Filed 10/13/15 P. v. Preyer CA4/3




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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G051930

                   v.                                              (Super. Ct. No. 98CF0883)

HOMER LEE PREYER,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Thomas A. Glazier, Judge. Affirmed.
                   John F. Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                              *              *               *
              Homer Lee Preyer appeals from an order denying his petition to recall a
sentence imposed in 1998 for second degree robbery, pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act (Pen. Code, § 1170.18; all statutory citations are to this
code unless otherwise designated). Preyer appealed, and his appointed counsel filed a
brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende).
Counsel summarized the facts and procedural history of the case, but raised no specific
issues, and asked this court to review the record to determine whether there were any
arguable matters. Counsel submitted a declaration stating he thoroughly reviewed the
record. Counsel advised Preyer he would file a Wende brief, and he was providing him
with a copy. He advised Preyer he could personally file a supplemental brief on his own
behalf raising any issues he believed worthy of consideration, and sent Preyer a copy of
the appellate record. Counsel did not argue against his client or declare the appeal was
frivolous. He advised Preyer he could ask the court to relieve him as counsel. We gave
Preyer 30 days to file a supplemental brief, and Preyer submitted two supplemental
briefs. We have reviewed the record and Preyer’s supplemental briefs, found no arguable
issues, and therefore affirm the order.
                        FACTUAL AND PROCEDURAL BACKGROUND
              In May 1998, the Orange County District Attorney filed an information
alleging Preyer committed second degree robbery (§§ 211, 212.5, subd. (c), 213, subd.
(a)(2)) and grand theft (§ 487, subd. (c)) on March 25, 1998. The information further
alleged Preyer had suffered nine prior convictions qualifying as strikes under the Three
Strikes law (§§ 667, subds. (d) & (e)(2); 1170.12), and two prior convictions triggering
five-year enhancements under section 667, subdivision (a)(1). In September 1998, a jury
found Preyer guilty of second degree robbery, and the trial court found the prior
conviction allegations true. In February 1999, the court imposed a sentence of 35 years
to life.



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              In December 2014, Preyer filed in propria persona a petition to have the
felony conviction designated as a misdemeanor (§ 1170.18). The court addressed the
petition at a hearing in April 2015. Preyer appeared in court representing himself. The
district attorney asserted Preyer was statutorily ineligible for relief. The court agreed,
and denied the petition.
                                        DISCUSSION
              Following Wende guidelines, we have reviewed the appellate record and
appellate counsel’s brief, including counsel’s suggestion to consider whether the trial
court erred when it found Preyer ineligible to have his sentence recalled, and discern no
arguable issue. In supplemental briefs filed September 25 and October 6, 2015 (see
People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised
personally by appellant in a Wende proceeding]), Preyer suggests the trial court erred by
failing to appoint counsel to assist him with the petition. He cites no statutory or
decisional authority for this position. Preliminarily, he did not request appointment of
counsel in the trial court. In any event, under federal constitutional law the state
generally has no obligation to provide counsel to a defendant beyond the first appeal.
(Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [Supreme Court has never held
prisoners have a constitutional right to counsel when mounting collateral attacks upon
their convictions because right to appointed counsel extends only to the first appeal of
right]; Johnson v. Avery (1969) 393 U.S. 483, 488.) The California Supreme Court has
recognized the right to appointed counsel for indigents where the proceeding at issue is
“‘regarded as part of the proceedings in the criminal case’” and an “established remedy
for challenging a criminal conviction . . . .” (People v. Shipman (1965) 62 Cal.2d 226,
231 (Shipman).) Shipman noted, however, “the filing of adequately detailed factual
allegations stating a prima facie case” for relief is “a condition to appointing
counsel . . . .” (Id. at p. 232 [“in the absence of adequate factual allegations stating a



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prima facie case, counsel need not be appointed either in the trial court or on appeal from
a summary denial of relief in that court”].)
               Section 1170.18 provides a statutory remedy for “[a] person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under [Proposition 47] had th[e] act been in
effect at the time of the offense.” (§ 1170.18, subd. (a).) Under section 1170.18,
subdivision (a), a person “may petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.” (See T.W. v. Superior Court (2015)
236 Cal.App.4th 646 [Proposition 47 intended to reduce penalties for certain nonserious
and nonviolent property and drug offenses from wobblers or felonies to misdemeanors].)
               Section 1170.18, subdivision (b), provides that “[u]pon receiving a petition
under subdivision (a), the court shall determine whether the petitioner satisfies the criteria
in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . ,
unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) “The procedure
under section 1170.18 may be considered comparable to a habeas proceeding where the
petitioner’s right to counsel does not attach until the court determines petitioner has made
a prima facie case for relief and issues an order to show cause. (See In re Clark (1993)
5 Cal.4th 750, 779 [‘[I]f a petition attacking the validity of a judgment states a prima
facie case leading to issuance of an order to show cause, the appointment of counsel is
demanded by due process concerns’].)” (Couzens & Bigelow, the Safe Neighborhoods
and School Act (rev. Feb. 3, 2015) p. 67; < http://www.courts.ca.gov/documents/Prop-
47-Information.pdf> (Couzens & Bigelow).)

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              Here, the petition expressly alleged Preyer had been convicted of second
degree robbery, a serious (§ 1192.7, subd. (c)(19)) and violent felony (§ 667.5, subd.
(c)(9)) not enumerated in section 1170.18, subdivision (a). Accordingly, the petition did
not contain factual allegations stating a prima facie case for relief under section 1170.18,
subdivision (b). The trial court did not err in failing to appoint counsel for Preyer. (See
Couzens & Bigelow, supra, at p. 67 [“it does not appear the defendant is entitled to
counsel for the initial preparation of the petition or in connection with its initial
screening.”].) We conclude there are no arguable issues within the meaning of People v.
Wende, supra, 25 Cal.3d 436.
                                              III
                                         DISPOSITION
              The postjudgment order is affirmed.




                                                    ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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