People v. Tilley CA3 ( 2020 )

Filed 11/20/20 P. v. Tilley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C091804
Plaintiff and Respondent, (Super. Ct. No. 20SPP00735)
v.
ERNEST SAMUEL TILLEY,
Defendant and Appellant.
Defendant Ernest Samuel Tilley was released from custody to parole supervision
on November 10, 2019. Under the conditions of his parole, he was not to use any
controlled substances or engage in any criminal conduct. He violated these conditions
when he used methamphetamine/amphetamine and attempted to rob a store, and the
Department of Corrections and Rehabilitation’s Division of Adult Parole Operations filed
a petition to revoke defendant’s parole.
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At the parole revocation hearing, defendant admitted the two parole violations.
The trial court revoked, then reinstated, parole, and imposed a 90-day jail sentence.
Defendant appeals from the court’s order finding he violated his parole.
DISCUSSION
Defendant’s appointed counsel has asked this court for an independent review of
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) (AOB 8) Defendant was informed of his right to file a
supplemental brief and did not do so. (AOB 10-11)
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.)
The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (People v.
Serrano, supra, 211 Cal.App.4th at p. 500; Conservatorship of 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 substantial
rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is
statutory, not constitutional. Thus, 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].)
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.” (People v. Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano
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here, defendant has no right to a Wende review of the trial court’s order finding he
violated his parole. Accordingly, we dismiss the appeal.
DISPOSITION
The appeal is dismissed.
/s/
Robie, Acting P. J.
We concur:
/s/
Murray, J.
/s/
Hoch, J.
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