People v. Walden CA3

Filed 4/29/22 P. v. Walden CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093920

Plaintiff and Respondent, (Super. Ct. No. 12F04876)

v.

PAUL WALDEN,

Defendant and Appellant.

Defendant Paul Walden appeals the trial court’s denial of his petition for resentencing pursuant to Penal Code1 section 1170.95. His appointed counsel asked this court for an independent review of the record to determine whether there are any arguable issues on appeal. (People v.Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was informed of his right to file a supplemental brief but did not file one. We conclude he is not entitled to Wende review and dismiss the appeal as abandoned.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND The substantive facts underlying this conviction are not necessary to our resolution of this case on appeal and are summarily recounted here. One evening, while under the influence of heroin, defendant drove his car at a speed in excess of 60 miles per hour in a 35-mile-per-hour zone. He crashed through a stop sign and struck two pedestrians and four dogs as they were crossing the street in the crosswalk. The impact was so severe, it amputated one of the pedestrian’s legs and killed all four of the dogs. That same pedestrian died 13 days later. Defendant left the scene of the crime. He met up with friends the night of the accident shortly after the collision. His friend told police defendant appeared to be under the influence of heroin at the time. Police apprehended defendant several days later. The jury convicted defendant of second degree murder. (§ 187) It also convicted him of vehicular manslaughter (§ 192, subd. (c)(1)); felony hit and run causing death and bodily injury (Veh. Code, § 20001, subd. (b)(2); and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a).) It found several enhancements to be true. The trial court sentenced defendant to four years and eight months in state prison consecutive to a term of 15 years to life. Defendant filed a form petition seeking resentencing under section 1170.95. After appointing counsel and receiving briefing, the trial court issued a written order denying the request on March 16, 2021. The trial court concluded the court did not instruct the jury in defendant’s trial on any form of accomplice murder, but rather instructed them only on the murder theory of malice aforethought. The trial court concluded defendant did not show he was eligible for resentencing under section 1170.95. DISCUSSION Whether the protections afforded by Wende and the United States Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a postconviction petition is an open question. Our Supreme Court has not