DISCUSSION

Defendant’s appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief. The California Supreme Court has considered whether the Wende process applies to a trial court’s order denying a petition for postconviction relief under former section 1170.95 and concluded such procedures are not required. (People v. Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The Supreme Court laid out applicable procedures for such cases, saying, where, as here, a defendant has filed a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues.” (Id. at p. 232.) Defendant raises several issues related to his initial trial, saying he received ineffective assistance of counsel because defense counsel told him not to testify at trial. He also argues his firearm enhancement is excessive in that the sentence exceeds the sentence for the actual murder offense. Finally, he claims the judge who denied his petition was biased against him. As an initial matter, defendant’s claims as to his trial and firearm enhancement cannot be raised in this appeal. This court affirmed the judgment in defendant’s case in 2011 and it is now final. Thus, none of these issues are arguable in an appeal from an order denying his petition for resentencing under former section 1170.95. (See People v. Murphy (2001) 88 Cal.App.4th 392, 395, 396 [precluding new sentencing argument in second appeal “because the time in which to make it has passed”].) Moreover, none of defendant’s arguments affect the theory under which defendant was convicted. The jury at defendant’s trial was instructed using CALCRIM No. 520

3 (murder with malice aforethought) and CALCRIM No. 521 (murder: degrees). The jury was not instructed on any theory of felony murder, murder under the natural and probable consequences doctrine, or other theory of imputed malice, and could not have convicted defendant on a theory on which it was not instructed. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) Finally, none of the trial judge’s comments showed “an animus inconsistent with judicial objectivity” or suggested a “whimsical disregard” of the law. (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.) As indicated above, defendant is not eligible for relief under former section 1170.95, so the judge did not err in her ultimate conclusion. The trial judge’s statements as to the firearm enhancement were, as the judge acknowledged, unnecessary to resolve the petition for resentencing, but were rather intended to make a record for potential future legislative amendments. We thus find no merit in defendant’s arguments.

DISPOSITION

The judgment is affirmed.

KRAUSE , J.

We concur:

ROBIE , Acting P. J.

RENNER , J.

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