In re B.M. CA4/2

• Court: California Court of Appeal
• Decided: March 8, 2024
• Docket: E082061
• Status: Unpublished

Opinion

Filed 3/8/24 In re B.M. CA4/2 See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re B.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E082061 Plaintiff and Respondent, (Super.Ct.No. RIJ1301366) v. OPINION B.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge.

Dismissed.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant B.M. (minor) admitted an allegation that she had

committed first degree murder. On July 1, 2021, the juvenile court declared minor a

ward of the court. The court committed her to the Pathways to Success program in the

County’s Youth and Treatment Education Center (YTEC) facility, with a maximum

length of confinement of 25 years to life, her wardship to terminate at age 25.1 (B.M.,

supra, E077473.)

On June 28, 2023, at a six-month review hearing, the juvenile court adopted the

recommendations in the Riverside County Probation Department’s memorandum; the

court ordered minor placed in a less restrictive setting within the YTEC building. On

August 9, 2023, the court effectively denied minor’s counsel’s motion that minor had

been deprived of credits and a less restrictive placement due to equal protection

violations.

After minor’s counsel filed a notice of appeal,2 this court appointed counsel to

represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738,3 setting forth a statement of the

1 We take judicial notice of our prior opinion from B.M.’s appeal from the original judgment (In re B.M. (May 11, 2022, E077473) [nonpub. opn.]). (Evid. Code, § 459.)

2 Minor appeals the court’s orders of June 28, Jul 31, and August 9, 2023. The court did not issue an order on July 31, 2023; instead, the court continued the matter and issued its ruling on August 9, 2023.

3 In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California Supreme Court held that Wende and Anders procedures do not apply in appeals from postjudgment motions. (Delgadillo, at pp. 224-226; People v. Serrano (2012) 211 [footnote continued on next page]

2 case, requesting that we independently review the record, and identifying four potentially

arguable issues: (1) whether the juvenile court abused its discretion in denying minor’s

motion for modification of the disposition order entered on June 28, 2023, including

whether the necessary placement findings were supported by substantial evidence;

(2) whether continued placement of minor at the YTEC building violates her right to

equal protection; (3) whether the juvenile court erred in denying minor’s request for

modification of her conduct credits; and (4) whether minor is entitled to precommitment

custody credits against her baseline term.

We gave defendant the opportunity to file a personal supplemental brief. We

noted that if she did not do so, we could dismiss the appeal; nevertheless, she has not

filed one. Under these circumstances, we have no obligation to independently review the

record for error. (Delgadillo, supra, 14 Cal.5th. at pp. 224-231.) Rather, we dismiss the

appeal. (Id. at pp. 231-232.)

Cal.App.4th 496, 499-501 [Wende review extends only to the first appeal of right from a criminal conviction]; In re Mario C. (2004) 124 Cal.App.4th 1303, 1307-1308 [The judgment in delinquency proceedings is the dispositional order made after the trial court has found a minor a ward of the court.]; In re Kevin S. (2003) 113 Cal.App.4th 97, 119 [Wende procedures apply to a minor’s first appeal in juvenile delinquency cases].)

3 DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. I concur:

CODRINGTON J.

4 [In re B.M.; P. v. B.M., E082061]

RAMIREZ, P. J., Dissenting.

I respectfully dissent. Our Supreme Court has afforded reviewing courts

discretion with respect to the disposition of postconviction appeals in which appointed

appellate counsel has filed a no-issues brief and defendant did not file a supplemental

brief. (People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo).) As general

practice, I believe that discretion should be exercised to conduct an independent review in

such cases for the reasons set forth in People v. Griffin (2022) 85 Cal.App.5th 329, 333-

337.

In this case, independent review of the record by this court is particularly

appropriate. Upon receipt of appointed appellate counsel’s no-issues brief submitted on

behalf of defendant, the clerk of this court sent to defendant a “Delgadillo notice.” That

notice cited Delgadillo, and correctly informed defendant (i) that this court is not required

to conduct an independent review of the record in appeals from postconviction

proceedings, and (ii) that failure to timely file a supplemental brief may result in

dismissal of his appeal as abandoned.

The brief filed by defendant’s counsel and served on defendant, however, does not

mention Delgadillo. It instead states (i) that defendant’s request for independent review

by this court of the record on appeal is made pursuant to People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, and (ii) that “[c]ounsel advised

[defendant] of her right to an independent record review by this court pursuant to

Wende.” Counsel’s declaration avers that counsel advised defendant “of the nature of

1 this brief.” Counsel also informed defendant of her right to file a supplemental brief but

there is no indication in counsel’s declaration that counsel explained to defendant that

this court is not required to independently review the record and that failure to file a brief

might result in dismissal of her appeal as abandoned.

There is an important distinction between the procedures afforded by reviewing

under Anders/Wende and those employed pursuant to Delgadillo. Under Anders/Wende,

independent review by the reviewing court occurs automatically, irrespective of whether

a defendant files a supplemental brief; under Delgadillo, record review is discretionary

and, if the defendant does not file a supplemental brief, the reviewing court may simply

issue an order dismissing the appeal as abandoned. (Delgadillo, supra, 14 Cal.5th 232-

233.) When the Delgadillo procedures apply to an appeal but the reviewing court’s

notice to a defendant of the right to file a supplemental brief refers only to Anders and

Wende, the notice may be suboptimal if the defendant could reasonably have concluded

that the court would independently review the record even absent a supplemental brief.

(Delgadillo, at pp. 232-233.)

In this case, this court properly sent a Delgadillo notice to defendant, but it is

reasonably probable that defendant was confused by, or even relied upon, the incorrect

information provided by her counsel that the Anders/Wende procedures apply to her

appeal. In the circumstances, I think it particularly important for this court to conduct an

independent review of the record on appeal.

RAMIREZ P. J.