People v. Duchine CA3 ( 2015 )

Filed 12/21/15 P. v. Duchine CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C079298
Plaintiff and Respondent, (Super. Ct. No. 12F03590)
v.
JOHN DUCHINE,
Defendant and Appellant.
“On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified
at Penal Code section 1170.18,1 which provides that a person currently serving a sentence
for certain designated felonies may petition for recall of the sentence to reduce the felony
1 Undesignated statutory references are to the Penal Code.
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to a misdemeanor. Defendant John Duchine appeals from an order denying his petition
to reduce his commitment conviction from a felony to a misdemeanor.2
Defendant’s petition was denied upon a determination that he was not eligible for
relief because the commitment offense was possession of a controlled substance in prison
(§ 4573.6), which is not among the eligible offenses listed in section 1170.18.
Counsel was appointed to represent defendant on appeal. Counsel filed an
opening brief setting forth the facts of the case and requesting this court to review the
record and determine whether there were any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than
30 days elapsed, and we received no communication from defendant.
Whether the protections afforded by Wende and the United States Supreme Court
decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal
from an order denying a petition brought pursuant to Proposition 47 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 [95 L.Ed.2d
539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th
952; People v. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008)
2 The petition makes passing reference to Proposition 36, the Three Strikes Reform Act
of 2012. Proposition 36 provides for the enactment of section 1170.126, and
subdivision (a) of that statute expressly states: “The resentencing provisions under this
section and related statutes are intended to apply exclusively to persons presently serving
an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under
this act would not have been an indeterminate life sentence.” Defendant’s determinate
four-year term does not qualify as an indeterminate term of imprisonment.
2
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 and defendant has been afforded the opportunity to file
a supplemental brief.
Having undertaken an examination of the record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
HOCH , J.
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