People v. Mosqueda CA3

Filed 12/24/20 P. v. Mosqueda CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C091240

Plaintiff and Respondent, (Super. Ct. No. 08F07848)

v.

FRANK G. MOSQUEDA,

Defendant and Appellant.

Appointed counsel for defendant, Frank G. Mosqueda, asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Because we find that defendant is not entitled to Wende review, and has not raised an arguable issue in his supplemental brief, we dismiss the appeal. (People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).)

BACKGROUND In February 2010, following a court trial, the court convicted defendant of seven felonies, including attempted premediated murder, and found true numerous enhancement allegations. For each of his convictions, except attempted murder, the trial court sentenced defendant to an aggregate, determinate term of 34 years in state prison.

1

For defendant’s attempted murder conviction, the trial court sentenced defendant to an indeterminate term of life with the possibility of parole, plus another 14 years for a gun use and great bodily injury enhancements. The original abstract of judgment incorrectly identified defendant’s attempted murder conviction as “attempted second degree murder.” After receiving several letters from the Department of Corrections and Rehabilitation, the trial court ultimately corrected the abstract of judgment to correctly reflect defendant’s conviction as one for attempted premeditated murder and the sentence imposed as life with the possibility of parole. Defendant appeals from the ultimate order correcting the abstract of judgment, which resulted in the second amended abstract of judgment.

DISCUSSION 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.); Serrano, supra, 211 Cal.App.4th at pp. 500-501.) The right to Anders/Wende review applies only at appellate proceedings where 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.) While 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. (See Serrano, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to Pen. Code, § 1016.5].)