People v. Russell CA3

Filed 5/24/21 P. v. Russell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092673

Plaintiff and Respondent, (Super. Ct. No. 15F06951)

v.

MAURICE RUSSELL,

Defendant and Appellant.

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant Maurice Russell and codefendants forced the victims into an apartment complex and then attempted to rob them; a codefendant was armed with a firearm in the process. Defendant was charged with attempted murder (Pen. Code, §§ 664/187, subd. (a), count 1; undesignated statutory references are to the Penal Code); kidnapping (§ 207,

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subd. (a), count 2); kidnapping for robbery (§ 209, subd. (b)(1), count 3); attempted robbery (§§ 664/211, count 4); and three counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts 5-7). It was further alleged as to the first four counts that a principal was armed with a firearm (§ 12022, subd. (a)(1)), and for the assault counts defendant used a semiautomatic firearm (§ 12022.5, subds. (a), (d)). On August 3, 2017, defendant pleaded no contest to counts 2 and 4 and admitted one of the allegations he was armed with a firearm in exchange for a stipulated sentence of nine years eight months. On August 25, 2017, the trial court sentenced defendant pursuant to the plea to a term of nine years eight months comprised of the upper term of eight years for count 2, eight months (one-third midterm) for count 4, and one year for the firearm enhancement. The remaining charges were dismissed. On March 26, 2018, after the Department of Corrections and Rehabilitation wrote to the court asking for clarification on which count defendant’s plea to the firearm enhancement applies, defendant reaffirmed his plea in full including to the firearm enhancement as applied to count 2. The court sentenced defendant to the same sentence. On August 25, 2020, defendant filed a petition for modification of sentence under section 1170.91, subdivision (b). The court denied the motion. Defendant appealed. Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Defendant filed a supplemental brief. 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.) 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