People v. Sims CA3

Filed 2/22/21 P. v. Sims CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C089527

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 1996-0006158, SC060460A) v.

JAMES SIMS,

Defendant and Appellant.

Defendant James Sims 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

1 Further undesignated statutory references are to the Penal Code.

1

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 principally that 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 criminal defendant has a federal constitutional right to the effective assistance of counsel. [Citations.]” (Cole, supra, 52 Cal.App.5th at p. 1031, rev. granted.) But, “our Supreme Court has steadfastly held that ‘there is no constitutional right to the effective assistance of counsel’ in state postconviction proceedings [citations]. Consequently, the procedures set forth in Wende do not apply to appeals from the denial of postconviction relief, even if the defendant might have a right to the appointment of counsel. [Citations.]” (Id. at p. 1032.) Accordingly, we “reject the notion that the Constitution compels the adoption or extension of Wende procedures (or any subset of them) for appeals other than a criminal