Unreported / Non-Citable
Background
In 2008, Derrick Jamal Wilson pleaded no contest, pursuant to People v. West, to two counts of second degree burglary, one count of sale of a controlled substance, and one count of receiving stolen property. The trial court sentenced him to an aggregate term of three years in prison. In 2022, the convictions were set aside pursuant to Penal Code section 1203.4.
In November 2025, Wilson petitioned under section 851.91 to seal the arrest records relating to his convictions. The People opposed the petition, arguing that the relief awarded under section 1203.4 was in error and in any event did not vacate his convictions within the meaning of section 851.91. In support, the People cited People v. E.B., which held that a change of plea and dismissal of the accusatory pleading under section 1203.4 is not the equivalent of vacation of a conviction under section 851.91. The trial court agreed with the People and denied Wilson’s petition. Wilson timely appealed from the trial court’s denial of his petition.
The Court’s Holding
Wilson’s appellate counsel filed an opening brief under People v. Wende, raising no issues and asking the court to conduct an independent review of the record. Appellate counsel advised Wilson of the nature of the brief and informed him of his right to file a supplemental brief, but Wilson did not file such a brief. Under Wende, Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous. This procedure applies to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment.
Because this was not Wilson’s first appeal as of right, the court held that the procedures under Wende do not apply. The court noted that in People v. Delgadillo, the Supreme Court held that Wende independent review is not required in an appeal from a postjudgment order denying a petition for resentencing under section 1172.6, and that in such cases Courts of Appeal may undertake an independent review in their discretion. Although Delgadillo addressed only the specific context of a postjudgment order denying relief under section 1172.6, the court found that its principles may apply in the present matter where, among other things, Wilson was informed that his counsel had submitted a brief invoking Wende. Given that circumstance and in the interest of judicial economy, the court exercised its discretion to conduct an independent review of the record. Having done so, the court found no arguable error and affirmed the postjudgment order denying Wilson’s section 851.91 petition.
Key Takeaways
- The Third District Court of Appeal affirmed the trial court’s postjudgment order denying Derrick Jamal Wilson’s petition under Penal Code section 851.91 to seal his arrest records.
- Because this was not Wilson’s first appeal as of right, the mandatory independent review procedures under People v. Wende did not apply.
- Relying on the principles in People v. Delgadillo, the court exercised its discretion to conduct an independent review of the record in the interest of judicial economy.
- After independently reviewing the record, the court found no arguable error and affirmed the judgment.
- The trial court had denied the petition after agreeing with the People that relief under section 1203.4 did not vacate Wilson’s convictions within the meaning of section 851.91.
Why It Matters
This opinion illustrates how California Courts of Appeal may handle no-issue briefs in appeals that are not the first appeal as of right. Although the Wende procedure is constitutionally compelled only for the first appeal as of right, the court here followed the discretionary approach outlined in People v. Delgadillo, conducting an independent review of the record in the interest of judicial economy before concluding that no arguable error existed.
The case also reflects the application of People v. E.B.’s holding that a change of plea and dismissal under section 1203.4 is not the equivalent of vacation of a conviction under section 851.91, a distinction that can determine whether a defendant is eligible to seal arrest records.