The opinion
Filed 6/6/22 P. v. Brown CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B313400
(Super. Ct. No. A018846)
Plaintiff and Respondent, (Los Angeles County)
v.
CHARLES STEVEN BROWN,
Defendant and Appellant.
Charles Steven Brown appeals from a postjudgment order
denying his petition for resentencing on his 1978 murder
conviction under Penal Code section 1170.95.1 Appellant
contends, and the People concede, that the trial court erred in
All statutory references are to the Penal Code. References
1
to section 1170.95 are to the version in effect when the trial court
ruled on the petition. (Stats. 2018, ch. 1015, § 4.) The statute
was further amended effective January 1, 2022 pursuant to
Senate Bill No. 775 (2021-2022 Reg. Sess.), but those
amendments are not relevant to the issues raised in this appeal.
summarily denying his petition instead of issuing an order to
show cause and holding an evidentiary hearing. The People
concede the issue. We agree and accordingly reverse.
FACTUAL AND PROCEDURAL HISTORY
In 1978, appellant and codefendant Michael Paul Brown2
were charged in a felony complaint with the first degree murder
of Katsumi Shigematsu (§§ 187, 189; count 1), robbery (§ 211;
count 2), and burglary (§ 459; count 3). The murder count alleged
that appellant (who was 17 years old) and Michael (who was 16)
killed the victim “with malice aforethought” and included a
special circumstance allegation under former subdivision (c)(3)(v)
of section 190.2 that appellant “was personally present during
the act or acts causing death and with intent to cause death
physically aided or committed such act or acts causing death
during the commission or attempted commission of a burglary in
that [appellant] entered an inhabited dwelling house with the
intent to commit grand larceny therein in violation of Section 459
of the Penal Code.” It was further alleged as to all three counts
that in committing the offenses Michael personally used a deadly
weapon, i.e., a knife (§ 12022, subd. (b)).
On June 8, 1978, appellant pleaded guilty to first degree
murder and the special circumstance allegation and remaining
counts were dismissed. The trial court sentenced him to life in
state prison.
In September 2019, appellant petitioned for resentencing
under section 1170.95. Appellant requested the appointment of
counsel and alleged (1) that a complaint, information or
indictment was filed against him that allowed the prosecution to
2 We refer to Michael Paul Brown by his first name to avoid
confusion.
2
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (2) that he pleaded
guilty to murder in lieu of going to trial because he believed he
could have been convicted at trial of felony murder or murder
under the natural and probable consequences doctrine; and (3)
that he could not now be convicted of murder because the changes
to sections 188 and 189 that went into effect on January 1, 2019.
The court appointed counsel and ordered the prosecution to file a
response to the petition.
In its response, the prosecution asserted that appellant’s
petition for resentencing should be summarily denied because the
record of his conviction precluded him from establishing a prima
facie case for relief as a matter of law. The prosecution offered
the complaint, the abstract of judgment, the reporter’s transcript
of appellant’s change of plea hearing, the victim’s autopsy report,
and the post-plea probation report.
The factual summary contained in the probation report,
which is based on “information contained in the District
Attorney’s file,” states: “Several days before March 18, 1978,
[appellant and Michael] planned to enter the victim’s apartment
and steal money from her. Rumors in the apartment building led
[appellant and Michael] to believe that the victim had a
substantial amount of cash in her apartment. On March 18,
1978, [appellant and Michael] went to [the victim’s apartment]
for the purpose of stealing money from [her]. The victim had
been friendly to [Michael] and had given him large sums of
money in the past. She was a 60-year-old paraplegic confined to
a wheelchair. The victim allowed [appellant and Michael] into
her apartment and the three of them began working on a jigsaw
puzzle. [Michael] was armed with a hunting knife. He excuses
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himself to go to the bathroom and when he returns [he] suddenly
stabs the victim in the back twice. [Appellant and Michael]
demand money from the victim and when she refused [Michael]
stabs her repeatedly in the chest area while [appellant] held her
from the rear. During this time [appellant] took a 16-ounce
empty Pepsi-Cola bottle and struck the victim over the head.
After the attack [appellant and Michael] wheeled the victim into
the bedroom and ransacked the apartment finding between
$110.00 and $150.00. They then leave the apartment with the
radio playing on a rock station. They go to a nearby park and
bury the knife and leave a few days later by bus to Texas.”
The probation report goes on to state that appellant and
Michael were subsequently arrested and “investigators . . .
obtained confessions from both [of them].” Although appellant
did not submit a written statement, he “[o]rally . . . indicates that
[Michael] had the knife and did all of the stabbing. He admits
striking the victim over the head with a Pepsi bottle. He states
he does not like to remember the offense and does not know how
it began. He states that he and [Michael] took $110.00 from the
victim. He indicates ‘it was stupid.’ [Appellant] indicates that he
did not try to stop [Michael] from stabbing the victim and that
[Michael] appeared to go crazy.”
At the change of plea hearing, the prosecutor told appellant
and Michael “[e]ach counsel has stated that you wish to plead
guilty to . . . [the murder charged in] Count 1 and that the special
allegations either remain denied or that there will be no proof
against them.” The prosecutor asked appellant, “[i]s that what
you want to do” and appellant replied, “Yes, sir.” The prosecutor
subsequently stated: “Now, Count 1 involves entering the
residence of Katsumi Shigematsu with the intent to rob her and
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this occurred on March 18th, 1978, and she was there killed by
each of you and together with a knife and a bottle.” The
prosecutor then asked appellant if he had “discussed the facts of
this case with [his] attorney,” whether there was “anything
further [he] wish[ed] to discuss with [his attorney] as to the facts
of the case,” and whether he “underst[ood] what the allegation is
and what the facts alleged are.” Appellant replied “[y]es, sir” to
the first and last questions, and “[n]o, sir” to the second.
The prosecutor continued: “[A]s to Count 1 that you did on
or about the 18th day of March, 1978 . . . commit the crime of
murder in violation of section 187 of the Penal Code, a felony, by
yourself with malice aforethought murder one Katsumi
Shigematsu . . . in the first degree and that you entered the
residence in the course of a burglary with the intent to commit a
robbery, how do you plead?” Appellant replied, “Guilty.” The
prosecutor then reiterated that “the People are not offering any
proof on the special allegations except as to [Michael] as to the
weapon.” Michael subsequently pleaded guilty to count 1 and
admitted the weapon use allegation.
At the prima facie hearing on appellant’s section 1170.95
petition, the trial court indicated it would not consider the
probation report and would base its decision “solely upon the
official record of the trial [sic], specifically the complaint, the
information, the preliminary hearing transcript, the plea which is
very significant, the plea transcript, and the abstract of
judgment.” The court indicated it would not rely on any
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information in the probation report or police reports and the
prosecutor responded that she was “fine” with this approach.3
In summarily denying the petition, the court found that in
his plea colloquy appellant “clearly admitted that he participated
in the assault which killed the victim in this case. And the plea
document goes on. And the court believes that his [sic] personal
admission on the record in conjunction with the other facts which
were admitted in that colloquy in addition to the plea to the
187(a) and admission of personal use makes him ineligible for
relief as sought. In the preliminary hearing transcript [sic] the
evidence is that [appellant] personally at least held the victim
and more likely beat the victim during the time the victim was
killed. This was not a person who was standing outside while the
co-defendant went inside to commit the robbery and then the co-
defendant killed the victim and [appellant] was not personally
present. [Appellant] was not only personally present, he was an
active participant. [Appellant] possessed implied malice and
implied intent to kill, actual malice and implied into to kill in his
actions that day. And for this reason the court finds he is
ineligible for relief sought under [section] 1170.95.”
DISCUSSION
Appellant contends the trial court erred in summarily
denying his section 1170.95 petition instead of issuing an order to
show cause and holding an evidentiary hearing. The People
correctly concede the issue.
3 As the People note, the court misspoke by referencing the
preliminary hearing transcript because there is no such
transcript. In light of the court’s subsequent remarks, it is also
clear that the court relied on information in the probation report
notwithstanding its indication that it would not do so.
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Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became
effective on January 1, 2019, was enacted “to amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437
also added section 1170.95, which allows those “convicted of
felony murder or murder under the natural and probable
consequences doctrine . . . [to] file a petition with the court that
sentenced the petitioner to have the petitioner’s murder . . .
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder [or] murder under the natural and probable
consequences doctrine . . . . [¶] (2) The petitioner was convicted
of murder . . . following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
. . . . [¶] (3) The petitioner could not presently be convicted of
murder . . . because of changes to [s]ection 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
Section 1170.95 includes a prima facie determination.
Under subdivision (c), the trial court must receive briefing from
the parties and “determine whether the petitioner has made a
prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).) The court is
not limited to the allegations of the petition and may “rely on the
7
record of conviction in determining whether that single prima
facie showing is made.” (People v. Lewis (2021) 11 Cal.5th 952,
970 (Lewis).) If the record of conviction establishes the petition
lacks merit as a matter of law, the trial court may deny the
petition without conducting further proceedings. (Id. at p. 971
[“The record of conviction will necessarily inform the trial court’s
prima facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless”].)
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘“the
court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were proved.
If so, the court must issue an order to show cause.”’ [Citation.]
‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary
hearing.’ [Citation.] ‘However, if 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.”’” (Lewis, supra, 11
Cal.5th at p. 971.) “In reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.] . . . [T]he ‘prima facie bar was
intentionally and correctly set very low.’” (Id. at p. 972.)
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Here, the trial court denied the petition before issuing an
order to show cause even though there were no readily
ascertainable facts establishing appellant was ineligible for
resentencing as a matter of law. Appellant pleaded guilty to
murder with no other charges or enhancements that necessarily
establish he was the actual killer, acted with the intent to kill, or
was a major participant who acted with reckless indifference to
human life. Contrary to the trial court’s assertion, appellant did
not admit or otherwise stipulate to any factual basis for his plea.
Accordingly, his guilty plea to murder does not preclude him from
establishing a prima facie case for relief under section 1170.95.
(See, e.g, People v. Davenport (2021) 71 Cal.App.5th 476, 481-484;
People v. Eynon (2021) 68 Cal.App.5th 967, 975-979.) When
appellant entered his plea, the law permitted him to be convicted
of murder under a felony murder theory “without being the
actual killer, acting with intent to kill, or being a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Eynon, at pp. 975-979.) Thus, his
admission to the alleged conduct did not necessarily include “any
factual admissions that refute his allegation that he is eligible for
relief under section 1170.95.” (Id. at p. 979.)
Moreover, even assuming that the court could properly
consider the probation report at the prima facie stage, the
statements within that document were only evidence of
appellant’s actions and were not conclusive as a matter of law.
As Lewis makes clear, the trial court could not rely on this
evidence at the prima facie stage to find that appellant acted
with an intent to kill and was thus ineligible for resentencing
under section 1170.95. (Lewis, supra, 11 Cal.5th at p. 979.) The
court’s conclusion is also based on the erroneous premise that
9
appellant admitted the personal weapon use allegation rather
than his codefendant Michael, who was the actual killer.
Construing the allegations of the petition in appellant’s
favor—as section 1170.95 requires—the petition fulfilled the
prima facie requirements for relief. Accordingly, the trial court
should have issued an order to show cause and held an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) We
will reverse the trial court’s order denying the petition and
remand with directions to issue an order to show cause under
amended section 1170.95, subdivision (c), and hold a hearing
under amended section 1170.95, subdivision (d). We express no
opinion about whether appellant is entitled to relief following the
hearing.
DISPOSITION
The order summarily denying appellant’s section 1170.95
petition is reversed. On remand, the trial court shall issue an
order to show cause and proceed with an evidentiary hearing
pursuant to section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.
PERREN, J.
We concur
GILBERT, P.J.
TANGEMAN, J.
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Ricardo M. Goul, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pitney, Senior
Assistant Attorney General, Amanda V. Lopez, Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
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