People v. Brown CA1/1 ( 2020 )

Filed 9/24/20 P. v. Brown CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A158561
v.
TOMMY BROWN, (Alameda County
Super. Ct. No. 112261A)
Defendant and Appellant.
In 1993, a jury convicted defendant Tommy Brown of first degree
murder and his co-defendant, Akil Cade, of second degree murder based on
their participation in a fatal drive-by shooting. The jury also found true the
allegations that Brown and Cade each personally used a firearm during the
offense. Brown was sentenced to 29 years to life in prison.1
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill No. 1437), which altered liability for murder under the
theories of felony murder and natural and probable consequences. The bill
On its own motion, this court takes judicial notice of the April 2017
1
petition Brown filed in a related habeas proceeding, In re Tommy Brown
(A151103). (See Evid. Code, § 452, subd. (d).) The record in this appeal is
sparse, and we have drawn certain background facts, including the sentence,
from the documents Brown attached to that petition.
1
also established a procedure, under newly enacted Penal Code2
section 1170.95, for eligible defendants to petition for resentencing. Brown
filed a petition for relief under that statute alleging that he was convicted of
first degree felony murder at trial and could no longer be convicted of murder
because of Senate Bill No. 1437’s changes to the law. He also asked that
counsel be appointed for him.
The trial court denied the petition without appointing counsel,
concluding that Brown failed “to make a prima facie showing that he is
entitled to relief” under section 1170.95, subdivision (c) (section 1170.95(c)).
Specifically, based on the one-paragraph facts section of this division’s
opinion in Brown and Cade’s direct appeal, the court concluded that the jury
found Brown was “the actual killer.”
On appeal, Brown claims that the trial court erred by summarily
denying the petition without appointing counsel. We agree. Earlier this
year, our state Supreme Court granted review to decide when the right to
counsel arises under section 1170.95(c). (People v. Lewis (2020)
43 Cal. App. 5th 1128, review granted Mar. 18, 2020, S260598 (Lewis).) We
recently held, contrary to other Courts of Appeal to address the issue, that
the right to counsel under section 1170.95(c) “attaches upon the filing of a
facially sufficient petition that alleges entitlement to relief.” (People v.
Cooper (Sept. 1, 2020, A156880) __ Cal.App.5th __ [p. 1] (Cooper).) Brown’s
petition met this standard, and we cannot say that the error in failing to
appoint counsel for him was harmless. As a result, we reverse.
2 All further statutory references are to the Penal Code.
2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In March 1992, Joseph Hughes was killed in a drive-by shooting in
Oakland. Brown, who was 18 years old at the time of the killing, and Cade
were charged with Hughes’s murder, and it was also alleged that both men
personally used a firearm during the offense.3 The following year, a jury
convicted Brown of first degree murder and Cade of second degree murder
and found true the personal-use allegations. Brown was sentenced to a total
term of 29 years to life in prison, composed of a term of 25 years to life for the
murder and four years for the firearm use. This division affirmed both men’s
convictions in a nonpublished opinion. (People v. Brown (Oct. 6, 1994,
A061870).)4
In August 2019, Brown filed a petition for resentencing under
section 1170.95. Using a preprinted form, he checked boxes stating that a
charging document had been filed against him allowing the prosecution to
proceed under a felony murder theory or the natural and probable
consequences doctrine; he was convicted at trial of first or second degree
murder under a theory of felony murder or murder under the natural and
probable consequences doctrine; and he could not now be convicted of murder
in light of Senate Bill No. 1437’s changes to the law. In addition, he checked
boxes indicating that he was convicted of first degree felony murder and that
he was not the actual killer, he did not aid and abet the actual killer with an
intent to kill, and the victim was not a peace officer. Finally, he checked a
3 The murder charge was brought under section 187, and the personal-
use allegations were made under section 12022.5.
4We granted Brown’s motion to augment the record with the 1994
opinion.
3
box stating, “I request that this court appoint counsel for me during this re-
sentencing process.”5
A month later, a different judge than the judge who sentenced Brown
summarily denied the petition. Brown did not appear, and the trial court did
not appoint counsel to represent him. The court took judicial notice of this
division’s 1994 opinion and “the court file,” but the written order denying the
petition did not identify any specific documents other than the opinion on
which the court relied. Nor does the record before us contain any other court
documents from the 1990’s that were before the court when it ruled.6
After summarizing Senate Bill No. 1437’s changes to the law, the trial
court denied Brown’s petition for “failure to make a prima facie showing that
[Brown] is entitled to relief.” Quoting from the 1994 appellate opinion, the
court explained that relief was unavailable because Brown
“was found to be the actual killer. (Pen. Code, § 189,
subd. (e)(1).) A jury found [Brown] guilty of first-degree murder
and returned a true finding on the personal gun use allegation in
1993. The appellate court affirmed the conviction and
summarized the facts as follows: [¶] [‘]Joseph Hughes was the
victim of a drive-by shooting. The prosecution presented evidence
that Brown was the driver of the involved vehicle and that Cade
was a passenger. Both men were armed, Brown with a 9 mm
gun, and Cade with a .38 revolver. They drove up to the corner
where Hughes stood, and started shooting.’ ”
5In conjunction with the petition, Brown filed a “request for notice and
an opportunity to be heard” in which he argued that the trial court could not
deny his facially sufficient petition without a hearing. He did not submit any
documents from the record of conviction.
6Brown attached the jury’s verdict form and one page of the reporter’s
transcript of his sentencing hearing to his notice of appeal.
4
II.
DISCUSSION
A. The Trial Court Erred by Failing to Appoint Counsel for Brown.
Brown claims that his petition “satisfied the statutory threshold for
triggering a court’s mandatory dut[y] under subdivision[] (c) . . . of
section 1170.95 to appoint counsel upon request.” We agree the trial court
erred by not appointing counsel before denying the petition.
“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder
liability under the felony-murder and natural and probable consequences
theories. The bill redefined malice under section 188 to require that the
principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.’ (§ 188,
subd. (a)(3).)” (People v. Turner (2020) 45 Cal. App. 5th 428, 433 (Turner).)
The bill also amended section 189 to provide that a defendant who was not
the actual killer and did not have an intent to kill is not liable for felony
murder unless he or she “was a major participant in the underlying felony
and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2,” or the victim was a peace officer performing
his or her duties. (§ 189, subds. (e) & (f).)
Senate Bill No. 1437 also enacted section 1170.95, which authorizes “[a]
person convicted of felony murder or murder under a natural and probable
consequences theory [to] file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts.” (§ 1170.95, subd. (a).) As we
explained in Cooper, “[t]he defendant initiates the process by filing a petition
in the sentencing court that must include three pieces of information.
(§ 1170.95, subd. (b).) First, the petition must include ‘[a] declaration by the
petitioner that he or she is eligible for relief under this section, based on all
5
the requirements of subdivision (a).’ (§ 1170.95, subd. (b)(1)(A).) Those
requirements are (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) ‘[t]he 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) ‘[t]he 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, subd. (a).) Second, the petition must include ‘[t]he superior court
case number and year of the petitioner’s conviction.’ (§ 1170.95,
subd. (b)(1)(B).) And finally, the petition must state ‘[w]hether the petitioner
requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)” (Cooper,
supra, __ Cal.App.5th __ [p. 10].) “If a petition is missing any of these three
pieces of information and the missing information ‘cannot be readily
ascertained by the [trial] court, the court may deny the petition without
prejudice’ to filing another petition that includes the required information.
(§ 1170.95, subd. (b)(2).)” (Ibid.)
“Section 1170.95(c) addresses the procedure by which a trial court
determines whether the petitioner is entitled to an evidentiary hearing. The
subdivision provides in full: ‘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 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
6
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.’ ” (Cooper,
supra, __ Cal.App.5th __ [p. 11].)
In Cooper, we broke with other Courts of Appeal to decide the issue and
held that “the right to counsel attaches upon the filing of a facially sufficient
petition that alleges entitlement to relief”—that is, a petition that includes all
the information required under section 1170.95, subdivision (b). (Cooper,
supra, __ Cal.App.5th __ [pp. 2, 10–11].) Other decisions “interpreted
section 1170.95(c) to require ‘two prima facie showings’: first, under the first
sentence of [section 1170.95(c)], ‘that the petitioner falls within the provisions
of this section,’ and second, under the last sentence of that provision, that the
petitioner is ‘entitled to relief.’ ” (Id. at p. 14.) These decisions determined
that a petitioner has a right to counsel during only the second prima facie
review. (Id. at p. 16.)
We came to a different conclusion, explaining that, in our view,
section 1170.95(c)’s first sentence is “a topic sentence summarizing the trial
court’s task before issuing an order to show cause, and the following
sentences . . . specify the procedure in undertaking that task,” meaning there
is only one prima facie review before an order to show cause issues. (Cooper,
supra, __ Cal.App.5th __ [p. 16].) Thus, once a petitioner files a facially
sufficient petition requesting counsel, the court must appoint counsel before
performing any review under section 1170.95(c). (See Cooper, at p. 23.) After
the parties have had an opportunity to submit their response and reply to the
petition, the court determines whether the petitioner has made a prima facie
showing requiring an order to show cause. (See id. at p. 16; § 1170.95(c).)
Under this procedure, the initial responsibility for reviewing the record
of conviction “to investigate whether the record conclusively demonstrates the
7
petitioner’s ineligibility for relief” falls to the prosecutor. (Cooper, supra, __
Cal.App.5th __ [pp. 22–23 & fn. 9].) Often, it will not be difficult for the
prosecutor to determine that an evidentiary hearing will be required or,
conversely, that the petition lacks merit, such as if the petitioner was not
actually convicted of murder or no jury instructions on felony murder or
natural and probable consequences were given. (See id. at p. 21.) In those
cases, the prosecutor need submit only the relevant portions of the prior
record of conviction with a brief explanation of why they decisively establish
the petitioner’s ineligibility for relief. Upon such a showing by the
prosecutor, the petitioner in his or her reply will unlikely be able to show that
relief is warranted. But if the petitioner can demonstrate a material factual
dispute about his or her entitlement to relief, the trial court must issue an
order to show cause and hold a hearing. (See, e.g., People v. Drayton (2020)
47 Cal. App. 5th 965, 981–983 [trial court erred by not issuing order to show
cause where petitioner convicted of felony murder disputed whether he was
major participant in underlying felony who acted with reckless disregard for
human life].)
The parties’ appellate briefing was complete before we issued Cooper.
In addressing the right-to-counsel issue, the Attorney General “adopt[s] the
reasoning of the court in Lewis,” quoting that decision at length to argue that
Brown was not entitled to counsel before the trial court denied his petition.
For the reasons given in Cooper, however, we disagree with the reasoning of
Lewis and other decisions to discern a two-part review process under
section 1170.95(c). (See generally Cooper, supra, __ Cal.App.5th __ [pp. 16–
23].) The Attorney General does not offer us any reason to reconsider our
holding in Cooper, and we adhere to it pending the Supreme Court’s decision
of the right-to-counsel issue in Lewis.
8
Here, it is undisputed that Brown filed a facially sufficient petition that
complied with the requirements of section 1170.95, subdivision (b). He made
all the averments required under subdivision (a) of the statute. And
although he failed to specify the year of his conviction as required, the trial
court was able to “readily ascertain[]” the date—which it mentioned in its
written order—and did not deny the petition without prejudice on the basis of
this “missing information.” (§ 1170.95, subds. (b)(1)(B), (b)(2).) As a result,
under Cooper, the court erred by failing to appoint counsel for Brown before
denying his petition for failure to make a prima facie showing of entitlement
to relief.
B. The Failure to Appoint Counsel for Brown Requires Reversal.
We next turn to whether the trial court’s failure to appoint counsel for
Brown was prejudicial. We conclude that it was, because “the record does not
conclusively demonstrate that [Brown] was ineligible for relief as a matter of
law.” (Cooper, supra, __ Cal.App.5th __ [p. 23].)7
Although Brown does not directly address the issue of prejudice, he
contends that the failure to appoint counsel was compounded by the trial
court’s reliance on materials outside the petition to deny it. According to
him, “the trial court’s finding that [he] was barred as a matter of law from
obtaining relief, because the 1994 unpublished appellate opinion that
affirmed his murder conviction suggested that he may have been the actual
killer, contravenes the statutory scheme.” The question whether a trial court
7 In Cooper, we declined to decide whether the harmlessness of an error
in failing to appoint counsel under section 1170.95(c) is evaluated under the
federal standard of Chapman v. California (1967) 386 U.S. 18, 24, or the
state standard of People v. Watson (1956) 46 Cal. 2d 818, 836. (Cooper, supra,
__ Cal.App.5th __ [pp. 23–24].) Here, the Attorney General argues that the
error was harmless under Chapman, but we conclude that it was prejudicial
under both standards.
9
may consider the record of conviction in determining whether a defendant
has made a prima facie showing of eligibility for relief under section 1170.95
is also pending before the Supreme Court in Lewis, but we need not decide
whether a court may rely on a prior appellate opinion in a defendant’s case to
deny a petition without issuing an order to show cause. Even assuming that
it may, neither the 1994 opinion nor anything else in our record supports the
trial court’s determination that Brown is ineligible for relief as a matter of
law.
To begin with, the verdict itself does not conclusively establish that
Brown falls into one of the categories disqualifying a defendant convicted of
felony murder from relief under section 1170.95: being “the actual killer,”
aiding and abetting the actual killer “with the intent to kill,” or being “a
major participant in the underlying felony [who] acted with reckless
indifference to human life.” (§ 189, subd. (e).) The Attorney General
contends that “given the jury’s finding of first degree murder and its finding
that [Brown] personally discharged a firearm in the commission of the
offense, the jury found that [he] acted with the intent to kill and with malice
aforethought.” Not so. A conviction for first degree murder does not
necessarily establish an intent to kill, or else those convicted of that crime
before Senate Bill No. 1437 went into effect would never be eligible for relief.
And Brown’s personal use—not “discharge”—sentencing enhancement does
not establish an intent to kill or malice aforethought either. (See People v.
Smit (2014) 224 Cal. App. 4th 977, 987 [“ ‘[U]se’ is not limited to the actual
firing of a gun”].) Indeed, not even a jury’s finding that a defendant
personally and intentionally discharged a firearm causing death precludes
relief under section 1170.95 as a matter of law. (People v. Offley (2020)
48 Cal. App. 5th 588, 598.)
10
We also cannot conclude from the 1994 opinion’s recitation of the facts
that Brown is ineligible for relief as a matter of law. The Attorney General
claims that the opinion illustrates that “the jury found [Brown] guilty of
murder based on evidence that he drove a car, got out of the car and, using a
firearm, shot at the victim. [Citation.] Given these facts, the evidence
supported the trial court’s conclusion that [Brown] was the actual killer.”
But the opinion says that Brown and Cade both “started shooting,” and
nothing else in the opinion’s facts section suggests that Brown and not Cade
fired the fatal shots. We recognize that Cade was convicted of a lesser degree
of murder, and it certainly may be that other parts of the record of conviction
demonstrate the jury found Brown more culpable because of a reason
rendering him ineligible for relief under section 1170.95. The 1994 opinion
itself does not so demonstrate, however, and we do not know what other
materials the trial court may have relied on to determine Brown was the
actual killer. Because the possibility exists that Brown could make a prima
facie showing of entitlement to relief were he permitted to file a reply, we are
unable to say that the error in failing to appoint counsel to assist him was
harmless. (See Cooper, supra, __ Cal.App.5th __ [pp. 23–24, 27].)
Although we conclude that reversal is required, we do not agree with
Brown that the matter must be remanded with directions to the trial court to
not only appoint counsel but also “issue an order to show cause” and “conduct
a hearing to determine whether to vacate [his] murder conviction.” As the
Attorney General points out, the record contains no evidence aside from the
claims in the petition itself that “the prosecution relied on either a theory of
felony murder . . . or the natural and probable consequences doctrine” to
convict. Thus, although Brown must be appointed counsel to enable him to
“further develop[] the record to demonstrate potential entitlement to relief”
11
(Cooper, supra, __ Cal.App.5th __ [p. 27]), the prosecutor must also have the
opportunity to demonstrate that Brown is not entitled to relief based on
information that our record does not contain.
III.
DISPOSITION
The September 10, 2019 order denying Brown’s petition for relief is
reversed, and the matter is remanded for the trial court to appoint counsel for
Brown and conduct further proceedings under section 1170.95 consistent
with this opinion.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
People v. Brown A158561
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