People v. Martinez CA3 ( 2021 )

Filed 10/28/21 P. v. Martinez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
THE PEOPLE, C092719
Plaintiff and Respondent, (Super. Ct. No. 107515)
v.
BONIFACIO MARTINEZ,
Defendant and Appellant.
In 1992, defendant Bonifacio Martinez pleaded no contest to second degree
murder (Pen. Code, § 187, subd. (a))1 and attempted murder (§§ 664/187). He also
admitted as to both counts that he personally used a firearm during the commission of the
crimes. (§ 12022.5, former subd. (a).) That same day, the trial court sentenced defendant
to state prison for an aggregate term of 18 years to life.
1 Undesignated statutory references are to the Penal Code.
1
In February 2019, defendant sought resentencing under section 1170.95, which the
trial court denied. Defendant filed an appeal, and his appointed counsel has asked this
court to conduct an independent review of the record to determine whether there are any
arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant did not
file a supplemental brief.
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, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537;
People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.)
California’s “Wende procedure” does not apply to appeals such as this one which
is from a denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108,
review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th 266;
People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.)
This is so because this is not the defendant’s first appeal as of right. (See In re Sade C.
(1996) 13 Cal.4th 952, 986 [Wende/Anders review “mandated for only one [situation] —
the indigent criminal defendant in his first appeal as of right”].)
The appeal before us is from an order denying postconviction relief in which the
defendant, through counsel, has stated that there are no issues that properly can be raised
on appeal. Under the circumstances, we must dismiss defendant’s appeal as abandoned.
2
DISPOSITION
The appeal is dismissed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
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