People v. Molina CA2/3

Filed 11/23/22 P. v. Molina CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B318319

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA301665) v.

MARIO MOLINA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________

Mario Molina appeals from an order denying his petition for resentencing under Penal Code 1 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 We affirm.

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 (2012) 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. Molina has filed no supplemental brief. Nonetheless, in the abundance of caution, and because 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), we exercise our discretion to independently review the record for potentially arguable issues.