People v. Ornelas CA2/3

Filed 8/4/22 P. v. Ornelas CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B318147 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. A326664)

v.

ERNESTO ORNELAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lynne M. Hobbs, Judge. Affirmed. Ernesto Ornelas, in pro per.; Law Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Ernesto Ornelas appeals from an order denying his petition for resentencing under Penal Code1 section 1172.6.2 His appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), asking us to independently review the appeal.3 In 1977, a jury found Ornelas guilty of first degree murder (§ 187, subd. (a); count 1) and of assault with a deadly weapon

1 All further undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 3 Some Courts of Appeal have found Wende review inapplicable to appeals from orders denying postconviction relief. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278; People v. Serrano (2013) 211 Cal.App.4th 496; but see People v. Flores (2020) 54 Cal.App.5th 266, 274.) 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 it and issue a written opinion disposing of the trial court’s order on the merits. As Ornelas has filed a supplemental brief, we accordingly independently review the record and his contentions, without deciding whether Cole is correct in part or whole. Further, our Supreme Court is currently considering what procedures appointed counsel and 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.)