Opinion
D075414
06-17-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES, Defendant and Appellant.
Marta I. Stanton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR134538) APPEAL from an order of the Superior Court of San Diego County, Lorna Alksne, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 1992, Robert James pleaded guilty to one count of robbery (Pen. Code, § 211, a felony) arising from an act of shoplifting then grew into a physical encounter with store personnel. The trial court, pursuant to a plea agreement struck the strike prior (§ 667, subds. (b)-(i)). James was sentenced to the middle term of three years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
The use of force to get away with the merchandize made the theft a robbery under People v. Estes (1983) 147 Cal.App.3d 23.
In 2017, James filed a petition to reduce the robbery conviction to a misdemeanor under Proposition 47 (§ 1170.18). The trial court found robbery was not an offense which was eligible for reduction under section 1170.18 and denied the petition.
Robbery is not a "wobbler" offense which can be punished as either a felony or misdemeanor. Robbery is a felony offense.
In 2018, James filed a second Proposition 47 petition again seeking to have the conviction reduced to a misdemeanor. He essentially argued the offense, as committed, was a shoplifting of an amount less than $950. The court again denied his petition.
James filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has been unable to identify any arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende.
We offered James the opportunity to file his own brief on appeal, but he has not responded.
DISCUSSION
The facts of the 1992 conviction are not relevant to the issue presented by this appeal. Therefore, we have omitted the traditional statement of facts. --------
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and has asked us to review the record for error. In order to assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue: Whether the robbery count should be reduced to a misdemeanor pursuant to Proposition 47.
We have examined the entire record pursuant to Wende and Anders. We have not identified any arguable issue for reversal on appeal. Competent counsel has represented James on this appeal.
DISPOSITION
The trial court's order denying the petition filed pursuant to section 1170.18 is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.