Opinion
B332439
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. BRANDON BROWN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA117157-01, Richard M. Goul, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
An information charged defendant Brandon Brown with attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1),felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), unlawful possession of ammunition (§ 30305, subd. (a)(1); count 3), and shooting at an inhabited dwelling house or occupied motor vehicle (§ 246; count 4). The charges arose out of the shooting of a security guard at a liquor store in May 2021. The information further alleged defendant suffered three serious felony convictions (§ 1203, subd. (e)(4)) for the unlawful transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)).
Subsequent unspecified references to statutes are to the Penal Code.
In January 2022, defendant filed a motion for pretrial mental health diversion. (See § 1001.36 [authorizing pretrial diversion to a defendant who "satisfies [six] eligibility requirements . . . and the court determines that the defendant is suitable for that diversion"]; see also People v. Frahs (2020) 9 Cal.5th 618, 626-627.) In it, defendant requested the appointment of a mental health expert for the diagnosis of any mental health disorders and a prima facie hearing. (§ 1001.36, subd. (e) [court may "require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense[s] are suitable for diversion"].)
At a February 2022 arraignment, defendant pled not guilty to the charged offenses. Several months later, the court noted defendant's pending motion for pretrial mental health diversion and referred the matter to another department for consideration.
On June 10, 2022, defendant filed an ex parte application to appoint a mental health expert for evaluation and diagnosis for purposes of pretrial diversion. The court granted the request and set the matter for another pretrial conference in August 2022.
At a pretrial status conference on August 24, 2022, the court conducted a preliminary review of defendant's motion before finding defendant tentatively eligible for pretrial mental health diversion. The court transferred the matter for a full hearing.
The prosecution filed a written opposition to defendant's motion in September 2022. The prosecution argued defendant failed to meet his burden of establishing (1) his mental disorder(s) played a significant role in the charged offenses (§ 1001.36, subd. (b)(2)); and (2) he would not pose an unreasonable risk of danger to public safety (§§ 1001.36, subd. (c)(4)), 1170.18, subd. (c)).
After considering all evidence and hearing argument on October 19, 2022, the trial court denied defendant's motion for pretrial mental health diversion. The court acknowledged defendant's diagnosis for post-traumatic stress disorder (PTSD), but found insufficient evidence that diagnosis played a significant factor in the charged crimes. Even assuming defendant's PTSD diagnosis played a significant factor, the court found defendant posed an unreasonable risk of danger to public safety. The court denied the motion without prejudice, informing defendant of his ability to "renew your motion and have the court reconsider" it under new evidence.
Defendant filed a second motion for pretrial mental health diversion on March 28, 2023. Following another hearing on May 24, 2023, the court denied the motion, again finding defendant posed an unreasonable risk of danger to public safety. Alternatively, the court exercised its discretion to deny the motion under the "egregious facts and circumstances [of] this case."
No written opposition by the prosecution appears in the appellate record.
Pursuant to a negotiated agreement, on June 29, 2023, defendant pled guilty to attempted murder (count 1) and shooting at an inhabited dwelling (count 4) in exchange for a 13-year four-month prison sentence and the dismissal of all remaining counts. The court orally advised defendant of his constitutional rights and consequences of his plea, and obtained a knowing, intelligent, and voluntary waiver of the same. Counsel joined in the plea. The court dismissed count 2 and 3 and sentenced defendant to the agreed-upon disposition. The court waived all court costs and awarded defendant custody credits.
The court sentenced defendant to the middle term of seven years for attempted murder (§§ 664, 187, subd. (a)), a consecutive two-year four-month term for shooting at an inhabited dwelling (§ 246), and a consecutive four-year term for the personal use of a firearm (§ 12022.5, subd. (a)).
Defendant filed a notice of appeal from the judgment. In it, defendant identified the May 24, 2023, order denying his motion for pretrial diversion as the order from which he appealed.
After reviewing the record, defendant's court-appointed appellate counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436, requesting an independent examination of the record. In the brief, counsel stated he sent the record to defendant and advised him of his ability to file a supplemental brief.
On May 29, 2024, we notified defendant and appointed counsel that defendant would have 30 days to file a supplemental brief raising any contentions or arguments he wished this court to consider. Both notices directed appointed counsel to immediately send the record and opening brief in this appeal to defendant. To date, we have received no response.
In addition, this court issued an order limiting defendant's appeal "to issues that do not require a Certificate of Probable Cause." (See People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147 [wrongful denial of pretrial diversion "may be raised on appeal by a certificate of probable cause after a plea of guilty or no contest"], citing People v. Padfield (1982) 136 Cal.App.3d 218, 228.)
We have examined the entire record and are satisfied that no arguable issues exist, and that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278.)
DISPOSITION
The judgment is affirmed.
We concur: COLLINS, Acting P. J., ZUKIN, J.