People v. Brown CA2/4 ( 2014 )

Filed 6/20/14 P. v. Brown CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B252615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA060412)
v.
THEARTRA CORNELIUS BROWN
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Christopher G. Estes, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director and
Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Respondent.
In the underlying action, appellant Theartra Cornelius Brown pleaded nolo
contendere to one count of possession of marijuana for sale pursuant to a plea
agreement, and was sentenced in accordance with the terms of that agreement. His
court-appointed counsel has filed an opening brief raising no issues. Following our
independent examination of the entire record pursuant to People v. Wende (1979)
25 Cal. 3d 436 (Wende), we conclude that no arguable issues exist. Accordingly,
we affirm.
PROCEDURAL BACKGROUND
On August 6, 2013, a felony complaint was filed, charging appellant in
count one with possession of marijuana for sale (Health & Saf. Code, § 11359),
and in count two with possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)). Accompanying the charges were allegations that appellant had
been convicted of two serious felonies under the “Three Strikes” law (Pen. Code,
§§ 667, subd. (d), 1170.12, subd. (b)), and had served a prison term for a serious or
violent felony conviction (Pen. Code, § 667.5, subd. (c)). Appellant pleaded not
guilty to the charges and denied the special allegations.
On August 13, 2013, appellant entered into a plea agreement under which he
was to be given a total term of 32 months in state prison. In accordance with the
agreement, appellant pleaded nolo contendere to the charge of possession of
marijuana for sale (count one), and admitted a prior conviction for a serious felony
(Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)), namely, a conviction for
robbery in 2000. In sentencing appellant to a total term of 32 months, the trial
court imposed the term of 16 months on count one, and doubled that term on the
basis of appellant’s prior “strike” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). The remaining counts and special allegations in the felony
complaint were dismissed. This appeal followed.
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FACTS1
On August 3, 2013, police officers detained appellant because he resembled
a male described in a radio call. After determining that appellant was on parole,
the officers conducted a compliance check. Upon searching appellant, they found
a bindle containing .16 grams of methamphetamine, a bag containing 7.79 grams
of marijuana, and a cell phone that disclosed text messages related to the sales of
marijuana.
DISCUSSION
After an examination of the record, appellant’s court-appointed counsel filed
an opening brief raising no issues and requested this court to review the record
independently pursuant to Wende. In addition, counsel advised appellant of his
right to submit by supplemental brief any contentions or argument he wished the
court to consider. Appellant has presented no such brief. However, his notice of
appeal asserts that the appeal “is based on the sentence or other matters that
occurred after the plea . . . .” The notice further states that appellant’s sentence
was illegal because the court imposed the “upper [] term of 16 months” on count
one without “aggravating circumstances,” and doubled that term.
Appellant’s plea of nolo contendere restricts the scope of the appeal before
us. Because appellant neither challenged the search preceding his arrest nor
requested a certificate of probable cause, his appeal is limited to “postplea claims,
including sentencing issues, that do not challenge the validity of the plea.” (People
v. Cuevas (2008) 44 Cal. 4th 374, 379; People v. Brown (2010) 181 Cal. App. 4th
356, 360.) Generally, “‘“[w]hen a guilty [or nolo contendere] plea is entered in
exchange for specified benefits such as the dismissal of other counts or an agreed
1 Because no preliminary hearing had occurred before appellant entered into the
plea agreement, the facts are based on the probation report contained in the record.
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maximum punishment, both parties, including the state, must abide by the terms of
the agreement. ”’” (People v. Cuevas, supra, 44 Cal.4th at p. 383, quoting People
v. Panizzon (1996) 13 Cal. 4th 68, 80.) Here, appellant received the sentence set
forth in the plea agreement; moreover, in sentencing appellant, the trial court
imposed what is in fact the lower term for possession of marijuana for sale, that is,
16 months (People v. Earley (2004) 122 Cal. App. 4th 542, 549), and properly
doubled that term pursuant to the provisions of the Three Strikes law due to
appellant’s prior strike (Pen. Code, §§ 667, subds. (e)(1), (e)(2)(A), 1170.12,
subds. (c)(1), (c)(2)(C)). Because our review of the record discloses no potential
error within the scope of the appeal, we conclude that appellant’s counsel has fully
complied with his responsibilities and that no arguable issues exist. (Wende,
supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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