People v. Henry CA1/4

Filed 9/18/20 P. v. Henry 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A159396 v. (Solano County ROBERT HENRY, Super. Ct. No. FCR333123) Defendant and Appellant.

MEMORANDUM OPINION1 In October 2017, Robert Henry filed in the trial court a petition for a writ of habeas corpus. The petition states Henry is serving a sentence of life imprisonment without the possibility of parole, imposed after he was convicted in 1986 of first degree murder with special circumstances. The petition alleges that newly discovered evidence entitles Henry to habeas relief. (See Pen. Code, § 1473, subd. (b)(3).) After proceedings that included a multi-day evidentiary hearing, the trial court denied Henry’s habeas petition in December 2019. Henry filed a notice of appeal, initiating the present appeal (A159396). Henry’s appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d

We resolve this case by memorandum opinion because it raises no 1

substantial issue of fact or law. (California Standards of Judicial Administration, § 8.1.)

1

436 (Wende) asking this court to conduct an independent review of the record to determine if there are arguable appellate issues. In the Wende brief and counsel’s accompanying declaration, counsel states he has written to Henry, notifying him that he may file a supplemental brief within 30 days. Henry has not filed a supplemental brief. “[I]n noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal.”2 (Robinson v. Lewis (2020) 9 Cal.5th 883, 895.) Because the present appeal purports to challenge an order that is not appealable, we shall dismiss the appeal. DISPOSITION The appeal is dismissed. STREETER, Acting P. J. WE CONCUR: