We granted certiorari, ante, p. 264, vacated the judgment below and remanded for further consideration in light of Chapman v. California, ante, p. 18.In re Nash, 61 Cal.2d 491, 393 P.2d 405 (1964), held that the requirements of Douglas v. California, 372 U.S. 353 (1963), are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct. The appeal then proceeds without the appointment of other counsel and decision is reached without argument.
Douglas's requirement for the appointment of appellate counsel for all indigent criminal defendants led in due course to a new conundrum: What happens when appellate attorneys appointed as a matter of right for indigent defendants in appeals they had an absolute right by statute to pursue find no arguable issue? In re Nash (1964) 61 Cal.2d 491 [ 39 Cal.Rptr. 205, 393 P.2d 405] was the California Supreme Court's answer to that question. There, the appointed appellate attorney "studied the record, consulted with [the client], and interviewed [defendant's] trial counsel and the trial court clerk and reporter.
Appointed counsel, who had not withdrawn from the case, filed a petition for hearing which we granted to determine whether the proceedings below satisfied the standards set forth in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396] and People v. Feggans (1967) 67 Cal.2d 444 [ 62 Cal.Rptr. 419, 432 P.2d 21]. In Anders v. California, the United States Supreme Court held unconstitutional the no-merit letter procedure we had set forth in In re Nash (1964) 61 Cal.2d 491 [ 39 Cal.Rptr. 205, 393 P.2d 405], for handling appeals by indigent defendants. The court concluded that the no-merit letter procedure failed to satisfy the constitutional requirement of substantial equality and fair process under the Fourteenth Amendment to the Constitution of the United States.
He requested and was given permission to withdraw from the case. (See In re Nash, 61 Cal.2d 491, 495 [ 39 Cal.Rptr. 205, 393 P.2d 405].) The court gave defendant 30 days in which to file a brief.
( Douglas v. California, 372 U.S. 353, 356-357 [83 S.Ct. 814, 9 L.Ed.2d 811].) [12] Thus, in In re Nash, 61 Cal.2d 491, 496 [ 39 Cal.Rptr. 205, 393 P.2d 405], we held that an appellant was not subject to invidious discrimination when neither his appointed counsel nor the District Court of Appeal could discover a meritorious ground of appeal and the court refused to appoint another counsel to represent him. In habeas corpus cases we require a convicted defendant to allege with particularity the facts upon which he would have a final judgment overturned and to disclose fully his reasons for any delay in the presentation of those facts.
( Anders v. California, supra, 386 U.S. at p. 739 [18 L.Ed.2d at p. 495].) The factual setting of Anders was the so-called "no-merit letter" procedure that had been set out in In re Nash (1964) 61 Cal.2d 491, 495 [ 39 Cal.Rptr. 205, 393 P.2d 405], as follows: "[T]he requirement of the Douglas case is met . . . when . . . counsel is appointed to represent the defendant on appeal, thoroughly studies the record, consults with the defendant and trial counsel, and conscientiously concludes that there are no meritorious grounds of appeal. If thereafter the appellate court is satisfied from its own review of the record in the light of any points raised by the defendant personally that counsel's assessment of the record is correct, it need not appoint another counsel to represent the defendant on appeal and may properly decide the appeal without oral argument.
Counsel had twice failed to argue — either in oral or written form — when invited to do so by the Court of Appeal, even though his client had won a significant reprieve. Counsel violated the quintessence of Anders and Feggans when he had expressly stated his belief to petitioner that the case had no merit, refused to act as an advocate for petitioner in the Court of Appeal, yet did not write the then-proper ( In re Nash, 61 Cal.2d 491, 495 [ 39 Cal.Rptr. 205, 393 P.2d 405]) "no-merit" letter to the court announcing his withdrawal from the case. Surely the slightest dilatoriness on the part of counsel upon the second remand should have been enough cause for the court to question whether counsel still represented petitioner, and if so, whether his performance was such as to give petitioner good cause to have new counsel appointed.
The minority opinion in Anders states (pp 745, 746): "The system used by California for handling indigent appeals was described by the California Supreme Court in In re Nash, 61 Cal.2d 491, 495 ( 393 P.2d 405, 408): "`We believe that the requirement of the Douglas Case [ 372 U.S. 353] is met * * * when, as in this case, counsel is appointed to represent the defendant on appeal, thoroughly studies the record, consults with the defendant and trial counsel, and conscientiously concludes that there are no meritorious grounds of appeal.
( People v. Hyde (1958) 51 Cal.2d 152, 154 [ 331 P.2d 42].) The discord between the absolute right of the indigent defendant to the appointment of counsel and the duty of such counsel not to pursue a frivolous appeal was initially resolved in California in In re Nash (1964) 61 Cal.2d 491 [ 39 Cal.Rptr. 205, 393 P.2d 405], which held appointed counsel could, by letter, inform the court ". . . he could find no meritorious grounds of appeal and refuse to file a brief or argue the case orally." ( Id. at p. 495.) If, following receipt of such advice, the court itself reviewed the record and determined counsel's advice was correct, the requirements announced in Douglas would be satisfied.
Until 1967, appointed counsel was required to file only a "no merit" letter when no meritorious issues were found. ( In re Nash (1964) 61 Cal.2d 491 [ 39 Cal.Rptr. 205, 393 P.2d 405].) In Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396], the United States Supreme Court held such a practice unconstitutional.