Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ross Arthur WENDE, Defendant and Appellant.

4 Cr. 8911.

Decided: December 15, 1978

Appellate Defenders, Inc., by Paul Bell, San Diego, under appointment by the Court of Appeal, for defendant and appellant. No appearance for plaintiff and respondent.

Ross Arthur Wende appeals the judgment after a court found him guilty of committing a robbery in which he used a firearm. A motion for new trial was denied and Wende was sentenced to prison for five years.

Wende's appointed counsel “raises no specific issues” in his brief, the clear inference being there are none to raise. Wende was given the opportunity to file a brief on his own behalf, an offer he declined.

Counsel says this court must carefully review the entire record before dismissing, to make sure there are no cognizable issues on appeal. (People v. McGee, 82 Cal.App.3d 127, 129, 146 Cal.Rptr. 833.)

With all respect for the views of our colleagues in the second district, People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21, does not require an independent court evaluation of the entire record under these circumstances. When counsel determines there are no arguable issues

“he may limit his brief to a statement of the facts and applicable law and may ask to withdraw from the case, but he must not argue the case against his client. Counsel is not allowed to withdraw from the case until the court is satisfied that he has discharged his duty to the court and his client to set forth adequately the facts and issues involved. If counsel is allowed to withdraw, defendant must be given an opportunity to present a brief, and thereafter the court must decide for itself whether the appeal is frivolous. (Citations.) If any contention raised is reasonably arguable, no matter how the court feels it will probably be resolved, the court must appoint another counsel to argue the appeal.” (People v. Feggans, supra, 67 Cal.2d 444, 447-448, 62 Cal.Rptr. 419, 421, 432 P.2d 21, 23.)

Here, counsel set out statements of the case, and defense evidence with citations to the record in each instance. Although not explicitly stated, it is obvious from the material presented the only issue is one of credibility: the court believed the victim, not the defendant. Counsel did not argue against the client; his client, given the opportunity, did not file a brief. From the settled rules of appellate practice and the information in Wende's brief we can confidently conclude there are no reasonably arguable issues in this case. There is no need for this court to independently review the entire file and we decline to do so.

Our reading of Feggans does not detract from the constitutional requirement of adequate counsel and the ethical considerations in representing a client. Rather, it places the burden of appellate advocacy on counsel and his client where it belongs. The extent of our review of the record is only that which is necessary to determine if appellant's counsel has adequately presented his client's case. We discern no inadequacy of representation here. We are loath to open the door for those few attorneys who, recognizing a weak case, might invite the court to search the record for issues rather than doing it themselves. We are satisfied, however, that is not the situation in this appeal.

The appeal is dismissed.

GERALD BROWN, Presiding Justice.