Filed 9 / 11 / 20 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY MATUSALEM GARCIA,

Defendant and Appellant. G058825

(Super. Ct. No. 13HF3631 )

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kimberly

Menninger, Judge. Affirmed

.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General

, and Robin Urbanski, Deputy Attorney

General, for Plaintiff and Respondent.

* * *2 In 2016, a jury convicted defendant Jimmy Matusalem Garcia of four

counts of oral copulation or sexual penetration of a child, and two counts of lewd or

lascivious acts upon a child. The trial court imposed a sentence of 15 years to life. We

conditionall y reversed and remanded the matter for further proceedings unrelated to this

appeal. ( People v. Garcia (May 4, 2018, G054032) [nonpub. opn.].)

In 2020, defendant filed a Penal Code section 1170.95 petition for

resentencing claiming he was convicted of mu rder under the felony

- murder rule or under

the natural and probable consequences doctrine. 1 The trial court summarily denied the

petition: “A review of court records indicates defendant is not eligible for relief under

the statute because defendant does not stand convicted of murder . . . .”

Defendant filed a notice of appeal from the trial court’s denial of the section

1170.95 petition. Defendant’s appointed counsel filed a brief summarizing the case with

citations to the record, but counsel raised no arguable issues on appeal. ( See People v.

Wende (1979) 25 Cal.3d 436 ( Wende ) .) Counsel and this court notified defendant he

could file a brief on his own behalf, but he did not do so.

We later invited the parties to address: “Whether the procedural protections

under Anders [ v. California (1967)] 386 U.S. 738 [( Anders )], and Wende

, supra , 25

Cal.3d 436, apply to an appeal from a trial court’s order denying a defendant’s petition

under

. . . section 1170.95.”

We agree with another panel of this court that recently held “ when 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. ” ( People v. Flores

(Sept. 3, 2020, G058486) __Cal.App.5th __ [2020 WL 5246704].)

1 Further undesignated statutory references are to the Penal Code.3 Here, we have conducted an independent review of the record and we have

found no arguable issues that require briefing or argument. Thus, the order denying

defendant’s petition for resentencing under section 1170.95 is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.