Opinion
B301245
10-23-2020
THE PEOPLE, Plaintiff and Respondent, v. HOMER BROWN, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri, Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A020874-01) APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Reversed and remanded. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri, Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.
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Homer Brown (defendant) appeals the trial court's summary denial of his motion for relief under Penal Code section 1170.95. This was error because the record of conviction did not foreclose relief as a matter of law. Accordingly, we reverse and remand.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
We draw these facts from our prior, unpublished appellate opinion affirming defendant's conviction on appeal (People v. Brown (May 16, 1983, CR 42815) [nonpub. opn.]) as well as the probation report. --------
A. The underlying crime
In the early morning hours of December 1, 1979, defendant and another man, Lionel Tate (Tate) walked into a liquor store in Paramount, California, with the intent to rob it; one of them was armed. The store owner fired off three shots before defendant and Tate subdued him and shot him repeatedly in the head. This attempted robbery was part of a larger "crime spree" of robberies.
B. Plea , conviction and appeal
On June 2, 1982 defendant pled guilty to (1) first degree murder (§ 187, subd. (a)), and (2) attempted robbery (§§ 211, 664). Defendant also admitted the special circumstance that the murder "was committed while the defendant" or "an accomplice" "was engaged in . . . the attempted commission of" a robbery (former § 190.2, subd. (a)(17)(D)). The trial court sentenced defendant to life in prison without the possibility of parole. Defendant appealed his conviction and we affirmed in an unpublished opinion.
II. Procedural Background
On January 29, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
On April 2, 2019, the trial court appointed defendant counsel and ordered the prosecution to file a response to the petition. The trial court ordered further briefing.
On August 23, 2019, the trial court summarily denied defendant's petition on two grounds. First, the court concluded that defendant was ineligible for sentencing relief under section 1170.95 because "based upon the preliminary hearing evidence" defendant "was a major participant who acted with reckless disregard for human life." Second, the court concluded that section 1170.95 "unconstitutionally amended Penal Code 190, which was passed by . . . Proposition 7 and may not be amended or repealed unless by a vote of the People."
Defendant timely appealed this denial.
DISCUSSION
Defendant argues that the trial court erred in summarily denying his section 1170.95 petition because both of the court's reasons for denying relief are incorrect. We can easily dispense with the trial court's second reason for summarily denying relief because the People concede, and we agree, that the trial court erred in declaring section 1170.95 unconstitutional. (E.g., People v. Lopez (2020) 51 Cal.App.5th 589, 594, 600-602 [section 1170.95 does not impermissibly amend Propositions 7 or 115]; People v. Johns (2020) 50 Cal.App.5th 46, 66-69 [section 1170.95 does not violate Marsy's Law or the separation of powers].) Because the trial court's remaining reason for summarily denying relief turns on questions of statutory construction and the application of law to undisputed facts, our review of that reason is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled to the appointment of counsel, the opportunity for further briefing and a hearing if, in his petition, he "makes a prima facie showing that he . . . is entitled to relief" under that section. (§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief under section 1170.95 if, as relevant here, (1) "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine," (2) he "was convicted of first degree murder," and (3) he "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).) A person may be convicted of murder, even after the 2019 changes made to sections 188 and 189, if he (1) "was the actual killer," (2) aided and abetted the actual killer with the intent to kill, or (3) "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e).) A "'prima facie showing is one that is sufficient to support the position of the party in question.'" (Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
On the facts of this case, and as the People concede, defendant has made the requisite prima facie showing for relief because his petition alleges that he was charged with murder under a felony-murder theory, was convicted of first degree murder, and "could not now be convicted of first or second degree murder."
To be sure, a trial court evaluating whether a defendant has made a prima facie showing in a section 1170.95 petition is not required to accept the petition's allegations at face value and may also examine the record of conviction—which includes the transcript from the preliminary hearing as well as any prior appellate decisions. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12, 2020, S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 968 (Drayton); People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020, S262481; People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011 (Torres); see also People v. Woodell (1998) 17 Cal.4th 448, 451 ["the record of conviction" includes "the appellate court record, including the appellate opinion"]; People v. Reed (1996) 13 Cal.4th 217, 223 ["record of conviction" includes "the preliminary hearing transcript"].) But the contents of the record of conviction defeat a defendant's prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138, italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p. 968; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [record must show defendant is "indisputably ineligible for relief"].)
Here, the record of conviction does not establish, as a matter of law, that defendant is not eligible for relief. The trial court found that defendant was ineligible for relief because, "the preliminary hearing" transcript showed he was "a major participant who acted with reckless disregard for human life." (§ 189, subd. (e)(3).) But this finding was based on the trial court's own review of that transcript. Although that evidence may well support the trial court's finding, it does not compel that finding as a matter of law. (Drayton, supra, 47 Cal.App.5th at p. 982 [trial court erred in summarily denying relief based on its own review of preliminary hearing transcript].) Nor does the observation in the footnote of our prior opinion that the "evidence at the preliminary hearing established that [defendant] was a 'shooter'" (italics added) compel a finding that defendant was the "actual killer" as a matter of law because (1) that observation was dicta unnecessary to the resolution of the instructional issue presented, and (2) being a shooter is not conclusive evidence of being the actual killer where multiple individuals, potentially with multiple firearms, are involved. And defendant's admission during the 1982 plea colloquy that the murder was committed during the commission of a robbery did not, except between 1983 and 1987, necessarily encompass an admission to acting with an intent to kill. (People v. Bolden (2002) 29 Cal.4th 515, 560 [so holding]; People v. Kelly (1985) 163 Cal.App.3d 619, 621 [prior to 1983, this enhancement did not require proof of an intent to kill].)
Because defendant has made a prima facie showing that he is entitled to relief under section 1170.95 and because the record of conviction does not otherwise compel a finding that defendant is ineligible for relief as a matter of law, the trial court's summary denial of his petition was erroneous.
DISPOSITION
The order is reversed and the matter remanded for further proceedings in accordance with the terms of section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ