Opinion
C098162
08-30-2023
THE PEOPLE, Plaintiff and Respondent, v. DANTE D. GLADNEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 01F03895
MAURO, Acting P. J.
Appointed counsel for defendant Dante D. Gladney asked 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 will affirm the order denying defendant's Penal Code section 1170.18 petition.
Undesignated statutory references are to the Penal Code.
I
In July 2001, defendant pleaded no contest to second degree robbery. Defendant stipulated to the following factual basis for his plea: "On May 13th of the year 2001, in the County of Sacramento, [defendant] did commit a felony violation of Penal Code Section 211 in that he did unlawfully and by means of force take personal property from the person and possession of [K.W.]" The trial court sentenced defendant to the low term of two years in state prison.
Nearly 20 years later, in August 2022, defendant filed a petition under section 1170.18 to redesignate his robbery conviction as a misdemeanor.
In October 2022, the trial court denied the petition, finding defendant's offense was ineligible for redesignation. There is no indication in the record that defendant appealed the trial court's October order.
Four months later, in February 2023, defendant filed a second section 1170.18 petition to redesignate his robbery conviction as a misdemeanor. The trial court denied the second petition as untimely but did so without prejudice to submitting a petition showing good cause as to why defendant did not file the second petition by the statutory deadline. Defendant appealed from the order denying his second section petition.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.
In Wende, the California Supreme Court held that "Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous." (People v. Delgadillo (2022) 14 Cal.5th 216, 221 (Delgadillo).) The Wende procedure applies "to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution." (Ibid.)
In Delgadillo, the Supreme Court explained that Wende review is not constitutionally required in an appeal from a postconviction order denying a section 1172.6 petition for resentencing because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225.) Nevertheless, the Court exercised its discretion to conduct an independent review of the record because the defendant had not been notified that his appeal might be dismissed as abandoned if he did not file a supplemental brief. (Id. at pp. 222, 233.)
Here, defendant was not notified that his appeal might be dismissed as abandoned if he did not file a supplemental brief. We exercise our discretion to conduct an independent review of the record. 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 order denying defendant's section 1170.18 petition is affirmed.
We concur: DUARTE, J., BOULWARE EURIE, J.