People v. Brooks CA3

Filed 5/17/24 P. v. Brooks 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C099821

Plaintiff and Respondent, (Super. Ct. No. 62-127722) v.

JOE RAY BROOKS,

Defendant and Appellant.

Appointed counsel for defendant Joe Ray Brooks asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We conclude defendant has appealed from a nonappealable order and dismiss the appeal. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 134-135.)

FACTS AND HISTORY OF THE PROCEEDINGS In 2014, a jury found defendant guilty of first degree burglary (Pen. Code, § 459; statutory section citations that follow are found in the Penal Code unless otherwise stated) and found true an allegation that another person, not an accomplice, was present

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in the residence at the time of the burglary (§ 667.5, subd. (c)(21)). Defendant admitted two prior strike burglary convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) from 1985 and 2002, which also constituted serious felonies (§ 667, subd. (a)(1)). Defendant moved to strike the prior strike convictions and the trial court denied the motion. The trial court imposed a 25-years-to-life indeterminate sentence, plus a 10- year consecutive determinate sentence. Defendant appealed, and this court affirmed the judgment. (People v. Brooks (Dec. 29, 2015, C078875) [nonpub. opn.].) In August 2023, defendant filed a motion to modify his sentence, arguing section 667.5 was unconstitutionally vague under Johnson v. United States (2015) 576 U.S. 591. The trial court denied the motion, noting defendant had not been sentenced under the federal Armed Career Criminal Act, which was at issue in Johnson, California law had specific definitions for “serious felony” and “violent felony,” and California’s Three Strikes Law had been upheld by both state and federal courts against vagueness challenges. Defendant filed a timely notice of appeal and attached a certificate of probable cause.