People v. Weisner

California Court of Appeal Apr 27, 2022 No. C095039Published

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Holding. The court held that Wende procedures do not apply to appeals from the denial of postconviction relief, and that a represented defendant has no right to personally submit supplemental briefs or arguments. Consequently, when appointed counsel finds no arguable issues in such an appeal, the appeal is considered abandoned and must be dismissed.

Issues

Whether Wende procedures apply to an appeal from a denial of postconviction relief.
Whether a represented defendant has a right to personally submit supplemental briefs or arguments on appeal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“California’s “Wende procedure” does not apply to appeals such as this one which is from a denial of postconviction relief.”

“in a non-Wende appeal, the defendant, as an individual, does not have the right to submit his or her own arguments to the court for resolution.”

Filed 4/27/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C095039

Plaintiff and Respondent, (Super. Ct. No. LODCRFE20170002477) v.

FRANKIE JAMES WEISNER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, Richard J. Guiliani, Judge. Dismissed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant Frankie James Weisner pleaded no contest to second degree robbery (Pen. Code § 211) (statutory section citations that follow are to the Penal Code), and

grand theft (§ 487, subd. (c)), and admitted he personally used a firearm in the robbery (§ 12022.5, subd. (a)). After his initial appeal was denied as untimely, defendant sought to reduce his conviction on the grand theft count to a misdemeanor under section 1170.18, which the trial court denied. Defendant appeals from the trial court’s order denying his petition for resentencing.

FACTS AND HISTORY OF THE PROCEEDINGS This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and following defendant’s filing of a pro. per. supplemental brief arguing (1) the trial court improperly sentenced him contrary to his original plea agreement, (2) his counsel was ineffective and concealed evidence, and (3) the prosecution refused to disclose exculpatory evidence in the original proceedings. We note that the trial court denied defendant’s two requests for certificates of probable cause. Despite the expansive claims in the notice of appeal, the only issue cognizable on appeal is the denial of his motion to reduce the grand theft charge to a misdemeanor. (Cal. Rules of Court, rule 8.304(b)(3); People v. Aguilar (2003) 112 Cal.App.4th 111, 114.)

DISCUSSION Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 (Anders) is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th 496, 500-501.) California’s “Wende procedure” does not apply to appeals such as this one which is from a denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108, 111, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th 266, 271; People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review

People v. Weisner

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THE PEOPLE, C095039

FRANKIE JAMES WEISNER,

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