California Court of Appeal Dec 8, 2023 No. JAD23-09Published
Filed 11/8/23
CERTIFIED FOR PUBLICATION
IN THE APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF FRESNO
THE PEOPLE, ) Sup. Ct. Appeal No. 0003066 ) Plaintiff/Respondent, ) Sup. Ct. Case No. M21910977 ) v. ) OPINION ) RIGOBERTO IGNACIO VERA, ) ) Defendant/Appellant. ) ) )
APPEAL from a pretrial order of the Superior Court of Fresno
County, Hon. Elizabeth Egan, J., denying a motion to suppress evidence obtained during a warrantless search and seizure.
Affirmed.1
Attorneys and Law Firms
Robert L.S. Angres, attorney for defendant/appellant
Rigoberto Ignacio Vera. 1 This opinion was originally issued by the court on November 8, 2023. It was certified for publication on November 14, 2023, which is within the time that the appellate division retained jurisdiction. This opinion has been certified for publication in the Official Reports. It is being sent to the Fifth District Court of Appeal to assist the Court of Appeal in deciding whether to order the case transferred to the court on the court’s own motion under Rules 8-1000 – 8.1018.
Neda Shahrestani, attorney for plaintiff/respondent Fresno
County District Attorney’s Office.
Opinion
Hon. F. Brian Alvarez, Presiding Judge of the Appellate
Division of the Fresno Superior Court.
I.
INTRODUCTION
By way of pretrial appeal, defendant Rigoberto Vera (Vera)
challenges the denial of his motion to suppress evidence in his
Citing to Anders v. California (1967) 386 U.S. 738 (Anders) and
People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed appellate
counsel asked us to independently review the record for any arguable
issue that could be raised. Vera, represented by the Fresno County
Public Defender in the trial court, has yet to be arraigned on the
criminal complaint.
We requested supplemental briefing as to: (1) whether this
pretrial appeal was timely sought under section 1510; and (2)
whether the procedures under Anders and Wende apply on pretrial
appeal from the denial of a motion to suppress in a misdemeanor
case. We conclude that this appeal was not timely sought and the
procedures under Anders and Wende are not required. Because
respondent urges us to review the matter, we elect to do so. However,
we employ the procedure set forth in People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo).
2 Unspecified statutory references are to the Penal Code. -2-
II.
BACKGROUND
The circumstances surrounding Vera’s arrest for driving under
the influence (DUI) are not detailed here because they are not
salient to the issues raised on appeal. Suffice to say that Vera
was arrested for DUI on June 6, 2021, after colliding into a city
streetlamp, injuring himself. A warrantless blood draw confirmed
he drove a motor vehicle under the influence of alcohol.
On August 12, 2021, respondent filed a misdemeanor complaint
charging Vera with DUI (Veh. Code, § 23152, subds. (b) & (b)), and
driving without a valid license (Veh. Code, § 12500, subd. (a)).
On September 26, 2022, Vera initially appeared for his
arraignment hearing. With counsel, Vera waived statutory time for
arraignment and moved to continue his arraignment hearing to a later
date. The trial court granted his motion and scheduled the hearing
for October 17, 2022.
On October 17, 2022, Vera appeared for the scheduled hearing.
With counsel, Vera again waived statutory time for arraignment and
moved for another continuance. The trial court granted his motion
and set the case for a hearing on December 12, 2022.
On December 12, 2022, Vera appeared for his scheduled
arraignment. With counsel, Vera again waived statutory time for
arraignment and moved for another continuance. The trial court
granted his motion and set the matter for a hearing on January 19,
2023.
On January 19, 2023, Vera appeared again for his scheduled
arraignment. With counsel, Vera again waived statutory time for
arraignment and sought a further continuance. The trial court
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granted his motion and set the matter for a hearing on February 2,
2023.
On February 1, 2023, Vera filed a motion to suppress evidence
under section 1538.5. He argued that his blood draw violated his
rights under the Fourth Amendment to the United States Constitution.
On February 2, 2023, Vera again appeared at his scheduled
arraignment, and again waived statutory time for his arraignment.
The trial court set the matter for a suppression hearing to be heard
on March 16, 2023.
On March 9, 2023, respondent filed an opposition to Vera’s
motion to suppress.
On March 16, 2023, the trial court heard and denied Vera’s
motion to suppress. At the same hearing, Vera again waived
statutory time for arraignment and sought another continuance of
his arraignment hearing. The trial court granted his request.
On March 23, 2023, the Fresno County Public Defender filed
Vera’s pretrial notice of appeal challenging the denial of his
motion to suppress, and requesting we appoint appellate counsel.
(§ 1538.5, subd. (j).) Thereafter, we appointed appellate counsel.
On July 25, 2023, appellate counsel filed an opening brief
pursuant to Anders and Wende, noting three potential issues that
counsel did not believe had a reasonable chance of success.
On September 6, 2023, we asked the parties to provide
supplemental briefing addressing: (1) whether Vera timely filed this
pretrial appeal from the denial of his suppression motion where it
appeared that he had not yet been formally arraigned on the criminal
complaint, and (2) whether the procedures of Anders and Wende apply
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to pretrial appeals from the denial of motions to suppress evidence
in misdemeanor cases. (See Gov. Code, § 68081.)
Both parties have now filed supplemental briefs addressing
these issues.
III.
DISCUSSION
A. This Pretrial Appeal is Untimely Under Section 1510
Vera has never been arraigned on the criminal complaint. We
have repeatedly seen this procedural anomaly in pretrial appeals in
other cases, where the Fresno County Public Defender is the attorney
of record in the trial court. Initially, we questioned whether
pretrial appellate review was timely sought in light of section
1510. We now conclude that this appeal is untimely under that
statute.
Vera argues that the plain language of section 1510 provides
that the time requirements of the statute are not triggered until
a defendant has actually been arraigned. Because he has not been
arraigned, Vera maintains pretrial review is timely. Respondent
argues that Vera should have been arraigned before the hearing on
the motion to suppress. Respondent adds that section 1510 renders
this appeal untimely because pretrial review had not been sought
within 45 days following Vera’s arraignment. Nevertheless,
respondent urges us to independently review the record.
Section 1510 provides, in salient part, that “[t]he denial of
a motion made pursuant to ... section 1538.5 may be reviewed prior
to trial only if the motion was made by the defendant in the trial
court not later than 45 days following defendant’s arraignment on
the complaint if a misdemeanor...unless within these time limits
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the defendant was unaware of the issue or had no opportunity to
raise the issue.” Our inquiry requires us to interpret statutory
language, which we do de novo. (Bruns v. E-Commerce Exchange, Inc.
(2011) 51 Cal.4th 717, 724.)
In this endeavor, “[o]ur task is to discern the Legislature’s
intent. The statutory language itself is the most reliable
indicator, so we start with the statute’s words, assigning them
their usual meanings, and construing them in context. If the words
themselves are not ambiguous, we presume the Legislature meant what
it said, and the statute’s plain language governs.” (Wells v.
One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) “If the
language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd consequences
the Legislature did not intend.” (People v. Sanchez (2021)66
Cal.App.5th 14, 18 (Sanchez.)
Section 988 requires that “[t]he arraignment must be made by
the court, or by the clerk or prosecuting attorney under its
direction, and consists in reading the accusatory pleading to the
defendant and delivering to the defendant a true copy thereof, and
of the endorsements thereon, if any, including the list of
witnesses, and asking the defendant whether the defendant pleads
guilty or not guilty to the accusatory pleading; provided, that
where the accusatory pleading is a complaint charging a misdemeanor,
a copy of the same need not be delivered to any defendant unless
requested by the defendant.”3 (§ 988.) At the arraignment hearing,
3 We note there is a long-standing split of authority about whether a completed arraignment includes entering a defendant’s plea. (Compare Simpson v. Municipal Court (1975) 45 Cal.App.3d 112, 114 [includes entering a plea]; People v. Terry (1970) 14 Cal.App.3d Supp. 1, 4 [same]; with Chartruck v. Municipal Court (1975) 50 Cal.App.3d 931, 936-937 [entry of plea not required] People v. Cruz (1980) -6-
a defendant must be allowed a “reasonable time to answer,” which is
“not more than seven days in a misdemeanor or infraction case.” (§
990.) “If the defendant refuses to answer the accusatory pleading
by demurrer or plea, a plea of not guilty must be entered.” (§
1024.)
Section 1510 allows pretrial review “only if the motion was
made by the defendant in the trial court not later than 45 days
following defendant’s arraignment on the complaint if a misdemeanor
. . ..” (Italics added.) By its plain language, we believe the
statute requires there be an arraignment, then a motion to suppress
made not later than 45 days following that arraignment. The
Legislature’s choice of words is clear on this point – any
suppression motion must follow an arraignment and must do so within
45 days. Without a misdemeanor arraignment, there can be no timely
pretrial appeal under the statute. Thus, giving the statutory
language a “plain” and “commonsense” meaning (Sanchez, supra, 66
Cal.App.5th at p. 18), we conclude that pretrial appellate review
here is untimely under section 1510. If pretrial review could be
timely sought under section 1510 by repeatedly waiving the statutory
time for arraignment (without actually waiving formal arraignment),
the statutory deadline would effectively be evaded by a simple
strategy of indefinitely postponing the formal arraignment hearing
without actually waiving the right to a formal arraignment, as
occurred here.
“The spirit and purpose” of section 1510 “is to require a
defendant to raise the issue of suppression and have it determined
109 Cal.App.3d Supp. 18, 21 [same].) We need not weigh into this split because Vera has never been arraigned under either definition. -7-
prior to trial, without any needless postponement of the trial
date.” (People v. Wallin (1981) 124 Cal.App.3d 479, 484.) As such,
the limitation of pretrial appellate review to those defendants who
have brought their motions to suppress within 45 days following the
arraignment tracks the outer limit with which misdemeanor defendants
must be brought to trial. (See § 1382, subd. (a)(3).) Interpreting
section 1510 to allow pretrial appellate review indefinitely when
a defendant continually waives the statutory time for arraignment
throughout the criminal proceeding would circumvent the purpose of
the statute. Because Vera has neither been formally arraigned nor
waived formal arraignment, and there is no applicable exception,
pretrial appellate review of the denial of his motion is untimely
under the plain language of section 1510.
Appellate counsel nevertheless contends that pretrial review
is timely in the absence of Vera’s arraignment because the motion
to suppress was filed “not later than 45 days following defendant’s
arraignment.” (§ 1510.) In other words, since Vera has never been
arraigned, appellate counsel maintains that the motion was brought
not later than 45 days following the defendant’s arraignment.
However, this interpretation renders the word “following”
surplusage in the statute. We must interpret statutes giving effect
to all words used and avoid an interpretation that renders words
nugatory. (People v. Shabazz (2006) 38 Cal.4th 55, 67.) Again, we
believe the Legislature’s use of the word “following” requires an
arraignment to precede any motion to suppress.
Notwithstanding the applicability of section 1510, respondent
urges us to independently review the record. Appellate courts do
generally retain the authority to exercise discretion to address
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issues that are properly barred from appellate review under
traditional rules of procedure. (Cf. People v. Williams (1998) 17
Cal.4th 148, 161, fn. 6; People v. Cota (2020) 45 Cal.App.5th 786,
794.) “Appellate courts have fundamental inherent equity,
supervisory, and administrative powers, as well as inherent power
to control litigation before them.” (People v. Flores (2020) 54
Cal.App.5th 266, 273 (Flores).)
As respondent notes in supplemental briefing, it is only when
the prosecution raises noncompliance with section 1510 that a
defendant bears the burden of showing an applicable exception to
the statute’s requirements. (See Rodriguez v. Superior Court (1988)
199 Cal.App.3d 1453, 1460.) Because respondent did not raise non-
compliance with section 1510 prior to our request for supplemental
briefing, and because both parties ask us to independently review
the record, we exercise our discretion to excuse Vera’s non-
compliance with section 1510.
B. Anders/Wende Review Is Not Required On Pretrial Appeal
We must next address whether Anders and Wende review is
mandated, discretionary, or unavailable on pretrial appeal from the
denial of a motion to suppress in a misdemeanor proceeding.
Appellate counsel contends that the Anders/Wende procedures should
apply to a pretrial appeal from the denial of a motion to suppress
in a misdemeanor case because it is a “first appeal as a matter of
right” and that, even if Anders/Wende review is not mandated, we
should exercise our discretion to independently review the record.
We take a different approach.
As a general matter, where appointed appellate counsel is
unable to find viable issues to raise on appeal, Fourteenth
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Amendment principles of due process and equal protection require
reviewing courts to independently examine the record for any
arguable issue on appeal from a defendant’s “first appeal as a
matter of right.” (Anders, supra, 386 U.S. at pp. 743-745; Wende,
supra, 25 Cal.3d at pp. 441-442.) Reviewing courts must include “a
brief description of the facts and procedural history of the case,
the crimes of which the defendant was convicted, and the punishment
imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) “[A]ny
other information from the record that they anticipate will be
relevant in further challenges to the judgment” should also be
included in opinions resolving appeals filed in such cases. (Ibid.)
Anders and Wende review applies to misdemeanor appeals from a final
judgment. (In re Olsen (1986) 176 Cal.App.3d 386, 389–392.)
But this “prophylactic” procedure is required only when there
is a previously established right to counsel. (Delgadillo, supra,
14 Cal.5th at p. 224.) Wende review is thus limited to a criminal
defendant’s “first appeal as a matter of right,” meaning, an appeal
from a final judgment in a criminal case. (People v. Griffin (2022)
85 Cal.App.5th 329, 333.) Wende procedures do not extend to all
appeals in criminal matters. (See e.g., People v. Serrano (2012)
211 Cal.App.4th 496, 501 (Serrano).) Consistent with these
principles, the California Supreme Court recently explained in
Delgadillo that a state-created statutory right to the appointment
of counsel in postconviction proceedings does not invoke
Anders/Wende procedures because there is “no constitutional right
to the effective assistance of counsel in state post-conviction
proceedings.” (Delgadillo, supra, 14 Cal.5th at p. 224.)
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Anders/Wende review has been found inapplicable in contexts
including conservatorship proceedings under the Lanterman-Petris
Short Act (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 537);
civil commitment proceedings under the Mentally Disordered Offender
Act (People v. Taylor (2008) 160 Cal.4th 304, 309); proceedings for
restoration of sanity under section 1026.2 (People v. Dobson (2008)
161 Cal.4th 1422, 1425), and to indigent parent's appeals from
rulings adversely affecting child custody status (In re Sade C.
(1996) 13 Cal.4th 952). Because Anders/Wende review serves to
protect an indigent appellant’s rights, it is also unavailable to
those represented by privately retained counsel. (People v.
Placencia (1992) 9 Cal.App.4th 422, 424.)
Review under Anders/Wende does not generally extend to pending
trial court proceedings. In People v. Thurman (2007) 157
Cal.App.4th 36 (Thurman), the defendant argued that his attorney
provided constitutionally deficient representation by failing to
file a brief under Anders and Wende after finding no valid grounds
to bring a motion for a new trial in an ongoing criminal proceeding.
(Id. at pp. 44-45.) Rejecting that argument, Thurman explained
that “[t]he purpose of the Anders/Wende procedure is to ensure that
attorneys who are appointed to represent indigent defendants...
conscientiously scrutinize the record and actively assert those
issues which may, in the attorney’s professional judgment, result
in a reversal of the judgment or in a reduction of the defendant’s
sentence.” (Ibid.)
Thurman explained that “[n]o court, as far as we are aware,
has extended these procedures to trial court proceedings, and we
see no reason to do so.” (Thurman, supra, 157 Cal.App.4th at p.
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45.) This is because “[d]ue process does not require extending
those procedures beyond the first appeal of right in a criminal
prosecution unless, among other considerations, their absence would
significantly increase the risk of erroneous appellate resolution.
(Ibid.) “Procedures that are practically ‘unproductive’ ... need
not be put into place, no matter how many and how weighty the
interests that theoretically support their use.” (Id. at p. 46.)
“Any of the grounds for a new trial, whether or not they were
presented in a new trial motion, can also be raised on appeal, if
they appear on the face of the record and are sufficiently developed
to permit appellate review.” (Ibid.)
Recently, the California Supreme Court stressed in Delgadillo,
supra, 14 Cal.5th 216, that the procedures in Anders and Wende are
“relevant when, and only when, a litigant has a previously
established constitutional right to counsel.” (Id. at p. 224.) Our
Supreme Court addressed a defendant’s constitutional right to
counsel when the prosecution appeals from the grant of a motion to
suppress evidence in a misdemeanor case in Gardner v. Appellate
Division of Superior Court (2019) 6 Cal.5th 998. Gardner found
that a criminal defendant facing misdemeanor charges has the right
to appointed counsel to defend against the prosecution’s appeal
from the grant of a motion to suppress. (Id. at p. 1001.) While
finding it unnecessary to address whether the Sixth Amendment to
the United States Constitution afforded that right, Gardner found
that article I, section 15 of the California Constitution did
require a court-appointed attorney. (Ibid.) Gardner thus
establishes that there exists a state constitutional right to
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counsel in appellate proceedings following the grant of a motion to
suppress in a misdemeanor case.
But Gardner expressly declined to address whether a criminal
defendant like Vera has a corresponding state constitutional right
to counsel following the denial of a motion to suppress. (Gardner,
supra, 6 Cal.5th at pp. 1008–1009, fn. 8 [“[t]his case, of course,
concerns the right to appointed counsel for purposes of responding
to a pretrial prosecution appeal of a favorable suppression
ruling... [w]e express no opinion about a defendant’s right to
appointed counsel for purposes of bringing a pretrial appeal of an
adverse suppression ruling.”].) It is likewise unsettled whether
the Anders/Wende procedures are required in such cases. While
Gardner leaves open the possibility of a state constitutional right
to appellate counsel on appeal from the denial of a motion to
suppress, review under Anders/Wende is required only if there is
both a constitutionally mandated right to counsel on appeal and
principles of equal protection and/or due process require such
review. (See e.g., Conservatorship of Ben C., supra, 40 Cal.4th at
p. 541 [finding Anders/Wende procedures do not apply to
conservatorship proceedings even though a proposed conservatee is
entitled to counsel in conservatorship proceedings and on appeal
from conservatorship proceedings].)
To assess whether these concerns support Anders/Wende review,
courts examine: (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 the
appeal. (See In re Sade C., supra, 13 Cal.4th 952, 987;
Conservatorship of Ben C., supra, 40 Cal.4th at p. 540.) In the
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context of pretrial appeals from the denial of suppression motions,
the private interests at stake are the defendant’s liberty interest
which must be considered alongside state interests that include
ensuring there was a correct ruling, judicial economy, and
administrative costs. (See Delgadillo, supra, 14 Cal.5th at p. 229;
Flores, supra, 54 Cal.App.5th at p. 274.) As explained in Flores,
“[t]he risk of an erroneous ruling is present if appointed counsel
failed to identify a meritorious (reversible) issue on appeal, and
the appellate court also failed to identify that issue by failing
to conduct an independent review.” (Id. at p. 274.) Delgadillo
instructs that “[u]ltimately, the salient question... is whether
the absence of the Anders/Wende procedures significantly increases
the risk of erroneous resolutions.” (Delgadillo, supra, 19 Cal.5th
at p. 229.)
Because a criminal defendant has the right to challenge the
denial of a motion to suppress following judgment in all misdemeanor
cases, pretrial review under Anders/Wende does not significantly
reduce the risk of erroneous appellate rulings. In misdemeanor
cases, appellate review of suppression motions is available both
pretrial and postconviction. Under section 1538.5, both the People
and the defendant, in a misdemeanor case, are entitled to appeal
any decision on a motion to suppress to the appellate division. (§
1538.5, subd. (j).) But, as discussed, pretrial appellate review
is limited to those defendants who bring a motion to suppress within
45 days following the arraignment. (§ 1510.) If the defendant is
ultimately convicted, appellate review is available to challenge
the suppression ruling whether the defendant was convicted by a
Given this reality, we believe the proper “framework” is the
procedure set forth in Delgadillo, supra, 14 Cal.5th 216: “When
appointed counsel finds no arguable issues to be presented on
appeal: (1) counsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
on the denial of the [motion]; and (2) the court should send, with
a copy of counsel’s brief, notice to the defendant, informing the
defendant of the right file a supplemental letter brief or brief
and that if no letter brief or brief is filed within 30 days, the
court may dismiss the matter.” (Id. at pp. 231-232.)
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IV.
DISPOSITION
The court clerk is directed to send Vera and trial counsel a
copy of appellant’s brief along with notice informing them of the
right to file a supplemental letter brief or brief within 30 days,
otherwise the court may dismiss this matter.
IT IS SO ORDERED.
Dated this ___ day of November, 2023
_____________________________________ Hon. F. Brian Alvarez Presiding Judge of the Appellate Division of the Fresno County Superior Court WE CONCUR:
_____________________________________ Hon. D. Tyler Tharpe Assistant Presiding Judge of the Appellate Division of the Fresno County Superior Court
________________________________________ Hon. Robert G. Mangano Judge of the Appellate Division of the Fresno County Superior Court
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AI Brief
AI-generated · verify before citing
Holding. The court held that a pretrial appeal from the denial of a motion to suppress in a misdemeanor case is untimely if not filed within 45 days of the defendant's arraignment, and that the procedures set forth in Anders v. California and People v. Wende are not required for such pretrial appeals.
Issues
Whether a pretrial appeal from the denial of a motion to suppress is timely under Penal Code section 1510 if the defendant has not been arraigned.
Whether the procedures under Anders v. California and People v. Wende apply to a pretrial appeal from the denial of a motion to suppress in a misdemeanor case.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Without a misdemeanor arraignment, there can be no timely pretrial appeal under the statute.”
“Due process does not mandate Anders/Wende review beyond the first appeal of right in a criminal prosecution unless, among other considerations, its “absence would significantly increase the risk of erroneous appellate resolution.”