People v. Henderson CA1/4

Filed 5/30/14 P. v. Henderson CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A140522 v. HERBERT LEE HENDERSON, (Contra Costa County Super. Ct. No. 05-971714-1) Defendant and Appellant.

Appellant Herbert Lee Henderson appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act) (Pen. Code, § 1170.126). Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. Although appellant personally requested an extension of time within which to file a supplemental brief, which we granted, that time has now expired and no brief has been filed. Preliminarily we must address two procedural issues this appeal presents. Firstly, since enactment of the Reform Act, courts have been struggling with the question of whether orders denying relief under the Reform Act are appealable. Several conflicting

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decisions from the intermediate appellate courts of this state that decided this issue are currently on review before our Supreme Court. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, 311, review granted July 31, 2013, S211708 [concluding that denial of a petition under the Reform Act is nonappealable because the Act confers no substantial rights on eligibility issue, which is “based on express objective criteria”]; People v. Hurtado (2013) 216 Cal.App.4th 941, 945, review granted July 31, 2013, S212017 [concluding that a denial of a petition under the Reform Act is appealable because the Act confers a “substantial right”]; People v. Leggett (2013) 219 Cal.App.4th 846, review granted Dec. 18, 2013, S214264 [concluding that a trial court’s order regarding an inmate’s eligibility to seek relief under the Reform Act does not affect “substantial rights,” and thus is nonappealable].) One of these cases currently on review with the Supreme Court was decided by this division last October (People v. Wortham (2013) 220 Cal.App.4th 1018, review granted Jan. 15, 2014, S214844 (Wortham)), in which we held that denial orders under the Reform Act are appealable. Unless and until our Supreme Court decides otherwise, we will continue to follow the rationale in Wortham and entertain such appeals. Secondly, if an order denying relief under the Reform Act is generally appealable, can an appellant seek independent review of that proceeding by this court under Wende, supra, 25 Cal.3d 436, or Anders v. California (1967) 386 U.S. 738? At least one court very recently has answered this subsidiary question “no.” (People v. Anderson (2013) 225 Cal.App.4th 1368.) However, out of an abundance of caution, particularly in light of the fact that the time to petition for Supreme Court review in Anderson has not expired, we will review independently the proceeding below in this case.1 Accordingly, we have reviewed the whole record pursuant to Wende, supra, 25 Cal.3d 436. Having done so, we conclude that there is no arguable issue on appeal.