Filed 3/3/16 P. v. Cook 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C079476
Plaintiff and Respondent, (Super. Ct. No. 12F8790)
v.
ANDREW GRADY COOK,
Defendant and Appellant.
In this appeal from the denial of a Penal Code section 1170.18 (Proposition 47)1
petition for resentencing, appointed counsel for defendant Andrew Grady Cook has filed
an opening brief that sets forth the facts of the case and asks that we review the record
and determine whether there are any arguable issues on appeal. (People v. Wende (1979)
1 Further undesignated statutory references are to the Penal Code.
1
25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm the judgment.
BACKGROUND
Around September 27, 2012, defendant received a stolen motorcycle. He pleaded
no contest to felony receiving stolen property (§ 496, subd. (a)) and, in unrelated cases,
entered no contest pleas to two counts of unlawful driving or taking of a vehicle (Veh.
Code, § 10851), one count of possession of a device for smoking a controlled substance
(Health & Saf. Code, former § 11364.1), two counts of vehicle theft with a prior
(§ 666.5) with two on-bail enhancements (§ 12022.1), and escape (§ 4532, subd. (b)(1)).
He was sentenced to a 10-year eight-month term in county prison.2
Defendant subsequently filed a Proposition 47 petition for reduction and
resentencing on his receiving stolen property conviction. The People responded that
defendant was not entitled to reduction because the value of the stolen property (a 1999
Ducati Super Sport motorcycle with 35,000 miles on it) exceeded $950. (See § 496,
subd. (a).) The trial court denied the petition without hearing.3 Defendant appeals
without a certificate of probable cause.
DISCUSSION
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 pursuant to section 1170.18 remains an open
question. Our Supreme Court has not spoken. The Anders/Wende procedures address
2 The trial court later modified the sentence to state prison because the original county
prison commitment was an unauthorized sentence for escape.
3 Appellate counsel obtained a settled statement explaining that, pursuant to an informal
agreement among “the criminal justice agencies,” the Shasta County Superior Court
schedules evidentiary hearings in Proposition 47 petitions such as this one only when
requested by defense counsel.
2
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,
where counsel has already undertaken to comply with Wende requirements.
Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant. 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 is affirmed.
/s/
Duarte, J.
We concur:
/s/
Murray, Acting P. J.
/s/
Hoch, J.
3