People v. Fairly CA3

Filed 11/23/15 P. v. Fairly CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079384

Plaintiff and Respondent, (Super. Ct. No. 96F07797)

v.

CHISI RAY FAIRLY,

Defendant and Appellant.

“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

1 Undesignated statutory references are to the Penal Code.

1

for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. Defendant Chisi Ray Fairly appeals from an order granting in part and denying in part his petition to reduce his commitment convictions from felonies to misdemeanors. Defendant was resentenced from a term of 60 years to life to 35 years to life, upon reduction of two convictions for petty theft (§ 666) from felonies to misdemeanors and upon determination that a felony conviction for burglary (§ 459) was not eligible for resentencing under the provisions of 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 briefing within 30 days of the date of filing of the opening brief. Defendant timely filed a supplemental brief by which he argues that the trial court erred by “us[ing] two priors in a single case” and that there was not sufficient evidence to support the burglary conviction. 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. 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.)