Filed 6/1/18 P. v. Cooper CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA





THE PEOPLE,

Plaintiff and Respondent,

v.

YVETTE JEAN COOPER,

Defendant and Appellant.
D073022

(Super. Ct. No. SCE284613)

ORDER MODIFYING OPINION
AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:
It is ordered that the opinion filed on May 24, 2018 be modified as follows:
1. On page 2, the second sentence of the first full paragraph beginning with "We granted Cooper," is deleted and the following sentence is inserted in its place:
Cooper filed a supplemental brief on her own behalf.
2. On page 7, after the paragraph at the top of page ending with "must dismiss the appeal," insert the following paragraph:
In addition to the Proposition 47 issue identified by counsel, Cooper's supplemental brief claims her sentence is disproportionate to sentences imposed for more serious and/or violent crimes. But Cooper was sentenced in 2009, and the deadline to raise that claim by direct appeal has long expired. (See e.g., People v. Baker (2018) 20 Cal.App.5th 711 [direct appeal claiming sentence was cruel and unusual in violation of state and federal constitutions].) Moreover, hers would be an as applied challenge, i.e., that the sentence is cruel and unusual as applied to her. Because it would be based on facts outside the appellate record—including the value of the property stolen and whether her crimes involved violence[footnote 2]—such a claim could be considered, if at all, on a petition for writ of habeas corpus.[Footnote 3] (See e.g., In re Rodriguez (1975) 14 Cal.3d 639, 656; see also People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1 [habeas petition is not limited to the underlying record].)

3. The text of footnote 2 and footnote 3 referenced in the above paragraph is as follows:
² Although the probation report contains some background information, that report "ordinarily is not part of the record of conviction." (People v. Oehmigen (2014) 232 Cal.App.4th 1, 5.)

³ Here, however, close to a decade after the judgment, such a petition may well be barred on timeliness or other procedural grounds. (In re Reno (2012) 55 Cal.4th 428, 459–510.)

Appellant's petition for rehearing is denied.
There is no change in judgment.



HALLER, Acting P. J.

Copies to: All parties


Filed 5/24/18 P. v. Cooper CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

YVETTE JEAN COOPER,

Defendant and Appellant.
D073022



(Super. Ct. No. SCE284613)

APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Yvette Cooper appeals an order denying her petition to reduce to a misdemeanor her felony conviction for three counts of first degree residential burglary. (Pen. Code, §§ 459, 460.) She sought relief under section 1170.18, the Safe Neighborhoods and Schools Act, which was enacted by California voters in November 2014 pursuant to Proposition 47. The trial court denied Cooper's petition on the basis her residential burglary conviction was ineligible for resentencing under Proposition 47.
Appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Cooper an opportunity to file a supplemental brief on his own behalf, but she did not do so. After independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable appellate issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While on parole Cooper entered the homes of three senior citizens and took various items from each, including checkbooks, credit cards, identification cards, a watch, small electronic devices, and keys. The San Diego County District Attorney filed an information charging her with three counts of first degree residential burglary in violation of sections 459 and 460 for entering with the intent to commit theft. The information alleged there was a person present in each residence in violation of section 667.5, subdivision (c)(21), making each offense a violent felony. It also alleged Cooper had one prior conviction for a serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), five prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12), and had served one prior prison term (§§ 667.5, subd. (b), 668).
Cooper pled guilty to all three counts of residential burglary (§§ 459, 460). She admitted there was a person present during each offense (§ 667.5, subd. (c)(21)) and that she had five prior strike convictions, a serious felony prior, and a prison prior. The court accepted the plea and found a factual basis for it pursuant to her counsel's stipulation to the facts contained in the preliminary hearing transcript. (See People v. Holmes (2004) 32 Cal.4th 432, 444.) There was no plea agreement, but the court indicated a sentence of 22 years and 4 months.
In accordance with the indicated sentence, the court sentenced Cooper to a total term of 22 years and 4 months in state prison. The sentence was calculated as follows. The court exercised its discretion to dismiss four of the prior strikes under section 667, subdivisions (b) through (i). (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529−530.) It applied the remaining strike to double the upper term of 6 years on count 1 for first degree residential burglary, for a total of 12 years. (§ 461, subd. (a) [2, 4, or 6 years for first degree burglary].) It imposed terms of 2 years and 8 months consecutively for each of the other two burglary counts (2 & 3), calculated as one-third the middle term of 4 years. Finally, it added 5 years for the prior serious felony conviction under section 667, subdivision (a)(1). It did not impose the one-year enhancement for the admitted prison prior (§ 667, subd. (b)–(i)) because that was for the same offense as the prior imposed under section 667, subdivision (a)(1).
In addition to the prison sentence, the court ordered Cooper to pay victim restitution of $235 and a $5,000 restitution fine pursuant to section 1202.4, subdivision (b). It awarded her a total of 228 custody and conduct credits, consisting of 199 days of actual custody plus 29 days of conduct credits pursuant to section 2933.1.
Cooper filed a motion in January 2016 arguing she was indigent and seeking to have her $5,000 restitution fine credited with time served pursuant to section 1205, subdivision (a). The court denied the motion on January 22, 2016, concluding custody credit could not offset a restitution fine pursuant to section 1205, subdivision (f). Cooper did not appeal that order.
In December 2016, Cooper filed a petition for resentencing pursuant to section 1170.18, subdivision (a), enacted by Proposition 47, the Safe Neighborhoods and Schools Act. In her memorandum she argued that Proposition 47 converted her residential burglary convictions to misdemeanors because each offense involved the theft of items worth under $950. She also stated she posed no risk of danger to public safety. The court denied her petition on December 22, 2016, on the ground her residential burglary convictions were ineligible for resentencing under Proposition 47.
Cooper filed a notice of appeal on March 6, 2017, which was rejected as untimely by the court clerk. (Cal. Rules Court, rule 8.308(a) [notice of appeal must be filed within 60 days of judgment or order being appealed].) She subsequently filed a motion to "correct/augment" the notice of appeal, claiming she had given it to the prison mailroom on February 19, 2017 and that it should be considered timely. (See In re Jordan (1992) 4 Cal.4th 116 [prison-delivery rule provides exception to 60-day filing deadline].) The court clerk accepted and filed her resubmitted notice of appeal.
Cooper does not challenge the validity of her plea but rather matters after the plea affecting her sentence and other bases for appeal. Specifically, she challenges the denial of her petition for resentencing pursuant to Proposition 47. The trial court granted her request for a certificate of probable cause pursuant to section 1237.5.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as issues that "might arguably support the appeal":
1. Did the Lower Court Err by Denying Cooper's Petition for Resentencing Her Three Convictions for First-Degree Residential Burglary in Violation of Penal Code §§ 459 and 460(a) on the Ground that They Were Not Offenses Eligible for Resentencing Under Proposition 47?

2. Did the Lower Court Err by Denying Cooper's Motion To Have Her Restitution Fine That Was Imposed Under Penal Code § 1202.4(b) Credited by Time in Custody in Lieu of Payment?

It is an open question whether Wende and Anders protections apply to an appeal from an order denying a petition for recall under Proposition 47. "Both the United States Supreme Court and the California Supreme Court have concluded that due process does not require Anders/Wende review other than in the first appeal of right from a criminal conviction." (People v. Serrano (2012) 211 Cal.App.4th 496, 500 (Serrano), discussing Pennsylvania v. Finley (1987) 481 U.S. 551, 555 and In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536−537.) Serrano dismissed an appeal on its own motion from a postjudgment order but acknowledged that "the California Supreme Court has not specifically considered the availability of Anders/Wende review in a postconviction collateral attack on a judgment." (Serrano, supra, at pp. 501, 503.) Absent further guidance, we will adhere to Wende in the present case.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issue.
As to the issues raised by counsel, residential burglary is not eligible for resentencing pursuant to Proposition 47. Because the offense involves entry into a residence rather than a "commercial establishment," it is not shoplifting under section 459.5. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114 ["a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services"]; see generally, People v. Gonzales (2017) 2 Cal.5th 858 [defendant convicted of commercial burglary qualified via section 459.5].)
Nor could residential burglary qualify for resentencing via section 490.2 as misdemeanor petty theft. (See generally People v. Page (2017) 3 Cal.5th 1175 [auto theft qualified via section 490.2]; People v. Romanowski (2017) 2 Cal.5th 903 [access card information theft qualified via section 490.2].) Burglary is not a theft offense, even if it is committed by an entry with the intent to commit theft. (People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18.) That is because "the gist of [burglary] is entry with the proscribed intent, and . . . such an entry constitutes the completed crime of burglary 'regardless of whether . . . any felony or theft actually is committed.' " (Ibid.) Cooper is not eligible for resentencing under section 1170.18, subdivision (a), irrespective of the value of the property she obtained in the three residential burglaries.
We lack jurisdiction to consider the second Anders issue listed by counsel. Cooper filed a motion in January 2016 arguing she was indigent and sought to credit time served to her restitution fine pursuant to section 1205, subdivision (a). The court denied her motion in January 2016, and she did not appeal within the 60-day filing deadline. (Cal. Rules of Court, rule 8.308(a).) We therefore lack jurisdiction to consider the claim. (In re Horowitz (1949) 33 Cal.2d 534, 537 ["In both criminal and civil cases, 'the time requirements for the taking of an appeal are mandatory, and . . . the appellate courts are without jurisdiction to consider an appeal which has been taken subsequently to the expiration of the statutory period.' "]; People v. Mendez (1999) 19 Cal.4th 1084, 1094 ["A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' "]; In re Jordan, supra, 4 Cal.4th at p. 121 ["Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal."].)
Having reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we find no reasonably arguable appellate issue. Cooper has been adequately represented by counsel in this appeal.
DISPOSITION
The judgment is affirmed.


DATO, J.

WE CONCUR:



HALLER, Acting P. J.



AARON, J.