Opinion
D073574
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. HILLERY DARNELL ALLEN, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD129108, SCD135889) APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Hillery Darnell Allen appeals an order denying his petition to reduce to misdemeanors his felony convictions for robbery and battery with great bodily injury. (Pen. Code, §§ 211, 243, subd. (d).) He sought relief under section 1170.18, the Safe Neighborhoods and Schools Act, which was enacted by California voters in November 2014 pursuant to Proposition 47. (People v Gonzales (2017) 2 Cal.5th 858, 863.) The trial court denied Allen's petition on the basis his convictions were ineligible for resentencing under Proposition 47.
Unless otherwise specified, all statutory references are to the Penal Code.
Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). After independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable appellate issues and affirm.
BACKGROUND
In August 1997, in Case No. SCD129108, Allen pled guilty to battery with serious bodily injury (§ 243, subd. (d)) and admitted having suffered a prior serious felony conviction (§ 667, subd. (a)). In September 1998, in Case No. SCD135889, Allen was found guilty of robbery (§ 211) in a court trial. Allen admitted he had two prior convictions; based on those convictions, the court found he had two serious felony priors and two strikes and sentenced Allen to prison for 35 years to life. In November 1999, this court affirmed the judgment in Case No. SCD135889 (People v. Allen (Nov. 29, 1999, D032264) [nonpub. opn.]). The facts of the convictions are not relevant to the legal issues raised by this appeal.
We take judicial notice of the opinion in that appeal and Allen's subsequent appeal in D066401 (People v. Allen (Apr. 14, 2015, D066401) [nonpub. opn.]). (Evid. Code, § 452, subd. (d).)
In an undated petition, Allen requested that the court reduce his robbery conviction and burglary prior to misdemeanors under section 1170.18, which was enacted as part of the Safe Neighborhoods and Schools Act (Proposition 47). In January 2018, the Office of the Public Defender was appointed to represent Allen and appeared on his behalf in court. The court treated Allen's petition as a request to reduce his convictions in both prior cases and denied relief, finding that Allen's prior convictions are not eligible for resentencing under Proposition 47.
In March 2018, the clerk of the superior court filed a certificate indicating that the reporter's transcript of the hearing had been destroyed. --------
Allen timely appealed.
DISCUSSION
Allen's appointed appellate counsel filed a brief identifying the prior convictions and summarizing the proceedings below. Counsel presented no argument for reversal and instead requested we review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified two possible appellate issues: whether Allen is entitled to have his felony conviction for robbery (§ 211) reduced to a misdemeanor under section 1170.18, and whether Allen is entitled to have his felony conviction for battery with great bodily injury (§ 243, subd. (d)) reduced to a misdemeanor under section 1170.18.
We granted Allen permission to file a supplemental brief on his own behalf. He did not do so.
Having reviewed the entire record for error pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we find no arguable issue for reversal on appeal. Allen has been competently represented by counsel in this appeal.
DISPOSITION
The order denying defendant's section 1170.18 motion is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. DATO, J.