Opinion
NOT TO BE PUBLISHED THE
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA078239, No. VA078958, Rand S. Rubin, Judge.
Dexter Brown, in pro. per.; and Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Dexter Brown went on a crime spree, committing a series of robberies in Orange County and Los Angeles County. In Los Angeles, defendant robbed a gas station cashier and a person in a parking lot in 2003, and a restaurant employee in 2007, resulting in three separate cases of second degree robbery, which were later consolidated. Defendant initially represented himself, but he was later appointed counsel. Throughout the proceedings, defendant was receiving treatment for end-stage renal disease and related complications, as well as kidney dialysis, which affected his ability to appear in court on a regular basis. Defendant also had ongoing disputes with the county jail medical staff and his court-appointed counsel. Following his court trial, defendant was convicted as charged and sentenced to an aggregated state prison term of 90 years to life.
The Orange County robberies were tried first, and defendant was convicted by jury on seven counts of second degree robbery. Following a court trial, defendant was found to have suffered three prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i); 1170.12) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)). Defendant was sentenced to an aggregated state prison term of 47 years to life. The judgment was affirmed on appeal. (People v. Brown (Mar. 20, 2006, G035105) [nonpub. opn.]) review den. May 24, 2006, S142442.)
FACTUAL AND PROCEDURAL BACKGROUND
In the consolidated cases, defendant was charged by second amended information with three counts of second degree robbery. It was alleged as to count 3 that defendant personally used a firearm to commit the robbery (Pen. Code, § 12022.53, subd. (b)). The information specially alleged as to all counts defendant had suffered three prior strike felony convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and had served two separate prison terms for a felony (§ 667.5). Defendant personally entered a plea of not guilty by reason of insanity and denied the special allegations.
All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant’s motion to suppress evidence (§ 1538.5) was heard and denied. Defendant’s medical condition worsened and his case was transferred to a court that could accommodate his use of a wheelchair. Criminal proceedings were suspended twice when his court-appointed counsel declared a doubt as to defendant’s mental competence under section 1368, and defendant was ordered examined by two court-appointed mental health experts. Each time, criminal proceedings were resumed when the court found defendant competent to stand trial, after defendant waived jury and the matter was submitted on the reports of the medical health experts.
Difficulties in transporting defendant were enhanced by his size; he stands six feet six inches and weighs approximately 300 pounds.
Defendant repeatedly rejected the People’s plea offer of 12 years to be served concurrently to his sentence in the Orange County case. Two of his Marsden motions to have new defense counsel appointed were denied. The court granted defendant’s third Marsden motion based on a conflict of interest and appointed new counsel, who represented defendant for the remainder of the proceedings.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant waived his right to trial by jury. The evidence at the court trial was defendant entered a gas station convenience store on July 26, 2003, and demanded money from the cashier, Jose Galicia. Defendant left with cash and drove off in a green truck. On May 26, 2003, Sara Chhay (Chhay) was in a parking lot, when defendant got out of a green truck and asked for directions. He then grabbed her purse from her shoulder and fled in the truck. On July 26, 2007, Tariqul Islam had just finished serving his last restaurant customer when defendant entered, displayed a gun, took money from the cash register and fled.
The trial court admitted Chhay’s preliminary hearing testimony into evidence (Evid. Code, § 291 [former testimony of unavailable witness]) after finding the prosecution had exercised due diligence in trying to secure her attendance at trial (Evid. Code, § 240).
Following the presentation of evidence and argument by counsel, the trial court found defendant guilty of three counts of second degree robbery as charged. The court also found true the arming enhancement as to count 3.
Defendant repeatedly objected to a court trial on the sanity phase, claiming he had only waived jury as to the guilt phase. The court disagreed, finding the defendant’s jury waiver had encompassed both the guilt and sanity phases of his trial.
At the outset of the sanity phase, defense counsel announced ready, but defendant objected, claiming his attorney had not interviewed him or subpoenaed his defense witnesses. When the court informed defendant the sanity phase was going forward, defendant claimed he was suffering a heart attack. Paramedics were called to administer to defendant, and the trial was continued.
Refusing to come to court, defendant did not appear at the continued trial on the sanity phase and prior conviction allegations. The trial court related to counsel his earlier conversation with Dr. Sander Peck, the chief physician of medical services at the Los Angeles County jail, and read the doctor’s faxed correspondence into the record. The court also read into the record two statements faxed from sheriff deputies who were charged with transporting defendant. Based on that information, the trial court found defendant had voluntarily absented himself from court, and proceeded to trial on the prior conviction allegations and sanity phase. The court found true the prior conviction allegations and also found defendant was sane at the time he committed the robberies.
Prior to sentencing, the trial court denied defendant’s Romero motion and refused to strike defendant’s prior strike convictions. The court then sentenced defendant as a third strike offender to an aggregated state prison term of 90 years to life: (1) a term of 25 years to life for robbery on count 1, plus five years for the prior serious felony conviction; (2) a consecutive term of 25 years to life for robbery on count 2; and (3) a consecutive term of 25 years to life for robbery on count 3, plus 10 years for personally using a firearm to commit the robbery. Defendant received presentence custody credit of 1,049 days (913 actual days and 136 days of conduct credit). The court ordered defendant to pay a $20 security assessment and a $10,000 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45. The court also ordered defendant to pay restitution to the victims under section 1202.4, subdivision (f). Defendant filed a timely notice of appeal.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On September 12, 2008, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. After granting defendant several extensions, on April 6, 2009, we received a typed supplemental brief in which defendant appears to claim the trial court erred in finding defendant voluntarily absented himself from court and therefore improperly proceeded in defendant’s absence with the sanity phase of the trial.
We have examined the entire record and are satisfied defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441.) Because defendant’s claim relies upon evidence which is outside the record, it is not cognizable on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 634; see People v. Jones (2003) 30 Cal.4th 1084, 1105.) Defendant may pursue the remedy of filing a petition for writ of habeas corpus. Should defendant choose to do so, his petition must first be filed in superior court—not here.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.