People v. Brown CA2/2 ( 2021 )

Filed 9/22/21 P. v. Brown 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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, B308518
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA061229)
v.
CORNELL COOPER BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
******
Defendant and appellant Cornell Cooper Brown (defendant)
appeals from the judgment entered upon resentencing after one
of his prior convictions was reduced to an infraction. His
appointed counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), raising no issues. After defendant was
notified of his counsel’s brief he filed his own supplemental brief,
claiming that the trial court imposed the upper term to his first
degree burglary conviction in violation of his right to a jury trial
as to the facts justifying the high term under the principles
enunciated by the United States Supreme Court in Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny (the
“Apprendi rule”). We have reviewed defendant’s supplemental
brief and the record and find no violation of the Apprendi rule.
Accordingly, we affirm the judgment.
BACKGROUND
In 2014, a jury convicted defendant of first degree burglary
(count 10; Pen. Code, § 4591), misdemeanor receiving stolen
property (count 11; § 496, subd. (a)), three counts of forgery
(counts 12, 13, & 14; § 476), grand theft (count 24; § 487, subd.
(a)), unlawful possession of ammunition (count 26; § 30305, subd.
(a)(1)), and unlawful taking of a vehicle with a prior conviction
(count 27; § 666.5). Defendant admitted two prior serious felony
convictions, a violation of section 422 and a violation of Health
and Safety Code section 11360, subdivision (a), as alleged under
the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(j),
1170.12), and section 667, subdivision (a)(1), the five-year
recidivist enhancement. Defendant also admitted that he had
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
served a prior prison term within the meaning of section 667.5,
subdivision (b).
The trial court sentenced defendant to 36 years to life plus
six years in prison as follows: the middle term of three years
doubled to six years on count 27; 25 years to life on count 10, plus
10 years for the two convictions alleged pursuant to section 667,
subdivision (a)(1), and one year for a prior prison term; two-year
concurrent terms as to each of counts 14, 24, and 26; a two-year
stayed sentence on each of counts 12 and 13; and a 180-day
concurrent sentence on count 11. Defendant appealed from the
judgment, and this court issued a nonpublished opinion in People
v. Brown (June 27, 2016, B262304), reversing the conviction on
count 13, striking one of the five-year recidivist enhancements,
and ordering a corrected abstract of judgment.2 In July 2017, the
trial court issued a new abstract of judgment reflecting a total
sentence of 31 years to life, plus six years.
Defendant thereafter filed an application under Proposition
64 (as approved by voters, Gen. Elec. (Nov. 8, 2016)) to
redesignate his conviction for violating Health and Safety Code
section 11360, subdivision (a). In January 2019, the application
was granted and defendant’s conviction was designated an
infraction pursuant to Health and Safety Code section 11361.8,
subdivision (f). In 2020, defendant filed a petition for writ of
habeas corpus seeking to recall his sentence based on the
reduction of one of his prior strikes to an infraction. The trial
court granted the requested relief, appointed counsel, and
scheduled full resentencing in accordance with People v. Buycks
(2018) 5 Cal.5th 857.
2 At appellate counsel’s request, we have taken judicial
notice of our opinion in defendant’s appeal.
3
On October 6, 2020, the trial court vacated defendant’s
sentence in its entirety and resentenced him as a second strike
offender, rather than a third strike offender. The court noted
that defendant was also entitled to receive the benefit of Senate
Bill No. 136 (2019-2020 Reg. Sess.) by eliminating the one-year
prison prior imposed pursuant to section 667.5, subdivision (a).
The court also noted that counsel for both sides had stipulated to
the use of the 2013 probation report. To refresh its recollection
the court considered the probation report, the transcript of the
court’s original sentencing and the appellate opinion in case
No. B262304. In addition the court reviewed documents
submitted by defendant: a letter of support from Jauzalynne
Meadows, a graduate certificate, a certificate of baptism, and a
certificate of completion of The Purpose Driven Life Spiritual
Growth Campaign. Defense counsel requested that defendant be
sentenced to the middle term on count 10, which the court
acknowledged it had previously chosen. However the court
stated that it had been generous because of defendant’s long
indeterminate term, implying that it was no longer justified due
to defendant’s extensive criminal history.
The trial court found no factors in mitigation. As factors in
aggravation the court found that defendant had engaged in
violent conduct that indicated a serious danger to society,
defendant had a substantial criminal history including serious
convictions and juvenile adjudications, and defendant’s prior
performance on probation had been unsatisfactory. The court
imposed a total prison term of 23 years. The court selected the
high term of six years for count 10 (first degree burglary),
doubled to 12 years as a second strike, plus a consecutive five
years pursuant to section 667, subdivision (a)(1). The court
struck the one-year prison prior enhancement, and imposed a
4
concurrent term of 180 days as to count 11 and two years on
count 12, which it stayed pursuant to section 654. As to each of
counts 14, 24, and 26, the court imposed eight months (one-third
the middle term) doubled to one year four months; and on count
27, the court imposed one year (one-third the middle term). The
court reduced the previously imposed restitution fine from $5,000
to $2,000.
Defendant filed a timely notice of appeal from the
judgment.
DISCUSSION
In his supplemental brief defendant contends that the trial
court’s selection of the upper term for count 10 was a violation of
his right to a jury trial on the facts justifying the high term under
the principles enunciated by the United States Supreme Court in
Apprendi, supra, 530 U.S. 466, Blakely v. Washington (2004) 542
U.S. 296, and Cunningham v. California (2007) 549 U.S. 270.3
“The Apprendi rule does not apply to ‘the fact of a prior
conviction.’” (People v. Scott (2015) 61 Cal.4th 363, 405, quoting
Apprendi, supra, 530 U.S. at p. 490; see Blakely v. Washington,
supra, 542 U.S. at p. 301; Cunningham v. California, supra, 549
U.S. at pp. 274-275.) “[A]ggravating circumstances based on a
3 Since those decisions were published, California
Legislature amended section 1170, subdivision (b) to allow trial
judges broad discretion in selecting a term within the statutory
range. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Under the revised version of section 1170, subdivision (b), “(1) the
middle term is no longer the presumptive term absent
aggravating or mitigating facts found by the trial judge; and (2) a
trial judge has the discretion to impose an upper, middle or lower
term based on reasons he or she states.” (Wilson, at p. 992.)
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defendant’s criminal history that render the defendant eligible
for the upper term include a trial court’s finding that the
defendant suffered a prior conviction . . . and that the defendant
performed unsatisfactorily while on probation or parole to the
extent such unsatisfactory performance is established by the
defendant's record of prior convictions . . . .” (People v. Scott,
supra, at p. 405, citations omitted.) Moreover, only a single valid
aggravating circumstance is required to impose an upper term
sentence. (Id. at pp. 404-405.)
Thus no jury findings were required as to the factors in
aggravation relied upon here: defendant’s substantial prior
criminal history and his unsatisfactory prior performance on
probation, as demonstrated by the stipulated use of the probation
report. The trial court did not err. We conclude that 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 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.)
DISPOSITION
The judgment is affirmed.
________________________
CHAVEZ, J.
We concur:
_______________________ ________________________
LUI, P. J. ASHMANN-GERST, J.
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