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Filed 2/24/21 P. v. Tellez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ELPIDIO DEJESUS TELLEZ,

Defendant and Appellant.

C091737

(Super. Ct. No. 12F07541)

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 

436 (Wende).

Most of the background facts are taken from People v. Tellez (Jan. 16, 2019, 

C077915) [nonpub. opn.] (Slip Opn.).

In November 2012, defendant Elpidio DeJesus Tellez killed a man outside a bar in 

Sacramento. “At trial it was undisputed that defendant” fatally shot the man. “Defendant 

testified at trial that he acted in self[-]defense.” (Slip Opn., at p. 2.)

A jury found defendant not guilty of first degree murder but guilty of second 

degree murder with personal and intentional discharge of a firearm causing death, and 
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other crimes. In November 2014, the trial court sentenced defendant to prison for 15 

years to life for the murder. (Slip Opn., at p. 8.)

In January 2019, we affirmed defendant’s murder conviction in his direct appeal 

from the criminal judgment. (Slip Opn., at pp. 2, 24.)

In October 2019, defendant filed a Penal Code section 1170.95 petition for 

resentencing, pursuant to recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). 

In a January 2020 hearing, after the prosecutor argued defendant killed the victim 

and was “not eligible” for relief, the trial court denied the petition. 

Defendant appealed. 

Appointed counsel for defendant asked this court independently to review the 

record pursuant to Wende. Defendant filed a supplemental brief.

Review pursuant to Wende or its federal constitutional counterpart Anders v. 

California (1967) 386 U.S. 738 [18 L.Ed.2d 493] is required only in the first appeal of 

right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555 

[95 L.Ed.2d 539, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537;

People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.)

The appeal before us, “although originating in a criminal context, is not a first 

appeal of right from a criminal prosecution, because it is not an appeal from the judgment 

of conviction.” (People v. Serrano, supra, 211 Cal.App.4th at p. 501.) We agree with 

People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278

(Cole), that the Wende/Anders procedures do not apply to an appeal from an order 

denying a petition filed pursuant to Penal Code section 1170.95.

Accordingly, we will dismiss the appeal.

We disagree with language in Cole suggesting that an appellate court “is required 

to evaluate any arguments” that a defendant makes in a supplemental brief after counsel 

has filed a Wende brief. (Cole, supra, 52 Cal.App.5th at p. 1040 [citing People v. Kelly

(2006) 40 Cal.4th 106, 120, 124 (Kelly)].) We do not read Kelly as standing for such a 
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proposition, as the case dealt solely with standard Wende review on direct appeal, and 

contains no discussion about the propriety of dismissing an appeal where there is no right 

to Wende review.

In any event, that language in Cole is dictum. Defendant in that case did not file a 

supplemental brief (Cole, supra, 52 Cal.App.5th at p. 1040) so the discussion was not 

necessary to the decision. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [“An 

appellate decision is not authority for everything said in the court's opinion but only ‘for 

the points actually involved and actually decided’ ”]; Serrano v. Aerotek, Inc. (2018) 

21 Cal.App.5th 773, 784 [concluding a decision of another District Court of Appeal was 

“not authority for the proposition” a party cited it for, as that portion of the decision was 

“undoubtedly dictum,” because it was a statement of a principle that was not necessary to 

the decision].)

DISPOSITION

The appeal is dismissed. 

 

HULL, J.

We concur:

 

BLEASE, Acting P. J.

 

MURRAY, J.