People v. Thornton CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE295036
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), O'Rourke, Patricia D. Benke
Analysis
The trial court denied Thornton's petition to reduce his robbery conviction to a misdemeanor under Proposition 47 and Penal Code section 17, citing a disqualifying prior conviction and the nature of the offense. The Court of Appeal affirmed the denial, determining that robbery is not a wobbler and is not listed in the statute for Proposition 47 relief.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to reduce robbery conviction to a misdemeanor under Penal Code section 1170.18 (Proposition 47).“Section 1170.18 does not list section 211, the offense at issue, as one of the code sections amended or added by Proposition 47. Accordingly, the trial court properly denied Thornton's petition for recall of sentence because Thornton is not statutorily eligible for relief under section 1170.18.” | de novo | correct | agree with court agree with court |
Denial of petition to reduce robbery conviction to a misdemeanor under Penal Code section 17, subdivision (b).“Since section 213 makes robbery punishable by imprisonment in state prison, and does not provide for a fine or imprisonment in the county jail, it is not a wobbler.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 created a resentencing provision codified at section 1170.18 allowing reduction of certain felonies to misdemeanors.
- relied: People v. Mungia (1991) 234 Cal.App.3d 1703 — Robbery is distinguished from theft by the use of force or fear.
- relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — For a conviction to be subject to reduction under section 17, subdivision (b), the charging statute must provide that the crime is a 'wobbler'.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appointed appellate counsel when no argument is presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues or explaining why none exist.
The appellate opinion: sound — The opinion correctly applies the statutory text of Proposition 47 and Penal Code section 17 to determine that robbery is not eligible for reduction. It relies on established case law to define the scope of 'wobbler' offenses and the specific list of crimes covered by Proposition 47.
How this analysis was made · dispute it
unusual dispositionThe trial court denied William Thornton's in propria persona petition under Penal Code sections 17 and 1170.18 (Proposition 47) to reduce his 2010 robbery conviction to a misdemeanor, reasoning that he had a disqualifying section 290 conviction. On a Wende appeal, the Court of Appeal affirmed, holding that robbery (section 211) is not an offense covered by section 1170.18 and is not a wobbler eligible for reduction under section 17, subdivision (b), and found no arguable issues after independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence and reduction of robbery conviction to a misdemeanor under Penal Code section 1170.18 (Proposition 47)“Section 1170.18 does not list section 211, the offense at issue, as one of the code sections amended or added by Proposition 47.” | de novo | correct | agree with court Eligibility under section 1170.18 is a legal question, and the court resolved it on independent Wende review. Robbery under section 211 is not among the offenses amended or added by Proposition 47, so the petitioner was statutorily ineligible regardless of the trial court's stated ground (a disqualifying section 290 conviction). Affirming on an alternative legal ground is proper because a correct ruling is upheld regardless of the trial court's reasoning. The citation to Mungia correctly distinguishes robbery from theft from the person. |
Denial of request to reduce robbery conviction to a misdemeanor under Penal Code section 17, subdivision (b)“Since section 213 makes robbery punishable by imprisonment in state prison, and does not provide for a fine or imprisonment in the county jail, it is not a wobbler.” | de novo | correct | agree with court Section 17(b) reduction is available only for offenses punishable alternatively by state prison or county jail/fine. Section 213 prescribes state prison for robbery with no alternative punishment, so it is a straight felony and cannot be reduced. Alvarez supports the wobbler framework the court applied. |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 created a resentencing provision in section 1170.18 permitting persons serving sentences for designated felonies to petition for recall and reduction to misdemeanors.
- relied: People v. Mungia (1991) 234 Cal.App.3d 1703 — Robbery is a felonious taking by force or fear; the use of force or fear distinguishes robbery from grand or petty theft from the person.
- relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — A conviction may be reduced to a misdemeanor under section 17(b) only where the offense is a wobbler punishable alternatively by state prison or county jail.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel files a brief raising no arguable issues, the appellate court must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds no meritorious issues must so advise the court and the court must review the record to protect the indigent defendant's right to counsel.
The appellate opinion: sound — The opinion correctly identifies that robbery is neither listed in section 1170.18 nor a wobbler under section 213, so the petition was properly denied regardless of the trial court's section 290 rationale, and it cites apt authority (Rivera, Mungia, Alvarez) for each step. It also properly handled the defendant's habeas claim by redirecting it to a separate writ proceeding and performed the required Wende review.
Opinion
Filed 2/16/16 P. v. Thornton 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, D068949
Plaintiff and Respondent, (Super. Ct. No. SCE295036) v.
WILLIAM CECIL THORNTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2010, William Cecil Thornton pleaded guilty to one count each of robbery and petty theft and admitted two prior prison term enhancements. The trial court sentenced him to three years in prison. On our own motion, we take judicial notice that Thornton appealed from the judgment. (Evid. Code, § 452, subd. (d)(1).) While that appeal was pending, Thornton filed a writ of habeas corpus. The trial court concluded that Thornton had received ineffective assistance when defense counsel allowed him to plead guilty to both robbery and the lesser included offense of petty theft. The trial court modified Thornton's sentence by vacating the petty theft conviction and the sentence for that conviction. Thereafter, we affirmed Thornton's judgment. (People v. Thornton (Dec. 8, 2010, D056846) [nonpub. opn.].)
In 2015, Thornton filed a petition, in propria persona, to reduce his robbery conviction to a misdemeanor under Penal Code section 17 and Proposition 47, the Safe Neighborhoods and Schools Act, Penal Code section 1170.18. (Undesignated statutory references are to the Penal Code.) (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) The trial court denied the petition because Thornton had a disqualifying conviction under section 290. Thornton timely appealed.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. We also granted Thornton permission to file a brief on his own behalf. Thornton filed a document entitled a "supplemental brief," but included therein a petition for writ of habeas corpus alleging he received ineffective assistance when counsel allowed him to plead guilty to both robbery and petty theft as petty theft is a lesser included offense of robbery. By 2 order dated February 4, 2016, we struck the supplemental brief and directed the clerk of the court to treat the document as a petition for writ of habeas corpus and assign it a separate case number. On our own motion, we take judicial notice of all documents filed in this related habeas petition, case number D069702. (Evid. Code, § 452, subd. (d)(1).)
We deny the petition by separate order.
Proposition 47 created a resentencing provision, codified at section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. (Rivera, supra, 233 Cal.App.4th at p. 1092.) "Robbery is 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (§ 211.) It is the use of force or fear which distinguishes robbery from grand theft [or petty theft] from the person." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) Section 1170.18 does not list section 211, the offense at issue, as one of the code sections amended or added by Proposition 47.
Accordingly, the trial court properly denied Thornton's petition for recall of sentence because Thornton is not statutorily eligible for relief under section 1170.18.
Finally, for a conviction to be subject to reduction to a misdemeanor under section 17, subdivision (b), the charging statute, or statute prescribing punishment, must provide that the crime is a "wobbler," that is, punishable either by imprisonment in state prison or county jail. (See § 17, subd. (b)(3); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 & fn. 4.) Since section 213 makes robbery punishable by imprisonment in state 3 prison, and does not provide for a fine or imprisonment in the county jail, it is not a wobbler.
In addition to considering Thornton's submission, we examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. Competent counsel has represented Thornton on this appeal.
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Rivera H041742 · 2015-01-29
- People v. Superior Court No. S053029 · 1997-01-16
- People v. Mungia E008096 · 1991-10-10
- People v. Wende Crim. 20851 · 1979-10-12