People v. Williams CA3

Filed 9/22/21 P. v. Williams CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C092913

Plaintiff and Respondent, (Super. Ct. No. 94F04063)

v.

BRIAN WILLIAMS,

Defendant and Appellant.

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436.

FACTS AND HISTORY OF THE PROCEEDINGS Most of the background facts are taken from People v. Williams (July 14, 1997, C021467) [nonpub. opn.], the opinion from the direct appeal for defendant Brian Williams’s convictions. In 1994, defendant shot and killed the victim, his girlfriend’s estranged husband, after an argument. A jury found defendant guilty of second degree murder (Pen. Code, §§ 187, 189; statutory section citations that follow are to the Penal Code) and found true a personal firearm use enhancement (former § 12022.5, subd. (a)(1)). Defendant pleaded

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no contest to unlawful possession of a firearm (former § 12021, subd. (a)(1)) and admitted a prior strike conviction (§ 667, subds. (b) - (i)). We affirmed defendant’s convictions on appeal but remanded the case for the court to exercise its discretion as to a sentencing issue. In 2019, defendant filed a section 1170.95 petition for resentencing under recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court received briefing from the parties. The court then issued a written order denying the petition, saying defendant was ineligible for relief because “[h]e was the actual killer, and no felony- murder instruction was given [at trial], nor any instruction on the natural and probable consequences doctrine that applies to accomplice liability.” Defendant appeals. Appointed counsel for defendant asked this court to independently review the record pursuant to Wende. Defendant filed a 34-page supplemental brief and attached five exhibits.

DISCUSSION Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L.Ed.2d 539, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.) California’s “Wende procedure” does not apply to appeals such as this one which is from a denial of post-conviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th 266; People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.) This is so because this is not the defendant’s first appeal as of right. (See,