People v. Roberson CA3

Filed 7/19/16 P. v. Roberson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C080834

Plaintiff and Respondent, (Super. Ct. No. 14F00513)

v.

GARY ABDUL ROBERSON,

Defendant and Appellant.

Defendant Gary Abdul Roberson appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1170.18.1 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 (Wende).) We affirm the order. On October 3, 2013, defendant, an inmate at Folsom State Prison, was found in possession of 0.05 gram of methamphetamine and 0.09 gram of marijuana, both usable

1 Undesignated statutory references are to the Penal Code.

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amounts. Defendant pleaded no contest to possession of marijuana and methamphetamine in state prison. (§ 4573.6.) The trial court imposed a stipulated two- year term, to be served consecutively to an eight-year term defendant was serving for robbery in another case.2 Defendant subsequently filed a section 1170.18 petition for resentencing on his possession conviction, which was summarily denied. 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 under section 1170.18 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. 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 believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has filed a supplemental brief. Defendant’s supplemental brief asserts that his conviction for possession of methamphetamine and marijuana in prison is subject to section 1170.18 resentencing. He argues that this interpretation is supported by the text of section 1170.18, and because a