Opinion
D071942
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTELL BROWN, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN351971) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Martell Brown of making criminal threats (Pen. Code, § 422; count 1) and felony vandalism (Pen. Code, § 594, subds. (a), (b)(1); count 2). The jury found true the allegations that Brown used a dangerous and deadly weapon in making the criminal threats in count 1 (Pen. Code, §§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)). At the conclusion of the jury trial, the court found true certain probation denial priors (Pen. Code, § 1203, subd. (e)(4)) and a prison prior (Pen. Code, §§ 667.5, subd. (b), 668). Brown's appointed appellate counsel on appeal filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
The trial court determined Martell Brown was defendant's true name. The record reflects other names for defendant: Martell Mterivell Miller, Martell T. Brown, Martell Miller, Martell T. Miller, and Martell Terrell Miller. --------
FACTUAL AND PROCEDURAL BACKGROUND
A.
On October 28, 2017, just after midnight, Brown entered a Walmart store in Oceanside and went to the sporting goods department. An overnight stocker at the store asked if Brown needed help and was told that he was looking for a crowbar or hammer. The employee showed Brown the hardware department, and she saw him select a hammer. The employee walked away; Brown followed closely behind her with the hammer in his hand. The employee turned so that Brown was no longer following her. Within three minutes, the stocker heard glass shattering from an area of the department with a case containing knives, BB guns and machetes.
Another employee, the victim, heard glass shattering from within the sports department. When walking toward the noise, the victim encountered the store's stocker, who looked scared; the stocker told the victim that a customer had broken a glass case with a hammer. When the victim entered the sporting goods department, he saw a glass case was completely shattered and a hammer was on the floor. The glass case cost over $1,000.
Brown was standing in the area of broken glass, holding a package containing a machete. The victim told Brown that he could not open the package, and the victim called for help on his radio. He told those listening to call the police, because there was a person going around the store with a machete in his hand.
Brown told the victim to leave or he would cut the victim into pieces. Brown's voice was loud and threatening. The victim feared for his life, as Brown had the machete in his hands. The victim walked away, but Brown followed him. After walking about 20 feet, the victim turned and saw Brown coming after him with the machete. Brown told the victim to "wait up" so he could cut the victim into pieces. Brown raised and lowered the machete as he made the statement. The victim was afraid.
A support manager received the victim's radio call about the disturbance. He believed the victim sounded scared and thought something was "very wrong" since the broken glass case held ammunition and weapons. Within a minute of searching for the customer with the machete, the manager ran into Brown, who held the machete at his side. The support manager told Brown that the police were coming, that he should put down the machete, and that he had to leave the store. Brown made a small shoulder move and dropped the machete. Brown then reached for the machete, but the support manager kicked it out of the way. The support manager followed Brown out of the store.
Police arrived within 10-15 minutes of the incident. The victim told law enforcement that Brown had threatened to cut him into pieces.
B.
Brown was charged in an amended information with making criminal threats (Pen. Code, § 422) and felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)). The criminal threat count alleged Brown personally used a deadly and dangerous weapon, a machete (Pen. Code, § 1192.7, subd. (c)(23), 12022, subd. (b)(1)). The amended information also alleged Brown suffered from certain probation denial priors (Pen. Code, § 1203, subd. (e)(4)) and prison priors (Pen. Code, §§ 12022, subd. (b)(1), 668). Appellant pled not guilty to all counts and denied all allegations.
Following a bifurcated jury trial, Brown was convicted of both counts and the weapon enhancement allegation. The court found true the allegations related to both probation denial priors and the prison prior.
After the verdicts, doubt was twice expressed about Brown's competency. Criminal proceedings were suspended until Brown's competency could be determined. After examination, Brown was deemed competent to proceed.
C.
Brown was sentenced to prison for a total of three years and four months as follows: the low term of sixteen months on the criminal threat conviction (count 1), with an additional year for the deadly weapon enhancement and an additional year for his prior convictions. Sentence on Brown's vandalism conviction was stayed pursuant to Penal Code section 654. Brown was given 1,025 days of credit (513 days custody credit and 512 days work and good behavior credits (Pen. Code, § 4019)). Defendant stipulated to victim restitution of $1,168.02 to Walmart. Finally, the court imposed various fines, fees, and assessments as outlined in the probation department report of July 11, 2017.
Brown timely appealed.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal, and invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified the following as possible, but not reasonably arguable, issues:
1. Whether there was sufficient evidence Brown had the requisite specific intent for a conviction of making criminal threats;
2. Whether the trial court erred by refusing to provide a unanimity instruction requested by the defense; and
3. Whether the trial court erred by refusing the defense request to instruct with CALCRIM No. 359 (corpus delicti).
A review of the record pursuant to Wende and Anders, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. We granted Brown permission to file a brief on his own behalf. He has not filed a brief.
Appellant Brown has been represented by competent counsel in this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HALLER, Acting P. J. DATO, J.