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Filed 11/5/15 P. v. Linder 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DARRELL WAYNE LINDER,

Defendant and Appellant. C078937

(Super. Ct. No. NCR89501)

“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 per son 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.2

to a misdemeanor. Defendant Darrell Wayne Linder appeals from an order denying his

petition to reduce his commitment conviction f rom a felony to a misdemeanor.

Defendant’s petition was denied upon a determination that he was not eligible for

relief because the commitment offense was possession of a firearm by a felon (§ 29800,

subd. (a)), which is not among the eligible offenses li sted 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 app eal. ( 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 defendan t.

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

q uestion. 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

p roceedings 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. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008)

161 Cal.Ap p.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 believe it prudent

to 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.3

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 is affirmed.

RAYE , P. J.

We concur:

BLEASE , J.

DUARTE , J.