People v. Pittman CA2/4

Filed 7/28/15 P. v. Pittman CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B260645

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA137385) v.

MICHAEL PITTMAN,

Defendant and Appellant.

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

______________________________

Defendant Michael Pittman appeals from the denial of his petition to recall his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126), and to strike a prior robbery conviction pursuant to People v. Vargas (2014) 59 Cal.4th 635 (Vargas). His appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On February 24, 2015, we directed appointed counsel to send the record and a copy of counsel’s brief to defendant and notified defendant of his right to respond within 30 days. We received no response. We have reviewed the whole record under People v. Kelly (2006) 40 Cal.4th 106. In 1996, defendant was convicted by a jury of second degree robbery. Because he had two prior robbery convictions, defendant was given an indeterminate life sentence under the Three Strikes Law. On March 4, 2013, defendant filed a petition for recall of his sentence pursuant to Penal Code section 1170.126. The court denied the petition because his current felony falls under Penal Code section 667.5, subdivision (c), rendering defendant ineligible for resentencing. On October 9, 2014, defendant filed a second petition to recall his sentence, citing Penal Code section 1170.126 and Vargas, supra, 59 Cal.4th 635. The court denied defendant’s request under section 1170.126 on the same ground, and directed defendant to pursue his Vargas claim in a habeas corpus petition. (See Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 543 [“A petition for habeas corpus is the appropriate vehicle for obtaining review of issues requiring consideration of matters outside the record”].) Having reviewed the record, we are satisfied that no arguable issues for appeal exist.