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Filed 7/7/16 P. v. Brown 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DWAYNE EARL BROWN,

Defendant and Appellant.

C081029

(Super. Ct. No. CRF15367)

Appointed counsel for defendant Dwayne Earl Brown asked this court to review 

the record and determine whether there are any arguable issues on appeal. (People v. 

Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a 

disposition more favorable to defendant, we will affirm the judgment.

I

Defendant entered the home of L.D. on July 3, 2015, took her purse, money, and 

electronic benefits card, and then fled. He was caught nearby with the victim’s electronic 

benefits card and cash in his pocket. Defendant told officers it was a “dope deal gone 

bad.” He later admitted taking the victim’s purse.
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Defendant entered a negotiated plea of no contest to first degree burglary 

(Pen. Code, § 459)1 and admitted a prior serious felony (a 1983 robbery with a firearm) 

for purposes of a five-year enhancement (§ 667, subd. (a)) and a prior strike conviction

(§§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts and 

a stipulated sentencing range: a minimum of nine years and a maximum of 17 years in 

state prison. It was understood defense counsel would file a request to dismiss the prior 

strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) 

and the People would oppose it.

The trial court denied defendant’s request to dismiss the prior strike conviction, 

noting that defendant had not led a crime-free life since his 1983 robbery conviction. It 

then sentenced defendant to state prison for an aggregate term of 13 years, consisting of 

eight years for the burglary (the midterm of four years, doubled for the prior strike) plus 

five years for the prior serious felony conviction. The trial court awarded 357 days of 

presentence credit and imposed various fines and fees.

Defendant did not obtain a certificate of probable cause. (§ 1237.5.)

II

Appointed counsel filed an opening brief setting forth the facts of the case and 

asking this court to review the record and determine whether there are any arguable 

issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of 

the right to file a supplemental brief within 30 days of the date of filing the opening brief.

Defendant filed a supplemental letter brief claiming (A) his 13-year sentence is too 

long for a burglary, (B) the three strikes law should not be retroactive and violates double 

jeopardy protections, and (C) the trial court erred in denying his Romero request, 

 

1 Undesignated statutory references are to the Penal Code.
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incorrectly finding that he spent most of his life in prison. We address each of 

defendant’s arguments in turn.

A

Defendant first claims his 13-year sentence is too long for a burglary, focusing on 

the use of his prior conviction for which he has already “done time.” He says he would 

not have entered a plea bargain in 1983 had he known it would “haunt” him in the future. 

We have reviewed the record and find no sentencing error.

B

In addition, defendant contends the three strikes law should not be retroactive and 

violates double jeopardy protections. This court rejected those arguments many years 

ago in People v. Sipe (1995) 36 Cal.App.4th 468. “ ‘A statute is not retroactive in 

operation merely because it draws upon facts antecedent to its enactment for its 

operation.’ [Citation.] ‘In the context of habitual criminal statutes, “increased penalties 

for subsequent offenses are attributable to the defendant’s status as a repeat offender and 

arise as an incident of the subsequent offense rather than constituting a penalty for the 

prior offense.” ’ ” (Id. at pp. 478-479.) When defendant committed his current first 

degree burglary, the three strikes law had been the law for years. A “prior conviction 

does not have effect as a ‘strike’ unless and until the defendant commits a new felony.” 

(Id. at p. 479.) Moreover, the three strikes law did not place defendant in double 

jeopardy. (Id. at p. 489.)

To the extent defendant contends the trial court made improper dual use of the 

prior conviction to double the base term and to impose a five-year enhancement, he is 

mistaken. Section 667, subdivisions (b) through (i) require the doubling of the base term. 

Unlike section 667, subdivision (a), it is an alternate sentencing scheme, not an 

enhancement. An enhancement pursuant to section 667, subdivision (a) cannot be 

dismissed. (§ 1385, subd. (b); People v. Turner (1998) 67 Cal.App.4th 1258, 1268-1269; 

People v. Sipe, supra, 36 Cal.App.4th at pp. 485-486.)
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C

Defendant also argues the trial court erred in denying his Romero request, 

incorrectly finding that he spent most of his life in prison.

In ruling on a Romero request, the trial court “must consider whether, in light of 

the nature and circumstances of his present felonies and prior serious and/or violent 

felony convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence

should be treated as though he had not previously been convicted of one or more serious 

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

A trial court’s dismissal of a prior strike conviction is a departure from the 

sentencing norm; thus, we review a trial court’s ruling for abuse of discretion and will not 

reverse unless defendant shows the decision was “so irrational or arbitrary that no 

reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) 

Where the trial court was unaware of its discretion to dismiss a prior strike conviction or 

refused to do so for impermissible reasons, reversal is warranted. (Id. at p. 378.) But 

where the trial court exercised its discretion and “ ‘balanced the relevant facts and 

reached an impartial decision in conformity with the spirit of the law, we shall affirm the 

trial court’s ruling, even if we might have ruled differently in the first instance’ 

[citation].” (Ibid.)

Here, in denying defendant’s Romero request, the trial court stated: 

“I don’t think the spirit of Romero encompassed this situation. When I first 

looked at this, I thought, okay, if he’s lived a blameless life, you know, for the 26 years 

or so after that conviction, sure, but he hasn’t. He has spent most of his life in custody. 

You know, 1983 is very old, but since that time, he has had consistent contact with the 

criminal justice system. He has not turned over a new leaf. The person who is before the 

Court today is just the same as the person in 1983. Had he been offense free from then 

until this date, then I probably would have granted it, but he hasn’t been.
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“Romero is for the situation where the interests of justice warrant that 

determination. And Defendant has significant criminal contact with the court system 

since then, and I’m not -- I’m ignoring the case that got reversed, but it seems about 

every year or other year I have an entry on this probation report of some sort of violation, 

new crime, parole violation, return to custody, probation violation, return to custody, 

parole violation. And on that last case where he went to prison out of Sacramento 

County, whatever we want to refer to it as, there were ten violations of some sort --

parole violations in that case.

“And this is not the spirit of Romero, to strike a strike in this situation. I’m also 

considering the gravity of this offense, first degree burglary, irrespective of victim’s 

character, and I would suspect he’s probably right. It is probably some drug deal gone 

bad, but it is a first degree burglary. So the Romero motion is denied.

“I don’t think the spirit of Romero warrants striking the strike in this situation with 

consistent criminality since then. Had he been offense free, had he been employed, 

turned over a new leaf, you know, been a law-abiding citizen since then, I would have 

granted his motion, but he hasn’t been.”

The probation report supports the trial court’s characterization of defendant’s 

criminal history. Defendant’s criminal record consists of three prior felony convictions: 

the 1983 robbery with a firearm conviction, a 1997 conviction for receiving stolen 

property, and a 2005 felony drunk driving conviction. A 1988 first degree burglary 

offense was overturned on appeal. Defendant also has eight misdemeanor convictions: a 

1985 violation of section 242, a 1991 drunk driving conviction, a 1995 violation of 

section 594, subdivision (a), two 1997 drunk driving convictions, a 2001 drunk driving 

conviction and violation of Vehicle Code section 14601.2, subdivision (a), and a 2008 

violation of section 242. In addition, he had probation violations in 1985, 1988, 1994, 

1995 (twice), 2005, 2008 (twice) and parole violations in 1999, 2000, 2001, 2002, 2003, 

2008 (four times), 2009, 2010, 2011, 2012 and 2013.
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The record shows that the trial court was aware of its discretion and balanced the 

factors. It did not abuse its discretion.

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

BLEASE, Acting P. J.

 /S/

NICHOLSON, J.