P. v. Brown

Filed 10/26/20 P. v. Brown CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
LEON MCDONALD BROWN III,
Defendant and Appellant.
B304228
(Los Angeles County
Super. Ct. No. BA260644)
APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Affirmed.
Richard D. Miggins, 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, Idan Ivri and Michael R. Johnsen, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

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Petitioner Leon M. Brown III appeals from an order
denying his petition for resentencing pursuant to Penal Code
section 1170.95 (section 1170.95). Section 1170.95 allows eligible
petitioners to obtain retroactive relief based on recent changes in
the murder law. (People v. Lamoureux (2019) 42 Cal.App.5th
241, 249.) Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Stats. 2018, ch. 1015), effective January 1, 2019, “‘amend[ed] 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 the 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. Verdugo
(2020) 44 Cal.App.5th 320, 325 (Verdugo), review granted
Mar. 18, 2020, S260493.) “Prior to the enactment of Senate Bill
No. 1437, . . . both the felony-murder rule and the natural and
probable consequences doctrine provided theories under which a
defendant could be found guilty of murder without proof of
malice.” (People v. Lee (2020) 49 Cal.App.5th 254, 260 (Lee),
review granted July 15, 2020, S262459.)
Brown was convicted of two counts of first degree murder
among other crimes. With respect to both murders, jurors found
that Brown “intentionally killed the victim.” Because the record
shows as a matter of law that Brown harbored the intent to kill,
he is ineligible for resentencing. (People v. Allison (Oct. 2, 2020,
B300575) ___ Cal.App.5th ___ [2020 Cal.App.Lexis 925 at p. *8];
People v. Lewis (2020) 43 Cal.App.5th 1128, 1138 (Lewis), review
granted Mar. 18, 2020, S260598.) Brown does not dispute the
conclusion that the record demonstrates he intended to kill the
victims or that his murder convictions remain valid under

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current law. We reject Brown’s arguments that the trial court
could not consider the record of conviction and that the trial court
was required to appoint counsel for him. (See Lewis, supra,
at pp. 1139–1140.) We affirm the trial court’s order denying his
petition for resentencing.
BACKGROUND
1. Conviction and appeal from judgment
In 2007, jurors convicted Brown of two counts of first
degree murder, two counts of willful, deliberate, and premediated
attempted murder, mayhem, attempted second degree robbery,
and shooting at an occupied motor vehicle. (People v. Brown
(Feb. 26, 2009, B200983 [nonpub. opn.].) Jurors also found true
the following three special circumstances with respect to both
murders: (1) Brown “intentionally killed the victim” while he was
an active participant in a criminal street gang (Pen. Code,
§ 190.2, subd. (a)(22)); (2) Brown was convicted of multiple
murders (id., subd. (a)(3)); and (3) the murders were committed
while Brown was engaged in, or an accomplice was engaged in a
robbery (id., subd. (a)(17)). The jury found that all of the offenses
were committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members.
(People v. Brown, supra, B200983.) Jurors found that in the
commission of every offense, Brown “personally and intentionally
fired a gun, causing death and great bodily injury,” personally
and intentionally fired a gun, and personally used a gun. With
respect to each offense except the attempted robbery, jurors found
that a principal personally and intentionally fired a gun causing
death and great bodily injury, personally and intentionally fired a

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gun, and personally used a gun. This court previously affirmed
the judgment with minor modifications not relevant to the
current appeal. (People v. Brown, supra, B200983.)
This court described the events leading to Brown’s
convictions as follows: On January 31, 2004, 12 friends arrived
at the scene of a party in three cars. (People v. Brown, supra,
B200983.) As the group neared the gate Brown “drew a gun and
spoke to the group in a hostile manner,” asking “where they were
from” and whether they were “ ‘from anywhere.’ ” (Ibid.) Brown
told the group to leave. (Ibid.) Several members of the group
told Brown they would leave. (Ibid.)
As, the group of friends walked towards their cars, Brown
asked one person, “What do you have on you?,” and demanded
the person’s shirt. (People v. Brown, supra, B200983.) Brown
then walked or ran towards one of the cars firing at it. (Ibid.)
Witnesses heard between 10 and 30 shots. (Ibid.) Four persons
in one vehicle were hit by bullets, and two died as a result of the
gunshot wounds. (Ibid.) Near the scene, police recovered
27 nine-millimeter Luger cartridge casings and four .380 caliber
casings. (Ibid.) Bullet fragments from the car were consistent
with nine-millimeter rounds and one was consistent with a .380
automatic caliber round. (Ibid.) None of the victims saw a second
shooter, but one of Brown’s friends told police that a second
shooter fired a TEC-9 gun. (Ibid.)
2. Postconviction motion for resentencing
On September 25, 2019, Brown filed a petition for
resentencing pursuant to section 1170.95. He averred that at
trial, he was convicted of first or second degree murder pursuant
to the felony-murder rule or the natural and probable
consequences doctrine. Brown stated that he could not now be

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convicted of murder because of changes to Penal Code
sections 188 and 189, effective January 1, 2019. Brown
requested the trial court appoint counsel. The People opposed
the petition, arguing that Brown was convicted “as an actual
killer with the intent to kill, rendering him ineligible for
section 1170.95 resentencing.” (Boldface omitted.)
3. Trial court order
The trial court did not appoint counsel and summarily
denied Brown’s petition for resentencing. The court explained:
“Having reviewed the overall court record in this matter this
court rules that the petitioner is not eligible for relief pursuant to
Penal Code Section 1170.95 as he was the actual killer which
caused the death of the underlying victims in this case. . . .
Moreover, based upon the examination of the evidence, aside
from being characterized as the actual killer in the instant
scenario, the petitioner would further be ineligible for relief
under SB 1437 as he had the specific intent to kill as well as
being a major participant who acted with reckless indifference to
human life.”
DISCUSSION
Senate Bill No. 1437 made statutory changes that no longer
permit a defendant to be convicted of murder without proof of
malice. (Lee, supra, 49 Cal.App.5th at p. 260, review granted.)
The legislation also established a procedure codified in
section 1170.95 that permits a defendant who has sustained a
murder conviction that arguably rests on a felony-murder rule or
a natural and probable consequences theory of liability to petition
the sentencing court to vacate the murder conviction if
inconsistent with the now-governing law. (Section 1170.95;

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see also Lee, supra, at p. 257.) The procedure, codified in
section 1170.95, allows persons convicted of felony murder or
murder under a natural and probable consequences theory to file
a petition to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts. (People v. Turner
(2020) 45 Cal.App.5th 428, 433–434; People v. Medrano (2019)
42 Cal.App.5th 1001, 1016, review granted Mar. 11, 2020,
S259948.)
A person is eligible for relief under section 1170.95 only if
the following conditions are established: “(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[;] [¶] [and] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to [Penal Code] Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).) As set forth
above, those changes affect the mental state requirement for
murder under the felony-murder rule and the natural and
probable consequences doctrine. (People v. Lamoureux, supra,
42 Cal.App.5th at pp. 262–263.)
A. Brown is Ineligible for Resentencing as a Matter of
Law
Section 1170.95, subdivision (c) provides: “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

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shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within
30 days after the prosecutor[’s] response is served. These
deadlines shall be extended for good cause. 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.” (§ 1170.95,
subd. (c).) Thus, under the statute, if the petitioner made a
prima facie showing of eligibility, the trial court shall issue an
order to show cause. The statute describes additional steps if the
petitioner sets forth a prima facie case showing that he or she is
eligible for relief under section 1170.95.
A petitioner is ineligible for relief under section 1170.95 as
a matter of law if the petitioner “was convicted on a ground that
remains valid notwithstanding Senate Bill [No.] 1437’s
amendments to [Penal Code] sections 188 and 189.” (Verdugo,
supra, 44 Cal.App.5th at p. 330, review granted.) Turning to this
case, the amendments to section 188 and 189 did not affect
Brown’s conviction, and he does not argue otherwise. The jury
verdict demonstrates that Brown was the actual shooter and
acted with malice.1
Here, jurors also found that Brown “intentionally killed the
victim” when it found true the special circumstance that he
intentionally killed the victim while an active participant in a
1 Jurors did not simply find that Brown personally and
intentionally fired a gun causing death. We previously held that
finding, standing alone, was insufficient to demonstrate a
petitioner was ineligible as a matter of law in a case in which the
jury was instructed on the natural and probable consequences
doctrine. (People v. Offley (2020) 48 Cal.App.5th 588, 598–599.)

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gang. As respondent argues, the jury’s findings preclude Brown
from claiming that he was convicted based on vicarious liability
and indicate both that he had intent to kill and that he was the
actual killer. As such, Brown is ineligible for resentencing as a
matter of law, and the trial court properly denied his petition.
(People v. Allison, supra, ___ Cal.App.5th at p. ___ [2020
Cal.App.Lexis 925 at p. *17.)
B. The Trial Court Properly Considered the Record of
Conviction
Brown argues that the trial court erred in considering the
Court of Appeal’s opinion, and instead was required to limit its
review to the allegation in Brown’s petition. Although there is a
split of authority, this court has held that the trial court may
consider the record of conviction and its own file in evaluating a
petition for resentencing pursuant to section 1170.95. (Lewis,
supra, 43 Cal.App.5th at p. 1138, review granted; cf. People v.
Cooper (2020) 54 Cal.App.5th 106, 123 [to determine prima facie
case, trial court should consider only whether petitioner files
facially sufficient petition].) We explained: “Allowing the trial
court to consider its file and the record of conviction is also sound
policy. As a respected commentator has explained: ‘It would be a
gross misuse of judicial resources to require the issuance of an
order to show cause or even appointment of counsel based solely
on the allegations of the petition, which frequently are erroneous,
when even a cursory review of the court file would show as a
matter of law that the petitioner is not eligible for relief. For
example, if the petition contains sufficient summary allegations
that would entitle the petitioner to relief, but a review of the
court file shows the petitioner was convicted of murder without
instruction or argument based on the felony murder rule or [the

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natural and probable consequences doctrine], . . . it would be
entirely appropriate to summarily deny the petition based on
petitioner’s failure to establish even a prima facie basis of
eligibility for resentencing.’ ” (Lewis, supra, at p. 1138; see also
People v. Drayton (2020) 47 Cal.App.5th 965, 979 [prima facie
case under section 1170.95 similar to prima facie case in petition
for writ of habeas corpus where the court may consider the record
“including the court’s own documents”]; Verdugo, supra,
44 Cal.App.5th at pp. 329–330, review granted [trial court should
consider record of conviction in determining petitioner’s
eligibility]; People v. Edwards (2020) 48 Cal.App.5th 666, 674,
review granted July 8, 2020, S262481 [same].)
Brown does not acknowledge the relevant discussion in
Lewis and offers no reason to depart from it. Pending guidance
from our high court, we adhere to the view that in evaluating a
petitioner’s prima facie case, the trial court may consider the
record of conviction.
C. Brown Was Not Entitled to Counsel and Even if the
Court Erred in Denying Counsel, Brown
Demonstrates No Prejudice
Brown argues that the trial court erred in denying his
petition without first appointing counsel to represent him. This
court has held that the right to counsel arises only after the trial
court makes a prima facie showing that the petitioner “falls
within the provisions” of section 1170.95. (See Lewis, supra,
43 Cal.App.5th at p. 1140, review granted; People v. Offley (2020)
48 Cal.App.5th 588, 597; see also People v. Tarkington (2020)
49 Cal.App.5th 892, 899–900, review granted Aug. 12, 2020,
S263219 [noting that numerous courts have rejected the
contention that the trial court is required to appoint counsel as

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soon as a petitioner satisfied the filing requirements]; but see
People v. Cooper, supra, 54 Cal.App.5th at p. 123.) Pending
further guidance from our Supreme Court, we adhere to our
decision in Lewis.
Even if the court erred in denying Brown counsel, any error
was harmless under any standard of prejudice. (People v. Law
(2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020,
S262490 [alleged error in not appointing counsel harmless
beyond a reasonable doubt].) As a matter of law, Brown was
ineligible for relief. On appeal with the assistance of counsel,
Brown had full opportunity to present any argument that he was
eligible for relief under section 1170.95 and he offered none.
Remand would thus be an idle act. (People v. Edwards, supra,
48 Cal.App.5th at p. 675, review granted.)
D. Brown Fails to Demonstrate He Was Entitled to
Counsel Under the Federal or State Constitution
Finally, Brown argues that summarily denying his petition
for resentencing without appointing counsel violated his
constitutional right to counsel under the federal and state
constitutions. We disagree.
The Sixth Amendment to the United Stated Constitution is
applicable to the states through the Fourteenth Amendment, and
“gives an indigent defendant facing incarceration the right to
court-appointed counsel for his or her defense.” (Gardner v.
Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1003
(Gardner).) A section 1170.95 petition involves a defendant
seeking retroactive application of a change in the law, not a
defendant facing incarceration seeking assistance with a defense.
A section 1170.95 petition does not implicate a defendant’s right
to counsel under the Sixth Amendment. (People v. Lopez (2019)

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38 Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019,
S258175); cf. People v. Anthony (2019) 32 Cal.App.5th 1102, 1156
[“[T]he retroactive relief [defendants] are afforded by Senate Bill
1437 is not subject to Sixth Amendment analysis. Rather, the
Legislature’s changes constituted an act of lenity that does not
implicate defendants’ Sixth Amendment rights.”].)
Similarly, the proceedings under section 1170.95 in which
the trial court simply determined that Brown was ineligible as a
matter of law do not implicate the right to counsel under the
California Constitution. “A criminal defendant has the right
under the state . . . [Constitution] to be personally present and
represented by counsel at all critical stages of the trial.”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465.)
“[C]ritical stages can be understood as those events or
proceedings in which the accused is brought in confrontation with
the state, where potential substantial prejudice to the accused’s
rights inheres in the confrontation, and where counsel’s
assistance can help to avoid that prejudice.” (Gardner, supra,
6 Cal.5th at pp. 1004–1005.) Gardner listed proceedings that
courts had identified “as critical stages to which the
constitutional right to counsel attaches,” including arraignments,
preliminary hearings, postindictment lineups, postindictment
interrogations, plea negotiations, and sentencing. (Gardner,
supra, at p. 1005.) Gardner held that the prosecution’s pretrial
appeal of a suppression order also qualified as a “critical stage”
under the state constitution, including in misdemeanor cases.
(Ibid.)
Under Gardner’s rubric, we reject Brown’s contention that
a trial court’s initial determination of a petitioner’s eligibility
under section 1170.95 is a “critical stage.” The trial court’s “role

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at this stage is simply to decide whether the petitioner is
ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner.” (Verdugo, supra,
44 Cal.App.5th at p. 329, review granted.) As stated in Lewis,
the initial eligibility determination under section 1170.95 is
analogous to a determination whether summarily to deny a
habeas corpus petition (Lewis, supra, 43 Cal.App.5th at p. 1138,
review granted), to which no constitutional right to counsel
attaches. (See McGinnis v. Superior Court (2017) 7 Cal.App.5th
1240, 1243–1244, fn. 2 [“Any right to habeas corpus counsel,
absent an order to show cause, is purely statutory . . . . .”].)
DISPOSITION
The order denying Brown’s petition for resentencing
pursuant to section 1170.95 is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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