People v. Brown CA2/7

Filed 3/9/21 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B303601

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, William N. Sterling, Judge. Reversed with

directions.

Joanna Rehm, under appointment by the Court of Appeal,

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland, Senior Assistant

Attorney General, A. Natasha Cortina and Lynne G. McGinnis,

Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Charles Brown appeals from an order denying his petition

under Penal Code section 1170.951 for failure to make a prima

facie showing he is entitled to relief. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brown and His Nephew Rob a Cocaine Dealer

Bobby Cisneros and Eduardo Quiroz were cocaine dealers;

Cisneros acquired the cocaine, and Quiroz sold it. Brown was one

of their customers. One morning in March 1997 Brown told

Quiroz he wanted to buy some cocaine. Quiroz spoke with

Cisneros, and Cisneros told him to stop by his apartment.

Cisneros said that, if he had the cocaine, Quiroz could sell it to

Brown.

Later that afternoon police responded to a shooting at

Brown’s residence. On the floor of a bedroom used by Brown they

found Cisneros’s dead body near the doorway. He had been shot

in the back of the head with a shotgun. Cisneros and Brown had

been seen together earlier that afternoon.

There were two percipient witnesses, both children. One of

them was sitting on the front porch of his aunt’s house doing

homework. He saw Brown get out of a white van, heard a man

say, “I did the best that I could,” and watched Brown go into his

(Brown’s) apartment building. The witness later heard two

gunshots and saw two black men run out of the house. One of the

men was wearing a baseball cap, had a revolver, and screamed,

“Let’s go!” The two men left in a red truck.

1 Statutory references are to the Penal Code.

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The other witness, who knew Brown, was playing with

friends on the roof of a house near Brown’s house. He heard

someone say, “Come here, come here man. Fool, fool.” Then he

heard gunshots. The witness saw Brown, carrying a gun, and

another person run out of the house and drive away in a red

pickup truck.

Earlier that day, a woman spoke with Brown’s nephew,

who told her that he and Brown were “about to go jack (rob) some

Mexicans” and that, if she saw Brown with some Hispanics

chasing him, she should go home. Brown’s nephew showed the

woman a foot-long shotgun and said that, after the robbery, she

would not see him for a long time, but that he would give her

some money so she could get her hair done. The woman later told

police that Brown and his nephew were planning a robbery.

At some point Quiroz went to the apartment where he and

Cisneros kept their cocaine and discovered half of it was gone.

Quiroz identified Brown from a six-pack photographic line up.

(People v. Brown (Jan. 19, 2010, B212584) [nonpub. opn.].)

B. A Jury Convicts Brown of Second Degree Murder

The People charged Brown with murder and alleged that

he personally used a firearm, within the meaning of section

12022.5, subdivision (a), and that a principal in the offense was

armed with a firearm, within the meaning of section 12022,

subdivision (a)(1). In 2008 a jury convicted Brown of second

degree murder. The jury found not true the allegation Brown

personally used a firearm, but found true the allegation a

principal was armed with a firearm. The trial court sentenced

Brown to a prison term of 16 years to life. Brown appealed, and

we affirmed.

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C. The Legislature Enacts Senate Bill No. 1437 and

Establishes the Section 1170.95 Petition Procedure

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective

January 1, 2019, amended the felony murder rule and eliminated

the natural and probable consequences doctrine as it relates to

murder by amending sections 188 and 189. Section 188,

subdivision (a)(3), provides: “Except as stated in subdivision (e)

of Section 189, in order to be convicted of murder, a principal in a

crime shall act with malice aforethought. Malice shall not be

imputed to a person based solely on his or her participation in a

crime.” Section 189, subdivision (e), provides that, with respect

to a participant in the perpetration or attempted perpetration of

a felony listed in section 189, subdivision (a), in which a death

occurs (that is, those crimes that provide the basis for first degree

felony murder), an individual is liable for murder “only if one of

the following is proven: [¶] (1) The person was the actual killer.

[¶] (2) The person was not the actual killer, but, with the intent

to kill, aided, abetted, counseled, commanded, induced, solicited,

requested, or assisted the actual killer in the commission of

murder in the first degree. [¶] (3) The person was a major

participant in the underlying felony and acted with reckless

indifference to human life, as described in subdivision (d) of

Section 190.2.”

Senate Bill No. 1437, through new section 1170.95, also

authorized an individual convicted of felony murder or murder

under a natural and probable consequences theory to petition the

sentencing court to vacate the conviction and to be resentenced

on any remaining counts if the individual could not now be

convicted of murder under changes Senate Bill No. 1437 made to

the definition of murder. (People v. Gentile (2020) 10 Cal.5th 830,

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842-843; People v. Rodriguez (2020) 58 Cal.App.5th 227, 236-237,

petn. for review pending, petn. filed Jan. 15, 2021, S266652

(Rodriguez).) If the petition contains all required information,

and the court determines the petition is facially sufficient, section

1170.95, subdivision (c), prescribes a two-step procedure for

determining whether to issue an order to show cause: “‘The court

shall review the petition and determine if the petitioner has

made a prima facie showing that the petitioner falls within the

provisions of this section. If the petitioner has requested counsel,

the court shall appoint counsel to represent the petitioner. The

prosecutor shall file and serve a response . . . and the petitioner

may file and serve a reply . . . . If the petitioner makes a prima

facie showing that he or she is entitled to relief, the court shall

issue an order to show cause.’” (People v. Verdugo (2020)

44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493

(Verdugo).)

If the court issues an order to show cause, the court must

hold a hearing to determine whether to vacate the murder

conviction and to recall the sentence and resentence the

petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see

Rodriguez, supra, 58 Cal.App.5th at p. 237, petn. for review

pending; Verdugo, supra, 44 Cal.App.5th at p. 327, review

granted.) At the hearing the prosecution has the burden of

proving beyond a reasonable doubt the petitioner is ineligible for

resentencing. (Rodriguez, at p. 237; see § 1170.95, subd. (d)(3).)

The prosecutor and the petitioner may rely on the record of

conviction or offer new or additional evidence. (Rodriguez, at

p. 237; see People v. Tarkington (2020) 49 Cal.App.5th

892, 898-899, review granted Aug. 12, 2020, S263219; People v.

Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8,

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2020, S262481.) The record of conviction includes the verdict and

the jury instructions. (People v. Soto (2020) 51 Cal.App.5th 1043,

1055, review granted Sept. 23, 2020, S263939; People v. Gomez

(2020) 52 Cal.App.5th 1, 16, review granted Oct. 14, 2020,

S264033; Verdugo, at p. 330.)

D. Brown Files a Petition Under Section 1170.95, Which

the Superior Court Denies

In January 2019 Brown, representing himself, filed a

petition under section 1170.95. He alleged, among other things,

that he was convicted of first or second degree murder under a

felony murder or natural and probable consequences doctrine,

that he could not now be convicted of murder because of the

changes to sections 188 and 189, and that he was not the actual

killer, did not with the intent to kill aid and abet the actual

killer, and was not a major participant in the underlying felony

who acted with reckless indifference to human life. The superior

court appointed counsel to represent Brown, and the People filed

a response to the petition.

The superior court (the same judge who presided over the

trial in 2008) denied the petition, ruling Brown had not made a

prima facie showing he was entitled to relief under section

1170.95. Although the court initially indicated the jury convicted

Brown on a theory of felony murder, the prosecutor (the same

prosecutor who tried the case against Brown) stated that he had

argued both “regular murder” and felony murder and that the

jury convicted Brown of “straight second degree murder.”

The court ruled that Brown “could not have been convicted

of felony murder because . . . the underlying felony was robbery

in the first degree. So it’s clear from the record, and [the jurors]

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were never instructed on [a] natural and probable consequences

theory. So it appears to me he does not come within the group of

individuals covered by section 1170.95 who would be entitled to

[relief] because the conviction was neither for felony murder nor

on the theory of natural and probable consequences.” The court

also ruled that, “even if this [had] been a conviction under a

felony murder theory,” the “evidence made it clear” Brown “was

both a major participant and that he acted with reckless

indifference to human life.” Brown timely appealed.

DISCUSSION

A. The People Had To Show the Record Conclusively

Established Brown Was Not Convicted of Felony

Murder

“[W]hen assessing the prima facie showing, the trial court

should assume all facts stated in the section 1170.95 petition are

true. [Citation.] The trial court should not evaluate the

credibility of the petition’s assertions, but it need not credit

factual assertions that are untrue as a matter of law—for

example, a petitioner’s assertion that a particular conviction is

eligible for relief where the crime is not listed in subdivision (a) of

section 1170.95 as eligible for resentencing. Just as in habeas

corpus, if the record ‘contain[s] facts refuting the allegations

made in the petition . . . the court is justified in making a

credibility determination adverse to the petitioner.’ [Citation.]

However, this authority to make determinations without

conducting an evidentiary hearing pursuant to section 1170.95,

subd[ivision] (d) is limited to readily ascertainable facts from the

record (such as the crime of conviction), rather than factfinding

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involving the weighing of evidence or the exercise of discretion

(such as determining whether the petitioner showed reckless

indifference to human life in the commission of the crime).”

(People v. Drayton (2020) 47 Cal.App.5th 965, 980; see Verdugo,

supra, 44 Cal.App.5th at pp. 329-330, review granted.)

Brown alleged, among other things, that he was convicted

under a theory of felony murder and that he could not now be

convicted under that theory in light of the amendments to

sections 188 and 189. The superior court had to accept these

allegations as true and issue an order to show cause “unless facts

in the record conclusively refute them as a matter of law.”

(People v. Drayton, supra, 47 Cal.App.5th at p. 968; see People v.

Duchine (2021) 60 Cal.App.5th 798, 815 [“the time for weighing

and balancing and making findings on the ultimate issues arises

at the evidentiary hearing stage rather than the prima facie

stage, at least where the record is not dispositive on the factual

issues,” and “absent a record of conviction that conclusively

establishes that the petitioner engaged in the requisite acts and

had the requisite intent, the trial court should not question his

evidence”].)

The People argue the record conclusively refutes Brown’s

allegation he was convicted of felony murder because the jury

convicted him of second degree malice murder. According to the

People, “the record of conviction shows that [Brown’s] jury did not

find him guilty of . . . felony murder,” but “rather second degree

murder on the ground[ ] he acted with express or implied malice.”

The People assert the “petition was properly denied because the

instructions and the jury verdict conclusively establish [Brown’s]

second degree conviction was based on express or implied

malice—theories which remain valid after the enactment of

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Senate Bill No. 1437.” As stated, that is what the prosecutor

argued and the trial court ruled at the hearing on Brown’s

petition. The record, however, is not so clear.

B. The Trial Court Erred in Ruling Brown Failed To

Make a Prima Facie Showing of Entitlement to Relief

At Brown’s trial, the court instructed the jury on murder

with malice aforethought, first degree murder, first degree felony

murder where the defendant is the killer, and first degree felony

murder where the defendant is not the killer. The People

acknowledge the court did not instruct on aiding and abetting,

the natural and probable consequences doctrine, or second degree

felony murder. As stated, the jury convicted Brown of second

degree murder, without specifying the theory, and found not true

the allegation he personally used a firearm.

Instructing the jury on malice murder with CALCRIM

No. 520, the trial court stated, in relevant part: “The defendant

is charged in count 1 with murder. To prove that the defendant

is guilty of this crime, the People must prove: 1. The defendant

committed an act that caused the death of another person;

2. When the defendant acted, he had a state of mind called malice

aforethought.” The instruction defined the two kinds of malice,

express and implied.

The trial court then instructed the jury with CALCRIM

No. 521, first degree murder: “The defendant has been

prosecuted for first degree murder under two theories: No. 1, the

murder was willful, deliberate, and premeditated. And No. 2, the

murder was committed during the course of a robbery or

attempted robbery. . . . Each theory of first degree murder has

different requirements, and I will instruct you on both.” After

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instructing the jury on the requirements of willful, deliberate,

and premeditated murder, the trial court stated: “The second

theory under which the People are proceeding as to first degree

murder is called felony murder. . . . All other murders are of the

second degree.”

The trial court also instructed the jury with CALCRIM

No. 540A, first degree felony murder where the defendant

allegedly committed the fatal act: “The defendant is charged in

count 1 with murder under a theory of felony murder. To prove

that the defendant is guilty of first degree murder under this

theory, the People must prove that . . . 1, the defendant

committed or attempted to commit robbery; 2, the defendant

intended to commit robbery; and 3, while committing or

attempting to commit robbery, the defendant did an act that

caused the death of another person. A person may be guilty of

felony murder even if the killing was unintentional, accidental, or

negligent.”

Also with CALCRIM No. 540B, felony murder where a co-

participant allegedly committed the fatal act: “The defendant is

charged in count 1 under a theory of felony murder. The

defendant may also be guilty of murder under a theory of felony

murder, even if another person did the act that resulted in the

death. I will call the other person the perpetrator. To prove that

the defendant is guilty of first degree murder under this theory,

the People must prove that, 1, the defendant committed or

attempted to commit robbery; 2, the defendant intended to

commit robbery; and 3, while committing or attempting to

commit robbery, the perpetrator did an act that caused the death

of another person. A person may be guilty of felony murder even

if the killing was unintentional, accidental, or negligent.”

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And with CALCRIM No. 548, multiple theories of murder:

“The defendant has been prosecuted for murder under two

theories: No. 1 is malice aforethought and premeditation; and

No. 2, felony murder. Each theory of murder has different

requirements. And I . . . have instructed you on both already.

You may not find the defendant guilty of murder unless all of you

agree that the People have proved that the defendant committed

murder under at least one of these theories. You do not all need

to agree on the same theory.”

So far, so good. But the trial court also responded to a

series of questions from the jurors, giving them additional

instructions. The jury’s first question was: “Do we consider

murder in second degree? What is defin. of 2nd degr?” The trial

court (a judge substituting for the judge who presided over the

trial) answered the jury’s question, but the answer is not in the

record.2

The jury’s second question was: “In the standard for

express malice—in the definition of murder must the ‘act’ be the

direct cause of death?” With the agreement of counsel, the trial

court (the same substitute judge) answered the question by

referring the jury to CALCRIM No. 520.

The jury’s third (and, for purposes of this appeal, the most

significant) question was: “In the standard for second degree

murder, can the defendant be found guilty, where even if another

person did the act that resulted in the death.” Brown contends

that this question concerned CALCRIM No. 540B and that “it can

be reasonably inferred [the] jurors were asking if the felony

2 The court’s minute order states: “The jury submits a

question and at 10:45 a.m., off the record, the jury’s question is

answered.”

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murder rule also applied to second degree murder.” The trial

court (a different judge substituting for the judge who presided

over the trial; i.e., a third judge) answered the question, “Yes.”3

Brown contends that, upon receiving this answer, the “jurors

would reasonably understand that second degree murder could

also be based on felony murder.” And as stated, the jury found

Brown guilty of second degree murder.

The record of conviction does not conclusively show the

jurors did not convict Brown of second degree murder based on a

felony murder theory. In response to the jury’s third question,

the court instructed the jurors that they could find Brown guilty

of second degree murder “even if another person did the act that

resulted in the death.” That language came from CALCRIM

No. 540B, the instruction for felony murder, which stated that

the defendant “may also be guilty of murder, under a theory of

felony murder, even if another person did the act that resulted in

the death.” Thus, one interpretation of the record is that the trial

court’s response to the jury’s question suggested the jurors could

find Brown guilty of second degree murder under a theory of

felony murder. Moreover, because the trial court did not instruct

the jury on aiding and abetting principles, the record does not

establish the jury convicted Brown of second degree murder on an

aiding and abetting theory. (See People v. Delgado (2013)

56 Cal.4th 480, 488 [“instructions delineating an aiding and

abetting theory of liability must be given when such derivative

culpability ‘form[s] a part of the prosecution’s theory of criminal

liability’”]; see also Cole v. Arkansas (1948) 333 U.S. 196, 202

3 The answer to the jury’s third question, written at the

bottom of the form used by the jury to ask the question) states:

“The answer is yes per Judge Veals.”

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[68 S.Ct. 514, 92 L.Ed.644] [“petitioners [are] entitled to have the

validity of their convictions appraised on consideration of the case

as it was tried and as the issues were determined in the trial

court”]; People v. Kunkin (1973) 9 Cal.3d 245, 251 [“We, of course,

cannot look to legal theories not before the jury in seeking to

reconcile a jury verdict with the substantial evidence rule.”].) At

a minimum, the record on the whole does not conclusively refute

Brown’s allegation that the jury convicted him on a theory of

murder that is no longer valid. (See People v. Duchine, supra,

60 Cal.App.5th at p. 813 [“If a defendant asserts he lacked the

requisite intent or did not act in a manner that would make him

liable under still-valid murder theories, unless the record of

conviction refutes those assertions as a matter of law, the

defendant has met his prima facie burden,” and “the trial court

should take him at his word and not engage in factfinding on the

issues ‘without first issuing an order to show cause and allowing

the parties to present evidence at a hearing.’”]; see also In re

White (2019) 34 Cal.App.5th 933, 937, fn. 2 [under Senate Bill

No. 1437 “the second degree felony-murder rule in California is

eliminated”]; People v. Frandsen (2019) 33 Cal.App.5th 1126,

1142, fn. 3 [Senate Bill No. 1437 “brings into question the

ongoing viability of second degree felony murder in California”].)

The People suggest that Brown’s contention the jurors

“were asking about the second degree felony murder rule” is

“sheer speculation, as the question was equally consistent with

the possibility the jury thought [Brown] was a direct aider and

abettor to the murder.” But that the jury’s question and the

court’s answer may be “equally consistent” with a theory other

than second degree felony murder is Brown’s point: Because a 50

percent chance is only halfway to conclusive, the record of

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conviction does not conclusively refute that Brown was convicted

of felony murder and entitled to relief under section 1170.95. In

addition, as discussed, the trial court did not instruct the jury on

aiding and abetting.

Finally, Brown argues, the People concede, and we agree

that, under the circumstances of this case, the trial court erred in

ruling at the prima facie stage that “the evidence showed he was

a major participant in the underlying robbery who acted with

reckless indifference to human life.” (See People v. Duchine,

supra, 60 Cal.App.5th at p. 816 [“The major participant and

reckless indifference findings the trial court made based solely on

the record evidence entail the weighing of evidence, drawing of

inferences, and assessment of credibility that should be left to the

factfinding hearing process contemplated by section 1170.95,

subdivision (d).”].) The jury in Brown’s trial made no such

finding, and the prosecutor did not argue in opposition to Brown’s

petition that Brown was a major participant who acted with

reckless indifference to human life. The superior court can

address this issue after issuing an order to show cause.

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DISPOSITION

The trial court’s order denying Brown’s petition is reversed.

The trial court is directed to issue an order to show cause under

section 1170.95, subdivision (c), and to hold a hearing under

section 1170.95, subdivision (d), to determine whether to vacate

Brown’s murder conviction and to recall his sentence and

resentence him.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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