People v. Hernandez CA3

Filed 1/14/22 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C094540

Plaintiff and Respondent, (Super. Ct. No. CR-2009- 3661) v.

JUAN M. HERNANDEZ,

Defendant and Appellant.

Appointed counsel for defendant Juan M. Hernandez 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.) In this appeal from the denial of postconviction relief, defendant has not filed a supplemental brief. We will dismiss the appeal as abandoned. BACKGROUND In 2010, defendant pleaded no contest to felony receiving stolen property (Pen.

1

Code, § 496, subd. (a))1 and felony possession of ammunition by a person prohibited from owning firearms (former § 12316, subd. (b)(1)). In 2014, California voters enacted Proposition 47 (Prop. 47), which created a resentencing provision codified at section 1170.18 that permits a person serving a sentence for certain designated felonies to petition for recall of the sentence to reduce a felony to a misdemeanor. On July 9, 2021, defendant filed a petition under section 1170.18, subdivision (f), to reduce his receipt of stolen property conviction to a misdemeanor. The district attorney filed an opposition stating defendant is ineligible because defendant has at least one prior conviction under section 667, subdivision (e)(2)(C)(iv) and because he is required to register pursuant to section 290, subdivision (c). Alternatively, the district attorney argued defendant also did not meet his burden establishing the value of the stolen property was under $950. On July 15, 2021, the trial court denied defendant’s petition for “reasons stated by D.A.” Defendant timely appealed. DISCUSSION Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed since the opening brief was filed, and defendant has not filed a supplemental brief. Whether the protections afforded by Wende and the United States Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition brought under section 1170.18 is an open question. Our Supreme Court has not spoken on that issue. In People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, the court ruled Wende/Anders