Opinion
C096978
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. DON LIVINGSTON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 95F05570)
DUARTE, J.
This case comes to us following an appeal by defendant Don Livingston from the trial court's postjudgment order summarily denying defendant's Penal Code section 1170, subdivision (d) petition for recall and resentencing. The court denied the petition because defendant was 18 years old when he committed the offense for which he received a life sentence and thus was statutorily ineligible for relief.
Penal Code section 1170, subdivision (d)(1) allows a defendant who was under 18 years old at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole and who has been incarcerated for at least 15 years to petition for recall and resentencing under specified circumstances. (Id., § 1170, subd. (d)(1)-(2), (6), (8).)
Defendant's appellate counsel filed a brief in accordance with People v. Delgadillo (2022) 14 Cal.5th 216 requesting we exercise our discretion to review the record to determine whether there were any arguable issues on appeal.
On May 15, 2023, this court sent a letter notifying defendant: (1) his counsel filed an appellate brief stating a review of the record did not identify any arguable issues; (2) as a case arising from an order denying postconviction relief, defendant was not constitutionally entitled to counsel or to an independent review of the record; and (3) in accordance with the procedures set forth in Delgadillo, defendant had 30 days to file a supplemental brief or letter raising any argument he wanted this court to consider. In addition, we advised defendant that if the court did not receive a letter or brief within that period, "the court may dismiss the appeal as abandoned." Defendant's appellate counsel also wrote defendant warning of this possibility.
Defendant did not file a supplemental brief within the 30 days following the Delgadillo notice. We consider defendant's appeal abandoned and order the appeal dismissed. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
We concur: Robie, Acting P. J., Mesiwala, J.