People v. Brewer CA3 ( 2015 )

Filed 8/31/15 P. v. Brewer CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C076848
Plaintiff and Respondent, (Super. Ct. No. 13F01050)
v.
JERMAINE NATHANUEL BREWER,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by amended consolidated complaint1 with second degree
commercial burglary (Pen. Code, § 459 -- count one),2 seven counts of second degree
1 The trial court granted the prosecution’s order to consolidate case No. 13F01050 with
case Nos. 13F01293 and 13F00701.
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robbery (§ 211 -- counts two through seven and count nine), and possession of stolen
property (§ 496, subd. (a) -- count eight). The amended complaint alleged defendant
personally used a firearm (§ 12022.53, subd. (b)) in the commission of counts three, four,
five, and six, and suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Following a hearing, the trial court denied defendant’s Marsden3 motion.
Defendant entered a negotiated plea of no contest to one count of second degree
robbery (count five) and admitted the firearm enhancement and the prior strike in
exchange for a stipulated sentence of 20 years in state prison and dismissal with a
Harvey4 waiver of all remaining charges. The factual basis for the plea is as follows:
On February 2, 2013, defendant took personal property from Marcus Robles by
means of force and fear, using a handgun in the commission of that offense. Defendant
was previously convicted on June 15, 2011, of first degree burglary (§ 459), a serious
felony within the meaning of section 1192.7, subdivision (c), which crime constitutes a
strike within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.
The trial court denied probation and sentenced defendant to the upper term of five
years for the robbery, doubled pursuant to the prior strike, plus a consecutive 10-year
term for the firearm enhancement, for an aggregate term of 20 years in state prison as
stipulated. The court imposed “[o]nly mandatory minimum fines and fees” and “all the
terms contained on pages 13 and 14 of the probation report with a modification to
reducing the fines to mandatory minimum,” noting that “[n]onmandatory fees and fines
will be stricken.” Pages 13 and 14 of the probation report include: a $280 restitution fine
2 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
3 People v. Marsden (1970) 2 Cal. 3d 118.
4 People v. Harvey (1979) 25 Cal. 3d 754.
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(§ 1202.4); a $280 parole revocation fine (§ 1202.45) stayed pending successful
completion of parole; restitution to be paid to some of the victims (i.e., Game Trader -
$2,300; Round Table - $1,306.30; Game Stop (Folsom Blvd.) -- $2,030.60); reservation
of the amount of restitution to another victim (i.e., Game Stop (Calvine Road)) to be
determined at a later date; and a $10 crime prevention fine (§ 1202.5). The court did not
orally impose court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal
conviction assessment (Gov. Code, § 70373, subd. (a)(1)), both of which are mandatory,
or mention page 15 of the probation report where these assessments were referenced.
However, both assessments are reflected in the abstract of judgment. The court awarded
defendant 510 days of presentence custody credit (444 days of actual credit plus 66 days
of conduct credit).
Defendant filed a timely notice of appeal. The court denied his request for a
certificate of probable cause. (§ 1237.5.) Thereafter, defendant filed a subsequent notice
of appeal and request for a certificate of probable cause. Again, the court denied his
request for a certificate of probable cause.
WENDE REVIEW
Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days have elapsed, and we have received no communication from defendant. Having
undertaken an examination of the entire record, we find no arguable error that would
result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
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