Filed 7/28/22 P. v. Brooks CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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This case comes to us following defendant Joseph Ray Brooks’s appeal from the trial court’s postjudgment order summarily denying his Penal Code section 1170.126 petition for resentencing.[1] Defendant’s appellate counsel has requested that we review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Given the procedural stance of this case, defendant is not entitled to a Wende review; further, his appeal has been abandoned by his failure to raise any claim of error. Accordingly, we will dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2014, a jury found defendant guilty of first degree residential burglary (§ 459) and found true the allegation that a person not involved in the crime was present during the burglary, making it a violent felony (§ 667.5, subd. (c)(21)). Defendant admitted he had suffered two prior strikes (§§ 667.5, subds. (b)-(i), 1170.12, subds. (a)-(d)), which the trial court declined to strike, and was sentenced to an indeterminate term of 25 years to life plus an aggregate 10-year determinate term. We upheld this judgment in an unpublished opinion issued in 2015. (People v. Brooks (Dec. 29, 2015; C078875) [nonpub. opn.].)

On December 23, 2021, defendant filed a propria persona petition for resentencing/recall of sentence citing section 1170.126. On February 18, 2022, the trial court issued a written order summarily denying defendant’s petition. The order highlighted that defendant had been found guilty of first degree burglary, that the jury had found true the allegation that a person not involved in the crime was present during the burglary, and that defendant had admitted two prior strike allegations against him. Accordingly, because defendant’s third strike offense was disqualifying (as a serious and/or violent felony [see § 1170.126, subd. (b)]), defendant was not entitled to relief.

Defendant timely appealed. The case was fully briefed on June 22, 2022, and assigned to this panel several days later.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests that this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed, but he has not done so.

Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.) Our Supreme Court is currently considering whether, and to what extent, this limited right to review extends to appeals from postjudgment orders such as this one. (See People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.)

In the interim, we follow the numerous intermediate courts that have agreed a defendant appealing from an order denying postconviction relief is not entitled to our independent review of the record pursuant to Wende. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039, review granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, 112-113, review granted May 12, 2021, S267870; People v. Freeman, supra, 61 Cal.App.5th at p. 133; People v. Serrano, supra, 211 Cal.App.4th at p. 503.)

Because defendant has neither raised any claims of error through counsel nor individually raised any claims of error, we deem the appeal abandoned and dismiss the appeal. (See People v. Cole, supra, 52 Cal.App.5th at p. 1039; People v. Figueras, supra, 61 Cal.App.5th at pp. 112-113.)

DISPOSITION

The appeal is dismissed.

/s/

Duarte, Acting P. J.

We concur:

/s/

Hoch, J.

/s/

Earl, J.

[1] Further undesignated statutory references are to the Penal Code.