People v. Wall CA2/4

Filed 5/2/23 P. v. Wall CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B320952 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. SA009175)

v.

DAVID WARREN WALL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant David Warren Wall appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6. The

court denied the petition after appointing defendant counsel, receiving briefing by the parties, and holding a hearing. Based in part on defendant’s own trial testimony wherein he admitted to shooting and killing the victim, the trial court denied the section 1172.6 petition and found defendant was not entitled to resentencing as “the actual killer.” (See People v. Wall (Sept. 21, 1994, B076080) [nonpub. opn.], 5, 8 (Wall I) [defendant testified he had kidnapped the victim, “grabbed his own gun and shot [the victim] twice”]; accord, People v. Delgadillo (2022) 14 Cal.5th 216, 233 (Delgadillo) [the defendant was “not entitled to any relief under section 1172.6” because he was “the actual killer and only participant in the killing”]; People v. Patton (2023) 89 Cal.App.5th 649, 657 [same]; People v. Garrison (2021) 73 Cal.App.5th 735, 743–744 [same].) Following his appointment by this court, appellate counsel found no arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to independently review the record. On December 9, 2022, we informed defendant, his counsel, and the Attorney General of the opening Wende brief. In our notice to the parties, we directed appointed counsel to send the record and a copy of the opening brief to defendant, and informed defendant he could submit a supplemental brief or letter within 30 days raising any contentions he wished this court to consider. He did not do so. Less than two weeks after we issued our notice to the parties, the Supreme Court issued its decision in Delgadillo. There, the Court held the Wende procedures, including the court’s duty to independently review the appellate record, do not apply to an appeal from the denial of postconviction relief under the resentencing procedures set forth in section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 226.) “On an appeal from the denial of a