People v. O'Neal CA2/3

Filed 10/8/21 P. v. O’Neal CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B309902 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. YA063443)

v.

MICHAEL O’NEAL, SR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent. ________________________

Michael O’Neal, Sr., appeals from a postjudgment order denying his motion to vacate or to stay victim restitution and a restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). His appellate counsel filed a brief asking this court to proceed under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).1 We asked for supplemental briefing regarding whether Dueñas applied retroactively to O’Neal’s sentence, whether his case was final when Dueñas was decided, and whether any error in denying the motion was harmless. O’Neal filed a supplemental brief which we have reviewed and considered. As we explain, we now find that the appeal must be dismissed.

1 People v. Serrano, supra, 211 Cal.App.4th 496, found that review under People v. Wende (1979) 25 Cal.3d 436, does not apply to appeals from orders denying postconviction relief. (Accord, People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.) Cole, at pages 1039 to 1040, held that an appeal from a postconviction order may be dismissed if counsel has found no arguable issues and if the defendant has not filed a supplemental brief. Where the defendant has filed a supplemental brief, the Court of Appeal must evaluate any arguments raised in the brief and issue a written opinion disposing of the trial court’s order on the merits. As O’Neal has filed a supplemental brief at our direction, we accordingly review his contentions, without deciding whether Cole is correct in part or whole. Our Supreme Court is currently considering what procedures appointed counsel and the Courts of Appeal should follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit. (People v. Delgadillo (Nov. 18, 2020, B304441 [nonpub. opn.]), review granted Feb. 17, 2021, S266305.)