People v. Brown CA2/4

Filed 8/26/24 P. v. Brown CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE, B329893

Plaintiff and Respondent,

v. (Los Angeles County

Super. Ct. No. PA031009)

ANDRES MANNER BROWN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael Terrell, Judge. Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Andres Brown appeals from an order denying his petition for

resentencing under Penal Code section 1172.6.1 His appellate counsel filed a

brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and

appellant filed a supplemental brief. We review the contentions appellant

raises in his supplemental brief and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are discussed in detail in this court’s prior

nonpublished opinion, People v. Brown (Mar. 20, 2001, B141167) (Brown I).

We briefly discuss them here to provide context for the trial court’s ruling.

We otherwise do not rely on this factual background in resolving the issues

presented in this appeal. (See § 1172.6, subd. (d)(3).)

On December 18, 1997, appellant shot Keith Wilcher in the head

during an altercation; appellant’s gun went off while he was striking Wilcher

with it. Wilcher was comatose for eight months and ultimately died.

Appellant was arrested in April 1998 and admitted shooting Wilcher. (Brown

I, supra.)

An information charged appellant with murder (§ 187, subd. (a)(1)) and

possession of a firearm by a felon (former § 12021, subd. (a)(1)). It further

alleged that appellant personally used a firearm during the commission of

the murder (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a)(1)), and that he

previously suffered a strike conviction (§§ 667, subds. (b)-(i); 1170.12, subs.

(a)-(d)). Appellant pled not guilty and proceeded to jury trial.

The jury found appellant guilty of second degree murder and possession

of a firearm by a felon. It also found true the personal use firearm

enhancement and prior conviction allegation. The trial court sentenced

appellant to 40 years to life. We affirmed appellant’s convictions on direct

appeal. (Brown I, supra.)

1

All further statutory references are to the Penal Code unless otherwise

indicated.

2

In April 2019, appellant filed his first petition for resentencing under

former section 1170.95, now section 1172.6.2 The court summarily denied the

petition without appointing counsel for appellant or holding a hearing. The

court found that appellant was “not entitled to relief as a matter of law.

Petitioner was convicted of second degree murder. The court file, including

the opinion from the court of appeals [sic], reflects that petitioner was the

actual killer and was not convicted under a theory of felony-murder. To find

defendant guilty, the jury was required to conclude that the People proved

beyond a reasonable doubt that the killing resulted from an intentional act.

The jury also specifically found that defendant personally used a firearm in

the commission of the offense. Given those factual findings by the jury,

defendant is not entitled to relief as a matter of law.” On appeal, a different

panel of this court affirmed the denial of appellant’s petition. (People v.

Brown (May 11, 2020, B299047 [nonpub. opn.] (Brown II).)

Appellant filed the instant petition for resentencing in June 2022. The

court appointed counsel for appellant. The People opposed the petition,

arguing that appellant was ineligible for relief as a matter of law because the

jury was not instructed on the theories of natural and probable consequences,

felony murder, aiding and abetting, or any theory of culpability that imputed

malice to appellant. Thus, the People asserted that appellant was

“prosecuted and convicted as the actual killer who committed this crime with

actual malice.” The People attached as exhibits the jury instructions from

the trial and the appellate opinions Brown I and Brown II. In his reply,

appellant argued that he had established a prima facie case, as the record of

conviction did not eliminate the possibility that the jury found him guilty of

murder under a theory of imputed malice.

At the hearing on the petition, defense counsel submitted on the

papers. The superior court stated that it was considering “what was on the

record . . . from the trial.” The court found that appellant “was found guilty

by a jury of second-degree murder, and the jury also found that he personally

2

Effective June 30, 2022, former section 1170.95 was renumbered to

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

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used a firearm in the commission of that offense. There was no allegation or

jury instruction on felony murder or anything else involving imputed malice.”

The court therefore denied the motion on the grounds that appellant failed to

demonstrate prima facie entitlement to relief under section 1172.6.

Appellant timely appealed.

DISCUSSION

Appellant’s appointed attorney filed a brief raising no issues and

requesting that this court proceed pursuant to Delgadillo, supra, 14 Cal.5th

216. This court advised appellant of his right to file a supplemental brief (see

Delgadillo, supra, 14 Cal.5th at pp. 231-232), and appellant did so. We

evaluate the arguments set forth in that supplemental brief. (See id. at p.

232 [“If the defendant subsequently files a supplemental brief or letter, the

Court of Appeal is required to evaluate the specific arguments presented in

that brief and to issue a written opinion”].)

Appellant argues that the jury instructions, together with the

prosecutor’s closing argument, allowed the jury to convict him of second

degree murder based on his “participation in the crime of exhibiting a

firearm,” rather than a finding that he harbored the requisite malice for

murder.3 We disagree. Neither the jury instructions alone, or in combination

with the closing arguments, allow for the possibility that appellant was

convicted under a theory of imputed malice. Specifically, the jury was

instructed on the elements of murder, including implied malice, but the court

did not instruct the jury on the natural and probable consequences doctrine

or any other theory in which malice could be imputed to appellant. Similarly,

the prosecution argued only that appellant was directly liable as the actual

shooter. The prosecution proceeded on the theory that appellant

intentionally shot the victim as revenge for a burglary he believed the victim

had committed the day before. During closing arguments, the prosecution

3

We granted appellant’s unopposed request for judicial notice of Brown I

and the portion of the trial transcripts containing closing arguments. He

argues that the superior court should have considered the closing arguments

as part of the record of conviction. Neither side provided or cited the closing

arguments during briefing on the resentencing petition before the superior

court.

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also repeatedly reminded the jury that it needed to find express or implied

malice in order to convict appellant of murder. The prosecution did not

suggest, as appellant contends, that he could be guilty of murder because he

committed a different crime.

Appellant’s citation to People v. Langi (2022) 73 Cal.App.5th 972 does

not assist him. There, the victim died from a blow to the head after being

beaten by a group of people. (Id. at p. 976.) The appellant argued that the

combination of jury instructions on aiding and abetting and second degree

murder created an ambiguity that allowed the jury to convict him of murder

without finding that he was the assailant who threw the fatal punch. (Id. at

p. 977.) The appellate court agreed, finding that the record of conviction did

not conclusively establish that appellant was convicted as the actual killer,

and that the jury could have found appellant guilty as an aider and abettor

without finding that he acted with malice. (Id. at pp. 980-983.) The court

thus remanded the case for an evidentiary hearing. (Id. at p. 984.) Here, by

contrast, it was undisputed that appellant fired the shot that killed the

victim. His defenses at trial were that his gun discharged accidentally and

that he hit the victim with the gun in self-defense. The jury rejected both of

those defenses. Thus, nothing in the record suggests appellant was charged

or convicted under any theory in which malice was imputed to him. For this

reason, the trial court was correct in concluding appellant was ineligible for

relief under section 1172.6 as a matter of law.

Additionally, we have examined the record and are satisfied appointed

counsel fully complied with the responsibilities of appellate counsel and no

arguable issues exist. (See Delgadillo, supra, 14 Cal.5th at p. 232.)

Accordingly, to the extent appellant asserts his counsel rendered ineffective

assistance, we reject his argument and affirm the denial of his petition for

resentencing.

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DISPOSITION

The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, ACTING P. J.

We concur:

MORI, J.

ZUKIN, J.

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