People v. Brogdon CA4/2

Opinion

Filed 9/13/22 P. v. Brogdon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078643

v. (Super.Ct.No. RIF2004374)

JOHN KEVIN BROGDON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Gail A. O’Rane and Mark

E. Johnson, Judges.

John Kevin Brogdon, in pro. per., and Savannah R. Montanez, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant, John Kevin Brogdon, pled guilty to one count of second

degree robbery (Pen. Code, § 211, count 1)1 and one count of threatening to commit a

1 All further statutory references are to the Penal Code unless otherwise indicated. [footnote continued on next page]

1 crime (§ 422, count 2). Pursuant to the plea agreement, the court sentenced defendant to

three years of imprisonment. After defense counsel filed a notice of appeal on behalf of

defendant and counsel from Appellate Defenders, Inc., filed an amended notice of appeal,

this court appointed counsel to represent defendant.

Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a

statement of the case, and identifying three potentially arguable issues: (1) whether the

court sentenced defendant in accordance with his plea agreement; (2) whether the court

properly imposed the upper term of three years on the threatening the commit a crime

count; and (3) whether the court had jurisdiction to consider defendant’s motion to

withdraw his guilty plea.

Defendant was offered the opportunity to file a personal supplemental brief, which

he has done. Defendant enumerates five contentions on appeal: (1) that Senate Bill

No. 483 (2021-2022 Reg. Sess.), which was codified in section 1171.1. (Stats. 2021, ch.

728, § 3) somehow applies because it “clearly states that the same case against the same

person would be only one strike against [defendant] not two”; (2) pursuant to

section “1170.1 and perhaps People v. Vargas (2014) 59 Cal.4th 635, 646,” he should

have only one, not two, strikes against him; (3) we should consider that he suffers from a

major mental illness and consider the application of Senate Bill No. 81 (2021-2022 Reg.

Sess.) and Senate Bill No. 82; (4) he questions whether “859 credit comp. no longer

2 exist—only 809? Just 20 days more or less”; and (5) he notes that he never had a

weapon, and he found the robbery note on the ground. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant admitted that on December 19, 2020, he willfully, unlawfully, and by

means of force and or fear took personal property from the immediate presence of the

victim. He also admitted that he threatened the victim with great bodily injury or death.

On December 23, 2020, the People charged defendant by felony complaint with

robbery (§ 211, count 1), threatening to commit a crime (§ 422, count 2), and two counts

of attempted robbery (§§ 664, 211, counts 3 & 4). The People additionally alleged that in

his commission of the counts 1 and 2 offenses, defendant had personally used a deadly

weapon, a knife, (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and that defendant had

two prior convictions within the meaning of section 1203, subdivision (e)(4).

On May 19, 2021, defendant filed a letter requesting a Marsden2 hearing. During

the Marsden hearing on May 25, 2021, defense counsel declared a doubt about

defendant’s mental competence to stand trial and asked the court to proceed pursuant to

section 1368. The court denied the Marsden motion.

The court declared a doubt about defendant’s competence to stand trial and

referred the matter for the appointment of medical examiners. On May 27, 2021, the

court appointed two medical examiners to determine defendant’s mental competence to

stand trial.

2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

3 On June 21, 2021, a psychologist filed a report concluding that defendant was

competent to stand trial. On June 22, 2021, a second psychologist filed a report opining

that defendant was competent to stand trial. On June 24, 2021, based on the parties’

stipulation that the court could base its findings on the psychologists’ reports, the court

found defendant competent to stand trial. The court granted defense counsel’s request to

place defendant in mental health court pursuant to section 1001.36.

On August 26, 2021, defense counsel again declared a doubt about defendant’s

competency to stand trial. Defendant requested another Marsden hearing. The court held

a Marsden hearing after which it denied defendant’s request. The court declared a doubt

regarding defendant’s mental competency to stand for trial and appointed psychologists

to evaluate defendant.

On October 1, 2021, a psychologist filed a report concluding that defendant was

competent to stand trial. On October 18, 2021, another psychologist filed a report

opining that defendant was competent to stand trial. On October 22, 2021, the parties

submitted on the psychologists’ reports. The court reinstated criminal proceedings and

referred the matter to the mental health court.

On October 26, 2021, the parties requested the court order an eligibility report

from the mental health court, which the court ordered. On January 25, 2022, the People

informed the court that defendant had been found unsuitable for mental health court. The

court referred the matter for a felony settlement conference.

4 On January 27, 2022, defendant pled guilty to one count of second degree robbery

(§ 211, count 1) and one count of threatening to commit a crime (§ 422, count 2). The

court went over the plea form with defendant. The court asked defendant if he had gone

over the plea form with his attorney. Defendant said that he had. Defendant said that he

understood everything in the plea agreement. Defendant said that he understood the

consequences of the plea.

The plea agreement expressly provided that each conviction would be a “strike.”

Defendant initialed a provision that he understood he was pleading “to a ‘strike’ offense

or offenses and that [he would] be subject to increased penalties and punishments if [he]

commit[ted] a future felony.” Defendant told the court he understood that he was

“subjecting [himself] to the Three Strikes Law, such that if [he] pick[ed] up any

qualifying offense in the future, [he] could be subject to the Three Strikes Law and be

sentenced to 25 to life.” Defendant initialed the provision that he would waived any right

to appeal.”

In exchange for the plea, the People agreed to a sentence of three years of

imprisonment, consisting of the midterm of three years on count 1 and the upper term of

three years on count two, to run concurrent to count 1. The People agreed to dismiss all

remaining counts and enhancements and to the award of 465 days of total credit

consisting of 405 actual, and 60 days of conduct credit pursuant to section 2933.1.

5 The court sentenced defendant to three years of imprisonment consisting of the

midterm on count 1 and the upper term of three years on count two, to run concurrent to

count 1, as specified in the plea agreement. The court awarded defendant 465 days of

total credit as provided by the plea agreement; the court dismissed all remaining counts

and enhancements.

On February 9, 2022, the court set the matter for a hearing on a motion to

withdraw the plea.3 At the hearing on February 10, 2022, the court noted, “It’s been sent

to me for a Sanchez4 hearing. I assume you wanted to withdraw your plea?” Defendant

responded that he did, and then stated: “I was hearing voices really bad that day, and this

is a very good attorney and I should have listened to this lady. I don’t want to throw her

under the bus. And I was just trippin’ hard and . . . the other attorney, . . . said I could

probably get into a program over in mental health court, and I have gotten programs over

there before. So I was back and forth to court, and a lot of times I was so tired and I was

hearing voices. But [I am] on the right medications and I’m not trippin’ anymore.”

The court noted, “Let me just—I’ll be blunt with you, [defendant]. I get—a three-

year sentence with your record, frankly I think that was a very good deal. You had a lot

of stuff going on . . . .” The court observed, “I don’t think I have any jurisdiction here.

He’s already been sentenced to state prison.”

3 There is no motion to withdraw the plea, either oral or written, in the record on appeal.

4 People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez).

6 Defendant complained that his counsel was not aware of defendant’s physical and

mental issues. Defendant said, “we had another deal for four years, one strike, and I

thought we were still doing that. I didn’t have my glasses that day and so I just signed

it.” “It scares me to have two strikes.”

Defense counsel noted that she was only supposed to stand in for defendant’s

counsel the day he entered the plea. She told defendant to wait until his regular counsel

returned before entering any plea. However, defendant did not wish to wait. The People

had “originally offered him three strikable offenses. So I went back to the [People] and I

said, that’s going to be really harsh for him; [defendant] wanted something different and

so [defendant] said, go tell her three years. So I went back to the [People] and said three

years, but why don’t we do something where—where it’s not going to be automatically

he’s going to have three strikable offenses on his record.”

Defense counsel continued, “The robberies in those two are basically more or less

one incident. So even though on paper it looks like it’s two strikes, I told [defendant] that

in the future, because we don’t know how the law is going to change, we don’t know

what a future judge is going to do, potentially it is one strike. [¶] But I do want to

represent to the Court that I was not aware that [defendant] was hearing voices that day. I

was aware that he came back from mental health court; that I did know. [Defendant] was

very honest about that. We did have a talk. He was very frantic that day. He wanted a

forthwith sentence. So in that respect as to what he talked about, you could tell he was

frustrated that day. [¶] . . . [¶] . . . I should have recognized . . . that he was in a manic

state. So I didn’t take responsibility for that.”

7 The court noted, “I have to find that you were ineffective. I’m not seeing the

ineffectiveness. I appreciate this is probably some of the most candid comments I’ve

ever had at a Marsden hearing, but what exactly did you do wrong?”

Defense counsel responded, “I did tell him to wait. I think part of him saying I

don’t want to wait, I want to do a plea today is probably from his mental health condition,

and I probably should have just forced him to wait.”

Defendant said, “Four doctors that I saw, they found me mentally insane at the

time of the crime; four doctors in the mental health court. They said I was insane. All

four of them did that.” Defense counsel responded, “It was in the competency 1368

proceedings. So he does have mental health issues, yes, and he was under certain

influences.”

The court said, “I actually did a little research because I haven’t done a Sanchez in

a while.” The court asked why defendant believed his defense counsel had been

ineffective. Defendant asked, “Is there any way I can take your professional advice,

Your Honor, and just take the three—the three years? I don’t want to get her in trouble.”

“I’m thinking that was a very good deal after being, um, advised again while my head’s a

little bit together better, and perhaps I should just take this d eal and say thank you to

everyone and be on my way.”

8 The court said its ruling was “two tiered”; “I’m going to deny the Marsden

motion, deny the request to withdraw your plea.” A “second reason the Court denies the

motion [is] because I don’t have jurisdiction. I really believe that. I don’t have

jurisdiction anymore because this gentleman has already been sentenced on January 27th

of this year to state prison. [¶] Once you’re sentenced, I lose jurisdiction and the remedy

is a writ of habeas corpus. So for that reason, for the jurisdictional reason I deny the

motions.”

On March 8, 2022, defense counsel filed a notice of appeal alleging defendant’s

plea was unknowing and noting that the court denied his Sanchez motion. “Defendant

alleges he was not in his right state of mind when he pled guilty.” Defendant requested a

certificate of probable cause, which the court denied. On March 10, 2022, counsel from

Appellate Defenders, Inc., filed an amended notice of appeal checking the box indicating

that the appeal would challenge “the sentence or other matters which occurred after the

plea and do not affect its validity.”

II. DISCUSSION

Defendant lists five issues on appeal: (1) that Senate Bill No. 483, which was

codified in section 1171.1. somehow applies because it “clearly states that the same case

against the same person would be only one strike against [defendant] not two”;

(2) pursuant to section “1170.1 and perhaps People v. Vargas (2014) 59 Cal.4th 635,

646,” he should have only one, not two, strikes against him; (3) we should consider that he

suffers from a major mental illness and consider the application of Senate Bill No. 81

(2021-2022 Reg. Sess.) and Senate Bill No. 82; (4) he questions whether “859 credit

9 comp. no longer exist—only 809? Just 20 days more or less”; and (5) he notes that he

never had a weapon, and he found the robbery note on the ground.

Senate Bill No. 483 resulted in the enactment of section 1171.1, which became

effective on January 1, 2022. That statute renders legally invalid all prior prison term

enhancements imposed before January 1, 2020, pursuant section 667.5, subdivision (b),

except those for an enhancement resulting from a conviction for a sexually violent

offense. (§ 1171.1, subd. (a).) Here, The People never charged defendant, defendant

never admitted, and the court never imposed any enhancement based upon defendant

having sustained a prior prison term. Thus, Senate Bill No. 483 and section 1171.1 have

no application to his case.

Defendant’s apparent contention that he could only have two strikes alleged against

him in the future is belied by the express terms of his plea agreement, which provided that

both offenses would count as strikes. The court expressly asked defendant, “You also

understand that you are pleading guilty to two strikes, although it may have arisen out of

the same offense.” To which defendant responded, “Yes, I do, Your Honor.” The court

further queried, “You also understand that you are subjecting yourself to the Three Strikes

Law, such that if you pick up any qualifying offense in the future, you could be subject to

the Three Strikes Law and be sentenced to 25 to life. [¶] Do you understand that?”

Defendant responded, “Yes, Your Honor.”

Whether and to what extent the People could or would file strike allegations against

defendant in the future, should he commit any further crimes, or if those strikes could or

would be found to be legally valid, are questions that are simply not ripe at this time.

10 “Courts may only decide cases that are ripe, and therefore justiciable.” (People v.

Ramirez (2021) 71 Cal.App.5th 970, 995 [“‘“‘A controversy is “ripe” when it has reached,

but has not passed, the point that the facts have sufficiently congealed to permit an

intelligent and useful decision to be made.’”’”].)

“In 2021, the Legislature enacted Senate Bill No. 81 . . . , which amended section

1385 to specify factors that the trial court must consider when deciding whether to strike

enhancements from a defendant's sentence in the interest of justice. . . .” (People v. Sek

(2022) 74 Cal.App.5th 657, 675.) Since defendant did not admit any enhancements,

Senate Bill No. 81 has no application to his case, regardless of whether he suffers from a

mental illness. Senate Bill 82 has yet to be enacted. (See

SB82/2021> [as of Sept. 7, 2022].)

We cannot discern to what credits defendant is referring. The court awarded

defendant 465 days of total credit as provided by the plea agreement. Thus, defendant has

not met his burden of showing he was entitled to any additional credits. “‘“An appealed

judgment is presumed to be correct. We will indulge all intendments and presumptions to

support the judgment on matters as to which the record is silent and prejudicial error must

be affirmatively shown.”’” (Anderson v. Davidson (2019) 32 Cal.App.5th 136, 144.)

Finally, defendant did not plead guilty to any offense or admit to any enhancement

involving the use of a weapon. Moreover, whether he found the robbery note he admits to

using is of no consequence. Defendant pled guilty to one count of second degree robbery.

Thus, defendant has failed his burden of showing any error.

11 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

CODRINGTON J.