Opinion
E074773
10-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN BOGGS, Defendant and Appellant.
Bruce L. Kotler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR53832) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, David Allen Boggs, filed a petition for reclassification of his conviction 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 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and one potentially arguable issue: whether the court abused its discretion in denying defendant's petition. We affirm.
I. PROCEDURAL BACKGROUND
On June 20, 1994, defendant pled guilty to felony attempted theft of a vehicle. (Pen. Code, § 664, Veh. Code, § 10851, count 1.) The court sentenced defendant to eight months of imprisonment with credit for time served, and he was released on parole.
The complaint alleged that on or about April 8, 1993, defendant attempted to drive or take a "1978 FORD VAN F250." The record does not disclose the factual basis for the plea.
On July 17, 2019, defendant filed a petition for reclassification of his felony conviction. The People responded that defendant was not entitled to relief because he had failed to meet his burden.
We infer the People meant defendant's burden to prove the value of the vehicle he attempted to steal did not exceed $950.
At the hearing on the petition on January 16, 2020, defense counsel submitted on the petition. The People contended that defendant had failed to meet his burden noting, "It's a service vehicle, usable asset, running pickup, and the defense wasn't able to determine the value anyhow." The court denied the petition without prejudice.
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.
We recognize that the court in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, recently held "that Wende's constitutional underpinnings do not apply to appeals from the denial of postconviction relief . . . ." (Id. at p. 1028.) Nonetheless, pursuant to its supervisory authority, Cole determined to employ a quasi-Wende review to postjudgment cases, giving the defendant the right to file a supplemental brief when defense counsel files a Wende brief. The court would then dismiss the case if the defendant failed to file a supplemental brief or would address the issues raised if defendant did file a supplemental brief. (Cole, at p. 1028.)
Pursuant to the same supervisory authority, we elect to conduct a traditional Wende review in criminal appeals from the denial or dismissal of postconviction avenues of relief. We agree with the recent decision in People v. Flores (2020) 54 Cal.App.5th 266, "that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice." (Id. at p. 269; see People v. Allison (2020) ___ Cal.App.5th ___ [2020 Cal.App. Lexis 925, at p. *7] ["[W]e have the discretion to review the record in the interests of justice."].) Such a procedure provides defendants an added layer of due process while consuming comparatively little judicial resources.
III. DISPOSITION
The order denying defendant's petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.