Filed 5/10/16 P. v. An 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C079753

                   Plaintiff and Respondent,                                     (Super. Ct. No. 05F07414)

         v.

DAVID AN,

                   Defendant and Appellant.




         Defendant David An appeals from the trial court’s denial of his petition for
resentencing pursuant to Penal Code section 1170.18.1 Appointed counsel for defendant
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).) We affirm the order.
         We do not recite the facts of defendant’s crime as they are not in the record.




1   Undesignated statutory references are to the Penal Code.

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         In 2009 defendant pleaded no contest to assault with a firearm (§ 245, subd. (a)(2))
and admitted personal use of a firearm (§ 12022.5, subd. (a)(1)), personal infliction of
great bodily injury (§ 12022.7, subd. (a)), and gang enhancements (§ 186.22,
subd. (b)(1)). He was sentenced to a stipulated term of 14 years in state prison.
         Defendant subsequently filed a section 1170.18 petition for resentencing, which
the trial court denied because the crime was ineligible for relief.
         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 under 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 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.
         Defendant’s supplemental brief asserts that the trial court should have granted his
petition because Proposition 47 is to be construed broadly and it does not specify which
wobblers qualify for resentencing.
         The passage of Proposition 47 created section 1170.18, which states in pertinent
part: “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 [it] been in effect at the time of the offense may petition for a recall

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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.” (§ 1170.18, subd. (a); see Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
       Defendant’s crime of assault with a firearm is not among those referenced in
section 1170.18 and is therefore ineligible for resentencing. The cases cited by defendant
do not support his contrary contention. In re Estrada (1965) 63 Cal.2d 740 held that if an
amended statute mitigates punishment, the amendment will operate retroactively to
impose the lighter punishment unless there is a saving clause. (Id. at p. 748.) People v.
Gutierrez (2014) 58 Cal.4th 1354 held that section 190.5, subdivision (b), which
addressed life terms for 16- and 17-year-old offenders, did not violate the Eighth
Amendment, as interpreted in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455,
183 L.Ed.2d 407]. (Gutierrez, at pp. 1360-1361.) Neither case supports extending
Proposition 47 to cases not enumerated in section 1170.18.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment (order) is affirmed.


                                                            RAYE              , P. J.

We concur:


      BLEASE                , J.


      NICHOLSON             , J.



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