Filed 6/9/15 P. v. Pillors CA3
Received for posting 8/31/15
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C078236
Plaintiff and Respondent, (Super. Ct. No. 14F03071)
v.
DARNELL PILLORS,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende),
after the denial of defendant Darnell Maurice Pillors’s petition for resentencing pursuant
to Penal Code section 1170.18.1 Defendant filed a supplemental brief raising issues
relating to the validity of his plea and the judgment. We shall dismiss the appeal.
1 Undesignated statutory references are to the Penal Code.
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BACKGROUND
On June 19, 2014, defendant was sentenced to three years eight months in prison
for making criminal threats (§ 422) while personally armed with a knife (§ 12022, subd.
(b)(1)). Defendant also had a prior strike conviction. On December 8, 2014, defendant
filed a petition for resentencing pursuant to section 1170.18. The trial court denied the
petition “due to ineligibility based on: Current convictions.”
Defendant filed a timely notice of appeal from this order. 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. As we reference herein,
defendant exercised his right to file a supplemental brief.
DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738 [18 L.Ed.2d 493] (Anders), 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)),
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].)
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Applying Serrano here, we note that 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.) For this reason,
defendant is not entitled to a Wende review of the denial of his petition for resentencing
pursuant to section 1170.18. (Ibid.) Accordingly, we do not independently review the
record for error.
Notwithstanding our conclusion that this particular appeal cannot trigger a right to
independent Anders/Wende review, we shall still address the arguments raised by
defendant in his supplemental brief. (Serrano, supra, 211 Cal.App.4th at p. 503.)
Defendant has challenged the validity of his plea and the judgment based on his
allegation that his trial counsel did not inform him of the possibility of having his prior
strike dismissed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Nothing in defendant’s supplemental brief suggests that there is an arguable issue on
appeal from the order denying his petition for modification of the sentence pursuant to
section 1170.18. Moreover, his claims are based upon matters outside the record, which
we cannot consider on appeal. (People v. Szeto (1981) 29 Cal.3d 20, 35.) Nor can we
consider contentions which challenge the validity of the plea, in the absence of a
certificate of probable cause, which defendant did not obtain. (§ 1237.5; People v.
Panizzon (1996) 13 Cal.4th 68, 74-77.)
Because neither defendant nor his counsel raise any claim of error with respect to
the order from which the appeal was taken, we dismiss defendant’s appeal. (Serrano,
supra, 211 Cal.App.4th at pp. 503-504.)
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DISPOSITION
The appeal is dismissed.
RENNER , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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