Filed 6/23/17 P. v. Karlsen CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

OLAF GUSTAV KARLSEN,

Defendant and Appellant.

F073770

(Super. Ct. No. 12CM7364)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Kings County. Donna L. Tarter, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Olaf Gustav Karlsen filed a petition for resentencing pursuant to the provisions of Proposition 47, the Safe Neighborhoods and Schools Act (hereafter the Act). The trial court denied the petition, concluding Karlsen was ineligible for resentencing. We agree and affirm the order denying Karlsen’s petition.
FACTUAL AND PROCEDURAL SUMMARY
In 2012, Karlsen was charged with one count of possession of drugs while in prison (Pen. Code, § 4573.6), and one count of possession of drug paraphernalia while in prison (§ 4573). The complaint also alleged Karlsen had suffered a prior conviction which constituted a strike within the meaning of section 667, subdivisions (b)-(i), and had served four prior prison terms within the meaning of section 667.5, subdivision (b). He entered into a plea agreement which required him to plead guilty to the possession count and admit the strike prior. In exchange the remaining counts and enhancements were to be dismissed. He was sentenced to the low term of two years, which was doubled because of the strike prior for a total term of four years.
In 2015, Karlsen filed a petition for resentencing pursuant to the Act. The District Attorney opposed the petition contending Karlsen’s conviction was not eligible for resentencing under the terms of the Act. The trial court agreed with the District Attorney that Karlsen was ineligible for resentencing and denied the petition on March 25, 2015.
On April 25, 2016, the trial court received a notice of appeal from Karlsen, which was filed on May 10, 2016. Apparently because of confusion in the Kings County Clerk’s office, Karlsen filed another petition for resentencing on February 25, 2016. The trial court denied this petition as repetitive of the 2015 petition.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asserting that after a thorough review of the record she could not identify any arguable issues. After independently reviewing the record, we agree with appellate counsel that there are no arguable issues in this appeal.
The Act, which was passed by the electorate in 2014, reclassified certain drug- and theft-related offenses from felonies to misdemeanors, unless the crime is committed by certain ineligible defendants. In addition, the proposition permitted those already convicted of the identified crimes to petition the trial court to have their convictions reduced from a felony to a misdemeanor. This provision of the proposition is codified in section 1170.18.
Section 1170.18, subdivision (f) permits those who have been convicted of a felony, but would have been convicted of a misdemeanor had Proposition 47 been in effect at the time of the conviction, to petition the trial court to have the felony designated a misdemeanor. The crimes which were reclassified as misdemeanors by Proposition 47 are (1) possession of certain controlled substances as provided for in Health and Safety Code sections 11350, 11357, and 11377, (2) shoplifting as codified in section 459.5, (3) forgery in an amount less than $950 as codified in Penal Code section 473, subdivision (b), (4) issuing bad checks in an amount less than $950 as codified in section 476a, subd. (b), (5) petty theft with a prior where the amount taken is valued at less than $950 as codified in section 490.2, (6) receiving stolen property with a value of less than $950 as codified in section 496, subdivision (a), and (7) certain convictions for petty theft with a prior pursuant to the provisions of section 666. (§ 1170.18, subd. (a).)
The trial court properly denied Karlsen’s petition because the offense of which he was convicted, section 4573.6, was not reduced to a misdemeanor by the Act, thus making Karlsen ineligible for resentencing.
By letter dated September 8, 2016, we invited Karlsen to inform this court of any issues he wished us to address. Karlsen responded to our request with a supplemental brief in which he makes several arguments. First, he claims that the Act violates the ex post facto clause of the United States Constitution. The ex post facto clause has no application here.
The ex post facto clause “prohibits three legislative categories: legislation ‘ “[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed....” ’ [Citation.] .… This court recently held that the ex post facto clause of the California Constitution is to be analyzed identically.” (People v. McVickers (1992) 4 Cal.4th 81, 84.) Neither section 1170.18, nor the Act in general, which reduces punishment for various crimes, falls into any of the categories identified in McVickers.
The second issue raised by Karlsen is a claim that the statute under which he was convicted, section 4573.6, is vague and unenforceable. This argument has no merit because any such claim would have to have been made in a direct appeal from the judgment. Not only did Karlsen not appeal from the judgment, one of the terms of his plea agreement was that he waived any right to appeal. Thus, he is now precluded from making such an argument.
Karlsen’s third argument is that appellate counsel was ineffective for failing to argue some unidentified ground for reversal. An ineffective assistance of counsel claim requires the defendant to establish that (1) counsel’s representation fell below the prevailing standards of the profession, and (2) defendant suffered prejudice as a result of counsel’s deficient representation. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Karlsen cannot meet either prong of the analysis. Appellate counsel was not ineffective since there are no arguable issues in this appeal from the order denying Karlsen’s petition. Second, Karlsen cannot demonstrate he was prejudiced in any manner because he is not entitled to relief under any theory.
The fourth and fifth arguments assert the same point, that Karlsen was denied appellate counsel because a Wende brief was filed in this case. He asserts a proper “Anders Brief” was not filed in this case.
Despite the lack of proper citations, we understand Karlsen to be referring to Anders v. California (1967) 386 U.S. 738 (Anders). Anders addressed “the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.” (Id. at p. 739.)
The Supreme Court held “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (Anders, supra, 386 U.S. at p. 744, fn. omitted.)
Appellate counsel’s efforts met the requirements of Anders. Her brief indicates she read the entire record and advised Karlsen of her conclusion that the appeal had no merit. She served a copy of the brief on Karlsen, advised him he may file a supplemental brief, that she would provide him with her copy of the record if it would assist him in preparing his brief, she would remain available to brief any issues identified by the court, and that he may file a request to have appellate counsel relieved. Appellate counsel also filed a brief in this court which reviewed the factual and procedural posture of the case, and informed the court that pursuant to People v. Wende, supra, 25 Cal.3d 436, she was requesting this court independently review the record.
Karlsen does not explain, and we cannot determine, how appellate counsel’s efforts do not comply with Anders.
DISPOSITION
The order denying Karlsen’s petition is affirmed.