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Filed 2/ 9 /21 P. v. Elenes CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS ELENES

, Defendant and Appellant. A 1 60512

( Alameda County Super. Ct. No. 146180 )

Carlos Elenes appeals from an order denying his petition for writ

of error coram nobis

. His appointed counsel f iled a brief seeking our

independent review of the record for arguable issues pursuant to People v.

Wende (1979) 25 Cal.3d 436 ( Wende )

. We conclude Elenes is not entitled to

Wende review of the postconviction order and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, Elenes pled guilty to possessing a controlled substance for sale

(Health & Saf. Code

, § 11351) and admitted committ ing the offense for the

benefit of a criminal street gang ( Pen. Code, § 186.22 , subd. (b)(1)). The court

sentenced Elenes to three years in state prison

.

In 2019

, Elenes petitioned for writ of error coram no bi s . He sought to

vacate his conviction based on circumstances that existed when he entered2

his plea

. In a thorough written order, t he court denied the petition . It

co nclud ed the petition was procedurally barred and that Elenes’s claims

lacked merit

. Elenes filed two reconsider ation motions , which the court

denied

. Elenes appealed. His a ppointed counsel filed a Wende brief and

notified Elenes he had a right to file a supplemental brief on his own behalf

.

Elenes did not do so

.
DISCUSSION

Wende review is required only in an indigent defendant’s “ ‘ first appeal

as of right ,’ ” which means an “appeal from the judgment of conviction.”

( People v. Scott (2020) 58 Cal.App.5th 1127

, 1129

– 1 131 ; People v. Serrano

(2012) 211 Cal.App.4th 496, 500

– 501 ( Serrano ) .) A defendant is not entitled

to Wende review in an appeal from a postconviction order

. ( Scott, at

p p. 1130

– 1131 [ no Wende review in appeal from postconviction petition

to vacate conviction and for resentenc ing ]; Serrano

, at p p

. 500

– 50 1

[ Wende review inapplicable in appeal from denial of postconviction motion

to vacate plea ] ; People v. Ramirez ( Jan. 26, 2021 , C 0 91845 ) __Cal.App.5th__

[ 2021 Cal.App.Lexis 65

, pp. * 2

– * 3 ] [declining to conduct Wende review in

app eal from denial of statutory motion to vacate judgmen t] ; cf

. People v.

Flores (2020) 54 Cal.App. 5th 266, 273 [ while not required, nothing prohibits

court from reviewing record in interest s of justic e].)

T his appeal i s not from the judgment of conviction

. It is an appeal from

a postconviction order. As a result, Elenes is not entitled to Wende review

. Appointed counsel did not discover any arguable issues to be raised on

appeal, and Elenes did not file a supplemental brief after his counsel

informed him that he had the right to do so. We have reviewed the order

below and decline to exercise our discretion to conduct a full record review.3

Consistent with Serrano , we dismiss the appeal as abandoned. ( Serrano,

supra, 211 Cal.App.4th at p. 503.)

DISPOSITION

The appeal is dismissed as abandoned.4 _________________________ Seligman, J. *

WE CONCUR:

_________________________ Simons, Acting P. J.

_________________________ Burns, J.

A160512

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.