P. .v Brown CA3

Filed 1/15/14 P. .v Brown CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071864

Plaintiff and Respondent, (Super. Ct. No. 11F08161)

v.

PRESTON TYRONE BROWN,

Defendant and Appellant.

Defendant Preston Tyrone Brown pleaded no contest to one count of lewd exposure (Pen. Code, § 314, subd. 1) and admitted a prior strike (Pen. Code, § 667). He committed the offense while incarcerated. In exchange for his plea, three other counts of lewd exposure were dismissed and defendant agreed to a sentence of 16 months (one- third the middle term, doubled for the strike) to run consecutive to the term he was serving when he committed the new offense. The trial court sentenced defendant on February 15, 2012, consistent with the negotiated plea. The time to appeal expired on April 16, 2012. (Cal. Rules of Court, rule 8.308.)

1

On June 4, 2012, defendant filed a motion to recall the sentence. He claimed that there was an error in sentencing on a prior case (in San Luis Obispo County) amounting to an illegal sentence that the trial court in this case (in Sacramento County) was required to correct because the term in this case was added to the term imposed in that case under Penal Code section 1170. At the hearing on the motion to recall the sentence, the trial court said that, at the time of sentencing in the current case, an issue concerning sentencing had been “put over” because the court and parties did not have all the information from the prior convictions. The trial court denied the motion to recall the sentence, but it stated that the date of the hearing on the motion (June 13, 2012) would be deemed the date of sentencing. On appeal, defendant contends that the trial court erred by not modifying the sentence on the San Luis Obispo County conviction. We conclude that the appeal must be dismissed because defendant did not file a timely notice of appeal. BACKGROUND The background for understanding this case involves four separate cases. Case 1: In 2006, defendant was convicted of carjacking (Pen. Code, § 215) in Los Angeles County and sentenced to the lower term of three years in state prison. He was paroled in January 2009 but was incarcerated in February 2009 for a parole violation (spitting in someone’s face and lewd exposure). His parole was revoked in April 2009. Case 2: While in custody in Kern County on the pending parole violation for case 1 in March 2009, defendant committed another lewd exposure. He pleaded guilty to that crime and was sentenced in Kern County to the lower term of 16 months in state prison, doubled to 32 months because of the prior strike. The term was imposed fully consecutive to the term in case 1. Case 3: In 2010, defendant pleaded guilty to aggravated battery (gassing), which he committed while in prison in San Luis Obispo County. (Pen. Code, § 4501.1.) The San Luis Obispo court sentenced defendant to the lower term of two years in state prison,