1

Filed 12/2/22 P. v . Richards 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANTHONY DAVID RICHARDS,

Defendant and Appellant. E078962

(Super.Ct.No. RIF131424)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.2

Defendant and appellant Anthony David Richards appeals from the denial of his

petition for resentencing under Penal Code 1 section 1170.95 (now section 1172.6 2 )

. For

the reasons set forth post

, we affirm.

STATEMENT OF THE CASE

On February 15, 2007 , an information charged defendant with the premeditated

and deliberate attempted murder of Jane Doe under sections 664 and 187,

subdivision (a) (count 1); and actively and knowingly participating in a gang under

section 186.22, subdivision (a) (count 2). As to count 1, the information also alleged

(1) two firearm enhancements under section 12022.53, subdivisions (c), (d), and (e)(1);

and (2) a ga ng enhancement under section 186.22, subdivision (b). The information

further alleged that defendant had committed two prior offenses within the meaning of

section 667.5, subdivision (b), and listed numerous aggravating fact ors

.

On August 7, 2007, a jury found defendant guilty on both counts, and found true

the enhancement s

.

On October 5, 2007, the trial court sentenced defendant to two years plus 40 years

to life.

1 All further statutory references are to the Penal Code unless otherwise specified

2 While this appeal was pending, the Legislature amended and renumbered

section 1170.95 as section 1172.6

. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6

in this opinion, even though 1170.95 was the operative designation at the time of the

underlying proceedings.3

After defendant appealed, on May 19, 2009, this court issued an opinion affirm ing

the judgment of conviction. ( People v. Richards (May 19, 2009, E044335) [nonpub.

o pn.]

. )

On November 5, 2 021, defendant filed a petition for resentencing under section

117 2

. 6

. On December 3, 2021, the trial court appointed counsel to represent defendant.

At the prima facie hearing on the petition on May 6, 2022, the prosecution moved

to dismiss the petition. The prosecutor argued that the record below showed defendant

was not prosecuted for attempted murder under a natural and probable consequences

theory

. Thereafter, defense counsel requested a continuance to confer with defendant and

conduct additional research. The court stated that it would continue the case if the

defense had a question about the jury instructions, specifically referring to the natu ral and

probable consequences instructions. Defense counsel then stated that she did not believe

that the jury was instructed on that theory. Thereafter, the court ruled: “I’m going to

deny [the petition] without prejudice. If [defense counsel] has ins tructions [,] come over

here, and I’ll change it.”

On May 9, 2022, defendant filed a timely notice of appeal.

DISCUSSION

After defendant appealed, this court appointed counsel to represent him

. Defense

counsel filed an opening brief that sets forth the statement of the case and ask ed this court

to review the record and determine whether there are any arguable issues on appeal.

( People v. Wende (1979) 25 Cal.3rd 436; Anders v. California (1967) 386 U.S. 738.)

Counsel has identified seven potentially arguable issues:4

“A. Whether the trial court prejudicially violated [ f ] ormer section 1170.95,

subdivision (c), now section 1172.6, subdivision (c), by failing to require statutorily

mandated briefing before ruling on [defendant] ’s eligibility for relief under section

1172.6?”

“B. Was [defendant] eligible for relief under sec tion 1172.6?”

“C. Did the trial court err in failing to comply with its duty to independently

examine the record before denying [defendant]’s section 1172.6 petition at the prima

facie stage?”

“D. Whether the trial court’s denial of [defendant]’s [ s ] ecti on 1172.6 petition

without prejudice is an appealable order?”

“E. Whether [defendant] is entitled to independent appellate court review of the

trial court’s denial of his section 1172.6 petition”

“F. Assuming [defendant] is entitled to independent [a] ppe llate review of the

superior court’s denial of his section 1172.6 petition, what is the basis for that review,

and what would it entail?”

“G. Whether this court may consider a sentencing issue involving section

1172.75 on an appeal from the denial of a pe tition for resentencing under section

1172.6?”

We offered defendant an opportunity to file a personal supplemental brief, which

he has not done. Thus, no claim of error has been raised.



### Although we are not required to independently review the record for potential

errors in a postjudgment appeal, we have exercised our discretion to do so

, following5



### this court’s recently published opinion in People v. Griffin (Nov. 14, 2022, E079269)

___ Cal.App.5th

___ [2022 Cal.App. LEXIS 936]. We found no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT S

MILLER

Acting P. J.

I concur:

FIELDS

J.1

[ People v. Richards

, E078 962 ]

Slough, J., Dissenting.

It remains my view that we should dismiss as abandoned Anders / Wende 1 appeals

of postjudgment order s in cases like this where counsel identifies no issues and the

de fendant declines to file a personal supplemental brief . (E.g., People v. Cole (2020) 52

Cal.App.5th 1023, 103 8

- 1040 , review granted Oct. 14, 2020, S264278 ; People v. Scott

(2020) 58 Cal.App.5th 1127, 1131, review granted March 17, 2021, S266853.)

Additiona lly, because appellant’s jury instructions reveal he was tried solely under a

direct aiding and abetting theory (and is therefore ineligible for relief as a matter of law),

nothing in the record my colleagues opted to review could possibly have any impact on

the appeal. (Pen. Code, § 1172.6, subd. (a).)

SLOUGH

J.

1 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436

.