Filed 3/18/22 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARD BROWN, JR.,

Defendant and Appellant.

B312897

(Los Angeles County

Super. Ct. No. NA109769)

THE COURT:

Bernard Brown, Jr. appeals the judgment following 

resentencing on remittitur. We appointed counsel to represent 

appellant on appeal. After examination of the record, counsel 

filed an opening brief raising no issues and asking this court to 

independently review the record. Appellant filed his own 

supplemental brief, in propria persona.
2

BACKGROUND1

In the early morning hours of June 25, 2018, appellant 

entered the gated parking garage of an apartment complex and 

broke into three vehicles parked next to each other (counts 1, 4 

and 5). Various items were missing from each car, including a 

Louis Vuitton wallet and other wallets containing debit and 

credit cards. Within hours of the burglaries, surveillance video at 

a Target store recorded appellant using the credit/debit cards of 

two of the victims to make a purchase. On his arrest a few weeks 

later, appellant was found in possession of the Louis Vuitton 

wallet and a device used for breaking car windows. He was 

wearing shoes with distinctive shoelaces matching those of the 

person in the video, and his tattoos were consistent with the

tattoos visible on the subject of the surveillance video.

Appellant was convicted following a jury trial of four counts 

of first degree residential burglary (counts 1, 2, 4, and 5; Pen. 

Code,2 § 459) and one count of driving or taking a vehicle without 

consent (count 3; Veh. Code, § 10851, subd. (a)). Appellant 

admitted two prior serious felony convictions that qualified as 

strikes. The trial court found no justification to strike the prior 

1 The factual background is summarized from our prior 

opinion in appellant’s direct appeal. (People v. Brown (Aug. 24, 

2020, B295442) [nonpub. opn.].) Because appellant challenged 

only his burglary convictions on counts 1, 4, and 5 of the fivecount information filed on October 3, 2018, we omitted recitation 

of the facts underlying the two separate offenses charged in 

counts 2 and 3.

2 Undesignated statutory references are to the Penal Code.
3

strikes, and sentenced appellant to a term of 64 years to life in

state prison.

3

On direct appeal, the parties agreed that the convictions on 

counts 4 and 5 for first degree residential burglary should be 

reduced to second degree burglary, and the matter remanded to 

the trial court for resentencing. We agreed and modified the 

judgment to reduce appellant’s convictions in counts 4 and 5 to 

second degree burglary. We directed the trial court that upon 

resentencing it may reexamine all of its sentencing choices in 

consideration of the entire sentencing scheme. (People v. Hill

(1986) 185 Cal.App.3d 831, 834 [“rule is justified because an 

aggregate prison term is not a series of separate independent 

terms, but one term made up of interdependent components. The 

3 The sentence consisted of two consecutive terms of 25 

years to life on counts 1 and 2 and two concurrent terms of 25 

years to life on counts 4 and 5 for a total indeterminate term of 

50 years to life. The court also imposed a determinate term of 14 

years, consisting of the low term of two years, doubled to four 

years for the strike (Pen. Code, §§ 667, subd. (b)–(i), 1170.12) on 

count 3, plus five years for the prior serious felony conviction 

under section 667, subdivision (a)(1), doubled to ten years for the 

strike (§§ 667, subd. (b)–(i), 1170.12). (This portion of the 

sentence was technically incorrect: appellant had admitted two

prior serious felony convictions, and the 10-year enhancement 

should have been imposed as two five-year enhancements under 

section 667, subdivision (a)(1).) In addition, the trial court noted 

that appellant had already been found in violation of probation in 

Los Angeles Superior Court case No. NA105258, and reimposed 

the previously imposed sentence of 12 years 4 months to run 

concurrent with the 14-year determinative sentence in the 

present case.
4

invalidity of one component infects the entire scheme”]; People v. 

Bautista (2005) 129 Cal.App.4th 1431, 1438.)

As modified, and in all other respects, we affirmed the 

judgment of conviction, rejecting appellant’s substantial evidence 

challenge to count 5 and his contention that section 654 prohibits 

separate punishments for counts 1, 4 and 5.

On remand for resentencing, appellant requested that the 

trial court reconsider striking the prior strike convictions in the 

interests of justice and also follow the Los Angeles County 

District Attorney’s directives to deputy district attorneys with 

regard to charging prior strikes, enhancements, and prior felony 

convictions. The trial court declined to take the directives into 

account, but did reconsider imposition of the strikes and prior 

serious felony enhancement.

The trial court resentenced appellant to a term of 25 years 

to life plus a determinate term of 12 years 8 months.4

4 The trial court resentenced appellant as follows: (1) on 

count 1, the court struck one of the prior strike convictions and 

imposed the middle term of four years, doubled to eight years for 

the remaining strike (Pen. Code, §§ 667, subd. (b)–(i), 1170.12); 

(2) the court struck the two five-year prior serious felony 

enhancements under section 667, subdivision (a)(1); (3) on count 

2, the trial court declined to strike the two strikes, and imposed 

an indeterminate term of 25 years to life; (4) as to count 3, the 

court imposed a consecutive term of one-third the midterm for 

one year, doubled to two years; (5) the court resentenced 

appellant on count 4 to a consecutive term of eight months (onethird the midterm of two years), doubled to 16 months (§§ 667, 

subd. (b)–(i), 1170.12); and (6) on count 5 the court imposed 

another consecutive term of eight months (one-third the midterm 
5

DISCUSSION

Appellant raises two issues in his supplemental brief: 

(1) He is entitled to a new trial under Penal Code section 1181, 

subdivision 8, on the basis of newly discovered evidence, and

(2) in light of this court’s reduction of appellant’s convictions in 

counts 4 and 5 to second degree burglary, the evidence must be 

deemed insufficient to support a conviction for first degree 

burglary in count 2. These contentions lack merit.

1. Appellant is not entitled to a new trial.

The fact is, appellant never made a motion for a new trial 

in the trial court. There can be no error when no motion for new 

trial was filed or orally requested. Failure to move for a new trial

prior to pronouncement of judgment constitutes a waiver of the 

right to a new trial. (People v. Braxton (2004) 34 Cal.4th 798, 

813–815.) Moreover, appellant did not indicate to the trial court

any possible grounds for a new trial, nor has he identified the 

new evidence upon which his argument for a new trial on appeal 

rests. A defendant must specify the grounds relied upon in 

making a motion for new trial in the trial court: The failure to do 

so forfeits the issue for appeal. (People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 332.)

2. Appellant forfeited his right to substantial evidence review

in this appeal following resentencing.

Appellant has never challenged the sufficiency of the 

evidence supporting his conviction on count 2, which was based 

on a completely separate burglary at another time and location. 

of two years), doubled to 16 months (§§ 667, subd. (b)–(i), 

1170.12). Finally, the trial court reimposed the 12-year 8-month 

term in Los Angeles Superior Court case No. NA105258 to run 

concurrent with the determinate term in the instant case.
6

He expressly did not raise any issue with respect to this count in 

his direct appeal from the judgment of conviction, nor did he 

attempt to do so in the trial court on remand. Accordingly, he 

may not raise for the first time in this appeal from resentencing 

on counts 4 and 5 any claim that substantial evidence does not 

support a conviction on count 2. (See People v. Scott (1994) 9 

Cal.4th 331, 356 [“we hold that complaints about the manner in 

which the trial court exercises its sentencing discretion and 

articulates its supporting reasons cannot be raised for the first 

time on appeal”].)

Based on our examination of the entire record we are 

satisfied that appellant’s attorney has fully complied with his

responsibilities and that no arguable issues exist. (People v. 

Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 

Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.