Filed 11/26/13 P. v. Tull 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C073650

                   Plaintiff and Respondent,                                     (Super. Ct. No. 98F04324)

         v.

DERRICK ALAN TULL,

                   Defendant and Appellant.




         Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel for
defendant Derrick Alan Tull has asked us to review the record for arguable issues in this
appeal from the denial of his motion to modify his three strikes sentence pursuant to
Penal Code1 section 1170.126. Because we find defendant is not entitled to Wende
review, we dismiss the appeal as abandoned.



1   Further undesignated statutory references are to the Penal Code.

                                                             1
                                     BACKGROUND
       On December 4, 1998, defendant pled guilty to robbery and admitted having two
prior strike convictions. On January 24, 2013, he filed a motion for resentencing of his
25-year-to-life sentence pursuant to the Three Strikes Reform Act of 2012. (§ 1170.126.)
The superior court denied the motion, finding defendant ineligible for resentencing
because robbery is a serious felony. (§ § 1170.126, subd. (e)(2), 1192.7, subd. (c)(19),
667.5, subd. (c)(9).)
       Defendant filed a timely notice of appeal from this order.
       Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than
30 days have elapsed, and we have received no communication from defendant.
                                      DISCUSSION
       Review pursuant to Wende or its federal constitutional counterpart Anders v.
California (1967) 386 U.S. 738 [18 L.Ed.2d 493] (Anders)) is required only in the first
appeal of right from a criminal conviction. (People v. Serrano (2012) 211 Cal.App.4th
496, 500-501 (Serrano); Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben
C.); Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L.Ed.2d 539, 545-546].)
       The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) While a criminal
defendant has a right to appointed counsel in an appeal from an order after judgment
affecting his substantial rights (§ § 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)),
that right is statutory, not constitutional. Defendant is not entitled to Wende review in
such an appeal. (See Serrano, supra, at p. 501 [no Wende review for denial of post
conviction motion to vacate guilty plea pursuant to section 1016.5].)

                                              2
      Applying Serrano, here defendant has no right to a Wende review of the denial of
his motion to modify his sentence pursuant to section 1170.126. Because neither
defendant nor his counsel raise any claim of error, we must dismiss defendant’s appeal as
abandoned.
                                    DISPOSITION
      The appeal is dismissed.



                                                      DUARTE               , J.



We concur:



      HULL                 , Acting P. J.



      HOCH                 , J.




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