People v. Busby CA3

• Court: California Court of Appeal
• Decided: May 25, 2016
• Docket: C080155
• Status: Unpublished

Opinion

Filed 5/25/16 P. v. Busby CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C080155

Plaintiff and Respondent, (Super. Ct. No. 94F10324)

v.

PHILLIP LAMAR BUSBY,

Defendant and Appellant.

“On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at Penal Code section 1170.18,1 which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony

1 Undesignated statutory references are to the Penal Code.

1 to a misdemeanor. Defendant Phillip Lamar Busby appeals from an order denying his petition to reduce his commitment conviction from a felony to a misdemeanor. Defendant’s motion was denied upon a determination that he was not eligible for relief because the commitment offense was a violation of section 459, first degree burglary (see §§ 460, 461), which is not among the eligible offenses listed in section 1170.18. Counsel was appointed to represent defendant on appeal. Counsel 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).) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. 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 Proposition 47 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. Kisling (2015) 239 Cal.App.4th 288; People v. Serrano (2012) 211 Cal.App.4th 496; 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 published authority to the contrary, we will adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded the opportunity to file a supplemental brief.

2 Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant. DISPOSITION The judgment (order) is affirmed.

RAYE , P. J.

We concur:

BLEASE , J.

HOCH , J.