Opinion
B298625
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. PATRICK D. DUNCAN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA08710) APPEAL from an order of the Superior Court of Los Angeles County, William N. Sterling, Judge. Appeal dismissed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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On November 30, 1995, a jury found Patrick Duncan guilty of willful, premeditated, and deliberate first degree murder. The jury also found that in the commission of the murder Duncan personally used a knife. The trial court sentenced Duncan to 26 years to life in state prison.
On January 19, 2019, Duncan filed a petition for resentencing under Penal Code section 1170.95. Senate Bill No. 1437, which added section 1170.95, "was enacted 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' " (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135.) Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the court to have the murder conviction vacated and to be resentenced, if the person could not be convicted of murder in light of the changes to law enacted by Senate Bill No. 1437, as discussed above.
Further statutory references are to the Penal Code.
On March 20, 2019, the trial court issued an order denying Duncan's petition for resentencing under section 1170.95, explaining: "A review of the record, including jury instructions clearly shows that petitioner [Duncan] was not convicted under a theory of felony murder or natural and probable consequences." The trial court also noted in the order that the jury found true the allegation that Duncan personally used a knife in the commission of the murder.
Duncan filed a timely notice of appeal, and this court appointed counsel for him. After examination of the record, counsel filed an opening brief raising no issues and asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On June 10, 2020, we sent a letter to Duncan and his appointed counsel, advising Duncan that within 30 days he could personally submit any contentions or issues he wanted us to consider, and directing counsel to send the record and opening brief to Duncan immediately. Duncan did not file a supplemental brief.
Because Duncan's appeal is not his first appeal of right from his conviction, he is not entitled to our independent review of the record pursuant to Wende or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (See People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano); Pennsylvania v. Finley (1987) 481 U.S. 551, 559.) He is entitled, however, to file a supplemental brief and, if he files such a brief, to our review of his contentions. (See Serrano, at p. 503; cf., Ben C., supra, 40 Cal.4th at p. 544, fn. 6; Ben C., at pp. 554-555 (dis. opn. of George, C. J.).) If no supplemental brief is filed, we may deem the appeal to be abandoned and dismiss the appeal. (Serrano, at pp. 503-504.)
Under Serrano, in a criminal appeal in which Wende does not apply, counsel who finds no arguable issues is still required to (1) inform the court that counsel has found no arguable issues to be pursued on appeal; (2) file a brief setting out the applicable facts and law; (3) provide a copy of the brief to appellant; and (4) inform the appellant of the right to file a supplemental brief. (Serrano, supra, 211 Cal.App.4th at p. 503, citing Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben C.).)
Under either Wende or Serrano, we are satisfied that Duncan's counsel has fully complied with counsel's responsibilities. (See Wende, supra, 25 Cal.3d at p. 441; Serrano, supra, 211 Cal.App.4th at p. 503.) Duncan did not file a supplemental brief. Accordingly, we dismiss Duncan's appeal as abandoned. (Serrano, at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
Judge of the Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------