People v. Hutton CA3

DISCUSSION

Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition pursuant to section 1170.95 remains an open question. Our Supreme Court has

2 not spoken. However, we are persuaded by the opinion of the Second District Court of Appeal, in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, that the Wende/Anders procedures do not apply. (But see People v. Flores (2020) 54 Cal.App.5th 266, 273-274 [agreeing with People v. Cole but conducting an independent review of the record in the interests of justice].) Defendant timely filed a supplemental brief. He argues that because the jury acquitted him of first degree murder with robbery-murder special circumstance, the changes to section 188 make it impossible for his conviction of second degree murder to stand. He cites no authority…