Filed 1/21/20 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SHANNON DESHAWN BROWN,

Defendant and Appellant.

E072546

(Super.Ct.No. FWV18000553)

OPINION

APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed.

Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On July 27, 2018, an information charged defendant and appellant Shannon Deshawn Brown with first degree burglary under Penal Code section 459 (count 1). The information also alleged that the residence was occupied at the time of the burglary. Moreover, the information alleged that defendant suffered a previous strike within the meaning of the “Three Strikes” law under Penal Code sections 667, subdivisions (b), through (i), and 1170.12, subdivisions (a), through (d). Defendant pled not guilty and denied the allegations.

After a jury trial, on February 28, 2019, the jury found defendant guilty of first degree burglary under Penal Code section 459, and found true the allegation that the house was occupied. As for the prior strike allegation, defendant waived his right to a jury trial and a court trial was held. After reviewing the 969b packet and other documents, the trial court found that defendant’s prior conviction for assault with a deadly weapon under Penal Code section 245, subdivision (a)(1), with a personal infliction of great bodily enhancement under Penal Code section 12022.7, constituted a prior strike.

On April 3, 2019, defendant filed a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, as an invitation for the court to exercise its discretion under Penal Code section 1385 to dismiss the prior strike allegations. On April 8, 2019, the People filed an opposition. On April 12, 2019, the trial court denied defendant’s motion. Thereafter, the court sentenced defendant to a total term of eight years in state prison consisting of the midterm of four years, doubled to eight years due to the prior strike. The court also ordered a $300 restitution fine under Penal Code section 1202.4, subdivision (b), and suspended a $300 parole revocation fine under Penal Code section 1202.45. The court additionally imposed a $40 court operations fee under Penal Code section 1465.8, subdivision (a)(1), and a $30 court facilities assessment under Government Code section 70373. The court awarded defendant 428 actual days plus 64 conduct days for a total of 492 days of presentence custody credits.

On April 15, 2019, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY

On February 12, 2018, Joel Solis, driving in a residential neighborhood, noticed defendant walking up and down driveways and walkways. Defendant was shirtless but was wearing a camouflage hat and pants. Defendant was acting erratic, fidgety, and appeared to be talking to himself. Solis tried to follow defendant because of defendant’s behavior. At one point, Solis observed defendant jump over a backyard fence. Solis also saw defendant try to break into a parked car. Solis eventually lost sight of defendant. Solis called the police.

On the same day, Jasmin Casillas was home taking a nap in her bedroom with her daughter. Casillas heard a doorbell ring about five or six times; she ignored the doorbell. Minutes later, Casillas heard a sound like a bat hitting concrete. The banging continued for about 15 seconds. Then, Casillas heard glass break in her parents’ bedroom; the door was closed and locked. Because Casillas believed that there was an intruder in her home, she grabbed her daughter and ran out of the house to a neighbor’s home. There, Casillas called 911 and her parents.

Casillas then noticed defendant walking on the sidewalk about six or seven houses away. He was wearing her father’s shirt and had wrapped himself with her parents’ bed sheet. Casillas called 911 again.

Ontario Police Officer Randell Willemstein responded to Casillas’s calls. Officer Willemstein contacted defendant several houses down from Casillas’s house. Defendant was barefoot, wearing a large checkered shirt, and had a green bed sheet around his waist. As Officer Willemstein was taking defendant into custody, his partner, Officer Wilburn, arrived. Both officers recognized defendant. The officers had encountered defendant a few days prior, on February 8, on an unrelated call at a nearby motel. On February 8, defendant was wearing a camouflage hat, pants and jacket. Defendant also smelled as if he had not bathed in some time. On February 12, however, defendant appeared clean.

The officers conducted a safety sweep of Casillas’s home and found a broken window in the master bedroom. They also found a baseball bat outside the broken window. In the backyard fire pit, the officers found a camouflage hat and pants, a pair of black shorts, black shoes, and black socks. Clean bed linens that matched the bed sheet around defendant were found in the linen closet. The police also noted that the shower in the master bathroom was wet from recent use.

Maribel Uribe was at work when Casillas, her daughter, called about a burglary. Uribe rushed home. She arrived within 10 to 15 minutes, and parked across the street from her house and waited. After about five minutes, she saw defendant exit from the front door of the house. He was wearing a shirt Uribe recognized as her husband’s. Uribe also recognized the bed sheet. When defendant got to the sidewalk, Uribe started to video record him and continued to do so until the police arrived.

Casillas’s father, Carolos Sanchez, confirmed that the shirt defendant was wearing was one of Sanchez’s shirts. Sanchez also recognized the bat found by the window as belonging to his daughter.

Both Sanchez and Uribe testified that the broken window had been intact when they left for work. They also testified that their newly-renovated shower should have been dry since neither had used it. They were waiting to use the bathroom the day after the incident because the grout sealant and shower door had been put on the day prior to the incident. Neither Sanchez nor Uribe recognized the clothing or items found in the fire pit.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:

1. “Whether there was insufficient evidence of first degree burglary based on an intent to steal.”

2. “Whether the trial court improperly denied defense’s request for jury instructions on felony trespass.”

3. “Whether the trial court abused its discretion in denying appellant’s motion to strike his 1992 strike prior.”

4. “Whether appellant had a right to a jury determination of the facts relating to a strike conviction for purposes of pre-sentence conduct credit eligibility.”

5. “Whether the trial court improperly awarded pre-sentence conduct credits pursuant to section 2933.1, subdivision (c).”

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, considered the issues listed by appellate counsel, and find no arguable issue for reversal on appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.