P. v. Mazzei
Filed 1/15/14 P. v. Mazzei CA1/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent,
v.
PAUL WILLIAM MAZZEI,
Defendant and
Appellant.
A137383
(Solano
County
Super. Ct. No.
VCR178416)
In this appeal from the denial of a
motion to vacate a criminal conviction, appointed counsel for defendant Paul
William Mazzei filed a brief requesting this court’s independent review of the
record in accordance with
(Wende). We dismiss the appeal as abandoned because Mazzei
is not entitled to Wende review and no
claims of error have been raised.
I.
Factual and Procedural
Background
In 2006, Mazzei, a Canadian citizen,
was sentenced to twenty-five years to life in prison after he pleaded nolo
contendere to one count of murder.
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His plea was part of a negotiated
arrangement in which the People agreed to dismiss the allegation that he
personally used a deadly weapon and agreed not to add a special circumstance
that the murder was for financial gain.
Almost seven years later, Mazzei filed
a motion to vacate the conviction. The
motion was based on section 1016.5 (requiring trial courts to advise defendants
before accepting pleas that certain convictions may have immigration consequences);
section 1018 (allowing the withdrawal of guilty pleas in certain circumstances);
and Boykin v. Alabama (1969) 395 U.S.
238, 242 (requiring guilty pleas to be “intelligent and voluntaryâ€). The trial
court denied the motion as untimely, and this appeal followed.
II.
Discussion
In his brief filed under
496 (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.†(
court concluded that such a subsequent appeal must be dismissed as abandoned if
neither the defendant nor appointed counsel raises any claims of error. (Id.
at pp. 503-504.) Mazzei argues that
not control even though it also arose out of an appeal from a motion to vacate
a conviction under section 1016.5. (
We begin with a brief history of the
Wende procedure, which 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. (
106, 117-118; Serrano,
states to provide such an appeal (Douglas
v. California (1963) 372 U.S. 353, 356), but if a state provides one, the
state must ensure that indigent
defendants are provided with effective assistance of counsel. (Ibid.;
see also Pennsylvania v. Finley (1987)
481 U.S. 551, 554 (Finley).)
In Anders v. California (1967) 386 U.S. 738, 741, 744 (
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
right to appointed counsel established in [Douglas
v. California, supra, 372 U.S.
353]. . . .
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;
982-983.) It is thus settled that
review in appeals other than first appeals of right from criminal convictions.
We reject Mazzei’s argument that he
is entitled to independent review under Anders,
supra, 386 U.S. 738
simply because defendants in California also have a statutory right to appeal from certain postconviction
decisions.
makes clear, 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,
500-501.)
Mazzei also argues that independent
review is necessary to safeguard “the rights of the non-citizen accused†under
“the Fifth, Sixth, and Eighth Amendments,†which he claims are “the interests
protected by . . . section 1016.5.†As discussed above, the Wende procedure protects an indigent defendant’s right to effective
assistance of counsel, which attaches to first appeals of right from criminal
convictions—but not to postconviction appeals.
Mazzei fails to explain how the Wende
procedure would protect any constitutional rights he may have other than the
right to effective assistance of counsel, nor does he claim that any of those
rights is in danger of being violated by virtue of his status as a noncitizen.
Finally, we do not accept Mazzei’s contention
that independent review is required because “immigration consequences†are “akin
to punishment.†He focuses on “punishmentâ€
in an attempt to distinguish In re Sade
C., supra, 13 Cal.4th 952 and
“punishment†implicating due process (under the three-factor analysis set forth
in Lassiter v. Department of Social
Services (1981) 452 U.S. 18) or equal protection. (Ben C.,
at pp. 538-543; Sade C., at pp.
985-986, 990-991.) But Mazzei makes no
attempt to explain how due process requires the extension of
equal-protection argument at all. Mazzei
has failed to persuade us that he is entitled to Wende review in this appeal.
Following the procedure set forth in
Serrano, we notified Mazzei of his
right to file a supplemental brief raising any substantive issues. (Serrano,
supra, 211 Cal.App.4th at p.
503.) He has not done so. Because neither he nor his counsel has raised
any claims of error, we dismiss the appeal as abandoned. (See id.
at pp. 503-504.)
III.
Disposition
The appeal is dismissed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
Penal Code.
circumstance], 12022, subdivision (b)(1) [personal use of deadly weapon].
