Filed 7/27/15 P. v. Withers CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

THORNTON D AVID WITHERS,

Defendant and Appellant. B260785

(Los Angeles County Super. Ct. No. TA064165)

APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.

Thornton David Withers, in pro . per. ; Richard B. Lennon, under
appointment by the Court of Appeal

, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_____________________2

In 1996 Thornton David Withers pleaded guilty to two counts of second degree
robbery (Pen. Code, § 211 1 ) after he and a n associate entered a grocery store and
demanded money from two employees. In 2002 a jury convicted Withers of assault with

a firearm (§ 245, subd. (a)(2)), a serious felony ( § 1192.7, subd. (c)(23)) and found he
had per sonally used a firearm to commit the offense (§ 12022.5). In a bifurcated
proceeding the trial court found true the special allegations Withers had two prior
convictions for robbery within the meaning of the three strikes law

. ( §§ 667, subds.

(b)

- ( i ); 1170.12). T he court sentenced Wi thers to an aggregate state prison term of 30
years to life. ( People v. Withers (Nov. 19, 2003, B162764) [nonpub. o pn

. ].)

On November 13, 20 1 4 the trial court denied with prejudice Wi thers’ petition for

recall of sentenc e pursuant to section 1170.126 on the ground that Withers was ineligible
for resentencing ( § 1170.126, subd. (e)). Wi thers appealed.
We appointed counsel to represent Wi thers o n appeal. After examin ing the record,
counsel filed an opening brief that did not raise any issues. On March 11, 2015 we

advised Wi thers that he had 30 days t o submit a brief raising any contentions or issues he

w anted u s to consider.
After granting an extension of time, we received from Withers o n April 29, 2015

a n 18

- page typed “supplemental brief” with attached exhibit s

. Wi thers argues that his
appellate counsel provided ineffective assistance in failing to challenge the trial court’s
finding that Withers’ robbery convictions made him statutorily ineligible for
resentencing. Withers argues that under People v. Vargas (2014) 59 Cal.4th 635 his prior
robbery convictions should not have counted as two separate strikes. On June 9, 2015,
Withers filed a request that we take judicial notice of In re Alejandro B. (2015) 236
Cal.App. 4th 705, a decision he maintains supported his position.

We have examined the entire record and are satisfied Withers’ attorney on appeal
has fully complied with the responsibilities of counsel and there are no arguable issues.

(See Smith v. Robbins (20 00) 528 U.S. 259, 277

- 284 [120 S.Ct. 746, 145 L.Ed.2d 756];

1 All statutory references are to the Penal Code.3

People v. Kelly (2006) 40 Cal.4th 106, 112

- 113; People v

. Wende (1979) 25 Cal.3d 436,

441.) This court’s February 11, 2015 order, which is a ttached to Withers’ supplemental

bri ef, denied Withers’ petition for writ of mandate to compel the trial court to resentence
him on the ground that under Vargas his prior robbery convictions did not count a s two
separate strikes

. In that order, we explained that, because the record showed his two prior

robber y convictions were against separate victims , W ithers is not entitled to resentencing.

In re Alejandro B. , supra , 236 Cal.App.4th 705, is not to the contrary. In re
Alejandro B. did not involve prior convictions. In that case the Court of Appeal reversed
the juvenile court’s dismissal of one of two current commitment offenses arising out of a
single act, holding that the juvenile court should have stayed imposition of sentence,
rather than dismissing, one of the two counts. ( Id. at p. 707.)

DISPOSTION

T he order is affirmed.

SEGAL, J.

We concur:

ZELON, Acting P. J.

STROBEL, J. *

* J udge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the Ca lifornia Constitution.