Filed 6/26/23 P. v. Cheshire CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW EARL CHES H IRE

,
Defendant and Appellant. B323343

(Los Angeles County Super. Ct. No. BA443099 )

APPEAL from a post

judgment order of the Superior Court of Los Angeles County, H. Clay Jacke II , Judge.
Dismissed. Cheryl Lutz , under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 Andrew Earl Ches h ire appeals from a postjud gment
order denying his second petition for resentencing under
former Penal Code section 1170.95 (now § 1172.6 )

. 1
A ppellate counsel filed a brief raising no issues and requesting that we proceed under People v. Serrano (2012) 211 Cal.App.4th 496 ( Serrano ). Appellant did not submit a supplemental brief or filing. We dismiss the appeal as
abandoned.

BACKGROUND AND DISCUSSION
In 2017

, a jury convicted appellant of one count of attempted murder (§§ 187, subd. (a) & 664 ), one count of pimping (§ 266h, subd. (a)), and one count of human trafficking of a minor (§ 236.1, subd. (c)(1)). The jury also
found true the allegations that appellant personally and intentionally discharged a firearm causing great bodily injury during the commission of attempt ed murder (§§ 12022.53, subds. (c), (d))

. Ap pellant was sentenced to an overall term of 75 years to life plus 12 years. In 2019, w e affirmed appellant’s convictions but remanded the matter to correct an error in custody credits and permit the court to

ex ercise its newly authorized discretion to strike a firearm
enhancement . ( People v. Ches h ire (May 22, 2019, B286902) [nonpub. opn.] ( Ches h ire I ) .) The reafter, the trial court awarded custody credits but left intact the firearm

1 Subsequent references to statutes are to the Penal Code unless otherwise indicated.3

enhancement finding s and attached sentence under section 12022.53, subdivision (d)

. In 2021, appellant filed his first section 1172.6 petition for resentencing and alleged that he had been convicted
under an invalid theory of attempted murder , such as felony murder or murder under the natural and probable consequences doctrine

. Upon its receipt of appellant’s petition, t he trial court summarily denied it without appoint ing counsel. In his subsequent appeal, appellant “d[id] not dispute his ineligibility for relief. Instead, he argue[d] that the court committed structural error in failin g to appoint counsel, requiring reversal regardless of prejudice.” ( People v. Ches h ire (Feb. 28, 2022, B312182 [nonpub. opn.] ( Ches h ire II ).) We rejected the argument, finding any error harmless because malice had not been imputed to appellant; rather, t he jury “necessarily found [appellant] acted with an intent to kill.” ( Id. at p. * 6.)
On January 31, 2022 , before we issued our opinion in
Ches h ire II

, appellant filed a second petition under section 1172.6 seeking the same relief sought in his first petition

. The trial court appointed counsel, accepted briefing by the parties, and held a hearing . After the hearing, the court
found appellant ineligible for relief as a matter o f law , as the jury instructions and verdict demonstrated that appellant
had been the actual shooter who committed the attempted
murder with actual malice. 2

2 The court also noted that no jury instruction had been given on aiding and abetting or the natural and probable consequences doctrine.4 Appellant filed a timely notice of appeal from the order denying his second section 1172.6 petition, and we appointed appellate counsel. Citing Serrano

, supra , 211 Cal.App.4th 496, appointed counsel filed an opening brief setting out the relevant procedural history in this case and declar ed that

s he found no arguable issues to raise on appeal. Counsel
stated s he had explained t his evaluation to appellant and informed him of his right to file a supplemental brief. On January 24, 2023 , we directed counsel to send the record and a copy of the brief to appellant . We also notified appellant of his right to respond within 30 days , and that if no supplemental brief was timely filed, this court may dismiss the appeal as abandoned under Serrano

. Appellant has filed

no supplemental bri ef or response

. Because neither appellant nor his counsel has raised any cognizable claim of error, we dismiss the appeal as abandoned. ( Serrano, supra , 211 Cal.App.4th at

pp. 503

- 504.) “In an indigent criminal defendant’s first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues.” ( Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, citing
Anders v. California (1967) 386 U.S. 738; Peop le v. Wende (1979) 25 Cal.3d 436.) But a defendant is not entitled to such review “in subsequent appeals.” ( Serrano, supra , at

p. 503; see also People v. Kisling (2015) 239 Cal.App.4th 288, 290.) T his is an appeal from a postjudgment motion for
relief a nd not a first appeal as a matter of right . Appellant5

is not entitled to Wende review. As we have already held, appellant’s section 1172.6 petition cannot succeed as a
matter of law ( Ches h ire II

, supra , at p. 6), and as such, we dismiss this appeal as abandoned

.

DISPOSITION
The appeal is dismissed

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI , J. We concur:

C URREY

, Acting P. J.

C OLLINS , J.