People v. Brown CA2/2

Filed 9/22/21 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B308518

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. MA061229)

v.

CORNELL COOPER BROWN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Kathleen Blanchard, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

******

Defendant and appellant Cornell Cooper Brown (defendant)

appeals from the judgment entered upon resentencing after one

of his prior convictions was reduced to an infraction. His

appointed counsel filed a brief pursuant to People v. Wende (1979)

25 Cal.3d 436 (Wende), raising no issues. After defendant was

notified of his counsel’s brief he filed his own supplemental brief,

claiming that the trial court imposed the upper term to his first

degree burglary conviction in violation of his right to a jury trial

as to the facts justifying the high term under the principles

enunciated by the United States Supreme Court in Apprendi v.

New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny (the

“Apprendi rule”). We have reviewed defendant’s supplemental

brief and the record and find no violation of the Apprendi rule.

Accordingly, we affirm the judgment.

BACKGROUND

In 2014, a jury convicted defendant of first degree burglary

(count 10; Pen. Code, § 4591), misdemeanor receiving stolen

property (count 11; § 496, subd. (a)), three counts of forgery

(counts 12, 13, & 14; § 476), grand theft (count 24; § 487, subd.

(a)), unlawful possession of ammunition (count 26; § 30305, subd.

(a)(1)), and unlawful taking of a vehicle with a prior conviction

(count 27; § 666.5). Defendant admitted two prior serious felony

convictions, a violation of section 422 and a violation of Health

and Safety Code section 11360, subdivision (a), as alleged under

the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(j),

1170.12), and section 667, subdivision (a)(1), the five-year

recidivist enhancement. Defendant also admitted that he had

1 All further statutory references are to the Penal Code,

unless otherwise indicated.

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served a prior prison term within the meaning of section 667.5,

subdivision (b).

The trial court sentenced defendant to 36 years to life plus

six years in prison as follows: the middle term of three years

doubled to six years on count 27; 25 years to life on count 10, plus

10 years for the two convictions alleged pursuant to section 667,

subdivision (a)(1), and one year for a prior prison term; two-year

concurrent terms as to each of counts 14, 24, and 26; a two-year

stayed sentence on each of counts 12 and 13; and a 180-day

concurrent sentence on count 11. Defendant appealed from the

judgment, and this court issued a nonpublished opinion in People

v. Brown (June 27, 2016, B262304), reversing the conviction on

count 13, striking one of the five-year recidivist enhancements,

and ordering a corrected abstract of judgment.2 In July 2017, the

trial court issued a new abstract of judgment reflecting a total

sentence of 31 years to life, plus six years.

Defendant thereafter filed an application under Proposition

64 (as approved by voters, Gen. Elec. (Nov. 8, 2016)) to

redesignate his conviction for violating Health and Safety Code

section 11360, subdivision (a). In January 2019, the application

was granted and defendant’s conviction was designated an

infraction pursuant to Health and Safety Code section 11361.8,

subdivision (f). In 2020, defendant filed a petition for writ of

habeas corpus seeking to recall his sentence based on the

reduction of one of his prior strikes to an infraction. The trial

court granted the requested relief, appointed counsel, and

scheduled full resentencing in accordance with People v. Buycks

(2018) 5 Cal.5th 857.

2 At appellate counsel’s request, we have taken judicial

notice of our opinion in defendant’s appeal.

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On October 6, 2020, the trial court vacated defendant’s

sentence in its entirety and resentenced him as a second strike

offender, rather than a third strike offender. The court noted

that defendant was also entitled to receive the benefit of Senate

Bill No. 136 (2019-2020 Reg. Sess.) by eliminating the one-year

prison prior imposed pursuant to section 667.5, subdivision (a).

The court also noted that counsel for both sides had stipulated to

the use of the 2013 probation report. To refresh its recollection

the court considered the probation report, the transcript of the

court’s original sentencing and the appellate opinion in case

No. B262304. In addition the court reviewed documents

submitted by defendant: a letter of support from Jauzalynne

Meadows, a graduate certificate, a certificate of baptism, and a

certificate of completion of The Purpose Driven Life Spiritual

Growth Campaign. Defense counsel requested that defendant be

sentenced to the middle term on count 10, which the court

acknowledged it had previously chosen. However the court

stated that it had been generous because of defendant’s long

indeterminate term, implying that it was no longer justified due

to defendant’s extensive criminal history.

The trial court found no factors in mitigation. As factors in

aggravation the court found that defendant had engaged in

violent conduct that indicated a serious danger to society,

defendant had a substantial criminal history including serious

convictions and juvenile adjudications, and defendant’s prior

performance on probation had been unsatisfactory. The court

imposed a total prison term of 23 years. The court selected the

high term of six years for count 10 (first degree burglary),

doubled to 12 years as a second strike, plus a consecutive five

years pursuant to section 667, subdivision (a)(1). The court

struck the one-year prison prior enhancement, and imposed a

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concurrent term of 180 days as to count 11 and two years on

count 12, which it stayed pursuant to section 654. As to each of

counts 14, 24, and 26, the court imposed eight months (one-third

the middle term) doubled to one year four months; and on count

27, the court imposed one year (one-third the middle term). The

court reduced the previously imposed restitution fine from $5,000

to $2,000.

Defendant filed a timely notice of appeal from the

judgment.

DISCUSSION

In his supplemental brief defendant contends that the trial

court’s selection of the upper term for count 10 was a violation of

his right to a jury trial on the facts justifying the high term under

the principles enunciated by the United States Supreme Court in

Apprendi, supra, 530 U.S. 466, Blakely v. Washington (2004) 542

U.S. 296, and Cunningham v. California (2007) 549 U.S. 270.3

“The Apprendi rule does not apply to ‘the fact of a prior

conviction.’” (People v. Scott (2015) 61 Cal.4th 363, 405, quoting

Apprendi, supra, 530 U.S. at p. 490; see Blakely v. Washington,

supra, 542 U.S. at p. 301; Cunningham v. California, supra, 549

U.S. at pp. 274-275.) “[A]ggravating circumstances based on a

3 Since those decisions were published, California

Legislature amended section 1170, subdivision (b) to allow trial

judges broad discretion in selecting a term within the statutory

range. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.)

Under the revised version of section 1170, subdivision (b), “(1) the

middle term is no longer the presumptive term absent

aggravating or mitigating facts found by the trial judge; and (2) a

trial judge has the discretion to impose an upper, middle or lower

term based on reasons he or she states.” (Wilson, at p. 992.)

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defendant’s criminal history that render the defendant eligible

for the upper term include a trial court’s finding that the

defendant suffered a prior conviction . . . and that the defendant

performed unsatisfactorily while on probation or parole to the

extent such unsatisfactory performance is established by the

defendant's record of prior convictions . . . .” (People v. Scott,

supra, at p. 405, citations omitted.) Moreover, only a single valid

aggravating circumstance is required to impose an upper term

sentence. (Id. at pp. 404-405.)

Thus no jury findings were required as to the factors in

aggravation relied upon here: defendant’s substantial prior

criminal history and his unsatisfactory prior performance on

probation, as demonstrated by the stipulated use of the probation

report. The trial court did not err. We conclude 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; People v. Kelly

(2006) 40 Cal.4th 106, 123-124.)

DISPOSITION

The judgment is affirmed.

________________________

CHAVEZ, J.

We concur:

_______________________ ________________________

LUI, P. J. ASHMANN-GERST, J.

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