Filed 1/15/14 P. v. Mazzei CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137383
v.
PAUL WILLIAM MAZZEI,                                                 (Solano County
                                                                     Super. Ct. No. VCR178416)
         Defendant and Appellant.


         In this appeal from the denial of a motion to vacate a criminal conviction,
appointed counsel for defendant Paul William Mazzei filed a brief requesting this court’s
independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d
436 (Wende). We dismiss the appeal as abandoned because Mazzei is not entitled to
Wende review and no claims of error have been raised.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         In 2006, Mazzei, a Canadian citizen, was sentenced to twenty-five years to life in
prison after he pleaded nolo contendere to one count of murder.1 His plea was part of a
negotiated arrangement in which the People agreed to dismiss the allegation that he




1
 Penal Code section 187, subdivision (a). All further statutory references are to the
Penal Code.


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personally used a deadly weapon and agreed not to add a special circumstance that the
murder was for financial gain.2 Mazzei waived his right to appeal the conviction.
       Almost seven years later, Mazzei filed a motion to vacate the conviction. The
motion was based on section 1016.5 (requiring trial courts to advise defendants before
accepting pleas that certain convictions may have immigration consequences); section
1018 (allowing the withdrawal of guilty pleas in certain circumstances); and Boykin v.
Alabama (1969) 395 U.S. 238, 242 (requiring guilty pleas to be “intelligent and
voluntary”). The trial court denied the motion as untimely, and this appeal followed.
                                             II.
                                        DISCUSSION
       In his brief filed under Wende, supra, 25 Cal.3d 436, Mazzei acknowledges that in
People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), the Sixth District Court of
Appeal held that a defendant is entitled to Wende review in “a first appeal of right” from
a criminal conviction but is not entitled to such review “in subsequent appeals, including
collateral attacks on the judgment.” (Id. at p. 503.) The Serrano court concluded that
such a subsequent appeal must be dismissed as abandoned if neither the defendant nor
appointed counsel raises any claims of error. (Id. at pp. 503-504.) Mazzei argues that
Serrano was incorrectly decided and should not control even though it also arose out of
an appeal from a motion to vacate a conviction under section 1016.5. (Id. at p. 499.) We
disagree.
       We begin with a brief history of the Wende procedure, which was fashioned to
protect an indigent defendant’s federal constitutional right to effective assistance of
counsel in the first appeal of right from a conviction. (People v. Kelly (2006) 40 Cal.4th
106, 117-118; Serrano, supra, 211 Cal.App.4th at pp. 499-500.) The federal Constitution
does not require states to provide such an appeal (Douglas v. California (1963) 372 U.S.
353, 356), but if a state provides one, the state must ensure that indigent defendants are


2
 Sections 190.2, subdivision (a)(1) [financial-gain special circumstance], 12022,
subdivision (b)(1) [personal use of deadly weapon].


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provided with effective assistance of counsel. (Ibid.; see also Pennsylvania v. Finley
(1987) 481 U.S. 551, 554 (Finley).)
       In Anders v. California (1967) 386 U.S. 738, 741, 744 (Anders), the United States
Supreme Court held that effective assistance of counsel cannot be assured when court-
appointed appellate counsel is allowed simply to move to withdraw when unable to
identify any meritorious issue. Instead, assuring effective assistance requires that
appointed counsel at least submit “a brief referring to anything in the record that might
arguably support the appeal” to facilitate an independent review by the court. (Id. at
pp. 744-745.) In Wende, our Supreme Court adopted a “modified procedure” to fulfill
the requirements of Anders. (Kelly, supra, 40 Cal.4th at pp. 117-118; Wende, supra,
25 Cal.3d at pp. 441-442.)
       The United States Supreme Court has refused to extend Anders to appeals of
decisions in postconviction proceedings because it has never recognized a constitutional
right to effective assistance of counsel in those appeals: “The holding in Anders [, supra,
386 U.S. 738] was based on the underlying constitutional right to appointed counsel
established in [Douglas v. California, supra, 372 U.S. 353]. . . . Anders established a
prophylactic framework that is relevant when, and only when, a litigant has a previously
established constitutional right to counsel. [¶] . . . We think that since a defendant has no
federal constitutional right to counsel when pursuing a discretionary appeal on direct
review of his conviction, a fortiori, he has no such right when attacking a conviction that
has long since become final upon exhaustion of the appellate process.” (Finley, supra,
481 U.S. at pp. 554-555.) Applying Finley, our Supreme Court has held that Anders does
not require independent review in appeals from conservatorship proceedings or
dependency proceedings because such appeals are not first appeals of right from criminal
convictions. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535-537; In re Sade C.
(1996) 13 Cal.4th 952, 982-983.) It is thus settled that Anders does not require
independent review in appeals other than first appeals of right from criminal convictions.
       We reject Mazzei’s argument that he is entitled to independent review under
Anders, supra, 386 U.S. 738 simply because defendants in California also have a


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statutory right to appeal from certain postconviction decisions.3 As Finley makes clear,
the determinative factor is whether the defendant has a federal constitutional right to
effective assistance of counsel in a particular appeal, not whether the defendant has a
state-created right to appeal or right to counsel. (Finley, supra, 481 U.S. at p. 556; see
also Serrano, supra, 211 Cal.App.4th at pp. 500-501.)
       Mazzei also argues that independent review is necessary to safeguard “the rights
of the non-citizen accused” under “the Fifth, Sixth, and Eighth Amendments,” which he
claims are “the interests protected by . . . section 1016.5.” As discussed above, the
Wende procedure protects an indigent defendant’s right to effective assistance of counsel,
which attaches to first appeals of right from criminal convictions—but not to
postconviction appeals. Mazzei fails to explain how the Wende procedure would protect
any constitutional rights he may have other than the right to effective assistance of
counsel, nor does he claim that any of those rights is in danger of being violated by virtue
of his status as a noncitizen.
       Finally, we do not accept Mazzei’s contention that independent review is required
because “immigration consequences” are “akin to punishment.” He focuses on
“punishment” in an attempt to distinguish In re Sade C., supra, 13 Cal.4th 952 and
Conservatorship of Ben C., supra, 40 Cal.4th 529, both of which discuss whether the
proceedings involved “punishment” implicating due process (under the three-factor
analysis set forth in Lassiter v. Department of Social Services (1981) 452 U.S. 18) or
equal protection. (Ben C., at pp. 538-543; Sade C., at pp. 985-986, 990-991.) But
Mazzei makes no attempt to explain how due process requires the extension of Anders in
light of the Lassiter factors, and he offers no equal-protection argument at all. Mazzei
has failed to persuade us that he is entitled to Wende review in this appeal.
       Following the procedure set forth in Serrano, we notified Mazzei of his right to
file a supplemental brief raising any substantive issues. (Serrano, supra,

3
 Criminal defendants have the right to appeal from not only the “final judgment of
conviction” but also “any order made after judgment, affecting [their] substantial rights.”
(§ 1237.)


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211 Cal.App.4th at p. 503.) He has not done so. Because neither he nor his counsel has
raised any claims of error, we dismiss the appeal as abandoned. (See id. at pp. 503-504.)
                                          III.
                                      DISPOSITION
      The appeal is dismissed.




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                                _________________________
                                Humes, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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