Filed 4/3/14 P. v. Brown CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059955

v.                                                                       (Super.Ct.No. RIF132673)

DARREN EUGENE BROWN,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,

Judge. Affirmed.

         Christian C. Buckley, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant appeals from the trial court’s denial of his motion to dismiss his prior

strikes on the ground that they were not knowingly and intelligently entered under Boykin

v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl). The

trial court held an evidentiary hearing on the motion after this appellate court directed the

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trial court to do so. As discussed below, the trial court’s order denying defendant’s

motion on remand is affirmed.

                               PROCEDURAL BACKGROUND1

       On September 7, 2010, a jury convicted defendant of possessing cocaine for sale

(Health & Saf. Code, § 11351); possessing an assault rifle (Pen. Code, § 12280, subd.

(b)) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). The

jury also found that the quantity of the cocaine for sale exceeded four kilograms (Health

& Saf. Code, § 11370.4, subd.(a)(2)).

       On January 21, 2011, the trial court found that defendant had two prior strike

convictions (Pen. Code, § 667, subds. (c) & (e)(2)) and one prior drug-related conviction

(Health & Saf. Code, § 11370.2, subd. (a)).

       On the date of sentencing, April 1, 2011, defendant filed a pro per2 Motion to

Strike Prior Convictions and Special Allegations. Defendant argued that his prior strike

convictions from 1986 and 1992, along with his drug-related conviction from 1994,

should be stricken because, in each of the cases, he had pled guilty without making a

voluntary and intelligent waiver of his rights under Boykin/Tahl. Defendant attached to

the motion his declaration that, in each of the three plea agreements, his counsel had




       1The facts relating to defendant’s trial and first appeal are taken from the
unpublished opinion in case No. E053330, filed May 3, 2013.

       2   Also on April 1, 2011, defendant filed a Petition to Proceed in Propria Persona.


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failed to explain his constitutional rights as required by Boykin and Tahl. Defendant also

alleged that, had he been properly advised, he would not have pled guilty in any of the

three cases. At the outset of the sentencing hearing, the trial court stated that it had

reviewed defendant’s motion and then denied it. The court then sentenced defendant to

33 years to life as follows: 25 years to life for the cocaine possession as a third strike,

plus an additional five years for the quantity allegation plus three years for the prior drug-

related conviction. The court stayed the sentences for the firearm counts under Penal

Code section 654.

       Defendant appealed. In an unpublished opinion filed on May 3, 2013, this court

affirmed the conviction but found that defendant had made the minimum allegations

required to trigger a hearing on his Boykin/Tahl motion. This court then directed the trial

court to hold such a hearing, and with respect only to the outcome of the hearing, to

resentence defendant accordingly.

       After several continuances, the trial court held a hearing on defendant’s

Boykin/Tahl motion on November 1, 2013. In addition to submitting a declaration to the

court, defendant also testified. Regarding his 1986 strike conviction, defendant testified

that, when he discussed the plea with his appointed attorney, the attorney did not tell him

he had the right to go to trial, to call witnesses, and to testify himself. Defendant also

testified that he did not understand that he had these rights. He also did not recall signing

a paper acknowledging these rights and relinquishing them. Defendant testified similarly

regarding his 1992 strike conviction and his 1994 drug conviction, except that he

admitted to having signed and initialed a document in each of these last two cases but


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stated he did not read the documents or know what they contained. Defendant also

testified with regard to the 1986 strike conviction that he believed he was pleading guilty

to a lesser charge than discharging a firearm at an inhabited dwelling (Pen. Code, § 246)

because that is what his attorney told him. The People introduced into evidence

documents from the three prior convictions that directly contradicted defendant’s

testimony that he did not understand the rights he was giving up and that they were never

explained to him. The trial court balanced defendant’s “self-serving statements, with no

other evidence” against the documents submitted by the People to show that he was

advised of these rights and that he had acknowledged he understood them. The court

denied defendant’s motion. The court then resentenced defendant to 33 years to life.

                                           DISCUSSION

       Defendant timely appealed from the trial court’s denial of his Boykin/Tahl motion

and, upon his request, this court appointed counsel to represent him. Counsel has filed a

brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the

facts and potential arguable issues, and requesting this court conduct an independent

review of the record.

       We offered defendant an opportunity to file a personal supplemental brief. On

March 18, 2014, defendant filed a “Motion to Supplement Direct Appeal,” in which he

asserts: 1) he did not plead guilty as charged in 1986 nor waive his Constitutional rights

knowingly and intelligently; and 2) he did not enter guilty pleas in 1994 and did not

waive his constitutional rights knowingly and intelligently. Defendant restates that he


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was never advised of his Constitutional rights prior to any of the pleas, asserts that he did

not know in 1986 that he was pleading guilty to Penal Code section 246, and argues the

trial court abused its discretion when it declined to strike his three prior convictions based

on the evidence introduced at the hearing on his motion.

       Our review of the record shows that the trial court did not err when it found

defendant did not prove he was unaware of his rights and would not have pled guilty had

he been advised of these rights. (People v. Mosby (2004) 33 Cal.4th 353; People v. Soto

(1996) 46 Cal.App.4th 1596.)

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                           DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                         P. J.


We concur:

McKINSTER
                           J.

KING
                           J.




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