People v. Brown CA1/4

Filed 4/11/22 P. v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A159376

v.

JOHN H. BROWN, (City & County of San Francisco

Super. Ct. No. SCN115309)

Defendant and Appellant.

Defendant John H. Brown appeals an order denying his petition for

resentencing under Penal Code1 section 1170.95. He contends the trial court

erred in summarily denying his petition without appointing counsel. We find

no error and shall affirm the order.

Background

In 1985, a jury convicted defendant of second degree murder (§ 187)

and found he personally used a deadly weapon in the commission of the

murder (§ 12022, subd. (b)). Defendant’s conviction was affirmed on appeal in

1986. (People v. Brown (Sept. 19, 1986, A031668) [nonpub. opn.].)

Following the January 2019 change in the law on felony murder and

the natural and probable consequences doctrine occasioned by Senate Bill

1 All statutory references are to the Penal code unless otherwise noted.

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No. 1437 (Stats. 2018, ch. 1015, § 2), defendant filed a pro se petition under

section 1170.95 seeking to vacate his second degree murder conviction.

The People did not file a written response to defendant’s petition. On

December 23, 2019, at the hearing on the matter, at which only the

prosecution appeared, the prosecutor advised the trial court she had reviewed

the abstract of judgment, the original trial brief, and the original parties’

proposed instructions, and did not believe felony murder was involved. She

noted that the jury made a true finding on the deadly weapon use allegation.

She asked the trial court to summarily deny the petition.

The trial court indicated it had reviewed the petition, the sentencing

transcript, and the underlying appellate opinion. Based on that review, it

appeared there was no felony-murder theory, no codefendant, and there was

a true finding on the weapon use allegation. Based on the petition, the court

declined to appoint counsel, and denied the petition “without prejudice to

[defendant] providing further information that would put him within the

ambit of the statute.”

Defendant timely filed a notice of appeal.

Discussion

Senate Bill No. 1437 “eliminated natural and probable consequences

liability for murder as it applies to aiding and abetting, and limited the scope

of the felony murder rule. [Citations.] Senate Bill 1437 also added section

1170.95 to the Penal Code, which creates a procedure for convicted murderers

who could not be convicted under the law as amended to retroactively seek

relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted (Lewis).)

Pursuant to section 1170.95, an offender must file a petition in the

sentencing court averring that: “(1) A complaint, information, or indictment

was filed against the petitioner that allowed the prosecution to proceed under

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a theory of felony murder or murder under the natural and probable

consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or

second degree murder following a trial or accepted a plea offer in lieu of a

trial at which the petitioner could be convicted for first degree or second

degree murder[; and] [¶] (3) The petitioner could not be convicted of first or

second degree murder because of changes to Section 188 or 189 made

effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also § id.,

subd. (b)(1)(A).) Additionally, the petition shall state “[w]hether the

petitioner requests the appointment of counsel.” (§ id., subd. (b)(1)(C).) If a

petition fails to comply with subdivision (b)(1), “the court may deny the

petition without prejudice to the filing of another petition . . . .” (§ id.,

subd. (b)(2).) Where the petition complies with subdivision (b)’s requirements,

then the court proceeds to subdivision (c) to assess whether the petitioner has

made “a prima facie showing” for relief. (§ id., subd. (c).)

In Lewis, supra, 11 Cal.5th at page 957, the court held that “the

statutory language and legislative intent of section 1170.95 make clear that

petitioners are entitled to the appointment of counsel upon the filing of a

facially sufficient petition (see § 1170.95, subds. (b), (c)) and that only after

the appointment of counsel and the opportunity for briefing may the superior

court consider the record of conviction to determine whether ‘the petitioner

makes a prima facie showing that he or she is entitled to relief.’ ” The court

also held that “the deprivation of a defendant’s right to counsel under

subdivision (c) of section 1170.95 was state law error only, tested for

prejudice under People v. Watson (1956) 46 Cal.2d 818.” (Lewis, supra, at

pp. 957–958.)

Defendant contends the court erred in denying his petition without

appointing counsel for him and permitting the parties to submit briefing

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under 1170.95, subdivision (c). The Attorney General argues that summary

denial was proper because defendant’s petition was not facially sufficient

and, alternatively, that any error in failing to appoint counsel was harmless.

As the Attorney General explains, and defendant concedes, defendant

failed to check boxes 1 and 2 on the petition declaring under penalty of

perjury that he was convicted of second degree murder under the natural and

probable consequences doctrine or felony-murder theory and that a charging

document was filed against him that allowed the prosecution to proceed

under one or both theories. Defendant suggests that his petition is sufficient

because the averment in box 3, that he could not be convicted of first or

second degree murder because of changes to section 188 or 189 is the

gravamen of the resentencing provisions and effectively incorporates the

allegations of the unchecked boxes. The suggestion disregards the statutory

language and is not persuasive. (See § 1170.95, subd. (b)(2) [“If any of the

information required by this subdivision is missing from the petition and

cannot be readily ascertained by the court, the court may deny the petition

without prejudice to the filing of another petition and advise the petitioner

that the matter cannot be considered without the missing information.”];

People v. Soto (2020) 51 Cal.App.5th 1043, 1054 [“ ‘Under subdivision (b)(2), a

trial court may deny a petition without prejudice if the petition lacks any of

the information required by subdivision (b)(1).’ ”], quoting People v. Drayton

(2020) 47 Cal.App.5th 965, 974, reversed on other grounds in Lewis, supra, 11

Cal.5th at p. 963.) As the court noted in Lewis, supra, at page 968, “the

requirement that a petition include ‘[a] declaration by the petitioner that he

or she is eligible for relief under this section, based on all the requirements of

subdivision (a)’ [citation] should discourage frivolous petitions.” We note that

the form petition submitted by defendant expressly states, “Note: Box 1, Box

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2a or 2b, and Box 3 must all apply in order to be resentenced under Penal Coe

§ 1170.95.”

Although the trial court did not rely on these pleading deficiencies to

summarily deny defendant’s petition, the dismissal may be upheld on this

basis. (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 [This court

“ ‘review[s] the ruling, not the court’s reasoning and, if the ruling was correct

on any ground, [the court must] affirm.’ ”].)2 In any event, the record makes

clear that the failure to appoint counsel and permit briefing was harmless.

In Lewis, supra, 11 Cal.5th at pages 971–972, the court held that the

trial court may consider the record of conviction, including any prior

appellate decisions, in assessing whether a petitioner has made a prima facie

case for relief under subdivision (c). (See also Lewis, supra, at p. 971, quoting

People v. Drayton, supra, 47 Cal.App.5th at p. 979 [“[I]f the record, including

the court’s own documents, ‘contain[s] facts refuting the allegations made in

the petition,’ then ‘the court is justified in making a credibility determination

adverse to the petitioner.’ ”].) Here, the information charged defendant with a

single count of murder and alleged further that he “personally used a deadly

and dangerous weapon, to wit: an Exercise Bar” in the commission of the

2 Defendant argues that the trial court waived any defects in the

petition by addressing whether the petition stated a prima facie case. The

hearing in this matter was conducted well before Lewis, supra, 11 Cal.5th

952 clarified the procedure for ruling on a section 1170.95 petition. At the

time the court ruled, it was accepted that a court could, prior to appointing

counsel “examine readily ascertainable information in the record of conviction

and deny the petition if that threshold review ‘establishes the petitioner is

ineligible for relief as a matter of law because he or she was convicted on a

ground that remains valid notwithstanding Senate Bill [No.] 1437’s

amendments to sections 188 and 189.’ ” (People v. Nunez (2020) 57

Cal.App.5th 78, 89, review granted Jan. 13, 2021, S265918.) Although this

procedure is no longer proper under Lewis, supra, we decline to find a waiver

under these circumstances.

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murder. No codefendant is named in the information. As noted, the jury

found defendant guilty of second degree murder and found the weapons

enhancement true. This court’s prior opinion describes the factual

circumstances of the crime as follows: “The victim . . . came to her death as a

result of a vicious beating with a heavy metal bar.” Neither the felony-

murder rule nor the natural and probable consequences doctrine were at

issue in defendant’s trial. Rather, the trial involved the “issue of identity; i.e.,

whether Brown or another was the culprit” and “the issue of Brown’s mental

state, i.e., intent to kill, malice, and premeditation.” Accordingly, defendant

cannot establish his eligibility for relief under section 1170.95 as a matter of

law and any failure to appoint counsel was harmless. (See Lewis, supra, 11

Cal.5th at p. 974 [“[A] petitioner ‘whose petition is denied before an order to

show cause issues has the burden of showing “it is reasonably probable that if

[he or she] had been afforded assistance of counsel his [or her] petition would

not have been summarily denied without an evidentiary hearing.” ’ ”].)

Disposition

The order denying the petition is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

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