The opinion
Filed 4/26/23 P. v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085171
Plaintiff and Respondent,
(Stanislaus Super. Ct.
v. No. CR-21-012067)
JAMES RICHARD BROWN,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
Siena M. Kautz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and De Santos, J.
INTRODUCTION
Appellant James Richard Brown filed a petition for resentencing pursuant to Penal
Code section 1170.22.1 The trial court denied the petition and found he was ineligible for
any relief under that statute. On appeal, appellate counsel filed a brief which summarized
the facts and procedural history with citations to the record, raised no issues, and asked
this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant did not file a supplemental brief on his own behalf. We affirm.
PROCEDURAL BACKGROUND
On February 18, 2022, an information was filed in the Superior Court of
Stanislaus County charging appellant with committing count 1, criminal threats (§ 422,
subd. (a)); count 2, felony false imprisonment (§ 236); count 3, felony battery on a spouse
or habitant (§ 273.54a); count 4, felony assault with a deadly weapon, a baseball bat
(§ 245, subd. (a)(1)); and count 5, assault with a firearm (id., subd. (a)(2)), with firearm,
great bodily injury, and prior conviction enhancements.
On April 11, 2022, appellant plead no contest to count 1, criminal threats, (§ 422,
subd. (a)) and pleaded no contest in an unrelated case to the unauthorized use of a vehicle
(Veh. Code, § 10851, subd. (a)). As to count 1, he was sentenced to the upper term of
three years, with a concurrent term for the Vehicle Code conviction.
Section 1170.22
Former section 647f was enacted in 1988 (Stats. 1988, ch. 1597, § 1) and
prohibited offenses related to the solicitation of prostitution. It was repealed as of
January 1, 2018. (Stats. 2017, ch. 537, § 8.)
Also on January 1, 2018, two new statutes went into effect: section 1170.21 states
that a conviction for violating section 647f as it read on December 31, 2017, “is invalid
and vacated” (Stats. 2017, c. 537 (S.B. 239), § 13); and section 1170.22 states a person
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
serving a sentence for a violation of section 647f as it read on December 31, 2017, may
file a petition for recall or dismissal of his conviction and sentence. (See also People v.
Lamoureux (2019) 42 Cal.App.5th 241, 263.)
Appellant’s Petition
On September 26, 2022, appellant filed a petition in the trial court for resentencing
and dismissal of his conviction for criminal threats based on section 1170.22 and asserted
he had served longer than one year and was entitled to relief.
On September 26, 2022, the People filed opposition and stated section 1170.22
permitted relief only for violations of section 647f, appellant was not convicted of that
offense, and he was ineligible for relief.
On September 30, 2022, the trial court denied appellant’s petition because he was
ineligible for relief.
DISCUSSION
As noted above, appellate counsel filed a Wende brief with this court. The brief
also includes counsel’s declaration that appellant was advised he could file his own brief
with this court. This court advised appellant by letter that he could file a supplemental
letter or brief raising any arguable issues. Appellant has failed to do so.
The trial court correctly denied appellant’s petition because he was not convicted
of violating section 647f and was thus ineligible for any relief authorized by
section 1170.22. After independent review of the record, we find no reasonably arguable
factual or legal issues exist.
DISPOSITION
The court’s order of September 30, 2022, denying appellant’s petition is affirmed.
3.