People v. Willis CA1/3

Filed 9/29/21 P. v. Willis CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, A160625 v. KEVIN FITZGERALD WILLIS, (San Mateo County Super. Ct. No. SC020481A) Defendant and Appellant.

Defendant Kevin Fitzgerald Willis appeals an order denying his petition for resentencing pursuant to Penal Code section 1170.95.1 His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has been apprised of his right personally to file a supplemental brief, but he has not done so. Our high court is currently considering whether an appellate court must conduct an independent review of the record when counsel files a Wende brief after the trial court denies a petition for resentencing under section 1170.95. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.] rev. granted Feb. 17, 2021, S266305.) Recent published cases have held that we

1 All statutory references are to the Penal Code.

1

are not required to conduct such a review and may dismiss an appeal as abandoned if the defendant does not file a supplemental brief (People v. Cole (2020) 52 Cal.App.5th 1023, 1031–1032, 1039–1040, review granted October 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 21, 2021, S267870), although some cases explain that we have discretion to review the record independently for arguable issues, either where an initial review does not show the defendant is obviously ineligible for relief (such as when the defendant was convicted on a theory he was the actual killer) (People v. Scott (2020) 58 Cal.App.5th 1127, 1131, review granted Mar. 17, 2021, S266853) or as a routine matter (People v. Flores (2020) 54 Cal.App.5th 266, 269–274). Similarly, a panel in Division Four of this appellate district recently concluded that an order revoking and reinstating post-release community supervision is not subject to Wende review because the appeal is not a direct appeal from a judgment of conviction. (People v. Freeman (2021) 61 Cal.App.5th 126, 132–134.) We likewise conclude defendant is not entitled to Wende review of an order denying a petition for resentencing under section 1170.95. Because defendant has not personally filed a supplemental brief, we will dismiss his appeal as abandoned. We note, however, that the result would be the same even if we exercised our discretion to conduct an independent review. Our high court has recently confirmed that a trial court may look to the record of conviction to determine whether a petitioner has made a prima facie case for relief under section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 970–972 (Lewis).) The record of conviction here shows unambiguously that defendant was convicted as the actual killer, not under a theory of imputed malice under the doctrine of felony murder or natural or probable consequences.