Case: People v. Rosemond - 5DCA rejects applying Wende-type procedures to defendant’s appeal from denial of unauthorized Penal Code § 1172.1 petition

Decided: 2/5/2025

Docket

Case Overview:

Procedural posture: Appeal from the superior court’s denial of a defendant-filed petition for resentencing under Penal Code § 1172.1

Plaintiff-respondent: The People of the State of California

Defendant-appellant: Malcolm Rosemond

Fifth District Court of Appeal case no.: F087787

Appeal from: Fresno Superior Court (Alvarez, J.)

Advocates: Larenda Delaini for Rosemond

Question:

(1) Whether the procedure provided for in Wende/Anders—requiring an appellate court to conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal that raises no specific issues—applies to a defendant’s appeal from the denial of an unauthorized defendant-filed petition for resentencing under Penal Code § 1172.1?

Answer:

(1) No. Wende-type procedures do not apply. The procedures set forth in People v. Delgadillo, 14 Cal. 5th 216 (2022) are sufficient. As in Delgadillo, the defendant does not have a constitutional right to counsel because this is a state postconviction proceeding. Due process principles do not require application of a Wende-type procedure in this context, as the defendant has no statutory right to file a petition for relief under Penal Code § 1172.1.

Under Delgadillo, defense counsel files a brief that includes a concise recitation of the facts and counsel’s finding that there were no arguable issues. The court sends, with a copy of counsel’s brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief. The court advises the defendant that if no letter or brief is filed within 30 days, the court may dismiss the matter.

The Delgadillo procedures were complied with in this case, and the defendant failed to submit a letter brief within 30 days. The proper resolution is to dismiss the appeal as abandoned.

Facts:

In 2011, a jury convicted defendant Rosemond of count 1, shooting at an occupied motor vehicle in violation of Penal Code § 246, and six counts of assault with a firearm. The jury found true several firearm-related allegations. The court sentenced Rosemond to an upper term of 7 years for count 1 plus a consecutive term of 25 years to life for the § 12022.53(d) enhancement for discharging a firearm which proximately caused great bodily injury or death to two victims.

In January 2024, Rosemond filed a “Request for Recall of Sentence and Resentencing Pursuant to Assembly Bill 600 and Penal Code Section 1172.1.” Rosemond checked a box that stated, “I hereby request appointment of counsel.”

In February 2024, the superior court issued a written order denying Rosemond’s request for recall and resentencing under § 1172.1. The superior court denied Rosemond’s request on the ground that a defendant is not entitled to file a petition seeking relief from the court under § 1172.1.

Rosemond appealed. Rosemond’s appointed counsel filed a no-issues brief. The court of appeal notified Rosemond that, under Delgadillo, the appeal could be dismissed as abandoned if Rosemond failed to submit a letter brief within 30 days. Rosemond did not file a letter brief within 30 days.

Outcome:

The Fifth District Court of Appeal dismissed the appeal as abandoned.

Justice Peña authored the opinion, joined by Justices Hill and Detjen.