People v. Rutledge CA1/5

Filed 8/11/16 P. v. Rutledge CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A146158 v. EUGENE DARREL RUTLEDGE, (Alameda County Super. Ct. No. 154409) Defendant and Appellant.

Eugene Darrel Rutledge appeals from a post-judgment order denying his petition for resentencing under Penal Code section 1170.18. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm. I. FACTS AND PROCEDURAL HISTORY A. Underlying Proceedings An information filed in January 2007 charged Rutledge with 14 counts of second degree robbery and one count of attempted second degree robbery (count 7). (Pen. Code, §§ 211, 212.5, subd. (c), 664.)1 The information alleged that Rutledge suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, sub. (e); 1170.12, subd. (c)).

1 All statutory references herein are to the Penal Code.

1

In April 2007, the information was amended by interlineation to reduce the second degree robbery charge in count 1 to a charge of attempted second degree robbery (§§ 211/664), dismiss the second degree robbery charge in count 6, amend the allegations of count 15 to charge grand theft (§ 487, subd. (c)), and number all remaining counts consecutively. Later in April 2007, a jury found Rutledge guilty of nine counts of second degree robbery (counts 3, 4, 5, 7, 8, 9, 10, 11, 12) and one count of attempted second degree robbery (count 6, previously count 7). The jury found him not guilty of attempted robbery (count 1), two other counts of second degree robbery (counts 2 and 13), and one count of grand theft (count 14, previously count 15). The jury found the allegation of his prior conviction to be true. In May 2007, the court denied Rutledge’s motion to strike his prior conviction pursuant to section 1385, and sentenced him to a total term of 20 years, four months, comprised of six years on the count 3 robbery (the three-year mid-term, doubled pursuant to section 667, subdivision (e)(1)); plus consecutive low terms of two years each on robbery counts 4, 7, 8 and 9; plus a consecutive low term of one year, four months for the count 6 attempted robbery; plus five years for the enhancement pursuant to section 667, subdivision (a)(1). The court also imposed concurrent two-year terms on counts 5, 10, 11, and 12. Rutledge was awarded 511 days of pre-sentence credits. B. Rutledge’s Petition for Resentencing On February 10, 2015, Rutledge submitted a petition to reclassify his felony second degree robbery convictions under section 211 as misdemeanor convictions under section 490.2, and to be resentenced accordingly, pursuant to section 1170.18. The court received the petition but did not file it. On February 26, 2015, Rutledge sent a letter to the public defender, to whom the resentencing petition had apparently been routed. In the letter, which is included in the court file, Rutledge asserted that he was entitled to relief under his petition because the loss for each robbery count was below the $950 threshold of section 490.2, subdivision (a).