People v. Veaver CA3 ( 2014 )

Filed 5/14/14 P. v. Veaver 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C073979
Plaintiff and Respondent, (Super. Ct. No. CM027627)
v.
WILLIAM FRANKLIN VEAVER,
Defendant and Appellant.
Pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende), defendant William
Franklin Veaver has asked us to review the record for arguable issues in this appeal from
the denial of his motion to vacate the judgment pursuant to Penal Code section 1473.6,1
which allows a noncustodial defendant to move to vacate a judgment of conviction due to
1 Further statutory references are to the Penal Code unless otherwise indicated.
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newly discovered evidence under specified circumstances. Because we find that
defendant is not entitled to Wende review, we dismiss the appeal as abandoned.
BACKGROUND
On April 17, 2008, pursuant to a negotiated disposition, defendant pleaded no
contest to sexual battery (§ 243.4, subd. (a)) with the understanding that related counts
and allegations would be dismissed. Defendant was sentenced to prison for three years.
On March 1, 2013, defendant filed a motion to vacate his conviction pursuant to
section 1473.6. The superior court denied the motion by written order.
Defendant filed a timely notice of appeal from this order.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal. 3d
436.) Counsel advised defendant of the right to file a supplemental brief within 30 days
of the date of filing of the opening brief. More than 30 days have elapsed, and we have
received no communication from defendant.
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. (People v. Serrano (2012) 211 Cal. App. 4th 496, 500-
501 (Serrano); Conservatorship of Ben C. (2007) 40 Cal. 4th 529, 536-537 (Ben C.);
Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L. Ed. 2d 539, 545-546].)
The right to Anders/Wende review applies only at appellate proceedings where
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.) While a criminal
defendant has a right to appointed counsel in an appeal from an order after judgment
affecting his substantial rights (§§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)),
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that right is statutory, not constitutional. Defendant is not entitled to Wende review in
such an appeal. (See Serrano, supra, at p. 501 [no Wende review for denial of post
conviction motion to vacate guilty plea pursuant to section 1016.5].)
Applying Serrano, here defendant has no right to a Wende review of the denial of
his motion to vacate the judgment pursuant to section 1473.6. Because neither defendant
nor his counsel raises any claim of error, we must dismiss defendant’s appeal as
abandoned.
DISPOSITION
The appeal is dismissed.
HULL , Acting P. J.
We concur:
ROBIE , J.
BUTZ , J.
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