People v. Delgadillo

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DE JESUS DELGADILLO,

Defendant and Appellant.

S266305

Second Appellate District, Division Four

B304441

Los Angeles County Superior Court

BA436900

December 19, 2022

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Kruger, Jenkins, and Guerrero concurred.

PEOPLE v. DELGADILLO

S266305

Opinion of the Court by Groban, J.

In People v. Wende (1979) 25 Cal.3d 436 (Wende), we held

the Courts of Appeal must conduct a review of the entire record

whenever appointed counsel submits a brief on direct appeal

which raises no specific issues or describes the appeal as

frivolous. (Id. at p. 441.) This procedure is applicable to the first

appeal as of right and is compelled by the constitutional right to

counsel under the Fourteenth Amendment of the United States

Constitution. (Wende, at pp. 439, 441; see Pennsylvania v.

Finley (1987) 481 U.S. 551, 554–557 (Finley); In re Sade C.

(1996) 13 Cal.4th 952, 983–984 (Sade C.).) In this case, we

granted review to determine the procedures appointed counsel

and the Courts of Appeal must follow when counsel determines

that an appeal from an order denying postconviction relief under

recently enacted remedial legislation lacks arguable merit and

to decide whether defendants are entitled to notice of these

procedures.

The Court of Appeal found that it has no duty to

independently review an order denying a petition for

postconviction relief under Penal Code former section 1170.95,

which defendant Jose De Jesus Delgadillo filed here, when

appointed counsel submits notice that the appeal lacks arguable

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Opinion of the Court by Groban, J.

merit.1 The Court of Appeal concluded that since Delgadillo’s

appeal does not implicate a constitutional right to counsel, the

procedures set out in Wende do not apply. (Finley, supra,

481 U.S. at pp. 556–557; Sade C., supra, 13 Cal.4th at p. 978.)

We agree with the Court of Appeal as to this issue.

We further exercise our inherent supervisory powers to

establish the appellate procedures and the requirements for

providing notice to a defendant before a Court of Appeal

dismisses an appeal from the denial of a petition under section

1172.6. When counsel submits notice that such an appeal lacks

arguable merit, the Court of Appeal should provide notice to the

defendant that counsel was unable to find any arguable issues;

the defendant may file a supplemental brief or letter raising any

argument the defendant wishes the court to consider; and if no

such supplemental brief or letter is timely filed, the court may

dismiss the appeal as abandoned. In this case, although the

Court of Appeal did provide notice to Delgadillo, the notice was

suboptimal because it indicated that the Wende procedures

would apply when they did not, and it did not inform Delgadillo

that the appeal would be dismissed as abandoned if no

supplemental brief or letter was filed. However, based on our

own independent review of the record, which we undertake

voluntarily in the interest of judicial economy, we determine

that Delgadillo is not entitled to relief under section 1172.6.

1

Assembly Bill No. 200 (Reg. Sess. 2021–2022; Assembly

Bill 200) has since renumbered section 1170.95 as section

1172.6. (See Stats. 2022, ch. 58, § 10.) For clarity, we refer

simply to section 1172.6 throughout the discussion section. All

undesignated statutory references are to the Penal Code.

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Opinion of the Court by Groban, J.

I. BACKGROUND

On the afternoon of May 27, 2015, Delgadillo’s Ford

Explorer crossed into incoming traffic and collided head on into

a Mazda sedan occupied by a driver and passenger in the front

two seats.2 The passenger died from injuries sustained in the

accident. The driver of the Ford Explorer, later identified as

Delgadillo, fled the scene on foot, and a police dog located him

hiding in a building nearby. Approximately two and a half hours

after the accident, two breath tests showed Delgadillo’s blood-

alcohol level to be .13 and .14 percent. Two hours later,

Delgadillo provided a blood sample that showed a blood-alcohol

level of .13 percent.

A jury convicted Delgadillo of second degree murder under

an actual implied malice theory (§ 187, subd. (a)) and gross

vehicular manslaughter while intoxicated (§ 191.5, subd. (a)).

The jury also found true allegations that Delgadillo fled the

scene (Veh. Code, § 20001, subd. (c)) and had two prior

convictions for driving while under the influence of alcohol (Veh.

Code, § 23152). The court sentenced Delgadillo to a term of 15

years to life. The judgment was affirmed on appeal.

After the appeal was final, Senate Bill No. 1437 (2017–

2018 Reg. Sess.) (Senate Bill 1437; Stats. 2018, ch. 1015) went

into effect and barred a conviction for murder under the natural

and probable consequences theory as well as limited the scope

of the felony-murder rule. (§ 188, subd. (a)(3), as amended by

Stats. 2018, ch. 1015, § 2; § 189; see People v. Gentile (2020)

10 Cal.5th 830, 838.) This change in the law was “to ensure that

2

The brief summary of facts is drawn from the Court of

Appeal’s prior opinion in Delgadillo’s direct appeal.

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Opinion of the Court by Groban, J.

murder liability is not imposed on a person who is not the actual

killer, did not act with the intent to kill, or was not a major

participant in the underlying felony who acted with reckless

indifference to human life.” (Sen. Bill 1437, § 1, subd. (f).)

Senate Bill 1437 further created a procedure under former

section 1170.95 for persons convicted of felony murder or

murder under a natural and probable consequences theory to

petition for retroactive relief.3

Delgadillo filed a petition for resentencing pursuant to

this new law. After the cause was submitted upon written

briefing, the superior court denied the petition at a hearing. The

superior court found no “grounds whatsoever for re-sentencing”

because “defendant was the actual and only participant” in the

crime. An order to show cause did not issue.

Delgadillo filed an appeal. Appointed counsel found no

arguable issues in the appeal and filed a brief in accordance with

the procedures outlined in Wende. The brief set out the

procedural history and relevant facts of the case and requested

that the Court of Appeal conduct an independent review of the

3

The Legislature has since amended former section 1170.95

with the passage of Senate Bill No. 775 (2021–2022 Reg. Sess.)

(Senate Bill 775; Stats. 2021, ch. 551). Senate Bill 775 codified

and clarified People v. Lewis (2021) 11 Cal.5th 952, 961–972

(Lewis), reaffirmed that beyond a reasonable doubt is the proper

burden of proof for a former section 1170.95 resentencing

hearing, and expanded former section 1170.95’s provisions to

apply also to persons convicted of attempted murder or

manslaughter. (Sen. Bill 775, § 1, subds. (a)–(d).) As mentioned

above, with the passage of Assembly Bill 200, the Legislature

then renumbered former section 1170.95 to section 1172.6

without any further substantive change. (See People v. Strong

(2022) 13 Cal.5th 698, 708, fn. 2.)

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Opinion of the Court by Groban, J.

record in accordance with Wende. In an accompanying

declaration, counsel stated she had advised Delgadillo by letter

“that a brief on his behalf would be filed according to the

procedures outlined” in Wende and that he would receive a copy

of the brief. Counsel further stated she had also advised

Delgadillo that “he may personally file a supplemental brief”

raising “any points which he chooses to call to the court’s

attention” and that she had provided him with the record.

The Court of Appeal directed counsel to send the record

and a copy of appointed counsel’s brief to Delgadillo. The Court

of Appeal sent notice to Delgadillo and counsel that “[c]ounsel

appointed to represent appellant on appeal has filed appellant’s

opening brief. Counsel’s inability to find any arguable issues

may be readily inferred from the failure to raise any. (People v.

Wende[, supra,] 25 Cal.3d [at p.] 442.) [¶] Appointed counsel is

directed to send the record on this appeal and a copy of

appellant’s opening brief to appellant immediately. Within 30

days of the date of this notice, appellant may submit by brief or

letter any grounds of appeal contentions, or argument which

appellant wishes this court to consider.” Delgadillo did not

submit a brief or letter within the requisite time.

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

review granted October 14, 2020, S264278 (Cole), the Court of

Appeal found, “[T]he procedures set forth in Wende are not

constitutionally compelled if a criminal defendant’s appeal is not

his or her initial appeal of right.” (People v. Delgadillo (Nov. 18,

2020, B304441) [nonpub. opn.].) Since Delgadillo did not file a

brief or letter, the Court of Appeal presumed the order appealed

from was correct and dismissed Delgadillo’s appeal as

abandoned without conducting an independent review. The

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Court of Appeal denied Delgadillo’s petition for rehearing. We

then granted review.

II. DISCUSSION

A. Wende Procedures

The Attorney General argues that Wende and related

cases are designed to protect only the indigent criminal

defendant’s constitutional right to counsel on direct appeal from

a criminal conviction. We agree that since Delgadillo’s appeal

from the denial of his petition does not implicate a constitutional

right to counsel, the procedures set out in Wende do not apply.

The prophylactic procedures in Wende are “relevant when,

and only when, a litigant has a previously established

constitutional right to counsel.” (Finley, supra, 481 U.S. at

p. 555.) Criminal defendants have a right to the effective

assistance of counsel on the first appeal granted as a matter of

right from a criminal conviction. (Evitts v. Lucey (1985) 469 U.S.

387, 394 [“right to counsel is limited to the first appeal as of

right”]; Douglas v. California (1963) 372 U.S. 353, 356.) In

Anders v. California (1967) 386 U.S. 738 (Anders), the United

States Supreme Court considered “the extent of the duty of a

court-appointed appellate counsel to prosecute a first appeal

from a criminal conviction, after that attorney has

conscientiously determined that there is no merit to the

indigent’s appeal.” (Id. at p. 739.) In the state appellate court,

court-appointed counsel concluded, after reviewing the record

and consulting petitioner, that an appeal of the conviction had

no merit. (Ibid.) Counsel advised the court by letter that the

appeal had no merit and that petitioner wished to file a pro se

brief. (Id. at pp. 739–740.) After the pro se brief was filed, the

court affirmed the conviction. (Id. at p. 740.) The United States

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Opinion of the Court by Groban, J.

Supreme Court ultimately reversed, concluding that the

procedure was inadequate under the Fourteenth Amendment.

(Anders, at p. 741.)

The high court reasoned, “The constitutional requirement

of substantial equality and fair process can only be attained

where counsel acts in the role of an active advocate [o]n behalf

of his client, as opposed to that of amicus curiae. The no-merit

letter and the procedure it triggers do not reach that dignity. . . .

Of course, if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court

and request permission to withdraw. That request must,

however, be accompanied by a brief referring to anything in the

record that might arguably support the appeal. A copy of

counsel’s brief should be furnished the indigent and time

allowed him to raise any points that he chooses; the court — not

counsel — then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous.”

(Anders, supra, 386 U.S. at p. 744, fn. omitted.)

Subsequently, in Wende, supra, 25 Cal.3d 436, we

“approved a modified procedure to ensure an indigent criminal

defendant’s right to effective assistance of counsel.” (People v.

Kelly (2006) 40 Cal.4th 106, 118.) In Wende, counsel filed a brief

that summarized the proceedings and facts, raised no specific

issues, and requested that the court review the entire record to

determine whether there were any arguable issues. Counsel

submitted a declaration stating that he had advised defendant

of the nature of the brief, that he would send defendant a copy

of the brief, and that he had informed defendant that the court

would permit him to file a brief on his own behalf. Counsel also

stated that he would advise his client that he could move to have

counsel relieved. The defendant did not file a brief. (Wende, at

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p. 438.) Ultimately, after undertaking “a review of the entire

record in this case,” a “thorough review of the merits,” and

hearing oral argument, we affirmed the judgment. (Id. at

p. 443.) In the process, we interpreted Anders to require that

“[t]he court itself must expressly determine whether the appeal

is wholly frivolous. Since the court’s concern [in Anders] was

with not merely accepting counsel’s assessment of the case, it

follows that the determination and concomitant review of the

entire record must be made regardless of whether the defendant

has availed himself of the opportunity to submit a brief.” (Id. at

p. 441.)

The United States Supreme Court approved our Wende

procedure in Smith v. Robbins (2000) 528 U.S. 259, 276. The

high court reasoned that the equal protection clause of the

Fourteenth Amendment and the due process clause of that

amendment “largely converge to require that a State’s

procedure ‘affor[d] adequate and effective appellate review to

indigent defendants,’ [citation]. A State’s procedure provides

such review so long as it reasonably ensures that an indigent’s

appeal will be resolved in a way that is related to the merit of

that appeal.” (Robbins, at pp. 276–277.) The high court

concluded that “the Wende procedure reasonably ensures that

an indigent’s appeal will be resolved in a way that is related to

the merit of that appeal.” (Id. at pp. 278–279.) Specifically,

Wende provides at least two tiers of review and “ensures that a

trained legal eye has searched the record for arguable issues and

assists the reviewing court in its own evaluation of the case.”

(Id. at p. 281.)

However, the procedures set out in Anders and Wende do

not apply to an appeal from the denial of postconviction relief,

even if the defendant has a state-created right to the

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appointment of counsel for that appeal. (Finley, supra, 481 U.S.

at pp. 556–557; Sade C., supra, 13 Cal.4th at p. 978; see also

Austin v. United States (1994) 513 U.S. 5, 8.) This is because

“there is no constitutional right to the effective assistance of

counsel” in state postconviction proceedings. (People v. Boyer

(2006) 38 Cal.4th 412, 489; see People v. Young (2005)

34 Cal.4th 1149, 1232–1233; People v. Kipp (2001) 26 Cal.4th

1100, 1139–1140; Coleman v. Thompson (1991) 501 U.S. 722,

755 (Coleman).) “Anders established a prophylactic framework

that is relevant when, and only when, a litigant has a previously

established constitutional right to counsel.” (Finley, at p. 555.)

“Postconviction relief is even further removed from the criminal

trial than is discretionary direct review. It is not part of the

criminal proceeding itself, and it is in fact considered to be civil

in nature. See Fay v. Noia, 372 U.S. 391, 423–424 (1963). It is

a collateral attack that normally occurs only after the defendant

has failed to secure relief through direct review of his conviction.

States have no obligation to provide this avenue of relief, cf.

United States v. MacCollom, 426 U.S. 317, 323 (1976) (plurality

opinion), and when they do, the fundamental fairness mandated

by the Due Process Clause does not require that the State supply

a lawyer as well.” (Finley, at pp. 556–557.) After the first

appeal as a right, “the Constitution does not put the State to the

difficult choice between affording no counsel whatsoever or

following the strict procedural guidelines annunciated in

Anders.” (Id. at p. 559.)

“Anders’s ‘prophylactic’ procedures are limited in their

applicability to appointed appellate counsel’s representation of

an indigent criminal defendant in his first appeal as of right.

(Pennsylvania v. Finley, supra, 481 U.S. at pp. 554–559 [95

L.Ed.2d at pp. 545–549]; see Anders v. California, supra,

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386 U.S. at pp. 739, 741–742, 744–745 [18 L.Ed.2d at pp. 495,

496–497, 498–499]; see also Austin v. U.S., supra, 513 U.S. at

p. [8] [130 L.Ed.2d at p. 223, 115 S.Ct. at p. 381].) They do not

extend to an appeal, even on direct review, that is discretionary.

(See Austin v. U.S., supra, 513 U.S. at p. [8] [130 L.Ed.2d at p.

223, 115 S.Ct. at p. 381].) A fortiori, they do not reach collateral

postconviction proceedings.” (Sade C., supra, 13 Cal.4th at

p. 978 [Anders and Wende do not apply to an indigent parent

appealing a child custody or parental status decision]; see also

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.)

[Anders and Wende do not apply to conservatorship proceedings

under the Lanterman-Petris-Short Act].) The reasoning that led

to the procedures in Anders and Wende thus does not apply to

Delgadillo’s postconviction proceeding here.

Furthermore, we have recently affirmed the proposition,

specifically in the context of section 1172.6, that “[t]here is no

unconditional state or federal constitutional right to counsel to

pursue collateral relief from a judgment of conviction.” (Lewis,

supra, 11 Cal.5th at p. 972, citing In re Barnett (2003) 31 Cal.4th

466, 475 [no federal or state “constitutional right to counsel for

seeking collateral relief from a judgment of conviction via state

habeas corpus proceedings”]; People v. Shipman (1965)

62 Cal.2d 226, 232 (Shipman) [observing the same in the context

of coram nobis relief]; Finley, supra, 481 U.S. at p. 557

[concluding “respondent has no underlying constitutional right

to appointed counsel in state postconviction proceedings”].) As

Delgadillo concedes, there is no federal constitutional right to

counsel under subdivision (c) of section 1172.6, and the right to

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Opinion of the Court by Groban, J.

counsel at that point in the proceedings is purely statutory.4

Given there is no constitutional right to counsel in a proceeding

under section 1172.6, subdivision (c), it would “defy logic” to

conclude there is a constitutional right to counsel “to appeal

[that] state collateral determination.” (Coleman, supra,

501 U.S. at pp. 756, 757.) Courts below have uniformly agreed

that Wende procedures are not constitutionally required on an

appeal from a denial of a postconviction petition under section

1172.6. (See People v. Griffin (2022) 85 Cal.App.5th 329, 333;

People v. Figueras (2021) 61 Cal.App.5th 108, 111, review

granted May 12, 2021, S267870 (Figueras); People v. Scott

(2020) 58 Cal.App.5th 1127, 1130–1131, review granted March

17, 2021, S266853 (Scott); People v. Gallo (2020) 57 Cal.App.5th

594, 598–599; People v. Allison (2020) 55 Cal.App.5th 449, 456

(Allison); Cole, supra, 52 Cal.App.5th at pp. 1028, 1039, review

granted; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273

(Flores).) Indeed, at oral argument, Delgadillo’s counsel

abandoned the position that federal constitutional principles

require Wende review in this case.

We have noted that a defendant can have a constitutional

due process right to the appointment of counsel in habeas corpus

or coram nobis proceedings after a defendant establishes a

prima facie case for postconviction relief. (Lewis, supra,

11 Cal.5th at p. 973 [“ ‘if a [habeas corpus] petition attacking the

validity of a judgment states a prima facie case leading to

issuance of an order to show cause, the appointment of counsel

is demanded by due process concerns’ ”], quoting In re Clark

(1993) 5 Cal.4th 750, 780; Shipman, supra, 62 Cal.2d at p. 232

4

Subdivision (c) of section 1172.6 describes the process for

determining whether a prima facie case for relief has been made.

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[when “an indigent petitioner has stated facts sufficient to

satisfy the court that a hearing is required, his claim can no

longer be treated as frivolous and he is entitled to have counsel

appointed to represent him”].) The questions raised in such

cases that attack the validity of the original conviction “are as

crucial as those that may be raised on direct appeal.” (Shipman,

at p. 231.) Our Shipman precedents have never extended the

right to counsel to an appeal from a ruling in an ameliorative

legislative scheme. In any event, an order to show cause did not

issue in this case, and Delgadillo did not establish a prima facie

case for section 1172.6 relief. (See Shipman, at p. 232 [“in the

absence of adequate factual allegations stating a prima facie

case, counsel need not be appointed either in the trial court or

on appeal from a summary denial of relief in that court”].)

Anders and Wende, accordingly, do not apply in this case.

Rather than rely upon constitutional right to counsel

principles that would compel Wende review, Delgadillo

alternatively contends that general due process principles

requiring fundamental fairness constitutionally mandate

Wende-type procedures for his appeal under the test set forth in

Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27.

“[D]ue process does not call for the same procedures in every

situation. Instead, ‘ “[d]ue process is flexible and calls for such

procedural protections as the particular situation

demands.” ’ ” (People v. Tilbury (1991) 54 Cal.3d 56, 68.) “[W]e

evaluate and balance these three elements in order to determine

whether the Fourteenth Amendment’s due process clause

requires Anders’s ‘prophylactic’ procedures for fundamental

fairness: (1) the private interests at stake; (2) the state’s

interests involved; and (3) the risk that the absence of the

procedures in question will lead to an erroneous resolution of

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the appeal.” (Sade C., supra, 13 Cal.4th at p. 987; see also

Lassiter, at p. 27; Mathews v. Eldridge (1976) 424 U.S. 319, 335.)

We note at the outset that the Lassiter test has more

typically been applied to determine whether Anders and Wende

should be extended to protect a right to counsel that has already

been identified, which is not the case here. (E.g., Sade C., supra,

13 Cal.4th at p. 986.) It is unclear whether Lassiter has any role

where, as here, the United States Supreme Court has already

determined that the right to effective assistance of counsel does

not extend to postconviction proceedings generally. (See Finley,

supra, 481 U.S. at p. 557.) Nonetheless, the parties do not

dispute that the Lassiter balancing test should be applied here

in determining whether Wende procedures should be applied to

section 1172.6 appeals. At oral argument, Delgadillo’s counsel

argued that Lassiter provided the appropriate framework

following the examples of Sade C., supra, 13 Cal.4th 952 and

Ben C., supra, 40 Cal.4th 529. He argued that these cases

suggest that even after we determined that Anders/Wende did

not apply directly to the circumstances before the court, we then

went on nonetheless to determine whether the Lassiter test

favored extending Anders/Wende prophylactic procedures to the

new context. (Sade C., at pp. 986–991; Ben C., at pp. 537–543].)

We need not decide whether the Lassiter test must be applied

here given Finley’s determination that the right to effective

assistance of counsel does not extend to postconviction

proceedings generally. We apply the Lassiter balancing test

here only because the parties assume its applicability, and we

do not now decide its applicability to the current circumstances.

In any event, general due process principles requiring

fundamental fairness do not alter the outcome. Applying the

first factor, “[i]n an appeal from a denial of a section [1172.6]

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petition, the private interests at stake are the liberty interests

of the person who may be in custody and seeking release.”

(Flores, supra, 54 Cal.App.5th at p. 274.) The potential for relief

under section 1172.6 from a prior murder, attempted murder, or

manslaughter conviction is a “significant” interest. (Ben C.,

supra, 40 Cal.4th at p. 540.) We agree with Delgadillo that this

factor weighs in his favor.

The state, however, also has an interest in an “economical

and expeditious resolution” of an appeal from a decision that is

“presumptively accurate and just.” (Sade C., supra, 13 Cal.4th

at p. 990.) Independent review in Wende appeals consumes

substantial judicial resources. (People v. Serrano (2012)

211 Cal.App.4th 496, 503 (Serrano).) Though not as onerous as

independent review on direct appeal, requiring appellate courts

to independently review the records of numerous postconviction

appeals after appointed counsel found no arguable issues would

still impose a significant burden on the court system.

Ultimately, “[t]he salient question here is whether the

absence of the Anders/Wende procedures significantly increases

the risk of erroneous resolutions.” (Ben C., supra, 40 Cal.4th at

p. 538.) Delgadillo and the Office of State Public Defender cite

a handful of cases, mostly unpublished, where the Court of

Appeal identified (or, they contend should have identified

meritorious issues) in a section 1172.6 appeal, even though a no-

issue brief was filed. However, this largely anecdotal recitation

of errors ignores the broader procedural protections already in

place. To proceed to an evidentiary hearing, there is only a

“limited” prima facie inquiry. (Lewis, supra, 11 Cal.5th at

p. 971.) The “ ‘prima facie bar was intentionally and correctly

set very low.’ ” (Id. at p. 972.) In all cases, the superior court

will review the petition before deciding the matter. While

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section 1172.6 does not require the appointment of counsel on

appeal, some courts have a routine practice of appointing

counsel to represent defendants appealing from the denial of

postconviction relief. (See, e.g., Cole, supra, 52 Cal.App.5th at

p. 1029, review granted.) As Delgadillo concedes in arguing for

a more limited review, appellate courts can often readily confirm

that a defendant is ineligible for relief as a matter of law without

conducting an independent review of the entire record. As

discussed below, the defendant is also permitted to file a

supplemental brief if counsel files a brief raising no arguable

issues. As also detailed below, if the appellate court wishes, it

may also exercise its discretion to conduct its own independent

review of the record in the interest of justice.

Indeed, the procedures implemented with respect to

Delgadillo’s petition demonstrate the elaborate protections

already in place. After the appointment of counsel, a review of

the record, briefing, and a hearing, the superior court concluded

Delgadillo was ineligible for relief as a matter of law because the

record showed he was the actual and only participant in the

crime. On appeal from that determination, Delgadillo again had

the assistance of appointed counsel, who again examined the

record and determined there were no grounds upon which to

challenge the superior court’s determination. The Legislature

has already given petitioners broad access to counsel in the

superior courts (Lewis, supra, 11 Cal.5th at p. 968) and

considered the competing policy considerations in enacting the

postconviction procedures in section 1172.6. (Lewis, at p. 969

[the “legislative background shows the Legislature did, in fact,

engage in the exact type of cost-benefit assessment and policy

determination it was entitled to make”].) Accordingly, once

appointed counsel here concluded there are no arguable issues,

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“the value of applying the procedures required by our decision

in Wende in criminal appeals is ‘too slight to compel their

invocation.’ ” (In re Phoenix H. (2009) 47 Cal.4th 835, 844,

quoting Sade C., supra, 13 Cal.4th at p. 991.)

Delgadillo argues that the state Constitution provides its

own due process guarantee and that we are free to interpret it

to afford more protection of a defendant’s rights than is required

under the federal Constitution. However, for similar reasons,

the Court of Appeal’s refusal to undertake an independent

review of the record does not violate the due process clause of

article I, section 7, subdivision (a), of the California Constitution

because, again, the balance of interests and risks does not

mandate such a procedure. The analysis under the state

constitutional provision would take into account not only the

three elements discussed above, “but also, under the first, ‘the

dignitary interest in informing individuals of the nature,

grounds and consequences of the [governmental] action [in

question] and in enabling them to present their side of the story

before a responsible governmental official . . . .’ ” (Sade C.,

supra, 13 Cal.4th at p. 991, fn. 18, quoting People v. Ramirez

(1979) 25 Cal.3d 260, 269 (plur. opn. of Mosk, J.).) However,

independent review does not further an individual’s dignitary

interest when counsel has already been given an opportunity to

present any arguments, found no issues warranting briefing,

and the defendant was notified that counsel found no issues but

that the defendant could file supplemental briefing presenting

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PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

any arguments. We therefore find that the procedures set out

in Wende do not apply to Delgadillo’s appeal.5

B. Procedures Required in Section 1172.6

Proceedings

The Attorney General and Delgadillo both suggest that we

prescribe guidance for counsel and courts to follow in

postconviction appeals where counsel finds no arguable issues.

The Attorney General also notes that the appropriate

procedures may vary depending on the particular context. We

agree that it is possible that some more unusual postconviction

context will call for additional or more specialized requirements.

We agree though that we should invoke our inherent

supervisory powers to prescribe a few basic procedures going

forward, while leaving it to the Courts of Appeal to tailor and

develop any additional procedures as they see fit. (See Robinson

v. Lewis (2020) 9 Cal.5th 883, 899 [“This court has ‘inherent

authority to establish “rules of judicial procedure” ’ ”].)

On an appeal from the denial of a section 1172.6 petition,

we therefore prescribe the following framework. When

appointed counsel finds no arguable issues to be pursued on

appeal: (1) counsel should file a brief informing the court of that

5

In this case, we are not deciding Wende’s application to

other postconviction contexts, which may present different

considerations. (E.g., Coleman, supra, 501 U.S. at p. 755 [not

answering whether “an exception to the rule of Finley” provides

for a right to effective counsel in state postconviction

proceedings “where state collateral review is the first place a

prisoner can present a challenge to his conviction”]; Martinez v.

Ryan (2012) 566 U.S. 1, 8 [not resolving the question Coleman

“left open” of “whether a prisoner has a right to effective counsel

in collateral proceedings which provide the first occasion to raise

a claim of ineffective assistance at trial”].)

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PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

determination, including a concise recitation of the facts bearing

on the denial of the petition; and (2) the court should send, with

a copy of counsel’s brief, notice to the defendant, informing the

defendant of the right to file a supplemental letter or brief and

that if no letter or brief is filed within 30 days, the court may

dismiss the matter. (Scott, supra, 58 Cal.App.5th at p. 1131,

review granted; Serrano, supra, 211 Cal.App.4th at p. 503; Cole,

supra, 52 Cal.App.5th at p. 1039, review granted; Figueras,

supra, 61 Cal.App.5th at p. 112, review granted.)

If the defendant subsequently files a supplemental brief or

letter, the Court of Appeal is required to evaluate the specific

arguments presented in that brief and to issue a written opinion.

The filing of a supplemental brief or letter does not compel an

independent review of the entire record to identify unraised

issues. (Cole, supra, 52 Cal.App.5th at p. 1028, review granted;

Figueras, supra, 61 Cal.App.5th at p. 113, review granted.) If

the defendant does not file a supplemental brief or letter, the

Court of Appeal may dismiss the appeal as abandoned.

(Serrano, supra, 211 Cal.App.4th at pp. 503–504.) If the appeal

is dismissed as abandoned, the Court of Appeal does not need to

write an opinion but should notify the defendant when it

dismisses the matter. (Ben C., supra, 40 Cal.4th at p. 544.)

While it is wholly within the court’s discretion, the Court of

Appeal is not barred from conducting its own independent

review of the record in any individual section 1172.6 appeal.

(Scott, supra, 58 Cal.App.5th at p. 1131, review granted;

Figueras, at p. 113, fn. 2, review granted.)

The procedures announced here, however, are not

intended to be exhaustive, and the Courts of Appeal are well

suited to identify any additional procedures for counsel and

courts to follow in postconviction appeals where counsel finds no

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PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

arguable issues. The Courts of Appeal are free to adopt

additional procedures as they see fit.

C. Notice of the Procedures the Court of Appeal

Employed

Delgadillo argues the Court of Appeal provided

inadequate notice of its procedures in violation of due process

within the meaning of the Fourteenth Amendment. He

contends that the court should have notified his counsel that

involuntary dismissal was being considered and requested

briefing on that issue. The Attorney General counters that

Delgadillo had adequate notice and every reason to anticipate

that his appeal could be dismissed.

We conclude that the notice provided in this case was

suboptimal. Delgadillo’s counsel did file a brief raising no

arguable issues. The Court of Appeal also sent Delgadillo notice

of his right to file a supplemental brief, and yet he declined to

do so. However, the notice the Court of Appeal sent Delgadillo

and counsel affirmatively cited Wende after Delgadillo’s counsel

had filed a brief pursuant to Wende. The court advised

Delgadillo by letter that “[c]ounsel appointed to represent

appellant on appeal has filed appellant’s opening brief.

Counsel’s inability to find any arguable issues may be readily

inferred from the failure to raise any. (People v. Wende[, supra,

] 25 Cal.3d [at p.] 442.)” This notice directly implicates the core

holding of Wende: “We conclude that Anders requires the court

to conduct a review of the entire record whenever appointed

counsel submits a brief which raises no specific issues or

describes the appeal as frivolous. This obligation is triggered by

the receipt of such a brief from counsel and does not depend on

the subsequent receipt of a brief from the defendant personally.”

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PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

(Wende, at pp. 441–442.) Delgadillo reasonably could have

concluded from this notice that the Wende procedures would

apply and that the Court of Appeal would conduct an

independent review of the record, even absent a supplemental

brief — even though the Court of Appeal later determined,

without providing an opportunity to be heard on the matter, that

Wende was inapplicable. The notice further did not inform

Delgadillo that the appeal would be dismissed as abandoned if

no supplemental brief or letter were filed. While arguing that

the notice was adequate, the Attorney General concedes that the

court should ordinarily “give the appellant clear notice that the

court will dismiss the appeal as abandoned if no supplemental

brief is received.” We therefore conclude that the notice in this

case was suboptimal.

Nevertheless, we determine, based on our independent

review of the record, that Delgadillo is not entitled to any relief

under section 1172.6. Indeed, the record here makes clear that

Delgadillo was the actual killer and the only participant in the

killing. Specifically, eyewitnesses identified him as the driver

of a Ford Explorer that crossed into incoming traffic and crashed

into another vehicle, killing the passenger. At trial, defense

counsel conceded that the accident occurred while Delgadillo

was driving on the wrong side of the road. (See § 1172.6, subd.

(a) [“A person convicted of felony murder or murder under the

natural and probable consequences doctrine or other theory

under which malice is imputed to a person based solely on that

person’s participation in a crime, attempted murder under the

natural and probable consequences doctrine, or manslaughter

may file a petition with the court” to have the conviction

vacated].) We affirm the Court of Appeal’s holding that Wende

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PEOPLE v. DELGADILLO

Opinion of the Court by Groban, J.

procedures are not constitutionally compelled on Delgadillo’s

appeal.6

III. DISPOSITION

For the reasons discussed above, the judgment of the

Court of Appeal is affirmed.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

GUERRERO, J.

6

We are choosing to conduct independent review in the

interest of judicial economy, but we emphasize that the decision

to conduct independent review is solely up to the discretion of

the Courts of Appeal and is not required. In light of our own

independent review of the record, we do not reach the

constitutional question raised by Delgadillo of whether the

notice he received violated due process.

21

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Delgadillo

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published)

Review Granted (unpublished) XX NP opn. filed 11/18/20 – 2d Dist.

Div. 4

Rehearing Granted

__________________________________________________________

Opinion No. S266305

Date Filed: December 19, 2022

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Katherine Mader

__________________________________________________________

Counsel:

Nancy J. King and Eric R. Larson, under appointments by the

Supreme Court, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael J. Mongan, State Solicitor

General, Lance E. Winters, Chief Assistant Attorney General, Janill L.

Richards, Principal Deputy State Solicitor General, Julie L. Garland

and Charles Ragland, Assistant Attorneys General, Samuel P. Siegel,

Deputy State Solicitor General, Lynne G. McGinnis, Deputy Attorney

General, and Amari L. Hammonds, Associate Deputy State Solicitor

General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Eric R. Larson

Attorney at Law

330 J Street, #609

San Diego, CA 92101

(619) 238-5575

Samuel P. Siegel

Deputy State Solicitor General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3917