Filed 2/16/16 P. v. Thornton CA4/1
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                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                     DIVISION ONE

                                             STATE OF CALIFORNIA



THE PEOPLE,                                                        D068949

         Plaintiff and Respondent,
                                                                   (Super. Ct. No. SCE295036)
         v.

WILLIAM CECIL THORNTON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.


         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         In 2010, William Cecil Thornton pleaded guilty to one count each of robbery and

petty theft and admitted two prior prison term enhancements. The trial court sentenced

him to three years in prison. On our own motion, we take judicial notice that Thornton

appealed from the judgment. (Evid. Code, § 452, subd. (d)(1).) While that appeal was
pending, Thornton filed a writ of habeas corpus. The trial court concluded that Thornton

had received ineffective assistance when defense counsel allowed him to plead guilty to

both robbery and the lesser included offense of petty theft. The trial court modified

Thornton's sentence by vacating the petty theft conviction and the sentence for that

conviction. Thereafter, we affirmed Thornton's judgment. (People v. Thornton (Dec. 8,

2010, D056846) [nonpub. opn.].)

       In 2015, Thornton filed a petition, in propria persona, to reduce his robbery

conviction to a misdemeanor under Penal Code section 17 and Proposition 47, the Safe

Neighborhoods and Schools Act, Penal Code section 1170.18. (Undesignated statutory

references are to the Penal Code.) (See People v. Rivera (2015) 233 Cal.App.4th 1085,

1089 (Rivera).) The trial court denied the petition because Thornton had a disqualifying

conviction under section 290. Thornton timely appealed.

                                      DISCUSSION

       Appointed appellate counsel filed a brief summarizing the facts and proceedings

below. He presented no argument for reversal, but asked this court to review the record

for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.

California (1967) 386 U.S. 738 (Anders). Counsel advised defendant of his right to file a

supplemental brief within 30 days of the date of filing of the opening brief. We also

granted Thornton permission to file a brief on his own behalf. Thornton filed a document

entitled a "supplemental brief," but included therein a petition for writ of habeas corpus

alleging he received ineffective assistance when counsel allowed him to plead guilty to

both robbery and petty theft as petty theft is a lesser included offense of robbery. By


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order dated February 4, 2016, we struck the supplemental brief and directed the clerk of

the court to treat the document as a petition for writ of habeas corpus and assign it a

separate case number. On our own motion, we take judicial notice of all documents filed

in this related habeas petition, case number D069702. (Evid. Code, § 452, subd. (d)(1).)

We deny the petition by separate order.

       Proposition 47 created a resentencing provision, codified at section 1170.18,

which provides that a person currently serving a sentence for certain designated felonies

may petition for recall of the sentence to reduce the felony to a misdemeanor. (Rivera,

supra, 233 Cal.App.4th at p. 1092.) "Robbery is 'the felonious taking of personal

property in the possession of another, from his person or immediate presence, and against

his will, accomplished by means of force or fear.' (§ 211.) It is the use of force or fear

which distinguishes robbery from grand theft [or petty theft] from the person." (People v.

Mungia (1991) 234 Cal.App.3d 1703, 1707.) Section 1170.18 does not list section 211,

the offense at issue, as one of the code sections amended or added by Proposition 47.

Accordingly, the trial court properly denied Thornton's petition for recall of sentence

because Thornton is not statutorily eligible for relief under section 1170.18.

       Finally, for a conviction to be subject to reduction to a misdemeanor under section

17, subdivision (b), the charging statute, or statute prescribing punishment, must provide

that the crime is a "wobbler," that is, punishable either by imprisonment in state prison or

county jail. (See § 17, subd. (b)(3); People v. Superior Court (Alvarez) (1997) 14 Cal.4th

968, 974 & fn. 4.) Since section 213 makes robbery punishable by imprisonment in state




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prison, and does not provide for a fine or imprisonment in the county jail, it is not a

wobbler.

       In addition to considering Thornton's submission, we examined the entire record to

determine if there are any other arguable issues on appeal. Based on that independent

review, we have determined there are no arguable issues on appeal. Competent counsel

has represented Thornton on this appeal.

                                      DISPOSITION

       The order is affirmed.


                                                                                 McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


O'ROURKE, J.




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