People v. Brown CA2/7

Filed 3/9/21 P. v. Brown CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B303601

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA146986)
v.

CHARLES BROWN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, William N. Sterling, Judge. Reversed with
directions.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, A. Natasha Cortina and Lynne G. McGinnis,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Charles Brown appeals from an order denying his petition
under Penal Code section 1170.951 for failure to make a prima
facie showing he is entitled to relief. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brown and His Nephew Rob a Cocaine Dealer
Bobby Cisneros and Eduardo Quiroz were cocaine dealers;
Cisneros acquired the cocaine, and Quiroz sold it. Brown was one
of their customers. One morning in March 1997 Brown told
Quiroz he wanted to buy some cocaine. Quiroz spoke with
Cisneros, and Cisneros told him to stop by his apartment.
Cisneros said that, if he had the cocaine, Quiroz could sell it to
Brown.
Later that afternoon police responded to a shooting at
Brown’s residence. On the floor of a bedroom used by Brown they
found Cisneros’s dead body near the doorway. He had been shot
in the back of the head with a shotgun. Cisneros and Brown had
been seen together earlier that afternoon.
There were two percipient witnesses, both children. One of
them was sitting on the front porch of his aunt’s house doing
homework. He saw Brown get out of a white van, heard a man
say, “I did the best that I could,” and watched Brown go into his
(Brown’s) apartment building. The witness later heard two
gunshots and saw two black men run out of the house. One of the
men was wearing a baseball cap, had a revolver, and screamed,
“Let’s go!” The two men left in a red truck.

1 Statutory references are to the Penal Code.

2
 The other witness, who knew Brown, was playing with
friends on the roof of a house near Brown’s house. He heard
someone say, “Come here, come here man. Fool, fool.” Then he
heard gunshots. The witness saw Brown, carrying a gun, and
another person run out of the house and drive away in a red
pickup truck.
Earlier that day, a woman spoke with Brown’s nephew,
who told her that he and Brown were “about to go jack (rob) some
Mexicans” and that, if she saw Brown with some Hispanics
chasing him, she should go home. Brown’s nephew showed the
woman a foot-long shotgun and said that, after the robbery, she
would not see him for a long time, but that he would give her
some money so she could get her hair done. The woman later told
police that Brown and his nephew were planning a robbery.
At some point Quiroz went to the apartment where he and
Cisneros kept their cocaine and discovered half of it was gone.
Quiroz identified Brown from a six-pack photographic line up.
(People v. Brown (Jan. 19, 2010, B212584) [nonpub. opn.].)

B. A Jury Convicts Brown of Second Degree Murder
The People charged Brown with murder and alleged that
he personally used a firearm, within the meaning of section
12022.5, subdivision (a), and that a principal in the offense was
armed with a firearm, within the meaning of section 12022,
subdivision (a)(1). In 2008 a jury convicted Brown of second
degree murder. The jury found not true the allegation Brown
personally used a firearm, but found true the allegation a
principal was armed with a firearm. The trial court sentenced
Brown to a prison term of 16 years to life. Brown appealed, and
we affirmed.

3
 C. The Legislature Enacts Senate Bill No. 1437 and
Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective
January 1, 2019, amended the felony murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder by amending sections 188 and 189. Section 188,
subdivision (a)(3), provides: “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.” Section 189, subdivision (e), provides that, with respect
to a participant in the perpetration or attempted perpetration of
a felony listed in section 189, subdivision (a), in which a death
occurs (that is, those crimes that provide the basis for first degree
felony murder), an individual 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. [¶] (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.”
Senate Bill No. 1437, through new section 1170.95, also
authorized an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and to be resentenced
on any remaining counts if the individual could not now be
convicted of murder under changes Senate Bill No. 1437 made to
the definition of murder. (People v. Gentile (2020) 10 Cal.5th 830,

4
842-843; People v. Rodriguez (2020) 58 Cal.App.5th 227, 236-237,
petn. for review pending, petn. filed Jan. 15, 2021, S266652
(Rodriguez).) If the petition contains all required information,
and the court determines the petition is facially sufficient, section
1170.95, subdivision (c), prescribes a two-step procedure for
determining whether to issue an order to show cause: “‘The court
shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply . . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.’” (People v. Verdugo (2020)
44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493
(Verdugo).)
If the court issues an order to show cause, the court must
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Rodriguez, supra, 58 Cal.App.5th at p. 237, petn. for review
pending; Verdugo, supra, 44 Cal.App.5th at p. 327, review
granted.) At the hearing the prosecution has the burden of
proving beyond a reasonable doubt the petitioner is ineligible for
resentencing. (Rodriguez, at p. 237; see § 1170.95, subd. (d)(3).)
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence. (Rodriguez, at
p. 237; see People v. Tarkington (2020) 49 Cal.App.5th
892, 898-899, review granted Aug. 12, 2020, S263219; People v.
Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8,

5
2020, S262481.) The record of conviction includes the verdict and
the jury instructions. (People v. Soto (2020) 51 Cal.App.5th 1043,
1055, review granted Sept. 23, 2020, S263939; People v. Gomez
(2020) 52 Cal.App.5th 1, 16, review granted Oct. 14, 2020,
S264033; Verdugo, at p. 330.)

D. Brown Files a Petition Under Section 1170.95, Which
the Superior Court Denies
In January 2019 Brown, representing himself, filed a
petition under section 1170.95. He alleged, among other things,
that he was convicted of first or second degree murder under a
felony murder or natural and probable consequences doctrine,
that he could not now be convicted of murder because of the
changes to sections 188 and 189, and that he was not the actual
killer, did not with the intent to kill aid and abet the actual
killer, and was not a major participant in the underlying felony
who acted with reckless indifference to human life. The superior
court appointed counsel to represent Brown, and the People filed
a response to the petition.
The superior court (the same judge who presided over the
trial in 2008) denied the petition, ruling Brown had not made a
prima facie showing he was entitled to relief under section
1170.95. Although the court initially indicated the jury convicted
Brown on a theory of felony murder, the prosecutor (the same
prosecutor who tried the case against Brown) stated that he had
argued both “regular murder” and felony murder and that the
jury convicted Brown of “straight second degree murder.”
The court ruled that Brown “could not have been convicted
of felony murder because . . . the underlying felony was robbery
in the first degree. So it’s clear from the record, and [the jurors]

6
were never instructed on [a] natural and probable consequences
theory. So it appears to me he does not come within the group of
individuals covered by section 1170.95 who would be entitled to
[relief] because the conviction was neither for felony murder nor
on the theory of natural and probable consequences.” The court
also ruled that, “even if this [had] been a conviction under a
felony murder theory,” the “evidence made it clear” Brown “was
both a major participant and that he acted with reckless
indifference to human life.” Brown timely appealed.

DISCUSSION

A. The People Had To Show the Record Conclusively
Established Brown Was Not Convicted of Felony
Murder
“[W]hen assessing the prima facie showing, the trial court
should assume all facts stated in the section 1170.95 petition are
true. [Citation.] The trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
subd[ivision] (d) is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding

7
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(People v. Drayton (2020) 47 Cal.App.5th 965, 980; see Verdugo,
supra, 44 Cal.App.5th at pp. 329-330, review granted.)
Brown alleged, among other things, that he was convicted
under a theory of felony murder and that he could not now be
convicted under that theory in light of the amendments to
sections 188 and 189. The superior court had to accept these
allegations as true and issue an order to show cause “unless facts
in the record conclusively refute them as a matter of law.”
(People v. Drayton, supra, 47 Cal.App.5th at p. 968; see People v.
Duchine (2021) 60 Cal.App.5th 798, 815 [“the time for weighing
and balancing and making findings on the ultimate issues arises
at the evidentiary hearing stage rather than the prima facie
stage, at least where the record is not dispositive on the factual
issues,” and “absent a record of conviction that conclusively
establishes that the petitioner engaged in the requisite acts and
had the requisite intent, the trial court should not question his
evidence”].)
The People argue the record conclusively refutes Brown’s
allegation he was convicted of felony murder because the jury
convicted him of second degree malice murder. According to the
People, “the record of conviction shows that [Brown’s] jury did not
find him guilty of . . . felony murder,” but “rather second degree
murder on the ground[ ] he acted with express or implied malice.”
The People assert the “petition was properly denied because the
instructions and the jury verdict conclusively establish [Brown’s]
second degree conviction was based on express or implied
malice—theories which remain valid after the enactment of

8
Senate Bill No. 1437.” As stated, that is what the prosecutor
argued and the trial court ruled at the hearing on Brown’s
petition. The record, however, is not so clear.

B. The Trial Court Erred in Ruling Brown Failed To
Make a Prima Facie Showing of Entitlement to Relief
At Brown’s trial, the court instructed the jury on murder
with malice aforethought, first degree murder, first degree felony
murder where the defendant is the killer, and first degree felony
murder where the defendant is not the killer. The People
acknowledge the court did not instruct on aiding and abetting,
the natural and probable consequences doctrine, or second degree
felony murder. As stated, the jury convicted Brown of second
degree murder, without specifying the theory, and found not true
the allegation he personally used a firearm.
Instructing the jury on malice murder with CALCRIM
No. 520, the trial court stated, in relevant part: “The defendant
is charged in count 1 with murder. To prove that the defendant
is guilty of this crime, the People must prove: 1. The defendant
committed an act that caused the death of another person;
2. When the defendant acted, he had a state of mind called malice
aforethought.” The instruction defined the two kinds of malice,
express and implied.
The trial court then instructed the jury with CALCRIM
No. 521, first degree murder: “The defendant has been
prosecuted for first degree murder under two theories: No. 1, the
murder was willful, deliberate, and premeditated. And No. 2, the
murder was committed during the course of a robbery or
attempted robbery. . . . Each theory of first degree murder has
different requirements, and I will instruct you on both.” After

9
instructing the jury on the requirements of willful, deliberate,
and premeditated murder, the trial court stated: “The second
theory under which the People are proceeding as to first degree
murder is called felony murder. . . . All other murders are of the
second degree.”
The trial court also instructed the jury with CALCRIM
No. 540A, first degree felony murder where the defendant
allegedly committed the fatal act: “The defendant is charged in
count 1 with murder under a theory of felony murder. To prove
that the defendant is guilty of first degree murder under this
theory, the People must prove that . . . 1, the defendant
committed or attempted to commit robbery; 2, the defendant
intended to commit robbery; and 3, while committing or
attempting to commit robbery, the defendant did an act that
caused the death of another person. A person may be guilty of
felony murder even if the killing was unintentional, accidental, or
negligent.”
Also with CALCRIM No. 540B, felony murder where a co-
participant allegedly committed the fatal act: “The defendant is
charged in count 1 under a theory of felony murder. The
defendant may also be guilty of murder under a theory of felony
murder, even if another person did the act that resulted in the
death. I will call the other person the perpetrator. To prove that
the defendant is guilty of first degree murder under this theory,
the People must prove that, 1, the defendant committed or
attempted to commit robbery; 2, the defendant intended to
commit robbery; and 3, while committing or attempting to
commit robbery, the perpetrator did an act that caused the death
of another person. A person may be guilty of felony murder even
if the killing was unintentional, accidental, or negligent.”

10
 And with CALCRIM No. 548, multiple theories of murder:
“The defendant has been prosecuted for murder under two
theories: No. 1 is malice aforethought and premeditation; and
No. 2, felony murder. Each theory of murder has different
requirements. And I . . . have instructed you on both already.
You may not find the defendant guilty of murder unless all of you
agree that the People have proved that the defendant committed
murder under at least one of these theories. You do not all need
to agree on the same theory.”
So far, so good. But the trial court also responded to a
series of questions from the jurors, giving them additional
instructions. The jury’s first question was: “Do we consider
murder in second degree? What is defin. of 2nd degr?” The trial
court (a judge substituting for the judge who presided over the
trial) answered the jury’s question, but the answer is not in the
record.2
The jury’s second question was: “In the standard for
express malice—in the definition of murder must the ‘act’ be the
direct cause of death?” With the agreement of counsel, the trial
court (the same substitute judge) answered the question by
referring the jury to CALCRIM No. 520.
The jury’s third (and, for purposes of this appeal, the most
significant) question was: “In the standard for second degree
murder, can the defendant be found guilty, where even if another
person did the act that resulted in the death.” Brown contends
that this question concerned CALCRIM No. 540B and that “it can
be reasonably inferred [the] jurors were asking if the felony

2 The court’s minute order states: “The jury submits a
question and at 10:45 a.m., off the record, the jury’s question is
answered.”

11
murder rule also applied to second degree murder.” The trial
court (a different judge substituting for the judge who presided
over the trial; i.e., a third judge) answered the question, “Yes.”3
Brown contends that, upon receiving this answer, the “jurors
would reasonably understand that second degree murder could
also be based on felony murder.” And as stated, the jury found
Brown guilty of second degree murder.
The record of conviction does not conclusively show the
jurors did not convict Brown of second degree murder based on a
felony murder theory. In response to the jury’s third question,
the court instructed the jurors that they could find Brown guilty
of second degree murder “even if another person did the act that
resulted in the death.” That language came from CALCRIM
No. 540B, the instruction for felony murder, which stated that
the defendant “may also be guilty of murder, under a theory of
felony murder, even if another person did the act that resulted in
the death.” Thus, one interpretation of the record is that the trial
court’s response to the jury’s question suggested the jurors could
find Brown guilty of second degree murder under a theory of
felony murder. Moreover, because the trial court did not instruct
the jury on aiding and abetting principles, the record does not
establish the jury convicted Brown of second degree murder on an
aiding and abetting theory. (See People v. Delgado (2013)
56 Cal.4th 480, 488 [“instructions delineating an aiding and
abetting theory of liability must be given when such derivative
culpability ‘form[s] a part of the prosecution’s theory of criminal
liability’”]; see also Cole v. Arkansas (1948) 333 U.S. 196, 202

3 The answer to the jury’s third question, written at the
bottom of the form used by the jury to ask the question) states:
“The answer is yes per Judge Veals.”

12
[68 S.Ct. 514, 92 L.Ed.644] [“petitioners [are] entitled to have the
validity of their convictions appraised on consideration of the case
as it was tried and as the issues were determined in the trial
court”]; People v. Kunkin (1973) 9 Cal.3d 245, 251 [“We, of course,
cannot look to legal theories not before the jury in seeking to
reconcile a jury verdict with the substantial evidence rule.”].) At
a minimum, the record on the whole does not conclusively refute
Brown’s allegation that the jury convicted him on a theory of
murder that is no longer valid. (See People v. Duchine, supra,
60 Cal.App.5th at p. 813 [“If a defendant asserts he lacked the
requisite intent or did not act in a manner that would make him
liable under still-valid murder theories, unless the record of
conviction refutes those assertions as a matter of law, the
defendant has met his prima facie burden,” and “the trial court
should take him at his word and not engage in factfinding on the
issues ‘without first issuing an order to show cause and allowing
the parties to present evidence at a hearing.’”]; see also In re
White (2019) 34 Cal.App.5th 933, 937, fn. 2 [under Senate Bill
No. 1437 “the second degree felony-murder rule in California is
eliminated”]; People v. Frandsen (2019) 33 Cal.App.5th 1126,
1142, fn. 3 [Senate Bill No. 1437 “brings into question the
ongoing viability of second degree felony murder in California”].)
The People suggest that Brown’s contention the jurors
“were asking about the second degree felony murder rule” is
“sheer speculation, as the question was equally consistent with
the possibility the jury thought [Brown] was a direct aider and
abettor to the murder.” But that the jury’s question and the
court’s answer may be “equally consistent” with a theory other
than second degree felony murder is Brown’s point: Because a 50
percent chance is only halfway to conclusive, the record of

13
conviction does not conclusively refute that Brown was convicted
of felony murder and entitled to relief under section 1170.95. In
addition, as discussed, the trial court did not instruct the jury on
aiding and abetting.
Finally, Brown argues, the People concede, and we agree
that, under the circumstances of this case, the trial court erred in
ruling at the prima facie stage that “the evidence showed he was
a major participant in the underlying robbery who acted with
reckless indifference to human life.” (See People v. Duchine,
supra, 60 Cal.App.5th at p. 816 [“The major participant and
reckless indifference findings the trial court made based solely on
the record evidence entail the weighing of evidence, drawing of
inferences, and assessment of credibility that should be left to the
factfinding hearing process contemplated by section 1170.95,
subdivision (d).”].) The jury in Brown’s trial made no such
finding, and the prosecutor did not argue in opposition to Brown’s
petition that Brown was a major participant who acted with
reckless indifference to human life. The superior court can
address this issue after issuing an order to show cause.

14
 DISPOSITION

The trial court’s order denying Brown’s petition is reversed.
The trial court is directed to issue an order to show cause under
section 1170.95, subdivision (c), and to hold a hearing under
section 1170.95, subdivision (d), to determine whether to vacate
Brown’s murder conviction and to recall his sentence and
resentence him.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

15