The opinion
Filed 6/16/23 P. v. Brown CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B317284
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A392650)
v.
RODNEY E. BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig E. Veals, Judge. Reversed and remanded
with directions.
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Rodney E. Brown appeals from an order denying
his petition for resentencing pursuant to Penal Code section
1172.6.1 The Attorney General concedes the trial court erred.
We reverse and remand with directions.
II. BACKGROUND
A. Conviction
On October 6, 1983, the Los Angeles County District
Attorney filed an information charging defendant and two
codefendants with two counts of murder (§ 187). On January 3,
1986, defendant pled guilty to count one, namely, the second
degree murder of Kenneth Johnson. During the change of plea
hearing, the prosecutor proffered that this case involved a May
22, 1983, shooting between two rival gangs. The prosecutor
further explained that he was unable to determine, based on the
forensic evidence, “who actually performed the killing act . . . .”
B. First Section 1172.6 Petition
On February 8, 2019, defendant filed a section 1172.6
petition, declaring that: an information had been filed against
1 Further statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section
1170.95 to 1172.6 with no change in text. (Stats. 2022, ch. 58,
§ 10.) To avoid confusion, all further references to section 1172.6
shall include former section 1170.95.
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him, which allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine; he pled guilty to first or second degree
murder; and he could not now be convicted of first or second
degree murder because of changes to sections 188 and 189.
Defendant did not request the appointment of counsel.
On April 19, 2019, the trial court issued a minute order
denying the petition. Among other things, the court relied upon a
post-plea probation report, which included defendant’s statement
to the probation officer that “[m]e and [a codefendant] fired the
rifles” to conclude that defendant had not been convicted under
the felony murder rule or the natural and probable consequences
doctrine and therefore was ineligible for relief as a matter of law.
C. Denial of Second Petition
On November 19, 2021, following the issuance of our
Supreme Court’s opinion in People v. Lewis (2021) 11 Cal.5th 952
(Lewis), defendant filed a second section 1172.6 petition.
Defendant again declared that he had pled guilty to first or
second degree murder instead of proceeding to trial because he
believed that he could have been convicted under the felony
murder rule or the natural and probable consequences doctrine,
and that he was not the actual killer. In this petition, defendant
requested the appointment of counsel.
The trial court did not appoint counsel to represent
defendant. Instead, on December 3, 2021, the court summarily
denied the petition.
Defendant timely appealed.
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III. DISCUSSION
A. Section 1172.6
Section 1172.6 “creates a procedure for convicted murderers
who could not be convicted under the law as amended to
retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957;
People v. Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton),
abrogated by Lewis, supra, 11 Cal.5th at p. 963.) “If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(§ 1172.6, subd. (c).)
“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 [1172.6] 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.”’ (Drayton,
supra, 47 Cal.App.5th at p. 978 . . . , quoting Cal. Rules of Court,
rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting
an evidentiary hearing.’ (Drayton, [supra, 47 Cal.App.5th] at
p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456
[(Serrano)] . . . .) ‘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.”’ (Drayton, [supra, 47
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Cal.App.5th] at p. 979, quoting Serrano, [supra, 10 Cal.4th] at
p. 456.)
“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.’ (Drayton, supra, 47 Cal.App.5th at p. 980.) . . . [T]he
‘prima facie bar was intentionally and correctly set very low.’”
(Lewis, supra, 11 Cal.5th at pp. 971–972.)
B. Trial Court Erroneously Denied Section 1172.6 Petition
The Attorney General concedes that, on these facts, the
doctrine of collateral estoppel did not bar defendant’s second
section 1172.6 petition. (People v. Farfan (2021) 71 Cal.App.5th
942, 950.) The Attorney General further concedes that there was
nothing in the record before the trial court that demonstrated
defendant was ineligible for relief as a matter of law. Thus, the
Attorney General does not dispute that the court erred in denying
the petition and suggests that we remand for the court to
“conduct prima facie proceedings under section 1172.6,
subdivision (c) . . . . and issue an order to show cause if
necessary.” We accept the Attorney General’s concession and
remand with instructions for the court to appoint counsel and
conduct a prima facie hearing. Defendant recommends that we
remand with instructions to issue an order to show cause without
requiring that the court conduct a prima facie hearing. Neither
the trial court, nor we,2 have considered the record in defendant’s
underlying criminal case. (See Lewis, supra, 11 Cal.5th at
2 At defendant’s request, we took judicial notice of only
portions of the record in defendant’s underlying conviction.
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pp. 970–971 [trial court may rely on the record of conviction at
the prima facie stage].) Accordingly, we believe the more prudent
course is to direct the court to conduct a prima facie hearing.
IV. DISPOSITION
The order denying defendant’s section 1172.6 petition is
reversed. The matter is remanded to the trial court with
directions to appoint counsel for defendant and conduct prima
facie proceedings pursuant to section 1172.6, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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