California Court of Appeal Aug 25, 1986 No. A031611Published
Before: Channell
Opinion
CHANNELL, J.
A jury found appellant Anthony Woodard guilty of robbery in an inhabited dwelling (Pen. Code, § 211), first degree burglary (Pen. Code, § 459), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and false imprisonment (Pen. Code, § 236). It also found that appellant used a knife during the commission of the robbery, burglary, and false imprisonment (Pen. Code, § 12022, subd. (b)). The superior court sentenced appellant to state prison for seven years.
Appellant’s court-appointed counsel filed a brief which specifically argued that appellant was improperly sentenced and also urged this court to review the record pursuant to
People
v.
Wende
(1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], to determine if there were other arguable issues. Subsequently, the trial court corrected the sentencing error on its own motion while the Attorney General also conceded that appellate counsel had in fact raised a meritorious issue regarding sentencing. In a reply brief appellate counsel contends that even if appellant was not entitled to a
Wende
review at the outset of the case, he is so entitled now, because: “[s]ince the judgment has been modified prior to any consideration of the issue by this Court, this Court is now faced with a pure
Wende
appeal.” We hold that appellant is not entitled to a
Wende
review.
[946]
In
People
v.
Wende,
the Supreme Court held that a Court of Appeal was required “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.” (25 Cal.3d at p. 441.) The Supreme Court further declared: “We recognize that under this rule counsel may ultimately be able to secure a more complete review for his client when he cannot find any arguable issues than when he raises specific issues, for a review of the entire record is not necessarily required in the latter situation.” (25 Cal.3d at p. 442.) Neither equal protection nor other constitutional grounds mandate such a review.
review is made if counsel’s brief presents “a substantive issue” which if resolved favorably to the appellant would result in either “a reversal or a modification of the judgment.”
(People
v.
Johnson, supra,
123 Cal.App.3d 106, 109-110.) This includes a “legitimate issue” involving sentencing
it has never been expanded to cover cases where the
[947]
brief filed by counsel raised an issue, as defined above.
In re Adrian O.
(1984) 155 Cal.App.3d 631, 634-635 [202 Cal.Rptr. 287], is not an exception to such rules because therein the argument made by counsel and accepted by the court—that a $200 filing fee paid by appellant mother in a dependency proceeding should be returned because she was indigent— did not result in a reversal or modification of the judgment. In
but it seems to be only performing the normal appellate function of reviewing the record to determine whether the appellant’s contentions have merit.
Accordingly, the appellant in the instant case will not be given a
Wende
review. We conclude that once appellate counsel filed a brief raising a sentencing issue the case was removed from the ambit of
Wende.
The fact that the trial court and the Attorney General conceded the validity of counsel’s argument does not serve to transform the case into a no-issue
Wende
case. If we had found that the issue argued by appointed counsel had merit, we would not then be required to review the record for other arguable issues. Therefore, a similar finding by the trial court, or a concession by the Attorney General, should not have such effect. By the same token since a frivolous argument which is of no avail to the appellant does not trigger the protection of
Wende,
a meritorious one which benefits him should not have that effect. Review by a Court of Appeal must end at some point.
The judgment is affirmed.
Anderson, P. J., and Poché, J., concurring.
A petition for a rehearing was denied September 18, 1986, and appellant’s petition for review by the Supreme Court was denied November 20, 1986. Bird, C. J., and Reynoso, J., were of the opinion that the petition should be granted.
1
In footnote 6,
People
v.
Logan, supra,
seems to urge the Supreme Court to further clarify when
Wende
review is required. However, that court has chosen not to do so. When it decided
People
v.
Garcia
(1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826], it did not discuss
Wende,
even though one issue decided by the Court of Appeal in its opinion in
People
v.
Garcia
(hg. granted Sept. 30,1982) was that a partial
Wende
review should not be permitted.
2
The courts have refused to expand
Wende
to civil cases involving summary judgments
(Grillo
v.
Smith
(1983) 144 Cal.App.3d 868, 873, fn. 3 [193 Cal.Rptr. 414]) or civil cases generally
Holding. The court held that an appellant is not entitled to a Wende review of the entire record if appellate counsel has raised a substantive or meritorious issue in their brief, even if that issue is resolved or conceded prior to the appellate court's consideration.
Issues
Whether an appellant is entitled to a Wende review when appellate counsel raises a specific sentencing issue that is subsequently conceded or corrected.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We hold that appellant is not entitled to a Wende review.”
“We conclude that once appellate counsel filed a brief raising a sentencing issue the case was removed from the ambit of Wende.”
“The fact that the trial court and the Attorney General conceded the validity of counsel’s argument does not serve to transform the case into a no-issue Wende case.”