Opinion
A150899
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SAMUEL NIU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC50377A)
Defendant Christopher Samuel Niu appeals an order denying his petition to reduce a felony drug conviction to a misdemeanor under Penal Code section 1170.18, a provision of Proposition 47. Niu's appointed appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed Niu of his right to file a supplemental brief, but Niu did not file one. We dismiss the appeal as abandoned because Niu is not entitled to Wende review.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
A commitment order in the appellate record states that, on November 1, 2001, the trial court ordered Niu committed to county jail after he sustained a felony conviction under Health and Safety Code section 11378 (possession of specified controlled substances for sale). At some point prior to December 23, 2016, Niu, proceeding in propria persona, submitted a form petition asking the trial court to reduce a felony conviction to a misdemeanor pursuant to section 1170.18. The form states the felony conviction at issue is one under "11350," presumably a reference to Health and Safety Code section 11350 (possession of specified controlled substances).
A handwritten notation on the form states: "See attached petition from defendant." The copy of the form in the appellate record, however, has no attachment. The form itself is not signed by Niu.
As amended by Proposition 47, Health and Safety Code section 11350 provides possession of the specified substances is a misdemeanor unless the defendant has a disqualifying prior conviction. (Health & Saf. Code, § 11350, subd. (a).) In contrast, Health and Safety Code section 11378 (possession of specified substances for sale), the offense listed on the commitment order in the record, was not amended by Proposition 47 and does not provide for misdemeanor punishment. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), text of Prop. 47, §§ 4-14, pp. 70-74.)
In a space provided on the form for a response, the prosecution stated (in an entry dated December 23, 2016) that Niu was not entitled to the requested reduction because he has a 1991 juvenile adjudication for murder (§ 187). (See § 1170.18, subd. (i) [Proposition 47 sentence-reduction not available to persons who have "one or more prior convictions" for an offense specified in § 667, subd. (e)(2)(C)(iv)]; § 667, subd. (e)(2)(C)(iv) [provision applies when "[t]he defendant suffered a prior serious and/or violent felony conviction, as defined in [§ 667, subd. (d)], for any of" certain listed felonies, including any homicide offense].)
See In re Christopher Samuel N. (Apr. 14, 1992, A053227) [nonpub. opn.].
In the portion of the form set aside for the court's ruling, the court checked a box denying the petition and signed the form. The court did not set the matter for a hearing. The court's order was filed on January 17, 2017.
Niu, proceeding in propria persona, filed a notice of appeal. Appellate counsel filed a Wende brief, asking this court to conduct an independent review of the record for arguable issues.
In the procedural background section of his brief, Niu's appellate counsel refers to the prosecution's statement that Niu suffered a sustained juvenile petition for murder in 1991. Niu's appellate counsel states Niu "would not be ineligible for that reason" because he was under 16 years of age at the time of the offense. (See § 667, subd. (d)(3); People v. Sledge (2017) 7 Cal.App.5th 1089, 1099.) Niu's counsel, however, does not present any argument that Niu met all the requirements for resentencing, or that the court erred by denying the resentencing petition, instead asking this court to review the record independently.
II. DISCUSSION
In People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano), the Sixth District Court of Appeal held that a defendant is entitled to Wende review in "a first appeal of right" from a criminal conviction but is not entitled to such review "in subsequent appeals, including collateral attacks on the judgment." (See People v. Martinez (2016) 246 Cal.App.4th 1226, 1238; People v. Kisling (2015) 239 Cal.App.4th 288, 290 (Kisling).) The Serrano court concluded that such a subsequent appeal must be dismissed as abandoned if neither the defendant nor appointed counsel raises any claims of error. (Serrano, supra, at pp. 503-504.) Serrano involved an appeal from the denial of a motion to vacate a conviction under section 1016.5. (Id. at p. 499.) Like that appeal, Niu's appeal of the trial court's order denying his Proposition 47 resentencing petition is not a first appeal of right from a criminal conviction, and Niu is not entitled to Wende review.
The Wende procedure was fashioned to protect an indigent defendant's federal constitutional right to effective assistance of counsel in the first appeal of right from a conviction. (People v. Kelly (2006) 40 Cal.4th 106, 117-118 (Kelly); Serrano, supra, 211 Cal.App.4th at pp. 499-500.) The federal Constitution does not require states to provide such an appeal (In re Sade C. (1996) 13 Cal.4th 952, 966 (Sade C.)), but if a state provides one, the state must ensure that indigent defendants are provided with effective assistance of counsel. (See Douglas v. California (1963) 372 U.S. 353, 355 (Douglas); Kelly, supra, at pp. 117-118; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 554 (Finley).)
In Anders v. California (1967) 386 U.S. 738, 741, 744 (Anders), the United States Supreme Court held that effective assistance of counsel cannot be assured when court- appointed appellate counsel is allowed simply to move to withdraw when unable to identify any meritorious issue. Instead, assuring effective assistance requires that appointed counsel at least submit "a brief referring to anything in the record that might arguably support the appeal" to facilitate an independent review by the court. (Id. at pp. 744-745.) In Wende, our Supreme Court adopted a "modified procedure" to fulfill the requirements of Anders. (Kelly, supra, 40 Cal.4th at pp. 117-118; Wende, supra, 25 Cal.3d at pp. 441-442.)
The United States Supreme Court has refused to extend Anders to appeals of decisions in postconviction proceedings because it has never recognized a constitutional right to effective assistance of counsel in those appeals: "The holding in Anders was based on the underlying constitutional right to appointed counsel established in [Douglas]. . . . Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel. [¶] . . . We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process." (Finley, supra, 481 U.S. at pp. 554-555.) Applying Finley, our Supreme Court has held that Anders does not require independent review in appeals from conservatorship proceedings or dependency proceedings because such appeals are not first appeals of right from criminal convictions. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535-537; Sade C., supra, 13 Cal.4th at pp. 982-983.) It is thus settled that Anders does not require independent review in appeals other than first appeals of right from criminal convictions.
Niu asserts the court's order is appealable under Penal Code section 1237. But, assuming the order is appealable under state law, this does not entitle Niu to independent review under Anders. Under Finley, the determinative factor is whether the defendant has a federal constitutional right to effective assistance of counsel in a particular appeal, not whether the defendant has a state-created right to appeal or right to counsel. (Finley, supra, 481 U.S. at p. 556; see also Serrano, supra, 211 Cal.App.4th at pp. 500-501.)
Niu's appointed counsel notified Niu of his right to file a supplemental brief raising any substantive issues. He has not done so. Because neither he nor his counsel has raised any claims of error, we dismiss the appeal as abandoned. (See Serrano, supra, 211 Cal.App.4th at pp. 503-504; see also Kisling, supra, 239 Cal.App.4th at p. 292 & fn. 3.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------