Opinion
E074092
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID RAY PRECIADO, Defendant and Appellant.
Martin Kassman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1303887) OPINION APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Dismissed. Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant David Ray Preciado appeals from orders denying his petition for modification of sentence and motion for an order to show cause. 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 motions, and neither he nor his counsel has raised any claim of error in the denials, we dismiss his appeal as abandoned.
PROCEDURAL BACKGROUND
Defendant was charged by second amended felony complaint with possession for sale of a controlled substance (Health & Saf. Code, § 11378, count 1) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1), count 2). As to count 1, the amended complaint alleged that defendant committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)), and that he had a prior conviction under Health and Safety Code section 11378 (Health & Saf. Code, former § 11370.2, subd. (c)). The amended complaint also alleged that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)), had two prior strike convictions (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)).
On May 10, 2017, pursuant to a plea agreement, defendant pled no contest to count 1 and admitted the gang enhancement. He also admitted that he had one prior strike conviction and that he had served two prior prison terms. In exchange, the court sentenced him to a total of 12 years in state prison, with credit for time served, and dismissed the remaining charges.
On July 9, 2019, defendant filed a nine-page document, in propria persona, entitled "Modification of Sentence (Penal Code, § 18.5(b))." The form alleged that he was convicted of Health and Safety Code section 11378 and was sentenced to six years, and it requested that his sentence be modified to a term of 364 days, pursuant to section 18.5, subdivision (b). This document included a "Motion for Modification of Sentence Under Penal Code Section 654; and People v. Le (2015) 61 Cal.4th 416," which asked the court to reduce his current sentence to six years. It also included a "Petition for Modification of Sentence" seeking relief under Proposition 64.
On September 17, 2019, defendant filed a 12-page document, in propria persona, entitled "Notice of Motion Order to Show Cause Under California Rule of Court Section 4.551 Subdivision F." He alleged that he filed his motion for modification of sentence under People v. Le, supra, 61 Cal.4th 416 and Penal Code section 654 on June 24, 2019, and the court "failed to file a timely response." Therefore, he was requesting an order to show cause under California Rules of Court, rule 4.551(f). This document included copies of his previously filed motions.
On October 1, 2019, the trial court issued a minute order stating that it had received defendant's Proposition 64 petition and that it read and considered the petition. The court denied defendant's petition. The next day, the court issued another minute order stating that it had read and considered defendant's "Notice of Motion Order to Show Cause," and that it was denying that motion.
On November 13, 2019, defendant filed, in propria persona, a "Notice of Appeal to the Denial of Relief Under Penal Code Section 654 and People v[.] Le Case Law Standard."
DISCUSSION
After the notice of appeal was filed, this court appointed counsel to represent defendant. 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, and identifying one potential arguable issue: whether trial counsel rendered ineffective assistance by concurring in a plea agreement that specified a 12-year prison sentence.
Defendant was offered an opportunity to file a personal supplemental brief, which he has not done. 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 Wende/Anders 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 Wende/Anders review of the denial of his petition for modification of sentence or motion for an order to show cause. Because neither defendant nor his counsel has raised any claim of error, and because this appeal concerns postjudgment proceedings in which there is no constitutional right to counsel, we must dismiss defendant's appeal as abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.