People v. Brown CA4/1

Filed 11/8/21 P. v. Brown CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078975

Plaintiff and Respondent,

v. (Super. Ct. No. SCD207315)

ANDRE WILLIAM BROWN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Robert F. O’Neill, Judge. Reversed and remanded with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent. In 2008, Andre William Brown pleaded guilty to second degree murder (Pen. Code,1 § 187, subd. (a)) and admitted the killing was for the benefit of a

1 All further statutory references are to the Penal Code.

criminal street gang (§ 186.22, subd. (b)(1)(C)). Brown also admitted a prior serious felony conviction (§ 667, subd. (a)(1)). Brown was sentenced to an indeterminate term of 15 years to life plus five years for the prior conviction. In 2019, Brown filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, and denied the petition by written order. The record does not contain any evidentiary hearings but does contain the change of plea form filed in 2008. In that form, Brown stated that he “along with [codefendant] Williams committed this unlawful killing of Gregory Harper with malice, and further did so in association with a criminal street gang.” In its order denying the petition for resentencing, the trial court found that the admission that Brown acted with malice in the 2008 plea rendered him ineligible for resentencing under Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) and section 1170.95. Accordingly, the court denied the petition without issuing an order to show cause (OSC) or holding an evidentiary hearing. Brown filed a timely notice of appeal. Brown contends the trial court erred in finding him ineligible for resentencing without issuing an OSC and conducting an evidentiary hearing. He argues the 2008 admission that he acted with malice does not mean he is ineligible for relief. Brown notes that malice liability for murder in 2008, could be based on aiding and abetting under the natural and probable consequences doctrine or the felony murder rule, which would not be a valid basis for imputing malice under Senate Bill 1437’s amendments. We agree