Opinion
E074128
07-24-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL OSCAR GUANTEZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1001321) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Dismissed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Manuel Oscar Guantez appeals from an order denying his petition for resentencing under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2). Appointed appellate counsel 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); Anders v. California (1967) 386 U.S. 738 (Anders).) Because defendant is not entitled to Wende/Anders review from denial of the challenged postjudgment petition for resentencing, and neither he nor his counsel has raised any claim of error in its denial, we dismiss his appeal as abandoned.
II
PROCEDURAL BACKGROUND
On January 18, 2011, pursuant to a negotiated plea agreement, defendant pleaded guilty to three counts of second degree robbery as charged in counts 3, 4, and 5 of the first amended felony complaint. Defendant also admitted that in the commission of count 3, he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b), and that he committed count 3 for the benefit of, at the direction of, or in association with a criminal street gang (§186.22, subd. (b)(1)). He further admitted that he suffered a prior serious or violent felony strike conviction in 1996 (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In return, the remaining 25 counts and enhancement allegations were dismissed under section 1385, and defendant was promised a stipulated sentence of 30 years.
All future statutory references are to the Penal Code unless otherwise stated.
On June 24, 2011, the trial court denied defendant's motion to withdraw his guilty pleas and admissions. The court thereafter sentenced defendant, in accordance with the plea agreement, to a total term of 30 years in prison. Defendant's sentence included a consecutive 10-year term for the firearm use enhancement under section 12022.53, subdivision (b). He did not appeal the judgment, which became final.
Thereafter, on January 1, 2018, Senate Bill No. 620 became effective. (Stats. 2017, ch. 682, § 2.) Per that legislation, trial courts now have discretion to strike firearm enhancements in the interest of justice. (§ 12022.53, subd. (h).)
On July 26, 2019, defendant filed a petition for resentencing under Senate Bill No. 620 and newly enacted section 12022.53, subdivision (h).
On September 30, 2019, the trial court denied the petition, noting "Court declines to hold a hearing pursuant to Senate Bill 620 because this was a plea negotiation and agreement entered into by the parties."
On November 14, 2019, defendant filed a timely notice of appeal from the court's order denying his petition for resentencing under Senate Bill No. 620.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the procedural background and potential arguable issue, and requesting this court to conduct an independent review of the record.
Appointed appellate counsel notes the potential issue as assuming Senate Bill No. 620 applies retroactively, did the trial court err in refusing to conduct a hearing on the grounds the gun enhancement was imposed as part of a plea agreement. --------
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. Thus, no claim of error has been raised.
Review pursuant to Wende, supra, 25 Cal.3d 436 or its federal constitutional counterpart Anders, supra, 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); People v. Thurman (2007) 157 Cal.App.4th 36, 45.)
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 (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 Penal Code section 1016.5].)
Applying Serrano here, defendant has no right to Anders/Wende review of the denial of his petition for resentencing under newly amended section 12022.53, subdivision (h). Because neither defendant nor his counsel has raised any claim of error in the trial court's denial of the petition at issue here and because this appeal concerns a postjudgment proceeding in which there is no constitutional right to counsel, we must dismiss defendant's appeal as abandoned.
Moreover, newly amended section 12022.53, subdivision (h), does not apply where, as here, the defendant's sentence was final before the section came into effect. (See People v. Hargis (2019) 33 Cal.App.5th 199, 209.) The judgment became final when the time to petition the United States Supreme Court for writ of certiorari expired. (People v. Harris (2018) 22 Cal.App.5th 657, 659, fn. 2.) The trial court here therefore lacked jurisdiction to grant defendant's resentencing request. (See People v. Johnson (2019) 32 Cal.App.5th 938, 941; People v Fuimaono (2019) 32 Cal.App.5th 132, 135 (Fuimaono).)
Defendant's judgment, which he did not appeal, became final long before Senate Bill No. 620 amended section 12022.53. As such, defendant's substantial rights were not affected and the order denying the petition is not appealable; hence, the appeal must be dismissed. (See Fuimaono, supra, 32 Cal.App.5th at p. 135.)
IV
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. MENETREZ
J.