People v. Swaving CA4/3

Filed 3/3/23 P. v. Swaving CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G061557

v. (Super. Ct. No. C-55809)

HANS JACQUEHENRI SWAVING, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Hans Jacquehenri Swaving on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel did not provide the court with information as to any issues that might arguably support an appeal. Counsel only asked this court to conduct an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436. We gave Swaving 30 days to file written argument on his own behalf, and he did not. In People v. Delgadillo (2022) 14 Cal.5th 216, our Supreme Court held the procedures in Wende and Anders do not apply to appeals from the denial of 1 postconviction relief under Penal Code section 1172.6. 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. (Id. at p. 231.) 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