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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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