1

Filed 2/ 26 /16 P. v. Willis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CORNELL WYLE WILLIS,

Defendant and Appellant. C079510

(Super. Ct. No. 13F03841)

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436

( Wende ).

In 1990, defendant Cornell Wyle Willis pleaded no contest to second degree

robbery (Pen. Code, § 211) 1 and received five years of formal probation, including 270

days in county jail with 17 days ’ credit for time served.

1 Undesignated statutory references are to the Penal Code.2

In 2014, defendant pleaded guilty or no contest (the record does not de scribe

which) to possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)

In April 2014, the trial court sentenced him to four years in state prison (the two

- year

midterm, doubled for his prior strike), with 389 days of presentence c ustody credit. The

court imposed a $280 restitution fine (§ 1202.4) and a $280 suspended restitution fine

(§ 1202.45). The underlying facts of defendant’s convictions are not in the record.

On May 20, 2015, defendant submitted an ex parte motion for mod ification of

sentence (§ 1170, subd. (d)), falsely alleging that his 2014 conviction was for simple

possession of a controlled substance (Health & Saf. Code, § 11377), which was reduced

to a misdemeanor under Proposition 47.

On May 27, 2015, the trial co urt denied the motion on the ground that since

defendant’s sentence was imposed pursuant to a negotiated plea, the court had no

authority to modify the sentence.

Defendant filed a timely notice of appeal from the order denying the motion. The

notice of appeal also purported to challenge the denial of a motion to suppress evidence,

the voluntariness of defendant’s plea, and a violation of Boykin

- Tahl 2 (all presumably in

the 2014 case).

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 whether 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. More than 30 days have elapsed, and

we have received no communication from defendant.

2 Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed. 2d 274]; In re Tahl (1969) 1 Cal. 3d

122.3

Whether the protections afforded by Wende and the United States Supreme Court

decision i n 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 c ounsel’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]; Co nservatorship of Ben C. (2007) 40 Cal. 4th 529; In re Sade C. (1996) 13 Cal. 4th

952; 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. Ap p.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 will adhere to

Wende in the present case, where counsel has already undertaken to comply with Wende

requirements.

H aving undertaken an examination of the record, we find no arguable error that

would result in a disposition more favorable to defendant.

DISPOSITION

The order denying defendant’s motion for modification of sentence is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

DUARTE , J.