People v. Shorter CA2/2

Filed 8/25/20 P. v. Shorter CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301955
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA054743)
v.
ANTHONY SHORTER,
Defendant and Appellant.
THE COURT:
In 2003, defendant and appellant Anthony Shorter was
convicted of three counts of first degree burglary, three counts of
receiving stolen property, and one count of theft. Three prior
serious felony allegations and “strike” allegations were also found
true. Defendant’s total sentence was 90 years to life. Defendant
appealed the judgment, and we affirmed. (People v. Shorter
(July 7, 2005, B174700) [nonpub. opn.].)
On February 27, 2015, defendant filed a petition for recall
and resentencing pursuant to Penal Code section 1170.18,
subdivisions (a) and (f).1 The trial court granted his petition in
part; his total prison sentence remained 90 years to life.
Defendant appealed, arguing that his theft conviction under
section 484e, subdivision (d) [theft of access cards or account
information], must be reduced to a misdemeanor pursuant to
Proposition 47. We rejected his argument and affirmed the
judgment, concluding that section 484e did not fall within the
scope of section 1170.18. (People v. Shorter (Mar. 8, 2016,
B263972) [nonpub. opn.].)
The California Supreme Court granted defendant’s petition
for review (S233177), and on August 16, 2017, the matter was
transferred back to the Court of Appeal for reconsideration in
light of People v. Romanowski (2017) 2 Cal. 5th 903.
On September 27, 2017, we remanded defendant’s case to
the trial court to conduct an evidentiary hearing to determine the
value of the stolen access card information and then to
“determine if resentencing [defendant] would . . . pose an
unreasonable risk to public safety.”
On February 26, 2018, the trial court held a resentencing
consideration hearing and reduced defendant’s section 484e,
subdivision (d), conviction to a misdemeanor. In so ruling, the
trial court noted that “the current sentencing as to counts 1 and 2
[and 6] and any other enhancements . . . are not affected by the
appellate court opinion or the remittitur. The only issue dealt
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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with count 5,” which was the section 484e, subdivision (d),
offense.
“On September 30, 2018, the Governor signed Senate Bill
1393 which, effective January 1, 2019, amend[ed] sections 667[,
subdivision] (a) and 1385[, subdivision] (b) to allow a court to
exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. [Citation.]” (People v. Garcia
(2018) 28 Cal. App. 5th 961, 971.) The newly amended statutes
prompted defendant to file a motion to strike or dismiss his prior
serious felony enhancements pursuant to sections 667,
subdivision (a)(1), and 1385.
The trial court summarily denied his motion on
September 19, 2019, with a notation to “see previous denials.”
Defendant timely filed a notice of appeal on October 21,
2019.
Counsel was appointed to represent defendant in
connection with this appeal. After examination of the record,
counsel filed an “Opening Brief” in which no arguable issues were
raised. Counsel wrote to defendant, “explaining [his] evaluation
of the record and [the] filing of the” brief that raised no arguable
issues. He also provided defendant with “a copy of the brief and
the transcripts and the record on appeal and . . . informed him of
his right to file a supplemental brief to bring to the court’s
attention any issues that he believes may be addressed by this
court.”
On June 15, 2020, defendant filed a supplemental brief.
Although largely illegible, it appears that defendant is claiming
that because the trial court reduced his section 484e, subdivision
(d), conviction to a misdemeanor, it was required to strike or
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dismiss his prior serious felony enhancements pursuant to
section 667, subdivision (a)(1).
We have examined the entire record2 and we are satisfied
that defendant’s appellate counsel has fully complied with his
responsibilities and that no arguable issues exist. (People v.
Wende (1979) 25 Cal. 3d 436, 441 (Wende).) We are not convinced
by the argument raised in defendant’s supplemental brief. As
noted in our prior opinions and by the trial court, defendant was
convicted of several crimes; only his offense in count 5 was
implicated in our prior decision, and the trial court only
resentenced defendant on that one count. As the remainder of
his sentence stands, so too do the enhancements.
Defendant has, by virtue of counsel’s compliance with the
Wende procedure and our review of the record, received adequate
and effective appellate review of the judgment and sentence
entered against him in this case. (Smith v. Robbins (2000) 528
U.S. 259, 278; People v. Kelly (2006) 40 Cal. 4th 106, 123–124.)
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2 We hereby grant defendant’s request for judicial notice and
have considered those documents as part of our independent
review.
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