The opinion
Filed 8/25/20 P. v. Brown CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B303246
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA038843-03
v.
BRANDON DOUGLAS BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Salvatore Sirna, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In 1998, a jury convicted defendant and appellant Brandon
Douglas Brown of kidnapping for carjacking, robbery, and
unlawful taking or driving of a vehicle.1 Brown was 15 when he
committed the crimes. The trial court sentenced Brown to life
with the possibility of parole on the kidnapping for carjacking
count and to a concurrent three-year term on the robbery count;
the court stayed Brown’s sentence on the Vehicle Code count.
In September 2019, Brown filed in the superior court
a document entitled “Petition To Vacate Conviction Pursuant to
Penal Code § 1170.(a)(1) [sic]; Exhibits S.B. 1391.” The petition
borders on the unintelligible. Brown refers to Senate Bill No.
1391 (SB 1391) and Senate Bill No. 620 (SB 620). There is no
such statute as “Penal Code section 1170.(a)(1).” If Brown means
to cite Penal Code section 1170, subdivision (a)(1),2 that section
is an introductory statement of legislative intent concerning
sentencing generally. (§ 1170, subd. (a)(1).)3
1 An amended information also charged Brown with
carjacking, kidnapping for robbery, kidnapping, and criminal
threats. The jury convicted Brown on the carjacking and
kidnapping counts, but those counts appear later to have been
ordered dismissed by the appellate court. The record in this
appeal does not reflect what happened to the kidnapping for
robbery and criminal threats counts but presumably they were
dismissed or resulted in acquittals, as Brown was not sentenced
on those two counts.
2 References to statutes are to the Penal Code.
3 Even though section 1170 is entitled “Determinate
sentencing,” some of its provisions apply to indeterminate
sentences. For example, subdivision (d)(2) of section 1170
sets forth a procedure for petitions for recall and resentencing
by defendants who were sentenced to life without the possibility
of parole and were under 18 years of age when they committed
2
On October 11, 2019, the trial court denied Brown’s
petition. The court stated there was “no substantial right [Brown
was] attempting to enforce,” SB 620 did not apply to his case
as “no gun use enhancement [was] alleged” against him, section
1170, subdivision (a)(1) “applies to determinate sentences,” and
SB 1391 was “inapplicable to the facts of [Brown’s] case.”
Brown appealed and we appointed counsel to represent
him. After examining the record, counsel filed an opening brief
raising no issues and asking this court independently to review
the record under People v. Wende (1979) 25 Cal.3d 436 (Wende).
According to his declaration dated February 29, 2020, counsel
sent Brown a letter notifying him that counsel had filed a Wende
brief and that Brown could file a supplemental brief. We have
received no supplemental brief from Brown.
The facts of Brown’s crimes are not relevant to this appeal;
we summarize them briefly.4 On the evening of December 21,
1997, Elizabeth A. went shopping for Christmas presents at a
K-Mart. After she put her bags in the trunk of her car, she saw
three people on the driver’s side of her car. One of them was
holding a gun; Elizabeth handed over her keys. The person with
the gun—later identified as Andrew Richard Molino—ordered
Elizabeth into the car. Elizabeth “begged them ‘Please let me go,’
just to let [her] go, ‘and I won’t call the police. I’ll walk home
from here.’ [But] they told [her] ‘No. Get in the car.’ ”
their crimes. Brown was not sentenced to life without the
possibility of parole.
4 We take the facts from the preliminary hearing transcript.
The record on appeal does not include transcripts of the
testimony at Brown’s 1998 trial.
3
Brown, Molino, and a third man later identified as Dustin
Kyle Childers got into the car with Elizabeth. Childers drove the
car on several freeways. Brown, sitting in the front passenger
seat, rummaged through Elizabeth’s glove compartment and
asked her if she had any jewelry or money on her. At one point,
Childers stopped the car to get gas. The perpetrators told
Elizabeth “if [she] made a scene, if [she] made any gestures out
the window, . . . they would shoot [her].” Eventually Childers
stopped the car and “[t]hey just told [Elizabeth] to get out.”
In his petition, Brown refers repeatedly to SB 620 and
SB 1391. Brown writes that he wants “his enhancements
and priors attached to that conviction vacated.” But no
“enhancements or priors” were tried or proved against Brown,
nor was any part of his sentence based on “enhancements or
priors.”
SB 620 (Stats. 2017, ch. 682, § 2) amended section
12022.53, subdivision (h) to give trial courts discretion to
strike or dismiss firearm enhancements imposed under section
12022.53. (People v. Rocha (2019) 32 Cal.App.5th 352, 355.)
As the trial court here noted, the People did not pursue any
firearm enhancement against Brown nor was any such
enhancement tried or proved against him.5 Moreover, SB 620
does not apply to defendants whose sentences have become final.
5 The information originally alleged a personal use of
a firearm enhancement against all three defendants. That
allegation was later stricken. The gun Molino pointed at
the victim turned out to be a pellet gun, which does not qualify
as a firearm. The People amended the information to allege
the personal use of a deadly and dangerous weapon—the pellet
gun—against Molino only. The jury found that allegation true
but the prosecutor struck it at sentencing.
4
(People v. Hargis (2019) 33 Cal.App.5th 199, 209 (Hargis);
People v. Harris (2018) 22 Cal.App.5th 657, 659-662 (Harris).)
SB 1391 (Stats. 2018, ch. 1012, § 1) amended section 707,
subdivision (a)(1) of the Welfare and Institutions Code to repeal
prosecutors’ authority to prosecute 14- and 15-year-old minors
as adults under most circumstances. (People v. Superior Court
(T.D.) (2019) 38 Cal.App.5th 360, 364-365, 368, review granted
Nov. 26, 2019, S257980). SB 1391 applies retroactively to
defendants whose cases were not final when the legislation
went into effect on January 1, 2019. (People v. Federico (2020)
50 Cal.App.5th 318, 324-326; C.S. v. Superior Court (2018)
29 Cal.App.5th 1009, 1038. Cf. People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 303 [Proposition 57 applies retroactively
to defendants whose cases were not final when the proposition
was enacted in November 2016]; People v. Padilla (2020) 50
Cal.App.5th 244, 250-251 [same].)
Brown’s case was final some two decades ago. Accordingly,
he is ineligible for relief under SB 1391. (Cf. People v. Alexander
(2020) 45 Cal.App.5th 341, 343 [Senate Bill No. 1393 giving
trial courts discretion to strike prior serious felony enhancements
does not apply to convictions that are final; appeal dismissed];
Hargis, supra, 33 Cal.App.5th at p. 209 [SB 620 does not apply
to convictions that are final]; Harris, supra, 22 Cal.App.5th
at pp. 659-662 [same].)
We are satisfied that that Brown’s counsel has fully
complied with his responsibilities and that no arguable issues
exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende,
supra, 25 Cal.3d at p. 441.)
5
DISPOSITION
We affirm the trial court’s denial of Brandon Douglas
Brown’s “petition to vacate conviction.”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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