California Court of Appeal Aug 29, 2022 No. E079096Unpublished
Filed 8/29/22 P. v. Jackson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079096
v. (Super. Ct. No. RIF097839)
BAILEY LAMAR JACKSON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Bailey Lamar Jackson, Jr. appeals from a postjudgment 1 order denying his Penal Code section 1170.95 petition for resentencing under the
procedures established by Senate Bill Nos. 775 and 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 an opportunity to file a supplemental brief
with this court and has not done so. Because defendant is not entitled to Wende/Anders
review from denial of the challenged postjudgment motion, and neither he nor his counsel
has raised any claim of error in the denial, we dismiss his appeal as abandoned.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2004, a jury convicted defendant of first degree murder (§ 187, subd.
(a)), first degree burglary (§ 459), and first degree robbery (§§ 211, 215, subd. (a)) of
G.M. The jury found true the special circumstance allegations of robbery murder and
burglary murder (§§ 190.2, subd. (a)(17)(A), (G)). Defendant was also convicted of
attempted murder (§§ 187, subd. (a), 664, subd. (a)), first degree burglary (§ 459), first
1 That section has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) However, because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code. All future statutory references are to the Penal Code unless otherwise stated.
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, 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; People v. Flores (2020) 54
Cal.App.5th 266, 269-274.)
In this case, we conclude defendant is not entitled to Wende review of an order
denying his petition for resentencing under section 1170.95. Review pursuant to Wende,
or its federal constitutional counterpart Anders, is required only in the first appeal of right
from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555;
5
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211
Cal.App.4th 496, 500-501.) The constitutional right to counsel extends to the first appeal
of right, and no further. (People v. Serrano, supra, at pp. 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.” (Id.
at p. 501.) While a criminal defendant has a right to appointed counsel in an appeal from
an order after judgment affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd.
(a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus,
defendant is not entitled to Wende review in such an appeal. (See People v. Serrano,
supra, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty
plea pursuant to section 1016.5].)
Applying People v. Serrano, supra, 211 Cal.App.4th 496 here, defendant has no
right to Wende/Anders review of the denial of his section 1170.95 petition for
resentencing. Furthermore, because neither defendant nor his counsel has raised any
claim of error, and because this appeal concerns a postjudgment proceeding in which
there is no constitutional right to counsel, we will dismiss defendant’s appeal as
abandoned.
We note, however, that the result would be the same even if we were to exercise
our discretion to conduct an independent review. There is no dispute that defendant acted
alone. There is also no dispute that defendant was the actual killer of G.M. and solely
attempted to kill M.M. The trial court correctly denied defendant’s petition.
6
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.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is not entitled to independent Wende/Anders review of an order denying a postjudgment petition for resentencing under Penal Code section 1170.95, and dismissed the appeal as abandoned.
Issues
Whether a defendant is entitled to independent Wende/Anders review of a trial court's denial of a Penal Code section 1170.95 petition for resentencing.
Whether the appeal should be dismissed as abandoned when no claim of error is raised in a postjudgment proceeding.
Disposition. Dismissed
Quotations verified verbatim against the opinion
“defendant is not entitled to Wende review of an order denying his petition for resentencing under section 1170.95.”
“Review pursuant to Wende, or its federal constitutional counterpart Anders, is required only in the first appeal of right from a criminal conviction.”
“we will dismiss defendant’s appeal as abandoned.”