Filed 4/3/14 P. v. Burton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059285
v. (Super.Ct.No. FBA1000492)
DEREK TYRONE BURTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Derek Tyrone Burton appeals after the trial court denied
his petition for resentencing under Penal Code section 1170.126, known as the Three
Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
2012)).1 Defendant filed notice of appeal on July 24, 2013. We affirm.
PROCEDURAL BACKGROUND
A jury convicted defendant of one count of first degree residential burglary (§ 459,
count 1). Following a bifurcated trial on defendant’s priors, the jury found that he had
two prior strike convictions (§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), and two
prior serious felony convictions (§ 667, subd. (a)(1)). Defendant filed a motion to have
the trial court dismiss a prior strike conviction under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, but the court denied it. On August 19, 2011, the court sentenced
him to state prison for a total term of 30 years to life.
On June 13, 2013, defendant filed an in pro. per. petition for resentencing under
section 1170.126. The court denied the petition because defendant’s current conviction
was for a serious offense, which made him ineligible for resentencing. (§ 1170.126,
subd. (e)(1).)
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], setting forth a statement of the case, a brief statement of the facts, and identifying
two potential arguable issues: (1) whether the denial of defendant’s petition for
resentencing under section 1170.126 is an appealable order;2 and (2) whether the trial
court erred in denying defendant’s petition for resentencing under section 1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
2 As appellate counsel has pointed out, Courts of Appeal are split on the issue of
whether an order on a postjudgment petition pursuant to section 1170.126 is an
appealable order, and the issue is pending before the California Supreme Court. (See,
e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, reviewed granted July 31, 2013,
S211708 [court held it was not appealable]; People v. Hurtado (2013) 216 Cal.App.4th
941, review granted July 31, 2013, S212017 [court held it was appealable].) Until
directed otherwise by the Supreme Court, we will treat the denial of a section 1170.126
petition as an appealable order.
3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
RICHLI
J.
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