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Filed 3/30/22 P. v. Ashby CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON WILLIAM ASHBY,

Defendant and Appellant. C094285

(Super. Ct. No. 17F6605)

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

436. In 20 18 , defendant Aaron William Ashby pleaded no contest to two counts of

receiving a stolen motor vehicle, both felonies under Penal Code section 496d, 1

subdivision (a)

, stemming from two separate cases: case N os. 17F6605 and 17F5498.

As to the count in case N o. 17F6605, defendant admitted that he sustained a prior serious

and/or violent felony conviction ( § 667.5, subd. (b)). As to both counts, defendant

1 U ndesignated statutory references are to the Penal Code.2

admitted a special allegation of aggregate and consecutive terms for multiple convictions

( § 1170.12). He was sentenced to a total of ei ght years four months in state prison.

Defendant subsequently filed a petition for resentencing under section 1170. 18

. The prosecutor filed an opposition to the petition, arguing the specified offenses were not

eligible under section 1170.18, the total value of the property exceeded $950, and that

defendant posed an unreasonable risk to public safety. The trial court denied the petition,

finding “[d]efendant’s plea included a factual basis which he agreed to . T hat was a

felony factual basis

. ” Defenda nt timely appeal ed from that order.

DISCUSSION

Appointed counsel for defendant filed an opening brief setting forth the facts of

the case and ask ing this court to review the record and determine whether there are any

arguable issues on appeal in accorda nce with People v. Wende, supra , 25 Cal. 3d 436.

Counsel advised defendant of h is right to file a supplemental brief within 30 days of the

date of filing of the opening brief. More than 30 days 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. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to

an appeal from an order denying a postconviction petition is an open question. Our

Supreme Cour t 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.) Arguably, review is required pursuant to Wende or its

federal constitutional counterpart, Anders , 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, S2678 70, 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 the3

a ppellate 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 a ny issues

raised by the defendant but otherwise may dismiss the appeal without conducting an

independent review of the record.’ ” ( Id. at p p. 112

- 113.)

Because appellate counsel complied with h is obligations, and defendant was

advised of h is right to fil e a supplemental brief, but did not do so, we consider

defendant’s appeal abandoned and order the appeal dismissed.

DISPOSITION

The appeal is dismissed.

KRAUSE , J.

I concur:

HOCH , J.1

MAURO, Acting P. J., Dissenting.

As the majority correctly explains, w hether the protections afforded by People v.

Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d

493] apply to an appeal from a postconviction petition for resentencing under Penal Code

section 1170.18 remains an open question. The California Supreme Court has not

addressed the issue

. The Anders / Wende procedures address appointed counsel ’ s

r epresentation of an indigent criminal defendant in the first appeal as a matter of right and

courts have been reluctant to expand their application to other proceedings or appeals.

(See , e.g., Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539];

C onservatorship of Ben C . (2007) 40 Cal.4th 529; In re Sade C . (1996) 13 Cal.4th 952;

People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008)

160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior

Court (2000) 78 Cal.App.4th 570.) N everthe less, until the California Supreme Court has

decided this particular issue

, I would adhere to Wende in the present case where counsel

has already undertaken to comply with Wende requirements

.

_________ MAURO

______ , Acting P. J.