P. v. Chiemwichitra CA3 10/18/22

Filed 10/18/22 P. v. Chiemwichitra 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY CHIEMWICHITRA,

Defendant and Appellant.

C096201

(Super. Ct. No. 19F4451)

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
“A jury found defendant Timothy Chiemwichitra guilty of numerous offenses arising out of a violent altercation with his girlfriend . . . . The jury also found that defendant personally inflicted great bodily injury under circumstances involving domestic violence ([Pen. Code,] § 12022.7, subd. (e)[, fn. omitted])[] . . . . The trial court sentenced him to an aggregate term of 12 years eight months in prison.” (People v. Chiemwichitra (Aug. 16, 2021, C091908) [nonpub. opn.].)Defendant appealed and we reversed one conviction, reducing defendant’s sentence to 10 years eight months, but otherwise affirmed the judgment. (Ibid.)
On April 18, 2022, after the passage of Senate Bill No. 81 (2021-2022 Reg. Sess.), defendant filed a “Motion to Dismiss Enhancement Under Amended Penal Code [section] 1385, And Senate Bill No. 81.” On April 25, 2022, the trial court denied the motion, finding dismissal of the enhancement would not be “in the furtherance of justice” because the “crime committed against the victim in this case was especially cruel and heinous and [defendant’s] flight from law enforcement endangered the lives of others.”
Defendant appealed the trial court’s order denying his motion.
Appointed counsel for defendant asked this court to independently review the record pursuant to Wende. Defendant was advised by counsel of the right to file a supplemental brief within 30 days. Defendant did not file a supplemental brief.
Discussion
Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 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 froma denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108, review grantedMay 12,2021,S267870;People v.Flores(2020)54 Cal.App.5th266;People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.)This is so because this is not the defendant’s first appeal as of right. (See In re Sade C. (1996)13 Cal.4th 952, 986 [Wende/Anders review “mandated for only one [situation]—theindigentcriminaldefendantinhisfirstappealasofright”].)
We thus have before us a standard appeal from an order denying postconviction relief in which the defendant, through counsel, has stated that there are no issues thatproperly can be raised on appeal. Under these circumstances, we consider the appeal abandonedand order the appeal dismissed.
The question of whether, and to what extent, these “Wende procedures” extend to appeals such as this one from orders denying postconviction relief is currently pending before our Supreme Court. (See People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.) Untilthe Supreme Court has provided an answer,appeals suchastheonepresentlybeforeus must be considered abandoned and ordered dismissed.
Disposition
The appeal is dismissed.

HULL, Acting P. J.

I concur:

BOULWARE EURIE, J.
MAURO, J., Dissenting.
As the majority opinion correctly indicates, the California Supreme Court is currently considering whether a defendant is entitled toPeople v. Wende (1979) 25 Cal.3d 436 review of an order denying postconviction relief. (See, e.g., People v. Delgadillo (Nov. 18, 2020, B304441)[nonpub. opn.], review granted Feb. 17, 2021, S266305; People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.) Until the Supreme Court has had an opportunity to address the issue, I would adhere to Wende in the present case.

_________________________
MAURO, J.