People v. Vasquez CA3 ( 2016 )

Filed 3/21/16 P. v. Vasquez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C079232
Plaintiff and Respondent, (Super. Ct. No. 96F08036)
v.
MIGUEL EDWARDO VASQUEZ, JR.,
Defendant and Appellant.
Defendant Miguel Edwardo Vasquez, Jr., 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 are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable
1 Undesignated statutory references are to the Penal Code.
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error that would result in a disposition more favorable to defendant, we will affirm the
order.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 4, 1996, California Highway Patrol officers found two stolen
Chevrolet pickup trucks at an automotive repair shop licensed to defendant.
Defendant pleaded no contest to receiving stolen property (§ 496, subd. (a)) and
admitted a prior strike conviction (§§ 1192.7, 667.5, subds. (b)-(i), 1170.12). He was
sentenced to four years in state prison and ordered to pay $11,825 in victim restitution for
the vehicles.
Defendant subsequently filed a petition for resentencing, which was denied on the
ground that 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 Supreme Court
authority to the contrary, we believe it prudent to adhere to Wende in the present case,
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where counsel has already undertaken to comply with Wende requirements and defendant
has filed a supplemental brief.
In his supplemental brief, defendant contends his crime qualified for resentencing
because the victim received $11,575 from her insurance company for the losses, there
was an error in a minute order in the original conviction, and there is an error in the
charge disposition sheet describing his offense.
The passage of Proposition 47 created section 1170.18, which provides for any
defendant “currently serving a sentence for a conviction . . . 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 [to] petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing . . . ” under
the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd.
(a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14,
pp. 73-74.)
As pertinent to this case, Proposition 47 amended section 496 so that receiving
stolen property is a misdemeanor unless the property is worth more than $950. (§ 496,
subd. (a).) Defendant has the burden of proving that his offense qualifies for
resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 878.)
Any insurance money the victim may have received for her loss does not change
the value of the stolen property that defendant received. The record here establishes that
stolen vehicles in defendant’s possession were worth more than $11,000, well above the
amount needed to render his conviction a felony after Proposition 47. Defendant’s
contentions regarding the minute order and the disposition sheet are not relevant to the
subject matter of this appeal—whether the trial court erred in denying defendant’s
petition. Since the record establishes defendant did not qualify for resentencing, we
conclude that the trial court did not err in denying the petition.
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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.
BUTZ , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
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