P. v. Brothers
Filed 8/15/13 P. v. Brothers CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
AUBREY LEE
BROTHERS,
Defendant and Appellant.
A138075
(San Mateo
County
Super. Ct.
No. SC074089A)
Appellant
Aubrey Lee Brothers appeals from his convictions and resulting sentence
following his no-contest pleas to one count of
present (Pen. Code,
title="">[1]
§§ 460, subd. (a), 667.5, subd. (c)(21)), and one count of assault by
means of force likely to cause great bodily injury (§ 245, subd.
(a)(1)). (He also admitted a prior
conviction for a serious felony and a strike, for which he received a
negotiated state prison aggregate sentence of nine years.)
Appellant’s
counsel has filed an opening brief in which no issues are raised, and asks this
court for an independent review of the record as required by
Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been
notified that no issues were being raised by counsel on appeal, and that an
independent review under Wende instead
was being requested. Appellant was also
advised of his right personally to file a supplemental
brief raising any issues he chooses to bring to this court’s
attention. No supplemental brief has
been filed by appellant personally.
We
note that appellant has not obtained a certificate
of probable cause, which is required by section 1237.5 when a defendant
seeks to appeal from a judgment entered following a guilty or no contest
plea. A certificate is not required when
the notice of appeal states, as appellant’s does here, that the appeal is based
upon the sentence or other matters occurring after the plea that do not affect
the validity of the plea. Accordingly,
we have reviewed the whole record pursuant to Wende, supra, 25 Cal.3d
436 and People v. Kelly (2006) 40
Cal.4th 106, focusing upon grounds for appeal arising after entry of the
plea. Having done so, we conclude that
there is no arguable issue on appeal.
Procedural and
Material Factual Background of Case
A
three-count amended information was filed by the
County District Attorney’s Office on September 12, 2011, charging appellant
with one count of residential burglary (§ 460, subd. (a)), one count of
assault by means of force likely to inflict great bodily injury (§ 245,
subd. (a)(1)), and one count of using force or violence upon a person
(§ 243, subd. (d)). The amended
pleading also alleged that the three crimes were all violent and serious
felonies, within the meanings of sections 667.5, subd. (c)(21), 1192.7,
subd. (c)(18), and 1203.085, subd. (b).
Numerous other sentencing enhancements were alleged including that the
crimes were committed while appellant was armed with a firearm (§ 1192.7,
subd. (c)(8), 12022.7, subd. (a)), and that appellant had five prior
convictions for certain enumerated crimes from 2003 up through 2010.
Jury
trial commenced on February 13, 2013.
After meeting with counsel to review certain trial-related matters, a
jury was summoned. After excusing the
prospective jury, the trial judge met with appellant and his counsel, and a
motion for new counsel, pursuant to People
v. Marsden (1970) 2 Cal.3d 118, was heard by the court and denied. We discern no abuse of discretion in denying
the motion.
title="">[2]
Prior
to the jury being returned to the courtroom, appellant indicated that he wished
to accept a plea disposition that had been offered by the prosecution. A plea form was completed and signed by
appellant. By this negotiated plea,
appellant pleaded no contest to one count of
present (§ 460, subd. (a), 667.5, subd. (c)(21)), and one count of assault
by means of force likely to cause great bodily injury (§ 245, subd.
(a)(1)). He also admitted a prior
conviction for a serious felony conviction and a prior “strikeâ€
conviction. In return for his no-contest
pleas and admissions, both sides agreed that appellant would receive a
nine-year state prison sentence, of which he would be required to serve 85
percent. Appellant was given a total of
655 days custody credit for time served.
Restitution, fines and penalties required by law were also imposed,
along with other conditions. As part of
the disposition the prosecution also agreed to dismiss the remaining counts and
allegations. When the plea was accepted
in court, appellant was fully advised of the rights he was waiving by entering
his plea.
Conclusions
Based Upon Independent Record Review
Upon
our independent review of the record
we conclude there are no meritorious issues to be argued, or that require
further briefing on appeal.
We
also discern no error in the plea disposition or in sentencing. The sentence appellant received, and the
restitution fines, penalties, and conditions imposed were supported by the law
and facts. At all times appellant was
represented by counsel.
DISPOSITION
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
are to the Penal Code.
August 10, 2012. Likewise, we discern no
abuse of discretion in denying that motion.
