Filed 2/24/16 P. v. Chaidez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Respondent,                                              C078625

         v.                                                                (Super. Ct. Nos. 88720, 88721)

ROBERTO CHAIDEZ,

                   Defendant and Appellant.


         Appointed counsel for defendant Roberto Chaidez asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm the judgment.
         In 1989, in cases No. 88720 and 88721, a jury convicted defendant Roberto
Chaidez of two counts of receiving stolen property (Pen. Code, § 4961) and one count
each of first degree burglary (§ 459), child endangerment (§ 273a), vehicle theft (Veh.


1        Undesignated statutory references are to the Penal Code.

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Code, § 10851), and leaving the scene of an accident (Veh. Code, § 20002, subd. (a)).
(People v. Chaidez (Nov. 9, 2001, C037970) [nonpub. opn.].) The jury found true
allegations defendant committed a felony while released from custody (§ 12022.1) and
had sustained a prior serious felony conviction (§ 667, subd. (a)). (People v. Chaidez,
supra, C037970.) Defendant was sentenced to serve 15 years eight months in state
prison. The judgment was affirmed on appeal. (People v. Chaidez, supra, C037970.)
       In early 2015, defendant filed a petition for “re-designation of sentence” in both
cases. Both petitions sought to reduce certain felony convictions to misdemeanors
pursuant to Proposition 47.
       Case No. 88720:
       On February 6, 2015, the trial court denied defendant’s petition due to ineligibility
based on current convictions. Defendant filed a motion for hearing and reconsideration
of the trial court’s denial of resentencing under Proposition 47. On March 3, 2015, the
trial court determined the items in the two counts of receiving stolen property did not
exceed $950 in value and designated those convictions to be misdemeanors.
       Case No. 88721:
       On January 16, 2015, the trial court denied defendant’s petition due to ineligibility
based on current convictions. Defendant filed a motion for hearing and reconsideration
of the trial court’s denial of resentencing under Proposition 47. On March 3, 2015, the
trial court denied defendant’s motion for hearing and reconsideration.
       On February 19, 2015, defendant, in propria persona, filed a notice of appeal in
both cases “after resentence of acquittal judgment” from the trial court’s judgment of
January 16, 2015.2



2      Based on the date of the judgment being appealed, it appears defendant is
appealing from the trial court’s denial of his petition in case No. 88721. We note the
notice of appeal was filed after the trial court’s first order denying the petition and before

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       Defendant completed serving his sentence in cases No. 88720 and 88721. He is
currently serving a 60-years-to-life prison term for an unrelated conviction in San Diego
County.
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief.
       Whether the protections afforded by Wende, supra, 25 Cal.3d 436, 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 Supreme
Court authority to the contrary, we believe it prudent to adhere to Wende in the present




the trial court’s denial of defendant’s motion for hearing and reconsideration. For
purposes of this opinion, we construe the appeal to be from the subsequent order as well.
(Rules of Court, rule 8.100(a)(2) [“notice of appeal must be liberally construed”].)

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case, where counsel has already undertaken to comply with Wende requirements and
defendant has filed a supplemental brief.3
       Defendant’s supplemental brief raises four contentions. He first asserts the trial
court had a duty to guarantee the “sentence calculation is not greater length in time.”
While a petition for redesignation and resentencing cannot result in a longer sentence for
defendant (§ 1170.18, subd. (e)), defendant had already served his term by the time he
filed his petition, making resentencing unwarranted.
       Defendant next contends the trial court had a duty to conduct a hearing upon
request. Where a defendant has already served his or her sentence for a crime covered by
Proposition 47, a court may grant or deny a petition to redesignate the offense a
misdemeanor without a hearing, unless the applicant requests the hearing. (§ 1170.18,
subd. (h).) Since the trial court granted defendant’s request as to the only crimes covered
by Proposition 47 (see § 1170.18, subd. (a)), he was not prejudiced by the court’s
decision to make the order without a hearing.
       Defendant also contends the trial court had a duty to enforce the guarantees of
subdivisions (e) and (h) of section 1170.18. This contention does not need to be
addressed because the merits of subdivisions (e) and (h) of section 1170.18 have been
addressed in defendant’s first two contentions.
       Defendant’s last contention is that appellate counsel was ineffective. Since our
review identifies no meritorious claim overlooked by appellate counsel, we reject this
contention.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.



3      We deny defendant’s requests to augment the record with materials related to his
1989 trial, filed September 18, 2015, as they are irrelevant to the trial court’s denial of his
petition for resentencing.

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                                   DISPOSITION
      The judgments (orders) are affirmed.



                                                            /s/
                                                 HOCH, J.



We concur:



           /s/
BUTZ, Acting P. J.



         /s/
DUARTE, J.




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