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Procedures Outlined in Conservatorship of Ben C.

Sample Ben C. (no issues) brief

In Conservatorship of Ben C. (2007) 40 Cal.4th 529, the California Supreme Court held that on appeal from a conservatorship finding, independent Wende/Anders court review was not required, but it did not hold that such independent court review was prohibited. (Id. at pp. 537, 539.)

In Ben C., the the California Supreme Court instructed that if appointed counsel in a conservatorship appeal found no arguable issues, counsel should not file a motion to withdraw. Instead, counsel should file a brief informing the court he or she found no arguable issues to raise on appeal, and setting forth the applicable facts and law. (Ben. C., supra, 40 Cal.4th at p. 544.) The Court also instructed counsel should supply appellant with a copy of the brief and advise appellant of the right to file a supplemental brief. (Ibid., fn. 6.) The sample below complies with these directives.

Because the Ben C. procedures are still relatively new, please talk with your assigned CCAP staff attorney if you receive anything unexpected from the court after filing a Ben C. brief.

Expectations for Assist and Independent Cases:

The following Wende procedures apply to filing a Ben C. brief:

Remember that CCAP expects appointed counsel to consult with the CCAP staff attorney assigned to the case not only before the filing of a Wende brief, but also before counsel even writes to the client regarding the conclusion that there are no issues to be briefed. It can severely undermine the client’s confidence in you and even trigger a serious breakdown in the attorney-client relationship if you deliver this disappointing news and then have to retract it because CCAP subsequently identifies an issue that was missed.

The requirement that no Wende brief or abandonment be filed without prior consultation with CCAP applies both to assisted and independent appointed cases without exception. It is best to first phone the assigned CCAP buddy to alert him or her that you anticipate filing a Wende brief. Your buddy will then let you know what s/he needs to complete CCAP’s review of the record:

In Assisted Cases that will occur only after the staff attorney has thoroughly reviewed the record on appeal, including any augmentation that was received after the original memo was sent, and has reviewed your draft Wende brief. In assisted cases, counsel should contact his or her CCAP buddy to let him or her know that the record is coming along with the Wende draft. CCAP staff attorneys always appreciate receiving a memo from assisted counsel in which the issues considered and rejected are set forth, together with supporting authorities.

Summary of steps for assist-appointed cases:

  • Call CCAP buddy for consultation;
  • Send CCAP draft Wende brief;
  • Send CCAP complete record, including augmented materials, if any;
  • Send CCAP memorandum of issues considered and rejected.

In Independent Cases CCAP staff attorneys have considerable more latitude. The assigned CCAP buddy is listed in the initial CCAP “thank you for accepting appointment letter” for each independent case. The staff attorney may want to review the record, or simply review a memo from counsel setting forth the facts, and detailing the issues considered and rejected. As a result, in independent cases counsel should contact the CCAP staff attorney assigned to the case to determine how to proceed.

Summary of steps for independent-appointed cases:

  • Call CCAP buddy for consultation before filing;
  • Send CCAP complete record, if requested.

If contact with the client has been lost, a Wende brief should not be filed until counsel has exercised due diligence in an attempt to locate the client. Such due diligence should include searching the record for alternative addresses for the client and for the addresses of friends or relatives who might be able to assist in locating your client. Trial counsel may also be able to assist in this process. The prison locator number should also be called to determine whether the client has been released or transferred. Checking with CCAP to see if we have an alternative address for the appellant is also prudent. Contact with the probation or parole officers in order to locate a defendant may result in revocation of probation or parole and other consequences harmful to the defendant. CCAP suggests that you may well want to discuss this matter and how to proceed with your CCAP buddy before filing any brief or abandonment. At the same time, counsel should remember that it is the client’s duty to keep his or her attorney apprised of any change in his or her address, and that the failure to do so could impair the client’s rights on appeal.