Opinion
H050212
06-22-2023
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL LARS BREW, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 206491
THE COURTDefendant Emmanuel Lars Brew appeals an order denying his petition for resentencing under former Penal Code section 1170.95. Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo), we affirm the order.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes to the text. (Stats. 2022, ch. 58, § 10).
The facts of the offense are not relevant to the analysis and disposition of the appeal and therefore we have omitted them.
Brew was convicted in 2007 of second degree murder (§ 187), assault on a child under the age of eight resulting in death (§ 273ab), child endangerment with a great bodily injury enhancement (§§ 273a, subd. (a), 12022.7, subd. (a)), and child abduction (§ 278.5). The trial court sentenced him in 2008 to a term of 25 years to life, consecutive to 9 years and 8 months in prison. This court affirmed the judgment in 2014. (People v. Brew (Apr. 23, 2014, H033658) [nonpub. opn.].)
On January 29, 2019, Brew filed a petition for resentencing under former section 1170.95. On June 7, 2019, the superior court denied the petition, finding Brew had not made a prima facie showing that he was entitled to resentencing because the jury at his trial determined that he was the actual killer. Brew appealed that order in case number H047156. On appeal, Brew's counsel filed a brief asking this court to review the appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. The court notified Brew that it would proceed pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) and accepted the declaration Brew filed in support of his request for judicial notice as his supplemental brief. Determining that Brew had not raised any arguable issues, this court dismissed the appeal.
Counsel for Brew filed a petition for review in the Supreme Court on September 30, 2021. On November 12, 2021, the Supreme Court granted review, and deferred further action in the matter pending the disposition in Delgadillo, review granted February 17, 2021, S266305. After deciding Delgadillo, the Supreme Court dismissed review in Brew's case on March 22, 2023, and this court issued the remittitur in case number H047156 the same day. (People v. Brew (Aug. 23, 2021, H047156) [nonpub. opn.], review granted, Nov. 10, 2021, S271139, review dism. Mar. 22, 2023.)
On May 25, 2022, while review was pending at the Supreme Court on his first petition, Brew filed a second petition for resentencing under former section 1170.95 in the trial court. On July 18, 2022, the trial court denied the new petition on the ground that it lacked jurisdiction to consider the second petition while the first petition was still pending review by the Supreme Court. Brew's timely appeal from that order is what we consider here.
After the prosecution filed a response noting that the boxes on the first page of the petition had not been checked, Brew filed a subsequent petition with boxes checked on June 28, 2022.
On appeal, counsel for Brew filed an opening brief pursuant to Serrano. We notified Brew that he could file a supplemental brief on his own behalf, and that failure to do so would result in the dismissal of the appeal as abandoned. (Delgadillo, supra, 14 Cal.5th at p. 232.) Brew filed a timely supplemental brief.
II. Discussion
Brew correctly does not contend that the trial court should have ruled on the merits of his petition while the appeal from the first petition was pending. The adjudication of second petition while the appeal from the first petition was pending would have "interfered with" the appellate process. (People v. Burhop (2021) 65 Cal.App.5th 808, 816.) Instead, in the supplemental brief, Brew argues, inter alia, that the superior court erred in denying his petition, and instead should have stayed or continued the proceedings as to his second petition pending the resolution of the appeal of his first petition. This issue is not arguable on appeal. An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Brew also makes certain contentions regarding appellate counsel's representation. Because those are not issues that can be raised in an appeal from the order denying his resentencing petition, we do not separately address those here.
Under the circumstances, the denial expressly made on purely jurisdictional grounds because a petition for review was pending was indistinguishable from a dismissal or stay. In People v. Cress (2023) 87 Cal.App.5th 421, as modified (Feb. 2, 2023) (Cress), the petitioner filed a second section 1172.6 petition in superior court while the order denying his first petition was pending on appeal. (Cress, at p. 423.) There the superior court dismissed the second petition because the appeal was still pending. (Id. at p. 424.) The Cress court rejected petitioner's argument that the superior court lacked jurisdiction to dismiss the petition, stating that "As long as the effect of the dismissal was indistinguishable from the effect of a denial or a stay, any error was harmless. The dismissal was plainly without prejudice, as the trial court did not intend it to bar further proceedings on the first petition. Accordingly, if, after the first appeal is decided, petitioner still wants to proceed on his second petition, all he has to do is refile it." (Id. at p. 425.)
Here, the trial court denied the petition instead of dismissing it, but the intended effect was the same. Recognizing correctly that it lacked jurisdiction to make an order affecting the judgment while a petition on the same facts was pending on appeal, the trial court disposed of the petition. Whether the disposition was a denial, or a dismissal as in Cress, is without import because the disposition was clearly without prejudice to refiling a petition after the appeal on the first petition concluded. As in Cress, if Brew still wants to proceed with a new petition, he will be free to file it upon issuance of the remittitur in this case. (See Cress, supra, 87 Cal.App.5th at p. 425.)
Because Brew raises no arguable issue in his supplemental brief, we must affirm the order. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. Disposition
The July 18, 2022 order denying the resentencing petition is affirmed, without prejudice to filing a new petition in the trial court.