People v. Jones CA2/2 ( 2023 )

Filed 5/9/23 P. v. Jones CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B321823
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA083201)
v.
ANTWION JONES,
Defendant and Appellant.
THE COURT:
On May 23, 2007, defendant and appellant Antwion
Jones was convicted after a jury trial of murder (Pen. Code,
§ 187, subd. (a); count 1),1 attempted murder (§§ 664/187,
subd. (a); count 2), and two counts of possession of a firearm by a
felon, resulting in great bodily injury or death (§ 12022.53, subd.
(d); counts 3 & 4). He was sentenced to a term of 75 years to life
1 All further statutory references are to the Penal Code
unless otherwise indicated.
on count 1 and 39 years to life on count 2, to be served
consecutively, in state prison. His sentences on counts 3 and 4
were stayed pursuant to section 654.
On May 24, 2022, defendant filed a petition for
resentencing pursuant to former section 1170.95.2
The trial court denied defendant’s motion on June 10,
2022, reasoning: “[T]he court file reflects that [defendant]
was the actual killer and was not convicted under a theory of
felony murder of any degree or a theory of natural and
probable consequences. There are no jury instructions for
aiding and abetting, felony murder, or natural and probable
consequences.” Defendant timely filed a notice of appeal.
Appointed counsel filed a brief raising no issues and asking
this court to conduct an independent review of the record
pursuant to People v. Serrano (2012) 211 Cal.App.4th 496.
Where appointed counsel finds no arguable issues in an
appeal seeking postjudgment relief, the appellate court is not
required to conduct an independent review for arguable issues.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review
granted Oct. 14, 2020, and issues for review expanded Oct. 27,
2021, S264278; see People v. Serrano, supra, 211 Cal.App.4th at
p. 503.) However, we do review any contentions or arguments
made if the defendant files his own supplemental brief or letter.
(People v. Cole, supra, at p. 1039.)
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For simplicity, we refer to the section by its new numbering.
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On January 27, 2023, we sent a notice to defendant stating
the following: “Counsel appointed to represent appellant on
appeal has filed a brief that raises no issues. ([People v. Serrano,
supra, 211 Cal.App.4th 496].) [¶] Appointed counsel is directed
to send the record of this appeal and a copy of appellant’s brief to
appellant immediately. Within 30 days of the date of this notice,
appellant may submit a supplemental brief or letter stating any
grounds for an appeal, or contentions, or arguments that
appellant wishes this court to consider. If no[] supplemental brief
is timely filed, the court may dismiss the appeal as abandoned.”
To date, defendant has not filed a supplemental brief.
An appeal from the denial of a section 1172.6 petition “does
not implicate a constitutional right to counsel[.]” (People v.
Delgadillo (2022) 14 Cal.5th 216, 222 (Delgadillo).) Accordingly,
when counsel finds no arguable issues in such an appeal, we are
not required to conduct an independent review of the record as
set out in People v. Wende (1979) 25 Cal.3d 436. (Delgadillo,
supra, at p. 222.) Rather, the California Supreme Court recently
prescribed the following procedures: “When appointed counsel
finds no arguable issues to be pursued on appeal: (1) counsel
should file a brief informing the court of that determination,
including a concise recitation of the facts bearing on the denial of
the petition; and (2) the court should send, with a copy of
counsel’s brief, notice to the defendant, informing the defendant
of the right to file a supplemental letter or brief and that if no
letter or brief is filed within 30 days, the court may dismiss the
matter. [Citations.]
“If the defendant subsequently files a supplemental
brief or letter, the Court of Appeal is required to evaluate the
specific arguments presented in that brief and to issue a
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written opinion. The filing of a supplemental brief or letter
does not compel an independent review of the entire record to
identify unraised issues. [Citations.] If the defendant does
not file a supplemental brief or letter, the Court of Appeal
may dismiss the appeal as abandoned. [Citation.] If the
appeal is dismissed as abandoned, the Court of Appeal does
not need to write an opinion but should notify the defendant
when it dismisses the matter. [Citation.] While it is wholly
within the court’s discretion, the Court of Appeal is not
barred from conducting its own independent review of the
record in any individual section 1172.6 appeal. [Citations.]”
(Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
Because neither defendant nor appellate counsel
identified an issue warranting reversal, we treat the appeal
as abandoned. Defense counsel’s motion to withdraw as
attorney of record is moot.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
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