Opinion
F073308
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ALBERT BROWN, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF010353B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Albert Brown appeals for the second time from convictions that resulted from crimes he committed in 2012. In his first appeal, we found insufficient evidence to support the conviction on one count. This appeal is from the sentence imposed after a remand from this court. We agree with appellate counsel that there are no arguable issues and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Brown and an accomplice, Randy Hayes, were convicted of numerous crimes after they committed a home invasion robbery while armed with firearms. Brown was convicted of two counts of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), and one count of criminal threats (§ 422). The trial court found true that Brown personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b), had suffered a prior conviction which constituted a strike within the meaning of section 667, subdivisions (b)-(i), and had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). The trial court dismissed the prior strike allegation upon agreement of the parties, and sentenced Brown accordingly.
All statutory references are to the Penal Code unless otherwise indicated.
In the first appeal, we vacated the conviction for criminal threats, but otherwise affirmed the judgment. (People v. Hayes et al. (Oct. 28, 2015, F067970) [nonpub. opn.].) We remanded the matter for resentencing.
The trial court sentenced Brown to a prison term of six years for one robbery conviction, plus 10 years for the section 12022.53 enhancement, plus 16 months (one-third the midterm) for the second robbery enhancement, plus three years four months (one-third the midterm) for the section 12022.53 enhancement, for a total term of 20 years eight months. The firearm enhancement pursuant to section 12022.5 was stayed pursuant to section 654.
DISCUSSION
Brown appeals from the sentence imposed after remand. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asserting that after a thorough review of the record he could not identify any arguable issues. By letter dated May 4, 2016, we invited Brown to inform this court of any issues he wished addressed. Brown did not respond to our invitation.
After independently reviewing the record, we agree with appellate counsel that there are no arguable issues in this case. The matter was before the trial court for resentencing on two counts. The trial court imposed an aggravated term for the first robbery count, as it did at the original sentencing hearing. Imposition of the section 12022.53 firearm enhancement was mandatory pursuant to subdivisions (f) and (h). The sentence on the second robbery count and firearm enhancement were imposed at one-third the midterm as required by section 1170.1, subdivision (a). The trial court did not abuse its discretion in sentencing Brown, and did so within the requirements of the applicable statutes. As there were no other issues, the judgment is affirmed.
We observe the trial court failed to state the reasons for its sentencing choices as required by section 1170, subdivision (c) and California Rules of Court, rule 4.406(b)(4). However, the issue is forfeited because Brown did not object at the hearing. (People v. Powell (2011) 194 Cal.App.4th 1268, 1297-1298.) Even if the issue is ripe for review, the error is harmless. (People v. Zamarron (1994) 30 Cal.App.4th 865, 870.) The trial judge presided over both sentencing hearings, and the only difference between the sentences imposed at the two hearings was the result of our reversal of the criminal threat count.
DISPOSITION
The judgment is affirmed.