# People v. Brown CA4/1

> California Court of Appeal · November 30, 2023

URL: https://www.frixlaw.com/law-library/cases/9906045

## Case

- **Court:** California Court of Appeal
- **Decided:** November 30, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 11/30/23 P. v. Brown CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079830

Plaintiff and Respondent,

v. (Super. Ct. No. SCD193788)

DARRELL ANGELO BROWN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley, and Kristen Kinnaird Chenelia, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2007, a jury convicted Darrell Angelo Brown of first degree murder

(Pen. Code,1 § 187, subd. (a); count 1) and being an accessory after the fact
(§ 32; count 3). The jury also found Brown committed the murder in
furtherance of a criminal street gang (§ 186.22, subd. (b)(1)) and was a
principal in the murder. In addition, the jury found true that, in the
commission of the offense, at least one principal personally used a firearm
and proximately caused great bodily injury and death to a person
(§ 12022.53, subds. (d)). Brown subsequently admitted to having two prison
prior convictions (§§ 667.5, subd. (b), 668), a serious felony prior conviction
(§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior strike conviction
(§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Brown to prison for
50 years to life plus a term of seven years.
On April 5, 2019, Brown filed a petition for resentencing under

section 1172.6.2 The court held an evidentiary hearing. The court found
Brown ineligible for relief because the evidence showed he was guilty of
murder beyond a reasonable doubt.
Brown appeals, contending (1) the trial court applied the wrong legal
standard in determining the prosecution met its burden; (2) substantial
evidence does not support the court’s finding of guilt; and (3) in the
alternative, his conviction should have been reduced to second degree
murder. We disagree with these contentions and affirm the order.

1 Statutory references are to the Penal Code unless otherwise specified.

2 Senate Bill No. 1437 enacted section 1170.95, which was renumbered
section 1172.6 without substantive change in the text. (Stats. 2022, ch. 58,
§ 10 [effective June 30, 2022].) We will refer to this statutory provision as
section 1172.6 for the purposes of this opinion.
2
FACTUAL AND PROCEDURAL BACKGROUND3
In the trial court’s written order denying Brown’s petition for
resentencing under section 1172.6, it focused on the following facts:
Brown and the shooter, Rico F., were part of the Bloods criminal street
gang, ESP. Rico was 15 years old, and Brown was 26 years old. Rico lived
near 17-year-old Darnell M., and Brown lived across the street from Darnell.
The night of the shooting, Brown took Rico and Darnell around town.
They went to an event for three hours in El Cajon, then to downtown to check
out the scene, and then traveled to the border area to see if they could meet
any women returning from clubs in Tijuana. Brown, Rico, and Darnell hung
out in a fast food restaurant parking lot. Darnell became tired and fell asleep
in the car. Brown and Rico went inside the restaurant to purchase food.
When they failed to meet any women, Brown drove Rico and a sleeping

Darnell to the Bay Vista apartment complex, which was known to be LPB4
territory. The complex was a known LPB “ ‘stronghold.’ ”
Rico exited Brown’s car at the apartment complex and walked up to a
car in the parking lot. The vehicle was occupied by two LPB gang members
and three women. Rico was having issues with one of the gang members.
Rico then shot into the vehicle, killing one of the women.
Because Rico was a juvenile and too young for a driver’s license, Brown
drove him to the apartment complex to commit the shooting. Brown waited
and then drove Rico away from the complex after the killing.

3 We primarily repeat the salient facts as described by the trial court in
its ruling on Brown’s section 1172.6 petition. We note that Brown includes
many of these same facts in his opening brief.

4 LPB is criminal street gang.
3
After the shooting, Brown was involved in the purchase of a bus ticket
for Rico to allow him to leave town. He had his girlfriend drive Rico to the
bus station, and he gave Rico some money for the bus trip. Rico’s bus ticket
was purchased by another ESP gang member in Brown’s name.
In addition to the facts surrounding the shooting, the trial court
emphasized certain evidence concerning criminal street gangs. To this end,
the court noted the following:
There are more Bloods than Crips in San Diego, and there are internal
rivalries between some of the Blood sets. LPB and ESP are both Blood sets,
are rivals, and do not get along. These two criminal street gangs are the
largest Blood sets in San Diego, and their rivalry, which has existed for
several years, is deadly.
The structure of the ESP gang is loose. An older gang member is
referred to as “Original Gangster” or “OG.” A 15 to 18-year-old kid could
refer to a 28 to 30 year-old member as an OG because the older member has
been around, put in a lot of work for the gang, and is very well known within
the gang. A 15-year old member would look at a gang member in his 20s as
an OG. OGs can take members under their wings and “show them the
ropes.”
Younger ESP members usually start to “put in work for the gang
between 14 to 18 years of age.” They obtain respect by committing violent
crimes and being street thugs. Usually by their 20s they have put in enough
work to be an established member. A Rider is someone who develops himself
into someone willing to go out and do a violent act for the gang. A Rider
could be as young as 14 and be hardcore for the gang. Violence against a
rival gang member would increase their reputation and the gang’s
reputation.

4
A photograph was entered into evidence at trial of Rico holding up the
“fuck LPB hand sign.” Also, Brown had tattoos disrespecting LPB. And the
gun Rico used in the shooting had been used by a person claiming to be a
member of the ESP gang during a drive by shooting on December 23, 2005.
Brown was an older and established ESP member who took Rico and
Darnell out on the night in question. Both Brown and Rico knew that their
gang was a rival of LPB and their interaction with each other was the
deadliest of all gang rivalries in San Diego.
The trial court found, “after considering the admissible evidence,
argument of counsel and sitting as an independent factfinder,” the
prosecution met its burden and established beyond a reasonable doubt that
Brown was guilty of murder and is ineligible for resentencing. As such, the
court found: (1) Rico’s act of shooting into a vehicle was a life endangering
act; (2) Brown aided in the commission of the shooting by driving Rico to the
apartment complex where the shooting took place, driving him away from the
apartment complex, and helping Rico buy a bus ticket to leave the area;
(3) Brown knew shooting a gun is dangerous to human life and acted in
conscious disregard for human life by driving Rico to the apartment complex
to shoot at a rival gang member; and (4) Brown had knowledge that Rico was
going to shoot someone at the Bay Vista apartment complex and intended to
aid Rico in that endeavor.
The court therefore denied Brown’s petition under section 1172.6.
Brown timely appealed.
DISCUSSION
Brown claims the trial court applied the wrong legal standard in
determining the prosecution met its burden and that substantial evidence
does not support the court’s finding of guilt. In the alternative, if we

5
determine that the trial court did not err in finding Brown was not entitled to
relief under section 1172.6, Brown argues his conviction should be reduced to
second degree murder.
A. Legal Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) 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 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).)”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 did this
by amending section 188, which defines malice, and section 189, which
defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2 & 3.) Amended
section 188 states: “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).) Amended section 189
states: “A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] [or] (3) The
person was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).)

6
Senate Bill 1437 also established resentencing relief for eligible
defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 707–
708.) Under section 1172.6, subdivision (a), “[a] person convicted of felony
murder or murder under a natural and probable consequences theory may
file a petition” with the sentencing court to have his or her 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 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. [¶] (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” under Senate Bill 1437. After receiving a petition
containing the required information, “the court must evaluate the petition ‘to
determine whether the petitioner has made a prima facie case for relief.’ ”
(Strong, at p. 708, citing § 1172.6, subd. (c).) If the defendant makes a prima
facie showing of entitlement to relief, the court must issue an order to show
cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.)
(Senate Bill 775) amended section 1172.6 to clarify certain aspects of the law,
including that (1) the burden of proof at a resentencing hearing under this
section is “on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder” under California law as amended by Senate
Bill 1437 and (2) “[a] finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a reasonable doubt,

7
that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see
Stats. 2021, ch. 551, § 1, subd. (c).) Senate Bill 775 clarified that the trial
court’s role in a section 1172.6 proceeding is to act as an independent fact
finder and determine, in the first instance, whether the petitioner committed
murder under the law as amended by Senate Bill 1437. (People v. Clements
(2022) 75 Cal.App.5th 276, 294, 297 (Clements).)
B. The Legal Standard Applied by the Trial Court
At an evidentiary hearing under section 1172.6, the prosecution must
prove beyond a reasonable doubt that the petitioner is guilty of murder or
attempted murder under California law as amended by the changes to
section 188 or 189 made effective January 1, 2019. (§ 1172.6, subd. (d)(3).)
Thus, as discussed ante, it is the province of the trial court to act as an
independent fact finder to determine whether the prosecution carried its
burden. (See People v. Ramirez (2021) 71 Cal.App.5th 970, 984; accord
Clements, supra, 75 Cal.App.5th at pp. 294, 297.)
Here, Brown asserts that the trial court utilized an improper standard
in determining whether the prosecution met its burden. However, he
acknowledges that, in its order denying relief, the trial court explicitly noted
the correct standard: “[T]his court will act as an independent factfinder and
determine whether the People satisfied their burden of proving beyond a
reasonable doubt that [Brown] is guilty of murder based on the evidence
contained in the record of conviction and any additional evidence presented
at the hearing.” Yet, Brown essentially urges us to disregard this and other
similar statements made by the trial court and instead center on the
instances in the order where the court stated “ ‘sufficient evidence’ ”
supported certain findings. We do not share Brown’s selective reading of the
trial court’s order.

8
In the instant action, the trial court specifically stated its role at the
evidentiary hearing was to sit as an independent factfinder and determine
whether the prosecution carried its burden of proving Brown guilty of murder
beyond a reasonable doubt. After discussing various legal issues, the trial
court reiterated the correct standard when it began to explain its ruling:
“[T]he court finds the People have proven beyond a reasonable doubt that
[Brown] is ineligible for resentencing.” And the court again repeated the
correct standard at the end of its order: “Accordingly, the court finds, after
considering the admissible evidence, argument of counsel and sitting as an
independent factfinder, the People have met their burden of proof and
established beyond a reasonable doubt that [Brown] is guilty of murder and
is ineligible for resentencing.”
Nonetheless, Brown asks us to largely ignore the trial court’s explicit
references to the beyond a reasonable doubt standard it applied and focus on
the times in the order where the court mentioned “sufficient evidence.”
Based on these comments, Brown argues the superior court was applying an
inappropriate substantial evidence standard to its review of the evidence.
Not so.
Although the court did mention sufficient evidence, it did so within the
context of finding that the prosecution carried its burden of proving Brown
guilty of murder beyond a reasonable doubt. In this sense, the court was
merely stating that it found sufficient evidence to reach certain findings to
support its conclusion that the prosecution satisfied its burden. Indeed, the
court specifically explained as much: “This court needs to find there is
sufficient admissible evidence to support a finding beyond a reasonable doubt
that [Brown] had knowledge that [Rico] intended to shoot someone and he
intended to aid [Rico] in the commission of the shooting.” Accordingly, the

9
court’s reference to “sufficient evidence” was not indicative that it was
applying a substantial evidence standard to the prosecution’s case or
otherwise decreasing the prosecution’s burden of proof. Rather, “sufficient
evidence” was merely a way in which the court referred to how the court
weighed the evidence presented at the hearing.
“The very settled rule of appellate review is a trial court’s
order/judgment is presumed to be correct, error is never presumed, and the
appealing party must affirmatively demonstrate error on the face of the
record.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.) “Absent an
indication to the contrary, we are required to presume a court was aware of,
and followed, the applicable law and considered all the relevant facts and
arguments.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 447.) On the
record before us, Brown has not demonstrated that the trial court applied the
wrong standard in concluding the prosecution satisfied its burden of proof.
C. Substantial Evidence
Next, Brown contends the trial court’s determination that he was guilty
of murder is not supported by substantial evidence. In a substantial evidence
review, we “ ‘ “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 277 (Ghobrial).) We
“ ‘ “ ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ ” ’ ” (People v. Clark (2011) 52
Cal.4th 856, 943.) “ ‘Substantial evidence includes circumstantial evidence
and any reasonable inferences drawn from that evidence.’ ” (Ibid.)
“ ‘ “ ‘ “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings,

10
the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal
of the judgment.’ ” ’ ” ’ ” ’ ” (Ghobrial, at p. 278.)
At the evidentiary hearing below, the trial court found “there [was]
sufficient evidence to establish beyond a reasonable doubt that [Brown] aided
and abetted in the second-degree murder committed by Rico . . . .” Therefore,
the court found that Brown acted with implied malice and aided and abetted
Rico.
Aider and abettor liability is “ ‘based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own mental
state.’ ” (People v. Powell (2021) 63 Cal.App.5th 689, 710 (Powell), quoting
People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Alternatively stated, “ ‘[a]n
aider and abettor must do something and have a certain mental state.’ ”
(Powell, at p. 712.) “For the direct aider and abettor, the [act] includes
whatever acts constitute aiding the commission of the life endangering act.
Thus, to be liable for an implied malice murder, the direct aider and abettor
must, by words or conduct, aid the commission of the life-endangering act,
not the result of that act.” (Id. at p. 713.)
Here, Brown does not challenge the trial court’s finding that Brown
committed an act or acts aiding and abetting Rico. Rather, Brown focuses on
the required mental state of aiding and abetting implied malice murder. To
this end, he contends “the court’s findings regarding [his] intent were not
supported by substantial evidence and require reversal.”
Implied malice exists if “someone kills with ‘no considerable
provocation . . . or when the circumstances attending the killing show an
abandoned and malignant heart.’ ” (People v. Gentile (2020) 10 Cal.5th
830, 844, citing § 188, subd. (a)(2).) “ ‘In short, implied malice requires a

11
defendant’s awareness of engaging in conduct that endangers the life of
another . . . .’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507.) Further, “the
aider and abettor of implied malice murder need not intend the commission
of the crime of murder. Rather . . . he or she need only intend the commission
of the perpetrator’s act, the natural and probable consequences of which are
dangerous to human life, intentionally aid in the commission of that act and
do so with conscious disregard for human life.” (Powell, supra, 63
Cal.App.5th at p. 714.)
Here, there was substantial evidence Brown knew Rico was going to
the apartment complex on the subject evening to shoot at a rival gang
member and intended to assist Rico in the shooting. Brown and Rico were
both members of the ESP criminal street gang. ESP’s chief rival gang was
LBP, a relationship reflected by Brown’s tattoo. He knew the Bay Vista
Apartment complex was an LBP stronghold, where LBP gang members lived
and spent their time. Additionally, based on Brown’s history with ESP, he
knew that if an ESP gang member went to LBP territory violence would very
likely ensue.
With this in mind, Brown drove Rico to the apartment complex. The
trial court reasonably found that Brown appreciated the danger to Rico and
would not allow him to enter rival territory alone and unarmed. As such, the
trial court inferred that Brown was aware Rico was armed. In addition, the
firearm Rico used had been previously used in at least one other gang related
shooting by an ESP member. Therefore, we find substantial evidence
supports the trial court’s inference that Brown knew Rico was armed with a
firearm, and the primary purpose of taking Rico to Bay Vista Apartments
was for Rico to shoot a rival gang member.

12
Also, the trial court found it significant that, at the time of the
shooting, Brown was 26 years old, and Rico was 15 years old. Gang expert
testimony explained that the structure of the ESP gang was for the higher
ranking gang members, OGs, to mentor younger gang members and oversee
their commission of crimes. Although we agree with Brown that there was no
evidence conclusively establishing that he was mentoring or overseeing Rico
as part of his ESP gang duties, it nonetheless seems logical that Brown would
only take a young gang member into rival gang territory at 4:00 a.m. for a
purpose that was dangerous to human life (namely, to attack rival gang
members). There was no other plausible theory offered that explained why
Brown would drive Rico to a rival gang stronghold and allow Rico to exit the
car and approach a car full of LBP gang members. By knowingly
encouraging and furthering Rico’s actions of going into a rival gang’s territory
armed with a gun, Brown acted with conscious disregard for human life.
Nevertheless, Brown contends that even assuming a specific gang
structure, applying that structure to the facts at hand, specifically that
Brown was an OG and he was mentoring Rico, was pure speculation. We
disagree. Although perhaps not the strongest evidence, “[c]ases have
repeatedly held that it is proper to introduce evidence of gang affiliation and
activity where such evidence is relevant to an issue of motive or intent.
[Citations.]” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v.
Sanchez (2016) 63 Cal.4th 665, 698 [An expert properly may relate
“background testimony about general gang behavior or descriptions of
the . . . gang’s conduct and its territory,” which is “relevant and admissible
evidence as to the . . . gang’s history and general operations.”].) “Gang
evidence is relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related. [Citation.]” (People v. Samaniego

13
(2009) 172 Cal.App.4th 1148, 1167–1168; see People v. Valdez (2012) 55
Cal.4th 82, 130–131 [gang rivalry motive].) Here, the gang evidence provided
the necessary context to explain why a 26 year old man (Brown) would drive
a 15 year old boy (Rico) to an apartment complex known to be a stronghold of
a rival gang at 4:00 in the morning. And why he then would allow Rico to
leave the car and approach a car full of rival gang members. Moreover, the
gang evidence belies Brown’s suggestion that he was not aware of what Rico
was going to do at the apartment complex.
Also, our conclusion is not altered by the fact that Darnell did not hear
any discussion about the shooting on the night in question when he was
hanging out with Brown and Rico. That Darnell did not hear any discussion,
does not mean it did not happen. Nor was such testimony necessary to prove
intent. In addition, it is a reasonable inference that Brown and Rico would
not discuss gang business in the presence of Darnell, who was a neighbor and
friend, but not an ESP gang member. Also, Darnell was sleeping part of the
time he was with Brown and Rico, and he was not present when Brown and
Rico went into the fast food restaurant.
In light of the evidence discussed above, we conclude that substantial
evidence supports the trial court’s finding that Brown’s acts and mental state
reflect that he was an aider and abettor whose conduct demonstrated an
abandoned and malignant heart.
D. Reduction to Second Degree Murder
Brown’s final argument is that his conviction should be reduced to
second degree murder, and he should be resentenced accordingly. In making
this argument, however, he acknowledges that at least one California court
has held that section 1172.6 does not allow a trial court to reduce a first
degree murder conviction to second degree murder. (See People v. Gonzalez

14
(2023) 87 Cal.App.5th 869, 881.) Yet, Brown argues that Gonzalez was
wrongly decided.
After Brown filed his opening brief, but before he filed his reply brief,
this court issued an opinion following Gonzalez. (See People v. Didyavong
(2023) 90 Cal.App.5th 85, 96–99.) Brown has not offered any arguments that
we did not consider in deciding Didyavong or that cause us to reconsider our

reasoning in that case.5 As such, we reject Brown’s final argument for the
reasons set forth in Didyavong. (See id. at pp. 96–99.)
DISPOSITION
The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

KELETY, J.

CASTILLO, J.

5 In his reply brief, Brown noted our opinion in People v. Didyavong,
supra, 90 Cal.App.5th 85, but he did not offer any new arguments against
that opinion. Rather, he “continue[d] to rely on the arguments regarding this
issue in the opening brief so as to preserve his right to file a petition for
review in the California Supreme Court, which has not yet resolved this
issue.”
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9906045. Public record. Not legal advice.