People v. Moore CA3

Filed 1/14/16 P. v. Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C078523

Plaintiff and Respondent, (Super. Ct. No. 99F00713)

v.

THOMAS EUGENE MOORE,

Defendant and Appellant.

Defendant Thomas Eugene Moore appeals from the trial court’s denial of his petitions for resentencing pursuant to Penal Code sections 1170.126 and 1170.18. Appointed counsel for defendant 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).) We affirm.

“On January 25, 1999, Barry O’Sullivan was working as manager at the Rent-a- Center store on Florin Road. About 6:45 p.m., he was assisting a couple with a rental

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application when defendant entered and approached the counter. Defendant had a scraggly beard and was wearing a heavy long black coat with a hood. “Defendant pulled a dark stocking mask down over his face, brandished a length of pipe, pretending it was a gun, and demanded money. O’Sullivan initially refused. But after defendant repeated the demand, O’Sullivan put $870 in big bills into a brown paper bag held by defendant.” He then fled the store but was later apprehended. (People v. Moore (Dec. 27, 2012, C037544) [nonpub. opn.] at pp. 2-3.) A jury found defendant guilty of second degree robbery and sustained three strike and serious felony allegations. (People v. Moore, supra, at p. 1.) Defendant was sentenced to 25 years to life plus 15 years. (Ibid.) We affirmed his conviction in an unpublished opinion. (Ibid.) Defendant filed a petition for resentencing on his three strikes term pursuant to Penal Code section 1170.126. The trial court denied the petition because defendant’s robbery conviction rendered him ineligible for resentencing. Defendant then filed a motion for reconsideration, which the trial court dismissed. Defendant also filed a separate petition for resentencing pursuant to Penal Code section 1170.18. The trial court denied the petition because defendant’s conviction was ineligible for Penal Code section 1170.18 resentencing. Defendant filed a motion for reconsideration of this petition, which was also denied. Defendant filed separate and timely notices of appeal from the denials of both petitions. 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