Under People v. Wende (1979) 25 Cal.3d 436, a defense attorney’s determination that an appeal from a conviction is meritless triggers an appellate court duty to itself review the entire record to verify the appeal is frivolous. In People v. Delgadillo, the Supreme Court today says there is no such requirement when an appeal from the denial of certain postconviction relief “does not implicate a constitutional right to counsel.” That is true “even if the defendant has a state-created right to the appointment of counsel for that appeal,” the court says.

The court’s unanimous opinion by Justice Joshua Groban nonetheless expressly leaves open the possibility of mandatory Wende reviews in some postconviction appeals. The opinion deals only with proceedings for resentencing under recent legislation that narrowed murder liability under the felony murder theory and eliminated it under the natural and probable consequences doctrine. The court is known for its narrow opinions (see here and here), but this one is even narrower than the court seemed to promise when it granted review and said the issue to be briefed and argued concerned, without qualification, procedures in “an appeal from an order denying postconviction relief.” Of course, “[t]he court need not decide every issue . . . the court specifies.” (Rule 8.516(b)(3).)

The court does, however, specify procedures to be followed in no-Wende-review appeals from denials of postconviction relief: the Court of Appeal should notify the defendant that counsel was unable to find any arguable issues, that the defendant may file a supplemental brief or letter, and that, if no supplemental brief or letter is timely filed, the court — without opinion — may dismiss the appeal as abandoned.

The court affirms the Second District, Division Four, Court of Appeal’s unpublished opinion, even though finding the Division Four procedure in the case to have been “suboptimal.” The affirmance is because the Supreme Court does its own voluntary independent record review and concludes the defendant was not entitled to resentencing relief.