplemental brief identifying any

issues he thought we should review, but he didn’t submit a brief. Normally, we would dismiss

the appeal as abandoned because the Anders/Wende procedure doesn’t apply to collateral,

postconviction appeals. (People v. Serrano (2012) 211 Cal.App.4th 496, 501, 503.)

The majority provide no reason for abandoning this precedent and make no attempt to

justify expending the resources, including time, it takes to give the record the attention required

to perform a good faith independent review. They cite People v. Cole (2020) 52 Cal.App.5th

1023, but in that case the Court of Appeal followed the path I would follow here; they dismissed

the appeal as abandoned without independently reviewing the record. Indeed, the Cole court

pointed out the courts could save even more public resources by dismissing such appeals by

order, without writing full opinions. (Id. at p. 1040.) Cole provides no support for the majority’s

choice here. All it does is acknowledge the uncontroversial point that appellate courts have

discretion to address issues not raised by the parties.

In the other case the majority cite, our colleagues in District Four, Division Three

explained that they exercised their discretion to independently review an appeal of an order

denying Penal Code section 1170.95 relief. They reasoned the liberty interests of the petitioner

outweighed what they described as “the modest fiscal and administrative burdens to the courts.”

(People v. Flores (2020) 54 Cal.App.5th 266, 274.) I find that justification unsatisfying. If we

were to follow that logic, then we would have reached the point where every Wende brief filed in

2 a postconviction proceeding would require us to take these additional steps. But that’s not the

law, nor should it be.

As the Court of Appeal explained in Serrano, there is a very strong rationale for finding

an appeal abandoned and dismissing it without independently reviewing the record—the burden

on the courts (and therefore the public) of conducting such a review. That rationale is as

compelling in 2020 as it was in 2012. “In these times of decreasing judicial budgets and the

resulting overall reduction in public access to justice, [the state’s] interests cannot be

understated. . . . The judicial resources expended to conduct an independent review in each of

these cases are innumerable, and relative to the incidence of reversal in these cases, wholly

unproductive and a waste of scarce judicial resources. Where a defendant has been afforded all

the constitutional protections of a first appeal of right, including the right to Wende review where

appropriate, we find that he is not entitled to Anders/Wende procedures in subsequent appeals,

including collateral attacks on the judgment.” (People v. Serrano, supra, 211 Cal.App.4th at

p. 503.)

The better approach is to dismiss such appeals by order and without opinion and use our

scarce resources on other contested cases sitting on our shelves awaiting review. (People v. Cole,

supra, 52 Cal.App.5th at p. 1040.) However, absent a strong reason for expending judicial

resources to conduct an independent review, we should dismiss appeals like this as abandoned,

when neither counsel nor the appellant can identify an issue warranting reversal.

SLOUGH

J.

3