1

*Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to 

article VI, § 6 of the California Constitution.

Filed 11/30/22 P. v. Garrett CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

DAVID GARRETT, JR.,

Defendant and Appellant.

E079663

(Super. Ct. No. RIF1204443)

OPINION

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

*Becky L. Dugan, Judges. Dismissed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
2

I.

INTRODUCTION

Defendant and appellant David Garrett appeals from a postjudgment order denying 

his Penal Code1section 1172.6 (formerly section 1170.95)2petition for resentencing 

under the procedures established by Senate Bill Nos. 775 and 1437. 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 (Anders), requesting this court to conduct an independent 

review of the record. In addition, defendant has had an opportunity to file a supplemental 

brief with this court and has not done so. Because defendant is not entitled to 

Wende/Anders review from denial of the challenged postjudgment motion, and neither he 

nor his counsel has raised any claim of error in the denial, we dismiss his appeal as 

abandoned.

II.

PROCEDURAL BACKGROUND

On January 28, 2014, pursuant to a plea agreement, defendant pleaded guilty to 

one count of assault by means of force likely to produce great bodily injury (§245, subd. 

(a)(4); count 4), one count of robbery (§211; count 6), and three counts of attempted 

robbery (§§ 664/211; counts 12, 13, and 14). In addition, as to count 4, defendant 

1

 All future statutory references are to the Penal Code.

2

 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section

1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 

1172.6 for ease of reference unless otherwise indicated.
3

admitted that he had personally inflicted great bodily injury upon a person over 70 years 

of age (§ 12022.7, subd. (c)); as to count 6, he admitted that he had personally used a 

firearm (§ 12022.53, subd. (b)) in the commission of the robbery; and as to counts 12, 13, 

and 14, he admitted that he had personally used a deadly and dangerous weapon, to wit, a 

semiautomatic gun (§ 12022, subd. (b)) during the commission of the offenses. In return, 

the remaining charges and enhancement allegations were dismissed, and defendant was 

immediately sentenced to the total agreed-upon term of 25 years in state prison.

On January 1, 2019, Senate Bill No. 1437 became effective, which amended the 

felony-murder rule and the natural and probable consequences doctrine as it relates to 

murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added 

former section 1170.95 (now section 1172.6), which created a procedure for offenders 

previously convicted of murder to seek retroactive relief if they could no longer be 

convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.) Effective January 

1, 2022, Senate Bill No. 775 clarified that “persons who were convicted of attempted 

murder or manslaughter under a theory of felony murder and the natural probable 

consequences doctrine are permitted the same relief as those persons convicted of murder 

under the same theories.” (Stats. 2021, ch. 551, § 1.)
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On July 18, 2022, defendant in propria persona filed a petition for resentencing 

pursuant to former section 1170.95.

Defendant was appointed counsel and a hearing was held on August 19, 2022. At 

that time, the prosecutor informed the court that although defendant had been originally 

charged with attempted murder with great bodily injury on an elderly victim, he did not 

plead to that charge but to other nonapplicable offenses. After defense counsel concurred 

with the prosecutor, noting that he had “confirmed everything, of which counsel 

forwarded to [him],” the trial court denied the petition with prejudice. Defendant timely 

appealed.

III.

DISCUSSION

After defendant appealed, appointed appellate counsel filed a brief under the 

authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a 

statement of the case, a summary of the procedural background and potential issue of 

whether the court erred in denying defendant relief under section 1172.6, and requesting 

this court to conduct an independent review of the record.

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

has not done so. Thus, no claim of error has been raised.
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Our high court is currently considering whether an appellate court must conduct an 

independent review of the record when counsel files a Wende brief after the trial court 

denies a petition for resentencing under section 1170.95. (People v. Delgadillo, rev. 

granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Court of 

Appeal cases have consistently held that we are not required to conduct such a review 

and may dismiss an appeal as abandoned if the defendant does not file a supplemental 

brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review 

granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review 

granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131, 

review granted Mar. 17, 2021, S266853.) Some cases have explained that we have 

discretion to review the record independently for arguable issues, either where an initial 

review does not show the defendant is obviously ineligible for relief (such as when the 

defendant was convicted on a theory he was the actual killer) or as a routine matter. (See 

People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54 

Cal.App.5th 266, 269-274.)

In this case, we conclude defendant is not entitled to Wende review of an order 

denying his petition for resentencing under section 1172.6. Review pursuant to Wende, 

or its federal constitutional counterpart Anders, is required only in the first appeal of right 

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

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 

Cal.App.4th 496, 500-501 (Serrano).) The constitutional right to counsel extends to the 
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first appeal of right, and no further. (Serrano, supra, at pp. 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.” (Id. 

at p. 501.) While a criminal defendant has a right to appointed counsel in an appeal from 

an order after judgment affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd. 

(a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, 

defendant is not entitled to Wende review in such an appeal. (See Serrano, supra, at p. 

501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant 

to section 1016.5].)

Applying Serrano here, defendant has no right to Wende/Anders review of the 

denial of his section 1172.6 petition for resentencing. Furthermore, because defendant 

has not raised any claim of error, and because this appeal concerns a postjudgment 

proceeding in which there is no constitutional right to counsel, we will dismiss 

defendant’s appeal as abandoned.

We note, however, that the result would be the same even if we were to exercise 

our discretion to conduct an independent review. Defendant is not eligible for relief 

under section 1172.6 as he was not convicted of attempted murder, murder, or 

manslaughter. The trial court correctly denied defendant’s petition with prejudice.
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IV.

DISPOSITION

The appeal is dismissed as abandoned.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.