Opinion
D079180
11-05-2021
THE PEOPLE, Plaintiff and Respondent, v. DESTIN LEE WITHERS, Defendant and Appellant.
Jeanine G. Strong, 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NOT TO BE PUBLISHED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 San Diego County No. SCD258141, Roderick W. Shelton, Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
In 2016, a jury convicted Destin Lee Withers of first degree murder (Pen. Code, § 187, subd. (a)) and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The court found true the special circumstance of a previous conviction for murder (§ 190.2, subd. (a)(2)). Withers was sentenced to life in prison without the possibility of parole, plus six years.
All further statutory references are to the Penal Code.
Withers appealed and this court affirmed the judgment in an unpublished opinion, People v. Withers, D071689 (Sept. 26, 2018).
On our own motion, we take judicial notice of our records in case No. D071689.
In 2020, Withers filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, including this court's prior opinion, and held a hearing. The court denied the petition by written order. The court found the record disclosed Withers was the actual killer and was thus ineligible for resentencing under section 1170.95. Withers filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Withers the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. (People v. Withers, supra, D071689.)
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following issue that was considered in evaluating the potential merits of this appeal. Whether the trial court correctly concluded that Withers was ineligible for resentencing under section 1170.95.
We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Withers on this appeal.
DISPOSITION
The order denying Withers's petition for resentencing under section 1170.95 is affirmed.
WE CONCUR: HALLER, J. DATO, J.