California Court of Appeal Mar 15, 2022 No. E077943Unpublished
Filed 3/15/22 P. v. Hernandez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077943
v. (Super. Ct. No. FSB053198)
BENJAMIN HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Dismissed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance from Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Benjamin Hernandez appeals from a postjudgment order 1 denying his Penal Code section 1170.95 petition to vacate his second degree murder
conviction and obtain resentencing relief under the procedures established by Senate Bill
No. 1437. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting
this court to conduct an independent review of the record. In addition, defendant has had
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues and should do so in the
interest of justice, 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) or as a routine matter. (See People v. Gallo (2020) 57 Cal.App.5th 594,
598-599 (but see dis. opn. of Menetrez, J.); People v. Flores (2020) 54 Cal.App.5th 266,
269-274; People v. Allison (2020) 55 Cal.App.5th 449, 456.)
In this case, we conclude defendant is not entitled to Wende review of from the
order denying his petition for resentencing relief under section 1170.95. Review pursuant
to Wende, or its federal constitutional counterpart Anders, is required only in the first
5
appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551,
555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano
(2012) 211 Cal.App.4th 496, 500-501.) The appeal before us, “although originating in a
criminal context, is not a first appeal of right from a criminal prosecution, because it is
not an appeal from the judgment of conviction.” (Serrano, supra, at p. 501.) Because
defendant has not personally filed a supplemental brief, we will dismiss his appeal as
abandoned.
IV.
DISPOSITION
The appeal is dismissed as abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that an appeal from the denial of a Penal Code section 1170.95 petition is not a first appeal of right from a criminal conviction, and therefore dismissed the appeal as abandoned because the defendant failed to file a supplemental brief.
Issues
Whether an appellate court must conduct an independent Wende review of the record following the denial of a section 1170.95 petition.
Whether the trial court erred in the prima facie hearing regarding the defendant's presence and the scope of factfinding.
Disposition. dismissed
Quotations verified verbatim against the opinion
“As defendant has failed to file a supplemental brief raising any issues for our review, we shall dismiss the appeal.”
“In this case, we conclude defendant is not entitled to Wende review of from the order denying his petition for resentencing relief under section 1170.95.”
“Because defendant has not personally filed a supplemental brief, we will dismiss his appeal as abandoned.”