People v. Collins CA1/5

Filed 9/29/21 P. v. Collins CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A162366 v. MICHAEL ELLIS COLLINS, (Alameda County Defendant and Appellant. Super. Ct. No. 161265)

This is an appeal from a postconviction order denying the petition of defendant Michael Ellis Collins for a recall of sentence and resentencing under Penal Code1 section 1170.91, subdivision (b)2 (hereinafter, petition).

1 Unless otherwise stated, all statutory citations are to the Penal Code. Section 1170.91, subdivision (b)(1) provides: “A person currently 2

serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in his or her case, to request resentencing pursuant to subdivision (a) if the person meets both of the following conditions: “(A) The circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.

After defendant filed a timely notice of appeal and appellate counsel was appointed to represent him, counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (See People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he did not exercise this right. We dismiss this appeal without conducting a Wende review. As explained post, defendant has no right to this review process because this appeal is not his first appeal as of right. While we could as a matter of discretion review the record for reasonably arguable issues, we decline to do so given defendant’s failure to file a supplemental brief. FACTUAL AND PROCEDURAL BACKGROUND On March 25, 2010, defendant was convicted of first degree murder. Two enhancements, for knife use and a prior prison commitment, were also found true. Defendant was sentenced to 27 years to life. On appeal, we reversed defendant’s one-year sentence for the prior prison commitment enhancement but otherwise affirmed the judgment. (People v. Collins (Nov. 28, 2011, A128479) [nonpub. opn.].) On July 22, 2019, defendant filed this petition for recall of sentence and resentencing pursuant to section 1170.91, subdivision (b). By his petition, defendant sought relief based on his alleged suffering from posttraumatic stress syndrome, substance abuse, paranoid schizophrenia and bipolar