Filed 6/24/21 P. v. Brown CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300869
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA354613
v.
BYRON BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristi Lousteau, Commissioner. Affirmed.
Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, William H. Shin and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2009, defendant Byron Brown pled no contest to various
crimes related to stealing confidential employee information he
had access to as an employee at Fox Filming Entertainment
(Fox); he was given probation. In 2018, he moved to vacate his
plea based on newly-discovered evidence establishing actual
innocence. He claimed that a thumb drive described in his plea
agreement was not on the Los Angeles Sheriff’s Department’s
(LASD) receipt of items seized in the search of his home.
Therefore, he posits, there is no evidence the thumb drive exists,
and without it, there’s no evidence of his guilt. The court denied
the motion, and defendant appeals. We affirm.
BACKGROUND
1. The Underlying Offenses
Defendant is a disgruntled former Fox human resources
employee. His conduct was described in a fully-executed eight-
page “Disposition Agreement”:
“Lynn Franzoi, Vice President of Fox Human Resources,
was a victim of a harassing fax and at least one harassing email
sent by Mr. Brown. The fax was sent by Mr. Brown on
January 23, 2009 (hereinafter ‘the fax’). Mr. Brown sent the fax
from the [FedEx]/Kinko’s location at 12101 Ventura Blvd., Studio
City, California. Law [e]nforcement traced the sending location
from the phone number printed on top.
“On January 29, 2009 and January 30, 2009, one email
each day was sent to Franzoi and [Fox] executives from
lynn[email address]. One email contained Franzoi’s true Social
Security number and each email contained inappropriate,
2
embarrassing comments and a fictitious request for Franzoi’s
resignation.
“Defendant was identified in [FedEx] Kinko’s surveillance
video from January 23, 2009 and January 30, 2009 as being at
the Studio City location when the fax and email, respectively,
were sent. The January 29th and 30th emails were traced back
[through] embedded Internet Protocol addresses in the email
‘headers’ to a [FedEx] Kinko’s computer.
“A series of other emails were sent in March 2009. These
emails were directed at various Fox executives, including Fox
Human Resources Department executives who had worked with
[d]efendant. Some of these emails were sent to Fox executives
and others were sent to purported employees of the Los Angeles
Times newspaper.
“Maria Gray, the Director of Benefits Systems for Fox, was
a victim on March 20, 2009. Two phony emails were sent from
Maria.gray[email address]. One was sent at 8:02 a.m. to Greg
Gelfan, Executive Vice President of [Fox] at Greg[email address],
et al., and another at 7:32 a.m. to Irene Truong, Senior Financial
Analyst at Irene[email address], et al. Each email appeared to be
written and sent by Maria Gray. Other emails, defamatory in
nature and containing social security numbers with the last digit
deleted, were sent to Pam Saraceno, Fox Vice President of
Payroll, and Jim Gianopoulos, Chairman of Fox. Nine [Fox]
executives and employees received harassing emails and nine
victims were targeted in the emails.
“On March 26th, a warrant was served at the defendant’s
home. A computer, a thumb drive and several CD-ROMs of data
were recovered. The thumb drive and two CD-ROM[s] each
contained separate downloads from Fox’s PeopleSoft database.
3
One CD contained several thousand individual names, home
addresses, social security numbers and other personal identifying
information. The other CD contained several thousand
individuals’ names and personal information. The home computer
contained personal identifying information and privileged
material of Fox and Fox employees. That information included
social security numbers of the several victims named above, as
well as Social Security numbers and other confidential
information of other Fox executives, entertainment and news
personnel.”
2. Procedural History
A felony complaint filed March 30, 2009, alleged theft of
Franzoi’s personal information between January 22 and 30, 2009
(Pen. Code,1 § 530.5, subd. (a); count 1); false impersonation of
Gray on or about March 20, 2009 (§ 529; count 2); theft of
personal identifying information of 10 or more people on or about
March 26, 2009 (§ 530.5, subd. (c)(3); count 3); four counts of
felony unlawful computer access and copying (§ 502, subd. (c)(2);
counts 4–7); and making annoying telephone calls to Franzoi, a
misdemeanor (§ 653m, subd. (b); count 8).
On July 27, 2009, pursuant to the Disposition Agreement,
defendant pled no contest to counts 1, 3, and 4. The following day,
the court suspended imposition of sentence and placed defendant
on formal felony probation for five years. Among other conditions
of probation—which were extensive—defendant was required to
serve 182 days in local custody, with credit for time served, and
pay $88,007.77 in restitution. The court dismissed the remaining
1 All undesignated statutory references are to the Penal Code.
4
counts and allegations contingent upon the “continuing validity of
the plea agreement.”
Almost seven years later, on July 18, 2016, defendant filed
a petition for a writ of error coram nobis. The trial court denied
the petition, and defendant appealed. On September 26, 2017, a
different panel of this court affirmed the order by unpublished
opinion. (People v. Brown (Sept. 26, 2017, B278430) [nonpub.
opn.].)
On December 28, 2018, defendant filed a motion to vacate
the judgment under section 1473.7, alleging actual innocence
based on newly-discovered evidence. The trial court ordered the
prosecution to file an informal response to the contention that
information contained in the Yahoo IP Report and LASD Receipt
for Seized Property would have changed the outcome of the
agreement and established actual innocence. The parties waived
a formal hearing on the petition, and after an informal response
from the prosecution and a reply from defendant, the court
denied the motion by written order on August 6, 2019. The court
held that defendant could not challenge the terms that he agreed
to in the Disposition Agreement, and, in any event, he failed to
present credible proof that the new evidence would change the
outcome of his case and lead to a determination of factual
innocence.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the LASD receipt listing the
evidence taken from his apartment does not include the thumb
drive cited as the source of personally-identifying information
used as the evidence of his guilt. Because there is no evidence the
5
thumb drive exists, he argues, there is no evidence to support his
convictions. We disagree.2
1. Legal Principles and Standard of Review
Section 1473.7, subdivision (a)(2), which became effective
January 1, 2017, allows a person who is no longer in custody to
file a motion to vacate his or her conviction or sentence where
“[n]ewly discovered evidence of actual innocence exists that
requires vacation of the conviction or sentence as a matter of law
or in the interests of justice.” The motion must be “filed without
undue delay from the date the moving party discovered, or could
have discovered with the exercise of due diligence, the evidence
that provides a basis for relief under this section[.]” (§ 1473.7,
subd. (c).)
The moving party has the burden of proving by a
preponderance of the evidence that the newly discovered evidence
of actual innocence requires vacation of the conviction. (§ 1473.7,
subd. (e)(1).) A fact is proved by a preponderance of the evidence
if it is more likely than not that the fact is true. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305,
fn. 28.)
The appellate courts are split on the proper standard of
review in appeals from a trial court’s grant or denial of a
2The People argue the motion is untimely because it was filed over a
year after the opinion in defendant’s most recent appeal became final
and two years after the amendment to section 1473.7 went into effect;
the filing is almost the same as the coram nobis petition; and
defendant had all the information he included in the subsequent
motion. They also argue the claims are procedurally barred for various
other reasons. We express no opinion on these subjects and exercise
our discretion to reach the merits of defendant’s claim.
6
section 1473.7 motion since the statute was amended in 2018.
(Compare People v. Perez (2020) 47 Cal.App.5th 994, 997 [abuse
of discretion] with People v. DeJesus (2019) 37 Cal.App.5th 1124,
1132 [independent review].) Further, the question appears to be
pending in the California Supreme Court. (People v. Vivar (2019)
43 Cal.App.5th 216, 225, 228–229, review granted Mar. 25, 2020,
S260270.) But regardless of which standard of review applies, we
reject defendant’s contentions.
2. Defendant did not establish his innocence by a
preponderance of the evidence.
Defendant’s claim of innocence is based on the premise that
a thumb drive purportedly seized from his apartment doesn’t
appear on the LASD Report for Seized Property. As such, the
thumb drive does not exist. And, because the drive contained the
evidence against him, without it, there is no evidence to establish
his guilt.
As the People note, authorities may well have recovered a
thumb drive: Duane Decker’s March 27, 2009 Supplemental
Report explained that the thumb drive was located in an
envelope described in the LASD receipt as evidence item
number 7. Even without the thumb drive, however, there was
plenty of evidence that defendant committed the acts in the
counts to which he pled.3
3 Below, defendant also argued that a newly-discovered Yahoo IP
report demonstrated that he did not send the threatening emails from
FedEx Kinko’s as stated in the Disposition Agreement. On appeal,
defendant does not sufficiently develop and support this assertion to
demonstrate his innocence of the charges. Therefore, we do not discuss
it.
7
As outlined above, the charges were based on the IP
address related to the emails, the related fax, the surveillance
video from FedEx Kinko’s, defendant’s prior access to Fox
employees’ personal identifying information, defendant’s anger at
having been fired, and defendant’s possession of personal
identifying information of Franzoi and thousands of other Fox
employees on his personal computer and two CD-ROMs. Indeed,
defendant does not contest the existence of the CD-ROMs and
computer recovered from his home—and the Disposition
Agreement established that they also contained the personal
identifying information of Franzoi and other Fox employees.
Although defendant argues that the Disposition Agreement
does not specify that Franzoi’s information was found anywhere
other than the thumb drive, we agree with the People’s
interpretation of the Agreement. The Disposition Agreement
states: “A computer, thumb drive and several CD-ROMs of data
were recovered [from defendant’s home]. The thumb drive and
two CD-ROM[s] each contained separate downloads from Fox’s
PeopleSoft database. One CD contained several thousand
individual names, home addresses, social security numbers and
other personal identifying information. The other CD contained
several thousand individuals’ names and personal information.
The home computer contained personal identifying information
and privileged material of Fox and Fox employees. That
information”—namely, information from the home computer—
“included social security numbers of the several victims named
above, as well as Social Security numbers and other confidential
information of other Fox executives, entertainment and news
personnel.” (Italics added.) Franzoi, the victim in count 1, was
named as a victim on the previous page of the Agreement.
8
Defendant also argues there is no evidence that the
spreadsheet identified in count 4 (named “FES - #299796-V1-TV-
STATION-ADDRESS”) was contained anywhere other than the
thumb drive, and without the thumb drive there is no evidence of
his guilt. But the document found on the thumb drive was called
“Copy of Copy of FES - #299796-V1-TV-STATION-ADDRESS”.
Given that the spreadsheet containing Franzoi’s personal
information also appeared on defendant’s personal computer, it is
reasonable to infer that defendant copied the other spreadsheets
to his computer as well. In any event, without presenting any
information about what information was contained on his
computer or the CD-ROMs retrieved from his residence,
defendant cannot establish his innocence by a preponderance of
the evidence.
We cannot conclude, therefore, that the LASD receipt
established defendant’s innocence such that vacation of his
convictions is required as a matter of law or in the interests of
justice. (§ 1473.7, subd. (a)(2).)
9
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
THOMAS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
10