Filed 6/3/21 P. v. Cruz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076303
v. (Super.Ct.No. INF26149)
RICARDO CRUZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant and appellant Ricardo Cruz appeals from a postjudgment order denying
his Penal Code1 section 1170.95 petition to vacate his first degree murder conviction and
obtain resentencing under the procedures established by Senate Bill No. 1437. 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 (Anders), requesting this court to conduct
an independent review of the record. In addition, defendant has had an opportunity to file
a supplemental brief with this court and has not done so. As defendant has failed to file a
supplemental brief raising any issues for our review, we shall dismiss the appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND2
On December 6, 1996, at 11 p.m., defendant, the victim, and two prosecution
witnesses were drinking beer inside a van near a trailer park dumpster. The victim and
one of the prosecution witnesses were sitting in the front seats, defendant was in the
middle seat, and the other prosecution witness was in the rear. When the front
prosecution witness got out of the van to urinate, defendant moved behind the victim and
began stabbing him. Although the victim managed to get out of the van, he died near the
dumpster. Defendant and the victim had argued 15 days earlier over the color of clothing
1 All future statutory references are to the Penal Code unless otherwise stated.
2 A summary of the factual background is taken from this court’s nonpublished opinion in defendant’s prior appeal, case No. E026256. (People v. Cruz (July 3, 2001, E026256) [nonpub. opn.] (Cruz I).)
2 the victim was wearing and its purported ties to a Hispanic gang. (Cruz I, supra,
E026256, at pp. 2-3.)
Defendant was convicted of first degree murder (§ 187) with the personal use of a
knife (§ 12022, subd. (b)). The trial court found true that defendant had suffered two
prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to an indeterminate
term of 25 years to life, plus a determinate term of three years.
Defendant subsequently appealed, claiming ineffective assistance of counsel, juror
misconduct, judicial misconduct, and instructional error. On July 3, 2001, we affirmed
the judgment in a nonpublished opinion. (See Cruz I, supra, E026256, pp.1-17.)
Approximately 20 years later, on October 21, 2020, defendant in propria persona
filed a petition for resentencing pursuant to section 1170.95. He declared that he was
prosecuted under the felony-murder theory or the natural and probable consequences
doctrine; he was convicted of first degree murder under one of those theories; and he
could not now be so convicted due to the changes to sections 188 and 189, effective
January 1, 2019. He further declared he was not the actual killer, did not aid and abet the
murder, and was not a major participant or did not act with reckless indifference to
human life in the commission of the felony.
The petition was heard on November 6, 2020. The prosecutor informed the trial
court that based on the facts set forth in our 2001 appellate opinion, defendant was the
actual killer and did not qualify for relief. Neither counsel was aware of any evidence
3 that another person was involved. Over defense counsel’s objection, the court denied
defendant’s petition without prejudice. Defendant appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case, a summary of the procedural background and potential arguable
issues, and requesting this court to conduct an independent review of the record. Counsel
has raised the issues of whether defendant is eligible for relief under section 1170.95;
whether defense counsel’s objection for the record was sufficient to preserve any issue on
appeal; and whether the record of the underlying trial, specifically the jury instructions
which show the jury was not instructed on either the felony-murder rule or the natural
and probable consequences theory, disqualifies defendant from relief under
section 1170.95.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Our high court is currently considering whether an appellate court must conduct an
independent review of the record when counsel files a Wende brief after the trial court
denies a petition for resentencing under section 1170.95. (People v. Delgadillo, rev.
granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court
of Appeal cases have consistently held that we are not required to conduct such a review
and may dismiss an appeal as abandoned if the defendant does not file a supplemental
4 brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues, either where an initial
review does not show the defendant is obviously ineligible for relief (such as when the
defendant was convicted on a theory he was the actual killer) or as a routine matter. (See
People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54
Cal.App.5th 266, 269-274.)
In this case, we conclude defendant is not entitled to Wende review of an order
denying his petition for resentencing under section 1170.95. Review pursuant to Wende,
or its federal constitutional counterpart Anders, is required only in the first appeal of right
from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555;
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben C.); People v. Serrano
(2012) 211 Cal.App.4th 496, 500-501 (Serrano).)
The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional
right to counsel extends to the first appeal of right, and no further.
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Filed 6/3/21 P. v. Cruz CA4/2
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, E076303
v. (Super.Ct.No. INF26149)
RICARDO CRUZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant and appellant Ricardo Cruz appeals from a postjudgment order denying
his Penal Code1 section 1170.95 petition to vacate his first degree murder conviction and
obtain resentencing under the procedures established by Senate Bill No. 1437. 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 (Anders), requesting this court to conduct
an independent review of the record. In addition, defendant has had an opportunity to file
a supplemental brief with this court and has not done so. As defendant has failed to file a
supplemental brief raising any issues for our review, we shall dismiss the appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND2
On December 6, 1996, at 11 p.m., defendant, the victim, and two prosecution
witnesses were drinking beer inside a van near a trailer park dumpster. The victim and
one of the prosecution witnesses were sitting in the front seats, defendant was in the
middle seat, and the other prosecution witness was in the rear. When the front
prosecution witness got out of the van to urinate, defendant moved behind the victim and
began stabbing him. Although the victim managed to get out of the van, he died near the
dumpster. Defendant and the victim had argued 15 days earlier over the color of clothing
1 All future statutory references are to the Penal Code unless otherwise stated.
2 A summary of the factual background is taken from this court’s nonpublished opinion in defendant’s prior appeal, case No. E026256. (People v. Cruz (July 3, 2001, E026256) [nonpub. opn.] (Cruz I).)
2 the victim was wearing and its purported ties to a Hispanic gang. (Cruz I, supra,
E026256, at pp. 2-3.)
Defendant was convicted of first degree murder (§ 187) with the personal use of a
knife (§ 12022, subd. (b)). The trial court found true that defendant had suffered two
prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to an indeterminate
term of 25 years to life, plus a determinate term of three years.
Defendant subsequently appealed, claiming ineffective assistance of counsel, juror
misconduct, judicial misconduct, and instructional error. On July 3, 2001, we affirmed
the judgment in a nonpublished opinion. (See Cruz I, supra, E026256, pp.1-17.)
Approximately 20 years later, on October 21, 2020, defendant in propria persona
filed a petition for resentencing pursuant to section 1170.95. He declared that he was
prosecuted under the felony-murder theory or the natural and probable consequences
doctrine; he was convicted of first degree murder under one of those theories; and he
could not now be so convicted due to the changes to sections 188 and 189, effective
January 1, 2019. He further declared he was not the actual killer, did not aid and abet the
murder, and was not a major participant or did not act with reckless indifference to
human life in the commission of the felony.
The petition was heard on November 6, 2020. The prosecutor informed the trial
court that based on the facts set forth in our 2001 appellate opinion, defendant was the
actual killer and did not qualify for relief. Neither counsel was aware of any evidence
3 that another person was involved. Over defense counsel’s objection, the court denied
defendant’s petition without prejudice. Defendant appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case, a summary of the procedural background and potential arguable
issues, and requesting this court to conduct an independent review of the record. Counsel
has raised the issues of whether defendant is eligible for relief under section 1170.95;
whether defense counsel’s objection for the record was sufficient to preserve any issue on
appeal; and whether the record of the underlying trial, specifically the jury instructions
which show the jury was not instructed on either the felony-murder rule or the natural
and probable consequences theory, disqualifies defendant from relief under
section 1170.95.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Our high court is currently considering whether an appellate court must conduct an
independent review of the record when counsel files a Wende brief after the trial court
denies a petition for resentencing under section 1170.95. (People v. Delgadillo, rev.
granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court
of Appeal cases have consistently held that we are not required to conduct such a review
and may dismiss an appeal as abandoned if the defendant does not file a supplemental
4 brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues, either where an initial
review does not show the defendant is obviously ineligible for relief (such as when the
defendant was convicted on a theory he was the actual killer) or as a routine matter. (See
People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54
Cal.App.5th 266, 269-274.)
In this case, we conclude defendant is not entitled to Wende review of an order
denying his petition for resentencing under section 1170.95. Review pursuant to Wende,
or its federal constitutional counterpart Anders, is required only in the first appeal of right
from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555;
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben C.); People v. Serrano
(2012) 211 Cal.App.4th 496, 500-501 (Serrano).)
The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional
right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500-
501.) While a criminal defendant has a right to appointed counsel in an appeal from an
order after judgment affecting his or her substantial rights (Pen. Code, §§ 1237, 1240,
5 subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus,
defendant is not entitled to Wende review in such an appeal. (See Serrano, at p. 501.)
The appeal before us, “although originating in a criminal context, is not a first appeal of
right from a criminal prosecution, because it is not an appeal from the judgment of
conviction.” (Ibid.) Because defendant has not personally filed a supplemental brief, we
will dismiss his appeal as abandoned.
We note, however, that the result would be the same even if we were to exercise
our discretion to conduct an independent review. The jury was not instructed on either
felony murder or the natural and probable consequences doctrine, and there is no dispute
that defendant was the actual killer. The trial court correctly denied defendant’s
section 1170.95 petition.
IV. DISPOSITION
The appeal is dismissed as abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J. We concur:
SLOUGH J.
FIELDS J.