Opinion
H046841
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. MARQUES ADRIAN GAINES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS141759A)
A jury convicted defendant Marques Adrian Gaines of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 664/187, subd. (a)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found that, in the commission of both the murder and attempted murder, defendant personally used a firearm (§ 12022.5, subd. (a)) and personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and that in the commission of the attempted murder, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury further found that appellant had a prior serious felony conviction (§ 667, subd. (a)), had served two prior prison terms (§ 667.5, subd. (b)), and had two prior "strike" convictions (§ 1170.12, subd. (c)(2)). The trial court imposed an aggregate prison term of 176 years to life.
All further statutory references are to the Penal Code. --------
Defendant appealed, and this court reversed the judgment and remanded the matter for the limited purpose of allowing the trial court to consider whether to exercise its newly enacted discretion to strike the section 12022.53, subdivision (d) enhancements under section 1385. On March 29, 2019, the trial court declined to strike the enhancements and reinstated the sentence. Defendant filed a timely notice of appeal on April 18, 2019.
On appeal, we appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), stating the case and facts but raising no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
In Serrano, supra, 211 Cal.App.4th at page 503, this court concluded that Wende review is limited to the defendant's first appeal of right from a criminal conviction. The instant appeal originates from a post-conviction proceeding and not a first appeal of right, and therefore defendant is not entitled to Wende review. Having received no appellate argument from defendant or appointed counsel, we must dismiss the appeal. (See Serrano, supra, at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.