Filed 10/27/20 P. v. Gix CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302894
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA055230)
v.
FLOYD WAYNE GIX
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, H. Clay Jacke, Judge. Dismissed.
Paul Stubb, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 2000, a jury convicted appellant Floyd Wayne Gix of
assault with a firearm (Pen. Code, § 245, subd. (a)(2))1, corporal
injury to spouse/cohabitant/child’s parent (§ 273.5, subd. (a)),
false imprisonment by violence (§ 236), and terrorist threats
(§ 422). Following the jury trial, the court found true the
allegations regarding appellant’s two prior serious or violent
felony convictions. (§§ 1170.12, subds. (a)-(d), 667, subds. (a)-(i).)
The trial court denied appellant’s motion to strike the prior
convictions and imposed a sentence of 94 years and four months
to life. We affirmed the judgment in our prior unpublished
decision, People v. Gix (August 2, 2002, B146459) [nonpub.opn.].
On October 28, 2019, appellant filed a motion to correct a
sentencing error. He argued that by relying on his out-of-state
prior conviction for sentencing purposes, the court engaged in
judicial fact finding “beyond merely identifying a prior
conviction.” The trial court denied appellant’s motion, stating
that he had “packaged and re-packaged the same issue, over and
over again,” without success. Appellant appealed.
Appellant’s appointed counsel filed a brief requesting that
we independently review the record for error pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende). We directed counsel to
send the record and a copy of the brief to appellant, and notified
appellant of his right to respond within 30 days. We have
received no response.
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
DISCUSSION
We dismiss the appeal because appellant is not entitled to
Wende review. “In an indigent criminal defendant’s first appeal
as a matter of right, the Court of Appeal must independently
review the record if appointed counsel represents he or she has
found no arguable issues.” (Conservatorship of Ben C. (2007) 40
Cal.4th 529, 535, citing Anders v. California (1967) 386 U.S. 738;
Wende, supra, 25 Cal.3d 436.) A defendant is not entitled to such
review “in subsequent appeals.” (People v. Serrano (2012) 211
Cal.App.4th 496, 503; see also People v. Kisling (2015) 239
Cal.App.4th 288, 290.) As this is an appeal from a motion for
correction of a sentencing error, not a first appeal as a matter of
right, appellant is not entitled to Wende review. Because neither
appellant nor his counsel has raised any claims of error, we
dismiss the appeal as abandoned. (See Serrano, supra, 211
Cal.App.4th at pp. 503-504; Kisling, supra, 239 Cal.App.4th at p.
292 & fn. 3.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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