People v. Brown CA4/2 ( 2020 )

Filed 10/6/20 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074151
v. (Super.Ct.No. FWV18004486)
KENYON DERRAL BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Kenyon Derral Brown, in pro. per.; Leslie Ann Rose, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
After initially suspending proceedings in response to the request of defendant and
appellant Keyon Derral Brown for a mental health screening, the San Bernardino
Superior Court found defendant mentally competent and accepted his no contest plea to a
charge of robbery. (Pen. Code, § 211.)1 Defendant also admitted a prior strike
conviction. The plea included a stipulated sentence of an aggravated term of five years in
state prison for the robbery and an additional five years for the prior strike. (§ 667,
subd. (a).)
At the November 14, 2019 sentencing hearing, the court imposed the stipulated
sentence and ordered defendant to pay various fines and fees. In the course of the
hearing, it also sentenced defendant to four years to run concurrently with the sentence
for the robbery on account of a probation violation in an unrelated felony matter
involving animal cruelty (case No. FSB17001255).
Defendant filed a timely notice of appeal. He did not request a certificate of
probable cause. We affirm.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal. 3d 436 and Anders v. California (1967) 386 U.S 738, setting forth a
statement of the case and facts, and four potentially arguable issues: (1) whether
1 All further statutory references are to the Probate Code.
2
defendant’s waiver of his right to appeal is valid; (2) whether defendant can challenge the
constitutionality of his plea absent a certificate of probable cause; (3) whether the court’s
failure to consider defendant’s ability to pay fines and fees it imposed was error; and
(4) whether defendant received effective assistance of counsel. Counsel has also
requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has done. In a handwritten letter, defendant makes a number of claims that amount to
challenges to his plea. He also requests that we strike his prior violent felony conviction
and expresses concerns about a motion for modification of a sentence he received in
another case.
The challenges to the validity of defendant’s plea
Defendant raises several issues that involve events leading up to his plea and the
terms of the plea itself. They include complaints (i) that he was entitled to the midterm
sentence for the robbery and he should not have received a five-year enhancement on
account of the 10-year-old conviction for a prior violent felony; (ii) that the prosecution
engaged in misconduct with respect to the charges against him and in the course of
making its plea offer, and (iii) that his counsel’s assistance was ineffective because
counsel was not successful in getting defendant placed in a mental health court diversion
program, he failed to negotiate a good plea, and he agreed to the improper sentencing.
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None of those claims are cognizable on appeal because defendant did not obtain a
certificate of probable cause.
Section 1237.5 provides in relevant part that defendants may not appeal a
judgment of conviction upon a plea of nolo contendere unless they first obtain a
certificate of probable cause from the trial court attesting there are reasonable grounds for
the appeal. Moreover, defendant’s plea agreement specifically included a waiver of his
right to appeal “from the conviction and judgment in [his] case.” He is, therefore,
precluded from raising any issue that challenges the propriety of the plea, including the
waiver, the sentence received, and his attorney’s assistance in obtaining that plea because
he did not obtain a certificate of probable cause. (People v. Buttram (2003) 30 Cal. 4th
773, 776; People v. Espinoza (2018) 22 Cal. App. 5th 794, 797 [a defendant who waives
the right to appeal as part of a plea agreement must obtain a certificate of probable cause
to appeal on any ground encompassed by the waiver]; People v. Stubbs (1998) 61
Cal. App. 4th 243, 244-245 [certificate of probable cause required to raise issue of
counsel’s ineffective assistance prior to the plea].)
The denial of a motion to recall the sentence in the animal cruelty conviction
Defendant states that the court denied his section 1170 motion to recall his
sentence in case No. FSB17001255 (the case in which he was convicted of animal
cruelty). He also complains that “CDCR” (California Department of Corrections and
Rehabilitation) discriminates when screening prisoners convicted for nonviolent offenses
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who may be eligible for relief under section 1170. We do not have jurisdiction to review
denial of the motion because defendant has not appealed from that judgment, which has
long since become final. We note, however, that the four-year sentence in the animal
cruelty case was ordered to run concurrently with the 10-year sentence imposed in this
one, which did involve a violent felony offense.
The request to dismiss the prior violent felony conviction
Defendant refers to Senate Bill No. 1393 (2017-2018 Reg. Sess.) and requests that
we exercise our discretion to dismiss the prior violent felony, which would reduce his
sentence by five years. Senate Bill No. 1393 resulted in amendment of section 1385 to
permit the trial court to exercise its discretion to strike in the furtherance of justice a prior
serious felony conviction in connection with the five-year enhancement provided for in
section 667. (§ 1385; Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.) The statute does not
authorize this court to dismiss a conviction.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
conducted an independent review of the record and find no arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.
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