People v. Burts CA2/4

Filed 3/2/15 P. v. Burts CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B255007

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA028308) v.

TONY DARNELL BURTS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Defendant Tony Darnell Burts was convicted by a jury of second degree robbery with personal use of a knife. After finding that he had two prior convictions within the meaning of the Three Strikes law, the trial court imposed a sentence of 35 years to life. We affirmed the judgment in a prior appeal in 1997. (People v. Burts (Sept. 11, 1997, B107249) [nonpub. opn.].) In 2013, defendant filed the present petition to recall and modify his sentence under Penal Code section 1170, subdivision (d).1 His sole argument was that “[t]he trial court found petitioner suffered multiple prior convictions which were plea bargains.” In November 2013, the trial court denied the petition, stating that “defendant has failed to show good cause why the sentence should be modified.” This appeal followed.2 In the opening brief, defendant’s appointed counsel requested this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. On July 18, 2014, we directed counsel to send the record on appeal and a copy of the opening brief to defendant. Also on that date, we notified defendant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. After receiving two extensions of time in which to file a supplemental brief, defendant did not file any additional materials. The case was deemed to be fully briefed. Under section 1170, subdivision (d),3 the superior court’s power to recall and impose a new and different sentence on its own motion expires 120 days after sentence is