Filed 3/23 /22 P. v. Carnell CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY CA RNELL

,

Defe ndant and Appellant. B 3 15035

(Los Angeles County Super. Ct. No. V A 075517 )

APPEAL from a n order of the Superior Court of Los Angeles County. Lillian Vega Jacobs , Judge. Affirmed.

Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * * * * * *2 In February 2003, defe ndant and appellant Anthony
Carnell was involved , along with three co defendants, in a gang

related shooting that resulted in the death of an innocent bystander. Defendant and two of his fellow gang members, along with a female associate who drove them, were attempting to retaliate for the earlier shooting of another member of their gang. Once they arrived outside t he home where they saw the rival gang members (including Jermaine Booth) , d efendant and

co defendant Larry Harris got out of the car and both started shooting. Defendant’s handgun jammed, but Harris emptied his

gun before the two jumped back in the car and they fled the

scene . One of the bullets struck and killed an innocent bystander, Betty Jean Rothchild.
Defendant and his co defendants were charged with multiple felonies, including the murder of Ms. Rothchild and the attempted murder of Mr. Booth. Var ious special allegations were pled, including that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang.
After defendant and his co defendants were arrested, defendant gave a recorded interview a cknowledging his role in the shooting. Defendant entered into a leniency agreement with
the district attorney’s office in which he agreed to plead guilty to one count of second degree murder and provide truth ful testimony against his co defendants in excha nge for a sentence of 15 years to life. On June 25, 2008, defendant signed a felony advisement and waiver form, waived his rights on the record and pled guilty to one count of second degree murder. The court found a factual basis for the plea. Thereaft er, in accordance with the terms of the leniency agreement, defendant testified in the November 2008 trial against co defendant Harris. In December 2008, defendant was sentenced to 15 years to life in prison and credited with 2

, 417 days of presentence cus tody3

credits. All remaining counts and special allegations were
dismissed. In 2018, Senate Bill 1437 (2017

– 2018 Reg. Sess.) was passed. Penal Code section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became
eff ective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In April 2020, d efendant filed in propria persona a form petition for resentencing pursuant to Penal Code section 1170.95 requesting appointment of counsel and resentencing on the grounds he was not th e actual killer and not a major participant in the shooting death of Ms. Rothchild

. The People filed a response and attached a copy of defendant’s recorded interview with detectives in which he admitted participating in the retaliatory shooting.
The cour t appointed counsel for defendant and ordered copies of the preliminary hearing transcripts. At the next hearing, the court found defendant had stated a prima facie case
and set an order to show cause. On September 8, 2021, the court held the evidentiary hearing

. T he court acknowledged its review of various portions of the record, including portions of the trial transcripts from the
November 2008 trial of co defendant Harris. The court cited to various passages from defendant’s testimony in which he
admi tted that he and his co defendants intentionally drove to the scene to take revenge on rival gang members, that he brought his
nine

- millimeter handgun and got out of the car to shoot at the intended victims with Harris, but his gun jammed when he tried
to f ire it. After entertaining argument from counsel, the court denied defendant’s petition, finding the prosecution had met its burden to prove beyond a reasonable doubt that defendant could be
convicted under current law of the murder of Ms. Rothchild as a direct aider and abettor or under a theory of conspiracy to commit
murder.4 This appeal followed. We appointed appellate counsel to represent defendant. Defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 ( Wende ) in which no issues were
raised. The brief included a declaration from counsel that s he reviewed the record and sent a letter to defendant explaining h er evaluation of the record. Counsel further declared s he advised defendant of his right, under Wende

, to submit a supplemental brief within 30 days, and forwarded copies of the record to
defendant. No supplemental brief was filed. Defendant’s counsel filed a motion to augment the record, attaching copies of trial transcripts from the trial of co defendan t Harris in which defendant testified. We grant defendant’s
request to augment. There is currently a split in the appellate courts as to whether a reviewing court must engage in independent review for
error when counsel files a Wende brief from a postjudg ment appeal from a resentencing petition. Some courts have concluded that discretionary review is appropriate irrespective of whether the defendant files a supplemental brief. (See

, e.g., People v.
Flores (2020) 54 Cal.App.5th 266, 274 .)
Other courts h ave concluded that where, as here, a
defendant chooses not to file a supplemental brief, the Court of Appeal need not undertake Wende review but may dismiss the appeal as abandoned. (See

, e.g., People v. Cole (2020)

52 Cal.App.5th 1023, 1039 ; see also Peo ple v. Serrano (2012)

211 Cal.App.4th 496, 501 [because a defendant appealing from a postjudgment denial of a motion to vacate “ has no constitutional right to counsel

, ” he is not entitled to Wende review when appointed counsel finds no arguable issues ].) The Supreme Court is now considering the issue, that is “[w] hat procedures must appointed counsel and the Courts of Appeal follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit ” and5

whether a defend ant is “ entitled to notice of these procedures .” ( People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.]

,

rev iew granted Feb. 17, 2021

, S266305

, 2021 Cal. Lexis 1185

. ) Accordingly, pending further guidance from the Supreme Court, we have determine d to exercise our discretion to independently review the record.
W e have examined the entire record of proceedings
submitted to this court , including the requested augmented material, and are satisfied that appointed counsel fully complied
with h er resp onsibilities in assessing whether or not any colorable appellate issues exist. We conclude there are no arguable appellate issues. ( People v. Kelly (2006) 40 Cal.4th 106;
Wende

, supra , 25 Cal.3d 436.)
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.

GRIMES, Acting P. J.

WE CONCUR:

WILEY , J.

HAR U TUNIAN, J. *

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.