Filed 5/25/16 P. v. Reviere CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064950

v.                                                                      (Super.Ct.No. FSB12115)

RAYMOND KEITH REVIERE,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                      FACTUAL AND PROCEDURAL HISTORY

       A.      PROCEDURAL HISTORY

       On September 24, 1996, in case No. FSB12115, an information charged defendant

and appellant Raymond Keith Reviere with second degree robbery under Penal Code1

section 211, with two enhancements for personal use of a firearm under section 12022.5,

subdivision (a), and two prior robbery convictions under sections 1170.12, subdivisions

(a) through (d) and 667, subdivisions (b) through (i).

       On March 21, 1997, in case No. FSB13691, another information charged

defendant with one count of robbery under section 211, with an enhancement for personal

use of a weapon (knife), and two prior robbery convictions under sections 1170.12,

subdivisions (a) through (d) and 667, subdivisions (b) through (i). On March 18, 1997,

this case was consolidated into case No. FSB12115.

       On January 30, 1998, a jury found defendant guilty of one count of second degree

robbery, but not guilty of personal use of a firearm. On April 19, 1998, the court

sentenced defendant to an indeterminate term of 25 years to life under the “Three Strikes”

law. We affirmed the conviction on appeal.2

       On September 16, 2015, defendant filed an in propria persona petition for

resentencing under section 1170.18. On October 2, 2015, the trial court denied the

petition. It found that the second degree robbery conviction was not a felony that

       1   All statutory references are to the Penal Code unless otherwise specified.

       2 On April 12, 2016, we granted defendant’s request for judicial notice of our
opinion in case No. E022293.


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qualified for misdemeanor resentencing. On November 30, 2015, defendant filed a

timely notice of appeal.

        B.     FACTUAL HISTORY

        The following facts are taken from our unpublished opinion in case No. E022293:

Defendant entered a convenience store on the evening of August 30, 1996, around 9:45

p.m. He put a beer on the counter. He then reached under his shirt with his right hand

and pointed what the store clerk believed was a gun at the clerk. He said repeatedly,

“you know what I want.” The clerk also thought defendant said, “I don’t want to hurt

you.”

        The clerk opened the cash register and gave defendant money, while defendant

simultaneously reached over and took some money. The loss was approximately $100.

A jury convicted defendant of second degree robbery but did not find true an

enhancement for person use of a gun.

                                        DISCUSSION

        After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts, and potential arguable issues; and requesting this court

to undertake a review of the entire record. We offered defendant an opportunity to file a

personal supplemental brief, but he has not done so.

        In the brief, defense counsel contends that “[a] potential issue in this case is

whether appellant’s 1999 second degree burglary conviction could be reduced to


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shoplifting under section 459.5 or petty theft under 490.2, because he did not use a

weapon to accomplish the taking of the $100 from the convenience store.”

       Among the crimes reduced to misdemeanors by Proposition 47 rendering the

person convicted of the crime eligible for resentencing, are: shoplifting where the

property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property

where value of the money, labor, real or personal property taken does not exceed $950

(§490.2); and receiving stolen property where the property value does not exceed $950

(§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list section 211, the offense at

issue in the present appeal, as one of the code sections amended or added by Proposition

47. (§ 1170.18, subd. (a).) In other words, Proposition 47 left the offense of second

degree robbery unchanged, and that offense is a felony. (§ 211.) Thus, defendant is

simply not statutorily eligible for relief under section 1170.18.

       We also note that “[r]obbery 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.) Moreover, Proposition 47 lists a specific

series of crimes that qualify for reduction to a misdemeanor, separated with the

conjunction “or” and ending with the phrase “as those sections have been amended or

added by this act.” (§ 1170.18, subd. (a).) Again, that list does not include section 211.

“The legislative inclusion of the . . . crimes . . . necessarily excludes any other[s]”

(People v. Gray (1979) 91 Cal.App.3d 545, 551.) Based on the statutory language, the


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court properly denied defendant’s petition to reduce his robbery conviction to a

misdemeanor.

      Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                       DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                       MILLER
                                                                               Acting P. J.


We concur:


CODRINGTON
                                  J.


SLOUGH
                                  J.




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