People v. Rose CA3 ( 2016 )

Filed 7/8/16 P. v. Rose 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C080764
Plaintiff and Respondent, (Super. Ct. No. TF034098A)
v.
KEVIN PAUL ROSE,
Defendant and Appellant.
On September 21, 2015, defendant Kevin Paul Rose filed a motion in San Joaquin
County case No. TF034098A seeking preparation and copies of the trial transcripts from
his June 18, 2007 trial. The superior court denied his request and defendant appealed.
Appointed counsel for defendant 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
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arguable issues on appeal.1 (People v. Wende (1979) 25 Cal. 3d 436.) We need not
determine whether the superior court’s order is appealable as an order after judgment,
affecting the substantial rights of the party. (See Pen. Code, § 1237, subd. (b); Cal. Rules
of Court, rule 8.204.) Defendant is not entitled to Wende review on an appeal from the
denial of his motion for trial transcripts from his 2007 trial. Finding Wende review
inapplicable here, we shall dismiss the appeal.
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.); People v. Serrano (2012) 211 Cal. App. 4th 496, 500-501 (Serrano).)
The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (Ben C., supra,
40 Cal. 4th 529 at pp. 536-537; Serrano, supra, 211 Cal.App.4th at p. 500.) 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. Defendant is not
entitled to Wende review in such an appeal. (See Serrano, supra, at p. 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 a Wende review of the denial of
his motion for trial transcripts. Because neither defendant nor his counsel raise any claim
of error, we must dismiss defendant’s appeal as abandoned.
1 Defendant was advised by counsel of the right to file a supplemental brief within 30
days of the date of filing of the opening brief. More than 30 days have elapsed, and we
have received no communication from defendant.
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DISPOSITION
The appeal is dismissed.
BUTZ , Acting P. J.
We concur:
HOCH , J.
RENNER , J.
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