Filed 9/8/17 P. v. Dickinson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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“On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at Penal Code section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce felonies to misdemeanors. Defendant Bennie Edward Dickinson appeals from an order denying his petition to reduce a conviction from a felony to a misdemeanor.

Defendant’s petition for resentencing was denied upon a determination that he was not eligible for relief under Proposition 47 because the commitment offense was violation of subdivision (a) of section 10851 of the Vehicle Code, unlawful taking of a vehicle, which the trial court concluded was not among the eligible offenses listed in Penal Code section 1170.18.

Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition brought pursuant to Proposition 47 remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Martinez (2016) 246 Cal.App.4th 1226; People v. Kisling (2015) 239 Cal.App.4th 288; People v. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of Supreme Court authority to the contrary, we will adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.

Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant. Although there may be a debate on the issue of whether violation of subdivision (a) of section 10851 of the Vehicle Code can be subject of relief under Proposition 47 (compare, e.g., People v. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, S232344, to People Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016, S232250), here relief is precluded in any event for failure to demonstrate that the value of the vehicle did not exceed $950 (see People v. Perkins (2016) 244 Cal.App.4th 129, 136-138; People v. Sherow (2015) 239 Cal.App.4th 875, 880; Pen. Code, § 490.2, subd. (a)).

DISPOSITION

The judgment (order) is affirmed.

RAYE , P. J.

We concur:

ROBIE , J.

HOCH , J.