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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
______________________
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
1 All further statutory references are to the Penal Code.
2 Defendant did not file a timely notice of appeal. However, we granted his
petition for relief from default, and the appeal was deemed to be timely filed.
3 Subdivision (d)(1) provides: “When a defendant subject to this section or
subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court may, within 120 days of
the date of commitment on its own motion, or at any time upon the recommendation of
the secretary or the Board of Parole Hearings, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if he or she had
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imposed. (People v. Williams (2007) 156 Cal.App.4th 898, 908–909.) In addition, the
court “may recall the sentence at any time on the recommendation of the Secretary of the
Califiornia Department of Corrections and Rehabilitation or the Board of Parole
Hearings. [Citations.]” (Ibid.) Neither situation applies in this case.
Upon examining the record, we conclude the petition to recall the sentence under
section 1170, subdivision (d) was properly denied. We are satisfied that defense counsel
has fully complied with his responsibilities and that no arguable appellate issue exists.
(Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
not previously been sentenced, provided the new sentence, if any, is no greater than the
initial sentence. The court resentencing under this subdivision shall apply the sentencing
rules of the Judicial Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.”
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