Opinion
E081419
11-28-2023
In re B.M., a Person Coming Under the Juvenile Court Law. v. B.M., Minor and Appellant. THE PEOPLE, Plaintiff and Respondent,
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J279737 Charles J. Umeda, Judge. Affirmed.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAPHAEL J.
In October 2019, B.M. admitted to aiding and abetting voluntary manslaughter by encouraging her girlfriend to kill the girlfriend's brother. She was committed to the Department of Juvenile Justice (DJJ) for a maximum confinement of 11 years. While in DJJ's custody, DJJ reported concerns about B.M.'s continued contact with the coparticipant in her crime, saying she "appeared incapable of separating herself from her co-part." Accordingly, "unit staff instructed both youth not to communicate or engage with each other, given how unhealthy and the toxicity of their relationship [sic] in the past regarding their roles in the committed offense." In April 2023 the California Department of Corrections and Rehabilitation Board of Juvenile Hearings recommended discharging her.
In May 2023 the court held a re-entry disposition hearing where it terminated DJJ's jurisdiction and released B.M. as a ward in her own custody. However, it also imposed DJJ re-entry supervision terms. This included an electronic search condition requiring her to "[s]ubmit to probation search of cell phone or other electronic devices for purpose of monitoring communication with co-part[icipant]." B.M. appealed, citing as grounds for the appeal "unconstitutional probation/parole terms."
We appointed counsel to represent B.M. on appeal, and counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) setting forth a statement of the case and a summary of the facts and asking us to conduct an independent review of the record.
It is undisputed that when appealing from an order after judgment an adult criminal defendant does not have a constitutional right to independent review under Anders/Wende if appellate counsel cannot identify any arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 227, 231 (Delgadillo).) Nevertheless, the court is to inform the defendant that they may personally file a supplemental brief, and "[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) "If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned." (Ibid.)
However, a notice provided defendant may be "suboptimal" if the defendant "reasonably could have concluded" from it "that the Court of Appeal would conduct an independent review of the record, even absent a supplemental brief." (Delgadillo, supra, 14 Cal.5th at pp. 232-233.) As Delgadillo noted, independent review of the record under Anders/Wende happens automatically after receiving a brief from appointed counsel under the authority of those cases and" 'does not depend on the . . . receipt of a brief from the defendant personally,'" whereas under Delgadillo, "the Court of Appeal may dismiss the appeal as abandoned" "[i]f the defendant does not file a supplemental brief or letter." (Delgadillo, at pp. 232-233.) Thus, when Delgadillo applies, but the notice sent to the defendant cites only to Anders/Wende, confusion may plausibly result. The notice in Delgadillo had this flaw (Delgadillo, at p. 233), as did the notice here.
Because the notice sent to B.M. was improper, we exercise our discretion to examine the record to determine whether it contains any arguable issues. We conclude that it does not. Accordingly, we affirm.
DISPOSITION
We affirm.
WE CONCUR: RAMIREZ P. J., FIELDS J.