Opinion
A167303
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. WENDELL COLEMAN, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. CR183654)
BANKE, J.
Defendant Wendell Coleman, Jr., appeals from the denial of his motion to remove his daughter from a restraining order. Defendant's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), raising no arguable issues and requesting our independent review of the record. We decline to exercise our discretion to review the record and dismiss the appeal.
BACKGROUND
After a jury convicted defendant Wendell Coleman, Jr., of one count of corporal injury to a cohabitant, one count of false imprisonment with violence, and three counts of disobeying a court order, the trial court suspended imposition of sentence, placed defendant on five years' probation, and issued a 10-year no contact order for both the victim and her daughter. (People v. Coleman (Feb. 28, 2022, A159933) [nonpub. opn.].) Defendant appealed, asserting among other things, that the trial court erred in including his daughter in the stay-away order. (Ibid.) This court affirmed the judgment. (Ibid.)
On our own motion, we take judicial notice of our prior opinion in People v. Coleman (Feb. 28, 2022, A159933) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459.)
Almost a year later, in January 2023, defendant, acting in propria persona, filed a "Motion: Demand to Remove [E.C.] from Unlawful Order," citing title 18 United States Code sections 241 and 242. (Some capitalization omitted.) At the hearing on the matter, defendant acknowledged he had "brought this motion before the Court before" and that the "matter was addressed by the Appellate Court and the Appellate Court did issue an opinion" but stated he was now asserting violations of title 18 United States Code sections 241 and 242. After hearing argument, the trial court denied the motion with prejudice on the basis "that the Appellate Court has already heard this matter, and . . . [defendant had] not provided anything new in this Court's jurisdiction to deal with." Defendant appealed.
Title 18 United States Code section 241 provides, "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or [¶] If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured-[¶] They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."
Title 18 United States Code section 242 provides, "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."
The trial court denied defendant's request for a certificate of probable cause.
Initially, we conclude that because this appeal is not an appeal from a first appeal of right from a criminal conviction, defendant is not entitled to our independent review of the record pursuant to Wende. (See Delgadillo, supra, 14 Cal.5th at pp. 221-222, 227 [Wende "procedure is applicable to the first appeal as of right" and not to postconviction proceedings]; People v. Serrano (2012) 211 Cal.App.4th 496, 503 ["Where a defendant has been afforded all the constitutional protections of a first appeal of right, including the right to Wende review where appropriate, . . . he is not entitled to Anders [v. California (1967) 386 U.S. 738]/Wende procedures in subsequent appeals, including collateral attacks on the judgment."].)
Our Supreme Court, in Delgadillo, recently provided additional guidance on how appellate courts should handle Wende review requests when the matter being appealed is not a criminal defendant's first appeal of right. There, after concluding the procedures set forth in Wende did not apply in the context of an appeal from an order denying postconviction relief, the court established a procedural framework to follow when counsel finds no arguable issues in a Penal Code section 1172.6 appeal before a Court of Appeal dismisses an appeal: the "Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief or letter raising any argument the defendant wishes the court to consider; and if no such supplemental brief or letter is timely filed, the court may dismiss the appeal as abandoned." (Delgadillo, supra, 14 Cal.5th at pp. 221-222.)
While the appellate procedures set forth in Delgadillo apply to appeals from an order denying postconviction relief under Penal Code section 1172.6, not appeals from orders denying successive attacks on restraining orders, we nevertheless find such guidance applicable to the case at hand and dismiss the appeal.
Here, appointed counsel filed an opening brief stating the case and the facts but raising no specific issues and informing defendant of his right to file a supplement brief, within 30 days, and that if such brief is not filed, the court may dismiss the matter. Additionally, this court gave defendant notice that he had a right to file a supplement brief or his appeal could be dismissed. (People v. Serrano, supra, 211 Cal.App.4th at pp. 503-504; see Delgadillo, supra, 14 Cal.5th at pp. 231-232.) Accordingly, having complied with the procedures set forth in Delgadillo and as defendant has not filed a supplemental brief with this court, we dismiss the appeal as abandoned.
Additionally, we note to the extent the current appeal from an order denying defendant's motion to modify the restraining order "presents issues that could have been raised in an appeal from the original restraining order, those issues are not reviewable in this appeal." (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1084; see People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981 ["an order ordinarily is not appealable when the appeal would merely bypass or duplicate an appeal from the judgment itself"], overruled on another ground as stated in People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4.)
DISPOSITION
The appeal is dismissed.
We concur: Humes, P.J. Castro, J. [*]
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.