People v. Brown CA2/7

Filed 10/1/24 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B325282

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA146986)

v.

CHARLES BROWN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Craig J. Mitchell, Judge. Reversed and

remanded with directions.

Joanna Rehm, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Steven D. Matthews, Supervising

Deputy Attorney General, and Ryan M. Smith, Deputy Attorney

General, for Plaintiff and Respondent.

_____________________________

In 2008 a jury convicted Charles Brown of second degree

murder. In 2019 Brown petitioned for resentencing under Penal

Code former section 1170.95 (now section 1172.6).1 Following

briefing and an evidentiary hearing, at which Brown testified,

the superior court denied the petition, finding the People proved

beyond a reasonable doubt that Brown was guilty of second

degree murder under an implied malice theory because he was a

major participant in the underlying felony (a robbery) and acted

with reckless indifference to human life.

On appeal, Brown contends the superior court applied an

incorrect standard to the question whether Brown was guilty of

second degree murder. We agree and reverse. We remand for

the court to reconsider the petition applying the correct legal

standards under current law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

In March 1997 Bobby Cisneros was a cocaine dealer in Los

Angeles, from whom Brown had been purchasing cocaine for

approximately two years. On the morning of March 4, 1997

Brown told Cisneros’s partner, Eduardo Quiroz, that he wanted

to purchase a half-kilogram of cocaine, which Quiroz said would

cost at least $7,500. Brown returned a short time later and told

Quiroz he had the money, and Quiroz left to tell Cisneros about

the deal. (People v. Brown (Jan. 19, 2010, B212584) [nonpub.

opn.] (Brown I).)

1 Further statutory references are to the Penal Code.

2

About an hour before the shooting, Brown and Cisneros

were seen together near Brown’s residence. (Brown I, supra,

B212584.) Shortly before the shooting, Brown’s friend Jamal

Webster told another friend (Tabatha Pritchett) that Webster and

Brown were planning to rob “some Mexicans.”2 Webster showed

Pritchett a shotgun that was 12 to 18 inches long and said that

after the robbery he would not be around for a long time.

Around 3:00 p.m. that afternoon, two children who lived

near Brown saw Brown at his residence. One child recalled

seeing Brown enter his residence and then hearing two gunshots.

He saw two black men run out of the house, one of whom had a

revolver. The men got into a truck and drove away. The second

child said he heard the gunshots and then saw Brown and

another person running out of the house. Brown was carrying a

gun. (Brown I, supra, B212584.)

When police arrived at Brown’s residence after the

shooting, they found Cisneros’s body on the floor in the doorway

to Brown’s bedroom. Cisneros had died of a shotgun wound to

the back of the head. He had no defensive wounds, and no

weapons were found nearby. (Brown I, supra, B212584.)

B. The Jury Verdict and the First Appeal

Brown was arrested in Arkansas in 2007. He was charged

with Cisneros’s murder with special allegations he personally

used a firearm within the meaning of section 12022.5,

subdivision (a), and a principal in the offense was armed with a

firearm within the meaning of section 12022, subdivision (a)(1).

2 Pritchett testified that Webster was Brown’s nephew, but

Brown testified at the evidentiary hearing that Webster was his

friend. This discrepancy does not affect our opinion.

3

The jury was instructed on first degree willful, deliberate,

and premeditated murder and first degree felony murder. The

court did not instruct on second degree murder other than saying

“all other murders are of the second degree.” The jury returned a

guilty verdict on second degree murder (without specifying the

theory) and found not true the allegation that Brown personally

used a firearm. The trial court3 sentenced Brown to 16 years to

life in state prison. We affirmed the conviction on appeal.

(Brown I, supra, B212584.)

C. The Petition for Resentencing

On January 9, 2019 Brown filed a form petition for

resentencing seeking to vacate his murder conviction and be

resentenced in accordance with recent statutory changes relating

to felony murder and the natural and probable consequences

doctrine. In his petition, Brown declared he was “convicted of 1st

or 2nd degree murder pursuant to the felony murder rule or the

natural and probable consequences doctrine” and he “could not

now be convicted of 1st or 2nd degree murder because of changes

made to Penal Code §§ 188 and 189, effective January 1, 2019.”

He also checked the boxes on the form stating he was not the

actual killer and did not act with the intent to kill. Further, he

asserted he was not a major participant in the felony or did not

act with reckless indifference to human life. Brown requested

appointment of counsel. After appointing counsel and receiving

memoranda from the parties, the superior court4 denied the

petition, finding Brown failed to make a prima facie showing of

3 Judge William N. Sterling.

4 Judge Sterling.

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eligibility for relief because he could not have been convicted of

second degree felony murder based on a robbery and the jurors

were not instructed on the natural and probable consequences

doctrine. Therefore, “the conviction was neither for felony

murder nor on the theory of natural and probable consequences.”

(People v. Brown (Mar. 9, 2021, B303601) [nonpub. opn.] (Brown

II).)

We reversed the order denying Brown’s petition, explaining

the judge’s response in the affirmative to the jury’s question

whether Brown could be convicted of second degree murder even

if he was not the actual killer created some ambiguity as to

whether Brown was convicted of second degree felony murder.

Thus, we concluded, “The record of conviction does not

conclusively show the jurors did not convict Brown of second

degree murder based on a felony murder theory.” We remanded

the matter with directions to the superior court to issue an order

to show cause and to conduct further proceedings in accordance

with former section 1170.95, subdivision (d). (Brown II, supra,

B303601.)

D. The Evidentiary Hearing

The superior court on remand5 held an evidentiary hearing

on June 22, 2022. The prosecutor introduced the transcript from

Brown’s 2008 trial and argued Brown was ineligible for

resentencing because section 1170.95 applied only to convictions

for felony murder and not to convictions for second degree

murder. The prosecutor also argued that Brown could be

convicted of felony murder under current law because Brown was

5 Judge Craig J. Mitchell.

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a major participant in the underlying felony and acted with

reckless indifference to human life.

Brown testified at the hearing. He explained that prior to

the shooting he had purchased cocaine from Cisneros

approximately 20 to 30 times—roughly every two or three

months. Brown typically bought $9,000 worth of cocaine, sold

some of it, and used some of it himself. It was normal for

Cisneros to come to Brown’s residence to make the sale. On the

day of the shooting Brown told Webster that he intended to rob

Cisneros. Webster “said he wanted to be in it so he could get a

couple of ounces.” Brown planned to move to Arkansas after the

robbery to take care of his sick mother.

Brown testified that when Cisneros arrived at the

apartment, “I got the dope and the money, robbed him, I went out

the room, and I don’t know what Jamal—he was in there, and he

hit him with the gun and shot him.” Brown continued, “I was

going out the room. I got the money and drugs. I was leaving.”

After he heard the gunshot, Brown said to Webster, “‘Why did

you do that?’ I told him, because it was just a simple robbery.

There wasn’t no need to kill him.” Brown admitted he had been

armed with a pistol, but claimed he did not know Webster had a

shotgun with him until after the shooting. Brown acknowledged

he “sometimes” had seen Cisneros with a gun.

After taking the matter under submission, the superior

court denied Brown’s petition for resentencing, finding “by proof

beyond a reasonable doubt that the petitioner is guilty of second

degree murder under an implied malice theory, specifically, that

he was a major participant in the underlying felony and acted

with reckless indifference to human life.” The court found

Brown’s “account of what transpired was far from credible.” For

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example, the court did not believe Brown’s testimony that he did

not know Webster was armed, stating, “It is not reasonable that

such a large weapon [as a shotgun] would be concealed, brought

to a location, and that Mr. Brown would be unawares.”

In finding Brown was a “major participant” in the robbery,

the superior court considered the factors outlined in People v.

Banks (2015) 61 Cal.4th 788 and found Brown was an active

participant because he played a “major role” in planning the

robbery and Brown should have known the danger of violence

was “significant” given the large amount of drugs involved and

that “everybody is armed.” The court also considered the factors

outlined in People v. Clark (2016) 63 Cal.4th 522 regarding

whether Brown acted with reckless disregard for human life. The

court found Brown made no effort to minimize the risk of violence

during the robbery, stating “one does not come armed and have a

companion armed if the eventuality of violence was not

contemplated.”

Brown timely appealed.

DISCUSSION

A. Senate Bill No. 1437 and Section 1172.6

Senate Bill No. 1437 (Senate Bill 1437) eliminated the

natural and probable consequences doctrine as a basis for finding

a defendant guilty of murder and significantly limited the scope

of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th

698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v.

Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v.

Reyes (2023) 14 Cal.5th 981, 984 (Reyes).) Section 188,

subdivision (a)(3), now prohibits imputing malice based solely on

an individual’s participation in a crime and requires proof of

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malice to convict a principal of murder, except under the revised

felony-murder rule as set forth in section 189, subdivision (e).

(Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189,

subdivision (e), now requires the People to prove specific facts

relating to the defendant’s individual culpability: The defendant

was the actual killer (§ 189, subd. (e)(1)); although not the actual

killer, the defendant, with the intent to kill, assisted in the

commission of murder in the first degree (§ 189, subd. (e)(2)); or

the defendant was a major participant in an underlying felony

listed in section 189, subdivision (a), and acted with reckless

indifference to human life as described in section 190.2,

subdivision (d) (the felony-murder special-circumstance

provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.) Senate

Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2),

effective January 1, 2022, expanded the scope of potential relief

to apply Senate Bill 1437’s ameliorative changes to individuals

convicted of attempted murder and voluntary manslaughter.

(See § 1172.6, subd. (a).)

Senate Bill 1437 also provided a procedure (now codified in

section 1172.6) for an individual convicted of felony murder or

murder under the natural and probable consequences theory or

other theory under which malice is imputed to a person based

solely on that person’s participation in a crime to petition the

sentencing court to vacate the conviction and be resentenced on

any remaining counts if the individual could not have been

convicted of murder under Senate Bill 1437’s changes to

sections 188 and 189. (People v. Lewis, supra, 11 Cal.5th at

p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)

If the section 1172.6 petition contains all the required

information, including a declaration by the petitioner that he or

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she is eligible for relief based on the requirements of

subdivision (a), the sentencing court must appoint counsel to

represent the petitioner upon his or her request pursuant to

section 1172.6, subdivision (b)(3). Where a petitioner makes the

requisite prima facie showing the petitioner falls within the

provisions of section 1172.6 and is entitled to relief, the court

must issue an order to show cause and hold an evidentiary

hearing to determine whether to vacate the murder, attempted

murder, or manslaughter conviction and resentence the

petitioner on any remaining counts. (§ 1172.6, subds. (c) &

(d)(1).)

Section 1172.6, subdivision (d)(3), provides that at the

evidentiary hearing, “the burden of proof shall be on the

prosecution to prove, beyond a reasonable doubt, that the

petitioner is guilty of murder or attempted murder under

California law as amended by the changes to Section 188 or 189

made effective January 1, 2019. The admission of evidence in the

hearing shall be governed by the Evidence Code, except that the

court may consider evidence previously admitted at any prior

hearing or trial that is admissible under current law, including

witness testimony, stipulated evidence, and matters judicially

noticed.” Further, “[t]he prosecutor and the petitioner may also

offer new or additional evidence to meet their respective

burdens.” (§ 1172.6, subd. (d)(3).)

We review the superior court’s decision to deny the petition

after an evidentiary hearing for substantial evidence, provided

the court understood the elements of the offense and applied the

proper standard and burden of proof. (Reyes, supra, 14 Cal.5th at

p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951.)

“[W]here there is an issue as to whether the trial court

9

misunderstood the elements of the applicable offense, the case

presents a question of law which we review independently.”

(Reyes, at p. 988.)

B. The Superior Court Applied an Incorrect Legal Standard in

Finding Brown Could Be Convicted of Second Degree

Murder

As discussed, the superior court found Brown guilty of

second degree implied malice murder, which, as Brown

acknowledges, remains a valid theory under current law. (See

People v. Rivera (2021) 62 Cal.App.5th 217, 232 [after Senate

Bill 1437 “a person may still be convicted of second degree

murder, either as a principal or an aider and abettor”]; see also

Reyes, supra, 14 Cal.5th at p. 987.) The court’s finding was based

on its determination Brown was a major participant in the

underlying felony who acted with reckless indifference to human

life. (§ 189, subd. (e)(3).) However, this standard applies only to

first degree felony murder, and is not the relevant inquiry for

determining guilt for second degree implied malice murder.6

6 The Attorney General does not address Brown’s argument

that the superior court applied an incorrect legal theory to

support second degree implied malice murder, instead arguing

there was substantial evidence Brown was a major participant

who acted with reckless disregard for human life. To the extent

the Attorney General’s position is that there was substantial

evidence to support first degree felony murder, the Attorney

General does not address whether this could be a basis for denial

of a resentencing petition where the jury found Brown guilty of

second degree murder. (See People v. Hernandez (2021)

60 Cal.App.5th 94, 109-111 [neither law of the case doctrine nor

double jeopardy prevented the superior court from finding the

defendant was ineligible for resentencing based on first degree

10

A finding of ineligibility based on implied malice murder

may be based on a finding a defendant was a direct perpetrator

who harbored implied malice or was an aider and abettor to the

perpetrator. (See Reyes, supra, 14 Cal.5th at p. 987.) With

respect to liability as the perpetrator, “[m]urder is committed

with implied malice when ‘the killing is proximately caused by

“‘an act, the natural consequences of which are dangerous to life,

which act was deliberately performed by a person who knows

that his conduct endangers the life of another and who acts with

conscious disregard for life.’”’” (Id. at p. 988; accord, People v.

Elmore (2014) 59 Cal.4th 121, 133.) “‘To be considered the

proximate cause of the victim’s death, the defendant’s act must

have been a substantial factor contributing to the result, rather

than insignificant or merely theoretical.’” (People v. Jennings

(2010) 50 Cal.4th 616, 643.) “[A]cts that merely create a

dangerous situation in which death is possible depending on how

circumstances unfold do not, without more, satisfy this causation

requirement.” (Reyes, at p. 989.) Further, “[t]o suffice for implied

malice murder, the defendant’s act must not merely be dangerous

to life in some vague or speculative sense; it must ‘“involve[] a

high degree of probability that it will result in death.”’” (Ibid.)

In this case, the superior court considered that Brown

planned the robbery, the success of which relied in part on

Brown’s relationship with Cisneros; Brown was armed during the

robbery; Brown should have known the risk of violence was

significant; and Brown took no steps to minimize the risk of

violence. While these factors are relevant to determining guilt of

felony murder although the original conviction was for second

degree murder].)

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first degree felony murder (see People v. Banks, supra, 61 Cal.4th

788 and People v. Clark, supra, 63 Cal.4th 522), they are

insufficient to support a conviction for second degree implied

malice murder. The court failed to consider whether Brown’s act

(the robbery) was a substantial factor in contributing to the

shooting. Nor did the court consider whether there was a high

degree of probability that death would result from the robbery.

Turning to implied malice murder as a direct aider and

abettor, the elements are as follows: “‘[D]irect aiding and

abetting is based on the combined actus reus of the participants

and the aider and abettor’s own mens rea. [Citation.] In the

context of implied malice, the actus reus required of the

perpetrator is the commission of a life-endangering act. For the

direct aider and abettor, the actus reus includes whatever acts

constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider

and abettor must, by words or conduct, aid the commission of the

life-endangering act, not the result of that act. The mens rea,

which must be personally harbored by the direct aider and

abettor, is knowledge that the perpetrator intended to commit the

act, intent to aid the perpetrator in the commission of the act,

knowledge that the act is dangerous to human life, and acting in

conscious disregard for human life.’” (Reyes, supra, 14 Cal.5th at

pp. 990-991; accord, People v. Powell (2021) 63 Cal.App.5th 689,

712-713.) Thus, the relevant inquiry here is whether Brown

knew Webster intended to commit the act (shooting Cisneros),

intended to aid Webster in the shooting, knew the shooting was

dangerous to life, and acted in conscious disregard for life.

(Reyes, at p. 992.) The superior court here did not engage in

these inquiries or make the necessary findings.

12

Because the superior court failed to consider the

appropriate elements for second degree implied malice murder

under either a direct perpetrator or aiding and abetting theory,

its decision was based on an error of law. “[G]iven the nature of

this error, it is ‘uncertain whether the superior court would have

reached the same result using correct legal standards.’” (Reyes,

supra, 14 Cal.5th at p. 992.) Accordingly, remand is appropriate

for the superior court to reconsider the petition applying the

correct legal standard.7

7 Brown contends we should reverse the superior court’s

order and direct the court to enter a new order granting the

petition because Brown testified he did not intend for Webster to

kill Cisneros, and therefore, substantial evidence did not support

a guilty finding of second degree implied malice murder based on

an aider and abettor theory. And further, Brown’s plan to

commit robbery (even armed robbery) did not create a high

degree of probability Brown’s conduct would result in death.

However, the superior court found Brown’s account of the robbery

was not credible. Accordingly, it is uncertain what the superior

court would have found if it applied the correct legal standard,

and the proper remedy is to remand for further proceedings

under that standard. (Reyes, supra, 14 Cal.5th at p. 992.)

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DISPOSITION

The order denying Brown’s petition for resentencing is

reversed, and the matter is remanded for the trial court to

reconsider the petition applying the correct legal standards under

current law at a new hearing.

FEUER, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.

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