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Filed 4/29/ 22 P. v. Walden CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PAUL WALDEN,

Defendant and Appellant. C093920

(Super. Ct. No. 12F04876)

D efendant Paul Walden appeals the trial court ’s deni al of his petition for
resentencing pursuant to Penal Code 1 section 1170.95. His appointed counsel asked this
court for an independent r eview of the record to determine whether there are any arguable
issues on appeal. ( People v. Wende (1979) 25 Cal. 3d 436 ( Wende ).) Defendant was
informed of his right to file a supplemental brief but did not file one. We conclude he is

not entitled to Wende review and dismiss the appeal as abandoned.

1 Un designated statutory references are to the Penal Code.2 FACTUAL AND PROCEDURAL BACKGROUND
The substantive facts underlying this conviction are not necessary to our resolution
of this case on appeal and are summarily recounted here. One evening, while under the
influence of heroin, defendant drove his car at a speed in excess of 60 miles per ho ur in a

35

- mile

- per

- hour zone . He crashed through a stop sign and struck two pedestrians and
four dogs as they were crossing the street in the crosswalk

. The impact was so severe, it amputated one of the pedestrian’s leg s and killed all four of the dogs. That same pedestrian died 13 days later

. Defendant left the scene of the crime . He met up with
friends the night of the accident shortly after the collision . H is friend told police
defendant appeared to be under the influence of heroin at the time. P olice apprehended
defendant several days later.
The jury convicted defendant of second degree murder. (§ 187) It also convicted
him of vehicular manslaughter (§ 192, subd. (c)(1) ); felony hit and run causing death and
bodily injury (Veh. Code, § 20001, s ubd. (b)(2); and possession of a controlled substance
(Health & Saf. Code, § 11350, subd. (a).) It found several enhancements to be true. The

trial court sentenced defendant to four years and eight months in state prison consecutive

to a term of 15 years to life.
Defendant filed a form petition seeking resentencing under section 1170.95. After
appointing counsel and receiving briefing, t he trial court issued a written order denying
the request on March 16, 2021 . The trial court concluded the court did not instruct the jury in defendant’s trial on any form of accomplice murder, but rather instructed them
only on the murder theory of malice aforethought

. The trial court concluded defendant

did not show he was eligible for resentencing under section 1 170.95.

DISCUSSION
Whether the protections afforded by Wende and the United States Supreme

Court ’ s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an
order denying a postconviction petition is an open question. Our Supreme Co urt has not3

spoken on that issue, although the issue is currently pending before it. ( People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021,
S266305.) Arguably, review pursuant to Wende or its federal constitutional c ounterpart, Anders v. California , is required only in the first appeal of right from a criminal
conviction. ( People v. Serrano (2012) 211 Cal.App.4th 496, 500

- 501.) In People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870, we

described the Anders/Wende procedure we believed applicable to appeals from
postconviction petitions: “ ‘[C]ounsel appointed in such appeals is required to
independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are “no arguable issues to raise on appeal”; [counsel must
inform] the defendant [that he or she] has a right to file a supplemental brief [within 30
days of the filing of counsel ’ s brief]; and this court has the duty to address any issues
raised by the defendant but otherwise may dismiss the appeal without conducting an
independent review of the record. ’ ” ( Figueras
, at pp. 112

- 113.)
Because appellate counsel complied with his obligations, and defendant was
advised of his right to file a supplemental brief but did not do so, we consider defendant’s
appeal abandoned and order the appeal dismissed.4 DISPOSITION
The appeal is dismissed.

\ s \
, BLEASE, Acting P. J.

I concur:

\ s \
, RENNER, J.1

Hull, J. I concur in the result.

\ s \ HULL, J.