People v. Scoggins CA3

Filed 3/17/21 P. v. Scoggins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C092018
Plaintiff and Respondent, (Super. Ct. No. 62167548A)
v.
WESLEY SHAWN SCOGGINS,
Defendant and Appellant.
Defendant Wesley Shawn Scoggins appeals from an order denying his
postjudgment petition for resentencing pursuant to Penal Code section 1170, subdivision
(d).1 Appointed counsel for defendant asks this court to review the record to determine
whether there are any arguable issues in accordance with People v. Wende (1979)
1 Further undesignated statutory references are to the Penal Code.
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25 Cal.3d 436 (Wende). We conclude defendant is not entitled to Wende review and will
dismiss the appeal.
BACKGROUND
On October 23, 2019, defendant pleaded no contest to attempted pandering by
encouragement. (§§ 664, 266i, subd. (a)(2).) Defendant also admitted to being
previously convicted of two strike offenses (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-
(i)) and serving a prior prison term (§ 667.5, subd. (b).) As part of the negotiated plea,
defendant and the People agreed defendant would serve a stipulated term of five years in
state prison.
At the sentencing hearing on December 4, 2019, the People noted they negotiated
the disposition “based on the agreement that the defendant would serve the one-year
sentence as a result of the [section] 667.5[, subdivision] (b) prior.” The trial court
advised defendant accordingly: “[Y]ou understand this is a negotiated disposition, five
years. You would not be able to appeal the sentence or petition the Court to reduce the
sentence at all. Do you understand that? [¶] THE DEFENDANT: Yeah.” The trial
court then sentenced defendant to the stipulated term of five years, in accordance with the
plea agreement.
On March 30, 2020, defendant petitioned the trial court to recall his sentence
pursuant to section 1170, subdivision (d). In support of his petition, defendant argued he
was entitled to the benefits of Senate Bill No. 136 (2019-2020 Reg. Sess.), which took
effect on January 1, 2020, and have the trial court strike his prior prison term
enhancement. Defendant acknowledged waiving the right to challenge that enhancement
at sentencing, but, relying on newly enacted section 1016.8, he argued that waiver was
“ ‘void as against public policy.’ ”
After hearing argument from both parties and reviewing the language of section
1016.8, the trial court denied defendant’s petition. The trial court found defendant was
informed of the upcoming change in the law relative to prior prison term enhancements at
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the time of sentencing.2 As a result, the court concluded, when defendant waived his
right to challenge his sentence, his waiver was “knowing, intelligent, and voluntary.”
Defendant did not “generally waive unknown future benefits of . . . changes in the
law . . . .” Defendant’s waiver thus did not violate public policy.
Defendant appeals from that order.
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;
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. (Ben C., at pp. 536-537;
Serrano, at p. 500.) 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
2 The trial court references a discussion about Senate Bill No. 136 during the “colloquy”
on September 4, 2019. The record on appeal does not include a reporter’s transcript from
that date.
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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.)
DISPOSITION
The appeal is dismissed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
HOCH, J.
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