Opinion
B308624
11-16-2021
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL SALAZAR, Defendant and Appellant.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA376429, Charlaine F. Olmedo, Judge. Dismissed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, J. 1
INTRODUCTION
Miguel Angel Salazar appeals from an order denying his petition for writ of habeas corpus (habeas petition) in which he argued the evidence was insufficient to support his conviction or the jury's special circumstances finding. His appellate counsel filed a brief raising no claim of error and asking this court to proceed under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Because the order denying appellant's habeas petition is nonappealable, we must dismiss the appeal.
BACKGROUND AND DISCUSSION
In 2013, a jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a)) and carjacking (§ 215, subd. (a)), and found true a special circumstance allegation that the murder was committed during the commission of a carjacking (§ 190.2, subd. (a)(l7)(L)). Appellant was sentenced to a prison term of life without possibility of parole. We subsequently affirmed appellant's conviction and sentence. (People v. Salazar (Oct. 1, 2014, B248963) [non-pub. opn.].)
Statutory references are to the Penal Code.
On June 22, 2020, appellant filed a habeas petition, arguing that the evidence at trial was insufficient to support either his conviction for first-degree murder or the jury's special circumstances finding. Also attached, as an exhibit to appellant's habeas petition, was a petition for resentencing under section 1170.95 (resentencing petition).
On September 21, 2020, the trial court denied the habeas petition as untimely and on the merits. The court did not address the resentencing petition. 2
This appeal is from the trial court's denial of the habeas writ.
The notice of appeal states that appellant seeks review of the resentencing petition ["Petition (PC 1170.95) denied"], in addition to denial of his habeas writ. However, appellant subsequently refiled his resentencing petition, which remains pending before the trial court.
We appointed counsel for appellant. Appointed counsel filed a brief raising no issues and invoking Serrano, supra, 211 Cal.App.4th496, and filed a declaration stating she had "reviewed the entire record on appeal, [and] found no arguable" issues. Counsel stated she had explained her evaluation to appellant and informed him of his right to file a supplemental brief. On July 7, 2021, appellant was notified that he had 30 days to file a supplemental brief. To date, we have not received a supplement brief.
The denial of a petition for writ of habeas corpus is not appealable. In "noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal." (Robinson v. Lewis (2020) 9 Cal.5th 883, 895; Briggs v. Brown (2017) 3 Cal.5th 808, 836 [same].) 3
This appeal would be dismissed even if construed as an appeal from the denial of a post-judgment order other than the order denying the habeas petition. When appointed counsel raises no issues in an appeal from an order denying post-judgment relief, this court need not independently review the record. (Serrano, supra, 211 Cal.App.4that p. 498; accord, People v. Scott (2020) 58 Cal.App.5th 1127, 1130-1131 (Scott), rev. granted Mar. 17, 2021, S266853.) Rather, when a defendant appeals from a post-judgment order but raises no issues, we will dismiss the appeal as abandoned. (Scott, at p. 1130.)
DISPOSITION
The appeal is dismissed.
We concur: MANELLA, P. J. CURREY, J. 4