Trial Court: Santa Clara County Superior Court Nos.: CC458107 & CC619149 Trial Judge: The Honorable Andrea Y. Bryan
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Santa Clara County Super. Ct. Nos. CC458107 & CC619149)
Defendant Amador Serrano, a permanent resident of the United States, currently faces deportation as a result of a conviction he sustained in 2007. He appeals from an order entered by the trial court denying his motion to vacate the conviction. On appeal, his counsel filed a brief pursuant to People v. Wende (1979) 225 Cal.3d 436 (Wende). Because this appeal was not defendant's first appeal of right, but a subsequent appeal from a post judgment proceeding, we asked counsel to brief the question of whether defendant was entitled to the benefit of the Wende procedure. We now conclude that because this is an appeal from a post-conviction proceeding, defendant is not entitled to Wende review. Consequently, we dismiss the appeal as abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, defendant pleaded no contest to one count of burglary of a vehicle (Pen. Code, §§ 459-460, subd. (b)), one count vandalism (Pen. Code, § 594, subd. (a), (b)(1)), one count of exhibiting a deadly weapon other than a firearm (Pen. Code, § 417, subd. (a)(1)), and one count of using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a).) The court suspended imposition of sentence and placed defendant on three years formal probation on the condition he serve 364 days in the county jail.
In 2006, defendant pleaded no contest to a new count of second-degree robbery with personal use of a deadly weapon (a knife). (Pen. Code, §§ 211-212.5, subd. (c), 12022, subd. (b)(1).) The court again suspended imposition of the sentence and placed defendant on one year of formal probation. In 2007, after defendant violated his probation, the trial court imposed the previously suspended sentence, ordering defendant to serve three years in prison on the 2004 case concurrent to two years for the 2006 case. In August 2007, defendant filed a notice of appeal from the judgment. After the record was filed but before he filed his opening brief, defendant voluntarily dismissed his appeal.*fn1
In 2009, after defendant had served his state prison time, the federal government instituted deportation proceedings. On August 5, 2010, defendant filed a motion to vacate his conviction in the trial court. In his motion, defendant argued that his plea was not voluntary and intelligent because (1) the court failed to render Penal Code section 1016.5 advisements; (2) defendant did not fully understand the consequences of his pleas; and (3) trial counsel rendered ineffective assistance by failing to advise and defend appellant against immigration consequences. The trial court reviewed the transcript from defendant's change of plea hearing, concluded that defendant received a "thorough immigration advisement," and, on that ground, denied his motion. The instant appeal ensued.
On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days, but received nothing from defendant. During our independent review of the case pursuant to Wende, we noted that defendant had previously filed an appeal in this court. We asked appellate counsel to brief the question of whether this court was required to conduct a Wende review where the appeal originates from a post-conviction proceeding and not a first appeal of right.*fn2 We have received responses from all counsel and now consider the issues before us.
While the Federal Constitution does not afford the right to an appeal from a criminal conviction, the state of California has afforded that right to criminal defendants. (In re Sade C. (1996) 13 Cal.4th 952, 966; Pen. Code, §1237.) "Having provided criminal defendants with an appeal as a matter of right, [California] must provide indigent defendants with the assistance of counsel on appeal." (People v. Kelly (2006) 40 Cal.4th 106, 117 (Kelly).) In Anders v. California (1967) 386 U.S. 738 (Anders), the United States Supreme Court considered "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." (Id. at p. 739.) The court held that an appointed counsel's "no-merit letter" in a criminal appeal was insufficient to protect an indigent defendant's constitutional right to effective assistance of appellate counsel. (Id. at pp. 743-745.) The high court set forth a review procedure to protect that right. (Id. at p. 744.) In Wende, the California Supreme Court "approved a modified procedure to ensure an indigent criminal defendant's right to effective assistance of counsel." (Kelly, supra 40 Cal.4th at p. 118.) The court interpreted Anders and the constitutional right to assistance of counsel to require the appellate court to conduct an independent review of the record "when counsel is unable to identify any arguable issue on appeal." (Id. at p.119.) In Smith v. Robbins (2000) 528 U.S. 259, 276, the United States Supreme Court upheld California's modified Wende procedure as an adequate alternative to Anders in a first appeal of right.
Since these decisions, courts have considered the question of whether Anders/Wende procedures are required in other types of appeals where counsel is appointed. Both the United States Supreme Court and the California Supreme Court have concluded that due process does not require Anders/Wende review other than in the first appeal of right from a criminal conviction. (In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537.) In Pennsylvania v. Finley (1987) 481 U.S. 551 (Finley) a defendant petitioned for post-conviction relief. Pursuant to Pennsylvania state law, the court appointed counsel to represent defendant in the post-conviction proceedings. Appointed counsel found no arguable issues and sought to withdraw. The trial court conducted an independent review of the record, agreed that there were no arguable issues and dismissed the petition. The Pennsylvania Superior Court held that appointed counsel had violated defendant's constitutional rights by failing to follow the procedures set forth in Anders. (Id. at p. 553) In its majority opinion, the United States Supreme Court reversed the state court, holding that "Anders established a prophylactic framework that is relevant when, and only when, a litigant has previously established constitutional right to counsel." (Id. at p. 555, emphasis added.) The court ruled that the constitutional "right to appointed counsel extends to the first appeal of right, and no further." (Id. at p. 555.) In a post-conviction proceeding, the court reasoned, "access to a lawyer is the result of the State's decision, not the command of the United States Constitution." (Id. at p. 556.) If a defendant "has no underlying constitutional right to appointed counsel . . . [he] has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right. [Citation.]" (Id. at p. 557; see also: In re Conservatorship of Ben C., supra, 40 Cal.4th at pp. 536-537.) Therefore, the Court refused to extend Anders procedures to the state-created right to counsel on post-conviction review. (Finley, supra, 481 U.S. at pp. 555, 556.)
The California Supreme Court has relied on Finley to restrict the availability of Anders/Wende review in a multitude of contexts. When addressing the contention that Anders/Wende should apply to appeals in juvenile dependency and conservatorship cases, the court has held that due process does not mandate extending these procedures beyond the first appeal of right in a criminal prosecution. (Conservatorship of Ben C., supra, 40 Cal.4th at p. 539; In re Sade C., supra, 13 Cal.4th 952, 987-991; see also, People v. Thurman (2007) 157 Cal.App.4th 36, 45-47.) 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. That appeal was filed and dismissed in 2007 and the conviction "has long since become final." (Finley, supra, 481 U.S. at p. 555.) While the State of Calilfornia affords defendant the right to appointed counsel in an appeal from a post-conviction motion to vacate judgment, that right is a state created right not a constitutional one. (Id. at p. 555, 556.)*fn3 Because he has no constitutional right to counsel in an appeal from an order denying a postjudgment motion to vacate judgment, he is not entitled to Anders/Wende review when appointed counsel finds no arguable issues on appeal. (In re Conservatorship of Ben C., supra. 40 Cal.4th at pp. 536-537, citing Finley, supra, 481 U.S. at p. 557.)
We recognize that juvenile dependency appeals and conservatorships are much more attenuated from a criminal first appeal of right than an appeal from a postjudgment order denying a motion to vacate judgment. The latter is still an appeal in a criminal context. While the California Supreme Court has not specifically considered the availability of Anders/Wende review in a post-conviction collateral attack on a judgment, the U.S. Supreme Court's decision in Finley is squarely on point. There, as in the case before us, the defendant was attacking her conviction collaterally, long after it was final. In its analysis of Finley, the California Supreme Court has recognized and relied on the High Court's restriction of Anders review to the "first appeal of right" in a criminal prosecution. ...