People v. Herrera CA2/1 ( 2021 )

Filed 4/2/21 P. v. Herrera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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, B302278
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA041330)
v.
MICHAEL P. HERRERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Leslie E. Brown, Judge. Appeal dismissed.
________________________________
Kieran D. C. Manjarrez, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
I.
In 2000, defendant Michael P. Herrera, a member of a
criminal street gang, aided and abetted the murder of a rival gang
member and attempted to murder two others.
In 2002, a jury convicted defendant of second degree murder,
two counts of attempted first degree murder, and shooting into an
occupied motor vehicle. The jury also found true certain firearm
and gang enhancement allegations.
On defendant’s direct appeal, we modified the judgment
by striking the gang enhancements on the attempted murder
counts and affirmed the judgment as modified. (People v. Herrera
(Sept. 28, 2006, B181092) [nonpub. opn.].)
In February 2019, defendant filed a petition to recall his
sentence and be resentenced under Penal Code1 section 1170.95.
He alleged that he was convicted of murder pursuant to the felony
murder rule or the natural and probable consequences doctrine,
he “was not the actual killer,” and he could not now be convicted
of murder pursuant to changes made by recent amendments to
sections 188 and 189.
The court appointed counsel for defendant and set a hearing
on the petition. The People filed an opposition to the petition;
defendant, through counsel, filed a reply; and the People filed a
supplemental opposition.
At a hearing to determine whether defendant was eligible
for relief under section 1170.95, defendant was represented by the
attorney who represented him at his trial 18 years earlier. The
attorney reviewed the jury instructions in the record of the trial
and confirmed his recollection that the case was not prosecuted on
a theory of felony murder or the natural and probable consequences
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2
doctrine; rather, defendant had “been convicted as an aider and
abettor straight up to a murder.” The deputy district attorney
agreed.
Based on the representations of counsel, the court ruled that
defendant had “not stated a prima facie case” and, therefore, was
“not eligible for relief under [section] 1170.95[, subdivision (a)].”
Defendant filed a timely notice of appeal and we appointed
counsel for him.
II.
On January 25, 2021, counsel sent a copy of the record on
appeal to defendant and informed defendant of counsel’s intention
to file a brief that does not identify any arguable issues pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed
defendant “that under currently applicable procedures in this
appellate district, [defendant] must file a supplemental brief of his
own raising such issues as he thinks are appropriate before this
[c]ourt will review the record for itself to ascertain potential issues.”
Counsel thereafter filed a brief raising no issues on appeal
and, citing Wende, requested that we independently review
the record to determine if the lower court committed any error.
Defendant did not file a supplemental brief or otherwise inform us
of any potential issues for us to consider.
Although defendant’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, petn. for review pending, petn. filed
Mar. 29, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127,
1132, review granted Mar. 17, 2021, S266853; see also People v.
3
Serrano (2012) 211 Cal.App.4th 496, 503.)2 We agree with these
authorities.
Under Cole, “[i]f 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.)
Because defendant has not filed a supplemental brief, we
deem the appeal abandoned and, for that reason, it is dismissed.
(See Cole, supra, 52 Cal.App.5th at p. 1040, rev. granted.)
2 As the Cole court explained, in a criminal appeal from
a post-conviction order to which Wende does not apply, counsel
who finds no arguable issue is required to “file a brief with the
Court of Appeal setting forth (1) a brief statement of the pertinent
procedural history of the case, (2) a brief summary of the pertinent
facts, (3) counsel’s declaration that there are no reasonably
arguable issues to present on appeal, and (4) counsel’s affirmation
that he or she remains ready to brief any issues at the request of
the Court of Appeal.” (Cole, supra, 52 Cal.App.5th at p. 1038, rev.
granted.) Counsel in this case fulfilled these requirements.
4
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
5