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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. B 3 13400 (Super. Ct. No. A018846 ) ( Los Angeles County)

Charles Steven Brown appeals from a postjudgment order
d enying h is petition for resentencing on his 1978 murder
conviction under Penal Code section 1170.95. 1 Appellan t contends , and the People concede, that the trial court err ed 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 Jan uary 1, 2022 pursuant to Se nate Bill No. 775 (2021

- 2022 Reg. Sess.) , but those amendme nt s are not relevant to the issues raised in this appeal.2

summarily denying his petit i on instead of issuing an order to show cause and holding an evidentiary hearing. The People
concede the issue. We a gree and according ly reve rse.

FACTUAL AND PROCEDURAL HISTORY
In 1978
, appellant and codefendant Michael Paul Brown 2

were charged in a felony complaint with the first degree murder
of Ka tsumi Shige matsu (§§ 187, 189 ; count 1 )

, robbery (§ 211 ; count 2 ) , and burglary (§ 45 9 ; count 3 )

. The murder coun t 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 ac ts causing death and with intent to cause death physically aided or committed such act or a cts 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 Sectio n 459 of the Penal Code.” It was further alleged as to all three counts
that i n committing the offenses Michael personally used a deadly weapon, i.e.

, a knife ( § 12022, subd. (b)). On June 8, 1978, appellant plead ed guilty to first degree
murd er 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 r esentencing
under section 1170.95. Appellant requested the appointment of
counsel and alleged (1) that a comp laint, 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 pro bable consequences doctrine ; (2) that he pleaded guilty to murder in li eu 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 t o the petition. In its response, the prosecution asserted that appellant’s petition for resentencing should be summarily denied because t he record of his conviction precluded him from establishing a prima facie case for relief as a matter of law

. T he prosecution offered the complain t, the abstract of judgment

, t he reporter’s transcript of appellant’s change of plea hearing, the victim’s autopsy report,
and the post

- plea probation report.
T he factual summary contained in the probation repor t
, which is based on “i nformation 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
substan tial 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 the m began working on a jigsaw puzzle. [ Michael ] was armed with a hunting knife. He excuse s4

himself to go to the bathroom and when he return s [he] suddenly
stab s 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 f ew days later by bus to Texas.” The probation report goes on to state that a ppellant and
Michael were subsequently arrested and “investigators . . .
obtained co nfessions 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
striki ng 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 h e did not try to stop [ Michael ] from stabbing the victim and that [ Michael ] appeared to go crazy.” At the change of plea hear i ng, the prosecutor told appellant
and Michael “[e]ach counsel has stated that you wish to plea d guilty to . . . [the murder charged in] Count 1 and that the s pecial allegations either remain denied or that there will be no proof against them. ” T he 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 and5

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 h e “under st[ood] what the allegation is

an d what the facts alleged are.” Appellant replied “[y]es, sir” to the first and last questions, and “[n]o, sir” to the second. The prose cu t or continued: “ [A]s to Count 1 that you did on
or about the 18th day of March, 197 8 . . . 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

. . . i n the first degree and that you entered the
residence in t he course of a burglary with the intent to commi t a robbery, how do you plead?” Appellant replied, “G uilty .” Th e 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 plead ed g uilty to count 1 and
admi tted 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 any6

information in the probation report or police reports and the prosecutor r esponded that she was “fine” with this approach. 3
In summarily denying the petit ion, the cour t 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 be a t the victim during t he 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 co

defendant killed the victim and [appellant ] was not personally present. [Appellant] was not only personally present, he was an active participant. [Appellant] possessed implied mali ce 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 summa rily denying his section 1170.95 petition instead of issuing an order to show cause and holding an evidentiary hearing. The People

co rrectly 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 repor t notwith standing it s 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
als o 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 sho w cause.” (§ 1170.95, subd. (c).) The c ourt is not limited to the allegations of the petition and may “rely on the8

record of conviction in determining whether that single prima facie showing is made.” ( People v. Lewi s (2021) 11 Cal.5th 952, 970 ( Lewis ). ) I f 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 i n 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 is sue 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 document s, “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 matte r of law. Appellant pleaded guilty to
murder with no oth er 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 asserti on , 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, P eople v. Davenport (2021) 71 Cal.App.5th 476, 481

- 484; People v. Ey n on ( 2021) 68 Cal.App.5th 967, 975

- 979.) When appellant entered his pl ea , 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 part icipant 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 f or relief under section 1170.95.” ( Id. at p. 979

. ) Moreover, e ven assuming that the court could properly consider the probation report at the prima facie stage, the
statements within t hat 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 th is evidence at the prima facie stage to find that appella n t 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 that10

appellant admitted the personal weapon use allegation rather than his codefendant Mi chael , who was the actual killer

. Construing the allegations of the p etition 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 ca use 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 enti tled 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 sect io n 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

______________________________

J onathan E. Demson , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief
Assist ant Attorney General, Susan Sulliva n Pitney, Senior Assistant Attorney General, Amanda V. Lopez

, Kathy S. Pomerantz, Deputy Attorney s Ge neral, for Plaintiff and Respondent.