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Filed 9/ 2/22 P. v. King CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yolo)

----
THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN LYNELL KING,

Defendant and Appellant. C095791

(Super. Ct. No. CRF20062847)

In 200 9 , a jury found d efendant Kevin King guilty of second degree murder
, gross vehicular manslaughter while intoxicated, vehicular manslaughter, felony driving under the influence of alcohol or drugs, felony hit and run resulting in death, and driving on a suspended license. The jury found true defendant dr o ve under the influ ence within 10

years with three or more prior convictions and fled the scene of the accident

. Defendant

struck and killed the victim with his van and drove away. ( People v. King (Feb. 28, 2012
, C063804) [nonpub. opn

. ].) When he was arrested, his blood

- alcohol level was 0

. 1 percent, and his blood tested positive for marijuana, cocaine
, and Ecstasy. ( Ibid

. ) T he

trial court sentenced him to 19 years in prison

. ( Ibid

. )

On January 19, 2019, defendant filed a form petition for resentencing pursuant to

former Penal Code section 1170.95

. 1 He checked the two box es : he was not a major

1 The Legislature amended section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 551). This amendment to section2

participant in the crime or he did not act with reckless disregard for human life and the

victim was not a police officer . H e did not check the two box es : he was not th e actual

killer and he was not an accomplice who aided and abetted the crime with an intent to

kill. T he trial court denied the petition

. D efendant appealed filing a brief requesting our

review under People v. Wende (1979) 25 Cal.3d 436. On our own motion, we dismissed that appeal as abandoned

. On July 21, 2021, defendant filed a “motion to appeal from the t rial court’s
postjudgment order denying [his] petition for resentencin g” under former

section 1170.95. ( Capitalization omitted

. ) He attached his prior petition. Counsel

notified the trial court that the trial judge
, in the original jury trial
, did not instruct the jury on any eligible theory
, and counsel would not be filing any additional papers in support of the motion

. T he trial court denied the motio n and defendant filed this appeal

with a brief requesting our review under People v. Wende
, supra , 25 Cal.3d at page 436.

DISCUSSION We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the relevant procedural history of the case and requests this court review the record and determine whether there are any arguable issues on appeal.
( People v. Wende
, supra , 25 Cal.3d at p. 436.) Defendant w as advised by counsel of the right to file a supplemental brief

. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Whether the protections afforded by Wende and the United States Supreme

Court ’ s decision in Anders v. Califo rnia (1967) 386 U.S. 738 apply to an appeal from an
order denying a petition brought under section 1170.95 is an open question. Our

1170.95 has no impact on the issues raised by this appeal. Further, e ffective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stat s. 2022, ch. 58.) There were no substantive changes to the statute. For purposes of clarity and conformity with the petition, we will continue to refer to the statute as former section 1170.95 throughout the opinion.3

Supreme Court has not 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.) 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.’ ” ( Id. at pp. 112

- 113.)

We consider defendant ’ s appeal abandoned and order the appeal dismissed.

DISPOSITION The appeal is dismissed.

/s/ Robie, Acting P. J. I concur:

/s/ Boulware Eurie J.

I concur in the result:

/s/ Hull, J.