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COURT: California Sixth District Court of Appeal APPOINTED: Jan. 6, 1993, by Gov. Pete Wilson DATE OF BIRTH: Nov. 2, 1946 LAW SCHOOL: McGeorge School of Law, University of the Pacific PRIOR JUDICIAL EXPERIENCE: Elected to Monterey Superior Court June 1984, defeating incumbent judge Maurice Jourdane. Don’t expect an ambush from Justice William Wunderlich. Instead, the Sixth District Court of Appeals associate justice leaves the grenade launching to colleagues Patricia Bamattre-Manoukian and Franklin Elia. But attorneys say the former Monterey prosecutor can ask a few revealing — and calculated — questions. The Wilson appointee seems to fit comfortably into the fold of the conservative Sixth District, but attorneys say he’s known to write an occasional reversal or inject some novel ideas into opinions. Criminal appellate practitioners say he’s quiet and seems to lack zeal when it comes to criminal matters, but their civil counterparts say they see him as more animated. “He’s a very hard-working court of appeal justice,” said Monterey appellate attorney Joel Franklin. “He has an academic interest in the law. His opinions have some original thought.” “He can kind of get lost in the background because he is quiet but he certainly carried his own weight in that court,” said criminal appellate attorney Marylou Hillberg. Hillberg stumbled out of San Jose’s Sixth District Court last winter after a bruising round of questioning in a Three Strikes drug conviction. Hillberg’s client, Tommy Lee Fryman, was facing life in prison for possessing 1.2 grams of cocaine. Fryman entered a plea in October 1999 — before the passage of Proposition 36, which provides more lenient sentencing for drug offenders — but then appealed. “The Sixth District has been the most conservative of the districts,” Hillberg said. “I’d gone and argued the hell out of it. [Wunderlich] did not open his mouth the whole time. I spent the whole time arguing with Justice Manoukian.” But three months later, Wunderlich, with a concurring vote from a visiting Monterey judge, authored the opinion reversing Fryman’s 25-years-to-life sentence. Wunderlich wrote that Fryman could qualify for Prop 36 sentencing since at the time of passage, the judgment in his case wasn’t yet final. Manoukian dissented. “I was thrilled to get that opinion,” Hillberg said. “Justice Wunderich was courageous in deciding it on a constitutional basis.” But criminal appellate attorneys say a reversal like Freeman’s is rare from Wunderlich. “Clearly, you would not classify him as the most conservative justice on that court by any means. He does at times take a stand and Fryman is an example,” said an appellate attorney. “But you don’t necessarily get the feeling the court is happy to hear oral arguments. There are a number of cases where we would hope to see judges more interested in the issues.” Wunderlich explained, “We are almost never breaking ice when we are hearing a criminal case. It’s very, very rare that we are the first writing about an issue.” In 1996, Wunderlich drew the ire of the National Rifle Association and Attorney General Dan Lungren when he upheld James Allen Dingman’s conviction, under the Roberti-Roos Assault Weapons Control Act, for possessing an SKS rifle and detachable magazine. Wunderlich rejected Dingman’s claims that the statute was vague. “Any ordinary person of reasonable intelligence would understand the Chinese-made SKS rifle was prohibited under law,” he wrote. Attorneys say Wunderlich seems more easily engaged in civil appeals. “I find oral arguments to be very significant. Justice Wunderlich is prepared and asks some provocative questions,” Franklin said. “Justice Wunderlich pays attention to appealability and procedural defaults. If you don’t preserve the case properly, Wunderlich is not likely to miss that on appeal — and that could cost you the appeal.” The justice acknowledged that procedural issues do come up. “I won’t deny that I have asked questions about procedures,” Wunderlich said. “The answer can go right to the heart of the issue.” Attorneys say that when Wunderlich does speak, it’s usually a good indicator of how he’s leaning. “He’ll give you an opportunity to reply,” said Palo Alto appellate specialist Gerald Marer. “He’s a workmanlike judge. He parses the facts and the law, producing a short, but in his view, a complete opinion.” While Wunderlich keeps a low profile on the bench, he spoke up as president of the California Judges Association. Wunderlich was the first appellate justice elected to the position in 1999. During his tenure, judges made their case for a 8.5 percent pay raise. “We sure had some tough sledding in the legislature after term limits,” Wunderlich said. He also spoke out when First District Court of Appeal Justice J. Anthony Kline was investigated by the Commission on Judicial Performance. Kline was accused of violating two ethical canons when he wrote in a dissent that he could not in good conscience apply a controversial California Supreme Court precedent permitting litigants to obtain stipulated reversals of judgments. The CJA retained counsel and filed an amicus brief in the case. “It was our amicus opinion that floated the case,” Wunderlich said. The CJA presidency wasn’t Wunderlich’s first brush with politics. He was elected to the Monterey trial bench in 1984 after challenging sitting judge Maurice Jourdane. Wunderlich, riding a wave of public acclaim for winning the death penalty against the murderer of a Monterey grocer, won by 1 percent. You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/profiles.html�or by calling 415-749-5523.

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