THE PEOPLE v. JEROME BROWN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JEROME BROWN, Defendant and Appellant.

B223059

Decided: January 24, 2011

Jerome Brown, in pro. per.;   Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Jerome Brown appeals from an order denying his motion to enforce dismissal of a prior conviction and petition for writ of mandate.   On April 10, 1974, in this action, Brown entered into a negotiated plea wherein he pleaded guilty to one count of forgery, in violation of Penal Code section 470,1 and one count of second degree burglary in violation of section 459.

The transcript of that 1974 hearing reflects that, after discussing the matter with the prosecutor and Brown's counsel, and considering the facts, the trial court “expressed the opinion at the time of sentencing, if any time was to be given as a condition of sentencing, that it would not be in State Prison.   It would be in the County Jail up to a year.”   The court also observed that, the maximum sentence (up to 14 years in state prison for the forgery conviction, and as much as 15 years for burglary), “might mean something” to Brown because, based on the plea agreement, he “would be placed on probation at the time of sentence.”   The court informed Brown that, if he “violate[d] that probation in a serious way the Court could then consider whether or not to sentence [him] to State Prison on that violation,” and asked if he “realize[d] that possibility?”   Brown said he did.   Brown then entered a plea of “Guilty” as to each count, and requested probation.

In February 1999, in Orange County Superior Court (case no.   97HF0802), Brown was convicted of burglary and sentenced to 25 years to life, based on his prior 1974 “strike” conviction for burglary.2

On February 22, 2010, Brown filed a petition for writ of mandate and a motion to enforce dismissal in this action, seeking identical relief.   Brown asserted that his “plea deal” in 1974 with respect to the charge of second degree burglary included a promise that, once his probation was completed, terminated or expired, the charge would be reduced to a misdemeanor and dismissed pursuant to section 1203.4, subdivision (a).

In his motion and writ, Brown argued the court's statement that it would “ ‘take no action’ ” with respect to the burglary count could only mean that, at the December 1975 hearing, the court terminated his probation altogether, reduced the charge to a misdemeanor (per its initial “promise”), or dismissed it altogether.   The trial court found both assertions baseless.   It found that the court pronounced judgment on the burglary count when Brown was sentenced to probation on that count.   The trial court also found no evidentiary support for Brown's assertion that his plea included an agreement to reduce or dismiss the burglary count after he completed a year of probation.   Both the motion and writ were denied.   Brown appeals.

After review of the record, Brown's court-appointed appellate counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441 (Wende ).   On September 21, 2010, we advised Brown he had 30 days within which to personally submit any contentions or issues which he wished us to consider.

On October 19, 2010, Brown filed a supplemental brief complaining about the competency and effectiveness of his appellate counsel, in failing to make the same arguments Brown unsuccessfully advanced below.   Brown insists we must find that the conviction for second degree burglary was dismissed or not fully adjudicated, pursuant to section 12, and remand the matter for resentencing or retrial.3

We have examined the entire record, as well as Brown's supplemental brief and exhibits thereto, which simply duplicate the appellate record.   We are satisfied that no arguable legal issues exist and that Brown's counsel has fully complied with her responsibilities.   By virtue of counsel's compliance with the Wende procedure and our review of the record, we are satisfied that Brown received adequate and effective appellate review of the order entered against him in this case.  (Wende, supra, 25 Cal.3d at p. 441;  People v. Kelly (2006) 40 Cal.4th 106, 109-110.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. We are aware of the conviction in the Orange County case by virtue of our decision in an earlier appeal Brown filed in this action.  (People v. Brown (Dec. 10, 2010, B218450) [nonpub. opn.].).  FN2. We are aware of the conviction in the Orange County case by virtue of our decision in an earlier appeal Brown filed in this action.  (People v. Brown (Dec. 10, 2010, B218450) [nonpub. opn.].)

FN3. One of Brown's primary goals in seeking to have this court make such a finding is so that Brown may then argue, in the Orange County action, that it was improper for that court to have considered that conviction a strike under the Three Strikes law..  FN3. One of Brown's primary goals in seeking to have this court make such a finding is so that Brown may then argue, in the Orange County action, that it was improper for that court to have considered that conviction a strike under the Three Strikes law.

MALLANO, P.J. ROTHSCHILD, J.