Filed 6/24/21 P. v. Brown CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

BYRON BROWN,

Defendant and Appellant.

B300869

Los Angeles County

Super. Ct. No. BA354613

APPEAL from an order of the Superior Court of Los

Angeles County, Kristi Lousteau, Commissioner. Affirmed.

Lori A. Quick, 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, William H. Shin and Roberta L. Davis, Deputy 

Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION

In 2009, defendant Byron Brown pled no contest to various 

crimes related to stealing confidential employee information he 

had access to as an employee at Fox Filming Entertainment 

(Fox); he was given probation. In 2018, he moved to vacate his 

plea based on newly-discovered evidence establishing actual 

innocence. He claimed that a thumb drive described in his plea 

agreement was not on the Los Angeles Sheriff’s Department’s 

(LASD) receipt of items seized in the search of his home. 

Therefore, he posits, there is no evidence the thumb drive exists, 

and without it, there’s no evidence of his guilt. The court denied 

the motion, and defendant appeals. We affirm.

BACKGROUND

1. The Underlying Offenses

Defendant is a disgruntled former Fox human resources 

employee. His conduct was described in a fully-executed eightpage “Disposition Agreement”:

“Lynn Franzoi, Vice President of Fox Human Resources, 

was a victim of a harassing fax and at least one harassing email 

sent by Mr. Brown. The fax was sent by Mr. Brown on 

January 23, 2009 (hereinafter ‘the fax’). Mr. Brown sent the fax 

from the [FedEx]/Kinko’s location at 12101 Ventura Blvd., Studio 

City, California. Law [e]nforcement traced the sending location 

from the phone number printed on top.

“On January 29, 2009 and January 30, 2009, one email 

each day was sent to Franzoi and [Fox] executives from 

lynn[email address]. One email contained Franzoi’s true Social 

Security number and each email contained inappropriate, 
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embarrassing comments and a fictitious request for Franzoi’s 

resignation.

“Defendant was identified in [FedEx] Kinko’s surveillance 

video from January 23, 2009 and January 30, 2009 as being at 

the Studio City location when the fax and email, respectively, 

were sent. The January 29th and 30th emails were traced back 

[through] embedded Internet Protocol addresses in the email 

‘headers’ to a [FedEx] Kinko’s computer.

“A series of other emails were sent in March 2009. These 

emails were directed at various Fox executives, including Fox 

Human Resources Department executives who had worked with 

[d]efendant. Some of these emails were sent to Fox executives 

and others were sent to purported employees of the Los Angeles 

Times newspaper.

“Maria Gray, the Director of Benefits Systems for Fox, was 

a victim on March 20, 2009. Two phony emails were sent from 

Maria.gray[email address]. One was sent at 8:02 a.m. to Greg 

Gelfan, Executive Vice President of [Fox] at Greg[email address], 

et al., and another at 7:32 a.m. to Irene Truong, Senior Financial 

Analyst at Irene[email address], et al. Each email appeared to be 

written and sent by Maria Gray. Other emails, defamatory in 

nature and containing social security numbers with the last digit 

deleted, were sent to Pam Saraceno, Fox Vice President of 

Payroll, and Jim Gianopoulos, Chairman of Fox. Nine [Fox] 

executives and employees received harassing emails and nine 

victims were targeted in the emails.

“On March 26th, a warrant was served at the defendant’s 

home. A computer, a thumb drive and several CD-ROMs of data 

were recovered. The thumb drive and two CD-ROM[s] each 

contained separate downloads from Fox’s PeopleSoft database. 
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One CD contained several thousand individual names, home 

addresses, social security numbers and other personal identifying 

information. The other CD contained several thousand 

individuals’ names and personal information. The home computer 

contained personal identifying information and privileged 

material of Fox and Fox employees. That information included 

social security numbers of the several victims named above, as 

well as Social Security numbers and other confidential 

information of other Fox executives, entertainment and news 

personnel.”

2. Procedural History

A felony complaint filed March 30, 2009, alleged theft of 

Franzoi’s personal information between January 22 and 30, 2009 

(Pen. Code,1 § 530.5, subd. (a); count 1); false impersonation of 

Gray on or about March 20, 2009 (§ 529; count 2); theft of 

personal identifying information of 10 or more people on or about 

March 26, 2009 (§ 530.5, subd. (c)(3); count 3); four counts of 

felony unlawful computer access and copying (§ 502, subd. (c)(2); 

counts 4–7); and making annoying telephone calls to Franzoi, a 

misdemeanor (§ 653m, subd. (b); count 8).

On July 27, 2009, pursuant to the Disposition Agreement, 

defendant pled no contest to counts 1, 3, and 4. The following day, 

the court suspended imposition of sentence and placed defendant 

on formal felony probation for five years. Among other conditions 

of probation—which were extensive—defendant was required to 

serve 182 days in local custody, with credit for time served, and 

pay $88,007.77 in restitution. The court dismissed the remaining 

1 All undesignated statutory references are to the Penal Code.
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counts and allegations contingent upon the “continuing validity of 

the plea agreement.”

Almost seven years later, on July 18, 2016, defendant filed 

a petition for a writ of error coram nobis. The trial court denied 

the petition, and defendant appealed. On September 26, 2017, a 

different panel of this court affirmed the order by unpublished 

opinion. (People v. Brown (Sept. 26, 2017, B278430) [nonpub. 

opn.].)

On December 28, 2018, defendant filed a motion to vacate 

the judgment under section 1473.7, alleging actual innocence 

based on newly-discovered evidence. The trial court ordered the 

prosecution to file an informal response to the contention that 

information contained in the Yahoo IP Report and LASD Receipt 

for Seized Property would have changed the outcome of the 

agreement and established actual innocence. The parties waived 

a formal hearing on the petition, and after an informal response 

from the prosecution and a reply from defendant, the court 

denied the motion by written order on August 6, 2019. The court 

held that defendant could not challenge the terms that he agreed 

to in the Disposition Agreement, and, in any event, he failed to 

present credible proof that the new evidence would change the 

outcome of his case and lead to a determination of factual 

innocence. 

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that the LASD receipt listing the 

evidence taken from his apartment does not include the thumb 

drive cited as the source of personally-identifying information 

used as the evidence of his guilt. Because there is no evidence the 
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thumb drive exists, he argues, there is no evidence to support his 

convictions. We disagree.2

1. Legal Principles and Standard of Review

Section 1473.7, subdivision (a)(2), which became effective 

January 1, 2017, allows a person who is no longer in custody to 

file a motion to vacate his or her conviction or sentence where 

“[n]ewly discovered evidence of actual innocence exists that

requires vacation of the conviction or sentence as a matter of law 

or in the interests of justice.” The motion must be “filed without 

undue delay from the date the moving party discovered, or could 

have discovered with the exercise of due diligence, the evidence 

that provides a basis for relief under this section[.]” (§ 1473.7, 

subd. (c).) 

The moving party has the burden of proving by a 

preponderance of the evidence that the newly discovered evidence 

of actual innocence requires vacation of the conviction. (§ 1473.7, 

subd. (e)(1).) A fact is proved by a preponderance of the evidence 

if it is more likely than not that the fact is true. (People v. 

Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, 

fn. 28.)

The appellate courts are split on the proper standard of 

review in appeals from a trial court’s grant or denial of a 

2 The People argue the motion is untimely because it was filed over a 

year after the opinion in defendant’s most recent appeal became final

and two years after the amendment to section 1473.7 went into effect;

the filing is almost the same as the coram nobis petition; and 

defendant had all the information he included in the subsequent 

motion. They also argue the claims are procedurally barred for various 

other reasons. We express no opinion on these subjects and exercise 

our discretion to reach the merits of defendant’s claim.
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section 1473.7 motion since the statute was amended in 2018. 

(Compare People v. Perez (2020) 47 Cal.App.5th 994, 997 [abuse 

of discretion] with People v. DeJesus (2019) 37 Cal.App.5th 1124, 

1132 [independent review].) Further, the question appears to be 

pending in the California Supreme Court. (People v. Vivar (2019) 

43 Cal.App.5th 216, 225, 228–229, review granted Mar. 25, 2020, 

S260270.) But regardless of which standard of review applies, we 

reject defendant’s contentions.

2. Defendant did not establish his innocence by a 

preponderance of the evidence.

Defendant’s claim of innocence is based on the premise that 

a thumb drive purportedly seized from his apartment doesn’t 

appear on the LASD Report for Seized Property. As such, the 

thumb drive does not exist. And, because the drive contained the 

evidence against him, without it, there is no evidence to establish 

his guilt.

As the People note, authorities may well have recovered a 

thumb drive: Duane Decker’s March 27, 2009 Supplemental 

Report explained that the thumb drive was located in an

envelope described in the LASD receipt as evidence item 

number 7. Even without the thumb drive, however, there was 

plenty of evidence that defendant committed the acts in the 

counts to which he pled.3

3 Below, defendant also argued that a newly-discovered Yahoo IP 

report demonstrated that he did not send the threatening emails from 

FedEx Kinko’s as stated in the Disposition Agreement. On appeal, 

defendant does not sufficiently develop and support this assertion to 

demonstrate his innocence of the charges. Therefore, we do not discuss 

it.
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As outlined above, the charges were based on the IP 

address related to the emails, the related fax, the surveillance 

video from FedEx Kinko’s, defendant’s prior access to Fox 

employees’ personal identifying information, defendant’s anger at 

having been fired, and defendant’s possession of personal 

identifying information of Franzoi and thousands of other Fox 

employees on his personal computer and two CD-ROMs. Indeed, 

defendant does not contest the existence of the CD-ROMs and 

computer recovered from his home—and the Disposition 

Agreement established that they also contained the personal 

identifying information of Franzoi and other Fox employees.

Although defendant argues that the Disposition Agreement 

does not specify that Franzoi’s information was found anywhere 

other than the thumb drive, we agree with the People’s 

interpretation of the Agreement. The Disposition Agreement 

states: “A computer, thumb drive and several CD-ROMs of data 

were recovered [from defendant’s home]. The thumb drive and 

two CD-ROM[s] each contained separate downloads from Fox’s 

PeopleSoft database. One CD contained several thousand 

individual names, home addresses, social security numbers and 

other personal identifying information. The other CD contained 

several thousand individuals’ names and personal information. 

The home computer contained personal identifying information 

and privileged material of Fox and Fox employees. That 

information”—namely, information from the home computer—

“included social security numbers of the several victims named 

above, as well as Social Security numbers and other confidential 

information of other Fox executives, entertainment and news 

personnel.” (Italics added.) Franzoi, the victim in count 1, was 

named as a victim on the previous page of the Agreement.
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Defendant also argues there is no evidence that the 

spreadsheet identified in count 4 (named “FES - #299796-V1-TVSTATION-ADDRESS”) was contained anywhere other than the 

thumb drive, and without the thumb drive there is no evidence of 

his guilt. But the document found on the thumb drive was called 

“Copy of Copy of FES - #299796-V1-TV-STATION-ADDRESS”. 

Given that the spreadsheet containing Franzoi’s personal 

information also appeared on defendant’s personal computer, it is 

reasonable to infer that defendant copied the other spreadsheets 

to his computer as well. In any event, without presenting any 

information about what information was contained on his 

computer or the CD-ROMs retrieved from his residence, 

defendant cannot establish his innocence by a preponderance of 

the evidence.

We cannot conclude, therefore, that the LASD receipt 

established defendant’s innocence such that vacation of his 

convictions is required as a matter of law or in the interests of 

justice. (§ 1473.7, subd. (a)(2).) 
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DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

THOMAS, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.