Filed 9/25/20 P. v. Kemokai 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C091516
Plaintiff and Respondent, (Super. Ct. No. 08F09791)
v.
SAMUEL KEMOKAI,
Defendant and Appellant.
Appointed counsel for defendant Samuel Kemokai has filed an opening brief that
sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436
(Wende).) Finding no arguable error that would result in a disposition more favorable to
defendant, we affirm.
BACKGROUND
“On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
1
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified
at Penal Code section 1170.18,1 which provides that a person currently serving a sentence
for certain designated felonies may petition for recall of the sentence to reduce felonies to
misdemeanors. Defendant Samuel Kemokai appeals from an order denying his petition
to reduce a conviction from a felony to a misdemeanor.
Defendant’s petition for resentencing was denied upon a determination that he was
not eligible for relief because he had sustained a prior conviction for attempted murder
(§§ 664/187, 1170.18, subd. (i)). Counsel was appointed to represent defendant on
appeal. Counsel 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. (Wende, supra, 25 Cal.3d at pp. 441-442.) Counsel advised defendant of his
right to file a supplemental brief within 30 days of the date of filing of the opening brief.
More than 30 days have elapsed, and we have received no communication from
defendant.
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 Proposition 47 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. Martinez (2016) 246 Cal.App.4th 1226; People v. Kisling (2015)
1 Further undesignated statutory references are to the Penal Code.
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239 Cal.App.4th 288; People v. Serrano (2012) 211 Cal.App.4th 496; 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 will
adhere to Wende in the present cases, where counsel has already undertaken to comply
with Wende requirements and defendant has been afforded an opportunity to file a
supplemental brief.
Having undertaken an examination of the record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The order is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MURRAY, J.
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