People v. Brooks CA4/2 ( 2014 )

Filed 1/27/14 P. v. Brooks 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E059239
v. (Super.Ct.No. FBA03012)
EDWARD DWAYNE BROOKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Edward Dwayne Brooks appeals after the trial court
denied his petition for resentencing under Penal Code section 1170.126, known as the
1
Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,
2012)).1 Defendant filed a notice of appeal on July 24, 2013. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged by second amended information with four counts of
second degree robbery (§ 211, counts 1-3, 5) and one count of carjacking (§ 215,
subd. (a), count 4). It was further alleged that, in the commission of counts 1 and 2,
defendant personally used a firearm. (Former § 12022.5, subd. (a).) As to count 5, it was
alleged that defendant personally used a deadly and dangerous weapon. (Former
§ 12022.) In addition, the information alleged that defendant suffered three robbery
convictions in Tennessee that qualified as prior strikes (§ 667, subds. (b)-(i)) and serious
felonies (§ 667, subd. (a)(1)), and that he had served four prior prison terms (§ 667.5,
subd. (b)).
A jury found defendant not guilty of count 1, but guilty of counts 2 through 5. It
also found not true the allegation that, as to count 2, defendant personally used a gun
(Former § 12022.5, subd. (a)), but found true the allegation that he used a weapon as to
count 5 (Former § 12022). A trial court found true the allegations that defendant suffered
three convictions that qualified as prior strikes (§ 667, subds. (b)-(i)) and serious felonies
(§ 667, subd. (a)(1)), and that he had served one prior prison term (§ 667.5, subd. (b)).
The court sentenced defendant to a total term of 89 years to life in state prison. The
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
sentence consisted of the indeterminate term of 27 years to life on count 4, plus two
consecutive 25- year-to-life terms on counts 2 and 5; 10 years on the serious felony priors
(§ 667, subd. (a)(1)); one year on the weapon enhancement (§ 12022, subd. (b)(1)); and
one year on the prison prior (§ 667.5, subd. (b)).2
On May 3, 2013, defendant filed an in pro. per. petition for resentencing under
section 1170.126. The court denied the petition on the ground that defendant’s current
convictions for carjacking (§ 215) and robbery (§ 211) made him ineligible for
resentencing under section 1170.126, subdivision (e)(1).
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. 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 [87 S. Ct. 1396, 18 L. Ed. 2d
493], setting forth a statement of the case, a brief statement of the facts, and identifying
two potential arguable issues: (1) whether the court erred in determining that defendant
was ineligible for resentencing under section 1170.126; and (2) whether section 1170.126
allows the reviewing court to review the propriety of prior convictions to determine if
they properly qualified as strike priors.
2The court originally sentenced defendant to 25 years to life on count 3, but
subsequently stayed that term under section 654.
3
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done. Under People v. Kelly (2006) 40 Cal. 4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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