People v. Sedillo CA2/1 ( 2021 )

Filed 9/29/21 P. v. Sedillo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309401
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA085739)
v.
LISA SEDILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, James D. Otto, Judge. Appeal dismissed.
David Andreasen, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Lisa Sedillo filed a petition for resentencing under
Penal Code1 section 1170.95. After the court denied the petition,
Sedillo appealed. We appointed counsel for her, who filed a brief
that asserted no arguable issues and requested that we review the
record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Sedillo did not submit a supplemental brief or otherwise inform us
of any issues to be considered. As we explain below, we dismiss the
appeal.
I.
In 1992, Francisco Moreno shot and killed Jason Bandel
outside the home of David and Ricardo Huizar. Sedillo drove the
getaway car for Moreno.
In 2010, Sedillo made statements during telephone
conversations that implicated herself in the murder. The
conversations were recorded pursuant to a judicially authorized
wiretap. In 2011, she was charged with Bandel’s murder, among
other crimes, and convicted by a jury in 2013.
We affirmed Sedillo’s murder conviction in April 2015 in
a published opinion. (People v. Sedillo (2015) 235 Cal.App.4th
1037, 1070.) In rejecting her challenge to the sufficiency of the
evidence to support the murder conviction, we stated: “[T]here
was substantial evidence from which a rational jury could conclude
[Sedillo] intended to aid and abet Moreno’s murder of Bandel . . . .
Moreno used a rifle wrapped in a towel or sheet, which would have
been very conspicuous when carried in the [car Sedillo was driving];
the car drove by with both Moreno and [Sedillo] before the shooting,
implying they were surveilling the Huizar home; [Sedillo] sat in the
car while the shooting took place and when Moreno came back to
the car, sped away, implying she knew what he had done; and the
1 Subsequent statutory references are to the Penal Code.
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recorded phone calls demonstrate [Sedillo’s] intent to aid and abet.”
People v. Sedillo, supra, 235 Cal.App.4th at p. 1066.) It does not
appear from our opinion or the record in this case that the jury
was instructed on either the natural and probable consequences
doctrine or the felony-murder rule.
On February 13, 2019, Sedillo filed a petition for resentencing
under section 1170.95. The trial court appointed counsel for Sedillo
and ordered the Office of the Los Angeles County District Attorney
to file and serve a response to the petition.
On April 18, 2019, the People filed an opposition to the
petition on the ground that section 1170.95 violates various
constitutional provisions. The next day, the People filed a
supplemental opposition on the ground, inter alia, that Sedillo’s
murder conviction was not based on the felony-murder rule or the
natural and probable consequences doctrine.
On November 14, 2019, Sedillo, through her counsel, filed a
response to the People’s opposition. She conceded that the jury that
convicted her had not been instructed on either the felony-murder
rule or the natural and probable consequences doctrine, but argued
that she was entitled to relief because “she was not the actual
killer.”
Both sides subsequently filed supplemental briefs.
On October 2, 2020, the court denied Sedillo’s petition,
stating that “there was sufficient evidence for the jury to find
beyond a reasonable doubt, as they did, that [Sedillo] aided and
abetted Moreno in the murder with implied malice.”
Defendant filed a timely notice of appeal and we appointed
counsel for her.
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II.
On July 2, 2021, Sedillo’s counsel wrote to Sedillo and
informed her of his intention to file a brief that does not identify
any arguable issues pursuant to Wende, supra, 25 Cal.3d 436. He
also informed Sedillo of her right to file a supplemental brief and
to receiving counsel’s copy of the record on appeal. He sent a copy
of his brief to Sedillo and filed the brief with this court the same
day.
On July 2, 2021, this court sent a letter to Sedillo informing
her that she may submit within 30 days a supplemental brief
or letter stating any grounds for an appeal, or contentions, or
arguments that appellant wishes this court to consider.
Sedillo did not file a supplemental brief or otherwise inform
us of any potential issues for us to consider.
III.
Although Sedillo’s counsel requests that we follow the
procedures identified in Wende, he acknowledges that a division
of this court has held that Wende does not apply when, as here, the
appeal is other than a direct appeal from the defendant’s conviction.
(See People v. Cole (2020) 52 Cal.App.5th 1023, 1034 (Cole), review
granted Oct. 14, 2020, S264278; accord, People v. Figueras (2021)
61 Cal.App.5th 108, 111−113, review granted May 12, 2021,
S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1132, review
granted Mar. 17, 2021, S266853; see also People v. Serrano (2012)
211 Cal.App.4th 496, 503.)2 We agree with these authorities.
2Our Supreme Court has granted review in People v.
Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], petition for
review granted February 17, 2021, S266305, to decide what
procedures appointed counsel and the Courts of Appeal must follow
when counsel determines that an appeal from an order denying
4
Under Cole, when an appeal is from a collateral attack
on a conviction and “the defendant does not file a supplemental
brief, the Court of Appeal may dismiss the appeal as abandoned.
This is because the order appealed from is presumed to be correct
[citation], and in the absence of any arguments to the contrary,
ineluctably leads to the conclusion that the appellant has not
carried his or her burden of proving otherwise.” (Cole, supra,
52 Cal.App.5th at pp. 1039–1040, rev. granted.)
Here, Sedillo has not filed a supplemental brief. We therefore
deem the appeal abandoned and, for that reason, it is dismissed.
postconviction relief lacks arguable merit and whether defendants
are entitled to notice of these procedures. (Supreme Ct. Minutes,
Feb. 17, 2021, p. 200.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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