Filed 9/2/22 P. v. King CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C095791
Plaintiff and Respondent, (Super. Ct. No. CRF20062847)
v.
KEVIN LYNELL KING,
Defendant and Appellant.
In 2009, a jury found defendant Kevin King guilty of second degree murder, gross
vehicular manslaughter while intoxicated, vehicular manslaughter, felony driving under
the influence of alcohol or drugs, felony hit and run resulting in death, and driving on a
suspended license. The jury found true defendant drove under the influence within 10
years with three or more prior convictions and fled the scene of the accident. Defendant
struck and killed the victim with his van and drove away. (People v. King (Feb. 28, 2012,
C063804) [nonpub. opn.].) When he was arrested, his blood-alcohol level was 0.1
percent, and his blood tested positive for marijuana, cocaine, and Ecstasy. (Ibid.) The
trial court sentenced him to 19 years in prison. (Ibid.)
On January 19, 2019, defendant filed a form petition for resentencing pursuant to
former Penal Code section 1170.95.1 He checked the two boxes: he was not a major
1 The Legislature amended section 1170.95 effective January 1, 2022, under Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). This amendment to section
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participant in the crime or he did not act with reckless disregard for human life and the
victim was not a police officer. He did not check the two boxes: he was not the actual
killer and he was not an accomplice who aided and abetted the crime with an intent to
kill. The trial court denied the petition. Defendant appealed filing a brief requesting our
review under People v. Wende (1979) 25 Cal.3d 436. On our own motion, we dismissed
that appeal as abandoned.
On July 21, 2021, defendant filed a “motion to appeal from the trial court’s
postjudgment order denying [his] petition for resentencing” under former
section 1170.95. (Capitalization omitted.) He attached his prior petition. Counsel
notified the trial court that the trial judge, in the original jury trial, did not instruct the
jury on any eligible theory, and counsel would not be filing any additional papers in
support of the motion. The trial court denied the motion and defendant filed this appeal
with a brief requesting our review under People v. Wende, supra, 25 Cal.3d at page 436.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the relevant procedural history of the case and requests this court
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d at p. 436.) Defendant was advised by counsel of the
right to file a supplemental brief. More than 30 days have elapsed, and defendant has not
filed a supplemental brief.
Whether the protections afforded by Wende and the United States Supreme
Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an
order denying a petition brought under section 1170.95 is an open question. Our
1170.95 has no impact on the issues raised by this appeal. Further, effective June 30,
2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022,
ch. 58.) There were no substantive changes to the statute. For purposes of clarity and
conformity with the petition, we will continue to refer to the statute as former
section 1170.95 throughout the opinion.
2
Supreme Court has not spoken on that issue, although the issue is currently pending
before it. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review
granted Feb. 17, 2021, S266305.) In People v. Figueras (2021) 61 Cal.App.5th 108,
review granted May 12, 2021, S267870, we described the Anders/Wende procedure we
believed applicable to appeals from postconviction petitions: “ ‘[C]ounsel appointed in
such appeals is required to independently review the entire record and, if counsel so
finds, file a brief advising the appellate court that there are “no arguable issues to raise on
appeal”; [counsel must inform] the defendant [that he or she] has a right to file a
supplemental brief [within 30 days of the filing of counsel’s brief]; and this court has the
duty to address any issues raised by the defendant but otherwise may dismiss the appeal
without conducting an independent review of the record.’ ” (Id. at pp. 112-113.)
We consider defendant’s appeal abandoned and order the appeal dismissed.
DISPOSITION
The appeal is dismissed.
/s/
Robie, Acting P. J.
I concur:
/s/
Boulware Eurie J.
I concur in the result:
/s/
Hull, J.
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