People v. James CA3

Filed 11/23/22 P. v. James 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096534
Plaintiff and Respondent, (Super. Ct. No. 15F02663)
v.
GORDON JAMES,
Defendant and Appellant.
This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d
436. In 2016, at defendant Gordon James’s trial, evidence was introduced that defendant
stabbed a neighbor during an argument; the neighbor died from the stab wounds. (People
v. James (Oct. 18, 2017, C082820) [nonpub. opn.].)1 A jury found defendant guilty of
1 On our own motion, we take judicial notice of our opinion affirming the judgment
and conviction in defendant’s direct appeal. (Evid. Code, § 452, subd. (d) [permitting a
court to take judicial notice of records of “any court of this state”].) We provide this
summary of facts from the prior opinion in defendant’s direct appeal solely for context
and do not rely on these facts for our analysis or disposition here. (See Pen. Code,
§ 1172.6, subd. (d)(3).)
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second degree murder while personally using a knife and, on August 19, 2016, the trial
court sentenced defendant to 15 years to life plus one year consecutive for the deadly
weapon enhancement. (People v. James, supra, C082820.) Defendant appealed
contending there was insufficient evidence of malice; we affirmed. (Ibid.)
On December 9, 2021, defendant filed a petition for resentencing under Penal
Code former section 1170.95 alleging he was convicted of second degree murder under
the natural and probable consequences doctrine, but now he could not be convicted of
second degree murder because of changes to Penal Code section 188. The trial court
issued a tentative ruling denying defendant’s petition. The court noted defendant’s jury
was “not instructed on either felony-murder or the natural and probable consequences
doctrine” so defendant was “convicted solely on a theory of being the direct perpetrator.”
The trial court then set the matter for a prima facie case hearing.
On May 27, 2022, the trial court held a hearing on defendant’s petition for
resentencing. No further evidence was admitted and the parties submitted on their briefs
without additional argument. The trial court then found defendant ineligible for relief.
On July 5, 2022, the trial court issued a final order denying defendant’s petition for
reasons similar to those articulated in the tentative ruling.
DISCUSSION
Appointed counsel for defendant filed an opening brief setting forth the facts of
the case and asking this court to review the record and determine whether there are any
arguable issues on appeal in accordance with People v. Wende, supra, 25 Cal.3d 436.
Counsel advised defendant of his 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
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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.) 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, 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, supra, 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.
DISPOSITION
The appeal is dismissed.
KRAUSE , J.
I concur:
BOULWARE EURIE , J.
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MAURO, Acting P. J., Dissenting.
As the majority opinion correctly indicates, the California Supreme Court is
currently considering whether a defendant is entitled to People v. Wende (1979)
25 Cal.3d 436 review of an order denying postconviction relief. (See, e.g., People v.
Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021,
S266305; People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020,
S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021,
S267870.) Until the Supreme Court has had an opportunity to address the issue, I would
adhere to Wende in the present case.
MAURO , Acting P. J.
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