P. v. Brown
Filed 3/2/07 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. RONNIE O. BROWN, Defendant and Appellant. | E041181 (Super.Ct.No. FVI021039) OPINION |
APPEAL from the Superior Court of San Bernardino County. Jon Ferguson, Judge. Affirmed with directions.
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Ronnie O. Brown (hereafter defendant) pled nolo contendere on May 4, 2005, to one count of false personation (Pen. Code, 529), and admitted a so-called prison prior (Pen. Code, 667.5, subd. (b)),[1]as alleged in an amended information. In accordance with the terms of a plea agreement, the trial court suspended imposition of sentence for the purpose of placing defendant on probation for a period of three years, a term of which required defendant serve 365 days in county jail. Pursuant to the plea agreement, the trial court dismissed four other counts and struck three other alleged prison priors. On May 24, 2006, the district attorney filed a petition to revoke defendants probation and on May 26, 2006, the trial court summarily revoked probation. After the trial court appointed counsel to represent defendant, an issue arose regarding defendants mental competence, and the trial court suspended proceedings in accordance with section 1368. On July 13, 2006, the trial court found defendant mentally competent and reinstated criminal proceedings. Defendant then waived his right to a hearing under People v. Vickers (1972) 8 Cal.3d. 451 and admitted each of the probation violations. The trial court sentenced defendant to state prison for a total term of two years four months, comprised of the low term of 16 months on the false personation conviction plus an additional year on the prison prior enhancement.[2]
Defendants appointed counsel on appeal filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts,[3]three arguable issues, and requesting this court to undertake a review of the entire record. In response to notice from this court, defendant has filed a supplemental brief in which he identifies seven purported arguable issues. We have reviewed the entire record, the contentions both of counsel and defendant, and have not found any arguable issues.[4]
Appellate counsel and defendant raise claims that are untimely because they could have been raised in an appeal from the order granting probation. ( 1237, subd. (a); Cal. Rules of Court, rule 8.104 (formerly rule 2).) The time-barred claims are counsels claim that defendants section 667.5 prison prior may be invalid because defendant might have remained free from custody for a period of five years, defendants claim challenging the trial courts authority to act while a motion to disqualify purportedly was pending before the judicial council, and defendants claim purporting to challenge the timeliness of the probable cause determination. Counsel and defendant also raise claims questioning whether defendant was afforded effective representation of trial counsel but those claims depend on facts that are not included in the record on appeal, namely whether trial counsel was ineffective for stipulating that one mental health examiner could assess defendants mental competence rather than the two required by section 1369, subdivision (a), when the defendant or counsel inform the court that the defendant is not seeking a determination of mental incompetence, and defendants claim that trial counsel failed to challenge an invalid prior conviction. (People v. MendozaTello (1997) 15 Cal.4th 264, 266-267.) Similarly, the record on appeal does not support defendants claim that he made a demand under section 1203.2a for imposition of sentence nor does the record show that defendant was committed to prison for another offense, which is a prerequisite to making such a demand. Defendants assertion regarding the grounds upon which a malicious prosecution claim may be pursued does not raise an appealable issue and instead is a request for legal advice. Finally, defendants challenge to the competence of appellate counsel for filing a Wende brief is meritless because, as we have explained, there are no arguable issues in this appeal.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to correctly reflect defendants sentence of 16 months in state prison on the section 529 conviction, and one year on the section 667.5, subdivision (b) prior prison
term enhancement, for a total of two years four months in state prison. The trial court is further directed to forward copies of the amended abstract to the appropriate agencies.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ King
J.
/s/ Miller
J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
[1]All further statutory references are to the Penal Code unless indicated otherwise.
[2]The abstract of judgment is incorrect in that it reflects that the entire term of two years four months was imposed on defendants false personation conviction and does not mention the prison prior. We will direct the trial court to amend the abstract to reflect the sentence the trial court imposed.
[3]Because defendant pled guilty before preliminary hearing, the pertinent facts are mentioned only in the probation report, and then very briefly. As defense counsel notes, it appears that defendant wrote a check to Verizon on the account of William Dorn.{Prob. Rept. 3-6)
[4]Defendant filed a request for judicial notice on February 16, 2007, in which he asks this court to take judicial notice of an order by the Supreme Court that dismisses a petition filed by defendant and transfers it to this court for consideration. Defendants request for judicial notice is denied because defendant has not demonstrated the relevance of the petition in question, which this court also has denied.
