People v. Elenes CA1/5

Filed 2/9/21 P. v. Elenes CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A160512
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. 146180)
CARLOS ELENES,
Defendant and Appellant.
Carlos Elenes appeals from an order denying his petition for writ
of error coram nobis. His appointed counsel filed a brief seeking our
independent review of the record for arguable issues pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). We conclude Elenes is not entitled to
Wende review of the postconviction order and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Elenes pled guilty to possessing a controlled substance for sale
(Health & Saf. Code, § 11351) and admitted committing the offense for the
benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court
sentenced Elenes to three years in state prison.
In 2019, Elenes petitioned for writ of error coram nobis. He sought to
vacate his conviction based on circumstances that existed when he entered
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his plea. In a thorough written order, the court denied the petition. It
concluded the petition was procedurally barred and that Elenes’s claims
lacked merit. Elenes filed two reconsideration motions, which the court
denied.
Elenes appealed. His appointed counsel filed a Wende brief and
notified Elenes he had a right to file a supplemental brief on his own behalf.
Elenes did not do so.
DISCUSSION
Wende review is required only in an indigent defendant’s “ ‘first appeal
as of right,’ ” which means an “appeal from the judgment of conviction.”
(People v. Scott (2020) 58 Cal.App.5th 1127, 1129–1131; People v. Serrano
(2012) 211 Cal.App.4th 496, 500–501 (Serrano).) A defendant is not entitled
to Wende review in an appeal from a postconviction order. (Scott, at
pp. 1130–1131 [no Wende review in appeal from postconviction petition
to vacate conviction and for resentencing]; Serrano, at pp. 500–501
[Wende review inapplicable in appeal from denial of postconviction motion
to vacate plea]; People v. Ramirez (Jan. 26, 2021, C091845) __Cal.App.5th__
[2021 Cal.App.Lexis 65, pp. *2–*3] [declining to conduct Wende review in
appeal from denial of statutory motion to vacate judgment]; cf. People v.
Flores (2020) 54 Cal.App.5th 266, 273 [while not required, nothing prohibits
court from reviewing record in interests of justice].)
This appeal is not from the judgment of conviction. It is an appeal from
a postconviction order. As a result, Elenes is not entitled to Wende review.
Appointed counsel did not discover any arguable issues to be raised on
appeal, and Elenes did not file a supplemental brief after his counsel
informed him that he had the right to do so. We have reviewed the order
below and decline to exercise our discretion to conduct a full record review.
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Consistent with Serrano, we dismiss the appeal as abandoned. (Serrano,
supra, 211 Cal.App.4th at p. 503.)
DISPOSITION
The appeal is dismissed as abandoned.
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_________________________
Seligman, J.*
WE CONCUR:
_________________________
Simons, Acting P. J.
_________________________
Burns, J.
A160512
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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