Opinion
A148112
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. MORGAN DONALD WRIGHT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. CR1504459, CR1504898, CR1600316)
Defendant Morgan Donald Wright appeals an order denying his motions to be discharged from postrelease community supervision (PRCS) and to dismiss a petition to revoke PRCS. Wright'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 Wright of his right to file a supplemental brief, but Wright did not file one. We dismiss the appeal as abandoned because Wright is not entitled to Wende review.
I. BACKGROUND
According to documents subsequently filed in the trial court, Wright was convicted on July 6, 2012, of possession for sale of a controlled substance (Health & Saf. Code, § 11378) and evasion of a pursuing police officer (Veh. Code, § 2800.2, subd. (a)). He received a sentence of 16 months in state prison for the possession for sale offense and a consecutive eight months in state prison for evasion of a police officer. On June 16, 2015, Wright was released from prison and placed on PRCS for a term of three years (see Pen. Code, § 3451, subd. (a)).
On September 22, 2015, as a result of Wright's failure to report to his probation officer, the court revoked and reinstated Wright's PRCS. On September 28, 2015, the People filed a petition to revoke Wright's PRCS based on another violation of the conditions of his supervision (initiating case no. CR1504459). Wright was remanded into custody.
On October 23, 2015, the Humboldt County District Attorney filed a felony complaint charging Wright with possession of controlled substances in a jail facility, a violation of Penal Code section 4573.6. The complaint was designated case number CR1504898. Also on October 23, 2015, in the existing PRCS revocation proceeding (case no. CR1504459), the People filed an amended petition to revoke PRCS, which added the possession in jail offense as an additional violation of PRCS.
On November 4, 2015, Wright entered a guilty plea to the felony complaint (case no. CR1504898). The court imposed the low term of two years on December 2, 2015, with all of it to be served on mandatory supervision under Penal Code section 1170, subdivision (h)(5)(B). In addition, in the PRCS revocation proceeding (case no. CR1504459), Wright admitted violating the conditions of PRCS. The court revoked and reinstated PRCS and ordered Wright to serve 180 days in jail with one day suspended for Wright to enter a residential substance abuse treatment program.
On January 22, 2016, the People filed a new petition to revoke Wright's PRCS (initiating case no. CR1600316), alleging that Wright, on January 9, 2016, left his residential substance abuse program without permission and then, on January 20, 2016, failed to report to his probation officer as directed. Wright was remanded into custody.
On February 18, 2016, Wright filed a motion to be discharged from the balance of his PRCS term, arguing he could not be required to serve his PRCS term consecutive to his new term of mandatory supervision. The prosecution opposed the motion for discharge. In addition, based on Wright's admitted use of controlled substances on several occasions in early 2016, the People filed in March 2016 an amended petition to revoke PRCS (in case no. CR1600316) and a petition to revoke mandatory supervision (in case no. CR1504898). Wright filed a motion to dismiss the amended petition to revoke PRCS, and the prosecution filed an opposition. On April 1, 2016, the court denied Wright's motion to be discharged from PRCS and his motion to dismiss the PRCS revocation petition.
On April 7, 2016, Wright admitted the violations of both his PRCS and his mandatory supervision. The court revoked and reinstated both PRCS and mandatory supervision with the requirement that Wright serve 180 days in jail, with credits totaling 132 days.
Wright filed timely notices of appeal (in each of the three trial court case numbers) challenging the court's April 1, 2016 order (i.e., the order denying his motions to be discharged from PRCS and to dismiss the PRCS revocation petition). Appellate counsel filed a Wende brief, asking this court to conduct an independent review of the record for arguable issues.
In his brief, counsel identified one issue for this court's consideration in connection with its independent review of the record (see People v. Kent (2014) 229 Cal.App.4th 293, 296), but counsel did not develop any claims of error or provide supporting legal argument, as is required outside the Wende context (see Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a)).
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 Penal Code section 1016.5. (Serrano, at p. 499.) Like that appeal, Wright's appeal of the trial court's order denying his motions to be discharged from PRCS and to dismiss the PRCS revocation petition is not a first appeal of right from a criminal conviction, and Wright 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.
Wright asserts the court's order is appealable and cites California Rules of Court, rule 8.304(b), which addresses when a certificate of probable cause is or is not required. But, assuming the order is appealable under state law, this does not entitle Wright 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.)
Wright's appointed counsel notified Wright 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, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.