Opinion
B312923
10-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JEROME RONNIE SMITH, Defendant and Appellant.
Kathy R. Moreno, 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NOT TO BE PUBLISHED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. TA073688 John J. Lonergan, Jr., Judge.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Jerome Ronnie Smith appealed from an order denying his petition for resentencing under Penal Code section 1170.95. We appointed counsel for him, who filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Smith did not submit a supplemental brief or otherwise inform us of any issues for this court to consider. We dismiss the appeal.
Subsequent statutory references are to the Penal Code.
I.
In October 2005, a jury convicted Smith of two counts of murder (§ 187) and one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). As to the murder counts, the jury found true special circumstance allegations that he committed multiple murders in the case (§ 190.2, subd. (a)(2)) and had been previously convicted of murder (id., subd. (a)(3)). The jury also found true allegations that, in committing the murders, he intentionally and personally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) The court sentenced Smith to life in prison without the possibility of parole.
In March 2007, we affirmed the judgment in an unpublished opinion. (People v. Smith (Mar. 27, 2007, B189413).) The prosecution's evidence, summarized in our opinion, established that Smith, acting alone, used a firearm to shoot and kill two pedestrians on December 19, 2003. (Ibid.)
We granted Smith's request to take judicial notice of our unpublished opinion.
On March 2, 2021 Smith filed in the superior court a petition for resentencing under section 1170.95. He alleged that he was not the actual killer, that he had been convicted of murder pursuant to the felony murder rule and/or the natural and probable consequences doctrine, and that he could not now be convicted of murder because of recent changes made to sections 188 and 189. He requested the appointment of counsel.
The trial court appointed counsel for Smith, who filed a brief in support of Smith's petition.
On April 15, 2021, the court held a hearing on the petition. The court indicated that, in addition to Smith's petition, it had reviewed the jury instructions given in Smith's trial and our 2007 opinion. After hearing defense counsel's argument, the court stated that "the record clearly shows not only was [Smith] the actual killer, but he was not convicted under the felony murder rule and/or a natural and probable consequence doctrine." The court then denied Smith's petition.
Defendant filed a timely notice of appeal and we appointed counsel for him.
II.
On September 1, 2021, counsel filed her brief, which provided a summary of the factual and procedural history of the case and her declaration that "a brief pursuant to [Wende] is appropriate." Counsel stated that she informed Smith of her intention to file a "Wende brief" and that Smith could request that the court relieve her as counsel. Counsel provided Smith with the record on appeal and a copy of her brief, and advised him that he may file a supplemental brief with this court within 30 days. Counsel further stated that she will remain available for any further briefing we may request.
On September 1, 2021, this court sent a letter to Smith informing him that he may submit within 30 days a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments that appellant wishes this court to consider.
Smith did not file a supplemental brief or otherwise inform us of any potential issues for us to consider.
III.
In People v. Cole (2020) 52 Cal.App.5th 1023 (Cole), review granted Oct. 14, 2020, S264278, Division Two of this court held that when the appeal is other than a direct appeal from the defendant's conviction, the procedures established in Wende do not apply. (Id. at p. 1034; accord, People v. Figueras (2021) 61 Cal.App.5th 108, 111-113, review granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1132, review granted Mar. 17, 2021, S266853; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503.) We agree with these authorities.
Our Supreme Court has granted review in People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], petition for review granted February 17, 2021, S266305, to decide what procedures appointed counsel and the Courts of Appeal must follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit and whether defendants are entitled to notice of these procedures. (Supreme Ct. Minutes, Feb. 17, 2021, p. 200.)
Under Cole, when, as here, an appeal is from a collateral attack on a conviction and "the defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned. This is because the order appealed from is presumed to be correct [citation], and in the absence of any arguments to the contrary, ineluctably leads to the conclusion that the appellant has not carried his or him burden of proving otherwise." (Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted.)
Here, Smith has not filed a supplemental brief. We therefore deem the appeal abandoned and, for that reason, dismiss the appeal.
DISPOSITION
The appeal is dismissed.
We concur: BENDIX, J., CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.