Filed 1/20/16 P. v. Patton 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B264076

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA065829)
         v.

DONDI LAMAR PATTON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Curtis B. Rappe, Judge. Affirmed.
         California Appellate Project, Jonathan B. Steiner, Executive Director, and
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
      In 1993, defendant Dondi Lamar Patton was convicted in Los Angeles
Superior Court Case No. BA065829 of two counts of assault on a peace officer.
(Pen. Code, § 245, subd. (d)(1).)1 This court affirmed the judgment in an
unpublished opinion (B075884).
      In 2003, defendant was convicted in Riverside Superior Court Case No.
RIF102007 of five counts of robbery (§ 211), six counts of false imprisonment
(§ 236), and one count of possession of a stolen car (§ 496d). In that case, the two
prior Los Angeles convictions were found to be strikes (§§ 667, subds. (b) – (i),
1170.12, subds. (a) – (d)), as well as serious felonies (§ 667, subd. (a)), and
defendant was sentenced to a third strike sentence of 60 years to life in state prison.
      On appeal, the Riverside judgment was affirmed by the Fourth District Court
of Appeal, Division 2, in an unpublished opinion, with a modification (as here
relevant) striking one of the five-year enhancements for the two prior serious
felony convictions. The court of appeal noted that in the prior Los Angeles case,
“[t]he probation report indicates that defendant was convicted of two counts of
assault with a firearm upon a peace officer in violation of section 245, subdivision
(d)(1). . . . At the trial on the priors, defense counsel pointed out that both
shootings were part of the same incident and tried together but were charged
separately because defendant shot two different officers at the time. The
prosecutor concurred. Thus, the multiple convictions were not [brought and tried
separately as required by section 667, subdivision (a) and In re Harris (1989) 49
Cal.3d 131, 136], and imposition of consecutive sentencing enhancements was
improper. . . . One of the two 5-year terms pursuant to section 667, subdivision (a)
must therefore be stricken from defendant’s sentence.”



1
      All further section references are to the Penal Code.
                                              2
      In 2015, defendant filed a motion in Los Angeles Superior Court to recall his
sentence on the Los Angeles convictions and to be resentenced, based on the
California Supreme Court’s decision in People v. Vargas (2014) 59 Cal.4th 635,
646-649, in which the court held that where a defendant has suffered two prior
convictions growing out of a single act, involving a single victim, only one of the
convictions may be treated as a strike within the meaning of the Three Strikes law.
Although defendant did not expressly designate the motion as such, it appears that
he considered it to be made under section 1170.126, subdivision (b), the provision
of Proposition 36 that provides for a motion to recall a sentence by an offender
serving a three strike sentence based on a third strike conviction that is not defined
as a serious or violent felony.
      Apparently considering the motion to have been made under section
1170.126, subdivision (b), the Los Angeles Superior denied it because defendant
was not prosecuted under the Three Strikes law in the Los Angeles case, and
because, in any event, Vargas did not apply because the two counts involved
separate victims.
      Defendant appeals from the order. His court-appointed attorney filed an
opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende),
requesting that we independently review the record to determine if the lower court
committed any error. Having been informed his right to file a supplemental brief,
defendant has done so. In his brief, he argues, as he did in his motion, that he is
entitled under Vargas to have one of his prior convictions in the Los Angeles case
stricken and to be resentenced.
      Assuming that defendant’s motion is properly characterized as a motion to
recall his sentence under section 1170.126, subdivision (b), and that the order
denying the motion is therefore appealable (Teal v. Superior Court (2014) 60

                                          3
Cal.4th 595, 597), defendant is not entitled to relief. Defendant is not serving a
third strike sentence in the Los Angeles case, and in any event the reasoning of
Vargas does not apply to his convictions in that case because his crimes were
against two separate victims.
      We have independently reviewed the record and conclude that there are no
arguable issues on appeal. (See Wende, supra, 25 Cal.3d at pp. 441-442; see also
Smith v. Robbins (2000) 528 U.S. 259, 276 [upholding the Wende procedure].)


                                     DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             COLLINS, J.



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