People v. Anthony CA3

Filed 8/12/16 P. v. Anthony CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C079739

v. (Super. Ct. Nos. 97F3057, 93F4813)

MICHAEL DAVID ANTHONY,

Defendant and Appellant.

In this appeal from the denial of Penal Code section 1170.18 petitions for resentencing1, appointed counsel for defendant Michael David Anthony has filed an opening brief that sets forth the facts of the case and asks that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979)

1 Proposition 47, as approved by voters, General Election November 4, 2014, effective November 5, 2014, codified as section 1170.18 of the Penal Code (Proposition 47). Undesignated statutory references are to the Penal Code.

1

25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. BACKGROUND We omit the facts of defendant’s crimes as they are unnecessary to resolve this appeal. On November 2, 1993, defendant pleaded guilty to second degree robbery (§ 211) in case No. 93-4813. He was sentenced to serve a five-year state prison term. On October 2, 1997, defendant pleaded guilty to second degree robbery and admitted two strike allegations (§§ 667, subds. (b)-(d), 1170.12) in case No. 93-3057. He was sentenced to serve 25 years to life. Defendant subsequently filed section 1170.18 petitions in both cases, both of which the trial court denied without a hearing. DISCUSSION 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 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, supra, 25 Cal.3d 436 in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has filed a supplemental brief.