P. v. Brown CA1/1

Filed 5/31/13 P. v. Brown CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A134696 v. ALVIN E. BROWN, (Contra Costa County Super. Ct. No. 51105592) Defendant and Appellant.

PEOPLE, Plaintiff and Appellant, A134697 v. ALVIN E. BROWN, (Contra Costa County Super. Ct. No. 51105592) Defendant and Respondent.

Defendant Alvin E. Brown and the People appeal a judgment following jury trial, in which defendant was convicted of several serious felonies and sentenced to a determinate prison term totaling over 29 years. Defendant contends substantial evidence does not support his conviction for felony child abuse (Pen. Code, § 273a, subd. (a)),1 and further claims the court erred in imposing a consecutive sentence for his conviction for false imprisonment by violence (§§ 236, 237, subd. (a)). The People urge the trial court erred in striking two of the three strikes alleged and proved against defendant. We affirm.

1 All further statutory references are to the Penal Code.

1

BACKGROUND2 An information filed April 21, 2011—as subsequently amended and presented to the jury—charged defendant with the following offenses committed against Erica McCoy on October 3, 2010: attempted murder (§§ 187, subd. (a), 664, subd. (a)) (count 1); assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2); and false imprisonment by violence (§§ 236, 237, subd. (a)) (count 3). Each of these counts included enhancements for use of a deadly weapon (§ 12022, subd. (b)(1)) or inflicting great bodily injury (§ 12022.7, subd. (a)), or both. The information additionally charged defendant with child abuse likely to produce great bodily harm (§ 273a, subd. (a)), committed against McCoy‘s then four-year-old son, who was present when defendant attacked McCoy. The information also included other charges and alleged sentencing enhancements, including that defendant had three strikes and two serious prior felonies (§§ 667, 1170.12). On October 5, 2011, the jury found defendant guilty of counts 1 through 4. Defendant waived jury trial on the prior felonies, which the trial court subsequently found to be true. Four months later, on February 3, 2012, the trial court sentenced defendant. It commenced by partially granting his Romero motion3 and striking two of defendant‘s ―strikes.‖ It then imposed a total determinate term of 29 years four months: 14 years on count 1 (seven-year midterm doubled, plus three years great bodily injury, plus one year deadly weapon); stay of sentence on count 2; one year four months on count 3, consecutive (one-third the midterm doubled); eight years on count 4, concurrent. Defendant and the People each appealed. (See §§ 1237, subd. (a), 1238, subd. (a)(10).)