Opinion

People v. Brown CA2/1

Court
California Court of Appeal
Filed
Mar 18, 2021
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.1%

The opinion

Filed 3/18/21 P. v. Brown CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B306915

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. MA065269)

v.

JOHN CHRISTOPHER

BROWN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Shannon Knight, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant

Attorney General, Paul M. Roadmarel, Jr., and Stephanie A.

Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

In John Christopher Brown’s direct appeal of his

convictions for first degree murder and willful, deliberate, and

premeditated attempted murder, we affirmed the convictions and

remanded the matter for the trial court to determine whether to

strike any enhancements imposed under Penal Code sections 667,

subdivision (a)(1) and 12022.53, pursuant to newly-enacted

statutory provisions allowing courts to strike such enhancements.

(People v. Ballard (Feb. 26, 2019, B282339) [nonpub. opn.], pp.

27-28, 30.)1 Brown now appeals from the order entered after a

hearing upon remand, at which a judge who did not preside at

trial declined to exercise the court’s discretion to strike any

enhancements. Brown contends we must remand the matter for

a new sentencing hearing, arguing (1) he was entitled to a

hearing before the same judge who presided at trial, and (2) the

court did not exercise informed discretion because it relied on

“misinformation” about the facts and circumstances of his case.

We reject Brown’s arguments and affirm.

BACKGROUND

I. Trial and Verdicts

The following facts regarding the murder and attempted

murder are quoted from our opinion in Brown’s direct appeal of

his convictions. (People v. Ballard, supra, B282339.) Brown was

nearly 35 years old at the time he committed the current

offenses.

Brown’s codefendant “Ballard was at one time in a

romantic relationship with Faviana Richardson [the attempted

murder victim], who by January 2015 was engaged to Johnny

1 Brown was tried with his codefendant, William Lamar

Ballard.

2

Jones [the murder victim]. In January 2015, Ballard posted

negative comments about Richardson on social media.

“On the evening of January 17, 2015, Richardson and

several friends went to the home of Ballard’s current girlfriend,

Toni Cook, and demanded to see Ballard, who was asleep in a

back room. Cassie Jones (no relation to the [murder] victim) and

Shakira W. answered the door and said Ballard was not home.

After Richardson left, Jones informed Ballard about the

confrontation, and he telephoned [appellant] Brown and asked

him to come to Cook’s house.

“Later that evening Ballard attended a neighborhood

barbeque event. Richardson and her group arrived and she and

Ballard argued, and at one point Ballard told her, ‘Fuck you. I’ll

get you popped. I’ll kill you.’

“Richardson left the event but later returned and again

argued with Ballard, who again said, ‘I’ll kill you.’

“Ballard left the event and walked back to Cook’s residence,

where Brown arrived a short time later. Ballard and Brown then

returned to the barbeque, where they confronted Richardson.

“With Brown standing next to Ballard and Johnny Jones

behind Richardson, Ballard and Brown called Richardson ‘bitch’

several times, to which Jones strongly objected. As he and

Ballard prepared to fight, Ballard passed a revolver to Brown and

said, ‘Kill that bitch.’

“Brown fired a shot at Richardson just as Johnny Jones

pushed her out of the way. The bullet struck Jones, killing him.”

(People v. Ballard, supra, B282339, pp. 2-3.)

“The jury found Ballard and Brown guilty of first degree

murder and willful, deliberate and premeditated attempted

murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), and found

3

firearm enhancements to be true. (Pen. Code, §§ 12022, subd.

(a)(1), 12022.53, subds. (b)-(d).)[2]” (People v. Ballard, supra,

B282339, p. 5.)

II. Sentencing Hearing and Direct Appeal

At the sentencing hearing on April 27, 2017, the trial court

(Judge Frank M. Tavelman) found true the special allegations

that Brown had a prior serious felony robbery conviction within

the meaning of section 667, subdivision (a)(1) and the “Three

Strikes” law (§§ 667, subds. (b)-(j), 1170.12). The court sentenced

Brown to 114 years to life in prison: for the first degree murder,

25 years to life, doubled to 50 years to life for the second strike,

plus 25 years to life for the firearm enhancement under section

12022.53, subdivision (d) (personal and intentional discharge of a

firearm proximately causing great bodily injury or death), and

five years for the prior serious felony enhancement under section

667, subdivision (a)(1); and for the willful, deliberate, and

premeditated attempted murder, seven years to life, doubled to

14 years to life for the second strike, plus 20 years for the firearm

enhancement under section 12022.53, subdivision (c) (personal

and intentional discharge of a firearm).

Defense counsel objected to the trial court’s imposition of

the firearm enhancement on the attempted murder count “on the

basis . . . it constitutes double punishment for one act, that there

should only be one armed for use allegation for the case since it

was one act that was also in two charges.” The court responded:

“I understand your argument; however, the law is that each

victim is a separate act for which the weapon allegation can be

imposed, which it is in this particular case.”

“2 All further statutory references are to the Penal Code

unless otherwise indicated.”

4

The trial court imposed a $10,000 restitution fine under

section 1202.4, subdivision (b), “based upon the nature of the

offense and the severity of it,” noting it could have imposed a

$20,000 restitution fine, $10,000 for each count.3

Brown (and Ballard) appealed, challenging the sufficiency

of the evidence supporting the convictions and raising various

errors not germane to this appeal. (People v. Ballard, supra,

B282339, p. 2.) Brown also contended he was entitled to a new

sentencing hearing in light of Senate Bill No. 620 (Stats. 2017,

ch. 682, § 2), which amended section 12022.53, effective January

1, 2018, to give trial courts discretion to strike certain firearm

enhancements, and Senate Bill No. 1393 (Stats. 2018, ch. 1013,

§§ 1-2), which amended section 1385, effective January 1, 2019,

to give trial courts discretion to strike prior serious felony

enhancements. (Ballard, at pp. 27-28.) We affirmed the

convictions and remanded the matter to allow the trial court an

opportunity to exercise discretion it did not have at the time it

sentenced Brown, and to determine whether to strike any

enhancements imposed under sections 667, subdivision (a)(1) and

12022.53. (Ballard, at pp. 28, 30.)

III. Hearing Upon Remand

Upon remand, the matter was assigned by case number

matrix to a different judge because Judge Tavelman, the trial

judge, was no longer sitting in the North District where the

3We include these facts regarding the restitution fine

because, as discussed below, Brown indicates these facts

demonstrate the trial judge showed him leniency and would have

been more likely to strike enhancements than the judge who

heard his case upon remand and declined to strike any

enhancements.

5

matter was tried. The prosecution filed a Code of Civil Procedure

section 170.6 peremptory challenge against the new judge, and

the matter was reassigned by case number matrix to another

judge. The defense then filed a peremptory challenge against the

new judge, and the matter was reassigned by case number matrix

to Judge Shannon Knight.

At the hearing before Judge Knight on July 17, 2020, the

following exchange occurred between the court and defense

counsel:

“The court has read and considered the probation report as

well as the Court of Appeal opinion and the remittitur, and at

this time we are here for the court to decide whether it would be

appropriate since the law has changed to give the court discretion

to strike the five-year serious felony prior as well as the firearm

enhancements -- or the firearm enhancement, I should say, as to

each count.

“Did you wish to be heard here, [defense counsel]?

“[Defense counsel]: I did, Your Honor. It sounds like the

court is ready to rule, and I’m surprised because the court -- the

court knows the broad outlines of the case but not the

particularities of the case, and I would be surprised that the

court can exercise discretion on such a weighty issue without

knowing the finer points of the case.

“The Court: All right. If you’d like to enlighten me as to

anything, feel free to do so; but as I said, the court did review the

relevant materials.

“It is often the case that we do get cases returned to us and

the trial court, the trial judge, is no longer assigned to the district

so it is not at all uncommon to have to make these decisions not

6

having heard all of the evidence in the trial but relying on the

information that we have in the court file.

“[Defense counsel]: May I inquire, has the court read a

transcript?

“The Court: No, I have not read a transcript.

“[Defense counsel]: So I will object to the court proceeding

based on lack of preparation and submit.

“The Court: All right. The court does feel that the court

has sufficient information about the facts of the case as well as

the factors pertaining to the defendant to be able to proceed. If

there was anything, [defense counsel], that you feel in particular

that needs to be brought to the court’s attention that was not part

of the Court of Appeal recitation of the facts and the trial

proceedings as well as the probation report, I’ll certainly hear

from you.

“[Defense counsel]: Okay. Having made my objection,

what I would -- what I wanted to say both to the prior bench

officer and presently now is that the court has several places to

go in the exercise of its discretion. The court can resentence Mr.

Brown to 25 years to life on the gun use or the court can impose

the lesser 20 year or 10 year or not impose the time on the

allegation at all.

“What I want [to] urge the court to do is not impose the 25

years to life. It’s redundant and sort of pointless. He’s got a life

term now. The idea of serving two life terms, one being

consecutive to the other, doesn’t make sense and to me feels

somewhat -- and I don’t mean this personally, but it feels

dishonest.

“I would argue that what’s appropriate here is the exercise

of discretion that would leave -- that would have the court impose

7

something less than 25 to life. Simply because the fact that the

Legislature has gone from no discretion to granting the court the

exercise of discretion suggests that even the Legislature thinks

that 25 to life in this situation as an allegation can be too much.

“So I’d ask the court to think about the logic of imposing

another 25 to life and urge the court to impose one of the lesser,

20, 10 years -- I’d ask the court to not impose at all. If the court

feels it must impose, to start at ten years and justify going up to

itself and to the record to the point where the court finally goes.

“The other issue that is before the court -- and I don’t know

if the court wants to hear from this now or separately -- the five-

year prior.

“The Court: Go ahead.

“[Defense counsel]: My client is hit with that same prior

conviction twice here. He’s sentenced as a strike and as a five-

year prior. I know that the bench before was a prosecutor; but on

the defense side, that has always been an outrageous double

charging of defendants in our view.

“He’s been punished significantly by having that prior and

having everything doubled. To add an extra 5 years -- again, on

top of what is 50 years to life for the main charge and would be

75 to life if the court imposes the full gun allegation -- and make

it 80 to life, just seems sort of pointless, and I’d ask the court to

exercise that bit of discretion just to save time.

“I would also note that at the time that this occurred, my

client -- I haven’t been able to get into the facts of that prior case

[the serious felony/strike conviction for robbery], but I do note my

client was on probation. That tells me there was something very

soft in that case.

“And submit it.”

8

After hearing from the prosecutor, who urged the court not

to strike any of the enhancements, the court ruled as follows:

“The court notes that the crimes involved in this case

involved a high degree of callousness. This was a cold, calculated

act on the part of Mr. Brown and his co-defendant. Really it

seems like primarily the co-defendant was the party who would

have been more emotionally involved in the situation. Mr. Brown

seems to simply have acted out of pure callousness and a desire

to kill one or more of these individuals.

“And although it appears that the primary target, her life

was spared, in the process, Mr. Brown -- it was not for lack of

trying by Mr. Brown, it appears that the second victim lost his

life in an effort to protect the original intended victim. And this

was extraordinarily violent, extraordinarily callous and

calculated on the part of Mr. Brown.

“The court also notes that Mr. Brown has a very lengthy

criminal history including multiple felony convictions. He has a

history going back actually to -- looks like age 14 is when his

criminal history began, and since then, it has been rather

consistent. Going back from 1994 through the conviction in this

case, I don’t see any significant break in the time between

criminal cases, criminal activity. And he was on probation. It

looks like the grant of probation in the robbery case was January

7 of 2014, and the current offense -- offenses in this case were

January 17 of 2015 so barely a year has he been on formal

probation for robbery.

“So with all that, while the court certainly does recognize

that there may be times when it is appropriate to strike the

firearm enhancement and it may be appropriate to strike the

five-year serious felony enhancement, the court does not believe

9

that it would be in the interest of justice to do so in this case as to

any of these counts or allegations and the court does not believe

that it would be appropriate.

“The court believes that the sentence that was imposed by

Judge Tavelman remains the appropriate sentence, even in the

presence of the newly authorized discretion to strike the

enhancement and the prior, so the court declines to do so.

“And with that, no change in sentence is required so

nothing changes with regard to the sentence at this time.”

DISCUSSION

Brown contends we must remand the matter for a new

sentencing hearing, arguing (1) he was entitled to a hearing

before the judge who presided at trial, and (2) the court did not

exercise informed discretion because it relied on “misinformation”

about the facts and circumstances of his case. As explained

below, we reject his arguments.

I. Brown’s Claim He Was Entitled to a Hearing Before

the Trial Judge is Forfeited and Without Merit

At the July 17, 2020 hearing upon remand, Brown objected

to Judge Knight proceeding based on her purported “lack of

preparation” in not reading the reporter’s transcripts of the

proceedings. He never asserted he was entitled to a hearing

before the trial judge. Thus, Brown forfeited this contention on

appeal. (People v. Brooks (2020) 53 Cal.App.5th 919, 924-925

(Brooks) [by failing to raise the issue below, defendant forfeited

the contention he was entitled to a hearing before the

trial/original sentencing judge upon remand for determination

whether to strike a prior serious felony enhancement under the

court’s new statutory discretion].) Even if Brown had preserved

this contention for review, we have already considered the issue

10

and held, in a published opinion, that a defendant is not entitled

to a hearing before the trial/original sentencing judge when the

Court of Appeal remands the matter for a determination whether

to strike an enhancement under the court’s new statutory

discretion. (Id. at pp. 924-926.)

As we explained in Brooks, “the hearing on remand was not

a resentencing,” and “we are aware of no authority creating an

entitlement to have the same judge that [presided at trial and]

sentenced a defendant hear a motion to strike enhancements if a

case is remanded for that purpose.” (Brooks, supra, 53

Cal.App.5th at p. 925.) Brown has cited no such authority here.

His reliance on People v. Arbuckle (1978) 22 Cal.3d 749 is

misplaced. There, our Supreme Court concluded, “[a]s a general

principal, . . . whenever a judge accepts a plea bargain and

retains sentencing discretion under the agreement, an implied

term of the bargain is that sentence will be imposed by that

judge.” (Id. at pp. 756-757.) As we concluded in Brooks,

“[r]emand here did not involve the considerations present in

Arbuckle” concerning guilty pleas. (Brooks, at p. 926.)

Brown has expressed on appeal a preference for the trial

judge to determine whether to strike an enhancement because he

believes the trial judge would be more lenient than Judge Knight.

He cites as an example the trial judge’s decision to impose a

$10,000 restitution fine rather than a $20,000 restitution fine.

While a defendant may prefer to have the trial judge determine

upon remand whether to strike an enhancement—a preference

Brown did not express below—there are “countervailing

considerations. A trial judge’s reassignment within a large

county’s superior court, for example, may leave a trial judge in a

facility with no temporary detention capacity. Judges may be

11

technically available, then, to handle motions on remand, but not

practically available.” (Brooks, supra, 53 Cal.App.5th at p. 926.)

For all these reasons, as we explained in Brooks, “we

decline to create the rule [Brown] has requested of us here.”

(Brooks, supra, 53 Cal.App.5th at p. 926.) We reject his

contention he was entitled to hearing before the trial judge upon

remand.

II. The Court Did Not Abuse Its Discretion in Declining

to Strike an Enhancement

“ ‘ “A court’s discretionary decision to dismiss or to strike a

sentencing allegation under section 1385 is” reviewable for abuse

of discretion.’ [Citation.] ‘In reviewing for abuse of discretion, we

are guided by two fundamental precepts. First, “ ‘[t]he burden is

on the party attacking the sentence to clearly show that the

sentencing decision was irrational or arbitrary. [Citation.] In the

absence of such a showing, the trial court is presumed to have

acted to achieve legitimate sentencing objectives, and its

discretionary determination to impose a particular sentence will

not be set aside on review.’ ” [Citations.] Second, a “ ‘decision

will not be reversed merely because reasonable people might

disagree. “An appellate tribunal is neither authorized nor

warranted in substituting its judgment for the judgment of the

trial judge.” ’ ” [Citations.] Taken together, these precepts

establish that a trial court does not abuse its discretion unless its

decision is so irrational or arbitrary that no reasonable person

could agree with it.’ ” (People v. Pearson (2019) 38 Cal.App.5th

112, 116.)

Brown contends the court “failed to exercise its informed

discretion due to misinformation,” in declining to strike an

12

enhancement. As explained below, the record does not support

this contention.

Brown faults the court for not reading the reporter’s

transcripts of the proceedings before declining to strike an

enhancement. As set forth above, the court gave Brown ample

opportunity to provide the court with information he believed was

not included in the documents the court reviewed, and Brown

disclosed no such information.

Brown challenges the court’s reasons for declining to strike

an enhancement. He argues the court was somehow misinformed

when it found his offenses “involved a high degree of callousness”

and his conduct “was extraordinarily violent, extraordinarily

callous and calculated.” During a verbal altercation with

Ballard’s ex-girlfriend, Faviana Richardson, Ballard handed

Brown a revolver and said, “Kill that bitch.” (People v. Ballard,

supra, B282339, p. 3.) Brown fired a shot with the intent to kill

Richardson, but he shot and killed Richardson’s fiancé instead.

Based on these facts and circumstances of the murder and

attempted murder—which Brown does not dispute on appeal—we

reject Brown’s assertion there was an insufficient “factual basis

for the court’s repeated use of ‘callousness’ to describe his

culpable conduct herein.” He points out he “did not bring the gun

to the barbecue and that he fired [only] one shot.” We disagree

with his assertion that these facts “undermine” the court’s

findings regarding the violent, callous, and calculated nature of

his conduct. We also disagree with his characterization of the

court’s findings as “hyperbolic.”

Brown also argues the court should not have relied on his

lengthy criminal history in declining to strike an enhancement

because he “had already been repeatedly punished specifically for

13

his lengthy criminal record” in that the term imposed for each

offense was doubled under the Three Strikes law. Brown cites no

authority supporting this argument, and we are aware of none.

The court did not abuse its discretion in citing Brown’s 20-year

criminal history as a reason it declined to strike an enhancement.

In his reply brief on appeal, Brown asserts: “Possibly due

to the recency of SB 620 and SB 1393, the court may not have

been fully informed on the nature and scope of its discretion in

resentencing appellant under the amended statutes.” The court’s

comments about the nature and scope of its discretion, as quoted

above, belie Brown’s assertion. Moreover, Brown pointed out to

the court that it had discretion to strike the 25-year firearm

enhancement and impose a 10-year or 20-year firearm

enhancement, based on the jury’s true findings on the various

firearm enhancements.

Nothing in the record before us demonstrates error. Based

on the facts and circumstances of the case and Brown’s lengthy

criminal history, the court found it was not in the interests of

justice to strike any enhancement, and the court concluded the

sentence originally imposed was the appropriate sentence. The

court did not abuse its discretion.

14

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

15

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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