PEOPLE v. HOLLIS

No. C084204.

THE PEOPLE, Plaintiff and Respondent, v. MARVIN GLENN HOLLIS, Defendant and Appellant.

Court of Appeals of California, Third District, San Joaquin.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

RAYE, P. J.

"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 1170.18,1 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 Marvin Glenn Hollis 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 section 211, second degree robbery, which is not among the eligible offenses listed in 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.

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 filed a supplemental brief by which he argues that he is entitled to relief in that his second degree robbery of a commercial establishment should be deemed a larceny that meets the statutory definition of misdemeanor "shoplifting" and hence subject to relief under Proposition 47. (See §§ 459.5, 1170.18, subd. (a).)

"One of [the] purposes [of Proposition 47] was to `[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession . . . .' [Citation.]" (People v. Pak (2016) 3 Cal.App.5th 1111, 1120, italics added.) Robbery is not a nonserious, nonviolent larceny; rather, "`[r]obbery is essentially larceny aggravated by use of force or fear to facilitate the taking of property from the person or presence of the possessor. [Citation.]'" (People v. Smith (2009) 177 Cal.App.4th 1478, 1489-1490, quoting In re Albert A. (1996) 47 Cal.App.4th 1004, 1007-1008.) Indeed, robbery is statutorily defined as a violent felony (§ 667.5, subd. (c)(9)) and as a serious felony (§ 1192.7, subd. (c)(19)). Consequently, defendant's robbery conviction cannot be treated as a nonviolent, nonserious "shoplifting" and is not an offense eligible for relief under Proposition 47.

Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment (order) is affirmed.

BLEASE, J. and HULL, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code.

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