People v. Bell CA1/1

Filed 11/25/20 P. v. Bell CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, A158213

v. (Contra Costa County WALTER LEE BELL, Super. Ct. No. 5-110611-1) Defendant and Appellant.

Walter Lee Bell appeals from an order summarily denying his petition for resentencing pursuant to Penal Code1 section 1170.95. (See § 1237, subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 597.) Bell’s appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441–442 (Wende). Although Bell’s appellate counsel advised Bell of his right to file a supplemental brief—bringing to this court’s attention any issue he believed deserved review—Bell has not done so. There is currently a split among appellate courts regarding whether an appeal from the summary denial of a section 1170.95 petition should be subject to Wende review. (See People v. Flores (2020) 54 Cal.App.5th 266, 269 [“when an appointed counsel files a Wende brief in an appeal from a summary

All statutory references are to the Penal Code unless otherwise 1

specified. 1

denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice”]; People v. Cole (2020) 52 Cal.App.5th 1023, 1028– 1029, review granted Oct. 14, 2020, S264278 [dismissing as abandoned Wende appeal from the summary denial of a section 1170.95 petition; noting that the “court has the duty to address any issues raised by the defendant [in supplemental briefing] but otherwise may dismiss the appeal without conducting an independent review of the record”].) Assuming without deciding that Wende review is available in these proceedings, our independent review of the record has revealed no arguable issues. We therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND2 The Contra Costa County District Attorney filed an information in Contra Costa County Superior Court on May 9, 2011, charging Bell with the January 20, 2009 malice aforethought murder of Rylan Fuchs (§ 187, subd. (a).) The information included a special allegation that Bell intentionally and personally discharged a firearm, causing great bodily injury and death to Fuchs within the meaning of section 12022.53, subdivision (d). It also alleged that the murder had occurred during the commission of an attempted robbery within the meaning of section 190.2, subdivision (a)(17). At the subsequent jury trial, “[t]he prosecution’s theory of the case was that Bell, Aaron Marks, and others planned to rob Rylan Fuchs, a marijuana