Opinion
C089566
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. RICKEY RENARD BAKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCRFE20110005672, SF117345A)
Appointed counsel for defendant Rickey Renard Baker, filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Because defendant is not entitled to Wende review from denial of the challenged petition to recall his sentence and for resentencing, and neither he nor his counsel has raised any claim of error in its denial, we dismiss his appeal as abandoned.
FACTS AND PROCEEDINGS
In May 2012, defendant pleaded guilty to two sexual offenses (Pen. Code, §§ 264.1, 288a, subd. (c)(2); statutory section references that follow are to the Penal Code) as well as multiple counts of kidnapping (§ 207) and robbery (§ 211); he also admitted a firearm enhancement (§ 12022.53, subd. (b)). He was sentenced to 25 years in state prison. Nothing in the record shows defendant appealed his convictions.
In January 2019, defendant filed a petition for recall of sentence and for resentencing under section 1170.91, requesting that the trial court consider resentencing him in light of his military service and substance abuse issues. The trial court denied the motion. Defendant timely appealed from the denial, but raised no claim of error and sought only Wende review. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief but has failed to do so. Thus, no claim of error has been raised.
DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben C.); People v. Serrano (2012) 211 Cal.App.4th 496, 500-501 (Serrano).)
The right to Anders/Wende review applies only at appellate proceedings where defendant has a previously established constitutional right to counsel. (Serrano, supra, 211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500-501.) The appeal before us, "although originating in a criminal context, is not a first appeal of right from a criminal prosecution, because it is not an appeal from the judgment of conviction." (Id. at p. 501.) While a criminal defendant has a right to appointed counsel in an appeal from an order after judgment affecting his substantial rights (§§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, defendant is not entitled to Wende review in such an appeal. (See Serrano, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to section 1016.5].)
Applying Serrano here, defendant has no right to Wende review of the denial of his petition to recall his sentence and for resentencing under section 1170.91. Because neither defendant nor his counsel has raised any claim of error in the trial court's denial of the petition at issue here, we must dismiss defendant's appeal as abandoned.
Because we must dismiss the appeal as abandoned in any event, we do not reach the issue of whether the order from which defendant purports to appeal is properly classified as an order after judgment, affecting defendant's substantial rights. (See § 1237, subd. (b); Cal. Rules of Court, rule 8.204.) --------
DISPOSITION
The appeal is dismissed.
/s/_________
HULL, J. We concur: /s/_________
RAYE, P. J. /s/_________
MURRAY, J.