People v. Vaca CA6

Filed 4/28/23 P. v. Vaca CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047346 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 199877)

v.

BRYAN CHRISTOPHER VACA,

Defendant and Appellant.

I. INTRODUCTION In 1998, defendant Bryan Christopher Vaca was convicted by jury of second degree murder (Pen. Code, § 187)1 and attempted murder (§§ 664, subd. (a), 187). The jury also found true allegations that he personally used a deadly and dangerous weapon in the commission of each offense (§ 12022, subd. (b)(1)). In a second phase of the trial, the jury found that defendant was legally sane when he committed the offenses. Defendant was sentenced to 24 years to life in prison. This court affirmed the judgment on direct appeal. (People v. Vaca (August 9, 2000, H019100) [nonpub. opn.].) In 2019, defendant filed a petition for resentencing under former section 1170.95, now section 1172.6, which allows a defendant convicted of felony murder or murder under the natural and probable consequences doctrine to petition the trial court to vacate the

1 All further statutory references are to the Penal Code unless otherwise indicated.

conviction based on changes in the law. In this case, after appointing counsel for defendant, receiving briefing from the parties, and holding a hearing, the trial court denied the petition. Defendant filed a notice of appeal from the trial court’s order denying his section 1170.95 petition. Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that did not raise any issues and asked this court to conduct an independent review of the record. We notified defendant that we would examine the record pursuant to Wende and that defendant may submit written argument on his own behalf within 30 days. That period elapsed, and we received no response from defendant. In a nonpublished opinion, we concluded that we were not required to conduct independent review of the record to determine whether there were any arguable issues because this appeal by defendant originated from a postconviction proceeding and was not a first appeal as of right. As his appointed counsel did not raise any arguable issue regarding the trial court’s order and defendant did not file a supplemental brief, we dismissed the appeal. The California Supreme Court granted review of this court’s opinion and deferred further action pending consideration and disposition of a related issue in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). The California Supreme Court subsequently filed its opinion in Delgadillo, holding that a Court of Appeal does not have a duty to independently review an order denying a petition for postconviction relief under former section 1170.95. (Delgadillo, supra, at pp. 221-222.) The California Supreme Court explained that in such cases, “the Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief or letter raising any argument the defendant wishes the court to consider; and if no such supplemental brief or letter is timely filed, the court may dismiss the appeal as abandoned.” (Id. at p. 222.) The California Supreme Court further explained that if a Court of Appeal (1) has indicated in a notice to the defendant that Wende procedures apply when they do not and (2) has failed to inform the defendant that the appeal will be dismissed as