Filed 1/29/21 P. v. Hamiltonhausey CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A160351
v.
JERRY HAMILTONHAUSEY, (Alameda County
Super. Ct. No. 105709)
Defendant and Appellant.
Defendant Jerry Hamiltonhausey, currently incarcerated in state
prison and representing himself, filed an application for writ of error coram
nobis/common law writ to vacate his conviction for second degree murder and
request for appointment of counsel (Petition). The trial court denied the
Petition for lack of jurisdiction. The court also noted that, even if the Petition
were treated as a petition for writ of habeas corpus, the court would deny it
on the grounds it was untimely, successive, and failed to state a prima facie
case for relief.
Defendant appealed, and his court-appointed counsel has filed a brief
stating he has found no arguable issues to be pursued on appeal, citing
People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano). Counsel
declared that he advised defendant that he may file a brief on his own behalf,
and no such brief has been filed. We will dismiss the petition.
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BACKGROUND
A jury found defendant guilty of second degree murder in 1991. He was
sentenced to a term of 15 years to life in prison, plus a three-year
enhancement for use of a firearm. Judgment was confirmed by the Court of
Appeal, and a petition for writ of habeas corpus was denied.
The Petition lists three grounds for relief: (1) insufficiency of the
evidence, (2) ineffective assistance of counsel in trial counsel’s failure to
argue, and present evidence of, justifiable/excusable homicide and heat of
passion, and (3) trial court error in failing to instruct the jury on
justifiable/excusable homicide.
DISCUSSION
Independent judicial review pursuant to People v. Wende (1979) 25
Cal.3d 436, 440–442 (Wende) is required only as to “a defendant’s first appeal
as of right.” (People v. Kelly (2006) 40 Cal.4th 106, 119.) In Serrano, supra,
the defendant appealed an order denying a motion to vacate his conviction.
(211 Cal.App.4th at p. 498.) The Court of Appeal held the defendant was not
entitled to Wende review in an appeal of postjudgment proceedings after his
first appeal of right, including collateral attacks on the judgment. (Id. at p.
503.) Instead, when court-appointed counsel finds no arguable issues in the
appeal of postjudgment proceedings, the appellate court may either retain the
appeal or dismiss the appeal on its own motion. (Ibid.) The Serrano court
elected not to retain the appeal and dismissed it as abandoned. (Id. at pp.
503–504.)
Here, as in Serrano, defendant is seeking to vacate his conviction in a
postjudgment proceeding long after his first direct appeal of right. We see no
reason to conduct a Wende review in this case. We will dismiss the appeal as
abandoned. (Serrano, supra, 211 Cal.App.4th at p. 504.)
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DISPOSITION
The appeal is dismissed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A160351, People v. Hamiltonhausey
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