Opinion
H047197
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ABDEL FATAH ELLAWENDY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR007432)
In April 2019, defendant Abdel Fatah Ellawendy pleaded no contest to assault with a deadly weapon other than a firearm, a felony (Pen. Code, § 245, subd. (a)(1)). On May 15, 2019, the trial court imposed a two-year prison sentence.
Defendant filed three notices of appeal regarding this case. This appeal arises from the third notice of appeal. We appointed counsel to represent defendant in this court. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant on his own behalf filed a brief in response on February 24, 2020.
For the following reasons, we will dismiss defendant's appeal.
On May 15, 2019, defendant was sentenced to prison. The trial court scheduled a restitution hearing for May 31, 2019.
On May 31, 2019, the prosecutor indicated that she was not going to proceed with the restitution hearing, so the trial court removed the matter from the calendar.
Defendant's first notice of appeal, which was filed on June 6, 2019, was an appeal from the May 15, 2019 judgment. Defendant's appointed counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and defendant filed a brief on his own behalf. On January 8, 2020, this court filed an opinion affirming the judgment. (People v. Ellawendy (Jan. 8, 2020, H046986) [nonpub. opn.].)
The instant appeal arises out of defendant's third notice of appeal, which was filed on July 29, 2019. The notice of appeal indicates that defendant is appealing from an "order or judgment" dated May 31, 2019. The record does not reflect that the trial court made any order on May 31, 2019.
To the extent defendant is appealing from the May 15, 2019 judgment, defendant's July 29, 2019 notice of appeal was filed more than 60 days after the judgment. The notice of appeal is therefore untimely as to the judgment. (Cal. Rules of Court, rule 8.308(a).) Moreover, defendant is not entitled to more than one direct appeal from the original judgment. (See People v. Totari (2002) 28 Cal.4th 876, 886; People v. Diaz (2015) 235 Cal.App.4th 1239, 1241 [a defendant "has no constitutional or statutory right to 'two bites of the appellate apple' "].)
This court requested supplemental briefing from defendant regarding why this appeal should not be dismissed for failing to file a timely notice of appeal from an appealable order or judgment. Defendant's appointed counsel filed a letter with this court stating that counsel would "not be filing a supplemental letter brief addressing why this appeal should not be dismissed."
Defendant on his own behalf filed a supplemental brief contending that the appeal should not be dismissed. We understand defendant to contend the following: (1) his constitutional rights were violated and his trial counsel rendered ineffective assistance in connection with the trial court proceedings, (2) his no contest plea was involuntary and made under duress, (3) his trial counsel was ineffective for failing to file a notice of appeal that challenged the validity of the plea and defendant himself was unable to file a timely notice of appeal, and (4) his appointed appellate counsel failed to raise any issue in the appeal although defendant informed counsel of various issues.
Defendant's contentions are not supported by any citations to the record or by persuasive legal authority. To the extent defendant claims that he received ineffective assistance of counsel in connection with his instant (third) notice of appeal, the claim is based on matters outside the record.
Accordingly, because the July 29, 2019 notice of appeal is untimely and not from an appealable order or judgment, we will dismiss the appeal.
DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.