Filed 9/2/16 P. v. Harrell 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                                  C079292

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62049800)

         v.

JOSHUA NEIL HARRELL,

                   Defendant and Appellant.




         “On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified
at Penal Code section 1170.18,1 which provides that a person currently serving a sentence
for certain designated felonies may petition for recall of the sentence to reduce felonies to




1   Undesignated statutory references are to the Penal Code.

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misdemeanors. Defendant Joshua Neil Harrell appeals from an order denying in part his
petition to reduce his commitment convictions from felonies to misdemeanors.
       Defendant’s motion was denied in part upon a determination that he was not
eligible for relief as to two of the commitment offenses because they were violations of
subdivision (d) of section 368, theft or embezzlement or identity theft from elder, and
subdivision (a) of section 530.5, identity theft, neither of which is among the eligible
offenses listed in section 1170.18.2
       Counsel was appointed to represent defendant on appeal. Counsel filed an
opening brief setting forth the facts of the case and requesting this court to review the
record and determine whether there were any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief.
       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 Proposition 47 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. Kisling (2015) 239 Cal.App.4th 288; People v. Serrano (2012)
211 Cal.App.4th 496; 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.



2 At least in the absence of any showing that the value of the property did not exceed
$950. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136-138; People v. Sherow
(2015) 239 Cal.App.4th 875, 880; §§ 490.2, subd. (a), 1170.18, subd. (a).)

                                              2
Superior Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of Supreme
Court authority to the contrary, we will adhere to Wende in the present case, where
counsel has already undertaken to comply with Wende requirements and defendant has
filed a supplemental brief by which he argues that he was not competent to enter a plea to
the commitment offenses and that he did not voluntary and intelligently enter into the
plea.
        Defendant’s supplemental brief presents challenges to the validity and
constitutionality of the commitment judgment. “ ‘It is settled that the right of appeal is
statutory and that a judgment or order is not appealable unless expressly made so by
statute.’ [Citations.]” (People v. Mena (2012) 54 Cal.4th 146, 152.) Appeal of the order
denying relief under Proposition 47 is authorized by subdivision (b) of section 1237, as
an order made after judgment, affecting the substantial rights of defendant. (Cf. Teal v.
Superior Court (2014) 60 Cal.4th 595, 601.) However, that statutorily conferred
appellate jurisdiction is limited to review of the decision to deny relief under Proposition
47. To convert that limited grant of jurisdiction to effectuate appellate review of the
commitment judgment would in substance allow a belated motion to vacate that
judgment, thereby violating the proscription on so “ ‘bypass[ing] or duplicat[ing] appeal
from the judgment itself.’ [Citation.]” (People v. Totari (2002) 28 Cal.4th 876, 882.)
Defendant’s challenges to the commitment judgment are not cognizable on this appeal of
the order denying relief under Proposition 47.3
        Having undertaken an examination of the record, we find no arguable error that
would result in a disposition more favorable to defendant.




3  Defendant’s contentions cannot be reasonably construed to be claims that the sentence
is “unauthorized,” and thereby within the “narrow exception” permitting the claims to be
“raised at any time.” (Cf. People v. Scott (1994) 9 Cal.4th 331, 354; People v. Welch
(1993) 5 Cal.4th 228, 235.)

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                                  DISPOSITION
     The judgment (order) is affirmed.



                                                RAYE   , P. J.




We concur:



        ROBIE            , J.




        MAURO            , J.




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