Filed 1/11/23 P. v. Brown CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B315488
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA457435
BYRON ROBERT BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Roberta Simon, 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, Steven D. Matthews, Supervising
Deputy Attorney General, and David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
Four years after pleading no contest to one count of felony
identity theft, Byron Robert Brown (defendant) moved to vacate
his conviction under Penal Code section 1473.7 (section 1473.7),
claiming newly discovered evidence of actual innocence.1 As we
will explain, the asserted newly discovered evidence was
information that, in defendant’s words, “police officers testified to
tracing back one set of emails from a strip club to one executive’s
email address, which [defendant] alleges was not in fact that
employee’s correct email address”—but was the ostensible
predicate for one of the identity theft charges against defendant.
The trial court denied the motion and we are asked to decide
whether this was error because defendant carried his burden to
meet the section 1473.7 threshold for vacating a conviction.
I. BACKGROUND
A. Defendant’s No Contest Plea
According to a probation officer’s report that was stipulated
to as providing the factual basis for defendant’s no contest plea,
several executives at a Fox entertainment company (Fox)
received over 25 unsolicited emails and phone calls in 2016 from
various business as a result of identity theft. The executives’
identities were used to create restaurant reservations, request
materials from clubs and bars, and lodge false complaints with
1
Section 1473.7 authorizes a person no longer in custody to
move to vacate a prior conviction on several grounds including
the existence of “[n]ewly discovered evidence of actual
innocence . . . that requires vacation of the conviction or sentence
as a matter of law or in the interests of justice.” (§ 1473.7, subd.
(a)(2).)
2
businesses. The requests for information were made in a manner
seemingly designed to embarrass and humiliate the executives.
For example, a response from one of the solicited companies, a
strip club, included lewd photographs of persons in skimpy
clothing or displaying frontal nudity. The targeted executives
included T.L., an in-house attorney for Fox who was involved in
defendant’s termination from the company several years earlier.2
Fox’s investigators estimated the total cost to the company of
investigating and responding to the emails and phone calls to be
approximately $31,200.
Police searched defendant’s home and seized electronic
equipment as evidence. After determining defendant’s computer
was the source of the fraudulent reservations, requests, and
complaints at issue, the police arrested defendant and the Los
Angeles County District Attorney charged him by information
with nine counts of felony identity theft (§ 530.5, subd. (a)).
In October 2017, pursuant to a negotiated disposition
reached after the preliminary hearing, defendant agreed to plead
no contest to one count of identity theft (the first of three counts
identifying T.L. as the victim) and the People agreed to dismiss
the remaining eight counts. By virtue of this agreement,
defendant secured a commitment that he would be sentenced to
three years’ formal probation, instead of the maximum three-year
2
In 2009, after being terminated from his employment at
Fox, defendant was convicted of similar misconduct directed at
other Fox employees. In 2018, defendant moved to vacate his
earlier conviction arguing newly-discovered evidence established
his actual innocence. The motion was denied and the ruling
affirmed by another division of this court. (People v. Brown (June
24, 2021, B300869) [nonpub. opn.].)
3
prison sentence he could face if he went to trial and were
convicted.
At the plea hearing, defendant was represented by counsel.
Before the prosecutor conducted a plea colloquy with defendant,
defendant agreed on the record that he understood the plea
agreement, had conferred with his attorney about it, and wanted
to accept it. During the colloquy with the prosecutor, defendant
affirmed that by changing his plea from not guilty to no contest
he would be implicating himself in the charged offense and
wished to do so freely and voluntarily. Defendant further
affirmed he understood that when he pled no contest and the
court found him guilty, he would be treated as “guilty for all
purposes.” Based on his affirmations, the court accepted
defendant’s no contest plea, found him guilty of the theft of T.L.’s
identity, and sentenced him to formal probation for three years.3
B. Defendant’s Motion to Vacate
In May 2021, after successfully completing his probation
and without requesting appointment of counsel, defendant filed a
section 1437.7 motion to vacate his conviction based on asserted
newly-discovered evidence of his actual innocence.4 According to
defendant’s motion, evidence was introduced at the preliminary
hearing showing an email address for T.L. “@fox.com” was
entered into a strip club’s database from the internet protocol
3
Defendant was also sentenced to 237 days in jail with
credit for time served in the same amount.
4
Defendant previously sought to attack his conviction on
substantially similar grounds via habeas corpus petitions, all of
which were denied.
4
address assigned to defendant’s computer.5 After his conviction
and release from jail, defendant claimed he learned “the email
address [he] was convicted of using never existed” and T.L.
actually used another email address with a different variant of
his name. Defendant argued his post-conviction discovery of
T.L.’s purportedly correct work email address established his
innocence because it showed he did not use any of T.L.’s personal
identifying information.
In a declaration filed with his section 1473.7 motion,
defendant averred that had he known the email address
referenced during the preliminary hearing as the basis of the
offense for which he ultimately pled no contest was not T.L.’s
actual work email address he “would have not entered into the
plea agreement.” Defendant also claimed he could not have
learned of T.L.’s correct email address prior to the change of plea
hearing because he was incarcerated.
Defendant submitted three documentary exhibits with his
section 1473.7 motion that purport to show T.L.’s “correct” work
email address. Exhibit C, a two-page document, appears to be a
printout of a page from an unidentified website which
summarizes pending or completed litigation and offers short,
descriptive annotations about case milestones. The document
identifies T.L. as counsel for three Fox entities (Fox
Entertainment Group, Inc., Fox Sports Digital Nets Inc., and Fox
Sports Networks Inc.) named as defendants in a civil rights or
employment action filed in federal district court in 2003 and lists
5
The preliminary hearing transcript was before the trial
court at the time of its ruling on defendant’s motion but it has not
been made part of the record in this appeal.
5
an email address for T.L. different from the email address
apparently referenced during the preliminary hearing. Nothing
on the exhibit indicates when the web page was created, last
updated, viewed, or printed. Exhibit D is a single page that also
appears to be a printout from an unidentified website
summarizing pending or resolved litigation.6 The printout refers
to a labor lawsuit filed in federal district court in 2014; although
the document stated it was “last checked” on January 19, 2015, it
did not indicate how or by whom the document was checked.
Despite generally similar subject matter, the style and format of
Exhibit D differed significantly from that found in Exhibit C,
suggesting it originated from a different website. Moreover, in
contrast to Exhibit C, Exhibit D did not contain any reference to
or information about T.L. or his work email address at the time of
the charged offense or at any time before or after. Exhibit E,
another one-page document, appears to be an undated printout
from a page of the State Bar of California’s website. The
document identified T.L. as an employee of 21st Century Fox
Legal and lists an email address for T.L. different from the email
address apparently referenced during the preliminary hearing.
In August 2021, the same trial judge who presided over the
plea hearing held a hearing on defendant’s section 1473.7 motion
to vacate. At the hearing, the prosecution advised the trial court
it opposed the motion to vacate but, in view of defendant’s
fulfillment of the terms of his probation, would not object to a
different motion reducing the conviction to a misdemeanor and,
6
Exhibit D appears to be the first page of a two-page exhibit
which defendant had submitted in support of his habeas
petitions.
6
once so reduced, expunging the conviction. The trial court denied
the motion to vacate but granted defendant’s oral motion to
reduce his conviction to a misdemeanor, vacated defendant’s no
contest plea, and dismissed the information.7
II. DISCUSSION
Defendant’s section 1473.7 motion was correctly denied—
for three independently sufficient reasons.8 First, the exhibits
proffered to show defendant’s innocence were not authenticated
by defendant or any other witness. Second, even if defendant had
authenticated the exhibits, those documents do not establish his
actual innocence because they do not preclude the possibility that
T.L., who apparently worked for several different Fox entities
and represented even more, used more than one work email
address such that the email address referenced during the
preliminary hearing would also be a “correct” email address.
Third, even if there were evidence T.L. did only use an email
address different from the address referenced during the
preliminary hearing, defendant did not offer any evidence besides
a single self-serving sentence in his declaration that, but for the
purportedly incorrect preliminary hearing testimony about the
address, he would have rejected the favorable plea agreement
7
The trial court did not articulate on the record the reasons
for denying defendant’s section 1473.7 motion.
8
We resolve defendant’s claims on the merits because he
may face certain collateral consequences as a result of his no
contest plea, such as the inability to own, possess, or have
custody or control of a firearm (Pen. Code, § 1203.4, subd. (a)(2).)
7
offered to him and gone to trial on all nine counts of identity theft
with which he was charged.9
A. Section 1473.7 and the Standard of Review
As quoted already in the margin, section 1473.7,
subdivision (a)(2), 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.” As the moving party under the
statute, the defendant has the burden to establish his innocence
by a “preponderance of the evidence.” (§ 1473.7, subd. (e)(1).) We
independently review the grant or denial of a motion brought
pursuant to section 1473.7. (People v. Vivar (2021) 11 Cal.5th
510, 524-527 (Vivar).)
9
Defendant perfunctorily claims he “did not have an
opportunity to be heard” on his motion in the trial court. Our
rejection of the claim can be equally brief: the record shows that,
after advising defendant of its tentative ruling on the motion to
vacate, the trial court expressly offered defendant the
opportunity to argue his motion or, in the alternative, to proceed
with the prosecutor’s suggestion that he make an oral motion to
have his conviction reduced and ultimately expunged. Defendant
elected not to offer oral argument on his motion to vacate and
instead chose to proceed directly with the prosecutor’s suggestion.
Defendant also oddly asserts his attorney “did not
adequately represent him” at the hearing on the motion to
vacate. Defendant was self-represented during the hearing, and
there is no claim that defendant requested appointment of
counsel and the request was wrongly refused.
8
B. Defendant’s Evidence Was Unauthenticated
The three website printouts offered by defendant as proof of
his actual innocence were unauthenticated and inadmissible.
Authentication is statutorily defined as “the introduction of
evidence sufficient to sustain a finding that it is the writing that
the proponent of the evidence claims it is.” (Evid. Code, §§ 1400,
1401; People v. Goldsmith (2014) 59 Cal.4th 258, 266-267
(Goldsmith).) A proponent of an evidentiary exhibit may
authenticate the evidence through testimony of the person who
created the exhibit or “by other witness testimony, circumstantial
evidence, content and location.” (Goldsmith, supra, at 268;
accord, Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 523
[observing it is “routine in law-and-motion practice” for the
moving party to submit declarations by individuals who have
personal knowledge of the attached exhibits and can attest to
their authenticity, i.e., identify the documents and show how they
were obtained and “their status as true and correct copies of the
‘originals’”].) Here, defendant did not identify the documents,
explain how he acquired them, or even affirm they were faithful
copies of the originals. Because defendant’s motion was
accordingly unsupported by any admissible evidence, it was
correctly denied.
C. Even If Admissible, Defendant’s Evidence Does Not
Establish His Actual Innocence
Even if defendant had authenticated his supporting
exhibits, those documents were not sufficient by themselves to
establish his actual innocence. The “gravamen of the [Penal
Code] section 530.5, subdivision (a) offense is the unlawful use of
a victim’s identity.” (People v. Sanders (2018) 22 Cal.App.5th
9
397, 400.) The identity theft statute sets out the elements of the
crime as follows: “Every person who willfully obtains personal
identifying information . . . of another person, and uses that
information for any unlawful purpose, . . . without the consent of
that person, is guilty of a public offense . . . .” (Pen. Code, § 530.5,
subd. (a); People v. Barba (2012) 211 Cal.App.4th 214, 223.)
“Personal identifying information” includes “any name, address,
telephone number, . . . unique electronic data including
information identification number assigned to the person,
address or routing code, . . . or an equivalent form of
identification.” (Pen. Code, § 530.55, subd. (b).)
Here, defendant did not present any evidence that in the
fall of 2016 the personal identifying information apparently
referenced during the preliminary hearing did not exist.
Rather—at best—defendant produced evidence showing T.L. used
another email address (though not to the exclusion of the address
referenced at the preliminary hearing). Moreover, defendant’s
exhibits, if authentic, suggested T.L. was at different times
employed by several different Fox entities (21st Century Fox
Legal, Twentieth Century Fox, and Fox Group Legal) and
represented a variety of different Fox entities (Fox
Entertainment Group, Inc., Fox Sports Digital Nets Inc., Fox
Sports Networks Inc., and Twentieth Century Fox Film
Corporation), one or more of which may have allowed or required
him to have more than one work email address. In the absence of
evidence that at all relevant times T.L. had but one work email
address and it was not the one apparently referenced during the
preliminary hearing, defendant failed to show he did not use
T.L.’s personal identifying information for an unlawful purpose.
10
Because defendant’s evidence was insufficient to establish
he was actually innocent of the crime to which he pled no contest,
his section 1473.7 motion was correctly denied.
D. Defendant Did Not Come Forward with Adequate
Evidence to Show He Would Not Have Pled No
Contest but for the Claimed Newly Discovered
Evidence
A defendant seeking to set aside a plea cannot rely on self-
interested assertions alone. (People v. Abdelsalam (2022) 73
Cal.App.5th 654, 664 [section 1473.7 claims “must be
corroborated by evidence beyond the defendant’s self-serving
statements”].) “[W]hen a defendant seeks to withdraw a
plea . . . , we have long required the defendant corroborate such
assertions with ‘“objective evidence.”’ [Citation.]” (Vivar, supra,
11 Cal.5th at 530; accord, People v. DeJesus (2019) 37
Cal.App.5th 1124, 1134 [“‘Courts should not upset a plea solely
because of post hoc assertions from a defendant about how he
would have pleaded . . . . [Rather, they] should instead look to
contemporaneous evidence to substantiate a defendant’s
expressed preferences’”]; see generally People v. Martinez (2013)
57 Cal.4th 555, 565 [“It is up to the trial court to determine
whether the defendant’s assertion [about the circumstances of his
plea] is credible, and the court may reject an assertion that is not
supported by an explanation or other corroborating
circumstances”].)
Here, defendant did not come forward with any
independent, objective, corroborative evidence that would have
supported a choice to reject the advantageous plea deal offered to
him and proceed to trial on all nine counts of identity theft and
11
risk years in prison. The only evidence presented regarding
defendant’s plea decision was a single, conclusory sentence in his
declaration. Standing alone, this self-serving statement was
insufficient, and the section 1473.7 motion was correctly denied
for that reason too.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
12