People v. Brewer CA3

Filed 8/31/15 P. v. Brewer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C076848

Plaintiff and Respondent, (Super. Ct. No. 13F01050)

v.

JERMAINE NATHANUEL BREWER,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged by amended consolidated complaint1 with second degree commercial burglary (Pen. Code, § 459 -- count one),2 seven counts of second degree

1 The trial court granted the prosecution’s order to consolidate case No. 13F01050 with case Nos. 13F01293 and 13F00701.

1

robbery (§ 211 -- counts two through seven and count nine), and possession of stolen property (§ 496, subd. (a) -- count eight). The amended complaint alleged defendant personally used a firearm (§ 12022.53, subd. (b)) in the commission of counts three, four, five, and six, and suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Following a hearing, the trial court denied defendant’s Marsden3 motion. Defendant entered a negotiated plea of no contest to one count of second degree robbery (count five) and admitted the firearm enhancement and the prior strike in exchange for a stipulated sentence of 20 years in state prison and dismissal with a Harvey4 waiver of all remaining charges. The factual basis for the plea is as follows: On February 2, 2013, defendant took personal property from Marcus Robles by means of force and fear, using a handgun in the commission of that offense. Defendant was previously convicted on June 15, 2011, of first degree burglary (§ 459), a serious felony within the meaning of section 1192.7, subdivision (c), which crime constitutes a strike within the meaning of sections 667, subdivisions (b) through (i), and 1170.12. The trial court denied probation and sentenced defendant to the upper term of five years for the robbery, doubled pursuant to the prior strike, plus a consecutive 10-year term for the firearm enhancement, for an aggregate term of 20 years in state prison as stipulated. The court imposed “[o]nly mandatory minimum fines and fees” and “all the terms contained on pages 13 and 14 of the probation report with a modification to reducing the fines to mandatory minimum,” noting that “[n]onmandatory fees and fines will be stricken.” Pages 13 and 14 of the probation report include: a $280 restitution fine