NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
v.
THOMAS MOORE,
Defendant and Appellant.
|
C086721
(Super. Ct. No. 99F00713)
|
Defendant Thomas Moore appeals from the trial court’s denial of his petitions for resentencing pursuant to Penal Code section 1170.126.[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 were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
Summary of Facts and Procedural History
On January 25, 1999, a manager was working at the Rent-a-Center store on Florin Road. About 6:45 p.m., he was assisting a couple with a rental application when defendant entered and approached the counter. Defendant had a scraggly beard and was wearing a heavy long black coat with a hood.
Defendant pulled a dark stocking mask down over his face, brandished a length of pipe, pretending it was a gun, and demanded money. The manager initially refused. But after defendant repeated the demand, the manager put $870 in big bills into a brown paper bag held by defendant. Defendant fled the store but was later apprehended. (People v. Moore (Dec. 27, 2012, C037544) [nonpub. opn.].)
Following a jury trial, defendant was convicted of second degree robbery (§ 211) and three strikes and serious felony allegations were sustained. (People v. Moore, supra, C037544.) Defendant was sentenced to serve 25 years to life plus 15 years in prison. (Ibid.) We affirmed the conviction in an unpublished opinion. (People v. Moore, supra, C037544.)
On December 26, 2017, defendant filed a section 1170.126 resentencing petition. The trial court denied the petition, finding it was filed past the two-year statutory deadline without good cause and his conviction was ineligible for resentencing because second degree robbery was a violent and serious felony.
Defendant appeals.
Analysis
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 pursuant to section 1170.126 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 authority to the contrary, we believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has filed a supplemental brief.
Defendant’s supplemental brief asserts (1) appellate counsel was ineffective by erroneously stating the dates of defendant’s arrest and sentencing, and (2) he had no notice he was being charged with a violent or serious felony because the amended information did not state robbery was a violent or serious felony.
Defendant’s first contention concerns a letter appellate counsel sent to defendant that is appended to defendant’s supplemental brief. In the letter, counsel informs defendant of his intent to file a Wende brief and defendant’s rights and the procedures under Wende, supra, 25 Cal.3d 436. Counsel also explains any review of the robbery conviction could expose defendant to adverse consequences because there was an error in the calculation of presentence credits that favored him and a mandatory fine was not imposed.
To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate his trial counsel’s representation fell below an objective standard of reasonableness and the defect prejudiced defendant in that there is a reasonable probability that, but for the deficiency, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694]; People v. Williams (1997) 16 Cal.4th 153, 214-215.) Even if counsel’s representation concerning defendant’s presentence credits is erroneous, it does not prejudice this appeal, which addresses only the validity of the trial court’s denial of his resentencing petition.[2]
Defendant’s second contention is a collateral attack on the validity of his prior conviction, which is beyond the scope of a section 1170.126 proceeding. (People v. Clark (2017) 8 Cal.App.5th 863, 873 [“a section 1170.126 proceeding is not a ‘plenary resentencing proceeding’ ”].) He was convicted of robbery, which is both a serious and violent felony (§§ 1192.7, subd. (c)(19), 667.5, subd. (c)(9)) and is therefore ineligible for relief. (§ 1170.126, subds. (a), (e).)
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.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
ROBIE, J.
[1] Undesignated statutory references are to the Penal Code.
[2] While an error in the award of presentence credit or the failure to impose a mandatory fine or fee are correctable at any time, the record of this appeal does not contain any reference to the fines and fees imposed on defendant or the exact dates for which he accrued presentence credit, other than appellate counsel’s statement in the letter to defendant. In light of the lack of evidence in the record, we decline to address whether the sentencing court erred in defendant’s favor.
