Attorney’s duty of candor requires disclosing opposing legal authority 

People v. Williams (Cal. Ct. App., Feb. 24, 2022, No. B311161) 2022 WL 556906, at *1–6

Facts:  Williams filed  a “Petition for Modification of Sentence (Pursuant to P.C. 1170(d)(1).)” Asking the trial the court to modify his 1996 judgment based on “charging and sentencing policies” adopted by Los Angeles County District Attorney George Gascón. In Williams quoted Penal Code section 1170, subdivision (d)(1)1 and argued his 1996 sentence could be modified or recalled because “the district attorney’s office considers that only 15 years of the 25 years [he] already served is more than enough” and the court could consider, under the same statutory provision, his good conduct in prison.

The trial court denied defendant’s section 1170, subdivision (d)(1) petition for modification of sentence without appointing counsel for defendant. A minute order memorializing the court’s ruling explains the petition was “denied as untimely” (coming, as it did, well after the 120-day period and without the requisite accompanying recommendation).

Williams, in propria persona, noticed an appeal from the trial court’s ruling. Appointed  counsel filed a brief in this court captioned “APPELLANT’S OPENING BRIEF (PEOPLE V. SERRANO (2012) 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 [(Serrano)]).” The brief included, pursuant to the provisions of the Rules of Court that require it (Cal. Rules of Court, rules 8.204(a)(2)(B), 8.360(a)), a one-sentence statement purporting to explain why the order appealed from is appealable.  “Appellant filed a Notice of Appeal from the ruling as an order after judgment affecting substantial rights. ([ ] Pen. Code, § 1237, subd. (b).)” The brief requested this court to follow the procedures described in Serrano.

Serrano requires that in  criminal appeals arising from proceedings other than the first appeal of right, an appointed attorney who finds no arguable issues “should (1) inform the court he or she has found no arguable issues to be pursued on appeal and (2) file a brief setting out the applicable facts and the law.” (Serrano, supra, 211 Cal.App.4th at 503, 149 Cal.Rptr.3d 706.) Upon receipt of such a brief, a reviewing court following the Serrano procedure will inform the defendant that he or she may personally file a supplemental brief. If such a brief is filed, there is authority holding that a reviewing court must then evaluate any arguments presented in that brief and issue a written opinion that disposes of the trial court’s order on the merits. If  no supplemental brief is filed, the court “will then either retain the appeal or dismiss it on [its] own motion.” (Serrano, supra, at 503, 149 Cal.Rptr.3d 706; accord, Cole, supra, at 1039-1040, 267 Cal.Rptr.3d 113.)

Jurisdiction to decide the appeal

The  court found  published authority—never cited in the opening brief—holding that a reviewing court has no jurisdiction to entertain an appeal of a section 1170, subdivision (d)(1) ruling of the type here because it is a nonappealable order. (See, e.g., People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726, 8 Cal.Rptr.2d 610 [“[S]ince we have concluded the trial court no longer had jurisdiction to recall Chlad’s sentence when it issued the order denying his motion, denial of the motion could not have affected Chlad’s substantial rights. (See People v. Roe (1983) 148 Cal.App.3d 112, 118, 195 Cal.Rptr. 802 [ ] [judgment entered by the court after losing its jurisdiction under § 1170, subd. (d), has no effect and cannot be appealed].

Failure to disclose legal authority adverse to the client

The court directed counsel to submit a letter brief addressing: “(1) whether, consistent with the holding in [Chlad], the appeal is taken from a nonappealable order, and (2) whether the absence of a citation to Chlad (or other authority to the same effect) in the opening brief constitutes a violation of the Rules of Professional Conduct.” By citation, this court specifically directed counsel’s attention to the rule that states a lawyer shall not “fail to disclose to the tribunal[ ] legal authority in the controlling jurisdiction known[ ] to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel ….” (Rules Prof. Conduct, rule 3.3(a)(2) (Rule 3.3(a)(2)).)

Counsel submitted a short letter in response that did not distinguish Chald or state that  that the absence of a citation to such authority in the opening brief was attributable to mistake, inadvertence, or administrative error.

Counsel asserts he appropriately did not cite authority indicating we have no jurisdiction to entertain this appeal. In counsel’s words: “While Rule 3.3 requires attorneys to disclose controlling legal authority adverse to a position which he is arguing, counsel did not here advocate any legal position in his brief. At no point did counsel argue or state that the appeal was proper. Counsel only stated the basis of his client’s belief that the appeal was proper, as required by this Court.” (Emphasis ours.) The letter further asserts that including “[a] statement in the brief that the ruling appealed from is not appealable or a statement citing case law holding that a given ruling is not appealable would be equivalent to stating that the appeal is frivolous,” which counsel believes (chiefly relying on People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende)) he cannot do consistent with his duties as a defense attorney who does not seek to withdraw from representation of a client.

Defense Attorney Has an Obligation to Disclose Authority Holding This Court Has No Jurisdiction to Decide an Appeal When the People Do Not Cite Such Authority

 Rule 3.3(a)(2) prohibits an attorney from (1) failing to disclose to (2) a tribunal (3) legal authority in this State that is (4) known to the lawyer to be directly adverse to the position of the client and (5) not disclosed by opposing counsel. Each of these elements is satisfied on the record here.

Take first counsel’s contention that he personally made no affirmative representation in the opening brief that the order appealed from is an appealable order. Even taken on its own terms, the contention is irrelevant: Rule 3.3(a)(2) prohibits a lawyer from knowingly failing to disclose adverse authority, not just from making affirmative representations that are inconsistent with such authority. Counsel is responsible for the content of briefs he files in this court (see, e.g., In re Rozzo (2009) 172 Cal.App.4th 40, 64, fn. 11, 91 Cal.Rptr.3d 85), and asserting a legal basis for taking the appeal that reads as a representation by counsel but is perhaps phrased in a sufficiently ambiguous manner to later permit attribution solely to a client does not properly evade that responsibility.

By prosecuting the appeal and requesting Serrano procedures to be followed, counsel represented to this court that it had the jurisdiction that permits following those procedures.

Counsel here had an obligation to cite Chlad or similar authority in his opening brief’s statement of appealability, but he was free to argue that the case authority is distinguishable and  should not be followed.

Defendant’s Appeal Must Be Dismissed for Lack of Jurisdiction

The trial court’s denial is a nonappealable order. (See, e.g., Chlad, supra, 6 Cal.App.4th at 1725-1726, 8 Cal.Rptr.2d 610 [order denying a section 1170, subdivision (d) motion to recall sentence is not an appealable order because the trial court no longer had jurisdiction to recall the defendant’s sentence when it issued the order denying his motion; a defendant has no standing to bring an untimely section 1170, subdivision (d) motion]; see also People v. Torres (2020) 44 Cal.App.5th 1081, 1084, 258 Cal.Rptr.3d 307 [“If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed”] (Torres); People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, 98 Cal.Rptr.3d 471; People v. Roe, supra, 148 Cal.App.3d at 117, 195 Cal.Rptr. 802.)

An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor (where the authority is not otherwise brought to the attention of the court by another party to the appeal). Any such future violation may warrant disciplinary review by the State Bar.