Filed 5/1/14
                              CERTIFIED FOR PUBLICATION



               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----




THE PEOPLE,

                 Plaintiff and Respondent,                         C073576

        v.                                                 (Super. Ct. No. 98F00784)

MELVIN W. ANDERSON,

                 Defendant and Appellant.




       APPEAL from an order of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Appeal dismissed as abandoned.

      Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.

        No appearance for Plaintiff and Respondent.




        Defendant Melvin W. Anderson appeals from the denial of his petition for recall
and resentencing pursuant to the Three Strikes Reform Act of 2012 (the Act). (Pen.


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Code, § 1170.126.)1 We appointed counsel to represent defendant on appeal. Counsel
filed an opening brief setting forth the facts of the case and asking this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Counsel also advised defendant that he had a right to file
a supplemental brief within 30 days of the date of filing the opening brief. More than 30
days elapsed and we received no communication from defendant.
       We conclude defendant is not entitled to Wende review on an appeal from the
denial of his petition for recall and resentencing pursuant to the Act. This is not
defendant’s first appeal as of right from a criminal conviction, and there is no
independent due process right to Wende review in this particular context.
       Accordingly, because appointed appellate counsel filed a brief indicating that there
are no arguable issues on appeal, we will dismiss the appeal as abandoned.
                                      BACKGROUND
       A jury convicted defendant of petty theft with a prior. (Pen. Code, § 666.) He had
two prior strike convictions. In February 1999, the trial court sentenced defendant to a
three strikes sentence of 25 years to life in prison.
       The Act, enacted by the voters pursuant to Proposition 36, changed the three
strikes law by reserving a life sentence for cases where the current crime is a serious or
violent felony or the prosecution has pleaded and proved an enumerated disqualifying
factor. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167.) The Act also allows an
inmate to file a petition for recall of sentence, and request resentencing, if the inmate is
serving an indeterminate life sentence imposed pursuant to the three strikes law for a
crime that is not a serious or violent felony. (§ 1170.126, subd. (b).) If the inmate is
eligible for resentencing (§ 1170.126, subds. (e), (f)), the trial court shall resentence the




1 Undesignated statutory references are to the Penal Code.


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inmate unless it determines, in its discretion, that resentencing would pose an
unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
       In December 2012, defendant filed a petition for recall and resentencing pursuant
to section 1170.126. The trial court denied the petition, ruling that defendant is ineligible
for resentencing under the criteria set forth in section 1170.126, subdivision (e), because
he has prior convictions for rape (former section 261, subdivision (3)) and oral copulation
(section 288a). (§§ 1170.126, subd. (e)(3), 1170.12, subd. (c)(2)(C)(iv)(I), 667,
subd. (e)(2)(C)(iv)(I); Welf. & Inst. Code, § 6600.) Defendant appealed from the order
denying his section 1170.126 petition.2
                                       DISCUSSION
                                             A
       In McKane v. Durston (1894) 153 U.S. 684 [38 L.Ed. 867], the United States
Supreme Court held that an appeal from a judgment of conviction is not a right under the
United States Constitution. (Id. at pp. 687-688 [38 L.Ed. at p. 868].) Rather, it is within
the discretion of the state to allow or not to allow appellate review of a final judgment in
a criminal case. (Ibid.) Of course, every state, including California, has chosen to allow
such review. (In re Sade C. (1996) 13 Cal.4th 952, 966 (Sade C.).) As a result, the
United States Supreme Court has developed additional jurisprudence to guide the states
in the implementation of that choice. (Ibid.)




2 The California Supreme Court is currently reviewing whether denial of a section
1170.126 petition for recall and resentencing is an appealable order. (See, e.g., Teal v.
Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708;
People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[review granted with hold pending consideration of Teal].) Here, in the interests of
justice and judicial economy, we assume without deciding that the denial order is
appealable. (See, e.g., Estate of Stevenson (2006) 141 Cal.App.4th 1074, 1089; Alioto
Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1681; Farrar v. McCormick (1972)
25 Cal.App.3d 701, 707.)

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       Accordingly, under the federal due process and equal protection clauses of the
Fourteenth Amendment, if a state grants appellate review from a criminal conviction, it
must do so in a way that does not discriminate based on poverty. (Griffin v. Illinois
(1956) 351 U.S. 12, 18 [100 L.Ed. 891, 898-899].) Thus, in a defendant’s first appeal as
of right, an indigent criminal defendant has a right to the assistance of counsel appointed
by the state. (Douglas v. California (1963) 372 U.S. 353, 356-357 [9 L.Ed.2d 811, 814].)
And even when appointed counsel conscientiously concludes there are no meritorious
grounds that can be asserted in a first appeal as of right, appointed counsel must
nonetheless take certain steps to afford the client the advocacy which a nonindigent
defendant would be able to obtain. (Anders v. California (1967) 386 U.S. 738, 744-745
[18 L.Ed.2d 493, 498] (Anders).) That means appointed counsel must prepare a brief to
assist the Court of Appeal in understanding the facts and legal issues in the case, and the
defendant must be given an opportunity to present a brief. (People v. Feggans (1967)
67 Cal.2d 444, 447-448.) But as the California Supreme Court held in People v. Wende,
supra, 25 Cal.3d 436, even if the defendant does not personally file a brief, the Court of
Appeal must conduct a review of the entire record whenever appointed counsel submits a
brief which raises no specific issues. (Wende, supra, 25 Cal.3d at pp. 441-442.) The
United States Supreme Court has held that the Wende procedure does not violate the
Fourteenth Amendment because it provides “ ‘a criminal appellant pursuing a first appeal
as of right [the] minimum safeguards necessary to make that appeal “adequate and
effective[.]” ’ [Citations.]” (Smith v. Robbins (2000) 528 U.S. 259, 276 [145 L.Ed.2d
756, 774].)
       Nonetheless, courts have resisted extending the Anders or Wende requirements to
other proceedings. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L.Ed.2d 539,
545-546] (Finley) [Anders review is not required in a collateral attack on a final
conviction because there is no federal constitutional right to counsel in those
proceedings]; Sade C., supra, 13 Cal.4th at pp. 959, 978 [the Anders and Wende

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procedures do not apply to an indigent parent’s appeal of a judgment or order regarding
child custody]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 539 (Ben C.)
[Anders/Wende review does not apply in conservatorship appeals]; People v. Serrano
(2012) 211 Cal.App.4th 496, 502-503 (Serrano) [Wende review does not apply in an
appeal from the denial of a motion to vacate a conviction]; People v. Dobson (2008)
161 Cal.App.4th 1422, 1425 [Wende review does not apply in an appeal from the denial
of a petition to restore competency]; People v. Taylor (2008) 160 Cal.App.4th 304, 312
[Anders/Wende review procedures do not apply to appeals from mentally disordered
offender recommitments]; People v. Thurman (2007) 157 Cal.App.4th 36, 39, 45-48
[appointed trial counsel was not required to file an Anders/Wende brief upon determining
there were no grounds to file a motion for new trial]; Glen C. v. Superior Court (2000)
78 Cal.App.4th 570, 579 (Glen C.) [Anders/Wende review is not required for dependency
writs].)3
       In addition to emphasizing that Anders and Wende procedures only apply to
appointed appellate counsel’s representation of an indigent criminal defendant in the first
appeal as of right, courts have also explained that the procedures mandated by Anders are
prophylactic rather than set down by any mandate from the Constitution. (Finley, supra,
481 U.S. at p. 555 [95 L.Ed.2d at p. 545]; Sade C., supra, 13 Cal.4th at pp. 977.) Such a



3 Wende review has been extended, however, to a minor’s first appeal in a delinquency
case. (In re Kevin S. (2003) 113 Cal.App.4th 97, 119.) A minor in a delinquency
proceeding is charged with criminal conduct, is subject to the potential loss of liberty, and
has a statutory right to appeal. (Id. at pp. 106-107.) The Supreme Court has extended
many of the constitutional protections found in criminal proceedings to minors in
delinquency proceedings, including the right to counsel. (Id. at p. 108.) In addition, if
the minor is found to have committed a violent or serious felony, that finding can be used
to enhance an adult sentence, even to a life term. (Id. at p. 118.) Because “the interests at
stake in a juvenile delinquency proceeding parallel those at risk in a criminal
prosecution,” a minor is entitled to Wende review in the first appeal in a delinquency
case. (Id. at pp. 118, 119.)

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judicially crafted prophylactic rule “applies only where its benefits outweigh its costs[.]
[Citations.]” (Maryland v. Shatzer (2010) 559 U.S. 98, 106 [175 L.Ed.2d 1045, 1054];
Montejo v. Louisiana (2009) 556 U.S. 778, 793 [173 L.Ed.2d 955, 968] [the value of a
prophylactic rule “ ‘must be assessed not only on the basis of what is gained, but also on
the basis of what is lost’ ”].) The courts have noted that the Anders and Wende
procedures impose significant burdens and costs. (Serrano, supra, 211 Cal.App.4th at
p. 503; Glen C., supra, 78 Cal.App.4th at p. 579; United States ex rel. Green v.
Washington (N.D. Ill. 1996) 917 F.Supp. 1238, 1276; Huguley v. State (Ga. 1985) 253
Ga. 709, 710; Commonwealth v. Moffett (Mass. 1981) 383 Mass. 201, 205; see also
Sade C., supra, 13 Cal.4th at p. 979, fn. 7.)
                                                B
       Applying the foregoing law and considerations, we begin by concluding that
Anders does not apply to an appeal from the denial of a petition for recall and
resentencing pursuant to section 1170.126. (See Sade C., supra, 13 Cal.4th at p. 965.)
The Anders prophylactic procedures apply only to appointed appellate counsel’s
representation of an indigent criminal defendant in the first appeal as of right. (Sade C.,
supra, 13 Cal.4th at p. 982.) This, of course, is not defendant’s first appeal as of right.
Moreover, the Anders procedures are dependent for their applicability on an indigent
criminal defendant’s constitutional right, under the Fourteenth Amendment’s due process
and equal protection clauses, to the assistance of appellate counsel appointed by the state,
and then again only in the first appeal as of right. (Ibid.) Defendant does not have a
constitutional right to appointed appellate counsel in this postconviction proceeding
addressing a sentence that has become final upon exhaustion of the appellate process.
(Finley, supra, 481 U.S. at p. 555 [95 L.Ed.2d at pp. 545-546].) The court in Finley
rejected the suggestion that Anders procedures should be applied to a state-created
statutory right to counsel for postconviction review, explaining it is the source of the right
to counsel, combined with the nature of the proceeding, that controls the constitutional

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question. (Finley, supra, 481 U.S. at p. 556 [95 L.Ed.2d at p. 546].) “When the
defendant ‘has no underlying constitutional right to appointed counsel,’ he ‘has no
constitutional right to insist on the Anders procedures which were designed solely to
protect that underlying constitutional right.’ ” (Sade C., supra, 13 Cal.4th at p. 973,
quoting Finley, supra, 481 U.S. at p. 557 [95 L.Ed.2d at p. 547]; see also Ben C., supra,
40 Cal.4th at pp. 536-537.)
       Even if Anders does not directly apply to this appeal, the next question is whether
the Anders/Wende procedures should nonetheless be extended to an appeal from the
denial of a petition for recall and resentencing pursuant to section 1170.126. (See
Sade C., supra, 13 Cal.4th at p. 984; Ben C., supra, 40 Cal.4th at p. 537.) This
determination involves whether the Fourteenth Amendment’s due process clause requires
application of the Anders prophylactic procedures to achieve fundamental fairness; we
make this determination by balancing “(1) the private interests at stake; (2) the state's
interests involved; and (3) the risk that the absence of the procedures in question will lead
to an erroneous resolution of the appeal.” (Sade C., supra, 13 Cal.4th at pp. 986-987; see
also Ben C., supra, 40 Cal.4th at pp. 538-539.)
       The first element involves consideration of the private interest at stake. Here,
defendant has a private interest in obtaining resentencing of his 25-year-to-life sentence,
which was valid and final before the Act went into effect, in order to acquire a reduced
sentence under the Act. This interest is certainly important to defendant, but it is not
derived from the Constitution, because the state and federal Constitutions do not require
retroactive application of legislation reducing punishment for a crime. (See People v.
Floyd (2003) 31 Cal.4th 179, 188; People v. Lynch (2012) 209 Cal.App.4th 353, 360.)
       The second element involves consideration of the state’s interests. Among other
things, in this context the state has interests in maintaining public safety and the criminal
law’s deterrent effect; reducing prison overcrowding and the cost of incarceration;
managing the procedures for resentencing; and securing a just resolution fairly,

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economically and expeditiously. The ability of the state to manage its own procedures
for resentencing should not be minimized. As the United States Supreme Court
explained, “in this area States have substantial discretion to develop and implement
programs to aid prisoners seeking to secure postconviction review.” (Finley, supra,
481 U.S. at p. 559 [95 L.Ed.2d at p. 548].) In addition, as we previously mentioned,
courts have noted that the Anders and Wende procedures impose significant burdens and
costs.
         The third element involves the risk that the absence of Anders/Wende procedures
will lead to an erroneous resolution of the appeal. Such risk is reduced here because
defendant has already been afforded all the constitutional protections of a first appeal of
right, including the prior right to Wende review under applicable circumstances.4
         Balancing the foregoing elements, we conclude due process does not require us to
extend the Anders/Wende procedures to an appeal from the denial of a petition for recall
and resentencing pursuant to section 1170.126. Defendant is already afforded many
layers of protection, and we decline to extend a system of review that is not
constitutionally compelled. (See Ben C., supra, 40 Cal.4th at p. 543.)
         The California Supreme Court provided guidance for appointed appellate counsel
when there are no arguable issues and Wende review does not apply. In such a case,
“counsel need not and should not file a motion to withdraw. Instead, counsel should
(1) inform the court he or she has found no arguable issues to be pursued on appeal; and
(2) file a brief setting out the applicable facts and the law. Such a brief will provide an




4 The relative risk at different stages of a criminal proceeding is reflected in the right to
appointed counsel. At the trial stage, the risk is great, and a defendant has a
constitutional right to counsel. (Ross v. Moffitt (1974) 417 U.S. 600, 610-611
[41 L.Ed.2d 341, 351].) The risk is lower, however, in a postconviction collateral attack,
hence the state need not provide appointed counsel at that stage. (Finley, supra, 481 U.S.
at pp. 556-557 [95 L.Ed.2d at p. 547].)

                                              8
adequate basis for the court to dismiss the appeal on its own motion.” (Ben C., supra,
40 Cal.4th at p. 544, fns. omitted.) Appointed counsel in “criminal appeals arising from
proceedings other than the first appeal of right” shall act in accordance with these
procedures when counsel finds no arguable issues. (Serrano, supra, 211 Cal.App.4th at
p. 503.)
       Because appointed counsel’s Wende brief in this case satisfies these requirements,
we will dismiss the appeal as abandoned.
                                      DISPOSITION
       The appeal is dismissed.



                                                            MAURO             , Acting P. J.


We concur:


             MURRAY                     , J.


             DUARTE                      , J.




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