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Monday
Sep222014

Charles W. Hokanson Guest Blogger -Anders/Wende Briefs.

Attorney Charles W. Hokanson of Long Beach recently wrote to me concerning my August 12th post on “What is an arguable issue on appeal?”  After reading what he had to say, I invited him to submit a guest blog, which is printed below.  I am not a criminal appellate attorney and welcomed the opportunity for some solid input. 

Here it is: 

“I don’t think the appellate court in People v. Hernandez was rejecting Anders/Wende briefs. Rather, the court was rejecting briefs that assert the attorney cannot find an issue to argue, but the attorney  was still suggesting there were some issues that might be arguable. In other words, the court was rejecting an attempt to have one’s cake and eat it too. 

Anders/Wende briefs are a subject that is unique to criminal appeals, where counsel is appointed to  represent a convicted defendant. Unlike a civil appeal where a party retains counsel who decides whether there are issues to appeal, in a typical criminal case, counsel is appointed by the court of appeal to represent the defendant and has an obligation to find issues to argue on behalf of the defendant/appellant. But sometimes appointed counsel just cannot find anything to argue. Of course, the appointed attorney does not want to raise anything frivolous and get into trouble.     

When that happens, the appointed attorney can file a brief that says simply he or she fulfilled the duties of reading the record and looking for issues, but could not find any issues. This follows the precedent in Andersand Wende (hence the name). What is filed is a short brief that concludes, “I cannot find any arguable issues to attack this judgment.”  

When an Anders/Wende brief is filed, the responsibilities for ensuring that the judgment is correct shifts to the appellate court. While it also offers the defendant a chance to have a say by filing his or her own brief, it also has a duty to review the entire record to determine if there are any arguable issues. Importantly, the court has no such duty where any issues are raised and argued by appointed counsel – it only has to rule on the issues raised.  

In light of these rules, attorneys file Anders/Wende briefs (stating they cannot find any arguable issues) but still discuss their research and analysis while “suggesting” areas that the appellate court might want to consider in its own evaluation of the case. Essentially, these attorneys are trying to have their cake and eat it too. They are trying to trigger the court’s duty to independently analyze the record for issues, but still “suggest” issues for the court to analyze (as well as explain the attorney’s own analysis of all the issues). I believe attorneys do this to justify their efforts and show they really did the required work.  But the Hernandez court is saying do not do that (or perhaps more correctly, we are not going to pay you as appointed counsel to do that). The court is advising, “Take one position or the other. Decide whether there are legitimate issues to argue and, if there are, argue them. If there are not, don’t argue, just submit your Anders/Wende brief and we will take it from there.”  

In my experience, appointed appellate counsel don’t like filing Anders/Wende briefs and work extremely hard to find legitimate issues to argue. The vernacular calls such issues “Wende Busters.” This may have something to do with the pay difference inherent in filing full briefs and arguing to the court (versus a short Wende brief and no argument), but I believe it more likely just a point of professional pride. Appointed appellate counsel are true believers in the rights of their clients and fight hard to vindicate them. They want to find issues to argue and are disappointed when required to file an Anders/Wende brief.” 

Mr. Hokanson can be reached at cwhokanson@towerlawcenter.com.  For a good case on the subject, take a look at the recent case of  People v. Anderson (2014) ___ Cal.App.4th ___ and People v. Kent  (2014) ___ Cal.Rptr.3d ___.  The court of appeal in Hernandez vacated its earlier opinion, and granted a rehearing.  The decision in Hernandez is no longer citeable as published law.  

Sunday
Sep142014

BMW issues a recall notice for 2000-2006 BMW 3 Series vehicles  

First, let me tell you that I think the 3-series BMW is one of the best cars ever designed.  I am speaking from over 15 years of experience in driving two 3-series convertibles.  I love them.  My current car is a 2005 330ic, which I have owned since it popped out of the factory.   

I was a little concerned to receive a notice from BMW that my car might have a defect in the front passenger air bag.   I am “the owner of a potentially affected vehicle,” according to BMW.  Unfortunately, BMW does not have the parts to fix the vehicle, but it will let me know as soon as they become available and I can then make an appointment to fix this “potential” problem.  In describing the problem, BMW wrote, “Our air bag supplier has advised BMW that in the event of a crash necessitating deployment of the front passenger’s air bag, excessive internal pressure could cause rupturing of the air bag inflator, resulting in metal fragments striking and potentially seriously injuring the front  passenger or other passengers.”   Does that mean the metal fragments have the “potential” to strike passengers in the back seat?   

The notice then indicates, “If you are not the only driver of this vehicle, please advise all other drivers and passengers of this important information.”  

What?  The notice provides no guidance in conducting such a conversation.  I can only imagine.  Maybe on the way to a luncheon reservation I might advise my passenger that he or she should push the seat back as far as possible because if we have a collision, metal shards will shower the passenger, possibly embedding themselves in my guest, or even a possible guest in back of the front seat passenger.  Do I tell them before and suggest we drive another vehicle?  I can only imagine how comfortable that will make my guest feel.   My guest might even harbor a suspicion that I am merely seeking to avoid spending gas and want the guest to spend it instead.  

This week I am taking my 89-year-old mother to a doctor’s appointment.  She has asked me to bring the BMW instead of my other car, because she tells me it is easier to get out of the BMW.  In both cars, I either have to give her a big push from the driver’s side or go around to her side and yank her out.  How do I tell my mother about this?  She has survived on the earth for a long time but she worries.  My mother worries that I am going to get West Nile disease from mosquitoes or die a horrible death from Lyme Disease after being bitten by a tick.  How does BMW think my mother will respond when I advise her that my car may produce injuries that one normally associates with exploding bombs? 

 Any suggestions?

Thursday
Sep042014

Court of Appeal reverses conviction for sexual abuse, rejecting evidence of sexual orientation to prove the defendant had a motive to abuse the victim

In People v. Garcia (2014) ___ Cal.App.4th ____, the Fourth Appellate District, Division Three Court of Appeal Court of Appeal reversed a judgment for sexual abuse because the prosecutor relied on the defendant’s sexual orientation as a lesbian to provide a motive for abusing a girl she babysat.
The sexual abuse started when the minor was six years old and continued for four years.  The defendant was hired as the family’s live-in babysitter.  She used digital penetration, sometimes forcefully, and threatened the minor.  The minor had previously complained about the defendant’s inappropriate touching but the mother did nothing until she caught them “in the act” when she discovered them sexually touching in the bedroom.
The prosecutor argued that sexual preference was an issue in the case.  Evidence of defendant’s relationships (or lack of them) came in.  The defense made a motion for mistrial, but the trial court denied the motion.  During closing arguments, the prosecutor urged the jury to consider defendant’s sexual orientation as a motive to abuse the girl.
The appellate court concluded “sexual orientation had no logical bearing on whether [defendant] was guilty of sexually abusing (the minor].”  The trial court did not take the issue off the table in his pretrial rulings.  The appellate court stated, “The lid of the evidentiary box having been left open, the prosecutor pried at it like Pandora until the legal consequences leaped out in closing argument.”  (Opn., pg. 10.)
The court found the prosecutor linked the defendant’s sexual orientation with motive, i.e., the defendant chose to victimize the minor because she was gay.  The court stated,
“We have grown beyond that notion. ‘[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality.  The existence or absence of one neither establishes nor disproves the other.’ . . . California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex.”
(Opn., pgs. 12-13.) (Citations omitted; italics in original.)
The court concluded it did not believe the evidence and argument concerning the defendant’s sexual orientation can be considered harmless beyond a reasonable doubt.  As a result, the judgment must be reversed.  “Due process and the interests of fairness dictate that appellant be judged by what she did, not who she is.  Nothing less will do.” (Opn., pg. 19.)

 

Tuesday
Aug262014

Alzheimer Patient and her husband are not liable for injuries inflicted on an in-home health care worker.

In Gregory v. Cott, 2014 WL 3805478, the California Supreme Court was presented with the question of whether patients suffering from Alzheimer’s disease and their families are liable for the injuries they inflict on in-home health care workers hired to care for them. Caregivers who are injured while performing their jobs in institutional settings, such as hospitals and nursing homes, cannot sue the patient for such injuries.  Noting that agitation and physical aggressions are common with late-stage Alzheimer patients, the Court applied the same rule to in-home caregivers.  

The majority opinion, written by Justice Carol Corrigan, is consistent with public policy that disfavors confining a disabled person in an institution.  The Court reasoned that if liability is imposed for injuries sustained by in-home caregivers, the family would have a greater incentive to institutionalize the patient.  The Court noted its holding does not preclude liability if the in-home caregiver was not warned of a known risk, the defendants increased the risk of injury beyond that inherent in providing care, or the cause of the injury was unrelated to providing care.  It also expressly limited its decision to “professional home health care workers who are training and employed by an agency.”  The Court went on to encourage the Legislature to look into this rapidly growing area to cover subjects such as training and enhanced insurance benefits.  

The California Supreme Court stated:

“Most importantly, however, the idea that tort liability should be imposed to encourage placing the mentally disabled in institutions is inconsistent with the modern policy preference for keeping these patients in their homes whenever possible . . . Support for institutionalization can be found in older cases.  But the public policy disfavoring institutional confinement of the mentally disabled has gained strength in recent years, and legislatures have taken measures aimed at keeping patients in their homes.”

(Id. at p. 11; citations omitted.)

Justice Goodwin Liu wrote a concurring opinion, noting a public policy that such low-paid home health care workers should receive adequate compensation.  He was also concerned that if this rule is applied, it may decrease the willingness of individuals to serve as caregivers, resulting in raising wages and increased benefits.

Justice Laurence Rubin wrote a dissenting opinion, noting tort law compensates a person who is wrongfully injured at the hands of another.  While not laying moral blame on the patient, the justice focused on the husband, who should have weighed the factors in choosing in-home care over an institution.  If that decision is wrong and the patient needs more care, the in-home health worker should not bear that responsibility.  After all, the husband had control over the environment whereas the in-home caregiver has little control.  Justice Rubin also noted that in this case the in-home health care worker was an employee of an agency, and therefore, entitled to worker’s compensation, but if she had been an independent contractor, she would have no such right to compensation.  A similar problem would arise if the family hired the worker and had no worker’s compensation insurance.

Justice Rubin concluded:

“This is a hard case involving sad facts.  As the majority notes, the Legislature and society at large may be well served by turning their attention to the problems associated with caring for Alzheimer’s patients.  Whatever the solutions to those problems, I do not believe they should be at the expense of in-home caregivers who risk a physical injury by working on the front line, typically for low pay and few benefits.”

(Id. at p. 22.)  

This case makes for interesting reading and involves more considerations than can be discussed here.  Since we face or will face these issues within our own families, I urge you take a look at Gregory v. Cott.


 

Tuesday
Aug122014

What is an arguable issue on appeal?  

 In People v. Hernandez (2014) ___, Cal.App.4th ___, Justice Rylaarsdam wrote the opinion in a criminal appeal in which the Court previously appointed counsel to represent the defendant.  The attorney filed a Anders/Wende brief, in which the attorney indicated he could find no issues to argue on defendant’s behalf.  TheAnders/Wende brief is based on Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436.

The Court published its opinion, reaffirming its long-standing rejection ofAnders/Wende briefs.  It stated: 

                 “Long ago, this court discredited the custom of raising ‘‘arguable-but-unmeritorious’ issue[s]’ in Anders/Wende appeals; yet this practice persists.  As Justice Gardner noted in People v. Johnson, supra, 123 Cal.App.3d 106, ‘In this case we reject a concept which has crept into our judicial literature – the ‘arguable-but-unmeritorious’ issue on appeal.  We hold that an arguable issue on appeal consists of two elements.  First, the issue must be one which, in counsel’s professional opinion, is meritorious.  That is not to say that the contention must necessarily achieve success.  Rather, it must have a reasonable potential for success.  Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.’”  

 (Opn., pgs. 3-4.) 

 Justice Gardner advocated jettisoning the concept of ‘arguable-but-unmeritorious’ issues, a position with which this Court agreed.  While the Court must review the record in such appeals, and must do so when the defendant personally files a brief raising certain issues, “But there is no such obligation with respect to counsel supplied so-called ‘arguable-but-unmeritorious’ issues.”  (Opn., pg. 4.)  As a result, “An attorney who cannot discover an arguable issue thus secures an appellate review of the record which is not necessarily enjoyed by his more feisty counterpart who raises one or two frivolous issues, easily disposed of by the inspection of a few pages of transcripts.”  (Opn., p. 4; citing People v. McGee I1978) 82 Cal.App.3d 127, 129.) 

 One of the tasks of an appellate attorney is to select the issues on appeal.  Selecting three or four grounds for appeal is best.  At times, an appellate attorney may drop weaker grounds, fearful that their inclusion will bring down the credibility of the appellant’s position.  If a brief includes a laundry list of errors, numbering over five, the Court of Appeal may wonder whether so many errors could be committed in one hearing.  If an civil appellate attorney cannot find any issues for appeal, the attorney simply notifies the client and may even refuse to take the appeal.  Court-appointed criminal appellate attorneys face a different challenge.  What do they do if they cannot find an arguable issue on appeal?  As pointed out by Justice Rylaarsdam, filing a brief in which the attorney discusses the case and indicates he or she cannot find any issues to argue on the defendant’s behalf, is not acceptable.