Filed 4/8/22 P. v. Hall 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Appointed counsel for defendant Timothy Hugh Hall asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) In this appeal from the denial of postconviction relief under Penal Code section 1473.7, defendant has not filed a supplemental brief.[1] We will dismiss the appeal as abandoned.

BACKGROUND

In 1999, a jury found defendant guilty of two counts of arson of an inhabited structure with use of an accelerant (§§ 451, subd. (b), 451.1, subd. (a)(5)), one count of filing a false insurance claim (§ 550, subd. (a)(1)), and one count of presenting a false writing to support that claim (§ 550, subd. (a)(5)).

In 2016, the Legislature passed Assembly Bill No. 813 (2015-2016 Reg. Sess.), which created section 1473.7. (Stats. 2016, ch. 739, § 1.) Section 1473.7 allows individuals to file a motion to vacate a conviction if, among other things, “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” (§ 1473.7, subd. (a)(2).)

In September 2018, defendant filed a motion under section 1473.7, subdivision (a)(2) to vacate his conviction on the basis of newly discovered evidence. The motion attached a new expert report regarding the fire investigations from defendant’s original trial, documents from the record of conviction, and witness/investigator statements. The district attorney filed opposition briefing. Both parties asked to admit various items of evidence, including documents related to the legislative history of Assembly Bill No. 813 and transcripts from defendant’s original trial. The parties filed additional briefing discussing the evidence and procedural matters.

At the hearing on the motion, on November 13, 2020, the trial court admitted the expert report and trial transcripts into evidence, and the parties stipulated to relevant dates related to defendant’s incarceration history. The parties submitted posthearing briefs.

On January 26, 2021, the trial court issued a written order denying the motion. In particular, the court compared defendant’s new expert report to the testimony offered at trial, and found that while the “report criticizes and seeks to diminish the methods employed and the conclusions drawn by the fire investigators in 1995, it does not establish that these conclusions were unerringly wrong, or not in compliance with accepted investigative principles at the time, or that later scientific research or technological advances in fire science completely undermine the earlier findings and prove them false.” Defendant timely appealed.

DISCUSSION

Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed since the opening brief was filed, and defendant has not filed a supplemental brief.

Whether the protections afforded by Wende and the United States Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a motion brought under section 1473.7 is an open question. Our Supreme Court has not yet spoken on the issue. In People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, the court ruled Wende/Anders procedures do not apply to an appeal from the denial of “postconviction relief,” and dismissed an appeal as abandoned because the defendant did not file a supplemental brief. (Cole, at pp. 1028, 1040.)

In People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870, a panel of this court agreed with Cole, and dismissed as abandoned an appeal where the defendant’s counsel requested Wende review from denial of a motion for postconviction relief,[2] and defendant did not file a supplemental brief. (Figueras, at pp. 110-111, 113; see also People v. Ramirez (2021) 60 Cal.App.5th 163, 165-166 [no right to Wende review from denial of § 1473.7 motion], review granted Mar. 30, 2021, S267182.)

Defendant has not filed a supplemental brief in this appeal from the denial of postconviction relief, and we will thus dismiss the appeal as abandoned.

DISPOSITION

The appeal is dismissed.

/s/

HOCH, Acting P. J.

We concur:

/s/

RENNER, J.

/s/

KRAUSE, J.

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

[2] Pursuant to section 1170.95.