1

Filed 5/25/21 P. v. Neece 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BRANDON NEECE, Defendant and Appellant. E076360 (Super.Ct.No. FVI1101564)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2

Defendant and appellant, Brandon Neece , filed a petition for resentencing pursuant to Penal Code section 1170.95, 1 which the superior court denied without prejudice . After

defendant filed a notice of appeal, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 ( Wende ) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case

. We affirm.

I. PROCEDURAL BACKGROUND

On April 9, 2012 , the People charged defendant by felony information with murder (§ 187, subd. (a) , count 1) , second degree robbery (§ 211 , count 2 ), and two counts of first degree residential burglary (§ 459 , counts 3 & 4). On August 2 6 , 201 3 , pursuant to a negotiated plea, defendant pled guilty to second degree murder (§ 187, subd. (a) , count 1) and first degree residential burglary (§ 459 , count 4)

. Pursuant to the negotiated disposition , the court sentenced defendant to an indeterminate term of imprisonment of 15 years to life.

On December 6, 2019 , defendant filed a form petition for resentencing pursuant to

section 1170.95. Defendant did not check one of the boxes included in box No. 5, which

reads : “I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.” At the hearing on the petition on February 21, 2020 , at which defendant did not appear, the c ourt

noted : “One of the boxes needs to be checked. It’s not checked. All parts of box five

1 All further statutory references are to the Penal Code.3

apply to [defendant] .” The public defender observed : “He didn’t check it off. That would be correct, so it is facially insufficient.” The court denied the petition without prejudice to defendant refilling.

II. DISCUSSION We offered defendant an opportunity to file a pers onal supplemental brief, which he has not done. We recognize that one panel of this court recently held that in uncontested appeals from postjudgment orders, there is no reason to conduct a Wende review of the record and that such appeals should be dismis sed by order. ( People v. Scott (2020) 58 Cal.App.5th 1127, 1131

- 1132 (but see dis. opn. of Miller, J.) , review granted

Mar

. 17, 2021, S266853 ; accord People v. Cole (2020) 52 Cal.App.5th 102 3 , review granted Oct. 14, 2020, S264278 [“ Wende ’s constitutional underpinnings do not apply to appeals from the denial of postconviction relief.”] ; accord People v. Figueras (2021)

61 Cal.App.5th 108 , review granted May 12, 2021, S267870 .) We respectfully disagree. We agree with another panel of this court, which rece ntly held that in uncontested appeals from the denial of a section 1170.95 petition, “we can and should independently review the record on appeal in the interests of justice.” ( People v. Gallo (2020)

57 Cal.App.5th 594, 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54 Cal.App.5th 266, 269 [“[W]hen an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice.”]; see People v. Allison (2020) 55 Cal.App .5th 449, 456 [“[W]e have the discretion to review the record in the interests of justice.”].) This procedure4

provides defendants an added layer of due process while consuming comparatively little in judicial resources. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable

issues.

III. DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. I concur:

RAMIREZ P. J.1

[ P eople v. Neece , E076360 ] MENETREZ, J., Dissenting. Because this is an appeal from a postjudgment order, People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 do not require us to read the entire record ourselves to look for arguable grounds for reversal. ( People v. Thurman (2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211 Cal.App.4th 496, 498.) Appointed appellate counsel filed a brief raising no issues, and defendant was given the opportunity to file a personal supplemental brief but declined. The appeal should accordingly be dismissed as abandoned. ( People v. Cole (2020) 52 Cal.App.5th 1023,

1039

- 1040; People v. Scott (2020) 58 Cal.App.5th 1127, 1129

- 1130.)

MENETREZ J.