Filed 8/25/20 P. v. Bills CA2/4

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                         SECOND APPELLATE DISTRICT
                                       DIVISION FOUR




 THE PEOPLE,                                                  B301800

           Plaintiff and Respondent,                          (Los Angeles County
                                                              Super. Ct. No. A790003)
           v.

 WALLACE ARTHUR BILLS,

           Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Dismissed.
     Marta I. Santon, under appointment by the Court of
Appeal, for Defendant and Appellant.
     No appearance for Plaintiff and Respondent.
       Appellant Wallace Arthur Bills was convicted of special
circumstance murder, burglary, and robbery in 1989. In 2019, he
petitioned the trial court for resentencing under Penal Code
section 1170.95.1 After issuing an order to show cause and
appointing counsel for appellant, the trial court denied his
petition, finding that appellant was not eligible for resentencing
under section 1170.95. Appellant appealed. Citing People v.
Wende (1979) 25 Cal.3d 436 (Wende), his appointed counsel filed
an opening brief requesting that this court independently review
the entire record on appeal for arguable issues. Following People
v. Cole (2020) ___ Cal.Rptr.3d___, ___ Cal.App.5th ___ 2020 WL
4435275 (Cole), we conclude we are not obligated to do so and
dismiss the appeal as abandoned.
                          BACKGROUND
I.     Underlying Convictions
       Appellant was charged with special circumstance murder
(§§ 187, subd. (a), 190.2, subd. (a)(17), count one),2 residential
burglary (§ 459, count two), and robbery (§ 211, count three). It
was further alleged that appellant personally used a knife during
the commission of each count (§ 12022, subd. (b)) and personally
inflicted great bodily injury on victim Irene Katherine Davis
during the commission of counts two and three (§ 12022.7).



      1All further statutory references are to the Penal Code
unless otherwise indicated.
      2The special circumstance alleged was that “[t]he murder

was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the
immediate flight after committing, or attempting to commit, . . .
[r]obbery in violation of Section 211 or 212.5.” (§ 190.2, subd.
(a)(17)(A).)



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Appellant and a codefendant, Maurice Alston, also known as
Tyrone Jarrad Williams, proceeded to jury trial.
       According to our previous decision in this case, People v.
Bills (1995) 38 Cal.App.4th 953 (Bills), which is part of the record
on appeal, the following relevant facts were adduced at the joint
trial.
       Appellant told Alston that he needed $700. (Bills, supra,
38 Cal.App.4th at p. 956.) Alston knew that victim Davis, an
elderly cousin of his grandmother, kept large sums of cash in a
valise or suitcase in her bedroom. (Ibid.) Appellant, Alston, and
a third uncharged party drove from El Paso, Texas, to Davis’s
home in Los Angeles to steal money from her. (Ibid.)
       Davis let appellant and Alston into her home. (Bills, supra,
38 Cal.App.4th at p. 956.) Both prior to appellant and Alston’s
entry and while they were inside, the uncharged party drove the
getaway car around the block multiple times. (Ibid.) The circling
drew the attention of neighbors, who called police. (Ibid.) When
the police arrived, they saw appellant and Alston carrying from
the bedroom to the kitchen what officers believed to be a rolled up
carpet. Appellant and Alston then exited the home and ran into
the backyard. Officers observed appellant throw a knife on the
ground and Alston throw a suitcase on the roof before
apprehending both of them. Appellant’s and Alston’s shoes and
the knife were bloody, the knife had Alston’s thumbprint on it,
and the suitcase was found to contain papers bearing Davis’s
name and nearly $15,000 in cash. (Id. at p. 957.)
       Police found Davis lying dead on her kitchen floor in a pool
of blood; her throat was “slashed from ear to ear,” and she “had
stab wounds in the chin and eye.” (Ibid.) Davis had also been
strangled and subjected to blunt force trauma; the coroner opined




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these injuries occurred before her throat was slashed, and
attributed her death to “the combined effect” of her injuries.
(Ibid.) There were blood spatters and signs of a struggle in the
kitchen but not the bedroom, and a kitchen drawer containing
knives was partially open. (Ibid.)
       Alston testified at trial, “admitting that he and Bills
planned to enter the residence for the purpose of stealing the
victim’s money, but blaming Bills for the actual killing.” (Bills,
supra, 38 Cal.App.4th at p. 957.) “According to Alston’s
testimony, Alston left Bills and the victim in the kitchen while
Alston excused himself, ostensibly to use the bathroom but
actually to sneak into the bedroom and steal money from the
valise. He had located the valise and then heard a noise in the
kitchen. Returning to the kitchen he found Bills over the victim’s
body, shoving her head onto the floor. When Alston grabbed Bills
and yelled, ‘What the fuck is you doing?,’ Bills struck Alston in
the mouth and said, “‘Don’t trip out now. It’s too late for that.’”
Alston ran to other portions of the house looking for keys to let
[Bills and himself] out of the double-locked doors. When he
returned to the kitchen he saw the victim in a pool of blood and
Bills holding a knife.” (Ibid.) We noted that Alston’s testimony
“failed to account for his thumbprint on the knife or for Sergeant
Koon’s observation of both appellant[ and Alston] carrying the
body from the bedroom to the kitchen.” (Ibid.) Appellant did not
present evidence to refute Alston’s testimony, although he did
present two character witnesses who testified to his reputation
for nonviolence. (Ibid.)
       The jury convicted appellant and Alston “of first degree
murder, robbery, and burglary, with the special circumstances
that the murder was committed in the course of robbery and




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burglary, and with enhancements that each inflicted great bodily
injury and that Alston personally used a knife.” (Bills, supra, 38
Cal.App.4th at p. 956.) Appellant and Alston were sentenced to
life without the possibility of parole. (Ibid.) We affirmed their
convictions. (Id. at p. 963.)
II.    Section 1170.95 Proceedings
       On March 4, 2019, appellant, in propria persona, filed a
petition for resentencing under section 1170.95. That statute,
which became effective January 1, 2019, allows a “person
convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” under certain conditions. (§ 1170.95,
subd. (a).) Appellant checked all but one box on the form petition,
including those stating, “I was not the actual killer” and “I did
not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer of the commission of
murder in the first degree.” He also requested the appointment
of counsel. (See § 1170.95, subd. (b)(1)(C).)
       On May 22, 2019, the trial court issued an order to show
cause appointing counsel for appellant and setting the matter for
a hearing. (§ 1170.95, subd. (c).) The trial court explained that it
had “tried to obtain additional information in order to
appropriately rule on the petition,” but had been unable to do so.
It further noted, “it appears [appellant] was convicted by jury and
that the [sic] he was charged with personal use of a weapon.
However, without more, the court must assume [appellant’s]
factual allegations are true . . . .” At the prosecution’s request,
and without objection from appellant, the trial court extended the




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prosecution’s time to file its opposition and set the matter for
hearing on September 23, 2019.
       On September 19, 2019, the prosecution filed an opposition
to appellant’s petition. It argued that section 1170.95 was
unconstitutional, and that appellant was not eligible for relief in
any event because, based on the facts and jury findings stated in
our previous opinion, appellant either “1) was the actual killer, 2)
had the specific intent to kill, or 3) was a ‘major participant’ who
acted ‘with reckless indifference to human life.’” (See §§ 1170.95,
subd. (a)(3), 189, subd. (e).)
       On September 23, 2019, the trial court summarily denied
the petition. It found that the evidence at appellant’s trial,
“which the jury clearly believed given the verdicts, is sufficient
evidence that [appellant] was the actual killer” and therefore
rendered him ineligible for relief under section 1170.95 as a
matter of law. The court “acknowledge[d] that felony murder
jury instructions were given,” but concluded from its review of
“the information filed by [appellant], a summary of the facts
provided by the People and confirmed by the Court of Appeal
Opinion and the other documents available to the court” that
appellant was the actual killer.
       Appellant timely appealed. His appointed counsel filed a
brief requesting that we independently review the record for
error. (Wende, supra, 25 Cal.3d at p. 441.) We directed counsel
to send the record and a copy of the brief to appellant, and
notified appellant of his right to file a supplemental brief within
30 days. Appellant has not timely filed a supplemental brief.
                            DISCUSSION
       Whether the process contemplated by Wende and Anders v.
California (1967) 386 U.S. 738 applies to an appeal from an order




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denying a petition for resentencing under section 1170.95 has
been an open question. Recently, our colleagues in Division Two
of the Second District Court of Appeal “reject[ed] the notion that
the Constitution compels the adoption or extension of Wende
procedures (or any subset of them) for appeals other than a
criminal defendant’s first appeal of right.” (Cole, supra, at 2020
WL 4435275, at p. *5.) After engaging in a persuasive analysis of
review procedures that have been applied in various contexts, the
court prescribed procedures to be followed “when counsel is
appointed to represent a defendant who is appealing the denial of
postconviction relief.” (Id. at p. *7.) We agree with and adopt the
analysis and procedures set forth in Cole, which we summarize
here.
       “First, counsel must independently review the ‘entire
record’ and ‘thoroughly research the law.’ [Citations.]” (Cole,
supra, at p. *7.) Counsel must then assess whether there are any
reasonably arguable issues to present on appeal. (Ibid.) If there
are, counsel must file a brief setting forth those issues. If there
are not, “counsel must 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.” (Ibid.) Like the court in Cole, “[w]e will not
require counsel to set forth the ‘applicable law’ in the brief
because (1) the cases requiring counsel to do so in first appeals of
right do not uniformly require counsel to do so . . . and (2) the
purpose of requiring counsel to set forth the ‘applicable law’—
that is, to aid the Court of Appeal in its independent review of the




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record [citations]—is irrelevant where, as here, a court has no
duty to conduct such a review.” Finally, counsel must provide the
client with a copy of the brief and inform the client that he or she
has the right to file a supplemental brief with the Court of Appeal
within 30 days. (Id. at p. *8.) We will also notify the appellant of
his or her right to file a supplemental brief. (Ibid.)
       We agree with Cole, for the reasons set forth in that
opinion, that the “Court of Appeal has no independent duty to
review the record for reasonably arguable issues” in an appeal
that is not a first appeal of right. (Cole, supra, at p. *8.) If the
appellant timely files a supplemental brief, however, we are
obliged “to evaluate any arguments presented in that brief and to
issue a written opin ion that disposes of the trial court’s order on
the merits.” (Ibid.) If the appellant does not timely file a
supplemental brief, we may dismiss the appeal as abandoned,
“because the order appealed from is presumed to be correct,” and,
“in the absence of any arguments to the contrary,” we must
conclude that the appellant “has not carried his or her burden of
proving otherwise.” (Ibid.) When we dismiss an appeal as
abandoned, we “need not write an opinion because ‘[n]othing is
served by requiring a written opinion when the court does not
actually decide any contested issues.’ [Citation.]” (Ibid.)
       Applying the foregoing procedures, we conclude that
appellate counsel has complied with her obligations. Both she
and this court advised appellant that he had a right to file a
supplemental brief. Because he did not do so, we dismiss this
appeal as abandoned in accordance with the procedures
articulated in Cole, supra, and summarized above.




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                      DISPOSITION
    The appeal is dismissed.
  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                   COLLINS, J.

We concur:



MANELLA, P. J.



CURREY, J.




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