Opinion
A150884
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIE EARL LYONS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR230340, FC28424, FC35467, FC43703)
Defendant Willie Earl Lyons appeals an order denying his petitions to reduce four felony drug and theft convictions to misdemeanors under Penal Code section 1170.18, a provision of Proposition 47. The trial court denied the petitions because, at the time of the hearing on the petitions, Lyons had been convicted of (but not yet sentenced for) the crime of rape of an unconscious person (§ 261, subd. (a)(4)), an offense that the court concluded made Lyons ineligible for reduction of his felony drug and theft convictions. (See § 1170.18, subd. (i) [Proposition 47 sentence-reduction not available to persons who have "one or more prior convictions" for an offense requiring sex offender registration under § 290, subd. (c)]; § 290, subd. (c) [sex offender registration required for persons convicted of specified offenses, including rape of an unconscious person under § 261, subd. (a)(4)].)
Undesignated statutory references are to the Penal Code.
Lyons's appeal of his rape conviction (Solano County Super. Ct. No. FCR316809) is pending in this court (People v. Lyons (A150603, app. pending)). Lyons also has filed a habeas corpus petition (In re Lyons (A151977)), which will be considered with that appeal. --------
In the present appeal of the denial of his Proposition 47 petitions, Lyons's appointed appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed Lyons of his right to file a supplemental brief, but Lyons did not file one. We dismiss this appeal as abandoned because Lyons is not entitled to Wende review. At the request of Lyons's appellate counsel, however, we will specify that our disposition is without prejudice to Lyons's re-filing his Proposition 47 petitions in the event his rape conviction is reversed.
I. BACKGROUND
On December 16, 2016, Lyons filed petitions asking the trial court to reduce four felony convictions to misdemeanors pursuant to section 1170.18, subdivision (f). The petitions sought reduction of the following convictions: (1) a 1990 conviction for violation of Health and Safety Code section 11350, subdivision (a) (possession of controlled substances) (Solano County Super. Ct. No. FC28424); (2) a 1997 conviction under Penal Code section 666 ("petty theft with a prior") (Solano County Super. Ct. No. FC43703); (3) a 1993 conviction for violation of Health and Safety Code section 11350, subdivision (a) (Solano County Super. Ct. No. FC35467); and (4) a 2006 conviction for violation of Health and Safety Code section 11350, subdivision (a) (Solano County Super. Ct. No. FCR230340).
The prosecution opposed reduction of Lyons's drug and theft convictions to misdemeanors, arguing his October 7, 2016 conviction of rape of an unconscious person (§ 261, subd. (a)(4)), an offense requiring sex offender registration, precluded reduction of his drug and theft convictions. At the hearing on the petitions, defense counsel argued the rape conviction did not preclude reduction of Lyons's drug and theft convictions, because the court had not yet sentenced Lyons for the rape conviction or imposed the sex offender registration requirement. The court disagreed and denied the petitions, noting that Lyons had been convicted of a crime requiring sex offender registration and that the court was required to impose the registration requirement.
Lyons filed notices of appeal challenging the denial of all four petitions. Appellate counsel filed a Wende brief, asking this court to conduct an independent review of the record for arguable issues.
II. DISCUSSION
In People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano), the Sixth District Court of Appeal held that a defendant is entitled to Wende review in "a first appeal of right" from a criminal conviction but is not entitled to such review "in subsequent appeals, including collateral attacks on the judgment." (See People v. Martinez (2016) 246 Cal.App.4th 1226, 1238; People v. Kisling (2015) 239 Cal.App.4th 288, 290 (Kisling).) The Serrano court concluded that such a subsequent appeal must be dismissed as abandoned if neither the defendant nor appointed counsel raises any claims of error. (Serrano, supra, at pp. 503-504.) Serrano involved an appeal from the denial of a motion to vacate a conviction under section 1016.5. (Id. at p. 499.) Like that appeal, Lyons's appeal of the trial court's order denying his Proposition 47 resentencing petitions is not a first appeal of right from a criminal conviction, and Lyons is not entitled to Wende review.
The Wende procedure was fashioned to protect an indigent defendant's federal constitutional right to effective assistance of counsel in the first appeal of right from a conviction. (People v. Kelly (2006) 40 Cal.4th 106, 117-118 (Kelly); Serrano, supra, 211 Cal.App.4th at pp. 499-500.) The federal Constitution does not require states to provide such an appeal (In re Sade C. (1996) 13 Cal.4th 952, 966 (Sade C.)), but if a state provides one, the state must ensure that indigent defendants are provided with effective assistance of counsel. (See Douglas v. California (1963) 372 U.S. 353, 355 (Douglas); Kelly, supra, at pp. 117-118; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 554 (Finley).)
In Anders v. California (1967) 386 U.S. 738, 741, 744 (Anders), the United States Supreme Court held that effective assistance of counsel cannot be assured when court- appointed appellate counsel is allowed simply to move to withdraw when unable to identify any meritorious issue. Instead, assuring effective assistance requires that appointed counsel at least submit "a brief referring to anything in the record that might arguably support the appeal" to facilitate an independent review by the court. (Id. at pp. 744-745.) In Wende, our Supreme Court adopted a "modified procedure" to fulfill the requirements of Anders. (Kelly, supra, 40 Cal.4th at pp. 117-118; Wende, supra, 25 Cal.3d at pp. 441-442.)
The United States Supreme Court has refused to extend Anders to appeals of decisions in postconviction proceedings because it has never recognized a constitutional right to effective assistance of counsel in those appeals: "The holding in Anders was based on the underlying constitutional right to appointed counsel established in [Douglas]. . . . Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel. [¶] . . . We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process." (Finley, supra, 481 U.S. at pp. 554-555.) Applying Finley, our Supreme Court has held that Anders does not require independent review in appeals from conservatorship proceedings or dependency proceedings because such appeals are not first appeals of right from criminal convictions. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535-537; Sade C., supra, 13 Cal.4th at pp. 982-983.) It is thus settled that Anders does not require independent review in appeals other than first appeals of right from criminal convictions.
Lyons asserts the court's order is appealable under Penal Code section 1237, subdivision (b), as an order after judgment. But, assuming the order is appealable under state law, this does not entitle Lyons to independent review under Anders. Under Finley, the determinative factor is whether the defendant has a federal constitutional right to effective assistance of counsel in a particular appeal, not whether the defendant has a state-created right to appeal or right to counsel. (Finley, supra, 481 U.S. at p. 556; see also Serrano, supra, 211 Cal.App.4th at pp. 500-501.)
Lyons's appointed counsel notified Lyons of his right to file a supplemental brief raising any substantive issues. He has not done so. Because neither he 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; see also Kisling, supra, 239 Cal.App.4th at p. 292 & fn. 3.)
III. DISPOSITION
The appeal is dismissed. The dismissal is without prejudice to Lyons's re-filing his Proposition 47 petitions in the trial court in the event his conviction for rape of an unconscious person under Penal Code section 261, subdivision (a)(4) (Solano County Super. Ct. No. FCR316809; People v. Lyons (A150603, app. pending)) is reversed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.