P. v. Edwards
Filed 7/23/13 P. v. Edwards CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
BRIAN DREW EDWARDS,
Defendant and
Appellant.
B242471
(Los Angeles County
Super. Ct. No. GA082822)
APPEAL from a judgment of the Superior Court of
County,
Teri
Schwartz, Judge. Affirmed.
Brian Drew Edwards, in pro. per. and
Jamie Lee Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and
Respondent.
___________________________________
Brian Drew
Edwards, a registered sex offender, sexually assaulted his niece while she was
asleep. On October 12, 2011 Edwards was charged in an amended
information with assault with intent to commit rape, sodomy and oral copulation
(Pen. Code, §§ 220, subd. (a)(1),
and rape of an unconscious person (§ 261, subd. (a)(4), count 3). It was specially alleged as to all counts
Edwards had suffered three prior serious or violent felony convictions for
residential burglary within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served one separate
prison term for a felony (§ 667.5, subd. (b)).
denied the special allegations.
Represented by appointed counsel,
Edwards entered an open plea of no contest to assault with intent to commit
rape, sodomy and oral copulation and to burglary and admitted the special
allegations on December
13, 2011.
name="_ftnref3" title="">[3] Edwards entered his plea and admissions with
the understanding the People would forgo amending the information to add two
five-year serious felony allegations (§ 667, subd. (a)(1)), and the trial court
would consider dismissing two of the alleged prior strike convictions (
hearing.
The record of the plea hearing establishes Edwards was
advised of and waived his constitutional
rights and was advised of and acknowledged he understood the
consequences of his plea and admissions including the possibility of being
sentenced to a maximum term of 28 years to life if the court subsequently
denied the Romero motion. Counsel stipulated to a factual basis for the
plea. The trial court found Edwards had
knowingly, voluntarily and intelligently waived his constitutional rights and
entered his no contest plea and admissions.
Before the sentencing hearing, the
defense filed a Romero motion with
copies of the charging documents and police reports for Edwards’s 1985 and 1986
burglary convictions; and the People filed a sentencing memorandum with copies
of the charging documents and the police reports for Edwards’s 2009 misdemeanor
convictions for child molesting (§ 647.6, subd. (a)) and sexual battery (§
243.4, subd. (e)(1)).
At the sentencing hearing Edwards
moved to withdraw his plea, believing the trial court intended to deny his
pending Romero motion solely on the
basis of the police reports produced by the People, rather than focus on the
nature of the prior strike convictions.
Explaining it intended to consider all of Edwards’s prior convictions
before ruling on the Romero motion,
the court denied Edwards’s motion to withdraw his plea. After listening to the victim’s statement and
counsel’s arguments, the court denied Edwards’s Romero motion and sentenced him to concurrent terms of
25 years to life for assault with intent to commit rape, sodomy and
oral copulation and for burglary and struck the one-year prior prison term
enhancement in furtherance of justice. The court ordered Edwards to pay a $40 court
security fee, a $30 criminal conviction assessment, a $200 restitution fine and
to register as a sex offender (§ 290). The court imposed and suspended a parole
revocation fine pursuant to section 1202.45.
Edwards filed a timely
appeal was “based on the sentence or other matters occurring after the plea
that do not affect the validity of the plea.â€
We appointed
appeal. After an examination of the
record, counsel filed an opening brief in which no issues were raised. On January 9,
2013 we advised Edwards he had 30 days in which to personally
submit any contentions or issues he wished us to consider. After granting Edwards three extensions of time
we received a typed supplemental brief on April 10, 2013 in which Edwards
claimed the trial court had improperly failed to consider his mental illness
(schizophrenia) in denying his Romero
motion and alternatively suggested defense counsel had rendered ineffective
assistance in failing to request Edwards undergo a comprehensive psychological
evaluation prior to sentencing.
Section 1385 vests the trial court with discretion to
dismiss a prior conviction including a
qualifying strike conviction “in the furtherance of justice.†(People
v. Superior Court (
v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to
Penal Code, section 1385, [subdivision] (a), or in reviewing such a ruling, the
court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.†(Williams,
at p. 161.)
In the Romero motion defense counsel
described Edwards’s mental illness and its relationship to his drug and alcohol
abuse and criminal history in arguing the court should dismiss the 1985 and
1986 burglary convictions. The court
considered defense counsel’s arguments in the context of Edwards’s criminal
entire history, which included a conviction for residential burglary in 2001;
two drug-related convictions in 1988 and 1992; and 10 misdemeanor convictions
between 1991 and 2011, among them the two sex-related convictions in 2009. The court observed, although the
Edwards continued to engage in criminal activity that escalated in severity in
2009 when he began committing burglary and other crimes involving sex offenses
against young women. The court
determined Edwards posed a serious danger to young women as well as to the
community at large, noting he was a registered sex offender and on parole at
the time of his current offenses. Under
these circumstances the trial court did not abuse its discretion in concluding
Edwards did not fall outside the scope of the three strikes law. (People
v. Williams, supra, 17 Cal.4th at pp. 162-164;
376.) Similarly, there is no support in
the record for Edwards’s claim his defense counsel provided ineffective
assistance at any time during the proceedings in the trial court. (Strickland
v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d
674].)
We have examined the record and are
satisfied Edwards’s attorney has fully complied with the responsibilities of
counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120
S.Ct. 746, 145 L.Ed.2d 756]; People v.
Kelly (2006) 40 Cal.4th 106, 112-113; People
v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
The
amended information mistakenly alleged March 6, 1986, rather than
March 21, 1985, as the date Edwards was convicted of burglary in Los
Angeles Superior Court case number A567439.
His other two burglary convictions, also alleged as prior strike
convictions, were in 1986 (case No. A535754) and in 2001 (case
No. GA044794).
