People v. Potts CA2/2 ( 2021 )

Filed 4/13/21 P. v. Potts CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B307383
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094029)
v.
TIMOTHY POTTS,
Defendant and Appellant.
THE COURT:
A jury convicted defendant and appellant Timothy Potts
of inflicting corporal injury upon a person with whom he had a
“dating relationship” following a prior domestic violence
conviction (Pen. Code, § 273.5, subd. (f)(2); count 1) and six
counts of attempting to dissuade a witness (Pen. Code,
§ 136.1, subd. (a)(2); counts 4–9). The trial court found it true
that defendant had suffered two prior “strike” convictions
within the meaning of the “Three Strikes” law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as well as two
serious felony convictions (Pen. Code, § 667, subd. (a)(1)) and
five prior prison terms (Pen. Code, § 667.5, subd. (b)). The
trial court partially granted defendant’s motion pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero), striking one prior conviction as to counts 5 through
9, but denying the motion as to count 4, and sentenced
defendant to serve a total of 43 years eight months to life in
state prison. The sentence included two five-year serious
felony enhancements pursuant to Penal Code section 667,
subdivision (a)(1). (People v. Potts (May 3, 2019, B290757)
[nonpub. opn.], at p. 2 (Potts I).)
Defendant appealed. We remanded so that the trial
court could exercise its new discretion pursuant to Senate Bill
No. 1393 to consider striking one or both of the serious felony
enhancements. We affirmed in all other respects. (Potts I,
supra, B290757, at pp. 3, 24–26.)
At the November 6, 2019, hearing following remand, the
trial court declined to strike either of the serious felony
enhancements. Defendant again appealed, arguing that the
trial court erred by denying his request to reconsider his
Romero motion. On January 19, 2021, we affirmed the trial
court’s judgment. (People v. Potts (Jan. 19, 2021, B303966)
[nonpub. opn.], at p. 1 (Potts II).)
While defendant’s appeal in Potts II was pending, on
December 5, 2019, the California Department of Corrections
and Rehabilitation (CDCR) sent a letter to the trial court
regarding errors in the abstract of judgment as to counts 1
and 4.
On July 14, 2020, in response to the CDCR’s letter, the
trial court reimposed a three-strike sentence of 25 years to life
as to count 4. It granted a Romero motion as to count 1,
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struck two strikes, and imposed the low term of two years to
run consecutively to the time in count 4, the base count. It
struck one strike as to counts 5 through 9 and imposed a term
of 16 months (1/3 of the midterm) to run consecutively to each
of those counts. For the two Penal Code section 667,
subdivision (a), serious felony priors, the trial court imposed
10 years (five years for each prior) to run consecutively to the
other counts. Thus, the total sentence was 25 years to life,
plus 18 years eight months consecutive. The trial court
declined to exercise its discretion to strike the serious felony
priors.
On August 14, 2020, defendant timely filed a notice of
appeal.
Counsel was appointed to represent defendant in
connection with this appeal. After examination of the record,
counsel filed an “Opening Brief” in which no arguable issues were
raised. On December 3, 2020, appointed counsel advised
defendant of his opportunity to file a supplemental brief.
On January 12, 2021, defendant submitted a letter brief.
He asserts that the trial court erred on November 6, 2019, by
refusing to hear a new Romero motion and his appointed attorney
in July 2020 “failed to utilize the opportunity to file [a] new
Romero motion.” He also argues that the trial court was aware of
the pending appeal in Potts II, “yet failed to allow [him] to
prepare and file the new motion at the time of resentencing.”
We have examined the entire record and we are satisfied
that defendant’s appellate counsel has fully complied with his
responsibilities and that no arguable issues exist. (People v.
Wende (1979) 25 Cal.3d 436, 441 (Wende).) We are not convinced
by the arguments raised in defendant’s supplemental letter brief.
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As set forth in Potts II, the trial court did not err by refusing to
reconsider defendant’s Romero motion at the November 6, 2019,
resentencing hearing. (Potts II, supra, B303966, at pp. 4, 6–9.)
As for defendant’s assertion that his attorney failed to file
another Romero motion in July 2020, that contention does not
compel reversal. Defendant offers no facts or argument in
support of his claim that a Romero motion (1) could have been
filed, and (2) would have been granted by the trial court.
Defendant’s third argument also fails for at least two reasons:
(1) Defendant provides us with no legal authority in support of
his contention that the trial court should have afforded him the
opportunity to file a Romero motion because his appeal in Potts II
was pending; and (2) Defendant does not inform us of what he
would have set forth in that Romero motion. To the extent
defendant would have filed a Romero motion reiterating the
arguments made in his original motion, that motion would have
been denied for the reasons set forth in Potts II.
Defendant has, by virtue of counsel’s compliance with the
Wende procedure and our review of the record, received adequate
and effective appellate review of the judgment and sentence
entered against him in this case. (Smith v. Robbins (2000) 528
U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123–124.)
The trial court’s judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
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