Filed 3/24/16 P. v. Smith CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




THE PEOPLE,                                                          B265037
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. A704421-01)

         v.

JOSEPH EARL SMITH,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County.
David B. Gelfound, Judge. Affirmed.
         Joseph Earl Smith, in pro. per.; Paul R. Kraus, under appointment by the
Court of Appeal, for Defendant and Appellant.
         No appearance for Respondent.
      In 1986, appellant Joseph Earl Smith pled guilty to one count of robbery
(Pen. Code, § 211).1 On March 26, 2015, he filed a petition asking that his felony
sentence be redesignated a misdemeanor under section 1170.18.2 On May 29,
2015, the court denied the petition, stating in its order that due to the nature of
appellant’s offense, he “d[id] not qualify for the requested relief.” Appellant filed
a notice of appeal.


                                    DISCUSSION
      After review of the record, appellant’s court-appointed counsel filed an
opening brief asking this court to review the record independently pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende). On December 14, 2015, we sent
a letter to appellant’s last known address, advising him that he had 30 days within
which to submit by brief or letter any contentions or argument he wished this court
to consider. We received a response in which appellant contended robbery is one
of the offenses eligible for resentencing and redesignation under Proposition 47.
      This court has examined the entire record, and is satisfied that no arguable
issues exist. Section 1170.18 “makes certain drug- and theft-related offenses
misdemeanors” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091), and
“provides a mechanism by which a person currently serving a felony sentence for
an offense that is now a misdemeanor, may petition for a recall of that sentence
and request resentencing in accordance with the offense statutes as added or
amended by Proposition 47. [Citation.]” (T.W. v. Superior Court, supra, 236
Cal.App.4th at p. 650, fn. 2.) It also permits “persons who have completed felony

1
      Undesignated statutory references are to the Penal Code.
2
       Section 1170.18 was enacted as part of the initiative known as Proposition 47,
“‘the Safe Neighborhoods and Schools Act,’” and governs petitions for resentencing
under that act. (See T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 650, fn. 2.)

                                            2
sentences for offenses that would now be misdemeanors under Proposition 47” to
“file an application with the trial court to have their felony convictions ‘designated
as misdemeanors.’” (People v. Rivera, supra, 233 Cal.App.4th at p. 1092, quoting
§ 1170.18, subd. (f).) Proposition 47 “added sections 459.5 [shoplifting], 490.2
[petty theft] and 1170.18 to the Penal Code; amended sections 473 [forgery related
to checks, bonds, bank bills, notes, etc.], 476a [non sufficient funds checks, drafts
or bank orders], 496 [receipt of stolen property] and 666 [petty theft with a prior]
of the Penal Code; and amended Health and Safety Code sections 11350
[possession of designated controlled substances], 11357 [possession on school
grounds] and 11377 [unauthorized possession of controlled substance].” (People
v. Shabazz (2015) 237 Cal.App.4th 303, 308; accord, People v. Rivera, supra, 233
Cal.App.4th at p. 1091; see § 1170.18, subd. (a).) Resentencing and redesignation
are available only where a defendant has been convicted of one of the specified
offenses. Appellant is ineligible for redesignation because he was convicted of
robbery (§ 211), which is not one of the offenses within the scope of Proposition
47.
      Appellant refers us to section 666, which contains the word “robbery” and
was amended by Proposition 47. The amendment merely modified the
circumstances under which the trial court may impose a felony sentence on a
defendant convicted of petty theft with a prior; it did not result in robbery
becoming one of the offenses for which resentencing or redesignation is permitted.
(See People v. Murphy (2001) 25 Cal.4th 136, 155 [“Section 666 . . . establishes an
alternate and elevated penalty for a petty theft conviction when a recidivist
defendant has served a prior term in a penal institution for a listed offense.”].)
Because appellant’s prior conviction was for robbery the trial court properly found
him ineligible for relief.


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        Appellant has, by virtue of counsel’s compliance with the Wende procedure
and our review of the record, received adequate and effective appellate review of
the order denying his petition in this case. (Smith v. Robbins (2000) 528 U.S. 259,
278.)


                                   DISPOSITION
        The order denying the petition is affirmed.
        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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