Filed 8/12/16 P. v. Anthony 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                            C079739

         v.                                                          (Super. Ct. Nos. 97F3057, 93F4813)

MICHAEL DAVID ANTHONY,

                   Defendant and Appellant.


         In this appeal from the denial of Penal Code section 1170.18 petitions for
resentencing1, appointed counsel for defendant Michael David Anthony has filed an
opening brief that sets forth the facts of the case and asks that we review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)




1      Proposition 47, as approved by voters, General Election November 4, 2014,
effective November 5, 2014, codified as section 1170.18 of the Penal Code (Proposition
47). Undesignated statutory references are to the Penal Code.

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25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm the judgment.
                                     BACKGROUND
       We omit the facts of defendant’s crimes as they are unnecessary to resolve this
appeal.
       On November 2, 1993, defendant pleaded guilty to second degree robbery (§ 211)
in case No. 93-4813. He was sentenced to serve a five-year state prison term.
       On October 2, 1997, defendant pleaded guilty to second degree robbery and
admitted two strike allegations (§§ 667, subds. (b)-(d), 1170.12) in case No. 93-3057. He
was sentenced to serve 25 years to life.
       Defendant subsequently filed section 1170.18 petitions in both cases, both of
which the trial court denied without a hearing.
                                      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
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, supra, 25 Cal.3d 436
in the present case, where counsel has already undertaken to comply with Wende
requirements and defendant has filed a supplemental brief.

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       In his supplemental brief, defendant contends that (1) the trial court violated due
process by denying his petitions without hearing his motion to disqualify the Shasta
County District Attorney for conflict of interest, and (2) the summary denial of his
petitions violated equal protection.
       The passage of Proposition 47 created section 1170.18, which provides: “A
person who has completed his or her sentence for a conviction, whether by trial or plea,
of a felony or felonies who would have been guilty of a misdemeanor under this act had
this act been in effect at the time of the offense, may file an application before the trial
court that entered the judgment of conviction in his or her case to have the felony
conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f); see Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
Defendant’s robbery offenses are not among the crimes subject to resentencing.
(§ 1170.18, subd. (a).)
       Defendant’s first contention is based on a statement in both petitions that he would
be submitting a motion to disqualify the district attorney for Shasta County, Steve
Carlton, because Carlton represented defendant in case No. 97-F3057. There is no
separate disqualification motion in the record. Since defendant did not file a motion to
disqualify in the trial court, his contention is forfeited on appeal. (People v. Leonard
(2014) 228 Cal.App.4th 465, 481-482.)
       As to defendant’s second contention, the summary denial of his petitions does not
violate equal protection. Defendant’s two robbery convictions are serious and violent
felonies (§§ 667.5 subd. (c)(9), 1192.7, subd. (c)(19)). Excluding robbery convictions
from resentencing is within the stated purpose of Proposition 47. (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 [purpose of Proposition 47
“to ensure that prison spending is focused on violent and serious offenses [and] to
maximize alternatives for nonserious, nonviolent crime”].) Determining certain crimes
are more serious and therefore deserving of greater punishment does not violate equal

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protection. “It is both the prerogative and the duty of the Legislature [or voters] to define
degrees of culpability and punishment, and to distinguish between crimes in this regard.”
(People v. Turnage (2012) 55 Cal.4th 62, 74.) “Courts routinely decline to intrude upon
the ‘broad discretion’ ” such policy judgments entail. (Ibid.)
       Having undertaken an examination of the record, we find no arguable error that
would result in a disposition more favorable to defendant.
                                   DISPOSITION
       The judgments are affirmed.



                                                                 /s/
                                                  HOCH, J.



We concur:



         /s/
BLEASE, Acting P. J.



         /s/
DUARTE, J.




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