Opinion
C088264
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JASON WAYNE BYERS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCR2018569, STKCR20184396)
In June 2018, after defendant Jason Wayne Byers pleaded no contest to two felony charges, the trial court sentenced him. Approximately one month later, the trial court recalled and modified his sentence. On October 19, 2018, defendant filed a motion to vacate the modification of sentence. The trial court denied the motion.
Appointed counsel for defendant 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 (Wende).) 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. More than 30 days have elapsed, and we have received no communication from defendant.
We need not determine whether the superior court's order is appealable as an order after judgment, affecting the substantial rights of the party. (See Pen. Code, § 1237, subd. (b); Cal. Rules of Court, rule 8.204.) Defendant is not entitled to Wende review on an appeal from the denial of his motion to vacate the modification of sentence. Finding Wende review inapplicable here, we shall dismiss the appeal.
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 [95 L.Ed.2d 539, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; 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; Conservatorship of 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 (Pen. Code, §§ 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 Pen. Code, § 1016.5].)
Applying Serrano here, defendant has no right to a Wende review of the denial of his motion to vacate the modification of sentence. Because neither defendant nor his counsel raises any claim of error in the criminal conviction, we must dismiss defendant's appeal as abandoned.
DISPOSITION
The appeal is dismissed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Duarte, J.