People v. Figueras

Filed 2/22/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C089228

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR- CNV-1998-0016801, v. SP063761A)

LUIS JUAN FIGUERAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, Seth R. Hoyt, Jr., Judge. Dismissed.

Laurel Thorpe and Deanna Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Robert C. Nash and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

1

Defendant Luis Juan Figueras appeals from an order denying his postjudgment petition to vacate his murder conviction pursuant to Penal Code section 1170.95. 1 Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal, in accordance with People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. We then dismissed the appeal as abandoned. Counsel filed a petition for rehearing, which we granted. After supplemental briefing, we again conclude the appeal has been abandoned, and accordingly again dismiss the appeal. On rehearing, defendant contends the Wende procedure applies or should apply to an appeal from an order denying a postconviction petition seeking relief pursuant to section 1170.95. We disagree. Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition pursuant to section 1170.95 remains an open question. Our Supreme Court has not spoken. However, we are persuaded by the recent opinion of the Second District Court of Appeal, in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278 (Cole), that the Wende/Anders procedures do not apply. The court in Cole explained: “Wende set forth the procedures to be followed during the defendant’s ‘first appeal of right’—that is, during the direct appeal of his judgment of conviction and sentence. [Citation.] At this stage in criminal proceedings, a