Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Mary E Fuller, David Cohn and Jon Ferguson, Judges. Petition denied. Super. Ct. No. CRA4341
Valerie Ross, in pro. per., for Petitioner.
No appearance for respondent.
Covington & Crow and Tanya D.S. Hehir for Real Party in Interest.
OPINION
MILLER Acting P. J.
In this matter, we have determined that in 2007 the Appellate Division of the San Bernardino Superior Court possessed the authority to impose monetary sanctions for the filing of a frivolous appeal and, moreover, did not abuse its discretion in finding that the instant appeal was frivolous. Accordingly, we discharge the alternative writ of mandate and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Valerie Ross was appellate counsel for Allen Abraham and his wife, Teresa. The couple was charged with misdemeanor violations of the Hesperia Municipal Code relating to the condition of their real property. The charges were reduced to infractions and the Abrahams were convicted in separate trials.
Teresa Abraham was the first to appeal to the appellate division of the superior court. Her conviction was affirmed in an opinion filed May 30, 2007.
Allen Abraham then appealed his conviction and was also represented by petitioner. Petitioner concedes that the brief she filed on behalf of Allen was essentially a cut-and-paste job of the brief she had earlier filed on behalf of Teresa, and “raised only issues which had been rejected by the appellate division in the first appeal.”
The appellate division issued a notice on July 12, 2007, advising petitioner that it was considering imposing sanctions on her for filing a frivolous appeal. On October 3, 2007, it affirmed Allen’s conviction. In the opinion, the court noted that the opinion in Teresa’s case had already resolved the issues in Allen’s case and failed to seek certification to the Court of Appeal. Petitioner then filed the brief in Allen’s case in which she asserted the same claims that the court had rejected in Teresa’s case. The court concluded that Allen’s appeal was frivolous and that the City of Hesperia had suffered prejudice in having to defend against the appeal. Petitioner was ordered to pay $500 sanctions to the clerk of the superior court and to reimburse the City of Hesperia for costs incurred in defending the appeal, including reasonable attorney fees.
Petitioner sought a writ of mandate in this court to set aside the imposition of sanctions, costs, and attorney fees. We summarily denied the petition. However, the California Supreme Court later granted a petition for review and transferred the matter back to this court with directions to issue an alternative writ of mandate. The Supreme Court has directed us to consider the following questions: (1) Whether a court has authority to impose monetary sanctions for the filing of a frivolous appeal in a criminal case; and (2) if so, whether the appeal in question was frivolous as to warrant the imposition of monetary sanctions. We answer both questions in the affirmative for the reasons we discuss below.
The Supreme Court’s action is not necessarily an expression of its disagreement with our earlier ruling, but that it may believe that an opinion is warranted under the circumstances of this case. Thus, we are in no way precluded from reaching the same result. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389, fn. 4; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 13:125.1, p. 13-30.)
DISCUSSION
At the time the appellate division imposed sanctions on petitioner for filing a frivolous appeal, California Rules of Court, rule 8.276(e)(1)(A) provided that a Court of Appeal could impose sanctions, including the award or denial of costs, on a party or any attorney for taking a frivolous appeal or appealing solely to cause delay. Former rule 8.366 provided that rule 8.276 applied in criminal cases as well.
All further references to rules are to the California Rules of Court unless otherwise stated.
Petitioner contends, however, that the rules governing procedures for criminal appeals in the appellate division of the superior court contained no provisions comparable to rules 8.276(e)(1)(A) and 8.366. Thus, she contends that the appellate division lacked jurisdiction to impose sanctions for filing a frivolous criminal appeal. While we were aware that the governing appellate division criminal appeal contained no express provision on the subject, the authority of an appellate court, including the appellate division, is not so narrowly derived.
Indeed, we note that an amendment to rule 8.366, effective January 1, 2008, now specifically excludes the sanctions provisions of rule 8.276(a)(1) from application in criminal appeals. Because the appellate division issued its order in 2007, we do not decide the effect, if any, that this subsequent amendment would have on the court’s ability to impose sanctions.
Thus, the Supreme Court stated in People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 739, footnote 16 (Laff), that “an appellate court properly may impose sanctions in a criminal appeal, including sums necessary to reimburse the court for the cost of resources devoted to a frivolous appeal.” (Italics added.)
The Supreme Court in Laff was pointing out a limited exception to the general policy that the cost of court operations in criminal cases must be borne by the courts from public funds. Although this pronouncement is properly characterized as dicta, it nevertheless appeared to be an acknowledgement of acceptable practice.
Thus, the Supreme Court referred to Gottlieb v. Superior Court (1991) 232 Cal.App.3d 804, 813-815, where sanctions had been imposed against a criminal defendant’s counsel for filing a second, substantively identical mandate petition after summary denial of the first. Gottlieb cited Code of Civil Procedure sections 1109 and 907, as well as then rule 26(a) as a basis for sanctions. (Gottlieb, at p. 815.)
Statutory references are to the Code of Civil Procedure unless otherwise noted.
Similarly, the appellate court in Jones v. Superior Court (1994) 26 Cal.App.4th 92, 96-97, recognized that sanctions may be imposed against parties or counsel pursuant to section 907 for filing a frivolous appeal and that sanctions could also be properly be imposed in a criminal writ proceeding under sections 907 and 1109.
In re White (2004) 121 Cal.App.4th 1453, imposed sanctions on an attorney for operating a “writ mill” and filing frivolous petitions for habeas corpus on behalf of prison inmates. As its authority for imposing sanctions, the court of appeal referred to former rule 27(e), the predecessor to rule 8.276(e), which provided for imposition of sanctions for taking a frivolous appeal. The court noted that this rule had been derived without substantive change from former rule 26(e), and “now expressly recognizes the court’s authority to impose sanctions on its own motion.” (White, at p. 1479.) This rule was applicable to habeas corpus proceedings by virtue of former rule 53 as the appellate court further noted. (Ibid.) The White court explained that in contrast to Jones “[a]uthority to impose sanctions in habeas corpus proceedings does not derive from Code of Civil Procedure section 907, which extends, pursuant to Code of Civil Procedure section 1109, only to petitions for writs of mandate, prohibition, or review.” (White, at p. 1479, fn. 20.)
Therefore, despite the lack of an express rule of court governing appellate divisions, case authority as it existed in 2007, as summarized by the Supreme Court’s pronouncement in Laff, acknowledged an appellate court’s power, derived from statute, to sanction for frivolous appeals in criminal cases. This authority is not denied to the superior court appellate divisions, which function under the California Constitution as reviewing courts in cases within their jurisdiction. (Cal. Const., art. VI, § 11, subd. b.)
In its transfer order, the Supreme Court has also referred us to the opinion in People v. Olson (1989) 216 Cal.App.3d 601, 603-604. The Olson court expressed itself powerless to do anything in the face of a frivolous appeal in a criminal conviction following a guilty plea. It does not appear that the possibility of sanctions was ever raised, and thus we are unable derive significant meaning from the court’s conclusion.
Having concluded that the appellate court did have the jurisdiction to order sanctions, we must now determine whether the appeal filed by petitioner was frivolous. We conclude that the appellate division reasonably concluded that it was.
The California Supreme Court held that an appeal is frivolous “only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Here, the appellate division noted that petitioner had previously represented Allen’s wife in her unsuccessful appeal, raising three issues that were all rejected in that court’s May 30, 2007, opinion. Petitioner filed her opening brief in Allen’s appeal on June 4, 2007, repeating verbatim two of these three rejected arguments. She raised no new arguments, nor did she offer different law, facts, or reasoning to suggest that the appellate division should reconsider the issues that had already been rejected. Later, when asked the reason for repeating these arguments, she explained that she planned to seek certification of Teresa’s appeal to the Court of Appeal. However, as the appellate division pointed out, she never sought certification or other steps to set aside that decision. Petitioner could not have reasonably believed that Allen’s appeal had any chance of success. There is ample authority in which an appeal has been found frivolous if it involves claims previously rejected by the same court. (City of Bell Gardens v. County of Los Angeles (1991) 231 Cal.App.3d 1563; Hummel v. First National Bank (1987) 191 Cal.App.3d 489; see also Gottlieb v. Superior Court, supra, 232 Cal.App.3d 804.)
We “are mindful that criminal defense attorneys are charged with the duty of asserting, on behalf of their clients, all theories having possible merit. But this duty does not validate or excuse petitions for extraordinary writ review that are patently frivolous, ignore clearly controlling law, and are filed at such time and in such manner as to require us to conclude that the petition was filed with the intent to delay and harass the courts and the prosecution.” (Gottlieb v. Superior Court, supra, 232 Cal.App.3d at p. 814 .)
In arguing that Allen’s appeal was not frivolous, petitioner made the obvious point that courts sometimes are wrong. Resurrecting the same arguments that were previously raised and rejected in the same factual context simply delayed matters and caused an unnecessary expenditure of time and effort by the court and litigants—including the defendant himself.
In conclusion, we note that our review of appellate division decisions is limited. Thus, even if we believe that the appellate division was wrong, review by certiorari lies where the inferior tribunal has exceeded its jurisdiction. (Dvorin v. Appellate Dept. (1975) 15 Cal.3d 648, 651.) Review by mandate is even more restricted and will lie only where there was a denial of a fair hearing by the appellate division. (Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 904.) Here, we have found that the appellate department did have jurisdiction to impose sanctions and it did afford petitioner due process and a fair hearing. Moreover, it acted well within its discretion in sanctioning petitioner.
DISPOSITION
The alternative writ is discharged and the petition is denied.
We concur: HOLLENHORST J., McKINSTER J.