Filed 3/25/22 P. v. Leite 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C094428
Plaintiff and Respondent, (Super. Ct. No. 04F09696)
v.
ROSANN LEITE,
Defendant and Appellant.
This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende). In 2006, a jury found defendant Rosann Leite guilty of first degree murder
(Pen. Code, § 187, subd (a)).1 The jury found true special circumstance allegations that
defendant was lying in wait with the intent to kill the victim (§ 190.2, subd. (a)(15)) and
that defendant engaged in torture with the intent to kill (§ 190.2, subd. (a)(18)).
1 Further undesignated statutory references are to the Penal Code.
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Defendant filed a petition under section 1170.95 to have her murder conviction
vacated and to be resentenced. The prosecutor filed an opposition to the petition, arguing
that the special circumstance findings rendered defendant ineligible for resentencing as a
matter of law and requesting dismissal of the petition. Defense counsel filed a reply,
arguing a prima facie case had been made. The trial court denied the petition, finding
defendant ineligible for resentencing based on its review of the record of conviction,
including the prior appellate opinion, the probation report, and the evidence presented at
trial. Defendant filed a timely appeal from that order.
I. DISCUSSION
Appointed counsel for defendant filed an opening brief setting forth the facts of
the case and asked this court to review the record and determine whether there were any
arguable issues on appeal in accordance with Wende, supra, 25 Cal.3d 436. Counsel
advised defendant of her right to file a supplemental brief within 30 days of the date of
filing of the opening brief. More than 30 days 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 postconviction petition is an open question. Our 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.) Arguably, review pursuant to Wende or its federal constitutional counterpart,
Anders, is required only in the first appeal of right from a criminal conviction. (People v.
Serrano (2012) 211 Cal.App.4th 496, 500-501.) 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
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“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.’ ” (Figueras, supra, at pp. 112-113.)
Because appellate counsel complied with her obligations, and defendant was
advised of her right to file a supplemental brief, but did not do so, we consider
defendant’s appeal abandoned and order the appeal dismissed.
II. DISPOSITION
The appeal is dismissed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
KRAUSE, J.
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