Opinion
C085322 C085323
05-08-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIELLE DEMARTINI, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 13F06715, 16FE019792)
"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, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce felonies to misdemeanors. Defendant Danielle Demartini appeals from orders denying her petitions to reduce convictions from felonies to misdemeanors.
Undesignated statutory references are to the Penal Code. --------
Defendant's petitions for resentencing were denied upon a determination that she was not eligible for relief because the commitment offenses were violations of subdivision (a) of section 530.5, unlawful use or transfer of personal identifying information, which is not among offenses eligible for relief pursuant to Proposition 47.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the cases 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 her 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.
Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 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 ; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Martinez (2016) 246 Cal.App.4th 1226; 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 Supreme Court authority to the contrary, we will adhere to Wende in the present cases, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.
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 (orders) are affirmed.
RAYE, P. J. We concur: ROBIE, J. BUTZ, J.