P. v. Brown

Filed 12/9/08 P. v. Brown CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Los Angeles County Superior Court,

Paul Bacigalupo, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

__________________________

In September 2005, Donte Brown shot Linda Johnson and Vicky Washington. In March 2006, a jury convicted Brown of the attempted murder of Johnson (count 1), the attempted murder of Washington (count 2), assault with a firearm on Johnson (count 3), assault with a firearm on Washington (count 4), and criminal threats against Johnson (count 5). On a prior appeal, we reversed Browns conviction for the attempted murder of Washington (count 2), agreeing with Brown that the trial courts zone of harm instructions related to the count were infected with prejudicial error. We affirmed the judgment in all other respects. (People v. Brown (Aug. 22, 2007, B190880, modified on denial of rehearing Sept. 20, 2007) [nonpub. opn.].)[1]

On remand, the People elected not to retry Brown for the attempted murder of Washington, and, in January 2008, the trial court resentenced Brown to state prison for a total term of 10 years, four months, plus 25-years-to-life, as follows:

        Count 1 (the attempted murder of Johnson): the mid-term of 7 years, plus a term of 25 years-to-life for personally discharging a firearm thereby causing great bodily injury (Pen. Code,  12022.53, subd. (d));

        Count 3 (assault on Johnson): stayed pursuant to Penal Code section 654;

        Count 4 (assault on Washington): a consecutive term of 1 year (one-third the mid-term), plus an additional 2 years and 4 months (one-third the mid-terms) for personally using a firearm and personally inflicting great bodily injury (Pen. Code,  12022.5, subd. (a)(1); 12022.7, subd. (a)); and

        Count 5 (criminal threats against Johnson): stayed pursuant to Penal Code section 654.

Brown filed a timely notice of appeal, and we appointed counsel to represent Brown on appeal. On September 19, 2008, Browns appointed counsel filed an opening brief raising no issues. On September 26, 2008, we notified Brown by letter that he could submit within 30 days any ground of appeal, argument or contention which he wished us to consider. Brown has not responded to our letter. We have independently reviewed the record, and are satisfied that Browns appointed counsel has fulfilled his duty, and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

FLIER, Acting P. J.

ONEILL, J.*

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[1] Browns request for judicial notice of the record on his prior appeal is granted.

* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.