Filed 9/14/21 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BENNIE BROWN,

Defendant and Appellant.

F078554

(Super. Ct. No. BF168675A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua 

and Michael G. Bush, Judges.

Alex Green, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. 

Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooBennie Brown (defendant) was found guilty of a felony and two misdemeanors for 

attempting to evade pursuing police officers. He was sentenced to five years in prison, 

*Before Levy, Acting P. J., Peña, J. and Meehan, J.
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which included a one-year prior prison term enhancement. Defendant’s court-appointed 

appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 

436 (Wende), i.e., one that asserted no claims but sought an independent examination of 

the record to determine if there are any arguable issues. Counsel specifically asked for a 

review of proceedings concerning a motion made pursuant to Pitchess v. Superior Court

(1974) 11 Cal.3d 531 (Pitchess).

Defendant was advised he could file a separate brief on his own behalf, but he 

made no apparent effort to do so. His appointed counsel later requested and was granted 

permission to file a supplemental brief regarding Senate Bill No. 136 (2019–2020 Reg. 

Sess.) (Senate Bill 136). The People filed a responsive brief conceding that Senate Bill 

136 applies retroactively and, therefore, the prior prison term enhancement should be 

stricken from the judgment.

As a result of our independent review and further confidential proceedings 

conducted by the trial court at our request, it came to light that certain material was 

inadvertently omitted from the original Pitchess proceedings. The trial court has 

formally concluded the omission resulted in a failure to provide discoverable information 

to the defense. The parties were notified of the issue and given the opportunity to submit 

additional briefing, which they have done.

We accept the People’s concession regarding the prior prison term enhancement. 

Due to the Pitchess error, the judgment will be conditionally reversed and the matter 

remanded for further proceedings as required by People v. Gaines (2009) 46 Cal.4th 172 

(Gaines). There are no other arguable issues.

FACTUAL AND PROCEDURAL BACKGROUND

On May 22, 2017, shortly after midnight, Bakersfield police officers in a marked 

patrol car attempted to stop defendant for driving without illuminated headlights. Instead 

of pulling over, defendant performed a series of erratic and dangerous maneuvers, e.g., 

illegal U-turns over raised medians and driving the wrong way against oncoming traffic. 
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He collided with what the record describes as a “water main,” breaking a pipe and 

“causing water to spill out to the street.” After damaging his vehicle to the point of 

inoperability, defendant fled on foot.

Defendant was apprehended in the backyard of a private residence and transported 

to a hospital. Photographs taken at the hospital showed he had sustained facial injuries. 

Two arresting officers admitted to punching defendant in the face, allegedly while he was 

resisting arrest.

Defendant was charged with committing assault with a deadly weapon by use of 

his Honda Civic automobile. (Pen. Code, § 245, subd. (c); count 1). He was alleged to 

have driven toward an oncoming patrol car, maintaining his position and forcing the 

patrol car to swerve to avoid a collision. There were additional charges of felony evading 

(Veh. Code, §§ 2800.1, 2800.2, subd. (a); count 2); felony resisting (Pen. Code, § 69; 

count 3), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 4). 

Defendant was further alleged to have suffered a prior strike conviction (Pen. Code, 

§§ 667, subds. (b)–(j), 1170.12, subds. (a)–(e)) and to have served a prior prison term 

(id., § 667.5, former subd. (b)). The substantive charges were tried before a jury in 

November 2018.

At trial, residents of the home where defendant was arrested testified to having 

seen him surrender with his hands up. According to the testimony, the police were not 

violent during the process of detaining and handcuffing defendant. This implied 

defendant was punched while in custody, and his counsel theorized some allegations 

were fabricated to cover up the illegal use of force. The defense also cast doubt over the 

vehicular assault charge through cross-examination of the prosecution’s witnesses.

During closing argument, the defense attorney conceded defendant’s guilt on the 

less serious charges. Counsel told the jury:

“[A]fter law enforcement activated their lights and sirens, [defendant] 

drove in a manner that was in violation of numerous traffic codes, which 
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would amount to a violation of the felony evading [statute]. [¶] He also 

committed the misdemeanor charged in Count 4, which is hitting-andrunning.... [¶] ... [¶] He was fleeing from police on foot, thereby resisting 

arrest, but it’s the lesser offense, not the greater offense, resisting with 

force. He did not use force after leaving the vehicle, after the evasion was 

complete. [¶] He is not guilty of assault with a deadly weapon, Count 1. 

He is not guilty of resisting with force, Count 3.”

The jury hung on the vehicular assault charge by a vote of eight to four in favor of 

acquittal. A mistrial was declared as to count 1, which was later dismissed at the 

People’s request. Defendant was convicted of felony evading as charged in count 2. On 

count 3, he was acquitted of felony resisting but found guilty of a lesser included 

misdemeanor (Pen. Code, § 148). A guilty verdict was returned on the count 4 

misdemeanor, and the recidivism/enhancement allegations were found true in a 

bifurcated bench trial.

Defendant was sentenced to four years in prison for the felony offense (the middle 

term of two years, doubled because of a prior strike). A defense motion to dismiss the 

prior strike allegation was denied. (See People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 504.) The prior prison term enhancement added a consecutive one-year term 

to the sentence. Concurrent jail terms were imposed for counts 3 and 4.

The trial court imposed a $300 restitution fine as required by Penal Code section 

1202.4, subdivision (b). A separate fine of $300 was imposed but suspended pending 

defendant’s successful completion of parole. (Id., § 1202.45.) Defendant was also 

ordered to pay court operations assessments totaling $120 (id., § 1465.8) and court 

facilities assessments totaling $90 (Gov. Code, § 70373).

The notice of appeal was filed on December 12, 2018. In March 2019, 

defendant’s appellate counsel sought relief in the trial court based on the holding of 

People v. Dueñas (2019) 30 Cal.App.5th 1157. (See Pen. Code, § 1237.2 [procedure for 

correcting errors regarding assessments and fines after notice of appeal has been filed].) 
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In May 2019, the trial court ordered the restitution fine stayed and “waived” all 

previously imposed assessments. Appellate counsel then filed a Wende brief.

The Wende brief included requests for an independent examination of (1) a sealed 

transcript of the hearing on a Pitchess motion and (2) a sealed transcript of a hearing 

“following defense counsel’s concession during closing argument that [defendant] was 

guilty of counts two and four.” Appellate counsel attested to providing the required 

Wende notice to defendant, providing defendant with a copy of the opening brief, and 

informing defendant he had 30 days to submit his own supplemental brief. This court 

provided separate notice to defendant of his right to file a supplemental brief. Defendant 

took no responsive action.

On October 8, 2019, the Governor signed Senate Bill 136. (Stats. 2019, ch. 590, 

§ 1.) Three days later, appellate counsel requested permission to file a supplemental brief 

regarding the new legislation. The request was granted and both sides briefed the issue.

In February 2020, the record on appeal was ordered augmented to include 

transcripts of the hearings cited in the Wende brief and the confidential material at issue 

in the Pitchess motion. While reviewing the augmented record, we found a document in 

the Pitchess material that was not included in the list of items produced by the custodian 

of records. In December 2020, an order was issued directing the superior court to 

“conduct confidential in camera proceedings” and “prepare a confidential settled 

statement identifying as precisely as possible the specific documents/information 

disclosed following the Pitchess hearing on March 21, 2018.” (Boldface omitted.) Our 

main goal was to determine whether the trial court had reviewed the document in 

question during the original Pitchess proceedings.

Earlier this year, at the superior court’s request, the Pitchess material was sent to 

the judge who heard defendant’s motion in 2018. The trial court has since complied with 

our orders and provided a confidential settled statement on the matter. The subject 

document was determined to have been inadvertently omitted from the original Pitchess
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proceedings. The trial court has concluded the document was relevant, and certain 

information therein would have been ordered disclosed but for the omission.1 The 

parties have filed supplemental briefing on the Pitchess issue and agree on the remedy of 

conditional reversal and remand (see post).

DISCUSSION

I. Senate Bill 136

Defendant’s prior prison term enhancement, imposed under a former version of 

Penal Code section 667.5, was based on a term served for unlawful possession of a 

firearm (id., § 25850, subd. (c)(3)). By enactment of Senate Bill 136, effective January 1, 

2020, such enhancements apply only to prison terms served for a sexually violent offense 

within the meaning of Welfare and Institutions Code section 6600, subdivision (b). 

(Stats. 2019, ch. 590, § 1.) Under the current law, defendant’s prior prison term does not 

qualify for the enhancement.

It has uniformly been held, including in cases from this district, that Senate Bill 

136 applies retroactively to nonfinal judgments. (E.g., People v. Winn (2020) 44 

Cal.App.5th 859, 872; People v. Jennings (2019) 42 Cal.App.5th 664, 681–682; People v. 

Lopez (2019) 42 Cal.App.5th 337, 341–342.) Because defendant’s appeal was pending 

when Senate Bill 136 was enacted, the enhancement is invalid.

II. Wende Review

“[T]he constitutional right to assistance of counsel entitles an indigent defendant 

to independent review by the Court of Appeal when counsel is unable to identify any 

arguable issue on appeal. California’s procedure for securing this right requires counsel 

to file a brief summarizing the proceedings and the facts with citations to the record, and 

requires the appellate court to review the entire record to determine whether there is any 

1The record on appeal has been augmented to include the confidential settled statement, 

which remains under seal.
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arguable issue.” (People v. Kelly (2006) 40 Cal.4th 106, 119.) Defendant’s appellate 

counsel has fulfilled his obligations in this regard. We have independently reviewed the 

entire record and conclude no arguable issue exists beyond the Pitchess error, discussed 

further, post.

The concessions made by defendant’s trial attorney during closing argument do 

not give rise to any viable claims. “Recognizing the importance of maintaining 

credibility before the jury,” the California Supreme Court has “repeatedly rejected claims 

that counsel was ineffective in conceding various degrees of guilt.” (People v. Freeman

(1994) 8 Cal.4th 450, 498.) The record shows defense counsel implemented, with 

defendant’s approval, “a calculated strategy to concede the near inevitable outcome on 

certain charges in order to gain credibility with the jury and pursue acquittal on charges 

where the evidence was not as strong.” (People v. Bernal (2019) 42 Cal.App.5th 1160, 

1169.)

III. Pitchess Error

A Pitchess motion involves “screening law enforcement personnel files in camera 

for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc

(2001) 26 Cal.4th 1216, 1225.) If statutory prerequisites are met, “the custodian of 

records should bring to court all documents ‘potentially relevant’ to the defendant’s 

motion.” (Id. at p. 1226.) Following a review of the documents in chambers, and 

“[s]ubject to statutory exceptions and limitations, ... the trial court should then disclose to 

the defendant ‘such information [that] is relevant to the subject matter involved in the 

pending litigation.’” (Ibid.)

Defendant’s Pitchess motion concerned three police officers. Defendant sought to 

obtain, inter alia, “evidence of, or complaints of,” prior aggressive conduct, dishonesty, 

and/or the use of excessive force. The motion was granted in part and denied in part, and 

certain information was disclosed to the defense. However, a document containing 
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relevant and discoverable information was not produced by the custodian of records and, 

consequently, was not reviewed by the trial court at the motion hearing.

A Pitchess error generally requires further proceedings on remand. In some cases, 

“a limited remand for the defendant to establish prejudice is appropriate because the 

reviewing court has already determined the defendant demonstrated ‘good cause’ for the 

discovery requested below—including that the discovery is material to the litigation.” 

(People v. Caro (2019) 7 Cal.5th 463, 487, fn. 4.) “[W]hen a trial court has failed to 

review the Pitchess documents at all, it is appropriate to remand the case to permit the 

trial court to review the requested documents in chambers and to issue a discovery order, 

if warranted.” (Gaines, supra, 46 Cal.4th at p. 181.)

Under Gaines, the proper remedy “is not outright reversal, but a conditional 

reversal with directions to review the requested documents in chambers on remand.” 

(Gaines, supra, 46 Cal.4th at p. 180.) Here, the trial court has already conducted such a 

review and determined the omitted material contained discoverable information. The 

next step is for the trial court to disclose the information, give the defendant the 

opportunity to show prejudice from the earlier omission, and order a new trial if the 

defendant demonstrates a reasonable probability the outcome would have been different 

had the relevant information been timely disclosed. (Id. at pp. 180–181, & fn. 3.) If the 

defendant declines to move for a new trial or fails to show prejudice, the trial court 

should reinstate the judgment and resolve the issue of the prior prison term enhancement. 

(See id. at pp. 182–183; People v. Moreno (2011) 192 Cal.App.4th 692, 703 [“If the 

defendant does demonstrate such a probability, the court must order a new trial; if he 

does not, the judgment shall be reinstated”].)

DISPOSITION

The judgment is conditionally reversed and the matter is remanded to the trial 

court with directions to provide defendant with the discoverable information referenced 

in its confidential settled statement to this court, subject to an appropriate protective
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order. Defendant shall be afforded a reasonable opportunity to determine whether the 

newly disclosed information would have led to any relevant, admissible evidence he 

could have presented at trial. If defendant can show the Pitchess error was prejudicial, 

the trial court must order a new trial. In the event defendant does not seek further relief 

from the Pitchess error or fails to demonstrate prejudice as a result of the error, the 

judgment shall be reinstated.

If the judgment is reinstated, the trial court must vacate the prior prison term 

enhancement, dismiss the enhancement allegation, and resentence defendant accordingly. 

The trial court shall then prepare an amended abstract of judgment and forward a certified 

copy of the same to the California Department of Corrections and Rehabilitation.