People v. Smith CA1/2

Filed 3/25/22 P. v. Smith CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A162211 v. ROBERT EUGENE SMITH, (Contra Costa County Super. Ct. No. 59507138) Defendant and Appellant.

In 2018, the Legislature amended Penal Code section 1170.911 to authorize defendants sentenced for a felony conviction before January 1, 2015 to petition for a resentencing hearing at which the court could consider mitigating factors resulting from the defendant’s military service.2

All statutory references are to the Penal Code unless 1

otherwise stated. Section 1170.91, subdivision (b)(1) states: “A person 2

currently 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 the sentence, before the trial court that entered the judgment of conviction in his or

1

Robert Eugene Smith appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.91. Smith’s court-appointed counsel filed a brief which raised no legal issues and asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel represented that he advised Smith of his right to file a supplemental brief within 30 days and to request that the court relieve his counsel. Smith did not file a supplemental brief.3 We affirm.

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. [¶] (B) The person was sentenced prior to January 1, 2015. This subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015.” 3 Several cases have declined to apply the protections afforded by Wende or its federal counterpart, Anders v. California (1967) 386 U.S. 738, to an appeal from a postconviction order. (See, e.g., People v. Freeman (2021) 61 Cal.App.5th 126, 133 [declining to conduct Wende review following denial of section 1170.91 petition even though appellant had filed a supplemental brief].) Whether an appellate court must undertake an independent review of the record on a postconviction appeal of the denial of a section 1170.95 petition is currently under review by the California Supreme Court. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278; People v. Scott (2020) 58 Cal.App.5th 1127, review granted Mar. 17, 2021, S266853; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We have elected to conduct an independent review of the record in this case in the interest of justice. (People v. Flores (2020) 54 Cal.App.5th 266, 268–269.)