People v. Brown CA6 ( 2014 )

Filed 4/21/14 P. v. Brown CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040158
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 178826)
v.
BOOKER TYRONE BROWN,
Defendant and Appellant.
In 1995 defendant Booker Tyrone Brown was convicted of residential first degree
burglary after the resident of a San Jose home found defendant standing in the corner of
his bathroom with a flashlight. Defendant raised his hands, announced that he hadn’t
taken anything, and ran out of the house. (Pen. Code, §§ 459/460, subd. (a).)1 The trial
court also found true allegations regarding three prior strikes (Pen. Code §§ 667, subds.
(b)-(i); 1170.12), three prior serious felonies (Pen. Code § 667, subd. (a)), and three
prison priors (Pen. Code § 667.5, subd. (b)). On August 31, 1995, the court sentenced
defendant under the former “Three Strikes” law to a prison for a term of 15 years
consecutive to 25 years to life.
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By order dated March 5, 2014, this court took judicial notice of defendant’s two
prior appeals, People v. Booker (Jan. 24, 1997, H014467) [nonpub. opn.], and People v.
Booker (Jul. 30, 1998, H017184) [nonpub. opn.].
On August 16, 2013, the defendant filed a “Motion to Recall Sentence” under the
Three Strikes Law Reform Act (the Act) and Penal Code section 1170.126. On
August 21, 2013, the trial court denied the motion, finding it duplicative of past habeas
petitions and untimely. The court also found defendant ineligible for re-sentencing under
the provisions of the Act. Defendant filed a timely notice of appeal from the trial court’s
order.
On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende) which states the case and the facts but raises no specific issues. Wende review is
only available in a first appeal of right from a judgment of conviction. (People v.
Serrano (2012) 211 Cal. App. 4th 496, 501 (Serrano).) Because defendant’s appeal is
from an order after judgment, and not a first appeal of right, he is not entitled to Wende
review. (Ibid.) Therefore, we will proceed with this appeal pursuant to the standard we
enunciated in Serrano.
Pursuant to Serrano, on January 29, 2014, we notified defendant of his right to
submit written argument in his own behalf within 30 days. On February 21, 2014, we
received a letter from defendant. In his letter, defendant speaks of his remorse and asks
this Court to “look in the particulars of my individual circumstance and take into
consideration my endeavors to rehabilitate myself . . . .” To the letter, defendant attaches
a list of over 140 different courses and workshops that he has participated in. While
defendant’s attempts to better himself through education are commendable, they are not
properly considered on appeal. Nothing in defendant’s letter raises any arguable issues
on appeal from the trial court’s denial of his petition for recall of sentence. Therefore, we
decline to retain the case.
The appellant having failed to raise any arguable issue on appeal, we dismiss the
appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
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DISPOSITION
The appeal is dismissed.
_____________________________________
RUSHING, P.J.
WE CONCUR:
_________________________________
PREMO, J.
_________________________________
ELIA, J.
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