Filed 6/6/22 P. v. Brown CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CHARLES STEVEN BROWN,

 Defendant and Appellant.

2d Crim. No. B313400

(Super. Ct. No. A018846)

(Los Angeles County)

Charles Steven Brown appeals from a postjudgment order

denying his petition for resentencing on his 1978 murder 

conviction under Penal Code section 1170.95.1 Appellant

contends, and the People concede, that the trial court erred in 

1 All statutory references are to the Penal Code. References 

to section 1170.95 are to the version in effect when the trial court 

ruled on the petition. (Stats. 2018, ch. 1015, § 4.) The statute 

was further amended effective January 1, 2022 pursuant to 

Senate Bill No. 775 (2021-2022 Reg. Sess.), but those 

amendments are not relevant to the issues raised in this appeal.
2

summarily denying his petition instead of issuing an order to 

show cause and holding an evidentiary hearing. The People 

concede the issue. We agree and accordingly reverse.

FACTUAL AND PROCEDURAL HISTORY

In 1978, appellant and codefendant Michael Paul Brown2

were charged in a felony complaint with the first degree murder 

of Katsumi Shigematsu (§§ 187, 189; count 1), robbery (§ 211; 

count 2), and burglary (§ 459; count 3). The murder count alleged 

that appellant (who was 17 years old) and Michael (who was 16) 

killed the victim “with malice aforethought” and included a

special circumstance allegation under former subdivision (c)(3)(v) 

of section 190.2 that appellant “was personally present during 

the act or acts causing death and with intent to cause death 

physically aided or committed such act or acts causing death 

during the commission or attempted commission of a burglary in 

that [appellant] entered an inhabited dwelling house with the 

intent to commit grand larceny therein in violation of Section 459 

of the Penal Code.” It was further alleged as to all three counts

that in committing the offenses Michael personally used a deadly 

weapon, i.e., a knife (§ 12022, subd. (b)). 

On June 8, 1978, appellant pleaded guilty to first degree 

murder and the special circumstance allegation and remaining 

counts were dismissed. The trial court sentenced him to life in 

state prison. 

In September 2019, appellant petitioned for resentencing 

under section 1170.95. Appellant requested the appointment of 

counsel and alleged (1) that a complaint, information or 

indictment was filed against him that allowed the prosecution to 

2 We refer to Michael Paul Brown by his first name to avoid 

confusion. 
3

proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine; (2) that he pleaded 

guilty to murder in lieu of going to trial because he believed he 

could have been convicted at trial of felony murder or murder 

under the natural and probable consequences doctrine; and (3)

that he could not now be convicted of murder because the changes 

to sections 188 and 189 that went into effect on January 1, 2019. 

The court appointed counsel and ordered the prosecution to file a 

response to the petition. 

In its response, the prosecution asserted that appellant’s 

petition for resentencing should be summarily denied because the

record of his conviction precluded him from establishing a prima 

facie case for relief as a matter of law. The prosecution offered 

the complaint, the abstract of judgment, the reporter’s transcript 

of appellant’s change of plea hearing, the victim’s autopsy report, 

and the post-plea probation report. 

The factual summary contained in the probation report, 

which is based on “information contained in the District 

Attorney’s file,” states: “Several days before March 18, 1978, 

[appellant and Michael] planned to enter the victim’s apartment 

and steal money from her. Rumors in the apartment building led 

[appellant and Michael] to believe that the victim had a 

substantial amount of cash in her apartment. On March 18, 

1978, [appellant and Michael] went to [the victim’s apartment] 

for the purpose of stealing money from [her]. The victim had 

been friendly to [Michael] and had given him large sums of 

money in the past. She was a 60-year-old paraplegic confined to 

a wheelchair. The victim allowed [appellant and Michael] into 

her apartment and the three of them began working on a jigsaw 

puzzle. [Michael] was armed with a hunting knife. He excuses
4

himself to go to the bathroom and when he returns [he] suddenly 

stabs the victim in the back twice. [Appellant and Michael] 

demand money from the victim and when she refused [Michael] 

stabs her repeatedly in the chest area while [appellant] held her 

from the rear. During this time [appellant] took a 16-ounce 

empty Pepsi-Cola bottle and struck the victim over the head. 

After the attack [appellant and Michael] wheeled the victim into 

the bedroom and ransacked the apartment finding between 

$110.00 and $150.00. They then leave the apartment with the 

radio playing on a rock station. They go to a nearby park and 

bury the knife and leave a few days later by bus to Texas.” 

The probation report goes on to state that appellant and 

Michael were subsequently arrested and “investigators . . . 

obtained confessions from both [of them].” Although appellant 

did not submit a written statement, he “[o]rally . . . indicates that 

[Michael] had the knife and did all of the stabbing. He admits 

striking the victim over the head with a Pepsi bottle. He states 

he does not like to remember the offense and does not know how 

it began. He states that he and [Michael] took $110.00 from the 

victim. He indicates ‘it was stupid.’ [Appellant] indicates that he 

did not try to stop [Michael] from stabbing the victim and that 

[Michael] appeared to go crazy.” 

At the change of plea hearing, the prosecutor told appellant 

and Michael “[e]ach counsel has stated that you wish to plead

guilty to . . . [the murder charged in] Count 1 and that the special 

allegations either remain denied or that there will be no proof 

against them.” The prosecutor asked appellant, “[i]s that what 

you want to do” and appellant replied, “Yes, sir.” The prosecutor 

subsequently stated: “Now, Count 1 involves entering the 

residence of Katsumi Shigematsu with the intent to rob her and 
5

this occurred on March 18th, 1978, and she was there killed by 

each of you and together with a knife and a bottle.” The 

prosecutor then asked appellant if he had “discussed the facts of 

this case with [his] attorney,” whether there was “anything 

further [he] wish[ed] to discuss with [his attorney] as to the facts 

of the case,” and whether he “underst[ood] what the allegation is 

and what the facts alleged are.” Appellant replied “[y]es, sir” to 

the first and last questions, and “[n]o, sir” to the second. 

The prosecutor continued: “[A]s to Count 1 that you did on 

or about the 18th day of March, 1978 . . . commit the crime of 

murder in violation of section 187 of the Penal Code, a felony, by 

yourself with malice aforethought murder one Katsumi 

Shigematsu . . . in the first degree and that you entered the 

residence in the course of a burglary with the intent to commit a 

robbery, how do you plead?” Appellant replied, “Guilty.” The 

prosecutor then reiterated that “the People are not offering any 

proof on the special allegations except as to [Michael] as to the 

weapon.” Michael subsequently pleaded guilty to count 1 and 

admitted the weapon use allegation. 

At the prima facie hearing on appellant’s section 1170.95 

petition, the trial court indicated it would not consider the 

probation report and would base its decision “solely upon the 

official record of the trial [sic], specifically the complaint, the 

information, the preliminary hearing transcript, the plea which is 

very significant, the plea transcript, and the abstract of 

judgment.” The court indicated it would not rely on any 
6

information in the probation report or police reports and the 

prosecutor responded that she was “fine” with this approach.3 

In summarily denying the petition, the court found that in 

his plea colloquy appellant “clearly admitted that he participated 

in the assault which killed the victim in this case. And the plea 

document goes on. And the court believes that his [sic] personal 

admission on the record in conjunction with the other facts which

were admitted in that colloquy in addition to the plea to the 

187(a) and admission of personal use makes him ineligible for 

relief as sought. In the preliminary hearing transcript [sic] the 

evidence is that [appellant] personally at least held the victim 

and more likely beat the victim during the time the victim was 

killed. This was not a person who was standing outside while the 

co-defendant went inside to commit the robbery and then the codefendant killed the victim and [appellant] was not personally 

present. [Appellant] was not only personally present, he was an 

active participant. [Appellant] possessed implied malice and 

implied intent to kill, actual malice and implied into to kill in his 

actions that day. And for this reason the court finds he is 

ineligible for relief sought under [section] 1170.95.” 

DISCUSSION

Appellant contends the trial court erred in summarily 

denying his section 1170.95 petition instead of issuing an order to 

show cause and holding an evidentiary hearing. The People 

correctly concede the issue.

3 As the People note, the court misspoke by referencing the 

preliminary hearing transcript because there is no such 

transcript. In light of the court’s subsequent remarks, it is also 

clear that the court relied on information in the probation report

notwithstanding its indication that it would not do so. 
7

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became 

effective on January 1, 2019, was enacted “to amend the felony 

murder rule and the natural and probable consequences doctrine, 

as it relates to murder, to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with 

the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 

also added section 1170.95, which allows those “convicted of 

felony murder or murder under the natural and probable 

consequences doctrine . . . [to] file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder . . . 

conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply: [¶] (1) A 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder [or] murder under the natural and probable 

consequences doctrine . . . . [¶] (2) The petitioner was convicted 

of murder . . . following a trial or accepted a plea offer in lieu of a 

trial at which the petitioner could have been convicted of murder 

. . . . [¶] (3) The petitioner could not presently be convicted of 

murder . . . because of changes to [s]ection 188 or 189 made 

effective January 1, 2019.” (§ 1170.95, subd. (a).)

Section 1170.95 includes a prima facie determination. 

Under subdivision (c), the trial court must receive briefing from 

the parties and “determine whether the petitioner has made a 

prima facie case for relief. If the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall 

issue an order to show cause.” (§ 1170.95, subd. (c).) The court is

not limited to the allegations of the petition and may “rely on the 
8

record of conviction in determining whether that single prima 

facie showing is made.” (People v. Lewis (2021) 11 Cal.5th 952, 

970 (Lewis).) If the record of conviction establishes the petition 

lacks merit as a matter of law, the trial court may deny the 

petition without conducting further proceedings. (Id. at p. 971 

[“The record of conviction will necessarily inform the trial court’s 

prima facie inquiry under section 1170.95, allowing the court to 

distinguish petitions with potential merit from those that are 

clearly meritless”].)

“While the trial court may look at the record of conviction 

after the appointment of counsel to determine whether a 

petitioner has made a prima facie case for section 1170.95 relief, 

the prima facie inquiry under subdivision (c) is limited. Like the 

analogous prima facie inquiry in habeas corpus proceedings, ‘“the 

court takes petitioner’s factual allegations as true and makes a 

preliminary assessment regarding whether the petitioner would 

be entitled to relief if his or her factual allegations were proved. 

If so, the court must issue an order to show cause.”’ [Citation.] 

‘[A] court should not reject the petitioner’s factual allegations on 

credibility grounds without first conducting an evidentiary 

hearing.’ [Citation.] ‘However, if the record, including the court’s 

own documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.”’” (Lewis, supra, 11 

Cal.5th at p. 971.) “In reviewing any part of the record of 

conviction at this preliminary juncture, a trial court should not 

engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ [Citation.] . . . [T]he ‘prima facie bar was 

intentionally and correctly set very low.’” (Id. at p. 972.)
9

Here, the trial court denied the petition before issuing an 

order to show cause even though there were no readily 

ascertainable facts establishing appellant was ineligible for 

resentencing as a matter of law. Appellant pleaded guilty to 

murder with no other charges or enhancements that necessarily 

establish he was the actual killer, acted with the intent to kill, or 

was a major participant who acted with reckless indifference to 

human life. Contrary to the trial court’s assertion, appellant did 

not admit or otherwise stipulate to any factual basis for his plea. 

Accordingly, his guilty plea to murder does not preclude him from 

establishing a prima facie case for relief under section 1170.95. 

(See, e.g, People v. Davenport (2021) 71 Cal.App.5th 476, 481-484; 

People v. Eynon (2021) 68 Cal.App.5th 967, 975-979.) When 

appellant entered his plea, the law permitted him to be convicted 

of murder under a felony murder theory “without being the 

actual killer, acting with intent to kill, or being a major 

participant in the underlying felony who acted with reckless 

indifference to human life.” (Eynon, at pp. 975-979.) Thus, his 

admission to the alleged conduct did not necessarily include “any 

factual admissions that refute his allegation that he is eligible for 

relief under section 1170.95.” (Id. at p. 979.)

Moreover, even assuming that the court could properly 

consider the probation report at the prima facie stage, the 

statements within that document were only evidence of 

appellant’s actions and were not conclusive as a matter of law. 

As Lewis makes clear, the trial court could not rely on this 

evidence at the prima facie stage to find that appellant acted 

with an intent to kill and was thus ineligible for resentencing 

under section 1170.95. (Lewis, supra, 11 Cal.5th at p. 979.) The 

court’s conclusion is also based on the erroneous premise that 
10

appellant admitted the personal weapon use allegation rather 

than his codefendant Michael, who was the actual killer.

Construing the allegations of the petition in appellant’s 

favor—as section 1170.95 requires—the petition fulfilled the 

prima facie requirements for relief. Accordingly, the trial court 

should have issued an order to show cause and held an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) We 

will reverse the trial court’s order denying the petition and 

remand with directions to issue an order to show cause under 

amended section 1170.95, subdivision (c), and hold a hearing 

under amended section 1170.95, subdivision (d). We express no 

opinion about whether appellant is entitled to relief following the 

hearing.

DISPOSITION

The order summarily denying appellant’s section 1170.95 

petition is reversed. On remand, the trial court shall issue an 

order to show cause and proceed with an evidentiary hearing 

pursuant to section 1170.95, subdivision (d).

NOT TO BE PUBLISHED.

PERREN, J.

We concur

GILBERT, P.J.

TANGEMAN, J.
11

Ricardo M. Goul, Judge

Superior Court County of Los Angeles

______________________________

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pitney, Senior 

Assistant Attorney General, Amanda V. Lopez, Kathy S. 

Pomerantz, Deputy Attorneys General, for Plaintiff and 

Respondent.