People v. Cheshire CA2/4 ( 2023 )

Filed 6/26/23 P. v. Cheshire CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B323343
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA443099)
v.
ANDREW EARL CHESHIRE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior
Court of Los Angeles County, H. Clay Jacke II, Judge.
Dismissed.
Cheryl Lutz, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Andrew Earl Cheshire appeals from a postjudgment
order denying his second petition for resentencing under
former Penal Code section 1170.95 (now § 1172.6).1
Appellate counsel filed a brief raising no issues and
requesting that we proceed under People v. Serrano (2012)
211 Cal.App.4th 496 (Serrano). Appellant did not submit a
supplemental brief or filing. We dismiss the appeal as
abandoned.
BACKGROUND AND DISCUSSION
In 2017, a jury convicted appellant of one count of
attempted murder (§§ 187, subd. (a) & 664), one count of
pimping (§ 266h, subd. (a)), and one count of human
trafficking of a minor (§ 236.1, subd. (c)(1)). The jury also
found true the allegations that appellant personally and
intentionally discharged a firearm causing great bodily
injury during the commission of attempted murder
(§§ 12022.53, subds. (c), (d)). Appellant was sentenced to an
overall term of 75 years to life plus 12 years. In 2019, we
affirmed appellant’s convictions but remanded the matter to
correct an error in custody credits and permit the court to
exercise its newly authorized discretion to strike a firearm
enhancement. (People v. Cheshire (May 22, 2019, B286902)
[nonpub. opn.] (Cheshire I).) Thereafter, the trial court
awarded custody credits but left intact the firearm
1 Subsequent references to statutes are to the Penal Code unless
otherwise indicated.
2
enhancement findings and attached sentence under section
12022.53, subdivision (d).
In 2021, appellant filed his first section 1172.6 petition
for resentencing and alleged that he had been convicted
under an invalid theory of attempted murder, such as felony
murder or murder under the natural and probable
consequences doctrine. Upon its receipt of appellant’s
petition, the trial court summarily denied it without
appointing counsel. In his subsequent appeal, appellant
“d[id] not dispute his ineligibility for relief. Instead, he
argue[d] that the court committed structural error in failing
to appoint counsel, requiring reversal regardless of
prejudice.” (People v. Cheshire (Feb. 28, 2022, B312182
[nonpub. opn.] (Cheshire II).) We rejected the argument,
finding any error harmless because malice had not been
imputed to appellant; rather, the jury “necessarily found
[appellant] acted with an intent to kill.” (Id. at p. *6.)
On January 31, 2022, before we issued our opinion in
Cheshire II, appellant filed a second petition under section
1172.6 seeking the same relief sought in his first petition.
The trial court appointed counsel, accepted briefing by the
parties, and held a hearing. After the hearing, the court
found appellant ineligible for relief as a matter of law, as the
jury instructions and verdict demonstrated that appellant
had been the actual shooter who committed the attempted
murder with actual malice.2
2 The court also noted that no jury instruction had been given on
aiding and abetting or the natural and probable consequences doctrine.
3
Appellant filed a timely notice of appeal from the order
denying his second section 1172.6 petition, and we appointed
appellate counsel. Citing Serrano, supra, 211 Cal.App.4th
496, appointed counsel filed an opening brief setting out the
relevant procedural history in this case and declared that
she found no arguable issues to raise on appeal. Counsel
stated she had explained this evaluation to appellant and
informed him of his right to file a supplemental brief. On
January 24, 2023, we directed counsel to send the record and
a copy of the brief to appellant. We also notified appellant of
his right to respond within 30 days, and that if no
supplemental brief was timely filed, this court may dismiss
the appeal as abandoned under Serrano. Appellant has filed
no supplemental brief or response.
Because neither appellant nor his counsel has raised
any cognizable claim of error, we dismiss the appeal as
abandoned. (Serrano, supra, 211 Cal.App.4th at
pp. 503-504.) “In an indigent criminal defendant’s first
appeal as a matter of right, the Court of Appeal must
independently review the record if appointed counsel
represents he or she has found no arguable issues.”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, citing
Anders v. California (1967) 386 U.S. 738; People v. Wende
(1979) 25 Cal.3d 436.) But a defendant is not entitled to
such review “in subsequent appeals.” (Serrano, supra, at
p. 503; see also People v. Kisling (2015) 239 Cal.App.4th 288,
290.) This is an appeal from a postjudgment motion for
relief and not a first appeal as a matter of right. Appellant
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is not entitled to Wende review. As we have already held,
appellant’s section 1172.6 petition cannot succeed as a
matter of law (Cheshire II, supra, at p. 6), and as such, we
dismiss this appeal as abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, Acting P. J.
COLLINS, J.
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