People v. Wilburn CA3

Filed 6/3/25 P. v. Wilburn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C101422

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2022-0008309) v.

DERRICK ALLEN WILBURN,

Defendant and Appellant.

Defendant Derrick Allen Wilburn appeals from the trial court’s decision declining to amend his sentence under Penal Code section 1172.1.1 His appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436 and asking that we exercise our discretion to independently review the record.

1 Undesignated statutory references are to the Penal Code.

1

This court notified Wilburn that he had 30 days to file a supplemental brief raising any argument he wished us to consider. Wilburn filed a supplemental brief asserting numerous contentions. We have reviewed those contentions in accordance with Delgadillo and conclude none has merit. We therefore affirm. BACKGROUND In 2022, Wilburn was charged with three counts of second degree robbery with three aggravating factors for each count. (§ 211; Cal. Rules of Court, rule 4.421(b)(2)- (4).) As to each count, it was further alleged that Wilburn had two prior strikes (§§ 667, subd. (d), 1170.12, subd. (b)) and two prior serious felony convictions (§ 667, subd. (a)), based on convictions in 2007 and 2013 for second degree robbery. In April 2023, Wilburn pleaded no contest to all three counts, admitted one of the prior strikes as to each count, and stipulated to two aggravating factors for each count. In exchange, the parties agreed to a 14-year aggregate prison sentence, as follows: 10 years on count 1 (the upper term of five years, doubled due to the prior strike) and consecutive terms of two years each for counts 2 and 3 (one-third the middle term of three years, doubled due to the prior strike). The trial court advised Wilburn that he would have to serve 85 percent of his sentence. (See § 2933.1, subd. (a) [limiting worktime credit for incarcerated defendants convicted of a violent felony including robbery].) That same day, the court sentenced Wilburn according to the plea agreement. There is no indication in the record that Wilburn appealed from that judgment. In December 2023, using a modified form for seeking resentencing under section 1172.6, Wilburn filed a petition requesting resentencing under section 1172.75, subdivision (d)(2). The trial court appointed counsel and set a hearing. At a hearing on April 2, 2024, the court denied Wilburn’s petition without prejudice. The following day, defense counsel filed an “invitation” for the trial court to recall Wilburn’s sentence and resentence him pursuant to section 1172.1. Counsel argued that the court had jurisdiction to recall and resentence under that provision. Counsel’s filing