People v. Brown CA2/2

Filed 3/18/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B312897

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. NA109769)

v.

BERNARD BROWN, JR.,

Defendant and Appellant.

THE COURT:

Bernard Brown, Jr. appeals the judgment following

resentencing on remittitur. We appointed counsel to represent

appellant on appeal. After examination of the record, counsel

filed an opening brief raising no issues and asking this court to

independently review the record. Appellant filed his own

supplemental brief, in propria persona.

BACKGROUND1

In the early morning hours of June 25, 2018, appellant

entered the gated parking garage of an apartment complex and

broke into three vehicles parked next to each other (counts 1, 4

and 5). Various items were missing from each car, including a

Louis Vuitton wallet and other wallets containing debit and

credit cards. Within hours of the burglaries, surveillance video at

a Target store recorded appellant using the credit/debit cards of

two of the victims to make a purchase. On his arrest a few weeks

later, appellant was found in possession of the Louis Vuitton

wallet and a device used for breaking car windows. He was

wearing shoes with distinctive shoelaces matching those of the

person in the video, and his tattoos were consistent with the

tattoos visible on the subject of the surveillance video.

Appellant was convicted following a jury trial of four counts

of first degree residential burglary (counts 1, 2, 4, and 5; Pen.

Code,2 § 459) and one count of driving or taking a vehicle without

consent (count 3; Veh. Code, § 10851, subd. (a)). Appellant

admitted two prior serious felony convictions that qualified as

strikes. The trial court found no justification to strike the prior

1 The factual background is summarized from our prior

opinion in appellant’s direct appeal. (People v. Brown (Aug. 24,

2020, B295442) [nonpub. opn.].) Because appellant challenged

only his burglary convictions on counts 1, 4, and 5 of the five-

count information filed on October 3, 2018, we omitted recitation

of the facts underlying the two separate offenses charged in

counts 2 and 3.

2 Undesignated statutory references are to the Penal Code.

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strikes, and sentenced appellant to a term of 64 years to life in

state prison.3

On direct appeal, the parties agreed that the convictions on

counts 4 and 5 for first degree residential burglary should be

reduced to second degree burglary, and the matter remanded to

the trial court for resentencing. We agreed and modified the

judgment to reduce appellant’s convictions in counts 4 and 5 to

second degree burglary. We directed the trial court that upon

resentencing it may reexamine all of its sentencing choices in

consideration of the entire sentencing scheme. (People v. Hill

(1986) 185 Cal.App.3d 831, 834 [“rule is justified because an

aggregate prison term is not a series of separate independent

terms, but one term made up of interdependent components. The

3 The sentence consisted of two consecutive terms of 25

years to life on counts 1 and 2 and two concurrent terms of 25

years to life on counts 4 and 5 for a total indeterminate term of

50 years to life. The court also imposed a determinate term of 14

years, consisting of the low term of two years, doubled to four

years for the strike (Pen. Code, §§ 667, subd. (b)–(i), 1170.12) on

count 3, plus five years for the prior serious felony conviction

under section 667, subdivision (a)(1), doubled to ten years for the

strike (§§ 667, subd. (b)–(i), 1170.12). (This portion of the

sentence was technically incorrect: appellant had admitted two

prior serious felony convictions, and the 10-year enhancement

should have been imposed as two five-year enhancements under

section 667, subdivision (a)(1).) In addition, the trial court noted

that appellant had already been found in violation of probation in

Los Angeles Superior Court case No. NA105258, and reimposed

the previously imposed sentence of 12 years 4 months to run

concurrent with the 14-year determinative sentence in the

present case.

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invalidity of one component infects the entire scheme”]; People v.

Bautista (2005) 129 Cal.App.4th 1431, 1438.)

As modified, and in all other respects, we affirmed the

judgment of conviction, rejecting appellant’s substantial evidence

challenge to count 5 and his contention that section 654 prohibits

separate punishments for counts 1, 4 and 5.

On remand for resentencing, appellant requested that the

trial court reconsider striking the prior strike convictions in the

interests of justice and also follow the Los Angeles County

District Attorney’s directives to deputy district attorneys with

regard to charging prior strikes, enhancements, and prior felony

convictions. The trial court declined to take the directives into

account, but did reconsider imposition of the strikes and prior

serious felony enhancement.

The trial court resentenced appellant to a term of 25 years

to life plus a determinate term of 12 years 8 months.4

4 The trial court resentenced appellant as follows: (1) on

count 1, the court struck one of the prior strike convictions and

imposed the middle term of four years, doubled to eight years for

the remaining strike (Pen. Code, §§ 667, subd. (b)–(i), 1170.12);

(2) the court struck the two five-year prior serious felony

enhancements under section 667, subdivision (a)(1); (3) on count

2, the trial court declined to strike the two strikes, and imposed

an indeterminate term of 25 years to life; (4) as to count 3, the

court imposed a consecutive term of one-third the midterm for

one year, doubled to two years; (5) the court resentenced

appellant on count 4 to a consecutive term of eight months (one-

third the midterm of two years), doubled to 16 months (§§ 667,

subd. (b)–(i), 1170.12); and (6) on count 5 the court imposed

another consecutive term of eight months (one-third the midterm

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DISCUSSION

Appellant raises two issues in his supplemental brief:

(1) He is entitled to a new trial under Penal Code section 1181,

subdivision 8, on the basis of newly discovered evidence, and

(2) in light of this court’s reduction of appellant’s convictions in

counts 4 and 5 to second degree burglary, the evidence must be

deemed insufficient to support a conviction for first degree

burglary in count 2. These contentions lack merit.

1. Appellant is not entitled to a new trial.

The fact is, appellant never made a motion for a new trial

in the trial court. There can be no error when no motion for new

trial was filed or orally requested. Failure to move for a new trial

prior to pronouncement of judgment constitutes a waiver of the

right to a new trial. (People v. Braxton (2004) 34 Cal.4th 798,

813–815.) Moreover, appellant did not indicate to the trial court

any possible grounds for a new trial, nor has he identified the

new evidence upon which his argument for a new trial on appeal

rests. A defendant must specify the grounds relied upon in

making a motion for new trial in the trial court: The failure to do

so forfeits the issue for appeal. (People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 332.)

2. Appellant forfeited his right to substantial evidence review

in this appeal following resentencing.

Appellant has never challenged the sufficiency of the

evidence supporting his conviction on count 2, which was based

on a completely separate burglary at another time and location.

of two years), doubled to 16 months (§§ 667, subd. (b)–(i),

1170.12). Finally, the trial court reimposed the 12-year 8-month

term in Los Angeles Superior Court case No. NA105258 to run

concurrent with the determinate term in the instant case.

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He expressly did not raise any issue with respect to this count in

his direct appeal from the judgment of conviction, nor did he

attempt to do so in the trial court on remand. Accordingly, he

may not raise for the first time in this appeal from resentencing

on counts 4 and 5 any claim that substantial evidence does not

support a conviction on count 2. (See People v. Scott (1994) 9

Cal.4th 331, 356 [“we hold that complaints about the manner in

which the trial court exercises its sentencing discretion and

articulates its supporting reasons cannot be raised for the first

time on appeal”].)

Based on our examination of the entire record we are

satisfied that appellant’s attorney has fully complied with his

responsibilities and that no arguable issues exist. (People v.

Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25

Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

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

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