People v. Cardenas CA4/3

Filed 8/28/20 P. v. Cardenas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058311

v. (Super. Ct. No. 07CF2192)

MARCOS JAVIER CARDENAS OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger. Affirmed. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

We appointed counsel to represent Marcos Javier Cardenas on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Cardenas’s behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised one issue: (1) did the trial court err by failing to appoint counsel to represent Cardenas pursuant to Penal Code section 1170.95, subdivision (c)? We gave Cardenas 30 days to file written argument on his own behalf. Thirty days have passed, and Cardenas has not filed any written argument. Upon our independent review of the record as required by Wende and at counsel’s suggestion pursuant to Anders, we identified an issue which, if resolved favorably to appellant, could result in reversal of the judgment. We invited the parties to file supplemental letter briefs addressing the question of whether under the facts of this case, did the court err by failing to appoint counsel after Cardenas requested the court appoint counsel for him during the resentencing process. We determined Cardenas was not entitled to counsel and found no other arguable issues on appeal. We affirm the judgment.