People v. Brand CA3

Filed 9/12/16 P. v. Brand 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C080134
Plaintiff and Respondent, (Super. Ct. No. 60441)
v.
CHARLES BRAND,
Defendant and Appellant.
In this appeal from the denial of a Penal Code section 1170.181 petition for
resentencing, appointed counsel for defendant Charles Brand has filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
1 Further undesignated statutory references are to the Penal Code.
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436.) Finding no arguable error that would result in a disposition more favorable to
defendant, we affirm the judgment.
BACKGROUND
Ronda Borden was working at a Sacramento area Kmart on February 14, 1981. At
around 7:00 p.m., she saw defendant pushing a cart in the housewares department that
contained a color television still in its box. Borden told him to pay for the television in
the appliances department, and then lost sight of him.
Timothy Borem worked as a security manager at the Kmart that night. He learned
that a man had pushed a television set to the outside area of the building supply
department. He went outside and found the television, which sold for $418, still in its
box. Although it was outside the store walls, it remained on the store’s property, in a
fenced area where building supplies were kept and displayed to the public. Borem called
law enforcement, and was told to “stake out” the television set.
At around 2:30 a.m., a car drove around the store and parked in a nearby
apartment complex. A man and a woman left the car and went to the fence’s gate.
Borem heard the sound of the gate’s chain being sawed off, and at around 4:00 a.m.,
heard the gate slide open.
Defendant pleaded guilty to second degree burglary (§ 459) and was sentenced to
a two-year state prison term.
In August 2015, defendant filed a section 1170.18 petition to redesignate the
burglary conviction to a misdemeanor. The trial court summarily denied the petition.
DISCUSSION
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 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
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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 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 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 have elapsed, and
we have 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.
/s/
Duarte, J.
We concur:
/s/
Nicholson, Acting P. J.
/s/
Renner, J.
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