People v. Rodriguez CA4/3

Filed 12/13/23 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061932

v. (Super. Ct. No. 09CF3083)

FRANCISCO ALBERTO RODRIGUEZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Francisco Alberto Rodriguez 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. The procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), do not apply to this case. (People v. Delgadillo (2022) 14 Cal.5th 216, 226, 231 (Delgadillo).) Therefore, when appointed appellate counsel finds no viable issues, counsel should file a brief informing the court that counsel found no arguable issues and including a concise narration of facts. (Id. at p. 231.) The reviewing court should send the brief to the defendant with notice the defendant may file a supplemental brief or letter within 30 days, and if the defendant does not, the court may dismiss the appeal. (Id. at pp. 231-232.) However, no independent review of the record is compelled. (Id. at p. 232.) If no brief or letter is filed, the court may dismiss the appeal without issuing an opinion but should notify the defendant of the dismissal. (Ibid.) The court retains discretion to independently review the record in any appeal based on Penal Code section 1172.6.1 (Ibid.) Counsel requested this court exercise its discretion to conduct an independent review. Counsel identified one issue she considered to assist the court in conducting a discretionary independent review of the record: “Whether the court properly denied Rodriguez’s petition at the prima facie stage and whether the appropriate procedures were followed.” We gave Rodriguez 30 days to file written argument on his own behalf. If the defendant raises issues in a supplemental brief or letter, the court must evaluate the arguments raised and issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) Rodriguez filed a supplemental brief, and we address his claims anon. 1 Effective June 30, 2022, the Legislature renumbered former Penal Code section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For clarity, we refer to the statute as section 1172.6. All further statutory references are to the Penal Code.