People v. Roberts CA4/1 ( 2015 )

Filed 10/22/15 P. v. Roberts CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067651
Plaintiff and Respondent,
v. (Super. Ct. No. SCD118963)
JAMES RAY ROBERTS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Jeffrey F.
Fraser and Christine V. Pate, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Respondent.
In 1996, James Ray Roberts was convicted of petty theft (Pen. Code,1 § 484) and
giving false information to a police officer (§ 148.9, subd. (a)). The court found true two
serious/violent felony prior convictions (§ 667, subds. (b)-(i)). The court also found true
1 All further statutory references are to the Penal Code unless otherwise specified.
the allegation under section 666 of a prior theft-related conviction, which elevated the
petty theft conviction to a felony. Roberts was sentenced to an indeterminate term of 25
years to life.
In December 2014, Roberts filed a petition for writ of habeas corpus with the
superior court. In the petition he requested relief under Proposition 47 (§ 1170.18) to
reduce his petty theft conviction to a misdemeanor. Roberts also requested relief under
Proposition 36 (§ 1170.126) to recall his third strike sentence since it was based on a
nonviolent or serious felony.
The court denied his petitions because as to each proposition Roberts had a prior
conviction for rape and was required to register as a sex offender. Roberts had argued
that denying reduction of the offense to a misdemeanor violated equal protection and that
denying Proposition 36 recall would violate the prohibition on cruel and unusual
punishment.
Roberts 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 not been able to identify any reasonably arguable
issues for reversal on appeal. Counsel asks this court to review the record for error as
mandated by Wende. We offered Roberts the opportunity to file his own brief on appeal
but he has not responded.
STATEMENT OF FACTS
The 1996 offense involved Roberts taking groceries from a Vons store without
paying for them.
2
DISCUSSION
As we have indicated, counsel has asked this court to review the record for error as
required by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386
U.S. 738 (Anders), counsel has identified the following possible, but not arguable issues
to assist this court in its review of the record:
1. Whether the denial of Proposition 47 relief, based on the existence of the
disqualifying rape prior conviction, denied Roberts equal protection.
2. Whether denial of Proposition 36 recall of his third strike sentence, again based
upon a disqualifying prior conviction, resulted in a sentence that amounted to cruel and
unusual punishment.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436and Anders, supra, 386 U.S. 738. We have not discovered any reasonably arguable
issues for reversal on appeal. Competent counsel has represented Roberts on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
3