People v. Collins CA1/5 ( 2021 )

Filed 9/29/21 P. v. Collins CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A162366
v.
MICHAEL ELLIS COLLINS, (Alameda County
Defendant and Appellant. Super. Ct. No. 161265)
This is an appeal from a postconviction order denying the petition of
defendant Michael Ellis Collins for a recall of sentence and resentencing
under Penal Code1 section 1170.91, subdivision (b)2 (hereinafter, petition).
1 Unless otherwise stated, all statutory citations are to the Penal Code.
Section 1170.91, subdivision (b)(1) provides: “A person currently
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serving a sentence for a felony conviction, whether by trial or plea, who is, or
was, a member of the United States military and who may be suffering from
sexual trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems as a result of his or her military
service may petition for a recall of sentence, before the trial court that
entered the judgment of conviction in his or her case, to request resentencing
pursuant to subdivision (a) if the person meets both of the following
conditions:
“(A) The circumstance of suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health
problems as a result of the person’s military service was not considered as a
factor in mitigation at the time of sentencing.
After defendant filed a timely notice of appeal and appellate counsel
was appointed to represent him, counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) in which she raises no issue for appeal
and asks this court for an independent review of the record. (See People v.
Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) Counsel attests that defendant was
advised of his right to file a supplemental brief in a timely manner, but he
did not exercise this right.
We dismiss this appeal without conducting a Wende review. As
explained post, defendant has no right to this review process because this
appeal is not his first appeal as of right. While we could as a matter of
discretion review the record for reasonably arguable issues, we decline to do
so given defendant’s failure to file a supplemental brief.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2010, defendant was convicted of first degree murder.
Two enhancements, for knife use and a prior prison commitment, were also
found true. Defendant was sentenced to 27 years to life. On appeal, we
reversed defendant’s one-year sentence for the prior prison commitment
enhancement but otherwise affirmed the judgment. (People v. Collins
(Nov. 28, 2011, A128479) [nonpub. opn.].)
On July 22, 2019, defendant filed this petition for recall of sentence and
resentencing pursuant to section 1170.91, subdivision (b). By his petition,
defendant sought relief based on his alleged suffering from posttraumatic
stress syndrome, substance abuse, paranoid schizophrenia and bipolar
“(B) The person was sentenced prior to January 1, 2015. This
subdivision shall apply retroactively, whether or not the case was final as of
January 1, 2015.”
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disorder as a result of his service in the United States military. On July 29,
2019, the trial court ordered that counsel be appointed to represent him.
Appointed counsel advised defendant by letter that he was not eligible
for relief under section 1170.91, as he was sentenced to an indeterminate
term and the statute applies only to determinate sentences. Thus, on
February 11, 2020, defendant requested that his petition be withdrawn.
On October 16, 2020, however, defendant requested that the trial court
reinstate his petition and appoint new counsel to represent him.
On January 27, 2021, the court denied defendant’s request for new
counsel. On February 8, 2021, the court then denied defendant’s petition,
finding no legal basis for affording him relief from his indeterminate
sentence.
On March 29, 2021, defendant filed a timely notice of appeal.
DISCUSSION
As mentioned, neither appointed counsel nor defendant has identified
any issue for our review. In briefing, appointed counsel correctly recognizes
that Wende review is constitutionally required only from a defendant’s first
appeal from a criminal conviction. This review is not required from his
present appeal, which is from a postconviction order denying sentencing
relief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted
Oct. 14, 2020, S264278 (Cole) [Wende does not apply to appeals from the
denial of postconviction relief]; see, e.g., People v. Freeman (2021) 61
Cal.App.5th 126, 133, review den. May 12, 2021, S268011 [Wende procedures
inapplicable to appeal from an order revoking postrelease community
supervision, as such an appeal is not a direct appeal from a judgment of
conviction]; People v. Flores (2020) 54 Cal.App.5th 266, 273 (Flores) [no right
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to Wende review in an appeal from postconviction denial of petition for
resentencing under § 1170.95].)
Accordingly, because defendant has failed to file a supplemental brief
raising any issue for our review, we dismiss the appeal. (Cole, supra, 52
Cal.App.5th at p. 1028 [court may dismiss an appeal as abandoned when
counsel files a Wende brief and defendant does not file a supplemental brief].)
In any event, the result would be the same were we to exercise our
discretion to conduct a Wende review in this case. (See Flores, supra, 54
Cal.App.5th at p. 273 [“[while] we are not required to conduct an independent
review of the record because this is not defendant’s first appeal as a matter of
right—we have found no legal authority that prohibits us from doing so in the
interests of justice”].) The trial court correctly denied defendant’s petition, as
he seeks relief from an indeterminate sentence and section 1170.91 applies
only to determinate sentences. (People v. Estrada (2020) 58 Cal.App.5th 839,
843 [“section 1170.91 only applies to determinate terms imposed under
section 1170, subdivision (b)”].)
DISPOSITION
The appeal is dismissed.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A162366/People v. Michael Ellis Collins
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