Filed 9/14/22 P. v. Williams CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317625
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA124662)
v.
MELVIN WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Laura R. Walton, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
**********
Defendant and appellant Melvin Williams appeals from the
denial of his second petition for resentencing pursuant to former
Penal Code section 1170.95 which he filed while his appeal of the
denial of his first resentencing petition was still pending. During
the pendency of this appeal, former section 1170.95 was
renumbered as section 1172.6 with no change in the text.
(Stats. 2022, ch. 58, § 10.) We refer to the statute only by its new
designation for clarity.
We affirm the trial court’s denial of defendant’s second
petition for resentencing.
BACKGROUND
In 2013, defendant was charged in a consolidated information
with 10 felony counts, including two counts of attempted murder
arising from assaults on defendant’s former girlfriend and her
brother while threatening them with a shotgun. After a jury trial
in which defendant testified, defendant was found guilty of all
charges and sentenced to an indeterminate term of 48 years to life,
plus an eight-year determinate term.
We affirmed defendant’s conviction. (People v. Williams
(May 8, 2015, B252994) [nonpub. opn.].)
After the passage of Senate Bill 1437 (2017–2018 Reg. Sess.)
in 2018, defendant filed, in propria persona, his first petition for
resentencing pursuant to Penal Code section 1172.6. In that initial
petition, defendant erroneously asserted he had been convicted of
murder (instead of attempted murder) under a theory of felony
murder or the natural and probable consequences doctrine and
requested the appointment of counsel. In support of his petition,
defendant filed a document designated as both “supplemental
evidence” in support of the resentencing petition and a “motion to
dismiss” for failure to disclose exculpatory evidence.
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The trial court denied both the petition for resentencing and
the motion to dismiss without appointing counsel for defendant,
explaining that defendant did not qualify for resentencing, and the
documents presented as exhibits to his motion to dismiss were not
exculpatory evidence.
Defendant appealed both denials. We affirmed the denial of
the resentencing petition and dismissed his appeal to the extent it
sought to challenge the denial of his motion to dismiss. (People v.
Williams (July 20, 2020, B300682) [nonpub. opn.].) Defendant filed
a petition asking the Supreme Court to grant review. On
September 30, 2020, the Supreme Court granted review. Shortly
thereafter, the Supreme Court issued its decision in People v. Lewis
(2021) 11 Cal.5th 952 (Lewis) and the Legislature passed Senate
Bill 775 (2021–2022 Reg. Sess.) which expanded the scope of
individuals entitled to petition for resentencing, including those
convicted of attempted murder under a natural and probable
consequences theory (Stats. 2021, ch. 551, § 2).
In January 2022, the Supreme Court transferred the case to
us with directions to vacate our decision and reconsider the matter
in light of the passage of Senate Bill 775 and Lewis, supra,
11 Cal.5th 952. In March 2022, we reversed the order denying
defendant’s first resentencing petition with directions to the
superior court to appoint counsel for defendant and conduct further
proceedings under the amended statute. We also once again
dismissed that portion of the appeal arising from the motion to
dismiss. (People v. Williams (Mar. 23, 2022, B300682) [nonpub.
opn.].)
Meanwhile in October 2021, without waiting for a resolution
of his first appeal, defendant filed a new resentencing petition
pursuant to Penal Code section 1172.6 (the petition at issue in this
current appeal), adding a new contention that resentencing was
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appropriate because of “Post Traumatic Slave Syndrome.”
Otherwise, the second petition was duplicative of the first. Within a
week, defendant filed a “supplemental petition” in support of his
second petition, again relying on “Post Traumatic Slave Syndrome”
as relevant to his request for resentencing. On December 16, 2021,
the trial court summarily denied defendant’s second petition and
the supplemental petition. Defendant filed this appeal.
We appointed appellate counsel to represent defendant.
Defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised.
The brief included a declaration from counsel that she reviewed the
record and sent a letter to defendant explaining her evaluation of
the record. Counsel further declared she advised defendant of his
right, under Wende, to submit a supplemental brief within 30 days,
and forwarded copies of the record to defendant. No supplemental
brief was filed.
DISCUSSION
There is currently a split of authority in the Courts of Appeal
as to whether a reviewing court must conduct an independent
review of the record for error where, as here, an indigent
defendant’s appointed counsel has filed a Wende brief in an appeal
from a postjudgment order and the defendant does not file a
supplemental brief. (Compare People v. Flores (2020)
54 Cal.App.5th 266, 274 [concluding review is appropriate
regardless of whether the petitioner files a supplemental brief],
with People v. Cole (2020) 52 Cal.App.5th 1023, 1039, review
granted Oct. 14, 2020, S264278 [where the defendant chooses not to
file a supplemental brief, appeal may be dismissed as abandoned];
see also People v. Serrano (2012) 211 Cal.App.4th 496, 501 [because
a defendant appealing from a postjudgment denial of a motion to
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vacate “has no constitutional right to counsel,” he is not entitled to
Wende review when appointed counsel finds no arguable issues].)
The Supreme Court is now considering “[w]hat procedures
must appointed counsel and the Courts of Appeal follow when
counsel determines that an appeal from an order denying
postconviction relief lacks arguable merit” and whether a defendant
is “entitled to notice of these procedures.” (People v. Delgadillo
(Nov. 18, 2020, B304441) [nonpub. opn.] 2021 Cal.Lexis 1185,
review granted Feb. 17, 2021, S266305.)
Pending further guidance from the Supreme Court, we have
exercised our discretion to independently review the record and
have determined that appointed counsel fully complied with her
responsibilities in assessing whether any colorable appellate issues
exist. We conclude there are no arguable appellate issues. (People
v. Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
We note that the record does not contain any information
about the status of any further proceedings in the superior court
following our remand in defendant’s appeal of his first petition for
resentencing. We do not intend our decision here to have any
bearing on those separate proceedings.
DISPOSITION
The December 16, 2021 order denying defendant’s second
petition for resentencing and the supplemental petition is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J. WILEY, J.
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