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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. Molloy, Judge. 

Dismissed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
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I

INTRODUCTION

In 2003, defendant and appellant Jaime Billy Bishop was convicted of first degree

murder (Pen. Code,1 § 187, subd. (a)) with a lying-in-wait special circumstance 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 dismissing his section 1170.95 

petition for resentencing. Appointed appellate counsel filed an opening brief that sets 

forth the facts of the case and asks 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 exercise our discretion to conduct a full-scale Wende review

and dismiss the appeal as abandoned. 

II

FACTUAL AND PROCEDURAL BACKGROUND2

On December 25, 2001, defendant helped Norbert “Bob” Nieto induce Bob’s wife, 

Tisha, to meet them at a secluded rendezvous. 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.].)
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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 appealed, 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 added section 1170.95, which allows those “convicted of 

felony murder 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 propria 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 or 
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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 simply objected “for the record.” The trial court 

noted that it was persuaded by the People’s argument and dismissed the petition. 

Defendant 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 

summary of the procedural background and potential arguable issues,

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 issues as: (1) whether defendant is eligible 

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 from 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) and (e). 
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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 constitutional 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, not 
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constitutional. Thus, defendant 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 discretion 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 dismissal 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.