Filed 8/20/21 P. v. Braley CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B309946
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. BA296474,
v. BH012446
THOMAS D. BRALEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sergio C. Tapia II, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In 2007 a jury convicted defendant and appellant
Thomas D. Braley of robbery and petty theft with a prior,
and found true allegations that Braley had prior convictions
for robbery and attempted robbery. (People v. Braley
(Aug. 14, 2008, B199140) [nonpub. opn.] (Braley I); People v.
Braley (Mar. 13, 2017, B272446) [nonpub. opn.] (Braley II).)
The trial court sentenced Braley to a Third Strike sentence
of 25 years to life plus two five-year terms under Penal Code
section 667, subdivision (a)(1).1 (Braley II.) In 2008 we
affirmed Braley’s conviction but modified the judgment to
vacate the conviction for petty theft with a prior. (Braley I.)
After the passage of Proposition 47 in 2014, Braley filed
a motion to reduce his sentence under that law. The trial court
—apparently unaware that we previously had vacated Braley’s
conviction for petty theft with a prior—reduced Braley’s
conviction on that count to a misdemeanor, resentenced him
to county jail, and stayed that sentence. Braley appealed and
his counsel filed a brief identifying no arguable issues and
asking us independently to review the record under People
v. Wende (1979) 25 Cal.3d 436 (Wende). Our colleagues in
this division also apparently didn’t realize we already had
vacated Braley’s petty theft conviction. In an opinion issued in
March 2017, we noted Proposition 47 did not apply to Braley’s
conviction for second degree robbery and affirmed. (Braley II.)
In March 2019, Braley filed a document entitled
“PETITION TO ‘DISMISS SERIOUS 5-YEAR SENTENCE
ENHANCEMENTS’ and to be CONSIDERED FOR ‘ELDERLY
PAROLE.’ ” Braley cited then-newly-enacted Senate Bill No.
1 References to statutes are to the Penal Code.
2
13932 and section 3055. The superior court found Senate Bill
No. 1393 did not apply to Braley, as his case was final long before
the bill became effective. The court also denied Braley’s request
for elderly parole without prejudice because Braley failed to show
he had exhausted his administrative remedies. (People v. Braley
(2020) 52 Cal.App.5th 680, 684 (Braley III).)
Braley again appealed. In a published opinion filed
July 27, 2020, we reversed the order and remanded for further
proceedings. Because Braley had filed a motion in 2006 to
disqualify the judge who later was assigned the 2019 petition,
we concluded that judge was disqualified from considering
the petition. (Braley III, supra, 52 Cal.App.5th at p. 685.)
On remand, Braley’s petition was transferred to Judge
Sergio C. Tapia II. On November 9, 2020, Judge Tapia issued
a Memorandum of Decision denying Braley’s petition to dismiss
his five-year priors because his case was final in 2009, when the
United States Supreme Court denied his petition for a writ of
certiorari. Judge Tapia also denied Braley’s request for parole
consideration under the California Department of Corrections
and Rehabilitation’s elderly parole program. (See § 3055.)
Judge Tapia noted Braley’s claim “appear[ed] to be premature,”
because he had served only 13 years. To be eligible for an
elderly parole hearing, the court stated, “[a]n inmate must
serve a minimum of 25 years on his current offense.” The court
also observed that Braley “must first exhaust any administrative
remedies prior to seeking judicial relief in the future.”
2 Effective January 1, 2019, Senate Bill No. 1393 amended
sections 667 and 1385 to allow a court to exercise its discretion to
strike or dismiss prior serious felony convictions for sentencing
purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
3
Braley again appealed and we appointed counsel to
represent him. After examining the record, counsel filed
an opening brief raising no issues and asking this court to
follow the procedures set forth in People v. Serrano (2012)
211 Cal.App.4th 496. Braley was notified that he could file
a supplemental brief.
On June 1, 2021, Braley filed a supplemental brief to
which he attached several “exhibits.”3 The brief borders on the
unintelligible but seems to complain about his trial (mentioning
a “ ‘questionable’ ” “Identity of the Jury Foreman” and a “fail[ure]
to enter the Dep. Dist. Attorney’s ‘Witness’ testimony {on Direct
and Cross Examination} on the Record”). Braley asserts he
meets the requirements for elderly parole and plans to transfer
his supervision to Minnesota, where his brother lives. Because
Braley has filed a supplemental brief, we follow the procedures
set forth in Wende, rather than those in Serrano.
As noted, Senate Bill No. 1393 gave trial courts discretion
to strike prior serious felony conviction enhancements. It applies
retroactively on appeal to nonfinal convictions. (People v.
Alexander (2020) 45 Cal.App.5th 341, 343.) It does not apply
to final convictions. (Ibid.) As Judge Tapia noted, Braley’s
2007 robbery conviction here was long since final.
3 The attachments include handwritten documents that
purport to be portions of Rule 6 of the Federal Rules of Civil
Procedure; sections of the Eighth Amendment to the Constitution
of the United States and of an article of the Constitution of
California, with citations to cases; Senate Bill No. 224, adding
section 3055 to the Penal Code; two letters from Braley’s court-
appointed counsel to him explaining why there are no arguable
issues in his appeal; this court’s notice that Braley could file a
supplemental brief; what look like medical records from the state
prison; and a document entitled Release Date Change Notice.
4
As for California’s elderly parole program, section 3055
as originally enacted in 2017 provided it applied to “any inmate
who is 60 years of age or older and has served a minimum
of 25 years of continuous incarceration on his or her current
sentence, serving either a determinate or indeterminate
sentence.” (Former § 3055, subd. (a).) Currently, section 3055,
as amended in 2020, provides it applies to any inmate who is
at least 50 “and has served a minimum of 20 years of continuous
incarceration on the inmate’s current sentence.” (§ 3055,
subd. (a).) As Judge Tapia noted, Braley—who was sentenced
in April 2007—has not yet served the minimum number of
years required.
We have reviewed the entire record and are satisfied no
arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106,
109-110; Wende, supra, 25 Cal.3d at pp. 441-442.)
5
DISPOSITION
We affirm the order denying Thomas D. Braley’s
“PETITION TO ‘DISMISS SERIOUS 5-YEAR
ENHANCEMENTS’ and to be CONSIDERED FOR ‘ELDERLY
PAROLE.’ ”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KALRA, J.
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
6