People v. Lebron CA4/3

Filed 5/19/22 P. v. Lebron CA4/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G057512

v. (Super. Ct. No. 12CF0360)

DOMINIC LOUIS LEBRON OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

We appointed counsel to represent Dominic Louis Lebron on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on Lebron’s behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738, to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following two issues: (1) did the trial court err by failing to appoint counsel to represent Lebron pursuant to Penal Code section 1170.95, subdivision (c) (all further statutory references are to the Penal Code)?; and (2) did the court err by denying the petition for resentencing pursuant to section 1170.95 because Lebron was convicted of felony murder or murder under a natural and probable consequences theory? We gave Lebron 30 days to file written argument on his own behalf. Thirty days passed, and Lebron did not file any written argument. Upon our independent review of the record, we identified an issue that may, if resolved favorably to Lebron, result in reversal of the judgment. Section 1170.95, subdivision (c), states, in relevant part, “If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” Here, Lebron requested counsel, but the court failed to appoint counsel. We invited the parties to file supplemental letter briefs on whether the trial court erred by failing to appoint counsel after Lebron requested