People v. Brownlee CA3 ( 2023 )

Filed 6/8/23 P. v. Brownlee CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C091028
v. (Super. Ct. No. 16FE018278)
BENJAMIN JUSTIN BROWNLEE,
Defendant and Appellant.
Defendant Benjamin Justin Brownlee appeals from an order denying his petition
to vacate his murder conviction under Penal Code section 1172.6.1 In 2020, appointed
counsel for defendant asked this court to conduct an independent review of the record
to determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) When defendant did not file a supplemental brief, this court
1 Undesignated statutory references are to the Penal Code. Defendant filed his petition
under former section 1170.95. Effective June 30, 2022, the Legislature renumbered
former section 1170.95 to section 1172.6, with no change in text. (Stats. 2022, ch. 58,
§ 10.)
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dismissed the appeal as abandoned. The California Supreme Court granted review of the
case and later transferred the matter back to this court with instructions to vacate the
dismissal and reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo). Appellate counsel filed supplemental briefing asking this court to “comply
with its notice obligations under Delgadillo” and exercise its discretion to independently
review defendant’s case if defendant does not file a supplemental brief. This court sent
a notice to defendant informing him of his opportunity to file a supplemental brief under
Delgadillo and defendant filed a supplemental brief raising two issues. Having
considered defendant’s arguments, we will affirm the trial court’s order.
I
In August 2017, a jury convicted defendant of first degree murder (§ 187,
subd. (a)) and robbery (§ 211) and found true a robbery-murder special-circumstance
allegation (§ 190.2, subd. (a)(17)(A)). On direct appeal, this court summarized the
evidence from trial, which included statements from defendant that he choked the victim
to death. After police apprehended defendant, his ex-girlfriend gave them a backpack
containing some of the victim’s possessions and said the backpack belonged to
defendant. This court affirmed the convictions. (People v. Brownlee (Apr. 16, 2019,
C085652) [nonpub. opn.].)
In 2019, defendant filed a petition for resentencing under former section 1170.95,
alleging he had been prosecuted under a theory of felony murder or murder under the
natural and probable consequences doctrine; he was convicted of first degree murder; and
he could not currently be convicted of murder because of changes made to sections 188
and 189, effective January 1, 2019.
The trial court appointed counsel and received briefing. At a hearing, the
prosecution argued that because the jury had found true a robbery-murder special-
circumstance allegation, defendant was ineligible for relief as the actual killer. The trial
court agreed and denied the petition.
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II
Defendant’s appointed counsel asked this court to provide defendant notice under
Delgadillo and conduct an independent review of the record to determine whether there
are any arguable issues on appeal if defendant does not file a supplemental brief.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a
supplemental brief within 30 days from the date the opening brief was filed. Defendant
filed a supplemental brief.
The California Supreme Court has considered whether the Wende process applies
to a trial court’s order denying a petition for postconviction relief under section 1172.6
and concluded such procedures are not required. (Delgadillo, supra, 14 Cal.5th at
pp. 221-222.) The Supreme Court laid out applicable procedures for such cases, saying
that where, as here, a defendant has filed a supplemental brief, “the Court of Appeal is
required to evaluate the specific arguments presented in that brief and to issue a written
opinion. The filing of a supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.” (Id. at p. 232.)
Defendant first raises various issues related to his original trial, arguing evidence
related to the backpack should have been suppressed and asserting someone else killed
the victim, a statement he previously made at trial. None of those issues are cognizable
in an appeal from an order denying a resentencing petition under section 1172.6. (People
v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 “does not permit a petitioner
to establish eligibility on the basis of alleged trial error”].) This court affirmed
defendant’s convictions in 2019 and the judgment is now final. (People v. Brownlee,
supra, C085652.)
Nor may defendant relitigate issues already decided by the jury. (People v. Coley
(2022) 77 Cal.App.5th 539, 549.) “Senate Bill [No.] 1437 relief is unavailable if the
defendant was either the actual killer, acted with the intent to kill, or ‘was a major
participant in the underlying felony and acted with reckless indifference to human life, as
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described in subdivision (d) of . . . [s]ection 190.2.’ ” (People v. Strong (2022)
13 Cal.5th 698, 710.) Thus, an affirmative jury finding as to an allegation under
section 190.2, subdivision (a)(17) “ordinarily establish[es] a defendant’s ineligibility for
resentencing under Senate Bill [No.] 1437 and thus preclude[s] the defendant from
making a prima facie case for relief. If a jury has determined beyond a reasonable doubt
that a defendant was a major participant who acted with reckless indifference to human
life, as those phrases are now understood and as the Legislature intended them to be
understood when incorporating them into . . . section 189, then that defendant necessarily
could still be convicted of murder under section 189 as amended.” (Strong, at p. 710.)
The jury in defendant’s case made such a finding in August 2017 and he is thus ineligible
for relief under section 1172.6.
Defendant also argues the passage of Assembly Bill No. 256 (2021-2022
Reg. Sess.) (Stats. 2022, ch. 739) entitles him to relief because the jurors at his trial were
White. As relevant here, Assembly Bill No. 256 amended section 745, which allows a
defendant to file a writ of habeas corpus or a motion under section 1473.7 asserting a
criminal conviction was obtained based on the defendant’s race, ethnicity, or national
origin. Defendant is appealing a resentencing petition under section 1172.6, however, not
a writ of habeas corpus or a motion under section 1473.7. The racial composition of
defendant’s jury has no bearing on his eligibility for relief under section 1172.6.
Moreover, section 745 is not yet retroactive to defendant’s case. The amendments
provide retroactivity for different types of cases on a tiered schedule extending through
2026. (Stats. 2022, ch. 739, § 2.) As of January 1, 2023, section 745 applies to all non-
final cases and cases in which a petitioner “is sentenced to death or to cases in which the
motion is filed pursuant to [s]ection 1473.7 because of actual or potential immigration
consequences related to the conviction or sentence.” (§ 745, subd. (j).) Defendant does
not meet any of these conditions.
Defendant’s arguments lack merit.
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DISPOSITION
The trial court’s order denying the petition is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
RENNER, J.
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