People v. Mazzei CA1/4

Filed 1/15/14 P. v. Mazzei CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137383 v. PAUL WILLIAM MAZZEI, (Solano County Super. Ct. No. VCR178416) Defendant and Appellant.

In this appeal from the denial of a motion to vacate a criminal conviction, appointed counsel for defendant Paul William Mazzei filed a brief requesting this court’s independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). We dismiss the appeal as abandoned because Mazzei is not entitled to Wende review and no claims of error have been raised. I. FACTUAL AND PROCEDURAL BACKGROUND In 2006, Mazzei, a Canadian citizen, was sentenced to twenty-five years to life in prison after he pleaded nolo contendere to one count of murder.1 His plea was part of a negotiated arrangement in which the People agreed to dismiss the allegation that he

1 Penal Code section 187, subdivision (a). All further statutory references are to the Penal Code.

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personally used a deadly weapon and agreed not to add a special circumstance that the murder was for financial gain.2 Mazzei waived his right to appeal the conviction. Almost seven years later, Mazzei filed a motion to vacate the conviction. The motion was based on section 1016.5 (requiring trial courts to advise defendants before accepting pleas that certain convictions may have immigration consequences); section 1018 (allowing the withdrawal of guilty pleas in certain circumstances); and Boykin v. Alabama (1969) 395 U.S. 238, 242 (requiring guilty pleas to be “intelligent and voluntary”). The trial court denied the motion as untimely, and this appeal followed. II. DISCUSSION In his brief filed under Wende, supra, 25 Cal.3d 436, Mazzei acknowledges that in People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), the Sixth District Court of Appeal held that a defendant is entitled to Wende review in “a first appeal of right” from a criminal conviction but is not entitled to such review “in subsequent appeals, including collateral attacks on the judgment.” (Id. at p. 503.) The Serrano court concluded that such a subsequent appeal must be dismissed as abandoned if neither the defendant nor appointed counsel raises any claims of error. (Id. at pp. 503-504.) Mazzei argues that Serrano was incorrectly decided and should not control even though it also arose out of an appeal from a motion to vacate a conviction under section 1016.5. (Id. at p. 499.) We disagree. We begin with a brief history of the Wende procedure, which was fashioned to protect an indigent defendant’s federal constitutional right to effective assistance of counsel in the first appeal of right from a conviction. (People v. Kelly (2006) 40 Cal.4th 106, 117-118; Serrano, supra, 211 Cal.App.4th at pp. 499-500.) The federal Constitution does not require states to provide such an appeal (Douglas v. California (1963) 372 U.S. 353, 356), but if a state provides one, the state must ensure that indigent defendants are