The opinion
Filed 1/23/23 P. v. Brown CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060325
v. (Super. Ct. No. 06WF1152)
CHRISTOPHER JASON BROWN SR., OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Terri Flynn-
Peister, Judge. Affirmed. Request for judicial notice. Denied.
Christine Vento, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Steve Oetting, Acting Assistant Attorney General, A. Natasha Cortina and
Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
FACTS AND PROCEDURAL HISTORY
On April 29, 2006, defendant Christopher Jason Brown, Sr., shot his wife
with a shotgun while she was a passenger in her father’s car. Defendant’s wife was
struck by shotgun pellets and injured; defendant’s father-in-law was also in the line of
fire but was evidently unharmed. In 2007, pursuant to a plea agreement with the district
attorney, defendant pleaded guilty to attempted murder, assault with a firearm, and
shooting at an occupied motor vehicle. Defendant also admitted he intentionally
discharged a firearm during the attempted murder and personally used a firearm during
the assault, both of which are enhancements.
Defendant’s plea agreement was a “negotiated plea,” whereby the district
attorney and defendant agreed to a particular sentence, rather than an “open plea,”
whereby the actual sentence is left to the trial court’s discretion. Specifically, defendant
agreed to the following sentence: life with the possibility of parole on the attempted
murder count, plus 20 years for the firearm enhancement, the middle term of three years
on the assault with a firearm count, plus three additional years for the firearm
enhancement, and the low term of three years on the shooting at an occupied motor
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vehicle count, which was stayed pursuant to Penal Code section 654. Thus, defendant’s
total sentence was life with the possibility of parole plus 26 years.
In 2021, defendant filed a petition for resentencing under section 1170.91,
which permits resentencing of any “person currently serving a sentence for a felony
conviction, whether by trial or plea, who is, or was, a member of the United States
military and who may be suffering from sexual trauma, traumatic brain injury, post-
traumatic stress disorder, substance abuse, or mental health problems as a result of his or
her military service” (id., subd. (b)(1)), so long as the defendant’s service-related issues
were not considered as a factor in mitigation at the time of sentencing and the defendant
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All statutory references are to the Penal Code.
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was sentenced prior to January 1, 2015 (id., subd. (b)(1)(A) & (B)). Defendant alleged he
suffered a traumatic brain injury and developed mental health issues during his service
with the United States Marine Corps. Defendant also alleged the sentencing court did not
consider his injury or mental health issues as a factor in sentencing.
The trial court concluded defendant was not eligible for relief because he
received an indeterminate sentence and his sentence arose from a negotiated plea. The
trial court noted it was bound by three cases on these points: People v. Estrada (2020) 58
Cal.App.5th 839 (Estrada) on the indeterminate sentence issue; People v. Brooks (2020)
58 Cal.App.5th 1099 (Brooks) and People v. King (2020) 52 Cal.App.5th 783 (King) on
the negotiated plea issue. Accordingly, the trial court denied defendant’s petition.
Defendant timely appealed.
After the matter was initially submitted, the Legislature passed amendments
to section 1170.91, which became effective January 1, 2023. We requested supplemental
briefing from the parties to address these amendments.
DISCUSSION
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On appeal, defendant challenges Brooks and King, which barred
defendant’s petition for resentencing as to the three-year term for assault with a firearm.
Defendant argues, based on the statutory language itself and Harris v. Superior Court
(2016) 1 Cal.5th 984 (Harris), that resentencing is, in fact, available to otherwise eligible
defendants originally sentenced pursuant to a negotiated plea. However, in light of the
recent amendments to section 1170.91, that became effective January 1, 2023 (Stats. ch.
721, § 1), we decline to reach these issues, as defendant is ineligible for resentencing
under the amended statute as a matter of law.
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By implication, defendant also challenges People v. Pixley (2022) 75
Cal.App.5th 1002 (Pixley), which followed Brooks and King, but was decided after the
filing of defendant’s opening brief.
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As amended, section 1170.91, subdivision (c) renders certain otherwise-
eligible defendants ineligible for resentencing if they have been convicted of certain
offenses listed in section 667, subdivision (e)(2)(C)(iv), sometimes called “superstrike”
offenses. Included among those offenses is “Any homicide offense, including any
attempted homicide offense.” (Id., subd. (e)(2)(C)(iv)(IV).) As discussed above,
defendant was convicted of attempted murder. Consequently, defendant is ineligible for
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resentencing under section 1170.91.
DISPOSITION
The order denying defendant’s petition is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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The Attorney General requests we take judicial notice of portions of the
legislative history of the relevant amendments to section 1170.91. We deem this
unnecessary and deny the request. The amended statute is clear on its face.
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