Opinion
E065812
10-26-2016
THE PEOPLE, Plaintiff and Respondent, v. GENE RAPHAEL BELL, Defendant and Appellant.
Janice R. Mazur, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. CR29424) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Gene Raphael Bell, filed a petition for resentencing pursuant to Penal Code section 1170.18, which the court denied. After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying one potentially arguable issue: whether sufficient evidence supported the court's determination that the business defendant was convicted of attempting to burglarize was closed at the time of the offense. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. PROCEDURAL HISTORY
On June 6, 1988, the People charged defendant by felony complaint with burglary (count I; § 459) and false representation of identity to a police officer (count II; § 148.9, subd. (a)). On the same date, defendant pled guilty to an amended count I charge of attempted burglary. (§§ 664, 459.) The court sentenced defendant to eight months' imprisonment.
On July 21, 2015, defendant filed a petition for resentencing. In a response dated September 23, 2015, the People declared that a hearing should be set. At the hearing on February 26, 2016, defendant's counsel noted the police report reflected that defendant was caught running from a business that was closed, the building's silent alarm was going off, and the building's glass door had been found to be cut.
The court denied the petition because defendant was convicted of attempting to burglarize a closed business. In his request for a certificate of probable cause defendant noted: "[A] theft never took place because the Defendant never entered the closed business."
Section 1170.18 permits a defendant who was convicted of a felony offense which would have been a misdemeanor had the act which added that section been in effect at the time the defendant committed the offense, to seek reduction of the offense to a misdemeanor. The act added section 459.5, which reduced from a felony to a misdemeanor the offense of entering into a commercial establishment open during regular business hours for the purpose of intending to take property valued at $950 or less. --------
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues. (People v. Sherow (2015) 239 Cal.App.4th 875, 880 [defendant bears the burden of proof on a petition for resentencing.].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.