People v. Braley CA2/3

Filed 8/20/21 P. v. Braley CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B309946

Plaintiff and Respondent, Los Angeles County Super. Ct. Nos. BA296474, v. BH012446

THOMAS D. BRALEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Sergio C. Tapia II, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. _________________________

In 2007 a jury convicted defendant and appellant Thomas D. Braley of robbery and petty theft with a prior, and found true allegations that Braley had prior convictions for robbery and attempted robbery. (People v. Braley (Aug. 14, 2008, B199140) [nonpub. opn.] (Braley I); People v. Braley (Mar. 13, 2017, B272446) [nonpub. opn.] (Braley II).) The trial court sentenced Braley to a Third Strike sentence of 25 years to life plus two five-year terms under Penal Code section 667, subdivision (a)(1).1 (Braley II.) In 2008 we affirmed Braley’s conviction but modified the judgment to vacate the conviction for petty theft with a prior. (Braley I.) After the passage of Proposition 47 in 2014, Braley filed a motion to reduce his sentence under that law. The trial court —apparently unaware that we previously had vacated Braley’s conviction for petty theft with a prior—reduced Braley’s conviction on that count to a misdemeanor, resentenced him to county jail, and stayed that sentence. Braley appealed and his counsel filed a brief identifying no arguable issues and asking us independently to review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Our colleagues in this division also apparently didn’t realize we already had vacated Braley’s petty theft conviction. In an opinion issued in March 2017, we noted Proposition 47 did not apply to Braley’s conviction for second degree robbery and affirmed. (Braley II.) In March 2019, Braley filed a document entitled “PETITION TO ‘DISMISS SERIOUS 5-YEAR SENTENCE ENHANCEMENTS’ and to be CONSIDERED FOR ‘ELDERLY PAROLE.’ ” Braley cited then-newly-enacted Senate Bill No.