People v. Neece CA4/2 ( 2021 )

Filed 5/25/21 P. v. Neece CA4/2
See dissenting opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076360
v. (Super.Ct.No. FVI1101564)
BRANDON NEECE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant, Brandon Neece, filed a petition for resentencing pursuant
to Penal Code section 1170.95,1 which the superior court denied without prejudice. After
defendant filed a notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case. We affirm.
I. PROCEDURAL BACKGROUND
On April 9, 2012, the People charged defendant by felony information with
murder (§ 187, subd. (a), count 1), second degree robbery (§ 211, count 2), and two
counts of first degree residential burglary (§ 459, counts 3 & 4). On August 26, 2013,
pursuant to a negotiated plea, defendant pled guilty to second degree murder (§ 187,
subd. (a), count 1) and first degree residential burglary (§ 459, count 4). Pursuant to the
negotiated disposition, the court sentenced defendant to an indeterminate term of
imprisonment of 15 years to life.
On December 6, 2019, defendant filed a form petition for resentencing pursuant to
section 1170.95. Defendant did not check one of the boxes included in box No. 5, which
reads: “I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in the first degree.” At the
hearing on the petition on February 21, 2020, at which defendant did not appear, the court
noted: “One of the boxes needs to be checked. It’s not checked. All parts of box five
1 All further statutory references are to the Penal Code.
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apply to [defendant].” The public defender observed: “He didn’t check it off. That
would be correct, so it is facially insufficient.” The court denied the petition without
prejudice to defendant refilling.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We recognize that one panel of this court recently held that in
uncontested appeals from postjudgment orders, there is no reason to conduct a Wende
review of the record and that such appeals should be dismissed by order. (People v. Scott
(2020) 58 Cal.App.5th 1127, 1131-1132 (but see dis. opn. of Miller, J.), review granted
Mar. 17, 2021, S266853; accord People v. Cole (2020) 52 Cal.App.5th 1023, review
granted Oct. 14, 2020, S264278 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief.”]; accord People v. Figueras (2021)
61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We respectfully disagree.
We agree with another panel of this court, which recently held that in uncontested
appeals from the denial of a section 1170.95 petition, “we can and should independently
review the record on appeal in the interests of justice.” (People v. Gallo (2020)
57 Cal.App.5th 594, 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores
(2020) 54 Cal.App.5th 266, 269 [“[W]hen an appointed counsel files a Wende brief in an
appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not
required to independently review the entire record, but the court can and should do so in
the interests of justice.”]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [“[W]e
have the discretion to review the record in the interests of justice.”].) This procedure
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provides defendants an added layer of due process while consuming comparatively little
in judicial resources. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106,
we have independently reviewed the record for potential error and find no arguable
issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
I concur:
RAMIREZ
P. J.
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[People v. Neece, E076360]
MENETREZ, J., Dissenting.
Because this is an appeal from a postjudgment order, People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 do not require us to read the
entire record ourselves to look for arguable grounds for reversal. (People v. Thurman
(2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211 Cal.App.4th 496, 498.)
Appointed appellate counsel filed a brief raising no issues, and defendant was given the
opportunity to file a personal supplemental brief but declined. The appeal should
accordingly be dismissed as abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023,
1039-1040; People v. Scott (2020) 58 Cal.App.5th 1127, 1129-1130.)
MENETREZ
J.
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