Filed 4/19/21 P. v. Miller CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court for Los Angeles County, Richard M. Goul, Judge. Appeal dismissed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant Anthony Miller appeals from the denial of his petition for resentencing under Penal Code[1] section 1170.95. Defendant had been convicted of second degree murder (§ 187, subd. (a)), and an allegation under section 12022, subdivision (b) that he personally used a deadly and dangerous weapon (a screwdriver) in the commission of the crime was found to be true. At the hearing on defendant’s section 1170.95 petition, defense counsel conceded that defendant was the actual killer.

Defendant’s appointed counsel on appeal filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), stating that she found no arguable issues and asking that we independently review the record. On January 8, 2021, we sent a letter to defendant, informing him that his counsel filed an appellant’s opening brief that raises no issues and inviting him to submit a supplemental brief or letter within 30 days raising any contentions or arguments he would like the court to consider. We have not received any supplemental brief or letter from defendant.

As explained by our colleagues in Division Two of this Appellate District, the procedures set forth in Wende, are not constitutionally required for appeals other than a criminal defendant’s first appeal of right. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted, Oct. 14, 2020, S264278 (Cole).) We agree with the analysis in Cole and adopt the procedures it prescribed for appeals from the denial of postconviction relief. Under those procedures, if the defendant’s counsel files a brief indicating there are no reasonably arguable issues to present to the court, and the defendant does not exercise his or her right (after notice) to file a supplemental brief, we presume the order appealed from is correct and may dismiss the appeal as abandoned. (Id. at pp. 1038-1040.) Accordingly, we will dismiss this appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY J.

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