People v. Brown CA4/3

Filed 6/24/14 P. v. Brown CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G048977

v. (Super. Ct. No. 06NF1301)

BRANDON LAMAR BROWN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

* * *

This matter is before us for the second time after we earlier reversed defendant’s sentence and remanded the case for resentencing. Accordingly, we quote liberally from our prior nonpublished opinion. (People v. Brown (Sept. 25, 2012, G045242) (Brown I).) Defendant Brandon Lamar Brown was convicted by jury of nine counts of committing lewd and lascivious acts upon a child under the age of 14. (Pen. Code, § 288, 1 subd. (a).) “Each offense occurred between July 1 and September 30 of 2005. The jury found true the allegations that defendant committed the offenses against more than one victim (§ 1203.066, subd. (a)(7)) and had substantial sexual conduct with them (§ 1203.066, subd. (a)(8).)” (Brown I, supra, G045242.) The court sentenced defendant “to 15 years to life on one count and concurrent terms of 15 years to life on the remaining eight counts.” (Ibid.) We reversed the sentence and remanded the case for resentencing because “the court erroneously applied statutory law that came into effect after [defendant had] committed his crimes” (Brown, supra, G045242), thereby violating ex post facto principles. “Under the versions of sections 667.61 and 1203.066 in effect in 2005 (when defendant committed the crimes), he was eligible for probation if the court made five specific findings under section 1203.066, subdivision (c), and, if the court found him eligible for probation he was not subject to a mandatory prison term of 15 years to life per offense under section 667.61, subdivision (b).” (Ibid.) Under a later version of section 1203.066, defendant was statutorily ineligible for probation. The sentencing court applied the later version of the law, and thus did not consider the five specific criteria (or make findings thereon) under the earlier and relevant version of the statute which, if true, would have made defendant eligible for probation and not subject to a mandatory prison term of 15 years to life.