People v. Love CA3 ( 2021 )

Filed 5/27/21 P. v. Love CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C092437
Plaintiff and Respondent, (Super. Ct. Nos. 15F06950 &
14F06720)
v.
DAEVON JAMELL LOVE,
Defendant and Appellant.
Defendant Daevon Jamell Love was convicted of multiple assault counts against
four different victims as well as shooting at an occupied vehicle and being a felon in
possession of a firearm. Various firearm enhancements were found true as was an
enhancement for a prior serious felony conviction. We affirmed defendant’s convictions
on appeal (People v. Love (Apr. 25, 2019, C084190) [nonpub. opn.] (Love)), but
remanded the matter for the trial court to exercise newly granted discretion to strike one
or more of the firearm enhancements and the prior serious felony enhancement based on
changes in the law that took effect while defendant’s appeal was pending. Upon remand,
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the trial court declined to exercise its discretion to strike the enhancements, leaving
defendant’s 30-year 4-month prison sentence unchanged.
Defendant appealed and appointed 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.) We conclude
defendant is not entitled to a Wende review and will dismiss the appeal as abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
As set forth in our prior opinion (Love, supra, C084190), in July 2014, J.L.
complained to management at his apartment complex that defendant was smoking
marijuana in the common area. A few weeks later, defendant and his friends attacked
J.L., hitting and kicking him as he went to retrieve something from his car. In September
2014, J.L. saw defendant sitting in a car with a gun.
In November 2015, T.R. and his wife, J.F., were pulling out of a parking spot after
shopping at a market when T.R. honked to alert a car that was backing up at the same
time. As T.R. drove away, the same car almost hit him, so he honked again. Someone in
the car fired two shots at T.R.’s car, striking a passing pedestrian, P.G. A short time later,
defendant was apprehended nearby standing near a car matching the description of the
car involved in the shooting. He tested positive for gunshot residue and had the keys to
the suspect vehicle in his pocket where officers located a live bullet behind the driver’s
seat; officers also located a loaded nine-millimeter semiautomatic pistol behind the left
front tire of a nearby SUV. T.R. and J.F. subsequently identified defendant as the
shooter.
The matters were consolidated and defendant was charged with assault on J.L.
likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 two counts of being a
1 Undesignated statutory references are to the Penal Code.
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felon in possession of a firearm (§ 29800, subd. (a)(1)), shooting at an occupied vehicle
(§ 246), and three counts of assault with a semiautomatic firearm on T.R., J.F., and P.G.
(§ 245, subd. (b)). It was alleged defendant had a prior serious felony conviction (§ 667),
had personally used a firearm as to three counts (§ 12022.5, subds. (a) & (d)), and was on
bail when he committed several of the offenses (§ 12022.1).
Defendant was found guilty of all of the assault charges, shooting at an occupied
vehicle, and one count of being a felon in possession of a firearm. For three counts, the
jury found defendant had used a firearm (§ 12022.5, subds. (a) & (d)). In a subsequent
proceeding, the trial court found true that defendant had incurred a prior serious felony
conviction.
The court sentenced defendant to 30 years 4 months in state prison, which
included five years four months for firearm enhancements and five years for the prior
serious felony enhancement. He appealed, and we modified the judgment to award
additional custody credits and otherwise affirmed, but remanded to allow the trial court to
exercise newly granted discretion to strike the firearm enhancements and the prior serious
felony conviction.
Following the remittitur, defendant filed a memorandum in support of striking the
enhancements and submitted various letters of support from his family members, as well
as a letter from himself seeking leniency from the court. The People opposed defendant’s
request to strike the firearm and prior serious felony enhancements.
The court heard the matter in January 2020. After considering the parties’ briefs
as well as the letters submitted on defendant’s behalf, the trial court declined to strike any
of the enhancements and left defendant’s sentence unchanged. He was remanded back to
the Department of Corrections and Rehabilitation to serve the remainder of his sentence.
Defendant timely appealed.
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DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date the opening brief was filed but has not done so.
Review pursuant to Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738 [18 L.Ed.2d 493], 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]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537;
People v. Serrano (2012) 211 Cal.App.4th 496, 500-501 (Serrano).) And the due process
right to Anders/Wende review applies only in appellate proceedings in which a defendant
has a previously established constitutional right to counsel. (Serrano, at p. 500; Ben C.,
at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right,
and no further. (Serrano, at pp. 500-501.) Although a criminal defendant has a right to
appointed counsel in an appeal from an order after judgment affecting his or her
substantial rights (§§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is
statutory, not constitutional. Thus, a defendant is not entitled to Wende review in such an
appeal when appointed counsel finds no arguable issues on appeal. (See Serrano, at
p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea
pursuant to § 1016.5].)
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.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano here, we
conclude that defendant has no right to Wende review of the trial court’s decision not to
exercise its discretion to strike the firearm and prior serious felony enhancements.
Further, given defendant’s failure to file a supplemental brief despite being advised of his
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right to do so, we will dismiss defendant’s appeal as abandoned. (See People v. Cole
(2020) 52 Cal.App.5th 1023, 1039-1040 [because postjudgment order appealed from is
presumed to be correct, where defendant does not file a supplemental brief, the Court of
Appeal may dismiss the appeal as abandoned], review granted Oct. 14, 2020, S264278.)
DISPOSITION
The appeal is dismissed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
RENNER, J.
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