California Court of Appeal Jul 21, 2022 No. E078755Unpublished
Filed 7/21/22 P. v. Tennard CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078755
v. (Super.Ct.No. SWF1500345)
THOMAS RAYMILLIER TENNARD, OPINION JR.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Thomas Raymillier Tennard, Jr., appeals from a
postjudgment order denying his Penal Code1 section 1170.95 petition for resentencing
under the procedures established by Senate Bill No. 1437. Appointed appellate counsel
filed an opening brief that sets forth the facts of the case and asks this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues and should do so in the
interest of justice, either where an initial review does not show the defendant is obviously
ineligible for relief or as a routine matter. (See People v. Gallo (2020) 57 Cal.App.5th
594, 598-599, 271; People v. Flores (2020) 54 Cal.App.5th 266, 269-274; People v.
Allison (2020) 55 Cal.App.5th 449, 456.)
In this case, we conclude defendant is not entitled to Wende/Anders review of the
order denying his petition for resentencing relief under section 1170.95. The right to
Wende/Anders review applies only at appellate proceedings where defendant has a
previously established constitutional right to counsel. (People v. Serrano (2012) 211
Cal.App.4th 496, 500-501; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537.)
4
The constitutional right to counsel extends to the first appeal of right, and no
further. (Serrano, at pp. 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 of conviction.” (Id. at p. 501.) While a criminal
defendant has a right to appointed counsel in an appeal from an order after judgment
affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421,
subd. (c)), that right is statutory, not constitutional. Thus, 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 section 1016.5].)
Applying Serrano here, defendant has no right to Wende/Anders review of the
denial of his section 1170.95 petition for resentencing. Because neither defendant nor his
counsel has raised any claim of error, and because this appeal concerns a postjudgment
proceeding in which there is no constitutional right to counsel, we will dismiss
defendant’s appeal as abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. I concur:
SLOUGH J.
5
[The People v. Thomas Raymillier Tennard, E078755]
RAMIREZ, P. J., Dissenting
I respectfully dissent. Unless and until our Supreme Court instructs otherwise, I
continue to embrace our opinion in People v. Gallo (2020) 57 Cal.App.5th 594, 599,
which concluded the interests of justice call for independent review of the record in post-
judgment no-issue appeals even if the defendant has not filed a supplemental brief.
RAMIREZ P. J.
1
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is not entitled to independent Wende/Anders review of an order denying a postjudgment petition for resentencing under Penal Code section 1170.95, and dismissed the appeal as abandoned.
Issues
Whether a defendant is entitled to Wende/Anders independent review of an order denying a postjudgment petition for resentencing under Penal Code section 1170.95.
Whether the trial court erred in finding the defendant ineligible for resentencing under section 1170.95.
Disposition. dismissed
Quotations verified verbatim against the opinion
“Because defendant is not entitled to Wende/Anders review from denial of the challenged postjudgment motion, and neither he nor his counsel has raised any claim of error in the denial, we dismiss his appeal as abandoned.”
“The right to Wende/Anders review applies only at appellate proceedings where defendant has a previously established constitutional right to counsel.”