1

Filed 3/28/22 P. v. Guajardo CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN GUAJARDO,

Defendant and Appellant. C093286

(Super. Ct. No. 14F00683)

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d

436.

On May 28, 2015 , a jury found defendant Ruben Guajardo guilty of first degree
murder and being a felon in possession of a firearm. The trial court also found true
defendant had a prior strike. On July 17, 2015 , defendant was sentenced to 75 years to
life. Defendant appealed and we reversed the strike findin g but otherwise affirmed.
( People v. Taylor et al. (May 12, 2017, C079829 ) [nonpub. opn.].) Defendant was
resentenced on August 24, 2017

, to 50 years to life.2

On June 11, 2020, defendant filed a petition for resentencing under Penal Code

section 1170.95. 1 The petition asserted he could not now be convicted of first degree
murder because of the changes made to sections 188 and 189, effective January 1, 2019.

After bri efing by the parties , the trial court denied defendant’s petition, finding him
ineligible for relief.

DISCUSSION
Counsel filed an opening brief that sets forth the relevant procedural history and
facts of the case and requests this court to review the rec ord and determine whether there
are any arguable issues on appeal. ( People v. Wende

, supra , 25 Cal.3d 436.) Defendant
was advised by counsel of the right to file a supplemental brief within 30 days from the
date the opening brief was filed but has not do ne so. Review pursuant to Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738, is required only in the first appeal of right from a
criminal conviction. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorsh ip
of Ben C. (2007) 40 Cal.4th 529, 536

- 537; People v. Serrano (2012) 211 Cal.App.4th
496, 500

- 501.) And the due process right to Anders/Wende review applies only in
appellate proceedings in which a defendant has a previously established constitutional

ri ght to counsel. ( Ben C. , at pp. 536

- 537; Serrano , at p. 500.) The constitutional right to
counsel extends to the first appeal of right, and no further. ( Serrano , at pp. 500

- 501.)
Although a criminal defendant has a right to appointed counsel in an appe al from an
order after judgment affecting his or her substantial rights (§§ 1237, 1240, subd. (a); Gov.
Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, a defendant is

not entitled to Wende review in such an appeal when appoin ted counsel finds no arguable

1 Undesignated statutory references are to the Penal Code.3

issues on appeal. (See Serrano , at p. 501 [no Wende review for denial of postconviction
motion to vacate guilty plea pursuant to § 1016.5].) The appeal before us, “although originating in a criminal context, is not a first

a ppeal of right from a criminal prosecution, because it is not an appeal from the judgment of conviction.” ( People v. Serrano

, supra , 211 Cal.App.4th at p. 501.) Applying Serrano
here, we conclude that defendant has no right to Wende review of the order denying his
postjudgment request that the trial court resentence him under section 1170.95

. ( People
v. Figueras (2021) 61 Cal.App.5th 108, 111

- 112 [finding no right to a Wende rev iew

from a denial of a § 1170.95 petition] , review granted May 12, 2021, S267870 .)

DISPOSITION
The appeal is dismissed.

/s/ RAYE, P. J.

We concur:

/s/ HULL, J.

/s/ KRAUSE, J.