Opinion
E083135
06-20-2024
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DESHONE BROWN, JR., Defendant and Appellant.
Kevin Deshone Brown, Jr., in pro. per.; and Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI17002386 Tony Raphael, Judge. Affirmed.
Kevin Deshone Brown, Jr., in pro. per.; and Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Kevin Deshone Brown, Jr., appeals the San Bernardino County Superior Court's summary denial of his petition for resentencing made pursuant to section 1172.6 of the Penal Code. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
In 2017, defendant and Clarence Smith went into a convenience store and stole a case of beer. After an altercation in the parking lot with employees of the store, defendant and Smith left the scene with two others who had been present in the parking lot, Shanika Baker and defendant's sister, Deshonea Brown. About an hour later, defendant and his sister returned to the store. While the sister waited outside, defendant entered the store and shot George Garcia Carrillo and William Ramirez Ortiz.
As a result of the shooting, defendant and his sister were charged with a number of offenses: attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a)), with multiple additional allegations related to defendant's use of a firearm, including that he personally and intentionally discharged a firearm causing great bodily injury to Carrillo and Ortiz (§ 12022.53, subd. (d)), and assault on Carrillo and Ortiz with a semiautomatic firearm (§ 245, subd. (b)), with additional allegations concerning defendant's personal use of that firearm.
In accordance with an agreement with the People and approved by the court, defendant pled no contest to one count of attempted murder with the words "premeditated," "willful," and "deliberate" removed, and admitted two firearm enhancements (§§ 12022.7, subd. (a), 12022.53, subd. (c)) in exchange for a 32-year sentence.
Defendant petitioned the court for resentencing pursuant to section 1172.6. He alleged (1) he was charged in a manner allowing the prosecution to proceed under the felony-murder rule, the natural and probable consequences doctrine, or other theory under which malice was imputed to him; and (ii) had he not pled guilty to second degree attempted murder, he could have been convicted of first degree attempted murder. The People filed arguments opposing the petition on the ground defendant was the actual attempted killer. Defendant, by and through his appointed counsel, argued the allegations of the petition must be taken as true and, as such, met the prima facie burden requiring an order to show cause.
At the December 1, 2023 prima facie hearing, the parties submitted on their written arguments. The court found defendant ineligible for section 1172.6 resentencing relief because he was the direct and actual perpetrator of the attempted murder and, accordingly, denied defendant's petition. Defendant timely noticed this appeal.
Defendant's appointed appellate counsel filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. Counsel asked this court to independently review the record on appeal, citing People v. Griffin (2022) 85 Cal.App.5th 329, 336.
Upon receipt of the opening brief, we advised defendant and counsel that, because the appeal is from the denial of a postconviction proceeding, this court is not required to conduct an independent review of the record and cited People v. Delgadillo (2022) 14 Cal.5th 216. We invited defendant to file any supplemental brief deemed necessary and advised him that failure to do so might result in dismissal of the appeal as abandoned.
DISCUSSION
In response to our invitation, defendant filed a supplemental brief, asking whether he is entitled to a resentencing hearing in view of Assembly Bill Nos. 1509 (2021-2022 Reg. Sess.) and 1310 (2023-2024 Reg. Sess.), which address the elimination or reduction of sentences imposed for firearm enhancements.
We note that, as of this writing, Assembly Bill Nos. 1509 and 1310 have not been enacted into law.
The issue defendant raises is not properly before us. Though it is related to the topic of resentencing, it is not encompassed by his appeal from the order denying his section 1172.6 petition. As relevant here, section 1172.6 is limited to providing relief to a person convicted of attempted murder under the natural and probable consequences doctrine and who could not now be convicted of attempted murder. (§ 1172.6, subd. (a).) And, as the court properly found, defendant is not entitled to relief pursuant to section 1172.6 because he was the actual perpetrator of the attempted murder to which he pled guilty.
DISPOSITION
The order summarily denying defendant's resentencing petition is affirmed.
WE CONCUR: FIELDS J., MENETREZ J.