Filed 3/30/22 In re A.T. CA4/2

See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Sean Lafferty, Judge. Affirmed.

Robert LS Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Defendant and appellant A.T. (minor) appeals the Riverside County Juvenile Court’s denial of his petition made pursuant to section 1170.95 of the Penal Code.[1] We affirm.

BACKGROUND

1. The circumstances resulting in a sustained Welfare and Institutions Code 602 petition allegation of first degree murder

In July 2016, minor, who was just two months shy of his 18th birthday, made plans to steal marijuana from the victim. He enlisted the participation of Cesar E., who agreed to accompany minor as a backup. Minor drove Cesar’s XL7 Suzuki (SUV) to the victim’s home, with Cesar in the front passenger seat. When the victim passed a bag of marijuana through the passenger side window, reaching over Cesar to hand the merchandise directly to minor, minor grabbed the bag out of the victim’s hand and hit the gas. The acceleration caused the victim to fall from the SUV, which then ran him over, causing his death.

Minor was detained and the district attorney filed a petition pursuant to section 602 of the Welfare and Institutions Code, alleging minor committed first degree murder in violation of section 187. Minor admitted the allegation. The juvenile court declared him a ward and sentenced him to a term of 25 years to life.

2. Minor’s petition for resentencing

In 2018, the Legislature eliminated natural and probable consequences liability for murder and narrowed the scope of the felony-murder rule by passage of Senate Bill No. 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) The bill substantively amended sections 188 and 189 to ensure liability for murder would be limited to persons who (i) are the actual killer, (ii) are not the actual killer but, with the intent to kill, the person aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (iii) are a major participant in the underlying felony and acted with reckless indifference to human life as described in section 190.2, subdivision (d). (People v. Lewis (2021) 11 Cal.5th 952, 957.)

On December 30, 2020, minor filed a form petition pursuant to section 1170.95 seeking resentencing under the new laws. The juvenile court issued an order to show cause. Following a contested section 1170.95, subdivision (d) evidentiary hearing on the merits of the petition, the court found minor was the actual killer of the victim.

Minor filed a notice of this appeal on October 20, 2021.

DISCUSSION

Minor’s appointed appellate counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth statements of the case and facts. Counsel asks this court to review the record for error and suggests a potentially arguable issue: whether the record contains sufficient evidence that minor was the actual killer in that he proximately caused the victim’s death.

Counsel posits that we are required to undertake a review of the entire record. When, in an indigent defendant’s first appeal of right, appointed appellate counsel files an opening brief that does not present an arguable issue, it is well settled that the appellate court must offer the defendant an opportunity to submit a personal supplemental brief and to review the entire record whether or not the defendant files a brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)

We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review pending October 14, 2020, S264278, held the constitutional bases for Wende procedures apply only to a defendant’s direct appeal from the judgment. We also recognize that we have discretion to exercise our inherent supervisory powers to apply Wende procedures to appeals from denials of postconviction relief in which appointed appellate counsel files a no-issues brief. Accordingly, appellate courts have traditionally afforded defendants an opportunity to personally file a supplemental brief when appointed counsel has submitted a no-issues brief in a postjudgment appeal. (People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review pending Mar. 17, 2021, S266853.)

Appellate courts are divided, however, with respect to whether we should exercise our discretion to conduct an independent review of the record if a defendant does not respond to an invitation to file a supplemental brief. (E.g., Cole, supra, 52 Cal.App.5th at pp. 1038-1039 [Second Dist., Div. Two, no independent review of record when no supplemental brief filed, dismissed the appeal as abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273-274 [Fourth Dist., Div. Three, conducted independent review of record even though defendant did not file a supplemental brief].)

Opinions issued by this court reflect the division in approach to the situation in which defendant does not file a supplemental brief. In Scott, one panel concluded there is no reason to conduct an independent review of the record or to issue an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58 Cal.App.5th at pp. 1131-1132 [but see dis. opn. of Miller, J.]; accord People v. Figueras (2021) 61 Cal.App.5th 108.)

In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court concluded the interests of justice call for independent review of the record in postjudgment no-issue appeals even if the defendant has not filed a supplemental brief. (Id. at p. 599 [but see dis. opn. of Menetrez, J.]; accord People v. Flores, supra, 54 Cal.App.5th at p. 269 [when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, reviewing court is not required to independently review the entire record, but the court can and should do so in the interests of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the discretion to review the record in the interests of justice].)

We respectfully disagree with Scott and find the procedure in Gallo provides indigent defendants an additional layer of due process while consuming comparatively little in judicial resources.

Here, we offered minor an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently reviewed the record for potential error and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

CODRINGTON

J.

[People v. A.T., E077876]

Slough, J., Dissenting.

I continue to agree with this court’s holding in People v. Scott (2020) 58 Cal.App.5th 1127 that we should dismiss as abandoned Anders/Wende^[2] appeals of postconviction orders denying Penal Code section 1170.95 resentencing petitions when we can “readily confirm” the defendant is ineligible for relief—which is the case here. (Scott, at p. 1131, review granted Mar. 17, 2021, S266853.) A.T. pled guilty to first degree murder, and, as counsel’s Wende brief notes, “[t]he parties stipulated and the trial court agreed that liability rested on the felony murder rule.” After a three-day evidentiary hearing to determine whether he could still be guilty of felony murder under the recent amendment to Penal Code section 189, the trial court found the answer to be yes, beyond a reasonable doubt, because A.T. was the actual killer.

I see no reason to issue an opinion in this case. Of the majority’s six-page opinion, only half of one sentence discusses the merits of the appeal (“we have independently reviewed the record for potential error and find no arguable issues”)—the rest is just a summary of the facts and the case law on how to decide postconviction appeals where neither counsel nor appellant have identified any issues for review. (Maj. opn. ante, at p. 6.) We could easily have included a more substantive analysis in a brief dismissal order.

More important is the time spent reviewing the record looking for potential issues. I find it difficult to believe the majority’s claim that their approach “consum[ed] comparatively little in judicial resources.” (Maj. opn. ante, at p. 5.) If they in fact conducted an independent review of the record—which is over 1,200 pages and includes a hearing transcript itself over 300 pages—they invested at minimum several hours of work. The court and the public would have been served better if they had spent that time on other pending cases.

I would therefore dismiss this appeal by an order that explains our decision.

SLOUGH

J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.