People v. Powers CA1/3

Filed 9/28/20 P. v. Powers CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A160386
v.
ANTHONY MARCELL POWERS, (Napa County
Super. Ct. No. CR182618)
Defendant and Appellant.
Anthony Marcell Powers appeals from the trial court’s refusal to reduce
his felony conviction for misuse of personal identifying information under
Penal Code section 530.5, subdivision (a) to a misdemeanor. His court-
appointed counsel has filed a brief seeking our independent review of the
record pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende) to
determine whether there are any arguable issues on appeal. There are no
issues requiring further review. We affirm.
DISCUSSION
The following facts and procedural discussion are taken from our
opinion in Powers’s appeal of his conviction and his related petition for writ of
habeas corpus.
“On October 26, 2016, Powers’s car was pulled over by American
Canyon police when he failed to proceed through an intersection after the
light changed to green. He appeared to be inebriated, his license was
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suspended or revoked, and his wallet contained numerous identification
cards, drivers’ licenses, and credit cards belonging to six different individuals.
One of those individuals later told police that one credit card found
in Powers’s possession had been stolen and used at a Kentucky Fried Chicken
near the scene of the theft. A baggy containing methamphetamine, a glass
smoking pipe and an open bottle of vodka were found in the car. Powers had
a 30-year criminal history, was on probation in Solano and Sacramento
counties, and would possibly serve a lengthy sentence in his Sacramento
cases.
“The Napa County district attorney charged Powers with one count of
felony identity theft (Pen. Code § 530.5, subd. (a)), six counts of misdemeanor
identifying information theft ([Pen. Code] § 530.5, subd. (c)(1)), possession of
a controlled substance (Health & Saf. Code, §11377, subd. (a)), possession of
an injection/ingestion device (Health & Saf. Code, § 11364, subd. (a), and
driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)).
The complaint alleged a prior serious or violent felony conviction pursuant to
[Penal Code] section 667, subdivisions (b) through (i).
“On April 27, 2017, pursuant to a negotiated disposition, Powers
entered a no contest plea to identity theft and possession of a controlled
substance, admitted the prior conviction allegation, and was immediately
released on his own recognizance pending sentencing. The plea bargain
contemplated a two-year prison sentence, to be increased to six years if
Powers failed to appear or committed any new offense.
“On May 30, Powers failed to appear for sentencing. The court revoked
his own-recognizance release and issued a bench warrant.
“On November 1, 2017, Powers moved to withdraw his plea. He
asserted his plea was involuntary because he had cancer and was on pain
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medication at the time, did not appreciate the risk of a six-year sentence,
entered the plea against his attorney’s advice, and ‘[t]he prospect of
immediate release and influence of pain medication overcame the exercise of
my free judgment.’ On January 3, 2018, Powers withdrew the motion. He
was sentenced in accord with the plea agreement to six years in prison,
consisting of the aggravated three-year term for identity theft doubled due to
the prior strike conviction, plus a concurrent 100 days for the controlled
substance misdemeanor.”
We dismissed the appeal and denied the petition for writ of habeas
corpus. (People v. Powers, A153361, A155225, filed May 21, 2019.)
On May 18, 2020, Powers petitioned to have his felony conviction
reduced to a misdemeanor under Penal Code section 1170.18 (Proposition 47).
The trial court correctly denied the petition on June 11, 2020, citing People v.
Jiminez (2020) 9 Cal. 5th 53, 61-66 [convictions under Penal Code section
530.5 are not eligible for reduction to misdemeanors under section 1170.18.].)
Powers’s counsel has represented that he advised Powers of his
intention to file a Wende brief in this case and of Powers’s right to submit
supplemental written argument on his own behalf. He has not done so.
Powers has also been advised of his right to request that counsel be relieved.
There was no error, and our review of the entire record reveals no issue
requiring further briefing.
DISPOSITION
The order denying the petition is affirmed.
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_________________________
Siggins, P.J.
WE CONCUR:
_________________________
Fujisaki, J.
_________________________
Petrou, J.
People v. Powers, A160386
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