Opinion
H044645
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE QUINCY BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1515215)
Defendant Jermaine Quincy Brown pleaded no contest to two counts of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)) and admitted the allegation that he had previously been convicted of a violent or serious felony, i.e., a strike offense (§ 1170.12). On December 2, 2016, the court sentenced defendant to four years in prison to run consecutive to a 13-year prison sentence he was already serving arising out of a conviction in Alameda County.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. Following the California Supreme Court's direction, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Kelly, supra, at p. 110.)
I. FACTUAL BACKGROUND
The facts underlying the charged offenses are not part of the record, although information in the record indicates that the robbery of Ms. Amato took place at a convenience store. Our recitation of the facts is based upon the felony complaint filed on June 24, 2015.
On March 13, 2015, in Santa Clara County, defendant took the personal property (cash) from the person and immediate presence of Chau Huynh, which property was taken against the victim's will and accomplished by means of force or fear. On the same day in Santa Clara County, defendant took the personal property (cash) from the person and immediate presence of Angel Amato, which property was taken against the victim's will and accomplished by means of force or fear.
II. PROCEDURAL BACKGROUND
Defendant was charged by a four-count felony complaint on June 24, 2015, with two counts of second degree robbery (§§ 211/212.5, subd. (c); counts 1 and 2), and two counts of drawing or exhibiting an imitation firearm in a threatening manner (§ 417.4; counts 3 and 4). It was alleged further in the complaint that defendant had one prior strike conviction (§§ 667, subd. (b)-(i), 1170.12), one prior serious felony conviction (§ 667, subd. (a)), and one prison prior (§ 667.5, subd. (b)).
On November 10, 2016, pursuant to a negotiated plea, defendant pleaded no contest to counts 1 and 2 and admitted the strike allegation with the understanding that (1) he would be sentenced to state prison for a term of four years to be served consecutive to the sentence he was serving that arose out of a conviction in Alameda County, (2) counts 3 and 4 would be dismissed, and (3) the remaining special allegations would be stricken. The court found that defendant had knowingly and voluntarily waived his rights in entering the no contest plea, and it found further, based upon the stipulation of counsel that there was a factual basis for the plea, that defendant was guilty of counts 1 and 2.
On December 2, 2016, the court imposed a four-year prison sentence, based upon the imposition of consecutive two-year sentences as to each count (one-third middle terms, doubled), and with said four-year sentence to run consecutive to a 13-year prison sentence previously imposed in connection with criminal proceedings in Alameda County (case No. H58524). The court did not award any presentence credits. The court also imposed a restitution fine of $300 (§ 1202.4, subd. (b)), and a corresponding parole revocation fine that was suspended (§ 1202.45); a crime prevention fine of $10, plus a penalty assessment of $31 (§ 1202.5); a court operations assessment of $80 (§ 1465.8); a criminal conviction assessment of $60 (Gov. Code, § 70373); and a booking fee of $259.50 to the County of Santa Clara (id., §§ 29550, 29550.1, 29550.2). The court dismissed the remaining counts and allegations.
Defendant filed two timely notices of appeal. In the appeal notice filed on December 19, 2016, defendant indicated the appeal was based upon (1) the sentence or other matters occurring after the plea that did not affect the validity of the plea, and (2) a challenge to the validity of the plea. Defendant requested a certificate of probable cause based upon a question as to whether he was "mentally competent to know . . . whether or not [his] mental health could [have] been a deciding factor under the sentencing . . . without first having . . . been evaluated by a mental health doctor." (Sic.) He also stated that he should have been awarded custody credits. In the second appeal notice filed December 30, 2016, defendant indicated the appeal was based upon a challenge to the validity of the plea. Defendant requested a certificate of probable cause based upon "[i]effective assistance of coun[s]el" because of counsel's failure to represent defendant, failure to request custody credits, and failure to argue that his mental health issues played an important role in the commission of the charged offenses. The trial court denied defendant's two requests for a certificate of probable cause on April 13, 2017.
The record reflects handwriting at the top of the second appeal notice "— INOPERATIVE —." --------
On July 17, 2017, defendant's appellate counsel sent a letter to the trial court requesting, pursuant to section 1237.1, that it amend the abstract of judgment and minutes to reflect both the presentence credits previously awarded in the Alameda County sentence and the total aggregate custody credits. Counsel noted that the trial court had been correct in awarding no presentence credits because defendant had been previously sentenced to prison in the Alameda County case. Counsel, however, sought—citing People v. Buckhalter (2001) 26 Cal.4th 20, 37—an amendment of the abstract and minutes to include the period of confinement, including the time defendant spent in the Santa Clara County jail. On September 22, 2017, the trial court amended the abstract of judgment and the minute order of the sentencing hearing to reflect the following regarding custody credits: "Presentence credits [awarded] for Alameda case [were] 372 actual + 55 PC 2933.1 = 427 total[.] Actual credits original sentence in Alameda County to sentence in Santa Clara = 253 actual[.] Total actual days for Alameda County case [are] 372 + 253 = 625 days."
III. DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.