Filed 10/23/14 P. v. Woods CA1/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142010
v.
MELVIN WOODS,                                                        (Alameda County
                                                                     Super. Ct. No. C164426)
         Defendant and Appellant.


         Melvin Woods appeals from an order denying his postconviction motion for
discharge from imprisonment. His attorney has filed a brief seeking our independent
review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), or our
review pursuant to Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.). We find
no arguable issue and dismiss the appeal.
                             I. FACTS AND PROCEDURAL HISTORY
         On August 19, 2010, pursuant to a plea bargain, Woods entered a no contest plea
to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) 1 and
admitted a prior conviction within the meaning of the Three Strikes Law
(§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). Woods agreed to a sentence of six years in
state prison.




1
         All statutory references are to the Penal Code.

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          On October 5, 2010, the court imposed the negotiated sentence of six years,
comprised of the middle term of three years for the second degree robbery offense,
doubled to account for the prior strike conviction.
          The abstract of judgment, filed on October 19, 2010, indicated that Woods was
sentenced as a second strike offender under section 667 or 1170.12, but it listed the total
prison time to be three years, rather than three years doubled under the Three Strikes Law
to six.
          By letter dated May 30, 2013, the California Department of Corrections and
Rehabilitation informed the trial court that the abstract of judgment might be erroneous or
incomplete, since it indicated a three-year sentence instead of a six-year sentence.
          On June 18, 2013, the court issued an amended minute order and an amended
abstract of judgment, both showing a total term of six years.
          On March 11, 2014, Woods filed a motion in pro per, captioned: “Notice and
Notice of Motion after Judgment Imposed for Defendant to be Discharged from
Imprisonment Pursuant to 3-Years Imposed as Reflected in the Abstract of Judgment
Dated on 10/5/2010.” Woods asked the court to enforce the three-year prison term set
forth in the October 2010 abstract of judgment, noting he had originally been given a
release date of May 25, 2013, and requesting his immediate release. Woods
acknowledged, however, that the plea agreement had called for the doubling of the three-
year term.
          On April 24, 2014, the trial court denied Woods’s motion in a minute order, as
follows: “Defendant’s ex parte motion, filed March 11, 2014, requesting that he be
discharged is hereby DENIED. [¶] Defendant requests that he be discharged under the
terms of the October 2010[] abstract of judgment which indicates that he was sentenced
to 3 years. However, on August 19, 2010, Defendant plead[ed] guilty to second degree
robbery and admitted to one strike prior.[2] On October 5, 2010, Defendant was
sentenced to the middle term of 3 years which was doubled pursuant to Penal Code


2
          Technically, he entered a plea of no contest.

                                                2
sections 1170.12 subd. (a) and 667 subd. (c) for a total of 6 years. The minutes from the
sentencing indicate Defendant was sentenced to 6 years although the abstract of judgment
incorrectly reflected that he was sentenced to 3 years. The California Department of
Corrections sent a letter to the court dated May 30, 2013, indicating that there may be an
error in the abstract of judgment and on June 18, 2013, an amended abstract of judgment
was filed to correct the error and reflect that Defendant was sentenced to a total of
6 years. Accordingly, Defendant’s request for discharge is denied. [¶] It appears that
Defendant was not served a copy of the 2013 amended abstract of judgment. Upon the
court’s own motion and good cause appearing, the clerk shall send a copy of the amended
abstract of judgment to Defendant.”
       On May 23, 2014, Woods filed a notice of appeal, purporting to appeal from a
minute order entered on “March 14, 2014,” which affected “the ‘substantial rights’ of the
defendant ‘after judgment was imposed’ ” by “denying defendant’s right to be discharged
from custody on jurisdictional grounds.”
                                    II. DISCUSSION
       We construe the notice of appeal broadly, deeming it to appeal from the
April 2014 order denying Woods’s postjudgment motion for discharge from
imprisonment, even though the notice incorrectly stated that the order was entered in
March 2014.
       To the extent the order constitutes an “order made after judgment, affecting
the substantial rights of the party,” Woods’s attorney contends the ruling is
appealable pursuant to section 1237, subdivision (b). (See People v. Totari (2002)
28 Cal.4th 876, 881-882.) To the extent the order is the functional equivalent of the
denial of a petition for a writ of habeas corpus, which is not an appealable order,
Woods’s attorney contends we have discretion to treat the appeal as a petition for
extraordinary writ relief. (See In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) We accept
review pursuant to section 1237.
       In Woods’s opening brief, his counsel acknowledges it has been held that a
defendant does not have the right to Wende review on appeal from a postconviction


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proceeding, since Wende review is limited to the defendant’s first appeal of right from a
criminal conviction. (People v. Serrano (2012) 211 Cal.App.4th 496, 498-499, 503
(Serrano) [no Wende review in appeal from denial of postconviction motion attacking the
sufficiency of the immigration consequence advisements given to the defendant at the
time of his no contest plea].) According to Serrano, in an appeal from a postconviction
criminal proceeding in which appellate counsel has not raised any specific issues, the
applicable procedures are set forth in Ben C., supra, 40 Cal.4th 529. (Serrano,
supra, 211 Cal.App.4th at p. 503.) In Ben C., the court ruled: “If appointed counsel in a
conservatorship appeal finds no arguable issues, 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.” (Ben C., supra, 40 Cal.4th at p. 544.) In addition, “[t]he conservatee
is to be provided a copy of the brief and informed of the right to file a supplemental
brief.” (Id. at p. 544, fn. 6.) The appellate court may then dismiss the appeal if there are
no arguable issues. (Id. at p. 544.) Woods’s attorney urges that, if we do not conduct a
full Wende review, we should conduct a Ben C. review, including affording Woods the
opportunity to file a supplemental brief.
       Woods’s appellate counsel represents in the opening brief in this appeal that
counsel wrote to Woods and advised him of the filing of a Wende brief and his
opportunity to personally file a supplemental brief raising any issues he wished to call to
the court’s attention within 30 days. Notwithstanding this opportunity, this court has not
received any supplemental brief from Woods.
       Having conducted a review appropriate under Wende and Ben C., we find no
arguable issue on appeal.
       There are no legal issues that require further briefing.
                                   III. DISPOSITION
       The appeal is dismissed.




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                           NEEDHAM, J.



We concur.




SIMONS, Acting P. J.




BRUINIERS, J.




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