People v. Brown CA2/8 ( 2015 )

Filed 4/29/15 P. v. Brown CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
THE PEOPLE, B257135
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA097077)
v.
MELVIN BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for the County of Los Angeles.
Gary J. Ferrari, Judge. Affirmed as modified.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
On November 5, 2013, the district attorney filed an information charging
defendant Melvin Brown with three felony counts of selling, transporting or offering for
sale a controlled substance (cocaine base), on August 9, August 13, and September 12,
2013. (Health & Saf. Code, § 11352, subd. (a).) The information also alleged eight prior
convictions for which prison terms were served (Pen. Code, § 667.5, subd. (b)), four prior
convictions for serious or violent felonies (Pen. Code, § 667, subd. (d)), and two prior
felony convictions relating to controlled substances (Health & Saf. Code, § 11370.2,
subd. (a)).
The trial court granted defendant’s motion to represent himself, and later held an
in camera Pitchess1 hearing and ordered discovery compliance.
Defendant pled no contest to all three counts, and admitted seven of the eight prior
prison terms, three of the four prior convictions for serious or violent felonies, and both
of the prior felony convictions relating to controlled substances.
On June 9, 2014, the court sentenced defendant to state prison for the low term of
three years on each of the three counts, to be served concurrently, and an additional
consecutive three years for one of the prior controlled substance convictions (Health &
Saf. Code, § 11370.2, subd. (a)), for a total term of six years. The trial court struck all the
other prior conviction allegations. The court awarded total credits for time served of
496 days (248 actual and 248 conduct), and ordered defendant to pay a mandatory $280
restitution fine per year ($1,680) (Pen. Code, § 1202.4, subd. (b)); to register as a
narcotics offender when released (Health & Saf. Code, § 11590); and to pay a $120 court
security assessment fee (Pen. Code, § 1465.8) and a $90 criminal conviction fee (Gov.
Code, § 70373).
The minute order for the sentencing hearing showed, in addition, a $1,680 parole
restitution fine, stayed (Pen. Code, § 1202.45), and a $50 criminal laboratory analysis fee
(Health & Saf. Code, § 11372.5).
1 Pitchess v. Superior Court (1974) 11 Cal. 3d 531.
2
The abstract of judgment included all the orders in the oral pronouncement of
judgment and minute order, except that it omitted the $120 court operations assessment
(Pen. Code, § 1465.8) and the $90 conviction assessment (Gov. Code, § 70373).
Defendant filed an appeal, asserting his sentence was illegal.
Defendant’s court-appointed counsel filed a brief requesting this court’s
independent review of the record under People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Counsel’s declaration of the same date stated that she advised defendant of the nature of
the Wende brief and that she would serve a copy on defendant, that he could file a
supplemental brief within 30 days, that upon request she would send him the client’s
copy of the record on appeal to aid his preparation of a supplemental brief, that she would
remain available to brief issues as requested by the court, and that defendant could file a
request for the court to relieve her as counsel in the appeal. On the same day, this court
sent the parties a notice stating that counsel filed a Wende brief, that counsel was directed
to send the record on appeal and a copy of the brief to defendant, and that defendant
could submit by brief or letter any argument he wished the court to consider within
30 days.
The court granted an extension of time, and defendant filed a supplemental brief
on January 27, 2015.
Defendant’s arguments on appeal all flow from a duplicative prior conviction
alleged in the information. In 1988, defendant was convicted of attempted murder and,
he says, sentenced to a life term. But in 1998, the Ninth Circuit reversed his conviction
based on ineffective assistance of counsel, and directed issuance of a writ of habeas
corpus or retrial within a reasonable time. (Brown v. Myers (9th Cir. 1998) 137 F.3d
1154.) According to defendant, when the conviction was reversed in 1998, he made a
plea agreement for time served with no parole. He also claimed the 1998 plea agreement
was changed without his consent to place him on parole.
At the sentencing hearing in this case, defendant told the trial court about the
duplicate convictions alleged in the information, and indicated he had filed a writ of
habeas corpus, then pending before another judge, because of an issue with the existence
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or number of strikes on his record and their use in an earlier proceeding. In this case,
however, the trial court struck all the prior strike convictions, so no prior strikes were or
could have been used improperly.
Nonetheless, in his supplemental brief, defendant contends that his appellate
counsel was ineffective, because she should have raised “the colorable claim on appeal of
the penalty imposition of an invalid 1988 prior conviction,” and instead she filed a Wende
brief.2 But there is no colorable claim. While it is true that the information inaccurately
alleged two attempted murder convictions instead of one, defendant did not admit the
1988 conviction, and it was not used in any way to increase his punishment. In other
words, defendant’s claim that he “is illegally and unlawfully being restrained by an
invalid prior conviction . . . and that appellate counsel has withdrawn and abandoned the
appeal from the colorable claim” is simply wrong. There is no colorable claim and no
error in defendant’s six-year sentence.
Our review of the record has disclosed, however, that the trial court failed to
impose several mandatory fines and penalty assessments. We notified the parties that we
were considering modifying the judgment to correct these errors, and invited them to
brief whether that would be appropriate. Both parties agreed that the judgment must be
modified as stated in our notification to the parties.
First, the trial court should have imposed three mandatory $50 criminal laboratory
analysis fees, one for each count on which defendant was convicted. (Health & Saf.
Code, § 11372.5, subd. (a); People v. Valencia (2014) 226 Cal. App. 4th 326, 330.)
Second, seven mandatory penalty assessments apply to each criminal laboratory
analysis fee imposed. (People v. Sharret (2011) 191 Cal. App. 4th 859, 863-864, 869.)
2 There was an error in the March 18, 2014 minute order of the hearing at which
defendant’s plea was taken. The minute order stated that defendant admitted the priors
alleged in the information, but the transcript shows he denied the 1988 conviction.
Apparently defendant’s counsel initially drafted a brief raising this point. But a month
later, on September 22, 2014, counsel wrote a letter to the trial court, asking the court to
issue an order nunc pro tunc to reflect defendant’s denial of the 1988 conviction, and
ultimately filed the Wende brief.
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Each of the $50 fees is subject to the following penalty assessments, which total $155 for
each $50 laboratory analysis fee: a $50 state penalty assessment (Pen. Code, § 1464,
subd. (a)(1)); a $35 additional penalty (Gov. Code, § 76000, subd. (a)(1)); a $10 state
surcharge (Pen. Code, § 1465.7, subd. (a)); a $25 state court construction penalty (Gov.
Code, § 70372, subd. (a)(1)); a $10 penalty for emergency medical services (Gov. Code,
§ 76000.5, subd. (a)(1)); a $5 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); and a
$20 state-only DNA penalty (Gov. Code, § 76104.7, subd. (a)).
Accordingly, the abstract of judgment must be modified to impose these fines and
penalty assessments, and in addition to show the $120 court operations assessment (Pen.
Code, § 1465.8) and the $90 conviction assessment (Gov. Code, § 70373) imposed by the
court at the sentencing hearing.
Finally, we note that in the conclusion of his 10-page supplemental brief,
defendant states that “he was never provided copies of the Opening brief, or the record on
appeal, as ordered in the December 19, 2014 court ordered notice.” Counsel’s proof of
service of the Wende brief shows she served the brief on defendant. Counsel’s
declaration stated that she advised defendant “that upon request I would send him the
client’s copy of the record on appeal to aid his preparation of a supplemental brief . . . .”
Defendant does not contend the alleged failure to provide him with copies of the record
harmed him in any way, and plainly it did not.
DISPOSITION
The judgment is modified to impose three $50 criminal laboratory analysis fees
($150) under Health and Safety Code section 11372.5, subdivision (a). The judgment is
further modified to impose the following penalty assessments on each $50 criminal
laboratory analysis fee: (1) a $50 state penalty assessment (Pen. Code, § 1464,
subd. (a)(1)); (2) a $35 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (3) a $10
state surcharge (Pen. Code, § 1465.7, subd. (a)); (4) a $25 state court construction penalty
(Gov. Code, § 70372, subd. (a)(1)); (5) a $10 penalty for emergency medical services
(Gov. Code, § 76000.5, subd. (a)(1)); (6) a $5 DNA penalty (Gov. Code, § 76104.6,
subd. (a)(1)); and (7) a $20 state-only DNA penalty (Gov. Code, § 76104.7, subd. (a)).
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The amount of penalty assessments on each criminal laboratory analysis fee is $155, for a
total of $465. As so modified, the judgment is affirmed. The trial court is directed to
prepare and transmit to the Department of Corrections and Rehabilitation an amended
abstract of judgment that sets forth the criminal laboratory analysis fees and penalty
assessments as described above, and that includes the $120 court operations assessment
(Pen. Code, § 1465.8) and the $90 conviction assessment (Gov. Code, § 70373) imposed
by the court at the sentencing hearing.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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