P. v. Brown

Filed 7/5/07 P. v. Brown CA6
Opn. following remand by U.S. Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JERMAINE BROWN,
Defendant and Appellant.
H025981
(Monterey County
Super. Ct. No. SS020847)
In re JERMAINE BROWN,
on Habeas Corpus.
H026927
Defendant Jermaine Brown appeals from a judgment of conviction entered after a
jury found him guilty of attempted murder (Pen. Code, § 664/187 – count 1), 1 robbery
(§ 211 – count 2), and assault with a firearm (§ 245, subd. (a)(2) – count 4). As to counts
1 and 2, the jury also found true the allegations that defendant personally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (b), (c), and (d)) and caused great
bodily injury (§ 12022.7). As to count 4, the jury found true the allegations that
1 All further statutory references are to the Penal Code.

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defendant personally used a firearm (§ 12022.5) and caused great bodily injury
(§ 12022.7). In a bifurcated proceeding, the trial court found that defendant had suffered
a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court
sentenced defendant to 59 years to life in state prison. On appeal, defendant contends:
(1) trial counsel rendered ineffective assistance; (2) the trial court erred when it
considered a juvenile adjudication as a prior felony conviction under the “Three Strikes”
law; (3) the imposition of the upper term and consecutive sentences violated his rights to
jury trial and due process; and (4) the trial court erred by imposing consecutive sentences
in counts 1 and 2. In our original opinion, we held that the trial court erred in imposing
the upper term. (People v. Brown (Jan. 10, 2005, H025981, H026927) [nonpub. opn.].)
After the California Supreme Court transferred the case to this court for consideration in
light of People v. Black (2005) 35 Cal.4th 1238 (Black), we affirmed the judgment.
Following the United States Supreme Court’s remand to this court for further
consideration in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]
(Cunningham), we reverse and remand for resentencing.2
I. Statement of Facts
On February 2, 2002, Fernando Gomez Flores attended the Red Barn car auction
with his friend Noel Cruz Lerna. Flores bought five vehicles including a van. While
Flores was at the auction, defendant spoke to him. Flores, who recognized defendant
from previous auctions, did not respond.
On February 2, 2002, James Burnett, an employee of the Red Barn auction, saw
defendant and his companion Joshua Chioino at the auction. Defendant and Chioino
were yelling at Flores, because Flores outbid Chioino several times. Flores did not argue
with the two men.
2 We also deny defendant’s petition for writ of habeas corpus, which has been
considered with this appeal.

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Flores left the auction in the van that he purchased, while Lerna and his relatives
drove the other vehicles. Flores drove to the gas station across the highway from the Red
Barn. Defendant and his companion were talking to two women, who were in a red
convertible Mustang, at the gas station. Defendant approached Flores and offered him
$20 for a ride. After Flores refused, defendant returned to his companion and the two
women.
Flores left the gas station. As Flores was driving on Highway 101, he noticed a
white Cadillac that was following him. When the Cadillac pulled into the lane next to
him, defendant, who was the front passenger, pointed a gun at Flores and gestured for
him to pull over. Flores drove faster, but the Cadillac cut in front of him. Flores pulled
over.
The driver of the Cadillac stood at the rear of his vehicle on the driver’s side.
Defendant entered the passenger side of Flores’s van, pointed a gun at Flores’s head, and
demanded money. After Flores gave him change from his pockets, defendant said that he
wanted more money and rifled through Flores’s pockets. Defendant took Flores’s wallet,
which contained $300, and documents relating to the vehicles that Flores had purchased.
Defendant then exited the vehicle, pointed the gun 15 inches from Flores’s head, and shot
him in the face. Flores pretended to be dead and fell against the steering wheel.
After defendant and his companion drove away, Flores exited his van, stood on
the side of the highway, and tried to get help. When no one stopped, he drove to Lerna’s
home, and was eventually taken to a hospital in King City. He was later taken by
ambulance to a hospital in Salinas.
Dr. Robert Block performed surgery on Flores. He retrieved a .38 caliber bullet
that had traveled through Flores’s top lip, destroyed four teeth, went through his tongue,
pierced his left tonsil, broke his jaw in several places, and stopped just short of his carotid
artery.

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Deputy Sheriff Mike Richards interviewed Flores at the hospital in King City
while a nurse acted as a translator. Flores was in a lot of pain and had a difficult time
communicating due to the injuries that he had suffered. At times he could not speak.
Deputy Sheriff Santiago Limas interviewed Flores on three occasions in
February 2002.3 When Limas first interviewed Flores on February 5, 2002, Flores was in
the intensive care unit, his mouth was wired, and he had a tube in his throat to assist him
with breathing. Limas would ask Flores questions, and he would write his responses.
Limas had to piece the story together from Flores’s responses.
On February 8, 2002, Officer William Clark searched defendant’s home at 700
Diaz Street in Sand City. Clark found an expended .38 caliber bullet in the master
bedroom. Defendant claimed that he occasionally stayed at this residence with his
girlfriend Michelle Collins and with his father at a different address. Clark had also
instructed Officer Barry Pasquarosa to conduct a traffic stop of defendant and Joshua
Chioino 10 days earlier.
On February 12, 2002, Limas took Flores to the Red Barn, and Flores retraced his
steps from the night of the incident. Limas testified that he found dried blood on the
ground where Flores stated that he had exited his van to seek help. Flores identified
defendant as his assailant from a photo lineup, but he was not sure of his identification of
the driver of the Cadillac from a second photo lineup.
Lauren Zephro, a forensic evidence technician, examined Flores’s van. She
positively identified a palm print belonging to defendant on the driver’s side of Flores’s
van.
On February 13 and 14, 2002, defendant called Collins from the county jail. They
discussed the search warrant executed on their residence and the items seized by the
3 Flores’s prior inconsistent statements are summarized in the defense case portion of
this statement of facts.

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police. The search warrant listed the items that the police were authorized to seize from
the residence, including firearms and ammunition. Defendant asked Collins which of his
belongings were seized. Collins told him that the police had overlooked some items
during their search. One of those items was an orange ticket that Collins burned.
Scott Armstrong, a criminalist, compared the bullet taken from Flores’s face to the
bullet found in defendant’s residence. Armstrong testified that the bullets were the same
make, model, caliber and had been expended from a revolver. According to Armstrong,
it was “very likely” the bullets were fired from the same gun. He was reluctant to
positively identify the bullets as having been “fired from the same gun to the exclusion of
all other [guns] in the world without any doubt whatsoever.”
Defense Case
Defendant called several witnesses to testify and extensively cross-examined
Flores about his numerous prior inconsistent statements.
Richards interviewed Flores at the hospital in King City on February 2, 2002,
shortly after he was shot. Flores told him that a large white sedan pulled in front of his
van as he left the gas station. Two men exited their vehicle and approached his van.
Flores described them as a tall black man and a tall white man with short brown hair.
They robbed him of $700, and shot him. When no one at the gas station would help him,
he drove on Highway 101. His assailants followed him and drove in front of him for
about seven minutes.
On February 5, 2002, Limas interviewed Flores while he was in the hospital.
Flores told Limas that the two women in the Mustang left the gas station before his
assailants arrived, that the robbery occurred at the gas station, that after the shooting
occurred, he was unsuccessful in getting help from other motorists at the gas station, that
when he left the gas station the Cadillac followed him, and that one of the suspects was
white and the other was black.

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On February 8, 2003, Limas again interviewed Flores. Flores told him that both
suspects were black, that after the robbery he picked up some papers the robber had
thrown on the ground, that the robber pushed the gun against his head, and that the
robber was still inside the van when he fired his gun.
On February 12, 2002, Flores identified defendant as his assailant from a photo
lineup. For the first time, Flores told Limas that the robbery did not occur at the gas
station. Flores also told him that defendant was talking to two women at the gas station.
Flores told Limas that he had been in the Mexican military police, that he was familiar
with guns, and that he was certain that defendant had shot him with either a .22 or .25
caliber semiautomatic firearm. Flores did not tell Limas that defendant offered him $20
for a ride to the gas station.
Eliseo Uribe, an investigator and interpreter with the public defender’s office,
testified that he speaks fluent Spanish and English, and that he interviewed Flores on
September 5, 2002. Flores told Uribe that he did not have a disagreement with anyone at
the auction, he did not speak to defendant at the auction, the suspects were at the gas
station when Flores arrived, and defendant offered him $20 for a ride. Flores also said
that the robber took $300 from him.
Clark described Joseph Horne as a black male, six feet tall, 180-185 pounds, and
approximately 22 years old.
Mark Stewart operates the Red Barn car auction. Stewart identified Horne from a
photograph and testified that Horne attended the car auctions. Horne bought a silver
Mustang on February 2, 2002. Michelle Chioino, Joshua Chioino’s sister, bought a white
Cadillac at the same auction.
II. Discussion
A. Ineffective Assistance of Counsel
Defendant contends that he was deprived of his state and federal constitutional
rights to the effective assistance of counsel, because trial counsel failed to file a motion to

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suppress the .38 caliber bullet that was seized from defendant’s residence. Defendant
also argues that trial counsel should have filed a motion to unseal the police affidavit
used to issue the search warrant to determine whether the search warrant was supported
by probable cause, and whether the information provided by the confidential informant
was reliable.
1. Procedural History
On September 16, 2002, defendant filed a motion to suppress the jewelry and a
moped that were found in defendant’s residence. On the same day he also filed a motion
to suppress the .22 ammunition that was found in his vehicle. Defendant argued that the
seizure of the moped and jewelry during the search of his residence were beyond the
scope of the search warrant, and the seizure of the ammunition from his vehicle was the
result of an unlawful detention. On October 4, 2002, the parties filed supplemental
points and authorities regarding whether the search of the vehicle was an inventory
search. That same day, the trial court heard evidence and took the motion under
submission.
On October 7, 2002, the prosecutor brought a motion to admit evidence regarding
the .38 bullet found at defendant’s residence, because it was the same caliber as the bullet
removed from Flores’s neck. Trial counsel objected on the ground that the evidence was
disclosed too close to the trial date. The trial court granted the motion and continued the
trial at defendant’s request. When the prosecutor stated that she would not seek to admit
the .22 ammunition found in defendant’s vehicle, trial counsel withdrew his motion to
suppress this evidence. Trial counsel did not request additional time to file a motion to
suppress the .38 bullet. Trial counsel also did not file a motion to unseal the police
affidavit used to issue the search warrant.
On November 20, 2002, the trial court denied defendant’s motions to suppress and
specifically found that the .38 bullet was admissible since ammunition was named in the
search warrant.

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2. Legal Analysis
“A defendant seeking relief on the basis of ineffective assistance of counsel must
show both that trial counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence of counsel’s failings.”
(People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466
U.S. 668, 687.)
“Where defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the defendant must also prove
that his Fourth Amendment claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the excluded evidence in order to
demonstrate actual prejudice.” (People v. Wharton (1991) 53 Cal.3d 522, 576, quoting
Kimmelman v. Morrison (1986) 477 U.S. 365, 375.)
Here defendant has failed to show that a motion to suppress the .38 bullet would
have been meritorious. The search warrant included any firearm and ammunition, and
thus a motion to suppress that specifically mentioned the .38 bullet would not have been
successful. Defendant’s alternative argument that trial counsel should have filed a
motion to unseal the police affidavit also has no merit. After independently reviewing
the sealed affidavit used to issue the search warrant, we have found no information that
would have served as the basis to challenge the search warrant on the grounds that the
search warrant was not supported by probable cause, or that the information provided by
the confidential informant was not reliable. Accordingly, we reject defendant’s claim of
ineffective assistance.

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B. Prior Juvenile Adjudication
Defendant next argues that the trial court erred by finding that his prior juvenile
adjudication could be used as a “strike,” because he did not have the right to a jury trial in
the juvenile proceeding.
Though defendant acknowledges that this court has rejected his argument in
People v. Lee (2003) 111 Cal.App.4th 1310, he relies on the United States Supreme
Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which was
applied to juvenile adjudications by the Ninth Circuit in U.S. v. Tighe (9th Cir. 2001) 266
F.3d 1187. He also relies on the dissent in Lee. (People v. Lee, supra, 111 Cal.App.4th
at pp. 1319-1323.) After carefully considering the analysis in Apprendi and Tighe, this
court concluded that there were sufficient procedural safeguards in juvenile adjudications
to satisfy the concerns of the Supreme Court in Apprendi. (People v. Lee, supra, 111
Cal.App.4th at p. 1316.) Thus, we find no error. 4
C. Rights to Jury Trial and Due Process
Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi,
supra, 530 U.S. 466, defendant contends that he had a constitutional right to a jury trial
and proof beyond a reasonable doubt regarding the facts that the trial court used to
impose the upper term and consecutive sentences.
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held: “Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.) In that case, the court focused on “the narrow issue”
4 Defendant also argues that he was deprived of his federal constitutional right to the
effective assistance of counsel, because trial counsel did not object to the use of the
juvenile adjudication as a “strike.” In light of our previous discussion, there is no merit
to this argument, since it is not reasonably probable that the objection would have been
sustained.

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of whether the sentence for a single crime exceeded the statutory maximum. (Id. at
p. 474.) The court further defined the statutory maximum in Blakely. It concluded “that
the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. . . . In other words, the relevant ‘statutory maximum’ is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.” (Blakely, supra, 542 U.S. at p. 303.)
In Black, supra, 35 Cal.4th 1238, the California Supreme Court considered the
effect of Blakely on California’s determinate sentencing law. It held that “the judicial
factfinding that occurs when a judge exercises discretion to impose an upper term
sentence or consecutive terms under California law does not implicate a defendant’s
Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
Recently, the United States Supreme Court overruled Black in part in
Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. The court held that California’s
determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by
the Sixth and Fourteenth Amendments” to the extent that it allows a judge to impose an
upper term sentence “based on a fact, other than a prior conviction, not found by a jury or
admitted by the defendant.” (Id. at p. 860.) Thus, the trial court may impose the upper
term only if the factors relied upon meet the requirements of Apprendi and Blakely. (See
id. at p. 871.)
In imposing a prison term, the trial court shall impose the middle term unless there
are circumstances in aggravation or mitigation of the crime. (§ 1170, subd. (b); Cal.
Rules of Court, rule 4.420(a) & (b).) 5 Rules 4.421 and 4.423 list the possible
circumstances in aggravation and mitigation. Any fact that is an element of the crime or
the basis for a sentence enhancement cannot be used to justify imposition of the upper
5 All further references rules are to the California Rules of Court.

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term. (§ 1170, subd. (b); rule 4.420(c) & (d).) However, the trial court may strike the
enhancement and use it as a factor in aggravation.
Here the trial court relied on four factors, including that the crime involved great
violence and great bodily harm, defendant used a weapon, the crime was carried out in a
sophisticated or professional manner, and defendant’s prior performance on probation or
parole was unsatisfactory. Though the jury found that defendant used a weapon and
caused great bodily injury when he robbed the victim, these facts were the bases for
sentence enhancements, which were not stricken by the trial court, and thus could not be
used to justify an upper term. The finding relating to the manner in which defendant
carried out the crime was not submitted to a jury and proved beyond a reasonable doubt,
and thus violated the Apprendi/Blakely rule.
However, the People argue that both Blakely and Apprendi recognized that
Almendarez-Torres v. United States (1998) 523 U.S. 224 created an exception to the
requirements of a jury finding of proof beyond a reasonable doubt, that is, that “the fact
of a prior conviction” could serve as the basis for increasing the penalty without violating
the defendant’s rights to a jury trial or due process. (Blakely, supra, 542 U.S. at p. 296;
Apprendi, supra, 530 U.S. at pp. 487-488, 490.) They claim that the trial court’s finding
regarding defendant’s performance on probation is the equivalent of “the fact of a prior
conviction.” We disagree. First, defendant had no prior adult convictions. Second, even
assuming that defendant’s juvenile adjudications come within the prior conviction
exception, here the trial court’s finding related to defendant’s performance on probation,
not the fact of the prior conviction. Thus, this finding also ran afoul of the
Apprendi/Blakely rule. Accordingly, we remand for further proceedings.
We next consider defendant’s challenge to California’s consecutive sentencing
scheme. The Black court held that “a jury trial is not required on the aggravating factors
that justify imposition of consecutive sentences.” (Black, supra, 35 Cal.4th at p. 1262,
overruled on another ground in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) A

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trial court makes the decision to impose consecutive sentences only after the defendant
has been afforded the right to a jury trial and been found guilty beyond a reasonable
doubt of two or more offenses. Thus, a defendant does not have a constitutional right to
a jury trial and proof beyond a reasonable doubt regarding the facts that the trial court
used to impose consecutive sentences. 6
D. Imposition of Consecutive Sentences
Defendant also contends that the trial court erred by imposing consecutive
sentences in counts 1 and 2. He asserts that the two crimes and their objectives were not
predominately independent of each other.
The trial court stated that “the Court is going to be running sentence
consecutively. And, for that purpose, the Court does find that the crimes and their
objectives are predominantly independent of each other.” The trial court first imposed a
determinate term on count 2 (second degree robbery) and a consecutive term for the
personal use of a firearm enhancement. The trial court then sentenced defendant on
count 1 (attempted murder) consecutive to count 2 and imposed a term for the personal
use of a firearm enhancement consecutive to count 1. The trial court stayed the sentence
imposed for count 4.
Rule 4.425 provides in relevant part that the “[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences include: [¶] (a) . . . Facts relating to
the crimes, including whether or not: [¶] (1) The crimes and their objectives were
predominantly independent of each other.” “Even when violent crimes against the same
victim on one occasion have separate motives, . . . consecutive sentencing is proper.
(See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181.)” (People v. Calderon (1993)
6 Relying on Crawford v. Washington (2004) 541 U.S. 36, defendant contends that the
trial court erred by relying on inadmissible hearsay in the probation report when it found
factors in aggravation. A defendant’s failure to object or challenge the contents of the
probation report waives any defects. (People v. Scott (1994) 9 Cal.4th 331, 353, fn. 15.)

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20 Cal.App.4th 82, 87.) The trial court is required to state only one criterion in
aggravation in order to impose a consecutive sentence. (People v. Davis (1995) 10
Cal.4th 463, 552.) We will affirm the trial court’s finding on this issue where it is
supported by substantial evidence. (People v. Galvan (1986) 187 Cal.App.3d 1205,
1220.)
Here defendant and his companion forced the victim off the road. Defendant then
entered Flores’s vehicle, pointed a gun at him, and demanded money. After taking
Flores’s wallet, defendant exited the vehicle and shot him in the face. Since defendant
had already obtained Flores’s property and Flores was not resisting, the act of shooting
him was not part of the robbery, but rather a gratuitous act of violence. Thus, there was
substantial evidence to support the trial court’s finding that the crimes and their
objectives were predominantly independent of each other.
Defendant also argues that trial counsel rendered ineffective assistance when he
failed to object to the sentence on the ground that it was contrary to rule 4.425. Since the
trial court did not err, defendant’s argument has no merit.
III. Disposition
The judgment is reversed and remanded for resentencing. The petition for writ of
habeas corpus is denied.
_______________________________
Mihara, J.
I CONCUR:
__________________________________

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Bamattre-Manoukian, Acting P.J.

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McAdams, J., Dissenting and Concurring.
I respectfully dissent from that portion of the opinion that concludes, in reliance
on People v. Lee (2003) 111 Cal.App.4th 1310, that a prior juvenile adjudication may
constitutionally be used as a “strike” despite the fact that there is no right to a jury trial in
juvenile proceedings. I continue to hold the view that this result runs counter to Apprendi
v. New Jersey (2000) 530 U.S. 466, as the Ninth Circuit Court of Appeals found in U.S.
v. Tighe (9th Cir. 2001) 266 F.3d 1187. I further adopt the reasoning set forth in the
dissenting opinion of Justice Rushing in People v. Lee, supra, 111 Cal.App.4th 1310,
1319. See also the dissenting opinion of Justice Johnson in People v. Smith (2003) 110
Cal.App.4th 1072, 1082.
That said, I concur in the analysis and disposition of the other issues addressed by
the majority concerning the claims of ineffective assistance of counsel and any other
error in the imposition of sentence.
________________________________________
McAdams, J.

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