Filed 11/5/21 P. v. Withers CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D079180 Plaintiff and Respondent, v. (Super. Ct. No. SCD258141) DESTIN LEE WITHERS, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Roderick W. Shelton, Judge. Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 2016, a jury convicted Destin Lee Withers of first degree murder (Pen. Code,1 § 187, subd. (a)) and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The court found true the special circumstance

1 All further statutory references are to the Penal Code. of a previous conviction for murder (§ 190.2, subd. (a)(2)). Withers was sentenced to life in prison without the possibility of parole, plus six years.

Withers appealed and this court affirmed the judgment in an unpublished opinion, People v. Withers, D071689 (Sept. 26, 2018).2 In 2020, Withers filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, including this court’s prior opinion, and held a hearing.

The court denied the petition by written order. The court found the record disclosed Withers was the actual killer and was thus ineligible for resentencing under section 1170.95. Withers filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Withers the opportunity to file his own brief on appeal, but he has not responded.

STATEMENT OF FACTS The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. (People v. Withers, supra, D071689.)

DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following issue that was considered in evaluating the potential merits of this appeal. Whether the trial court correctly concluded that Withers was ineligible for resentencing under section 1170.95.

2 On our own motion, we take judicial notice of our records in case No. D071689.

We have reviewed the entire record as required by Wende and Anders.

We have not discovered any arguable issues for reversal on appeal.

Competent counsel has represented Withers on this appeal.

DISPOSITION The order denying Withers’s petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

DATO, J.