Filed 8/17/22 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Anthony Hall asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will dismiss the appeal.

I. BACKGROUND

In 1998, the trial court sentenced defendant to an indeterminate term of 25 years to life under California’s “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)[1]

“Proposition 36 was passed by the electorate on November 6, 2012, and . . . went into effect the following day. [Citations.] [It] prospectively reduced the punishment previously proscribed for certain defendants convicted of a third strike offense. Additionally, . . . it created a ‘retroactive relief procedure’ for certain inmates serving an indeterminate, third strike sentence under the former Three Strikes law. [Citations.] [¶] The . . . resentencing procedure allows an inmate to file ‘a petition for a recall of sentence’ within two years of Proposition 36’s effective date, ‘or at a later date upon a showing of good cause.’ (§ 1170.126, subd. (b).)” (People v. Valencia (2021) 64 Cal.App.5th 641, 647.)

In October 2021, defendant filed a petition for recall of sentence and resentencing pursuant to section 1170.126.

In November 2021, the trial court denied the petition, ruling (a) it was untimely, “having been filed more than two years after the effective date of . . . section 1170.126,” and (b) “[n]othing [in the] petition provide[d] good cause for the delay.”

Defendant timely appealed.

II. DISCUSSION

We appointed counsel for defendant, who filed an opening brief that sets forth the facts and procedural history of the case and requests this court to 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 his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and we received no communication from defendant.

Because defendant appeals from an order denying postconviction relief, he 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 [agreeing with Cole]; People v. Serrano (2012) 211 Cal.App.4th 496, 503.) As counsel informed him, however, defendant was entitled to file a supplemental brief. (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 6; Cole, supra, at p. 1039; Serrano, supra, at p. 503.) When, as here, a defendant does not raise any claims or request any supplemental review, we may deem the appeal to be abandoned and dismiss the appeal. (See Cole, supra, at p. 1039; Serrano, supra, at pp. 503-504.)

Accordingly, we dismiss defendant’s appeal.

III. DISPOSITION

The appeal is dismissed.

/S/

RENNER, J.

I concur:

/S/

ROBIE, Acting P. J.

MAURO, J., Dissenting.

As the majority opinion correctly indicates, the California Supreme Court is currently considering whether a defendant is entitled to People v. Wende (1979) 25 Cal.3d 436 review of an order denying postconviction relief. (See, e.g., People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305; People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.).) Until the Supreme Court has had an opportunity to address the issue, I would adhere to Wende in the present case.

/S/

_________________________

MAURO, J.

[1] Undesignated statutory references are to the Penal Code.