1

Filed 1/13/21 P. v. Bishop CA4/2 See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v. JAIME BILLY BISHOP, Defendant and Appellant. E075594 (Super.Ct.No. RIF101137)
OPINION

APPEAL from the Superior Court of Riverside County. John D

. Moll o y, Judge.
Dismissed. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 I
INTRODUCTION In 2003, defendant and appellant Jaime Billy Bishop was convicted of first degree
murder (Pen. Code, 1 § 187, subd. (a)) w ith a lying

- in

- wait special circumst ance allegation (§ 190.2, subd. (a)(15) )

. Approximately 17 years later, defendant filed a petition for resentencing pursuant to Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) and
section 1170.95, which the trial court dismissed

. Defendant appeals from the postjudgment order d ismissing his section 1170.95 petition for resentencing. A ppointed appellate counsel filed an opening brief that sets
forth the facts of the case and as ks 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 ); Anders v. California (1967) 386 U.S. 738 ( Anders ) .) Under the circumstances of this case, we decline to exerc ise our discretion to conduct a full

- scale Wende review
and dismiss the appeal as abandoned

. II

FACTUAL AND PROCEDURAL BACKGROUND 2 On December 25, 2001, defendant helped Norbert “Bob” Nieto induce Bob’s wife, Tisha, to meet them at a secluded rende zvous. Bob and defendant then lured Tisha into

1 All future statutory references are to the Penal Code unless otherwise stated.

2 A brief summary of the factual background is taken from this court’s nonpublished opinion in defendant’s prior appeal, case No. E035166. ( People v. Bishop ( Oct. 5, 2004 , E035166 ) [nonpub. opn.] .)3

defendant’s car. They choked and strangled her. They then dumped her body at a remote
location

. On September 24, 2003, defendant was convicted of aiding and abetting first degree murder (§ 187, subd. (a)) while lying in wait (§ 190.2, subd. (a)(15)) and was
sentenced to life imprisonment without the possibility of parole. Defendant subsequently ap pealed, contending that the evidence was insufficient to support a lying

- in

- wait special circumstance finding. On October 5, 2004, we affirmed
the conviction and sentence. On January 1, 2019, Senate Bill No. 1437 became effective (2017

- 2018 Reg. Sess.) , which amended the felony

- murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f) .)
Senate Bill No. 1437 also add ed section 1170.95, which allows those “ convicted of felony murde r or murder under a natural and probable consequences theory .

. . [to] file a petition with the court that sentenced the petitioner to have the petitioner ’ s murder conviction vacated and to be resentenced on any remaining counts .

. . . ” (§ 1170.95,
subd . (a).) On June 5, 2020, defendant in pro pria persona filed a petition for resentencing pursuant to section 1170.95, subdivision (a). A hearing on the petition was held on July 31, 2020. At that time, the prosecutor
advised the trial court that he had reviewed the record and shared his notes with defense
counsel. The prosecutor also stated that “ There were no instructions on felony murder or4

natural and probable consequences. In fact, it was a special circumstance case. He [ defendant ] was sentenced to LWOP, meaning he was at least a major participant with
reckless indifference. He cannot qualify. Based on the record of conviction, he cannot meet the basic elements of eligibility. So we would ask the Court to summarily deny the petition. ” Defendant’s appointed counsel agreed with the prosecutor’s “ assertion of the
facts and the record of conviction” and s imply objected “ for the record.” The trial court
noted that it was persuaded by the People’s argument and dismissed the petition.
De fendant filed a timely notice of appeal on August 26, 2020. 3
III
DISCUSSION After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of Wende , supra , 25 Cal.3d 436 and Anders , supra , 386 U.S. 738 , setting forth a statement of the case, a

sum mary of the procedural background and potential arguable issue s , 4 and requesting this court to conduct an independent review of the record.

3 We granted appellate counsel’s request to take judicial notice of the record on appeal from defendant’s prior appeal in case No. E035166.

4 Appellate counsel notes the potential issue s as : (1) whether defendant is eligibl e for relief under section 1170.95 given the facts as proffered by the People and agreed to by defense counsel; (2) whether defense counsel’s objection for the record was sufficient to preserve any issue on appeal; and (3) whether the jury instructions fro m the underlying record on appeal, which reflect the jury was not instructed on either felony murder or the natural and probable consequences theory of aiding abetting, disqualifies defendant from potential relief under section 1170.95, subdivisions (d) an d (e).5

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. Thus, no claim of error has been raised. Review pursuant to Wende , supra , 25 Cal.3d 436 or its federal constitutional counterpart Anders , supra , 386 U.S. 738 , in which we read the entire record ourselves to search for arguable grounds for reversal, is required only in the first appeal of right from a criminal conviction. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal. 4th 529, 536

- 537 ( Ben C. ); People v. Serrano (2012) 211 Cal.App.4th 496, 500

- 501 ( Serrano ); People v. Thurman (2007) 157 Cal.App.4th 36 , 45 ; People v. Cole (2020) 52 Cal.App.5th 1023, 1028, 1032 , review granted Oct. 14, 2020, S264278 [ Wende ’s constitutiona l underpinnings do not apply to appeals from the denial of postconviction relief, and when a defendant fails to file a supplemental brief, an appellate court may dismiss the appeal as abandoned ].) The right to Anders / Wende review applies only at appellate proceedings where defendant has a previously established constitutional right to counsel. ( Serrano , supra , 211 Cal.App.4th at p. 500; Ben C. , supra , 40 Cal.4th at pp. 536

- 537.) The constitutional right to counsel extends to the first appeal of right, and no further. ( Serrano , at pp. 500

- 501.) The appeal before us, “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.” ( Id . at p. 501.) While a criminal defendant has a right to appointed counsel in an appeal from an order after judgment affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not6

constitutional. Thus, defen dant is not entitled to Wende review in such an appeal. (See
Serrano , at p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to Pen

. Code , § 1016.5].) While we acknowledge that a Court of Appeal may exercise its discr etion to
conduct an independent review of the entire record and that no legal authority prohibits us from doing so in the interests of justice ( see People v. Flores (2020) 54 Cal.App.5th 266, 269, 273 ; People v. Gallo (2020) 57 Cal.App.5th 594 , 598 ) , we decline to do so in
this case. Defendant’s trial involved neither the felony

- murder rule nor the natural and probable consequences doctrine. Thus, section 1170.95 and Senate Bill No. 1437 are inapplicable to defendant ’s murder conviction while lying

- in

- wait

. Because neither defendant nor his counsel has raised any claim of error in the trial
court’s d ismissal of the petition at issue here and because this appeal concerns a postjudgment proceeding in which there is no constitutional right to counsel, we dismiss defendant’s appeal as abandoned.
IV
DISPOSITION The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. I concur:

MENETREZ J.1

[ People v. Bishop , E075594] MILLER, J., Dissenting Based upon People v Flores (2020) 54 Cal.App.5th 266 I would have conducted an independent review of the record “ in the interest of justice. ” ( Id

. at p. 269

. )

MILLER Acting P. J.