People v. Singh CA3

Filed 12/11/20 P. v. Singh 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C090173
Plaintiff and Respondent, (Super. Ct. No. CRF-2018-
4164)
v.
PRASHNEET SINGH,
Defendant and Appellant.
THE PEOPLE, C090442
Plaintiff and Respondent, (Super. Ct. No. CRF-2018-
6647)
v.
PRASHNEET SINGH,
Defendant and Appellant.
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In this consolidated appeal from denial of defendant’s motion to recall his
sentence pursuant to Penal Code section 1170, subdivision (d),1 appointed counsel for
defendant Prashneet Singh, asks this court to review the record to determine whether
there are any arguable issues in this consolidated appeal. (People v. Wende (1979)
25 Cal. 3d 436 (Wende).) We conclude defendant is not entitled to a Wende review and
will dismiss this appeal as abandoned.
BACKGROUND
Defendant resolved case No. CFR-2018-4164 (the Battery Case) by pleading no
contest to committing battery for the benefit of a street gang (§§ 186.22, subd. (d), 242)
and admitting the prior strike allegation (§ 667, subds. (c), (e)(1)). In exchange, the
parties agreed defendant would receive the lower term of one year, doubled to two for the
prior strike, and the remaining enhancements would be dismissed. In addition, defendant
would receive dismissal of two other pending cases.
Thereafter, defendant resolved case No. CRF-2018-6647 (the Drug Case) by
pleading no contest to bringing a controlled substance into jail (§ 4573) and admitting the
prior strike allegation (§ 667, subds. (c), (e)(1)). In exchange, defendant would receive
the lower base term of two years, doubled to four for the prior strike, and the remaining
enhancements would be dismissed. This agreement contemplated a consecutive sentence
of one year four months for the Battery Case.
Defendant was sentenced in both the Drug Case and the Battery Case on March
22, 2019. In accordance with the plea agreement, the court designated the Drug Case as
the principal term and sentenced defendant to two years, doubled to four because of the
prior strike. For the Battery Case, defendant received a consecutive sentence of one-third
the middle term (eight months), which was doubled to one year four months for the prior
1 Undesignated statutory references are to the Penal Code.
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strike. The court also ordered defendant pay two $300 restitution fines (§ 1202.4, subd.
(b)), two suspended $300 parole revocation restitution fines (§ 1202.45), two $40 court
operations assessment fees (§ 1465.8, subd. (a)(1)), and two $30 criminal conviction
assessment fees (Gov. Code, § 70373). The court awarded 107 days of actual credit plus
106 days of conduct credit for a total of 213 days presentence custody credit in the
Battery Case. The court awarded 130 days actual credit plus 130 days conduct credit for
a total of 260 days presentence custody credit in the Drug Case. Defendant did not
appeal this judgment.
On June 14, 2019, defendant filed papers inviting the court to recall his sentence
and set aside his felony conviction pursuant to section 1170, subdivision (d) arguing that
pursuant to People v. Raybon (2019) 36 Cal. App. 5th 111, review granted August 21,
2019, S256978, the facts surrounding the Drug Case no longer constituted a felony. On
July 15, 2019, the trial court denied defendant’s request, but advised that defendant could
withdraw his plea if he so chose. There is no indication in the record that defendant ever
moved to withdraw his plea, and the August 12, 2019, hearing set to allow defendant the
opportunity to consult with counsel concerning the withdrawal of his plea was vacated.
Defendant timely appealed.
DISCUSSION
Counsel filed an opening brief that sets forth the relevant procedural history and
facts of the case and requests 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 from the date
the opening brief was filed, but has not done so.
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;
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People v. Serrano (2012) 211 Cal. App. 4th 496, 500-501 (Serrano).) And the due process
right to Anders/Wende review applies only in appellate proceedings in which a defendant
has a previously established constitutional right to counsel. (Serrano, at p. 500; Ben C.,
at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right,
and no further. (Serrano, at pp. 500-501.) Although a criminal defendant has a right to
appointed counsel in an appeal from an order after judgment affecting his or her
substantial rights (§§ 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 when appointed counsel finds no arguable issues on appeal. (See Serrano, at
p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea
pursuant to § 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.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano here, we
conclude that defendant has no right to Wende review of the order denying his
postjudgment request that the trial court recall his sentence under section 1170,
subdivision (d). Further, given defendant’s failure to file a supplemental brief despite
being advised of his right to do so, we will dismiss defendant’s appeal as abandoned.
(See People v. Cole (2020) 52 Cal. App. 5th 1023, 1039-1040 [because postjudgment
order appealed from is presumed to be correct, where defendant does not file a
supplemental brief, the Court of Appeal may dismiss the appeal as abandoned], review
granted Oct. 14, 2020, S264278.)
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DISPOSITION
The appeal is dismissed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
KRAUSE, J.
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