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Filed 2/24/16 P. v. Chaidez CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ROBERTO CHAIDEZ,

Defendant and Appellant. C078625

(Super. Ct. Nos. 88720, 88721)

Appointed counsel for defendant Roberto Chaidez asked this court to review the

record to determine whether there are any arguable issues on appeal. ( People v. Wende

(1979) 25 Cal. 3d 436 ( Wende ).) Finding no arguable error that would result in a

disposition more favorable to defendant, we affirm the judgment.

In 1989, in case s No. 88720 and 88721, a jury convicted defendant Roberto

Chaidez of two counts of receiving stolen property (Pen. Code, § 496 1 ) and one count

each of first degree burglary ( § 459), child endangerment ( § 273a), vehicle theft (Veh.

1 U ndesignated statutory references are to the Penal Code

.2

Code, § 10851), and leaving the scene of an accident (Veh. Code, § 20002, subd. (a)).

( People v. Chaidez (Nov. 9, 2001, C037970) [nonpub. opn.]

. ) The jury found true

allegations defendant committed a felony while released from custody ( § 12022.1) and

had sustained a prior serious felony conviction ( § 667, subd. (a)). ( People v. Chaidez

,

supra , C037970 .) Defendant was sentenced to serve 15 years eight months in state

prison

. The judgment was affirmed on appeal. ( People v. Chaidez

, supra , C037970 .)

In early 2015 , defendant filed a petition for “ re

- designation of sentence ” in both

cases. Both petitions sought to reduce certain felony convictions to misdemeanors

pursuant to Proposition 47

.

Case No. 88720:

On February 6, 2015, t he trial court denied defendant’s p etition due to ineligibility

based on current convictions

. Defendant filed a motion for hearing and reconsideration

of the trial court’s denial of resentencing under Proposition 47. On March 3, 20 1 5, the

trial court determin ed the items in the two counts of receiving stolen property did not

exceed $950 in value and designated those convictions to be misdemeanors.

Case No. 88721:

On January 16, 2015, the trial court denied defendant’s petition due to ineligibility

based on current convictions. Defendan t filed a motion for hearing and reconsideration

of the trial court’s denial of resentencing under Proposition 47. O n March 3, 2015, the

trial court denied defendant’s motion for hearing and reconsideration

. On February 19, 2015, d efendant , in propria persona, filed a notice of appeal in

both cases “after resentence of acquittal judgment” from the trial court’s judgment of

January 16, 2015. 2

2 Based on the date of the judgment being appealed, it appears defendant is appealing from the trial court’s denial of his petition in case No. 88721. We note the notice of appeal was filed after th e trial court’s first order denying the petition and before3

Defendant completed serving his sentence in case s No. 88720 and 88721. He is

currently serving a 60

- years

- to

- life prison term for an unrelated conviction in San Diego

County.

We appointed counsel to represent defendant on appeal. Counsel filed an opening

brief that sets forth the facts of the case and requests this court to review the record and

determine whe ther there are any arguable issues on appeal. ( Wende , supra , 25 Cal. 3d

436.) Defendant was advised by counsel of the right to file a supplemental brief within

30 days of the date of filing of the opening brief.

Whether the protections afforded by Wend e , supra, 25 Cal.3d 436

, 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 under section 1170.18,

remains an open question. Our Supreme Cou rt 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 in the present

the trial court’s denial of defendant’s motion for hearing and reconsideration. For purposes of this opinion, we construe the appeal to be from the subsequent order as well. (Rules of Court, rul e 8.100(a)(2) [“notice of appeal must be liberally construed”].)4

case, where counsel has already undert aken to comply with Wende requirements and

defendant has filed a supplemental brief. 3

Defendant’s supplemental brief raises four contentions. He first asserts the trial

court had a duty to guarantee the “sentence calculation is not greater length in time .”

While a petition for redesignation and resentencing cannot result in a longer sentence for

defendant ( § 1170.18, subd. (e)), defendant had already served his term by the time he

fil e d his petition, making resentencing unwarranted

.

Defendant next cont ends the trial court had a duty to conduct a hearing up on

request. Where a defendant has already served his or her sentence for a crime covered by

Proposition 47, a court may grant or deny a petition to redesignate the offense a

misdemeanor without a hearing, unless the applicant requests the hearing

. ( § 1170.18,

subd. (h).) Since the trial court granted defendant’s request as to the only crimes covered

by Proposition 47 (see § 1170.18, subd. (a)), he was not prejudiced by the court’s

decision to make the order without a hearing.

Defendant also contends the trial court had a duty to enforce the guarantees of

subdivi sions (e) and (h) of section 1170.18. This contention does not need to be

addressed because the merits of subdivisions (e) and (h) of section 1170.18 have been

addressed in defendant’s first two c ontentions.

Defendant’s last contention is that appellat e counsel was ineffective. Since our

review identifies no meritorious claim overlooked by appellate counsel, we reject this

c ontention

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

that would result in a disposition mo re favorable to defendant.

3 We deny defendant’s request s to augment the record with materials related to his 1989 trial, filed September 18, 2015, as they are irrelevant to the trial court’s denial of his petition for resentencing.5 DISPOSITION

The judgment s (order s ) are affirmed.

/s/
HOCH , J.

We concur:

/s/

BUTZ , Acting P. J.

/s/

DUARTE , J.