People v. Brown CA2/7 ( 2024 )

Filed 10/1/24 P. v. Brown CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B325282
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA146986)
v.
CHARLES BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Reversed and
remanded with directions.
Joanna Rehm, 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 Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.
_____________________________
In 2008 a jury convicted Charles Brown of second degree
murder. In 2019 Brown petitioned for resentencing under Penal
Code former section 1170.95 (now section 1172.6).1 Following
briefing and an evidentiary hearing, at which Brown testified,
the superior court denied the petition, finding the People proved
beyond a reasonable doubt that Brown was guilty of second
degree murder under an implied malice theory because he was a
major participant in the underlying felony (a robbery) and acted
with reckless indifference to human life.
On appeal, Brown contends the superior court applied an
incorrect standard to the question whether Brown was guilty of
second degree murder. We agree and reverse. We remand for
the court to reconsider the petition applying the correct legal
standards under current law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
In March 1997 Bobby Cisneros was a cocaine dealer in Los
Angeles, from whom Brown had been purchasing cocaine for
approximately two years. On the morning of March 4, 1997
Brown told Cisneros’s partner, Eduardo Quiroz, that he wanted
to purchase a half-kilogram of cocaine, which Quiroz said would
cost at least $7,500. Brown returned a short time later and told
Quiroz he had the money, and Quiroz left to tell Cisneros about
the deal. (People v. Brown (Jan. 19, 2010, B212584) [nonpub.
opn.] (Brown I).)
1 Further statutory references are to the Penal Code.
2
About an hour before the shooting, Brown and Cisneros
were seen together near Brown’s residence. (Brown I, supra,
B212584.) Shortly before the shooting, Brown’s friend Jamal
Webster told another friend (Tabatha Pritchett) that Webster and
Brown were planning to rob “some Mexicans.”2 Webster showed
Pritchett a shotgun that was 12 to 18 inches long and said that
after the robbery he would not be around for a long time.
Around 3:00 p.m. that afternoon, two children who lived
near Brown saw Brown at his residence. One child recalled
seeing Brown enter his residence and then hearing two gunshots.
He saw two black men run out of the house, one of whom had a
revolver. The men got into a truck and drove away. The second
child said he heard the gunshots and then saw Brown and
another person running out of the house. Brown was carrying a
gun. (Brown I, supra, B212584.)
When police arrived at Brown’s residence after the
shooting, they found Cisneros’s body on the floor in the doorway
to Brown’s bedroom. Cisneros had died of a shotgun wound to
the back of the head. He had no defensive wounds, and no
weapons were found nearby. (Brown I, supra, B212584.)
B. The Jury Verdict and the First Appeal
Brown was arrested in Arkansas in 2007. He was charged
with Cisneros’s murder with special allegations he personally
used a firearm within the meaning of section 12022.5,
subdivision (a), and a principal in the offense was armed with a
firearm within the meaning of section 12022, subdivision (a)(1).
2 Pritchett testified that Webster was Brown’s nephew, but
Brown testified at the evidentiary hearing that Webster was his
friend. This discrepancy does not affect our opinion.
3
The jury was instructed on first degree willful, deliberate,
and premeditated murder and first degree felony murder. The
court did not instruct on second degree murder other than saying
“all other murders are of the second degree.” The jury returned a
guilty verdict on second degree murder (without specifying the
theory) and found not true the allegation that Brown personally
used a firearm. The trial court3 sentenced Brown to 16 years to
life in state prison. We affirmed the conviction on appeal.
(Brown I, supra, B212584.)
C. The Petition for Resentencing
On January 9, 2019 Brown filed a form petition for
resentencing seeking to vacate his murder conviction and be
resentenced in accordance with recent statutory changes relating
to felony murder and the natural and probable consequences
doctrine. In his petition, Brown declared he was “convicted of 1st
or 2nd degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine” and he “could not
now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”
He also checked the boxes on the form stating he was not the
actual killer and did not act with the intent to kill. Further, he
asserted he was not a major participant in the felony or did not
act with reckless indifference to human life. Brown requested
appointment of counsel. After appointing counsel and receiving
memoranda from the parties, the superior court4 denied the
petition, finding Brown failed to make a prima facie showing of
3 Judge William N. Sterling.
4 Judge Sterling.
4
eligibility for relief because he could not have been convicted of
second degree felony murder based on a robbery and the jurors
were not instructed on the natural and probable consequences
doctrine. Therefore, “the conviction was neither for felony
murder nor on the theory of natural and probable consequences.”
(People v. Brown (Mar. 9, 2021, B303601) [nonpub. opn.] (Brown
II).)
We reversed the order denying Brown’s petition, explaining
the judge’s response in the affirmative to the jury’s question
whether Brown could be convicted of second degree murder even
if he was not the actual killer created some ambiguity as to
whether Brown was convicted of second degree felony murder.
Thus, we concluded, “The record of conviction does not
conclusively show the jurors did not convict Brown of second
degree murder based on a felony murder theory.” We remanded
the matter with directions to the superior court to issue an order
to show cause and to conduct further proceedings in accordance
with former section 1170.95, subdivision (d). (Brown II, supra,
B303601.)
D. The Evidentiary Hearing
The superior court on remand5 held an evidentiary hearing
on June 22, 2022. The prosecutor introduced the transcript from
Brown’s 2008 trial and argued Brown was ineligible for
resentencing because section 1170.95 applied only to convictions
for felony murder and not to convictions for second degree
murder. The prosecutor also argued that Brown could be
convicted of felony murder under current law because Brown was
5 Judge Craig J. Mitchell.
5
a major participant in the underlying felony and acted with
reckless indifference to human life.
Brown testified at the hearing. He explained that prior to
the shooting he had purchased cocaine from Cisneros
approximately 20 to 30 times—roughly every two or three
months. Brown typically bought $9,000 worth of cocaine, sold
some of it, and used some of it himself. It was normal for
Cisneros to come to Brown’s residence to make the sale. On the
day of the shooting Brown told Webster that he intended to rob
Cisneros. Webster “said he wanted to be in it so he could get a
couple of ounces.” Brown planned to move to Arkansas after the
robbery to take care of his sick mother.
Brown testified that when Cisneros arrived at the
apartment, “I got the dope and the money, robbed him, I went out
the room, and I don’t know what Jamal—he was in there, and he
hit him with the gun and shot him.” Brown continued, “I was
going out the room. I got the money and drugs. I was leaving.”
After he heard the gunshot, Brown said to Webster, “‘Why did
you do that?’ I told him, because it was just a simple robbery.
There wasn’t no need to kill him.” Brown admitted he had been
armed with a pistol, but claimed he did not know Webster had a
shotgun with him until after the shooting. Brown acknowledged
he “sometimes” had seen Cisneros with a gun.
After taking the matter under submission, the superior
court denied Brown’s petition for resentencing, finding “by proof
beyond a reasonable doubt that the petitioner is guilty of second
degree murder under an implied malice theory, specifically, that
he was a major participant in the underlying felony and acted
with reckless indifference to human life.” The court found
Brown’s “account of what transpired was far from credible.” For
6
example, the court did not believe Brown’s testimony that he did
not know Webster was armed, stating, “It is not reasonable that
such a large weapon [as a shotgun] would be concealed, brought
to a location, and that Mr. Brown would be unawares.”
In finding Brown was a “major participant” in the robbery,
the superior court considered the factors outlined in People v.
Banks (2015) 61 Cal.4th 788 and found Brown was an active
participant because he played a “major role” in planning the
robbery and Brown should have known the danger of violence
was “significant” given the large amount of drugs involved and
that “everybody is armed.” The court also considered the factors
outlined in People v. Clark (2016) 63 Cal.4th 522 regarding
whether Brown acted with reckless disregard for human life. The
court found Brown made no effort to minimize the risk of violence
during the robbery, stating “one does not come armed and have a
companion armed if the eventuality of violence was not
contemplated.”
Brown timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (Senate Bill 1437) eliminated the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and significantly limited the scope
of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th
698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v.
Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v.
Reyes (2023) 14 Cal.5th 981, 984 (Reyes).) Section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
an individual’s participation in a crime and requires proof of
7
malice to convict a principal of murder, except under the revised
felony-murder rule as set forth in section 189, subdivision (e).
(Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189,
subdivision (e), now requires the People to prove specific facts
relating to the defendant’s individual culpability: The defendant
was the actual killer (§ 189, subd. (e)(1)); although not the actual
killer, the defendant, with the intent to kill, assisted in the
commission of murder in the first degree (§ 189, subd. (e)(2)); or
the defendant was a major participant in an underlying felony
listed in section 189, subdivision (a), and acted with reckless
indifference to human life as described in section 190.2,
subdivision (d) (the felony-murder special-circumstance
provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.) Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2),
effective January 1, 2022, expanded the scope of potential relief
to apply Senate Bill 1437’s ameliorative changes to individuals
convicted of attempted murder and voluntary manslaughter.
(See § 1172.6, subd. (a).)
Senate Bill 1437 also provided a procedure (now codified in
section 1172.6) for an individual convicted of felony murder or
murder under the natural and probable consequences theory or
other theory under which malice is imputed to a person based
solely on that person’s participation in a crime to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if the individual could not have been
convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189. (People v. Lewis, supra, 11 Cal.5th at
p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
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she is eligible for relief based on the requirements of
subdivision (a), the sentencing court must appoint counsel to
represent the petitioner upon his or her request pursuant to
section 1172.6, subdivision (b)(3). Where a petitioner makes the
requisite prima facie showing the petitioner falls within the
provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder, attempted
murder, or manslaughter conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subds. (c) &
(d)(1).)
Section 1172.6, subdivision (d)(3), provides that at the
evidentiary hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed.” Further, “[t]he prosecutor and the petitioner may also
offer new or additional evidence to meet their respective
burdens.” (§ 1172.6, subd. (d)(3).)
We review the superior court’s decision to deny the petition
after an evidentiary hearing for substantial evidence, provided
the court understood the elements of the offense and applied the
proper standard and burden of proof. (Reyes, supra, 14 Cal.5th at
p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
“[W]here there is an issue as to whether the trial court
9
misunderstood the elements of the applicable offense, the case
presents a question of law which we review independently.”
(Reyes, at p. 988.)
B. The Superior Court Applied an Incorrect Legal Standard in
Finding Brown Could Be Convicted of Second Degree
Murder
As discussed, the superior court found Brown guilty of
second degree implied malice murder, which, as Brown
acknowledges, remains a valid theory under current law. (See
People v. Rivera (2021) 62 Cal.App.5th 217, 232 [after Senate
Bill 1437 “a person may still be convicted of second degree
murder, either as a principal or an aider and abettor”]; see also
Reyes, supra, 14 Cal.5th at p. 987.) The court’s finding was based
on its determination Brown was a major participant in the
underlying felony who acted with reckless indifference to human
life. (§ 189, subd. (e)(3).) However, this standard applies only to
first degree felony murder, and is not the relevant inquiry for
determining guilt for second degree implied malice murder.6
6 The Attorney General does not address Brown’s argument
that the superior court applied an incorrect legal theory to
support second degree implied malice murder, instead arguing
there was substantial evidence Brown was a major participant
who acted with reckless disregard for human life. To the extent
the Attorney General’s position is that there was substantial
evidence to support first degree felony murder, the Attorney
General does not address whether this could be a basis for denial
of a resentencing petition where the jury found Brown guilty of
second degree murder. (See People v. Hernandez (2021)
60 Cal.App.5th 94, 109-111 [neither law of the case doctrine nor
double jeopardy prevented the superior court from finding the
defendant was ineligible for resentencing based on first degree
10
A finding of ineligibility based on implied malice murder
may be based on a finding a defendant was a direct perpetrator
who harbored implied malice or was an aider and abettor to the
perpetrator. (See Reyes, supra, 14 Cal.5th at p. 987.) With
respect to liability as the perpetrator, “[m]urder is committed
with implied malice when ‘the killing is proximately caused by
“‘an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’”’” (Id. at p. 988; accord, People v.
Elmore (2014) 59 Cal.4th 121, 133.) “‘To be considered the
proximate cause of the victim’s death, the defendant’s act must
have been a substantial factor contributing to the result, rather
than insignificant or merely theoretical.’” (People v. Jennings
(2010) 50 Cal.4th 616, 643.) “[A]cts that merely create a
dangerous situation in which death is possible depending on how
circumstances unfold do not, without more, satisfy this causation
requirement.” (Reyes, at p. 989.) Further, “[t]o suffice for implied
malice murder, the defendant’s act must not merely be dangerous
to life in some vague or speculative sense; it must ‘“involve[] a
high degree of probability that it will result in death.”’” (Ibid.)
In this case, the superior court considered that Brown
planned the robbery, the success of which relied in part on
Brown’s relationship with Cisneros; Brown was armed during the
robbery; Brown should have known the risk of violence was
significant; and Brown took no steps to minimize the risk of
violence. While these factors are relevant to determining guilt of
felony murder although the original conviction was for second
degree murder].)
11
first degree felony murder (see People v. Banks, supra, 61 Cal.4th
788 and People v. Clark, supra, 63 Cal.4th 522), they are
insufficient to support a conviction for second degree implied
malice murder. The court failed to consider whether Brown’s act
(the robbery) was a substantial factor in contributing to the
shooting. Nor did the court consider whether there was a high
degree of probability that death would result from the robbery.
Turning to implied malice murder as a direct aider and
abettor, the elements are as follows: “‘[D]irect aiding and
abetting is based on the combined actus reus of the participants
and the aider and abettor’s own mens rea. [Citation.] In the
context of implied malice, the actus reus required of the
perpetrator is the commission of a life-endangering act. For the
direct aider and abettor, the actus reus includes whatever acts
constitute aiding the commission of the life-endangering act.
Thus, to be liable for an implied malice murder, the direct aider
and abettor must, by words or conduct, aid the commission of the
life-endangering act, not the result of that act. The mens rea,
which must be personally harbored by the direct aider and
abettor, is knowledge that the perpetrator intended to commit the
act, intent to aid the perpetrator in the commission of the act,
knowledge that the act is dangerous to human life, and acting in
conscious disregard for human life.’” (Reyes, supra, 14 Cal.5th at
pp. 990-991; accord, People v. Powell (2021) 63 Cal.App.5th 689,
712-713.) Thus, the relevant inquiry here is whether Brown
knew Webster intended to commit the act (shooting Cisneros),
intended to aid Webster in the shooting, knew the shooting was
dangerous to life, and acted in conscious disregard for life.
(Reyes, at p. 992.) The superior court here did not engage in
these inquiries or make the necessary findings.
12
Because the superior court failed to consider the
appropriate elements for second degree implied malice murder
under either a direct perpetrator or aiding and abetting theory,
its decision was based on an error of law. “[G]iven the nature of
this error, it is ‘uncertain whether the superior court would have
reached the same result using correct legal standards.’” (Reyes,
supra, 14 Cal.5th at p. 992.) Accordingly, remand is appropriate
for the superior court to reconsider the petition applying the
correct legal standard.7
7 Brown contends we should reverse the superior court’s
order and direct the court to enter a new order granting the
petition because Brown testified he did not intend for Webster to
kill Cisneros, and therefore, substantial evidence did not support
a guilty finding of second degree implied malice murder based on
an aider and abettor theory. And further, Brown’s plan to
commit robbery (even armed robbery) did not create a high
degree of probability Brown’s conduct would result in death.
However, the superior court found Brown’s account of the robbery
was not credible. Accordingly, it is uncertain what the superior
court would have found if it applied the correct legal standard,
and the proper remedy is to remand for further proceedings
under that standard. (Reyes, supra, 14 Cal.5th at p. 992.)
13
DISPOSITION
The order denying Brown’s petition for resentencing is
reversed, and the matter is remanded for the trial court to
reconsider the petition applying the correct legal standards under
current law at a new hearing.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
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