People v. Cruz CA2/3

Filed 12/23/22 P. v. Cruz CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B319452

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA144805) v.

JUAN CARLOS CRUZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________

Juan Carlos Cruz (Cruz) 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. Exercising our discretion to independently review the record (People v. Delgadillo (Dec. 19, 2022, S266305) __ Cal.5th __ (Delgadillo)),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 While this matter was pending, our Supreme Court issued Delgadillo, supra, __ Cal.5th __. The court held that the procedures in Anders v. California (1967) 386 U.S. 738 and Wende do not apply to appeals from the denial of postconviction relief under section 1172.6. (Delgadillo, supra, __ Cal.5th __ [pp. 16–17].) The court instructed that on appeal from an order denying section 1172.6 relief, a counsel who finds no arguable issue should file a brief informing the appellate court of that determination and include a concise factual recitation. The appellate court shall send a copy of the brief to the defendant informing the defendant of the right to file a supplemental brief and that if one is not filed within 30 days, the court may dismiss the matter. If a supplemental brief is filed, we must evaluate the contentions in it. If a supplemental brief is not filed, we may dismiss the appeal as abandoned without a written opinion. However, we retain discretion to independently review the record. (Delgadillo, supra, __ Cal.5th __ [pp. 17–19].) Thus, in Delagdillo, supra, __ Cal.5th __ [pp. 19–20], the Supreme Court