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Filed 1/14/16 P. v. Moore 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

THOMAS EUGENE MOORE,

Defendant and Appellant.

C078523

(Super. Ct. No. 99F00713)

Defendant Thomas Eugene Moore appeals from the trial court’s denial of his 

petitions for resentencing pursuant to Penal Code sections 1170.126 and 1170.18. 

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).) We affirm.

“On January 25, 1999, Barry O’Sullivan was working as manager at the Rent-aCenter store on Florin Road. About 6:45 p.m., he was assisting a couple with a rental 
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application when defendant entered and approached the counter. Defendant had a 

scraggly beard and was wearing a heavy long black coat with a hood.

“Defendant pulled a dark stocking mask down over his face, brandished a length 

of pipe, pretending it was a gun, and demanded money. O’Sullivan initially refused. But 

after defendant repeated the demand, O’Sullivan put $870 in big bills into a brown paper 

bag held by defendant.” He then fled the store but was later apprehended. (People v. 

Moore (Dec. 27, 2012, C037544) [nonpub. opn.] at pp. 2-3.)

A jury found defendant guilty of second degree robbery and sustained three strike 

and serious felony allegations. (People v. Moore, supra, at p. 1.) Defendant was 

sentenced to 25 years to life plus 15 years. (Ibid.) We affirmed his conviction in an 

unpublished opinion. (Ibid.)

Defendant filed a petition for resentencing on his three strikes term pursuant to 

Penal Code section 1170.126. The trial court denied the petition because defendant’s 

robbery conviction rendered him ineligible for resentencing. Defendant then filed a 

motion for reconsideration, which the trial court dismissed. 

Defendant also filed a separate petition for resentencing pursuant to Penal Code 

section 1170.18. The trial court denied the petition because defendant’s conviction was 

ineligible for Penal Code section 1170.18 resentencing. Defendant filed a motion for 

reconsideration of this petition, which was also denied. 

Defendant filed separate and timely notices of appeal from the denials of both 

petitions. 

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 Penal Code 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 
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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 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 filed a supplemental brief contesting the denial of his Penal Code 

section 1170.18 petition. He argues that since he took less than $950 from his victim and 

that preliminary hearing testimony establishes that he did not use force or fear to take the 

money, his robbery conviction should have been redesignated as petty theft. 

The passage of Proposition 47 created Penal Code section 1170.18, which 

provides for any defendant “currently serving a sentence for a conviction . . . of a felony 

or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] 

been in effect at the time of the offense [to] petition for a recall of sentence before the 

trial court that entered the judgment of conviction in his or her case to request 

resentencing . . .” under the statutory framework as amended by the passage of 

Proposition 47. (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4, 

2014) text of Prop. 47, § 14.)

Among the crimes amended by Proposition 47 is grand theft, Penal Code 

section 487. Proposition 47 effectively amended the grand theft statute by adding Penal 

Code section 490.2, which provides that, subject to exceptions not relevant here, a “theft 

where the value of the money, labor, real or personal property taken does not exceed nine 

hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a 
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misdemeanor . . . .” (§ 490.2, subd. (a).) Robbery is not among the crimes listed by 

Proposition 47 as being reduced to a misdemeanor. (§ 1170.18, subd. (a).)

Defendant’s robbery conviction is final and the alleged absence of an element of 

that offense cannot be raised in a Penal Code section 1170.18 petition, which addresses 

only whether a qualifying felony conviction should be redesignated and resentenced as a 

misdemeanor. Theft is only a lesser included offense of robbery, which has the 

additional element of force or fear. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) 

Robbery is a distinct crime from theft and is therefore ineligible for Penal Code 

section 1170.18 resentencing.

Defendant also claims he was improperly denied the right to personally appear and 

represent himself at the Penal Code section 1170.18 hearing. We have held that a court 

can find a defendant ineligible for Proposition 36 resentencing under Penal Code 

section 1170.126 without holding a formal hearing. (People v. Bradford (2014) 

227 Cal.App.4th 1322, 1340-1341.) This is equally applicable to the analogous 

resentencing procedure in Penal Code section 1170.18. Defendant therefore had no right 

to appear or represent himself at a hearing that the trial court did not have in this case.

Defendant finally contends the court erred in denying his motion for 

reconsideration. The court’s initial ruling was correct, as defendant’s robbery conviction 

was ineligible for resentencing. The denial of the reconsideration motion was therefore 

also correct.

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant.
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DISPOSITION

The judgment (orders) is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Blease, Acting P. J.

/s/ 

Hull, J.