People v. Brookman CA3

Filed 7/8/24 P. v. Brookman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C100002

Plaintiff and Respondent, (Super. Ct. No. CRF13-0000135-02) v.

COLBY ALLEN BROOKMAN,

Defendant and Appellant.

Defendant Colby Allen Brookman appeals from a postjudgment order denying his petition for recall and resentencing under Penal Code1 sections 1170.18, 487, and 490.2. The trial court denied the petition on the grounds that it was successive to a previous motion in 2016 that the court had denied. While this is not his first appeal as of right, defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d

1 Further undesignated statutory references are to the Penal Code.

1

436 asking this court to independently review the record to determine if there are any arguable errors that would result in a disposition more favorable to defendant. Counsel’s Wende brief acknowledged that there may be a question whether the court’s order affected defendant’s substantial rights under section 1237, subdivision (b). Defendant filed a supplemental brief arguing that Assembly Bill No. 2356 (2021- 2022 Reg. Sess.) (Assembly Bill 2356) (Stats. 2022, ch. 22, § 1) recently amended section 487 to raise the monetary threshold to $950 for a felony offense, and therefore he was entitled to be resentenced to a misdemeanor because he claims the victim’s video camera was worth less than $750 when he took it from the victim’s person. Assuming the denial order affected defendant’s substantial rights since section 1170.18 presently provides an avenue of relief to individuals who have completed their sentences (§ 1170.18, subd. (f)), we affirm the order denying relief. FACTUAL AND PROCEDURAL BACKGROUND In March 2013, defendant was charged with multiple criminal offenses, including attempted robbery, battery resulting in serious bodily injury, dissuading a witness, criminal threats, and vandalism exceeding $400 in damages. For the attempted robbery, it was alleged that defendant inflicted great bodily injury during the offense. In June 2013, the prosecution amended the information to add an additional count, grand theft from a person and an attached great bodily injury enhancement. Defendant pled no contest to the added grand theft from a person count and admitted the great bodily injury enhancement. As the factual basis for his plea, defendant stipulated that, “in addition to the facts contained in the preliminary [examination] transcript,” he “took possession of the victim’s video camera that [the victim] was holding in his hand and briefly carried it away with the intent to permanently deprive the victim of [the] camera.” Under the terms of the agreement, victim restitution was reserved in an amount to be determined.