P. v. Brown

Filed 5/11/20 P. v. Brown CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRES MANNER BROWN,
Defendant and Appellant.
B299047
(Los Angeles County
Super. Ct. No. PA03100)
APPEAL from an order of the Superior Court of Los Angeles
County, Michael Terrell, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.

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Appellant Andres Brown challenges the trial court’s
summary denial of his petition for resentencing under Penal
Code section 1170.95.1 Appellant argues that section 1170.95
gives rise to “special proceedings” in which the trial court “has
only the power to determine whether the statutory requirements
are met.” From that premise, he contends that the trial court
was required to appoint him counsel and afford him the
opportunity to file additional briefing because his petition stated
a prima facie case for relief. He further argues that the trial
court erred by looking beyond the petition to information in the
court file, and violated his constitutional rights to counsel and
due process. We find no error and affirm.
BACKGROUND2
On December 18, 1997, appellant shot Keith Wilcher in the
head during an altercation; appellant’s gun went off while he was
striking Wilcher with it. Wilcher was comatose for eight months
and ultimately died. Appellant was arrested in April 1998 and
admitted shooting Wilcher. (People v. Brown (Mar. 20, 2001,
B141167) [nonpub. opn.].)
An information charged appellant with murder (§ 187,
subd. (a)(1)) and possession of a firearm by a felon (former
§ 12021, subd. (a)(1)). It further alleged that appellant personally
used a firearm during the commission of the murder (§§ 1203.06,
1All further statutory references are to the Penal Code
unless otherwise indicated.
2We grant Respondent’s unopposed request for judicial
notice and take judicial notice of our nonpublished opinion
resolving appellant’s direct appeal. The facts regarding
appellant’s crimes and convictions are drawn from that opinion,
People v. Brown (Mar. 20, 2001, B141167) [nonpub. opn.].

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subd. (a)(1); 12022.5, subd. (a)(1)), and that he previously
suffered a strike conviction (§§ 667, subds. (b)-(i); 1170.12, subs.
(a)-(d)). Appellant pled not guilty and proceeded to jury trial.
The jury found appellant guilty of second degree murder
and possession of a firearm by a felon. It also found true the
personal use firearm enhancement and prior conviction
allegation. The trial court sentenced appellant to 40 years to life.
We affirmed appellant’s convictions on direct appeal. (People v.
Brown (Mar. 20, 2001, B141167) [nonpub. opn.].)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which “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(f).) In addition to other
amendments discussed more fully below, SB 1437 added section
1170.95, which establishes a procedure by which individuals
convicted of murder under a felony murder theory or the natural
and probable consequences doctrine can seek vacation of those
convictions and resentencing. (Stats. 2018, ch. 1015, § 4, pp.
6675-6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128,
1134, review granted March 18, 2020, No. S260598 (Lewis).)3
The provisions of SB 1437 became effective on January 1, 2019.
3 The Supreme Court granted review in Lewis to consider
two issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise

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On April 16, 2019, appellant, in propria persona, filed a
petition asking the court to vacate his murder conviction and
resentence him pursuant to section 1170.95. On the form
petition, appellant checked a box affirming the statement, “A
complaint, information, or indictment was filed against me that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine.” Appellant also checked boxes affirming statements
asserting, “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine,” “I could not now be convicted of 1st or
2nd degree murder because of changes to Penal Code §§ 188 and
189, effective January 1, 2019,” and “I request this court appoint
counsel for me during this re-sentencing process.”
Appellant attached an additional page to the form petition.
It stated, “Petitioner Brown’s eligibility is based on changes to
Penal Code section §188, specifically that malice shall not be
imputed to a principal for participating in a crime. [¶] In the
present case, the prosecution, using Cal.Jic 8.32, argued that I
was guilty of murder, for engaging in a crime, and that the
natural and probable consequences for that crime is murder. [¶] I
under Penal Code section 1170.95, subdivision (c).” (Lewis,
supra, S260598) [2020 WL 1291847].) The Supreme Court also
granted review in People v. Cornelius (2020) 44 Cal.App.5th 54,
review granted March 18, 2020, No. S260410 (Cornelius) and
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
March 18, 2020, No. S260493 (Verdugo).) The Court deferred
briefing in Cornelius and Verdugo pending its consideration and
disposition of Lewis or further order. (Cornelius, supra, S260410;
Verdugo, supra, S260493.)

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was convicted to second degree murder, not first-degree murder
which is subject to the disqualification of new section §189. I
would not have been convicted under the theory used by the
prosecution, had the changes existed at the time of my trial
under new section §188.”4
The trial court denied appellant’s petition on May 17, 2019
without appointing defendant counsel or holding a hearing on the
petition. The court issued an order stating: “The court is in
receipt of defendant’s Petition for Resentencing, filed pursuant to
Penal Code Section 1170.95 on April 16, 2019. The petition is
summarily denied because petitioner is not entitled to relief as a
matter of law. Petitioner was convicted of second degree murder.
The court file, including the opinion from the court of appeals,
reflects that petitioner was the actual killer and was not
convicted under a theory of felony-murder. To find defendant
guilty, the jury was required to conclude that the People proved
beyond a reasonable doubt that the killing resulted from an
intentional act. The jury also specifically found that defendant
personally used a firearm in the commission of the offense.
Given those factual findings by the jury, defendant is not entitled
to relief as a matter of law. See Penal Code Section 188(b). [¶]
For all the foregoing indicated reasons, the petition is DENIED.”
Appellant timely appealed.
4Former CALJIC No. 8.32 concerned second degree felony
murder. It provided, “The unlawful killing of a human being,
whether intentional, unintentional, or accidental, which occurs
[during] [as the direct causal result of] the commission or
attempted commission of [certain crimes] is murder of the second
degree when the perpetrator had the specific intent to commit
such crime. (Third bracket added.)” (People v. Swain (1996) 12
Cal.4th 593, 601-602.)

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DISCUSSION
I. Legal Principles
The primary purpose of SB 1437 is to align a person’s
culpability for murder with his or her own actions and subjective
mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To
effectuate that purpose, SB 1437 amended sections 188 and 189.
As amended, section 188, subdivision (a)(3) now provides that “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.”
(§ 188, subd. (a)(3).) Section 189 now provides that a participant
in qualifying felonies during which a death occurs generally will
not be liable for murder unless that person was (1) “the actual
killer,” (2) a direct aider and abettor in first degree murder, or (3)
“a major participant in the underlying felony [who] acted with
reckless indifference to human life.” (§ 189, subd. (e).)5
Senate Bill No. 1437 also added section 1170.95 to the
Penal Code. Section 1170.95 permits a person convicted of
murder on a charging document that allowed the prosecution to
argue felony murder or the natural and probable consequences
doctrine to petition the sentencing court to vacate the conviction
and resentence on any remaining counts if the person could not
be convicted of murder under sections 188 and 189 as amended
5This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)

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by SB 1437. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include: “(A) A declaration by the petitioner
that he or she is eligible for relief under this section, based on all
the requirements of subdivision (a). [¶] (B) The superior court
case number and year of the petitioner’s conviction. [¶] (C)
Whether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1).) If any of this information is missing
“and cannot be readily ascertained by the court,” the court may
deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c) prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, he or she is then entitled to
appointed counsel, if he or she has requested counsel. (Ibid.;
Verdugo, supra, at p. 328; Lewis, supra, 43 Cal.App.5th at p.
1140.) The prosecutor must file a response, and the petitioner
may file a reply. (§ 1170.95, subd. (c).) The court then reviews
the petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(Ibid.; Verdugo, at p. 328; Lewis, at p. 1140.)
“Once the order to show cause issues, 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.” (Verdugo, supra, 44 Cal.App.5th at 327, citing
§ 1170.95, subd. (d)(1).) At the hearing, the parties may rely on

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the record of conviction or present “new or additional evidence” to
support their positions. (§ 1170.95, subd. (d)(3).)
We independently review whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene
v. Marin County Flood Control & Water Conservation Dist. (2010)
49 Cal.4th 277, 287 [questions of law are reviewed de novo]; cf.
Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [appellate court’s
principal task in interpreting a statute is to determine
Legislative intent and give effect to the law’s purpose].)
II. Analysis
Appellant contends that section 1170.95 gives rise to
“special proceedings” in which a trial court “has only the power
to determine whether the statutory requirements are met.” His
position is that the trial court must accept as true the allegations
in a section 1170.95 petition, and has a ministerial duty to
appoint counsel, issue the order to show cause, and conduct a
hearing if the allegations meet the criteria of section 1170.95,
subdivisions (a) and (b). In other words, “if the petition alleges
facts that, if true, entitle the petitioner to resentencing, then the
trial court ‘shall issue an order to show cause’ and ‘shall appoint
counsel to represent the petitioner’”; the trial court may not, as it
did here, consult materials that may contradict the petition’s
allegations.
Every Court of Appeal to have considered the issue has
held that in determining whether a petitioner has made a prima
facie case for relief under section 1170.95, a trial court may look
to documents that are part of the record of conviction or are
otherwise in the court file. (See Verdugo, supra, 44 Cal.App.5th
at 329 [documents in court file or record of conviction should be
available to trial court in connection with first prima facie

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determination under subd. (c)]; Lewis, supra, 43 Cal.App.5th at
1138 [trial court may summarily deny petition without briefing or
appointment of counsel if court file shows petitioner was
convicted of murder without instruction or argument based on
felony-murder rule or natural and probable consequences
doctrine]; Cornelius, supra, 44 Cal.App.5th at pp. 57-58
[affirming summary denial of petition based on verdict, trial
transcript, and prior appeal].) We agree with the analyses of our
sister courts.
In Verdugo, the Court of Appeal observed that section
1170.95, subdivision (b)(2) allows a court to consider readily
ascertainable documents that are in the court file or otherwise
part of the record of conviction to ensure the petition meets the
requirements of subdivision (b)(1). (Verdugo, supra, 44
Cal.App.5th at p. 329.) It reasoned that those same documents
“should similarly be available to the court in connection with the
first prima facie determination required by subdivision (c).”
(Ibid.) The court further observed that some examination of case-
related documents, such as the charging document, the verdict
form, the factual basis of a guilty plea, and/or the abstract of
judgment, is implied, “because a petitioner is not eligible for relief
under section 1170.95 unless he or she was convicted of first or
second degree murder based on a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine.” (Id. at pp. 329-330.)
The Court of Appeal in Lewis reached the same conclusion.
It reasoned that “in analogous situations trial courts are
permitted to consider their own files and the record of conviction
in evaluating a petitioner’s prima facie showing of eligibility for

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relief.” (Lewis, supra, 43 Cal.App.5th at p. 1137.) The Lewis
court highlighted petitions for writs of habeas corpus and
petitions filed under section 1170.18 (Proposition 47) as examples
of analogous circumstances in which the trial court may
summarily deny relief based upon facts in its file that refute the
facial allegations of the petition. (Id. at pp. 1137-1138.)
Appellant likewise analogizes section 1170.95 petitions to
petitions for writs of habeas corpus and section 1170.18 petitions,
though he contends that trial courts in those types of “special
proceedings” are also confined to the face of the petition when
determining whether a prima facie case has been made.
We find the reasoning of Lewis and the authority it rests
upon compelling. We agree with Lewis that “[a]llowing the trial
court to consider its file and the record of conviction is also sound
policy.” (Lewis, supra, 43 Cal.App.5th at p. 1138.) “‘It would be a
gross misuse of judicial resources to require . . . 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 . . . 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 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.’” (Ibid., quoting Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2019) ¶ 23:51(H)(1).)
Following Verdugo, Lewis, and Cornelius, we look to the
trial court’s file in evaluating appellant’s petition. The court file,
including our prior opinion, reflects that appellant was the actual

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killer and was not convicted under a theory of felony murder or
the natural and probable consequences doctrine. Despite his
assertion that the jury was given felony murder instruction
CALJIC 8.32, the charging document does not allow for any such
instruction. Aside from murder, appellant was charged only with
unlawfully possessing a firearm. Felony murder was applicable
only to “‘an unlawful killing in the course of the commission of a
felony that is inherently dangerous to human life but is not
included among the felonies enumerated in section 189.’” (People
v. Chun (2009) 45 Cal.4th 1172, 1182.) Unlawful possession of a
firearm is not an inherently dangerous felony (People v. Satchell
(1971) 6 Cal.3d 28, 40-41, overruled on other grounds by People v.
Flood (1998) 18 Cal.4th 470), nor is it enumerated in section 189.
The record likewise reveals no basis for application of the
natural and probable consequences doctrine, which applies only
in the aider and abettor context. (See People v. Chiu (2014) 59
Cal.4th 155, 165-166.) Appellant was charged as a direct
perpetrator and admitted that he shot Wilcher. (People v. Brown
(Mar. 20, 2001, B141167) [nonpub. opn.].) Moreover, the jury
found that appellant personally used a firearm during the
commission of the murder. (Ibid.) Appellant was therefore
ineligible for relief under section 1170.95.
Appellant also claims he was entitled to appointed counsel
without regard to the veracity of his allegations. We reject his
assertion. Section 1170.95 does not mandate the appointment of
counsel during the initial “screening” phase, but only after the
trial court has determined the petition sets forth a prima facie
case. (See Lewis, supra, 43 Cal.App.5th at p. 1140; Verdugo,
supra, 44 Cal.App.5th at pp. 332-333; Cornelius, supra, 44
Cal.App.5th at p. 58 [rejecting claim that petitioner was entitled

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to appointed counsel where he was indisputably ineligible for
relief under section 1170.95].)
We further reject appellant’s contention that the trial
court’s summary denial of his petition violated his federal
constitutional right to counsel under the Sixth Amendment.
Appellant had no constitutional right to counsel at this stage of a
section 1170.95 proceeding. The retroactive relief afforded by
section 1170.95 reflects an act of lenity by the Legislature and is
not subject to Sixth Amendment analysis. (Cf. People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial in
proceedings under SB 1437 because its retroactive relief is “an
act of lenity that does not implicate defendants’ Sixth
Amendment rights”], citing People v. Perez (2018) 4 Cal.5th 1055,
1063-1064; Pennsylvania v. Finley (1987) 481 U.S. 551, 555
[prisoners have no constitutional right to counsel “when
mounting collateral attacks upon their convictions”].)
Finally, appellant claims that the summary denial of his
petition violated his procedural due process rights because it
deprived him of procedures to which he was entitled under
section 1170.95. As discussed above, however, the trial court
acted in accordance with section 1170.95’s procedures when it
consulted the court file and summarily denied appellant’s
petition. Appellant has therefore suffered no due process
violation.

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DISPOSITION
The order denying appellant’s petition under section
1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.

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