Opinion
C082120
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. PETER RAYMOND MUSOVICH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRF9353614)
This is an appeal purportedly pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the trial court's order denying defendant's petition for resentencing pursuant to Proposition 47 (Pen. Code, § 1170.18; undesignated section references are to this code). We set forth a brief description of the procedural history of the case pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.
In 1993, defendant Peter Raymond Musovich entered a negotiated plea of guilty to receiving stolen property (§ 496, subd. (a)), in exchange for dismissal of the remaining counts and a two-year sentence. The court sentenced defendant accordingly.
In 1994, defendant was convicted of sexual battery, a felony (§ 243.4).
On January 1, 1995, Penal Code section 290 was amended to include sexual battery (§ 243.4) as an offense for which sex offender registration is mandatory. (Stats. 1994, ch. 865, § 1, p. 4317.)
In October 2015, defendant filed a Proposition 47 petition, seeking reclassification of his felony conviction for receiving stolen property to a misdemeanor.
The prosecutor objected on the ground that defendant was not entitled to relief because defendant was required to register pursuant to section 290, subdivision (c).
In May 2016, the trial court denied defendant's petition, agreeing with the prosecutor (§ 1170.18, subd. (i)).
Defendant appeals from the order denying his petition.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
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 by section 1170.18, 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. 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 believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements.
Defendant filed a supplemental brief, requesting that this court enforce the 1994 plea agreement wherein, he claims, he entered a plea to sexual battery and the prosecutor did not request sex offender registration which was discretionary at the time. We will affirm the order denying defendant's Proposition 47 petition.
Approved by the voters at the November 2014 General Election, Proposition 47 reduced certain felony offenses to misdemeanors. Among the affected crimes is receiving stolen property which is now a misdemeanor unless the amount received exceeds $950 in value. (§ 496, subd. (a).) Certain offenders are ineligible for the reduction such as sex offender registrants. (§ 1170.18, subd. (i).)
That the prosecutor did not request sex offender registration when defendant was convicted of sexual battery is not relevant to the issue presented in this appeal—that is, whether defendant was eligible for redesignation of his felony receiving stolen property offense to a misdemeanor. The trial court found defendant ineligible for Proposition 47 relief because he had been convicted of sexual battery which requires defendant to register as a sex offender. (§§ 243.4, 290, subd. (c), 1170.18, subd. (i).) Within the meaning of Proposition 47, defendant's disqualifying conviction for sexual battery which requires sex offender registration was suffered prior to his application to have his receiving stolen property offense reduced to a misdemeanor. The trial court properly ruled. (People v. Walker (2016) 5 Cal.App.5th 872; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1391-1392.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The order is affirmed.
NICHOLSON, J. We concur: RAYE, P. J. ROBIE, J.