People v. Henson CA3 ( 2016 )

Filed 2/23/16 P. v. Henson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C079776
Plaintiff and Respondent, (Super. Ct. Nos. CM041666,
CM042000)
v.
NATHANIAL TRAE HENSON,
Defendant and Appellant.
On August 1, 2014, the owner of a green Honda CRV went back into his home,
leaving the parked car running while his nine-year-old daughter was in the backseat.
Defendant entered the CRV and the girl left immediately. He then drove off and was
later apprehended by police.
Defendant pleaded no contest to unlawful taking or driving of a vehicle (Veh.
Code, § 10851) and was placed on three years’ formal probation in case No. CM041666.
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On September 23, 2014, a person at a gas station noticed defendant was driving a
2004 Mitsubishi Eclipse that had been stolen from her friend. When she confronted
defendant, he removed a backpack from the car and fled. Defendant was later
apprehended by the police.
Defendant pleaded no contest to unlawful driving or taking of a vehicle in case
No. CM042000 and the trial court found defendant violated probation in case No.
CM041666. Sentencing defendant in both cases, the court imposed a three-year-eight-
month county prison term.
Defendant subsequently filed a petition for resentencing pursuant to Penal Code
section 1170.18. The trial court denied the petition, finding his convictions for unlawful
driving or taking of a vehicle were not eligible for resentencing.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal. 3d 436.)
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 by Penal Code 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 [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. 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 authority to the
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contrary, we believe it prudent to adhere to Wende in the present case, where counsel has
already undertaken to comply with Wende requirements.
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. More than 30 days elapsed, and we
received no communication from defendant. 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 judgment (order) is affirmed.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
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