Opinion
B309086
11-05-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL AGUILAR, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072796, Stephen A. Marcus, Judge. Dismissed.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, ACTING P. J.
Defendant Daniel Aguilar appeals from the trial court's summary denial of his petition for resentencing under Penal Code section 1170.95. The court denied the petition following the appointment of counsel and briefing by the parties. Relying on our prior opinion in People v. Aguilar (May 31, 2012, B227935) [nonpub. opn.] (Aguilar I), the trial court found that defendant was not entitled to relief under section 1170.95 as a matter of law for his conviction of first degree murder. (Accord, Aguilar I, supra, at pp. 1, 5 ["[i]n finding true the special circumstances of witness killing, lying in wait, and gang murder [§ 190.2, subds. (a)(1), (a)(15), (a)(22))], the jury necessarily found that defendant aided [and abetted] the actual killers with the intent to kill"].)
Subsequent references to statutes are to the Penal Code.
Defendant's appointed counsel found no arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to independently review the record. On June 3, 2021, we directed counsel to send the record and a copy of the opening brief to defendant. Both his counsel and this court informed defendant that counsel had been unable to find any arguable issues. Defendant was invited to submit a supplemental brief or letter within 30 days raising any contentions he wished this court to consider. He did not do so.
The instant appeal, "although originating in a criminal context, is not a first appeal of right from a criminal prosecution, because it is not an appeal from the judgment of conviction." (People v. Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano); accord, People v. Cole (2020) 52 Cal.App.5th 1023, 1038, rev. granted Oct. 14, 2020, No. S264278) (Cole).) When appointed counsel raised no issues in an appeal from an order denying post-judgment relief, the procedures set forth in Wende, supra, 25 Cal.3d 436, are not constitutionally required. Instead, if defendant's appointed counsel files a no-merit brief, and the defendant does not exercise his or her right (after notice) to file a supplemental brief, we may dismiss the appeal as abandoned. (Serrano, supra, at p. 498; Cole, supra, at pp. 1037-1039.)
Neither defendant nor his appointed counsel has raised any claim of error. Therefore, consistent with Serrano and Cole, we dismiss the appeal as abandoned. (See Serrano, supra, 211 Cal.App.4th at pp. 503-504; Cole, supra, 52 Cal.App.5th at pp. 1039-1040.)
DISPOSITION
The appeal is dismissed.
We concur: COLLINS, J., CURREY J.