People v. Brown CA4/2

• Court: California Court of Appeal
• Decided: October 6, 2020
• Docket: E074151
• Status: Unpublished

Opinion

Filed 10/6/20 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074151

v. (Super.Ct.No. FWV18004486)

KENYON DERRAL BROWN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Kenyon Derral Brown, in pro. per.; Leslie Ann Rose, under appointment by the

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 After initially suspending proceedings in response to the request of defendant and

appellant Keyon Derral Brown for a mental health screening, the San Bernardino

Superior Court found defendant mentally competent and accepted his no contest plea to a

charge of robbery. (Pen. Code, § 211.)1 Defendant also admitted a prior strike

conviction. The plea included a stipulated sentence of an aggravated term of five years in

state prison for the robbery and an additional five years for the prior strike. (§ 667,

subd. (a).)

At the November 14, 2019 sentencing hearing, the court imposed the stipulated

sentence and ordered defendant to pay various fines and fees. In the course of the

hearing, it also sentenced defendant to four years to run concurrently with the sentence

for the robbery on account of a probation violation in an unrelated felony matter

involving animal cruelty (case No. FSB17001255).

Defendant filed a timely notice of appeal. He did not request a certificate of

probable cause. We affirm.

DISCUSSION

Defendant’s 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 case and facts, and four potentially arguable issues: (1) whether

1 All further statutory references are to the Probate Code.

2 defendant’s waiver of his right to appeal is valid; (2) whether defendant can challenge the

constitutionality of his plea absent a certificate of probable cause; (3) whether the court’s

failure to consider defendant’s ability to pay fines and fees it imposed was error; and

(4) whether defendant received effective assistance of counsel. Counsel has also

requested this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which

he has done. In a handwritten letter, defendant makes a number of claims that amount to

challenges to his plea. He also requests that we strike his prior violent felony conviction

and expresses concerns about a motion for modification of a sentence he received in

another case.

The challenges to the validity of defendant’s plea

Defendant raises several issues that involve events leading up to his plea and the

terms of the plea itself. They include complaints (i) that he was entitled to the midterm

sentence for the robbery and he should not have received a five-year enhancement on

account of the 10-year-old conviction for a prior violent felony; (ii) that the prosecution

engaged in misconduct with respect to the charges against him and in the course of

making its plea offer, and (iii) that his counsel’s assistance was ineffective because

counsel was not successful in getting defendant placed in a mental health court diversion

program, he failed to negotiate a good plea, and he agreed to the improper sentencing.

3 None of those claims are cognizable on appeal because defendant did not obtain a

certificate of probable cause.

Section 1237.5 provides in relevant part that defendants may not appeal a

judgment of conviction upon a plea of nolo contendere unless they first obtain a

certificate of probable cause from the trial court attesting there are reasonable grounds for

the appeal. Moreover, defendant’s plea agreement specifically included a waiver of his

right to appeal “from the conviction and judgment in [his] case.” He is, therefore,

precluded from raising any issue that challenges the propriety of the plea, including the

waiver, the sentence received, and his attorney’s assistance in obtaining that plea because

he did not obtain a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th

773, 776; People v. Espinoza (2018) 22 Cal.App.5th 794, 797 [a defendant who waives

the right to appeal as part of a plea agreement must obtain a certificate of probable cause

to appeal on any ground encompassed by the waiver]; People v. Stubbs (1998) 61

Cal.App.4th 243, 244-245 [certificate of probable cause required to raise issue of

counsel’s ineffective assistance prior to the plea].)

The denial of a motion to recall the sentence in the animal cruelty conviction

Defendant states that the court denied his section 1170 motion to recall his

sentence in case No. FSB17001255 (the case in which he was convicted of animal

cruelty). He also complains that “CDCR” (California Department of Corrections and

Rehabilitation) discriminates when screening prisoners convicted for nonviolent offenses

4 who may be eligible for relief under section 1170. We do not have jurisdiction to review

denial of the motion because defendant has not appealed from that judgment, which has

long since become final. We note, however, that the four-year sentence in the animal

cruelty case was ordered to run concurrently with the 10-year sentence imposed in this

one, which did involve a violent felony offense.

The request to dismiss the prior violent felony conviction

Defendant refers to Senate Bill No. 1393 (2017-2018 Reg. Sess.) and requests that

we exercise our discretion to dismiss the prior violent felony, which would reduce his

sentence by five years. Senate Bill No. 1393 resulted in amendment of section 1385 to

permit the trial court to exercise its discretion to strike in the furtherance of justice a prior

serious felony conviction in connection with the five-year enhancement provided for in

section 667. (§ 1385; Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.) The statute does not

authorize this court to dismiss a conviction.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

5 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

MILLER J.

SLOUGH J.