People v. Reyes CA4/2

Opinion

Filed 2/13/24 P. v. Reyes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081854

v. (Super.Ct.No. FVI801876-2)

JULIANA JACKELIN REYES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael Dauber,

Judge. Dismissed.

Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Juliana Jackelin Reyes appeals the denial of her petition under Penal Code sections 1 851.91 and 851.93 to seal her arrest record. Her attorney has filed a brief under the

1 Unlabeled statutory citations refer to the Penal Code.

1 2 authority of People v. Wende and Anders v. California informing this court they were

unable to identify any errors and asking us to perform an independent review of the

record. We dismiss.

BACKGROUND

In 2008, Reyes pled no contest to maintaining a place to distribute controlled

substances, a misdemeanor. (Health & Saf. Code, § 11366.) The court placed her on

three years’ probation. In 2014, Reyes filed and the court granted her motion under

section 1203.4 to dismiss her conviction.

In 2023, Reyes filed a petition under sections 851.91 and 851.93 to have her arrest

record in this case sealed. The court denied the petition.

ANALYSIS

On Reyes’s request, we appointed counsel to represent her on appeal. Counsel

filed a brief declaring they found no arguably meritorious issues to appeal, setting out a

statement of the case, and asking us to conduct an independent review of the record.

When appealing from a postconviction order a defendant does not have a

constitutional right to independent review under Anders/Wende if appellate counsel

cannot identify any arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 227,

231 (Delgadillo).) However, “[i]f the defendant subsequently files a supplemental brief

or letter, the Court of Appeal is required to evaluate the specific arguments presented in

2 Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).

2 that brief and to issue a written opinion.” (Id. at p. 232.) “If the defendant does not file a

supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned.”

(Ibid.) Here, after appellate counsel filed a brief notifying us Reyes’s appeal presented

no arguable issues, we offered Reyes an opportunity to file a personal supplemental brief,

and she did not.

However, a notice provided to defendant may be “suboptimal” if the defendant

“reasonably could have concluded” from it “that the Court of Appeal would conduct an

independent review of the record, even absent a supplemental brief.” (People v.

Delgadillo, supra, 14 Cal.5th at pp. 232-233.) As Delgadillo noted, independent review

of the record under Anders/Wende happens automatically after receiving a brief from

appointed counsel under the authority of those cases and “‘does not depend on the . . .

receipt of a brief from the defendant personally,’” whereas under Delgadillo, “the Court

of Appeal may dismiss the appeal as abandoned” “[i]f the defendant does not file a

supplemental brief or letter.” (Id. at pp. 232-233.) Thus, when Delgadillo applies, but

the notice sent to the defendant cites only to Anders/Wende, confusion may plausibly

result. The notice in Delgadillo had this flaw (id. at p. 233), as did the notice here.

As a result, although Reyes has not filed a supplemental brief we have examined

the record to determine whether it contains any arguable issues. We conclude that it does

not.

“[S]ection 851.91 relief is available when a conviction has been vacated in the

superior court,” however “a change of plea and dismissal of the accusatory pleading

3 under section 1203.4 is not the equivalent of vacation of a conviction under section

851.91.” (People v. E.B. (2020) 51 Cal.App.5th 47, 56.) Therefore, Reyes does not

qualify for relief under section 851.91, and the court did not err by denying that relief.

Nor can we offer Reyes any relief under section 851.93, as that section applies

only to the Department of Justice and appellant cannot seek relief on her own. Section

851.93, subdivision (a) requires that “[o]n a monthly basis, the Department of Justice

shall review the records in the statewide criminal justice databases, and . . . identify

persons with records of arrest that . . . are eligible for arrest record relief.” Once it has

identified such persons, it must “grant relief . . . without requiring a petition or motion by

a party for that relief,” if it can and “electronically submit a notice to the superior court

having jurisdiction over the criminal case, informing the court of all cases for which a

complaint was filed in that jurisdiction and for which relief was granted.” (§ 851.93,

subds. (b)(1), (c).) Thus, the statute does not allow arrestees to obtain relief through a

petition or motion, and does not authorize courts to offer any relief. Because Reyes was

incapable of raising this issue on her own, we are incapable of considering it. (See

People v. Escobedo (2023) 95 Cal.App.5th 440, 448 [“when the Legislature wants to

authorize defendants to seek relief by way of a petition, as in section 1172.6, it knows

how to do so”].)

Since Reyes has not raised any arguable issues and our independent review of the

record has not discovered any, the case may be dismissed. (Delgadillo, supra, 14 Cal.5th

at p. 233.)

4 DISPOSITION

We dismiss the appeal as abandoned.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL J.

We concur:

RAMIREZ P. J.

MENETREZ J.