Opinion
H046866
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. RICKEY PAUL MURRAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161605A)
In 2017, a jury convicted defendant Rickey Paul Murray of the following 12 offenses: possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), possession of ammunition by a felon (§ 30305, subd. (a)(1)), possession of cocaine for sale (Health & Saf. Code, § 11351), possession of heroin for sale (Health & Saf. Code, § 11351), possession of methamphetamine for sale (Health & Saf. Code, § 11378), three counts of possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); assault with a semiautomatic firearm (§ 245, subd. (b)), shooting at an inhabited dwelling (§ 246), shooting at an unoccupied vehicle (§ 247, subd. (b)), and discharging a firearm with gross negligence (§ 246.3, subd. (a)). The jury also found true allegations that defendant was armed with a firearm (§ 12022, subd. (c)) in the commission of the three counts involving possession for sale of narcotics, and that defendant personally used a firearm (§ 12022.5, subd. (a)) in the commission of the assault, shooting, and firearm discharge counts. The trial court sentenced defendant to 15 years 8 months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
We take judicial notice of this court's opinion in defendant's previous appeal. (People v. Murray (Oct. 15, 2018, H044508) [nonpub. opn.].) Our summary of the pertinent factual and procedural background includes some information that we have taken from this court's prior opinion. --------
Defendant appealed. This court reversed the judgment and remanded the matter to the trial court for the limited purpose of correcting a clerical error regarding custody credits, and to allow the trial court to consider whether to exercise its newly enacted discretion to strike the section 12022.5 enhancement under section 1385. The trial court corrected the clerical error regarding custody credits, and on March 21, 2019, the trial court declined to strike the enhancement and reinstated the sentence. Defendant filed a notice of appeal on April 29, 2019.
On appeal, we appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), stating the case and facts but raising no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no response from defendant.
In People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) at page 503, this court concluded that Wende review is limited to the defendant's first appeal of right from a criminal conviction. The instant appeal originates from a post-conviction proceeding and not a first appeal of right, and therefore defendant is not entitled to Wende review. Having received no appellate argument from defendant or appointed counsel, we must dismiss the appeal. (See Serrano, supra, at pp. 503-504.)
Defendant has also filed a petition for writ of habeas corpus arguing that he was deprived of the effective assistance of counsel, which we ordered considered with the appeal. We dispose of the petition by separate order.
DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.