P. v. Brooks
Filed 1/27/14 P. v. Brooks 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
EDWARD DWAYNE BROOKS,
Defendant
and Appellant.
E059239
(Super.Ct.No. FBA03012)
OPINION
APPEAL from the
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Arthur Martin,
under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
Defendant and
appellant Edward Dwayne Brooks appeals after the
resentencing under Penal Code section
1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved
by voters, Gen. Elec. (Nov. 7, 2012)).
Defendant filed a notice of appeal on July 24, 2013.
We affirm.
PROCEDURAL
BACKGROUND
Defendant
was charged by second amended information
with four counts of second degree robbery (§ 211, counts 1-3, 5) and one count
of carjacking (§ 215, subd. (a), count 4).
It was further alleged that, in the commission of counts 1 and 2,
defendant personally used a firearm. (Former
§ 12022.5, subd. (a).) As to count 5, it
was alleged that defendant personally used a deadly and dangerous weapon. (Former § 12022.) In addition, the information alleged that
defendant suffered three robbery convictions in Tennessee that qualified as prior strikes
(§ 667, subds. (b)-(i)) and serious felonies (§ 667, subd. (a)(1)), and that he
had served four prior prison terms (§ 667.5, subd. (b)).
A jury found defendant not guilty of count 1, but guilty of counts 2 through
5. It also found not true the allegation
that, as to count 2, defendant personally used a gun (Former § 12022.5, subd. (a)), but
found true the allegation that he used a weapon as to count 5 (Former §
12022). A trial court found true the
allegations that defendant suffered three convictions that qualified as prior
strikes (§ 667, subds. (b)-(i)) and serious felonies (§ 667, subd. (a)(1)), and
that he had served one prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to a total term
of 89 years to life in state prison. The
sentence consisted of the indeterminate term of 27 years to life on count 4,
plus two consecutive 25- year-to-life terms on counts 2 and 5; 10 years on the
serious felony priors (§ 667, subd. (a)(1)); one year on the weapon enhancement
(§ 12022, subd. (b)(1)); and one year on the prison prior (§ 667.5, subd. (b)).
On May 3, 2013, defendant filed an in pro. per. petition for resentencing under
section 1170.126. The court denied the
petition on the ground that defendant’s current convictions for carjacking (§
215) and robbery (§ 211) made him ineligible for resentencing under section
1170.126, subdivision (e)(1).
ANALYSIS
After
the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a
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
brief statement of the facts, and identifying two potential arguable issues: (1) whether the court erred in determining
that defendant was ineligible for resentencing under section 1170.126; and (2)
whether section 1170.126 allows the reviewing court to review the propriety of
prior convictions to determine if they properly qualified as strike priors.
Defendant
was offered an opportunity to file a personal supplemental brief, which he has not
done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
All further statutory references will be to the Penal Code, unless
otherwise noted.
The court originally sentenced defendant to 25 years to life on count 3,
but subsequently stayed that term under section 654.
