People v. Newby CA3

Filed 9/4/20 P. v. Newby 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C090433
Plaintiff and Respondent, (Super. Ct. No. CRPR19-44)
v.
JERAMIE ALLEN NEWBY,
Defendant and Appellant.
Appointed counsel for defendant Jeramie Allen Newby has filed an opening brief
asking this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436for arguable issues in defendant’s appeal from an order revoking his parole. We find
defendant is not entitled to Wende review, and will dismiss the appeal as abandoned.
In May 2015, defendant was convicted of possession of a controlled substance.
(Health & Saf. Code, § 11377, subd. (a)(1).) After serving two years in state prison,
defendant was released on parole in May 2018.
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In August 2019, the Department of Corrections and Rehabilitation’s Division of
Adult Parole Operations filed a petition to revoke defendant’s parole. The trial court
subsequently found defendant did, in fact, violate his parole and ordered defendant to
serve 180 days in county jail. Defendant appeals from that order.
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).) 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, 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.) Although 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 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 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.” (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 revoking defendant’s
parole. And because defendant, despite having been advised by counsel of his right to
file a supplemental brief within 30 days of the date of filing the opening brief, failed to
file any brief, 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
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presumed to be correct, where defendant does not file a supplemental brief, the Court of
Appeal may dismiss the appeal as abandoned].)
DISPOSITION
The appeal is dismissed.
KRAUSE , J.
We concur:
HOCH , Acting P. J.
RENNER , J.
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