Review CCAP’s Wende Brief article for policies that apply when appointed counsel does is unable to find any meritorious issues and a no-issue brief is filed.
The Delgadillo Decision
On December 19, 2022, the California Supreme Court issued its opinion in People v. Delgadillo (2022) 14 Cal.5th 216, concluding that the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 do not apply in an appeal from the denial of a Penal Code section 1172.6 (formerly section 1170.95) petition. (Delgadillo addressed a denial at the prima facie stage.) Although the court concluded the Wende procedures do not apply, the court set forth procedures appointed counsel and the Courts of Appeal must follow when counsel determines that an appeal from an order denying postconviction relief under section 1172.6 lacks arguable merit:
- Counsel should file a brief that raises no issues, and include a concise recitation of the facts bearing on the denial of the petition.
- The Court of Appeal should send, with a copy of counsel’s brief, notice to the defendant. The notice should inform 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 without reviewing the record.
- If the defendant files a supplemental brief or letter, the Court of Appeal must evaluate the specific arguments raised in a written opinion. However, the filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues.
- If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned and need not write an opinion, but should notify the defendant when it dismisses the matter.
Whether or not the defendant files a supplemental brief or letter, the Court of Appeal retains the discretion to conduct its own independent review of the record in any individual section 1172.6 appeal.
The court held these basic procedures are not exhaustive, and the Courts of Appeal “are free to adopt additional procedures as they see fit.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
Sample format for Delgadillo brief for Third & Fifth District cases
Download Delgadillo brief (Word doc)
Download Delgadillo brief (PDF)
The Delgadillo brief format presented here is the one preferred by the Third and Fifth District Courts of Appeal. Note that the sample brief still cites to Wende, but on the cover and in other places in the brief, citations to Delgadillo have been added. The language of the brief has also been updated to reflect the procedure outlined in Delgadillo. The sample brief still requests that the court conduct an independent review of the record, but the court has discretion to decline to conduct an independent review. Other project Delgadillo formats may differ. The court clerk may refuse to file a brief that does not comply with their requirements.
A sample letter to the client advising that counsel has been unable to identify any meritorious issue
Download sample letter (Word doc)
CCAP recommends that this not be used as a “form letter” since each case and each appellant will differ requiring communication unique to the case, potential issues, and response to appellant’s previous input or inquiries. Caution should also be exercised in using “form letters” as they tend to be passed around in prison.
The addresses of the California Supreme Court and the Courts of Appeal
It is always wise to double check that the address that you send the appellant reflects the correct court, particularly when you practice in more than one Court of Appeal.
Practice Note: Make Sure the Court Has Appellant’s Most Recent Address if a Delgadillo Brief is Filed (or a Wende Brief Was Filed Before Delgadillo)
When appointed counsel files a brief pursuant to Delgadillo, supra, 14 Cal.5th 216, it will be very helpful to the courts if counsel includes the client’s current mailing address in the proof of service for the brief (sometimes counsel will use the terms “served at address of record” or “address on file” instead of providing the client’s address on the proof of service). When a Delgadillo brief is filed, the court will serve the appellant directly with subsequent documents and the court does not always have the most current address for the appellant in their system. Providing the appellant’s current address in the proof of service will assist the courts with making sure the appellant receives the appropriate documents in the case once a Delgadillo brief is filed. Additionally, if counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in a section 1172.6 appeal before Delgadillo was decided, counsel should ensure the Court of Appeal has the client’s current address.
Important note for Third District cases where review was granted with briefing deferred pending decision in Delgadillo: For Third District cases that were on grant-and-hold status for Delgadillo and are transferred back to the Court, it is important for appointed counsel to make sure the Court of Appeal has the current address for the client by filing a change of address form if the address on file with the court is outdated.
What About Appeals Where the Trial Court Issued an Order to Show Cause Before Denying a Section 1172.6 Petition?
Delgadillo involved an appeal from an order denying section 1172.6 relief at the prima facie stage. (See Delgadillo, supra, 14 Cal.5th at p. 221-228.) If appointed counsel is filing a no-issue brief in an appeal from the denial of a section 1172.6 petition after the trial court issued an order to show cause, counsel may wish to consider adding an additional argument distinguishing Delgadillo and arguing the defendant is entitled to an independent review of the record under Wende because defendant had a constitutional right to counsel after the trial court issued an order to show cause. The court in Delgadillo 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, but also noted the right to counsel has not been extended to an appeal from a ruling in an ameliorative legislative scheme. (Id. at p. 228.)
Important Note—Panel Attorneys Must Contact the CCAP Staff Attorney Assigned to Their Case for a “Delgadillo Review” Before a Delgadillo Brief is Filed
Before a panel attorney may file a Delgadillo brief, counsel must first discuss the contemplated action with the CCAP staff attorney assigned to the case, regardless of whether the appointment was assisted or independent. Although the Court of Appeal is not required to conduct an independent review of the entire record in a case where a Delgadillo brief is filed, CCAP will still conduct our usual “Wende review” in all section 1172.6 cases.
What About Other Postconviction Order Appeals?
Courts may adopt the procedures outlined in Delgadillo for appeals from other types of postconviction proceedings that may not be the first appeal as of right. However, if appellant had a constitutional right to counsel in the postconviction proceedings below then appellant may arguably have a right to an independent Wende review. (See Delgadillo, supra, 14 Cal.5th at p. 228.)