Filed 11/28/22 P. v. Buckley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C096324
v. (Super. Ct. No. 06F10601)
RODNEY BUCKLEY, JR.,
Defendant and Appellant.
Appointed counsel for defendant Rodney Charles Buckley, Jr., asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the trial court’s order
denying defendant’s petition for resentencing.
I
In 2006, defendant’s friend Ricky Devon Taylor V was involved in several verbal
and physical confrontations with his roommates, Sara S. and Rodney A. Sara and
Rodney left the apartment, taking a gun with them. Upon learning Taylor was damaging
Sara’s property, Sara’s father, Alfred O. and his cousin, Alberto R., returned to the
apartment to get her things. Taylor greeted Alberto at the door, armed with a handgun.
Defendant was nearby, holding a shotgun, and pat-searched Alberto. A few minutes
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later, Alfred knocked on the door and was also greeted with guns drawn. Alfred grabbed
Taylor’s gun and began to wrestle with him. Taylor and defendant began firing at Alfred
and Alfred returned fire. Alberto saw defendant had a clear shot at Alfred and stepped
between them, holding his hands up. Defendant shot Alberto in the chest. Alfred,
defendant and Taylor also sustained gunshot wounds. A jury convicted defendant of two
counts of attempted murder (Pen. Code, §§ 664/187)1 and found true gang (§ 186.22,
subd. (b)(1)) and firearm enhancements (§ 12022.53, subd. (d)). On appeal, this court
affirmed the convictions and the firearm enhancement, but reversed the gang
enhancement. (People v. Taylor (Sep. 7, 2011, C062726) [nonpub. opn.].)2
On January 19, 2021, defendant filed a form petition for resentencing under
section 1172.6.3 Defendant checked the boxes indicating he was convicted pursuant to
the felony-murder rule or the natural and probable consequences doctrine and could not
now be convicted due to the changes to sections 188 and 189, effective January 1, 2019.
On April 22, 2022, the trial court held a prima facie hearing on defendant’s petition and
found he was not entitled to relief because the jury instructions did not include a felony
murder or natural and probable consequences instruction.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
1 Undesignated statutory references are to the Penal Code.
2 On the court’s own motion, we take judicial notice of our prior unpublished opinion in
case No. C062726. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
3 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to become
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although defendant filed his petition under former section 1170.95, we cite the
current section number throughout this opinion.
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issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed, and we received no communication from defendant.
Whether the protections afforded by Wende and the United States Supreme
Court’s decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d. 493] apply to
an appeal from an order denying a petition brought pursuant to section 1172.6 remains an
open question. The California Supreme Court has not spoken. In the absence of
Supreme Court authority to the contrary, we will adhere to Wende in the present case.
(Cf. People v. Cole (2020) 52 Cal.App.5th 1023, 1028, 1034, 1039-1040, review granted
Oct. 14, 2020, S264278; People v. Flores (2020) 54 Cal.App.5th 266, 273-274; People v.
Figueras (2021) 61 Cal.App.5th 108, 111-113, review granted May 12, 2021, S267870.)
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
KRAUSE, J.
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