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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 CHESHIRE,

Defendant and Appellant.

 B323343

 (Los Angeles County

 Super. Ct. No. BA443099)

APPEAL from a postjudgment 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 Cheshire appeals from a postjudgment 

order denying his second petition for resentencing under 

former Penal Code section 1170.95 (now § 1172.6).

1 

Appellate 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 attempted murder

(§§ 12022.53, subds. (c), (d)). Appellant was sentenced to an 

overall term of 75 years to life plus 12 years. In 2019, we 

affirmed appellant’s convictions but remanded the matter to 

correct an error in custody credits and permit the court to 

exercise its newly authorized discretion to strike a firearm 

enhancement. (People v. Cheshire (May 22, 2019, B286902)

[nonpub. opn.] (Cheshire I).) Thereafter, 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 findings 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, the trial court summarily denied it without 

appointing 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 failing 

to appoint counsel, requiring reversal regardless of 

prejudice.” (People v. Cheshire (Feb. 28, 2022, B312182

[nonpub. opn.] (Cheshire II).) We rejected the argument, 

finding any error harmless because malice had not been 

imputed to appellant; rather, the jury “necessarily found 

[appellant] acted with an intent to kill.” (Id. at p. *6.) 

On January 31, 2022, before we issued our opinion in 

Cheshire 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 of 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 declared that 

she found no arguable issues to raise on appeal. Counsel 

stated she had explained this 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 brief 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; People 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.) This is an appeal from a postjudgment motion for 

relief and not a first appeal as a matter of right. Appellant 
5

is not entitled to Wende review. As we have already held, 

appellant’s section 1172.6 petition cannot succeed as a 

matter of law (Cheshire 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:

CURREY, Acting P. J.

COLLINS, J.