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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B260785

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA064165)
         v.

THORNTON DAVID WITHERS,

         Defendant and Appellant.




                   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.


                                            _____________________
       In 1996 Thornton David Withers pleaded guilty to two counts of second degree
robbery (Pen. Code, § 2111) after he and an 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 personally 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). The court sentenced Withers to an aggregate state prison term of 30
years to life. (People v. Withers (Nov. 19, 2003, B162764) [nonpub. opn.].)
       On November 13, 2014 the trial court denied with prejudice Withers’ petition for
recall of sentence pursuant to section 1170.126 on the ground that Withers was ineligible
for resentencing (§ 1170.126, subd. (e)). Withers appealed.
       We appointed counsel to represent Withers on appeal. After examining the record,
counsel filed an opening brief that did not raise any issues. On March 11, 2015 we
advised Withers that he had 30 days to submit a brief raising any contentions or issues he
wanted us to consider.
       After granting an extension of time, we received from Withers on April 29, 2015
an 18-page typed “supplemental brief” with attached exhibits. Withers 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 (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];


1
       All statutory references are to the Penal Code.

                                              2
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 attached to Withers’ supplemental
brief, 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 as two
separate strikes. In that order, we explained that, because the record showed his two prior
robbery convictions were against separate victims, Withers 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
       The order is affirmed.




       SEGAL, J.


We concur:




       ZELON, Acting P. J.




       STROBEL, J.*




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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