Opinion
C088407
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. XAVIER WHITFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F09791)
Appointed counsel for defendant Xavier Whitfield filed an opening brief that 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.) Because defendant is not entitled to Wende review from resentencing, and neither he nor his counsel has raised any claim of error in its denial, we dismiss his appeal as abandoned.
BACKGROUND
In June 2010, a jury found defendant Xavier Whitfield guilty of assault with a firearm. The jury also found true allegations that in the commission of his crime, defendant inflicted serious bodily injury on his victim and acted for the benefit of a criminal street gang.
In January 2013, the trial court sentenced defendant to an aggregate term of 15 years in state prison and awarded him 1,727 days of conduct credit pursuant to Penal Code section 2933.1. Along with his codefendants, defendant appealed his conviction. (People v. Cornelius, et al. (Sept. 21, 2016, C073004) [nonpub. opn.].) This court affirmed the judgment. (Ibid.)
In November 2018, following a request from the Department of Corrections and Rehabilitation, the trial court recalled defendant's sentence pursuant to Penal Code section 1170, subdivision (d) and struck the punishment for the three-year enhancement previously imposed under Penal Code section 12022.7. The court resentenced defendant to 12 years in state prison, leaving the remainder of defendant's sentence intact.
Defendant appealed. After filing his notice of appeal, defendant moved the trial court to modify his presentence custody credits. The trial court denied defendant's motion but corrected two errors in the amended abstract of judgment.
DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 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 [95 L.Ed.2d 539, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 499-501.)
The right to Anders/Wende review applies only at appellate proceedings where defendant has previously established a constitutional right to counsel. (People v. Serrano, supra, 211 Cal.App.4th at p. 500; Conservatorship of 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 pp. 499, 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to Pen. Code, § 1016.5].)
Applying Serrano here, defendant has no right to Wende review of his resentencing. Because neither defendant nor his counsel has raised any claim of error in the trial court's denial of the petition at issue here, we must dismiss defendant's appeal as abandoned.
DISPOSITION
The appeal is dismissed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.