Opinion
Rehearing Denied Nov. 3, 1978.
Opinion on Hearing, see 157 Cal.Rptr.905, 599 P.2d 100.
Opinion on pages 365-368 omitted.
HEARING GRANTED
[149 Cal.Rptr. 354]Quin Denvir, State Public Defender, Gary S. Goodpaster, Chief Asst. State Public Defender, Laurance S. Smith, Gretchen T. Dumas, Deputy State Public Defenders, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Nelson P. Kempsky, Deputy Attys. Gen., for plaintiff and respondent.
PUGLIA, Presiding Justice.
This appeal follows defendant's jury conviction for robbery (two counts) and attempted robbery (one count). In his opening brief defendant raises but one issue, contending it was error to instruct in terms of former CALJIC No. 22 (rev.) because, he claims, the instruction dilutes the reasonable doubt standard.
The instruction as given reads: "The law does not require demonstration or that degree of proof which, excluding all possibility of error, produces absolute certainty, for such degree of proof is rarely possible. Moral Certainty is required, which is that degree of proof which produces conviction in an unprejudiced mind."
The Attorney General moves for summary affirmance of the appeal on the ground defendant's sole contention is manifestly without merit, having previously met with rejection in the published opinions of this court. (People v. Boothe (1977) 65 Cal.App.3d 685, 690, 135 Cal.Rptr. 570; People v. Fusaro (1971) 18 Cal.App.3d 877, 893, 96 Cal.Rptr. 368.)
Summary affirmance is a doctrine not unknown to the appellate courts of California. That device, or alternatively, a motion to dismiss the appeal, has been employed where "it can be determined from appellant's opening brief alone that the questions involved in the appeal are so unsubstantial as to require no further elucidation, .." (Brown v. Gow (1932) 126 Cal.App. 113, 115, 14 P.2d 322, 323.) Although we are cited to no case in which summary affirmance has been utilized in a criminal appeal, we do not doubt that its use there, in appropriate instances, would be salutary, leading to more rapid disposition of appeals and conservation of scarce judicial resources and litigant time and expense.
Defendant urges, however, that there is no authority for summary affirmance of a criminal case after the opening brief has been filed. He asserts that the adoption of such a procedure would violate his rights to argue orally the merits of his appeal and to a decision in writing with reasons stated.
There is no constitutional requirement that a state provide a system of appellate review. (See Griffin v. Illinois (1955) 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891.) However, such a system, if offered, must operate without discrimination. (Ibid.) California decisions uphold the power to dismiss criminal appeals as frivolous (People v. Sumner (1968) 262 Cal.App.2d 409, 414, 69 Cal.Rptr. 15; see Pen.Code, § 1248), recognizing that in such cases the obvious lack of merit does not justify the full panoply of appellate procedures. Such abbreviated handling is appropriate for criminal appeals which, although theoretically arguable, are as a practical matter hopeless. There is no constitutional impediment to such a procedure. Furthermore, it results in ridding "the docket of the court of some deadwood." (People v. Sumner, supra, 262 Cal.App.2d at p. 415, 69 Cal.Rptr. at p. 19.)
In People v. Browning (1978) 79 Cal.App.3d 320, 145 Cal.Rptr. 45, the court utilized the procedure of summary reversal, theretofore used only in civil cases, to reverse the judgment in a criminal appeal. [149 Cal.Rptr. 355] We hold that the inherent judicial power summarily to affirm extends also to criminal appeals. Its judicious use is an appropriate vehicle to save both parties and the court time and expense. The motion for summary affirmance is granted.
Judgment affirmed.
PARAS and EVANS, JJ., concur.