People v. Price CA5

Filed 12/29/22 P. v. Price CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F084767 Plaintiff and Respondent, (Super. Ct. No. CF90418521) v.

ALBERT LORENZO PRICE, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. David Andrew Gottlieb, Judge. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Poochigian, J.

Defendant Albert Lorenzo Price was convicted of second degree murder and discharging a firearm at an occupied vehicle in 1990. He petitioned for resentencing pursuant to Penal Code former section 1170.95,1, 2 based upon the changes to the felony-murder rule and the natural and probable consequences doctrine of aider and abettor liability effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). His petition was denied. Appointed counsel for defendant asked this court to review the record to determine whether there are any arguable issues on appeal.3 (People v. Wende (1979) 25 Cal.3d

1 All further undesignated statutory references are to the Penal Code unless otherwise noted. 2 In the wake of our Supreme Court’s decision in People v. Lewis (2011) 11 Cal.5th 952, the Legislature amended former section 1170.95 to adopt certain of Lewis’s holdings. (Stats. 2021, ch. 551, § 1, subd. (b).) The Legislature later renumbered the provision to section 1172.6, without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) Citations in this opinion to section 1172.6 are to the current version of the provision as codified in section 1172.6; citations to former section 1170.95 are to the version of the provision as it existed on the date of the trial court’s order on defendant’s petition. 3 When we began our review of this case, it was an open question whether Wende review was required from an appeal of a postconviction order denying sentencing relief. Many courts had held that such review was not required. (E.g., People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278 [“Wende’s constitutional underpinnings do not apply to appeals from the denial of postconviction relief”]; People v. Freeman (2021) 61 Cal.App.5th 126, 133, review denied May 12, 2021, S268011 [Wende procedures inapplicable to appeal from an order revoking postrelease community supervision]; People v. Flores (2020) 54 Cal.App.5th 266, 273 [Wende procedures inapplicable to appeal from denial of petition for resentencing under § 1172.6].) On December 19, 2022, our Supreme Court held in People v. Delgadillo (Dec. 19, 2022, S266305) __ Cal.5th __ (Delgadillo), that Wende procedures do not apply to appeals from the denial of postconviction relief under section 1172.6 and created a different procedure for such situations. (Delgadillo, at [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