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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY CARNELL,

Defendant and Appellant.

 B315035

 (Los Angeles County

 Super. Ct. No. VA075517)

APPEAL from an 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.

* * * * * * * * * *
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In February 2003, defendant and appellant Anthony 

Carnell was involved, along with three codefendants, in a gangrelated 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 the home where they saw the rival 

gang members (including Jermaine Booth), defendant and 

codefendant 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 codefendants were charged with 

multiple felonies, including the murder of Ms. Rothchild and the 

attempted murder of Mr. Booth. Various 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 codefendants were arrested, 

defendant gave a recorded interview acknowledging 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 truthful 

testimony against his codefendants in exchange 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. Thereafter, in accordance with the terms of 

the leniency agreement, defendant testified in the November 

2008 trial against codefendant Harris. 

In December 2008, defendant was sentenced to 15 years to 

life in prison and credited with 2,417 days of presentence custody 
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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 

effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)

In April 2020, defendant 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 the 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 court 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. The court acknowledged its review of various portions of 

the record, including portions of the trial transcripts from the 

November 2008 trial of codefendant Harris. The court cited to 

various passages from defendant’s testimony in which he 

admitted that he and his codefendants 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 fire 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. 
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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 she 

reviewed the record and sent a letter to defendant explaining her

evaluation of the record. Counsel further declared she 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 codefendant 

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 postjudgment 

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 have 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 People 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” and 
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whether a defendant is “entitled to notice of these procedures.” 

(People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], 

review granted Feb. 17, 2021, S266305, 2021 Cal. Lexis 1185.) 

Accordingly, pending further guidance from the Supreme 

Court, we have determined to exercise our discretion to 

independently review the record. 

We 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 her responsibilities 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.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.