People v. Washington CA2/1 ( 2022 )

Filed 12/16/22 P. v. Washington CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B320103
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA048701)
v.
RODERICK WASHINGTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal; Roderick Washington, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
In 2002, a jury found Roderick Washington guilty of two
counts of second degree commercial burglary (Pen. Code, § 459)1
and one count each of identity theft (§ 530.5, subd. (a)) and grand
theft of personal property (§ 487, subd. (a)), all felony offenses.
The trial court sentenced him to eight years in state prison,
which was later reduced to six years after Washington’s direct
appeal of his convictions. (People v. Washington (Apr. 26, 2004,
B162464) [nonpub. opn.].)
“Approved by the voters in 2014, Proposition 47, the Safe
Neighborhoods and Schools Act, reduced the punishment for
certain theft- and drug-related offenses, making them punishable
as misdemeanors rather than felonies.” (People v. Page (2017) 3
Cal.5th 1175, 1179.) Proposition 47 added section 490.2, which
states, in pertinent part, “Notwithstanding Section 487 or any
other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor . . . .” (§ 490.2, subd. (a).) A person
who has served a sentence for a felony that was reclassified
under Proposition 47 may petition the trial court to redesignate
the offense as a misdemeanor unless he or she is disqualified by
certain other convictions. (§ 1170.18, subds. (a), (f), (i).)
In 2018, Washington filed in this action a petition under
Proposition 47. Therein, he did not identify which convictions he
was asking the trial court to redesignate as misdemeanors. The
trial court denied the petition on the ground Washington’s crimes
in this action involved property worth more than $950.
1 Undesignated statutory references are to the Penal Code.
2
Washington appealed, and we affirmed the order. (People v.
Washington (Aug. 27, 2018, B288025) [nonpub. opn.].) We
explained that nothing in our opinion precluded Washington from
filing a new petition under Proposition 47 alleging sufficient facts
to support a claim that a particular conviction could be
redesignated as a misdemeanor because the offense involved the
theft of property worth $950 or less. (Id. at pp. 3-5.) We noted
that the evidence showed Washington used a false identification
to purchase more than $2,000 worth of merchandise from a Best
Buy store (count 1 for second degree commercial burglary and
count 2 for identity theft), and he also used a false identification
to purchase $633.21 worth of merchandise from a Target store
(count 4 for second degree commercial burglary and count 5 for
grand theft of personal property). (Id. at p. 2.)2
On March 25, 2022, Washington filed in this action a new
petition under Proposition 47. On March 28, 2022, the trial court
granted the petition as to counts 4 and 5, redesignating as
misdemeanors the offenses committed at the Target store. The
court denied the petition as to counts 1 and 2, the offenses
committed at the Best Buy store.
On April 15, 2022, Washington filed in this action a third
petition under Proposition 47, contending the trial court erred in
declining to redesignate as misdemeanors counts 1 and 2.3 On
2 During trial, the prosecutor dismissed count 3 for grand
theft of personal property taken from Best Buy. (People v.
Washington, supra, B162464, p. 2.)
3All Washington’s petitions under Proposition 47 in the
record before us are timely under section 1170.18, as the statute
requires such petitions or applications be filed “on or before
3
April 19, 2022, the trial court issued a minute order denying this
petition on the ground the loss at issue in counts 1 and 2
exceeded $950 for each offense.
Washington appealed, and this court appointed counsel for
him. After examination of the record, counsel filed an opening
brief stating he had found no arguable issues to raise on appeal
and requesting that we follow the procedures set forth in People
v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). We sent a
letter to Washington and his appointed counsel, advising
Washington that within 30 days he could submit a supplemental
brief or letter stating any grounds for an appeal, or contentions or
arguments he wanted this court to consider. Washington filed a
supplemental brief.
Because Washington’s appeal is from an order denying
post-conviction relief, and not his first appeal of right from his
conviction, he is not entitled to our independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436.
(Serrano, supra, 211 Cal.App.4th at p. 503.)4 He is entitled,
however, to our review of any contentions set forth in a
supplemental brief he files. (See Serrano, at p. 503; cf., Ben C.,
November 4, 2022, or at a later date upon showing of good cause.”
(§ 1170.18, subd. (j).)
4 Under Serrano, in a criminal appeal in which Wende does
not apply, counsel who finds no arguable issues is still required to
(1) inform the court that counsel has found no arguable issues to
be pursued on appeal; (2) file a brief setting out the applicable
facts and law; (3) provide a copy of the brief to appellant; and
(4) inform the appellant of the right to file a supplemental brief.
(Serrano, supra, 211 Cal.App.4th at p. 503, citing
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben C.).)
Washington’s counsel has complied with these responsibilities.
4
supra, 40 Cal.4th at p. 544, fn. 6.) If no supplemental brief is
filed, we may deem the appeal to be abandoned and dismiss the
appeal.
Although Washington filed a supplemental brief, he did not
include any contention for us to review. He did not argue the
trial court erred in declining to redesignate counts 1 and 2 as
misdemeanors because the offenses involved property worth more
than $950. Rather, he set forth the procedural history of this
matter and the law surrounding Proposition 47, and then he
asked us to “follow the procedures set forth in People v. Superior
Court (Corona) (1981) 30 Cal.3d 193,” without elaborating on the
procedures to which he was referring. That case involved the
People’s challenge by writ of mandate to the relitigation of the
defendant’s earlier unsuccessful challenges to two search
warrants, and it has no application here. (Id. at pp. 196-197.)
Because Washington has not stated any grounds for an appeal, or
contentions or arguments he wants us to consider, we dismiss his
appeal as abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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