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The People v. Brown

California Court of Appeals, First District, Fourth Division
Aug 30, 2023
No. A166962 (Cal. Ct. App. Aug. 30, 2023)

Opinion

A166962

08-30-2023

THE PEOPLE, Plaintiff and Respondent, v. CRAIG BROWN, Defendant and Appellant.


NOT TO BE PUBLISHED

Contra Costa County Super. Ct. Case No. 05001707173

MEMORANDUM OPINION

We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)

BROWN, P. J.

In 2018, pursuant to a plea bargain, Craig Brown pleaded no contest to one count of attempted murder (Pen. Code, §§ 664 /187) and two counts of assault with a semi-automatic weapon (§ 245, subd. (b)). He also admitted the truth of a gang enhancement (§ 186.22, subd. (b)(1)(C)) for all three counts and a personal use of a firearm enhancement (§ 12022.5, subd. (a)) for the two counts of assault. The trial court sentenced Brown to 17 years in state prison.

All further undesignated statutory citations are to the Penal Code.

In 2022, Brown filed a petition for resentencing pursuant to section 1172.6 and Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court issued an order to show cause and held an evidentiary hearing to determine whether Brown's attempted murder conviction could stand under recent amendments to sections 188 and 189.

Brown filed a petition on March 28, 2022 under section 1170.95, which was amended and renumbered as section 1172.6 without any substantive changes, effective June 30, 2022. (People v. Delgadillo (2022) 14 Cal.5th 216, 223 & fn. 3 (Delgadillo).)

After Brown and the prosecution presented arguments, the trial court ruled that Brown was ineligible for resentencing because the court "had no problem finding that Mr. Brown was the actual shooter" and that he intended to kill. The court based its ruling on the amended information, abstract of judgment, and the preliminary hearing record. The court stated that multiple eyewitnesses identified Brown as the shooter and the video presented by the prosecutor likewise established that Brown was the shooter. The court further stated that the number of bullets Brown fired was sufficient to support the prosecution's theory that Brown intended to kill. The trial court therefore concluded that "this was not a natural and probable consequences attempted murder," rendering Brown statutorily ineligible for resentencing under section 1172.6.

Brown stipulated to the admissibility of the "vast majority" of the preliminary hearing transcript, excepting certain testimony not relevant to the trial court's determination.

Brown appealed that ruling, and his counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. Brown subsequently filed a supplemental brief urging us to consider his appeal, and we write to respond to that brief.

Brown contends that section 654 prohibited the trial court from applying both the gang and personal use of a firearm enhancements to his two convictions for assault with a semiautomatic weapon, as the actions underlying those enhancements occurred in the commission of a single offense, although he recognizes that the sentencing judge ran those enhancements concurrently to the 10-year gang enhancement associated with the attempted murder count. He further urges us to consider the "current legislative environment," and his "history of positive programming and steps toward rehabilitation." In addition, citing sections 1385 and 12022.5, subdivision (c)-both of which were in existence at the time of his April 2018 sentencing- Brown asks us to remand to the trial court "with instructions to exercise all available discretion that comports to [sic] the current legislative intent, interests of justice, and fundamental fairness."

Brown's argument in his supplemental brief, however, has no bearing on the trial court's denial of his section 1172.6 petition on the basis that he was the actual shooter who intended to kill. Moreover, Brown should have raised on direct appeal any argument regarding errors in his plea-bargained sentence. (Cf. In re Sakarias (2005) 35 Cal.4th 140, 169 [unjustified failure to present issues which should have been raised on appeal are not considered on habeas review].) We thus decline to address Brown's argument regarding alleged errors in the sentence imposed in 2018.

Pursuant to Delgadillo, we have exercised our discretion to conduct an independent review of the record in the interest of justice. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.) After completing such a review, we are satisfied that the trial court appropriately denied Brown's request to be resentenced, and that Brown's attorney has fully complied with the responsibilities of counsel. We agree that no arguable issues exist.

DISPOSITION

The trial court's ruling denying a section 1172.6 petition for resentencing is affirmed.

WE CONCUR: STREETER, J. GOLDMAN, J.


Summaries of

The People v. Brown

California Court of Appeals, First District, Fourth Division
Aug 30, 2023
No. A166962 (Cal. Ct. App. Aug. 30, 2023)
Case details for

The People v. Brown

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CRAIG BROWN, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Aug 30, 2023

Citations

No. A166962 (Cal. Ct. App. Aug. 30, 2023)