California v. Figueras
Annotate this CaseDefendant Luis Figueras appealed the denial of his postjudgment petition to vacate his murder conviction pursuant to Penal Code section 1170.95. Counsel was appointed to represent defendant on appeal; Counsel filed a "Wende" brief, advising defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and the Court of Appeal received no communication from defendant. The appeal was then dismissed as abandoned. Counsel filed a petition for rehearing, which was granted. After supplemental briefing, the Court of Appeal again concluded the appeal was abandoned, and accordingly again dismissed the appeal. On rehearing, defendant contended the Wende procedure applied or should have applied to an appeal from an order denying a postconviction petition seeking relief pursuant to section 1170.95. Quoting California v. Cole, 52 Cal.App.5th 1023 (2020), the Court explained“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. At this stage in criminal proceedings, a criminal defendant has a federal constitutional right to the effective assistance of counsel. ... [W]e 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." The Court advised that once appointed counsel reviewed a defendant's record and finds no arguable issues to raise on appeal, counsel confirms defendant he has a right to file a supplemental brief, and the Court has the duty to address any issue defendant raises, but the Court may dismiss the appeal without conducting an independent review of the record. With no supplemental brief filed in this case, the Court dismissed the appeal as abandoned.
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