Filed 4/21/14 P. v. Brown CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

BOOKER TYRONE BROWN,

Defendant and Appellant.

 H040158

 (Santa Clara County

 Super. Ct. No. 178826)

In 1995 defendant Booker Tyrone Brown was convicted of residential first degree 

burglary after the resident of a San Jose home found defendant standing in the corner of 

his bathroom with a flashlight. Defendant raised his hands, announced that he hadn’t 

taken anything, and ran out of the house. (Pen. Code, §§ 459/460, subd. (a).)1The trial 

court also found true allegations regarding three prior strikes (Pen. Code §§ 667, subds. 

(b)-(i); 1170.12), three prior serious felonies (Pen. Code § 667, subd. (a)), and three 

prison priors (Pen. Code § 667.5, subd. (b)). On August 31, 1995, the court sentenced 

defendant under the former “Three Strikes” law to a prison for a term of 15 years 

consecutive to 25 years to life. 

 

1 By order dated March 5, 2014, this court took judicial notice of defendant’s two 

prior appeals, People v. Booker (Jan. 24, 1997, H014467) [nonpub. opn.], and People v. 

Booker (Jul. 30, 1998, H017184) [nonpub. opn.].
2

On August 16, 2013, the defendant filed a “Motion to Recall Sentence” under the 

Three Strikes Law Reform Act (the Act) and Penal Code section 1170.126. On 

August 21, 2013, the trial court denied the motion, finding it duplicative of past habeas 

petitions and untimely. The court also found defendant ineligible for re-sentencing under 

the provisions of the Act. Defendant filed a timely notice of appeal from the trial court’s 

order. 

On appeal, we appointed counsel to represent appellant in this court. Appointed 

counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436

(Wende) which states the case and the facts but raises no specific issues. Wende review is 

only available in a first appeal of right from a judgment of conviction. (People v. 

Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano).) Because defendant’s appeal is 

from an order after judgment, and not a first appeal of right, he is not entitled to Wende 

review. (Ibid.) Therefore, we will proceed with this appeal pursuant to the standard we 

enunciated in Serrano. 

Pursuant to Serrano, on January 29, 2014, we notified defendant of his right to 

submit written argument in his own behalf within 30 days. On February 21, 2014, we 

received a letter from defendant. In his letter, defendant speaks of his remorse and asks 

this Court to “look in the particulars of my individual circumstance and take into 

consideration my endeavors to rehabilitate myself . . . .” To the letter, defendant attaches

a list of over 140 different courses and workshops that he has participated in. While 

defendant’s attempts to better himself through education are commendable, they are not 

properly considered on appeal. Nothing in defendant’s letter raises any arguable issues 

on appeal from the trial court’s denial of his petition for recall of sentence. Therefore, we 

decline to retain the case.

The appellant having failed to raise any arguable issue on appeal, we dismiss the 

appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
3

DISPOSITION

The appeal is dismissed.

_____________________________________

RUSHING, P.J.

WE CONCUR:

_________________________________

PREMO, J.

_________________________________

ELIA, J.