Filed 5/8/17 P. v. McKinney CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ALONZO MCKINNEY,
Defendant and Appellant.
B271973
(Los Angeles County
Super. Ct. No. A972586)

APPEAL from an order of the Superior Court of
Los Angeles County, David M. Horwitz, Judge. Affirmed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______________________
2
In this Wende1
appeal, we affirm the order denying
defendant Alonzo McKinney’s petition under Proposition 47 for
resentencing of a prior robbery conviction. (Pen. Code,
§ 1170.18.)2
FACTUAL AND PROCEDURAL BACKGROUND
In People v. McKinney (Dec. 1, 1998, B115835 [nonpub.
opn.]), we affirmed defendant’s conviction in the current case3
of
assault with a deadly weapon or force likely to produce great
bodily injury upon a peace officer, Robert Staggs, in violation of
section 245, subdivision (c) (count 1), and resisting an executive
officer, Robert Staggs, in violation of section 69 (count 2). Based
on defendant’s prior serious felony convictions for robbery in May
19864
and September 1988,
5
the superior court imposed a Three
Strikes sentence of 25 years to life. (§§ 1170.12, subds. (a)-(d),
667, subd. (b)-(i), 211.) Defendant is now serving that sentence.
Following the approval by California voters of Propositions
36 (§ 1170.126) and 47 (§ 1170.18), defendant filed petitions in
the current case for relief under each initiative. His petition
under Proposition 36 was denied in March 2013, and his petition

1 People v. Wende (1979) 25 Cal.3d 436 (Wende).
2 All further statutory references are to the Penal Code.
3Los Angeles County Superior Court case No. BA140260.
4 Los Angeles County Superior Court case No. A775937.
5 Los Angeles County Superior Court case No. A972586.
3
under Proposition 47 was denied in February 2015. Those
determinations are now final.6

Defendant also filed a petition in the prior robbery case
(L.A. County Super. Ct. No. A972586), seeking to have his
conviction reduced from a felony to a misdemeanor under
Proposition 47 (§ 1170.18). The superior court (Judge David M.
Horwitz) denied his petition on September 29, 2016, stating that
“Defendant’s conviction of Penal Code section 211 does not
qualify for relief under Proposition 47.” Defendant filed a notice
of appeal from that order on March 29, 2016 (appellate case No.
B271973).
A second notice of appeal was filed in appellate case No.
B271973 on April 29, 2016. That appeal was taken from the
March 7, 2016 order by Judge Laura F. Priver denying
defendant’s motion for DNA testing in the current case (L.A.
County Super. Ct. No. BA140260).
On July 5, 2016, attorney William L. Heyman was
appointed to represent defendant in appellate case No. B271973.
Although the order of appointment referenced only one superior
court case number (case No. BA140260), Mr. Heyman was
appointed to represent defendant with regard to both the March
29 and April 29, 2016 appeals.
The appeal from the March 7, 2016 order by Judge Priver
denying the motion for DNA testing in the current case was
dismissed on September 13, 2016. (§ 1405, subd. (k) [order
granting or denying motion for DNA testing not appealable].)

6 Defendant’s Wende appeal from the March 2013 ruling
was dismissed in September 2013 (case No. B248013), and his
habeas petition from the February 2015 ruling was denied in
August 2015 (case No. B264774).
4
The Supreme Court denied defendant’s petition for review on
December 14, 2016.
The only appeal now pending is from the September 29,
2015 order denying relief under Proposition 47 in the prior
robbery case (L.A. County Super. Ct. No. A972586). On October
31, 2016, Mr. Heyman filed a Wende brief that raised no issues.
Defendant objected to the Wende brief on November 9, 2016, and
requested to have Mr. Heyman relieved as appellate counsel. In
support, defendant raised issues beyond the scope of Mr.
Heyman’s representation. Contrary to defendant’s contentions,
Mr. Heyman has no authority to file motions in superior court to
suppress evidence in defendant’s current or prior robbery cases,
request DNA testing in the current case, or withdraw defendant’s
plea in the prior robbery case. No proper basis has been shown
for relieving Mr. Heyman, whose performance was not deficient.
(See Wende, supra, 25 Cal.3d at p. 442 [“counsel may properly
remain in the case so long as he has not described the appeal as
frivolous and has informed the defendant that he may request
the court to have counsel relieved if he so desires”].)
Defendant’s supplemental brief, filed November 17, 2016,
seeks an appellate determination of his right to parole under
Proposition 57. This initiative, which was approved in the
November 2016 election, is not properly before us. Any
determination as to defendant’s right to parole under Proposition
57 must be made, in the first instance, by the appropriate agency.
To the extent defendant is challenging his conviction of assault
with a deadly weapon in violation of section 245, subdivision (c)—
he argues that a pencil is not a deadly weapon—we decline to
reach that issue, which is not properly before us.
5
Turning to the merits of the September 29, 2015 order
denying relief under Proposition 47, the only issue is whether a
conviction under section 211 falls outside the scope of the
initiative. Subdivision (f) of section 1170.18 provides: “A person
who has completed his or her sentence for a conviction, whether
by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court
that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as misdemeanors.”
Robbery—which is both a violent felony (§ 667.5, subd. (c)(9)) and
a serious and/or violent felony (§ 667, subd. (d)(1))—is not an
offense that is eligible for Proposition 47 relief.
We have reviewed the record under People v. Kelly (2006)
40 Cal.4th 106, and find no arguable issues. We are satisfied
that defendant’s counsel has fully complied with his
responsibilities. (Wende, supra, 25 Cal.3d at pp. 441–442.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J. MANELLA, J.