People v. Cole CA2/2

Filed 8/3/23 P. v. Cole CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B304329

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. NA061968)

FREDDIE COLE, OPINION ON REMAND

Defendant and Appellant.

THE COURT:

In a June 21, 2023, order, the California Supreme Court directed us (1) to vacate our August 3, 2020, decision in this matter, and (2) to “reconsider whether to exercise [our] discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216,

232-233 & fn. 6” (Delgadillo). The parties filed supplemental briefing regarding the Supreme Court’s remand order. We begin by vacating our August 3, 2020, decision in this matter. In that prior decision, we held that the duty of an appellate court to conduct an independent review of the record when a criminal defendant’s lawyer files a “no merit” brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) on direct appeal does not extend to appeals in post-conviction matters. (People v. Cole (Aug. 3, 2020) B304329, at pp. 1-2, opn. ordered nonpub. June 21, 2023.) In Delgadillo, supra, 14 Cal.5th 216, our Supreme Court agreed with our basic holding but went on to spell out the procedures that appellate courts are to follow in these post-conviction appeals where the defendant’s counsel believes there is “no merit.” (Id. at p. 222.) Specifically, Delgadillo held that appellate courts that receive a “no merit” brief from defense counsel should thereafter provide the defendant notice that (1) “counsel was unable to find any arguable issues,” (2) “the defendant may file a supplemental brief or letter raising any argument the defendant wishes the court to consider,” and (3) “if no such supplemental brief or letter is timely filed, the court may dismiss the appeal as abandoned.” (Ibid.) Because our prior decision in this matter was the first decision to apply these new procedures in the context of an appeal from the denial of a post- conviction petition for relief under Penal Code section 1172.6,1