Filed 2/25/22 P. v. Moore CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Dismissed.

Evan D. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________________

In this appeal from a judgment following a probation revocation hearing, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating that counsel has not been able to identify any arguable issues on appeal. This appeal is not subject to Wende review because it is not an appeal from the judgment of conviction. (People v. Cole (2020) 52 Cal.App.5th 1023, 1034, review granted Oct. 14, 2020, S264278.) We therefore dismiss the appeal. (See People v. Blanchard (2019) 43 Cal.App.5th 1020, 1026.)

BACKGROUND

On January 21, 2020, the People charged defendant Rayjon Marquise Moore with one count of battery with serious bodily injury in violation of Penal Code[1] section 243, subdivision (d). The People further alleged defendant inflicted great bodily injury on another person, such that the offense was included as a serious felony within the meaning of section 1192.7, subdivision (c).

On March 2, 2020, defendant pleaded nolo contendere to violation of section 243, subdivision (d). Defendant admitted the great bodily injury allegation. Defendant admitted the offense constituted a serious felony within the meaning of section 1192.7, subdivision (c). The trial court sentenced defendant to state prison for four years; suspended execution of the sentence; and placed defendant on formal probation for five years. As a condition of probation, defendant was required to obey all laws.[2]

On June 17, 2020, defendant admitted to violating his probation. The trial court reinstated his probation. On August 12, 2020, defendant was arrested for violation of his probation. After reading the probation officer’s report, the trial court preliminarily revoked probation. The probation officer’s report indicated that defendant was arrested for battery and endangering a child.

A. C. testified at the probation revocation hearing that on August 8, 2020, she was dating defendant. That night, A.C. drove defendant who was seated in the passenger seat and two of her cousins, ages 15 and 18. While A.C. was driving, defendant reached over and choked her and then grabbed the steering wheel. A.C. had some difficulty breathing. When defendant grabbed the steering wheel, he caused the car to swerve. No witness testified for the defense.

Following the probation revocation hearing, the trial court found defendant in violation of his probation. The trial court sentenced defendant to the previously imposed but suspended four-year-prison term. Defendant timely appealed from the ensuing judgment. As noted, defendant’s counsel filed a brief identifying no issue on appeal. This court provided defendant an opportunity to file a supplemental brief, and defendant filed no such brief.

DISCUSSION

Wende review “protect[s] the federal constitutional right to the effective assistance of counsel in a direct appeal from a criminal conviction.” (People v. Freeman (2021) 61 Cal.App.5th 126, 134.) Wende review is not required “for appeals other than a criminal defendant’s first appeal of right because, beyond that appeal, there is no right to the effective assistance of counsel.” (People v. Cole, supra, 52 Cal.App.5th at p. 1034, review granted.) “Revocation proceedings are ‘constitutionally distinct’ from criminal prosecutions. [Citation.] Parole and probation revocation proceedings ‘in and of themselves, do not concern guilt of any criminal charges, or risk any increase in the maximum terms of confinement to which persons are exposed by virtue of their underlying convictions.’ [Citation.]” (People v. Freeman, supra, 61 Cal.App.5th at p. 133.)

This is not a direct appeal from a criminal conviction. Because counsel filed a brief identifying no issue and defendant filed no supplemental brief, we dismiss the appeal as abandoned. (People v. Cole, supra, 52 Cal.App.5th at p. 1039, review granted.)

Assuming this appeal were subject to Wende review, we have examined the entire record and are satisfied no arguable issue exist and appellant’s counsel has fully satisfied his responsibilities under Wende. (Smith v. Robbins (2000) 528 U.S. 259, 279–284; Wende, supra, 25 Cal.3d at p. 441; see People v. Kelly (2006) 40 Cal.4th 106, 123–124.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

BENDIX, Acting P.J.

We concur:

CHANEY, J. CRANDALL, J.*

[1] Undesignated statutory citations are to the Penal Code.

[2] The court also reinstated probation on another case.

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.