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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES MICHAEL ROE,
Defendant and Appellant.
| D071629
(Super. Ct. No. SCE328209) |
APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In April 2013, Charles Michael Roe entered a guilty plea to one count of commercial burglary (Pen. Code,[1] § 459). The remaining allegations were dismissed. Roe was sentenced to a midterm of two years in prison. The sentence was ordered to run consecutively to a prison term in another case, for a total term of seven years eight months.
In 2015, Roe filed a petition under Proposition 47 (§ 1170.18) to recall the sentence for commercial burglary and resentence it as a misdemeanor (§ 459.5). Initially the prosecution agreed the offense qualified for Proposition 47 relief. The petition was granted and the matter set for sentencing.
In the interim, the prosecution discovered Roe had previously been convicted of vehicular manslaughter. (§ 192.)[2] Based on the new information, the court granted the prosecution's request to reconsider the petition and requested briefing. Thereafter, the court denied Roe's petition because Roe had a disqualifying prior homicide conviction.
Roe filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Roe the opportunity to file his own brief on appeal, but he has not responded.[3]
DISCUSSION
As we have indicated, appellate counsel has filed a Wende brief and asks this court to review the record for error. (Wende, supra, 25 Cal.3d 436.) In order to assist this court and to comply with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not arguable issue:
Whether Roe was eligible for relief under section 1170.18, given he had a prior felony conviction for vehicular manslaughter from 2003.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Roe on this appeal.
DISPOSITION
The order denying Roe's petition for relief under section 1170.18 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] In 2006, three years after Roe's manslaughter conviction, the Legislature restructured the manslaughter statute. The vehicular manslaughter offense originally in section 192 is now contained in section 191.5, subdivision (b).
[3] The facts of the underlying offense are not relevant to the resolution of this appeal. The People agreed the offense, stealing merchandise from an open commercial establishment in the amount of $60-70 qualifies for reduction to shoplifting. (§ 459.5.) It was the existence of a disqualifying homicide prior conviction that barred relief under section 1170.18, subdivision (i).
