Opinion
F084393
06-01-2023
THE PEOPLE, Plaintiff and Respondent, v. GEORGE TYLER, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF116022A Chad A. Louie, Judge.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In 2009, appellant and defendant George Tyler (appellant) was convicted after a jury trial of count 1, second degree murder, and count 2, assault of a child resulting in death while having care and/or custody of the child. He was sentenced to an aggregate term of 25 years to life. In 2010, this court remanded for correction of the abstract of judgment and otherwise affirmed.
This court granted appellant's request to take judicial notice of the records and nonpublished opinions in his prior appeals in People v. Tyler (Oct. 27, 2010, F058478) and People v. Tyler (July 16, 2021, F081652).
In 2020, the superior court denied appellant's petition for resentencing that had been filed pursuant to Penal Code former section 1170.95. In 2021, this court affirmed the trial court's order after conducting an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and addressing issues raised by appellant.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition under former section 1170.95, which was amended effective January 1, 2022, and then renumbered as section 1172.6, effective June 30, 2022, without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3; Stats. 2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022.) As such, we refer to the subject statute by its current number throughout this opinion.
In 2022, appellant filed another petition for resentencing. The superior court appointed counsel, conducted a hearing, and denied the petition.
In this appeal from the denial of his second petition, appellant's counsel filed a brief with this court pursuant to Wende and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record.
Appellant's notice of appeal, prepared in pro. per., was signed on May 18, 2022, and filed on May 23, 2022. On January 12, 2023, this court granted appellant's motion for constructive filing of a timely notice of appeal.
On March 9, 2023, this court sent an order to appellant stating his appellate counsel had filed a brief under Wende that indicated no arguable issues had been identified for appeal; previously, when an appellant filed an appeal from the denial of a section 1172.6 petition, and counsel filed a Wende brief, this court performed an independent review of the record to determine whether any error occurred; the California Supreme Court determined in Delgadillo that independent Wende review is not required for appeals from the denial of section 1172.6 petitions; in accordance with the procedures set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or letter raising any arguable issues he wanted this court to consider; and if we did not receive a letter or brief within that 30-day period, this court may dismiss the appeal as abandoned.
Since more than 30 days have elapsed, and we have received no communication from appellant, we consider his appeal abandoned and order dismissal. (Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
[*] Before Hill, P. J., Levy, J. and Poochigian, J.