Filed 4/19/21 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B308504
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA002100)
v.
ANTHONY MILLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Richard M. Goul, Judge. Appeal dismissed.
Vanessa Place, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Anthony Miller appeals from the denial of his petition
for resentencing under Penal Code1 section 1170.95. Defendant had
1 Further undesignated statutory references are to the Penal Code.
been convicted of second degree murder (§ 187, subd. (a)), and an
allegation under section 12022, subdivision (b) that he personally used
a deadly and dangerous weapon (a screwdriver) in the commission of
the crime was found to be true. At the hearing on defendant’s section
1170.95 petition, defense counsel conceded that defendant was the
actual killer.
Defendant’s appointed counsel on appeal filed a brief under People
v. Wende (1979) 25 Cal.3d 436 (Wende), stating that she found no
arguable issues and asking that we independently review the record.
On January 8, 2021, we sent a letter to defendant, informing him that
his counsel filed an appellant’s opening brief that raises no issues and
inviting him to submit a supplemental brief or letter within 30 days
raising any contentions or arguments he would like the court to
consider. We have not received any supplemental brief or letter from
defendant.
As explained by our colleagues in Division Two of this Appellate
District, the procedures set forth in Wende, are not constitutionally
required for appeals other than a criminal defendant’s first appeal of
right. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted,
Oct. 14, 2020, S264278 (Cole).) We agree with the analysis in Cole and
adopt the procedures it prescribed for appeals from the denial of
postconviction relief. Under those procedures, if the defendant’s counsel
files a brief indicating there are no reasonably arguable issues to
present to the court, and the defendant does not exercise his or her
right (after notice) to file a supplemental brief, we presume the order
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appealed from is correct and may dismiss the appeal as abandoned. (Id.
at pp. 1038-1040.) Accordingly, we will dismiss this appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY J.
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