People v. Brown CA1/4

Filed 4/11/22 P. v. Brown CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A159376 v. JOHN H. BROWN, (City & County of San Francisco Super. Ct. No. SCN115309) Defendant and Appellant.

Defendant John H. Brown appeals an order denying his petition for resentencing under Penal Code1 section 1170.95. He contends the trial court erred in summarily denying his petition without appointing counsel. We find no error and shall affirm the order. Background In 1985, a jury convicted defendant of second degree murder (§ 187) and found he personally used a deadly weapon in the commission of the murder (§ 12022, subd. (b)). Defendant’s conviction was affirmed on appeal in 1986. (People v. Brown (Sept. 19, 1986, A031668) [nonpub. opn.].) Following the January 2019 change in the law on felony murder and the natural and probable consequences doctrine occasioned by Senate Bill

1 All statutory references are to the Penal code unless otherwise noted.

1

No. 1437 (Stats. 2018, ch. 1015, § 2), defendant filed a pro se petition under section 1170.95 seeking to vacate his second degree murder conviction. The People did not file a written response to defendant’s petition. On December 23, 2019, at the hearing on the matter, at which only the prosecution appeared, the prosecutor advised the trial court she had reviewed the abstract of judgment, the original trial brief, and the original parties’ proposed instructions, and did not believe felony murder was involved. She noted that the jury made a true finding on the deadly weapon use allegation. She asked the trial court to summarily deny the petition. The trial court indicated it had reviewed the petition, the sentencing transcript, and the underlying appellate opinion. Based on that review, it appeared there was no felony-murder theory, no codefendant, and there was a true finding on the weapon use allegation. Based on the petition, the court declined to appoint counsel, and denied the petition “without prejudice to [defendant] providing further information that would put him within the ambit of the statute.” Defendant timely filed a notice of appeal. Discussion Senate Bill No. 1437 “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony murder rule. [Citations.] Senate Bill 1437 also added section 1170.95 to the Penal Code, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted (Lewis).) Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under