BACKGROUND

A jury found defendant guilty of second degree murder in 1991. He was sentenced to a term of 15 years to life in prison, plus a three-year enhancement for use of a firearm. Judgment was confirmed by the Court of Appeal, and a petition for writ of habeas corpus was denied. The Petition lists three grounds for relief: (1) insufficiency of the evidence, (2) ineffective assistance of counsel in trial counsel’s failure to argue, and present evidence of, justifiable/excusable homicide and heat of passion, and (3) trial court error in failing to instruct the jury on justifiable/excusable homicide.

DISCUSSION

Independent judicial review pursuant to People v. Wende (1979) 25 Cal.3d 436, 440–442 (Wende) is required only as to “a defendant’s first appeal as of right.” (People v. Kelly (2006) 40 Cal.4th 106, 119.) In Serrano, supra, the defendant appealed an order denying a motion to vacate his conviction. (211 Cal.App.4th at p. 498.) The Court of Appeal held the defendant was not entitled to Wende review in an appeal of postjudgment proceedings after his first appeal of right, including collateral attacks on the judgment. (Id. at p. 503.) Instead, when court-appointed counsel finds no arguable issues in the appeal of postjudgment proceedings, the appellate court may either retain the appeal or dismiss the appeal on its own motion. (Ibid.) The Serrano court elected not to retain the appeal and dismissed it as abandoned. (Id. at pp. 503–504.) Here, as in Serrano, defendant is seeking to vacate his conviction in a postjudgment proceeding long after his first direct appeal of right. We see no reason to conduct a Wende review in this case. We will dismiss the appeal as abandoned. (Serrano, supra, 211 Cal.App.4th at p. 504.)

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DISPOSITION

The appeal is dismissed.

3 _________________________ Miller, J.

WE CONCUR:

_________________________ Richman, Acting P.J.

_________________________ Stewart, J.

A160351, People v. Hamiltonhausey

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