People v. Mosqueda CA3 ( 2020 )

Filed 12/24/20 P. v. Mosqueda 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C091240
Plaintiff and Respondent, (Super. Ct. No. 08F07848)
v.
FRANK G. MOSQUEDA,
Defendant and Appellant.
Appointed counsel for defendant, Frank G. Mosqueda, asked 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).) Because we find that defendant is not entitled to
Wende review, and has not raised an arguable issue in his supplemental brief, we dismiss
the appeal. (People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).)
BACKGROUND
In February 2010, following a court trial, the court convicted defendant of seven
felonies, including attempted premediated murder, and found true numerous
enhancement allegations. For each of his convictions, except attempted murder, the trial
court sentenced defendant to an aggregate, determinate term of 34 years in state prison.
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For defendant’s attempted murder conviction, the trial court sentenced defendant to an
indeterminate term of life with the possibility of parole, plus another 14 years for a gun
use and great bodily injury enhancements.
The original abstract of judgment incorrectly identified defendant’s attempted
murder conviction as “attempted second degree murder.” After receiving several letters
from the Department of Corrections and Rehabilitation, the trial court ultimately
corrected the abstract of judgment to correctly reflect defendant’s conviction as one for
attempted premeditated murder and the sentence imposed as life with the possibility of
parole. Defendant appeals from the ultimate order correcting the abstract of judgment,
which resulted in the second amended abstract of judgment.
DISCUSSION
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
(Ben C.); Serrano, supra, 211 Cal.App.4th at pp. 500-501.)
The right to Anders/Wende review applies only at appellate proceedings where a
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.) While a criminal defendant has a right to appointed counsel in an appeal from an
order after judgment affecting his or her substantial rights (Pen. Code, §§ 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. (See Serrano, at p. 501
[no Wende review for denial of postconviction motion to vacate guilty plea pursuant to
Pen. Code, § 1016.5].)
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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,
defendant has no right to a Wende review of the post judgment order correcting a clerical
error in the abstract of judgment.
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief claiming he was taken advantage of at trial and at
his sentencing because he could not hear the proceedings. The time to challenge his trial
and sentence on appeal has long passed. (See Cal. Rules of Court, rule 8.104.) As
nothing in defendant’s supplemental brief raises an arguable issue on appeal, we must
dismiss it. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
HULL, Acting P. J.
We concur:
ROBIE, J.
MURRAY, J.
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