P. v. Brown
Filed 7/3/07 P. v. Brown CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. BRYANT KEITH BROWN, Defendant and Appellant. | C052236 (Super. Ct. No. 05F01559) |
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We shall affirm the judgment.
Defendant Bryant Keith Brown was charged with eight counts of second degree robbery (counts 1-5, 7-9), attempted robbery (count 6), personally using a handgun in the commission of counts 2 through 9, having served five prior prison terms, and having been convicted of a serious felony that is a strike for purposes of sentencing under the three strikes law.
After a public defender was appointed to represent defendant, the trial court granted his request to represent himself.
Defendant moved to suppress a letter that he sent to the United States Marshal, in which he made inculpatory statements. According to defendant, the public defender representing him at the time [t]old [him] the deal would be a little bit better if [he] confessed to the crimes. The court denied the motion, finding that defendant failed to show the confession was involuntary.
Defendant waived trial by jury. The following evidence was introduced at trial.
On January 22, 2005, two African American men entered the Subway restaurant at 21st and P Streets in Sacramento. After placing an order, the shorter of the two men sat down at a table, while the taller man remained at the counter. As store employee Roger Myers rang up the order, the taller man asked Myers to open the register. As Myers did so, the taller man placed his hand inside his sweatshirt pocket and implied . . . he was pointing something at Myers. Meanwhile, the shorter man approached the counter and told Myers to listen to what the other person was saying. Once the register was open, the taller man grabbed the money, and both men left. Myers later identified defendant as the shorter of the two men.
On January 26, 2005, an African American man entered the Subway restaurant at 2707 Broadway in Sacramento and ordered a sandwich. As store employee Xang Khang rang up the order, the man took out a gun, pointed it at Khang, and told Khang to give him the money. Khang did as he was told, and the man left. Khang later identified defendant as the robber.
On the morning of January 31, 2005, an African American man entered the Taco Bell restaurant at 2431 Broadway in Sacramento. The man asked store employee Tina Rai for a job application, then pointed a gun at her and ordered her to open the cash register. Store manager Karen Calisterio opened all three of the stores registers as the man pointed a gun at her. The man took all of the bills from the registers and left. Rai picked defendant out of a photo lineup, stating she was 50 percent sure that he was the robber. However, at trial, she said that she could not tell whether the man who robbed her was in the courtroom. Calisterio picked defendant and another man out of two photographic lineups, stating she was 70 percent sure that defendant was the robber and 30 percent sure that the other man was the robber. After seeing defendant at trial, however, she testified she was 99.9% sure he was the robber. A restaurant customer also identified defendant as the robber.
On the evening of January 31, 2005, an African American man forced his way into the Oak Park Post Office in Sacramento by punching post office employee Diane Oshesky and pointing a gun at her head. As he entered, he grabbed two packages out of Osheskys hands. Once inside, he pointed the gun at post office employee Rosaria Kuhn, told her to open the register, and told everyone to get down. When Kuhn was unable to open the register, the man demanded everyones wallets. The man took three wallets and left. Oshesky and Kuhn both identified defendant as the robber. Two of the customers were unable to identify defendant as the robber, and a third testified defendant was not the robber.
In February 2005, defendant wrote a letter to the United States Marshal, stating: I[] am the one that did 211 PC at the post office in Oak Park last month.
Defendant rested without presenting any evidence.
The trial court found defendant guilty as charged and found all of the enhancement allegations to be true. The court denied defendants motion to strike his prior convictions; sentenced him to 68 years and 8 months in state prison,[1]with 175 days of custody credit (153 actual days and 22 good conduct); and imposed a $1,000 restitution fine, another $1,000 restitution fine which was suspended unless parole is revoked, $375 in victim restitution to the Subway on P Street, $200 in victim restitution to the Subway on Broadway, $61 in victim restitution to Taco Bell, $50 in victim restitution to David Denuzzo, and victim restitution in an amount to be determined as to counts 5, 6 and 7. Defendant appealed.
We appointed counsel to represent defendant. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
SCOTLAND, P.J.
We concur:
HULL, J.
CANTIL-SAKAUYE , J.
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[1] Defendants 68-year and 8-month prison sentence consists of 10 years (the upper term, doubled) on count 2, plus 10 years for personally using a firearm in the commission of that offense; a consecutive 2 years (one-third the middle term, doubled) on each of counts 1, 3, 4, 5, 7, 8, and 9, plus 3 years and 4 months (one-third of 10 years) for the firearm enhancement on each of counts 3, 4, 5, 7, 8, and 9; a consecutive 16 months (one-third the middle term, doubled) on count 6, plus 3 years and 4 months (one-third of 10 years) for the firearm enhancement; plus 5 years for the 5 prior prison terms; and an additional 5 years for the prior serious felony conviction.
In deciding to impose the upper term on count 2, the trial court stated: [Y]ou were on parole at the time, you had six prior [s]tate prison commitments, your performance on parole and probation has always been unsatisfactory, and [] you are a danger to society, and you demonstrated that in the past. The fact that defendant had prior felony convictions and prison commitments, and was on parole at the time of the crimes in this case, are factors upon which the court could rely in imposing the upper term without having those facts found true by a jury. (Cunningham v. California(2007) 549 U.S. ___, ___ [166 L.Ed.2d 856, 864-865]; People v. Abercrombie (2007) 151 Cal.App.4th 585, 590-591; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) That the court considered other factors in imposing the upper term was harmless beyond a reasonable doubt because it is readily apparent that the court would have imposed the upper term based solely on defendants prior convictions. (Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 477]; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
