People v. Schmitz CA3

Filed 2/4/16 P. v. Schmitz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C079304

v. (Super. Ct. No. CM028152)

TOMMY LEE SCHMITZ,

Defendant and Appellant.

Appointed counsel for defendant Tommy Lee Schmitz asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. BACKGROUND Defendant drove under the influence of alcohol in October 2007 and collided with another vehicle. He killed one person and injured four others.

1

Defendant pleaded no contest to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))1 and driving with a blood-alcohol content of 0.08 or greater, causing injury (Veh. Code, § 23153, subd. (b)). He admitted enhancement allegations that he served three prior prison terms (§ 667.5, subd. (b)) and personally inflicted great bodily injury on three victims (§ 12022.7; Veh. Code, § 23558). The prior prison term enhancement allegations were based on three prior convictions for receiving stolen property, two in California (§ 496, subd. (a)(1)) and one in Arizona (A.R.S. § 13- 1802(A)(5)). The trial court sentenced defendant to 17 years in state prison. Defendant appealed and in March 2009 we affirmed the judgment in an unpublished opinion. (People v. Schmitz (Mar. 16, 2009, C058522) [nonpub. opn.].) Defendant subsequently filed a petition pursuant to section 1170.18 asking the trial court to reduce his prior receiving-stolen-property crimes to misdemeanors. The trial court denied the petition, finding defendant ineligible. Defendant now appeals the denial of his petition. DISCUSSION Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. Defendant filed a supplemental brief. It remains an open question 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