Filed 4/11/22 P. v. Brown CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159376
v.
JOHN H. BROWN, (City & County of San Francisco
Super. Ct. No. SCN115309)
Defendant and Appellant.
Defendant John H. Brown appeals an order denying his petition for
resentencing under Penal Code1 section 1170.95. He contends the trial court
erred in summarily denying his petition without appointing counsel. We find
no error and shall affirm the order.
Background
In 1985, a jury convicted defendant of second degree murder (§ 187)
and found he personally used a deadly weapon in the commission of the
murder (§ 12022, subd. (b)). Defendant’s conviction was affirmed on appeal in
1986. (People v. Brown (Sept. 19, 1986, A031668) [nonpub. opn.].)
Following the January 2019 change in the law on felony murder and
the natural and probable consequences doctrine occasioned by Senate Bill
1 All statutory references are to the Penal code unless otherwise noted.
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No. 1437 (Stats. 2018, ch. 1015, § 2), defendant filed a pro se petition under
section 1170.95 seeking to vacate his second degree murder conviction.
The People did not file a written response to defendant’s petition. On
December 23, 2019, at the hearing on the matter, at which only the
prosecution appeared, the prosecutor advised the trial court she had reviewed
the abstract of judgment, the original trial brief, and the original parties’
proposed instructions, and did not believe felony murder was involved. She
noted that the jury made a true finding on the deadly weapon use allegation.
She asked the trial court to summarily deny the petition.
The trial court indicated it had reviewed the petition, the sentencing
transcript, and the underlying appellate opinion. Based on that review, it
appeared there was no felony-murder theory, no codefendant, and there was
a true finding on the weapon use allegation. Based on the petition, the court
declined to appoint counsel, and denied the petition “without prejudice to
[defendant] providing further information that would put him within the
ambit of the statute.”
Defendant timely filed a notice of appeal.
Discussion
Senate Bill No. 1437 “eliminated natural and probable consequences
liability for murder as it applies to aiding and abetting, and limited the scope
of the felony murder rule. [Citations.] Senate Bill 1437 also added section
1170.95 to the Penal Code, which creates a procedure for convicted murderers
who could not be convicted under the law as amended to retroactively seek
relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted (Lewis).)
Pursuant to section 1170.95, an offender must file a petition in the
sentencing court averring that: “(1) A complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to proceed under
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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[; and] [¶] (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.” (§ 1170.95, subds. (a)(1)–(3); see also § id.,
subd. (b)(1)(A).) Additionally, the petition shall state “[w]hether the
petitioner requests the appointment of counsel.” (§ id., subd. (b)(1)(C).) If a
petition fails to comply with subdivision (b)(1), “the court may deny the
petition without prejudice to the filing of another petition . . . .” (§ id.,
subd. (b)(2).) Where the petition complies with subdivision (b)’s requirements,
then the court proceeds to subdivision (c) to assess whether the petitioner has
made “a prima facie showing” for relief. (§ id., subd. (c).)
In Lewis, supra, 11 Cal.5th at page 957, the court held that “the
statutory language and legislative intent of section 1170.95 make clear that
petitioners are entitled to the appointment of counsel upon the filing of a
facially sufficient petition (see § 1170.95, subds. (b), (c)) and that only after
the appointment of counsel and the opportunity for briefing may the superior
court consider the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’ ” The court
also held that “the deprivation of a defendant’s right to counsel under
subdivision (c) of section 1170.95 was state law error only, tested for
prejudice under People v. Watson (1956) 46 Cal.2d 818.” (Lewis, supra, at
pp. 957–958.)
Defendant contends the court erred in denying his petition without
appointing counsel for him and permitting the parties to submit briefing
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under 1170.95, subdivision (c). The Attorney General argues that summary
denial was proper because defendant’s petition was not facially sufficient
and, alternatively, that any error in failing to appoint counsel was harmless.
As the Attorney General explains, and defendant concedes, defendant
failed to check boxes 1 and 2 on the petition declaring under penalty of
perjury that he was convicted of second degree murder under the natural and
probable consequences doctrine or felony-murder theory and that a charging
document was filed against him that allowed the prosecution to proceed
under one or both theories. Defendant suggests that his petition is sufficient
because the averment in box 3, that he could not be convicted of first or
second degree murder because of changes to section 188 or 189 is the
gravamen of the resentencing provisions and effectively incorporates the
allegations of the unchecked boxes. The suggestion disregards the statutory
language and is not persuasive. (See § 1170.95, subd. (b)(2) [“If any of the
information required by this subdivision is missing from the petition and
cannot be readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the petitioner
that the matter cannot be considered without the missing information.”];
People v. Soto (2020) 51 Cal.App.5th 1043, 1054 [“ ‘Under subdivision (b)(2), a
trial court may deny a petition without prejudice if the petition lacks any of
the information required by subdivision (b)(1).’ ”], quoting People v. Drayton
(2020) 47 Cal.App.5th 965, 974, reversed on other grounds in Lewis, supra, 11
Cal.5th at p. 963.) As the court noted in Lewis, supra, at page 968, “the
requirement that a petition include ‘[a] declaration by the petitioner that he
or she is eligible for relief under this section, based on all the requirements of
subdivision (a)’ [citation] should discourage frivolous petitions.” We note that
the form petition submitted by defendant expressly states, “Note: Box 1, Box
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2a or 2b, and Box 3 must all apply in order to be resentenced under Penal Coe
§ 1170.95.”
Although the trial court did not rely on these pleading deficiencies to
summarily deny defendant’s petition, the dismissal may be upheld on this
basis. (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11 [This court
“ ‘review[s] the ruling, not the court’s reasoning and, if the ruling was correct
on any ground, [the court must] affirm.’ ”].)2 In any event, the record makes
clear that the failure to appoint counsel and permit briefing was harmless.
In Lewis, supra, 11 Cal.5th at pages 971–972, the court held that the
trial court may consider the record of conviction, including any prior
appellate decisions, in assessing whether a petitioner has made a prima facie
case for relief under subdivision (c). (See also Lewis, supra, at p. 971, quoting
People v. Drayton, supra, 47 Cal.App.5th at p. 979 [“[I]f 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.’ ”].) Here, the information charged defendant with a
single count of murder and alleged further that he “personally used a deadly
and dangerous weapon, to wit: an Exercise Bar” in the commission of the
2 Defendant argues that the trial court waived any defects in the
petition by addressing whether the petition stated a prima facie case. The
hearing in this matter was conducted well before Lewis, supra, 11 Cal.5th
952 clarified the procedure for ruling on a section 1170.95 petition. At the
time the court ruled, it was accepted that a court could, prior to appointing
counsel “examine readily ascertainable information in the record of conviction
and deny the petition if that threshold review ‘establishes the petitioner is
ineligible for relief as a matter of law because he or she was convicted on a
ground that remains valid notwithstanding Senate Bill [No.] 1437’s
amendments to sections 188 and 189.’ ” (People v. Nunez (2020) 57
Cal.App.5th 78, 89, review granted Jan. 13, 2021, S265918.) Although this
procedure is no longer proper under Lewis, supra, we decline to find a waiver
under these circumstances.
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murder. No codefendant is named in the information. As noted, the jury
found defendant guilty of second degree murder and found the weapons
enhancement true. This court’s prior opinion describes the factual
circumstances of the crime as follows: “The victim . . . came to her death as a
result of a vicious beating with a heavy metal bar.” Neither the felony-
murder rule nor the natural and probable consequences doctrine were at
issue in defendant’s trial. Rather, the trial involved the “issue of identity; i.e.,
whether Brown or another was the culprit” and “the issue of Brown’s mental
state, i.e., intent to kill, malice, and premeditation.” Accordingly, defendant
cannot establish his eligibility for relief under section 1170.95 as a matter of
law and any failure to appoint counsel was harmless. (See Lewis, supra, 11
Cal.5th at p. 974 [“[A] petitioner ‘whose petition is denied before an order to
show cause issues has the burden of showing “it is reasonably probable that if
[he or she] had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary hearing.” ’ ”].)
Disposition
The order denying the petition is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
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