Filed 1/23/20 P. v. Brownlee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRENCE BROWNLEE,

Defendant and Appellant.

F079638

(Super. Ct. No. CF80257140)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

 

Appointed counsel for defendant Terrence Brownlee asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending the record erroneously reflects the date of his plea and thus shows the existence of a cover up by the People and establishes a violation of due process constituting reversible error. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND

The following facts were taken from the preliminary hearing transcript and summarized by the probation officer.

“During the late evening hours of April 7, 1980, [defendant], Timothy Taylor, Richard Byrd, and Darrell Green were driving around Fresno in Timothy Taylor’s 1963 Chevrolet. When these individuals were driving around a discussion was held regarding the commission of a robbery to obtain some money. Darrell Green was armed with a .22 caliber sawed-off rifle and Byrd was in possession of a .357 magnum handgun.

“At one point, Taylor began having car trouble and the vehicle was stopped near a restaurant on North Parkway Drive. After all four individuals had exited the vehicle, Timothy Taylor suggested that they rob Motel Fresno. They proceeded to that location, but observed too many people near the office area.

“They then walked next door to the Fremor Motel. While walking through the motel, Taylor looked into the window of Room 46 and observed three individuals. These were later identified as Linus Fields, Garold Parker, and Shirley Brown. Taylor then relayed this information to Green, [defendant], and Byrd. Taylor also obtained a .357 magnum, which was in Byrd’s possession.

“Either Taylor or [defendant] knocked on the door and when Shirley Brown answered the door, they forced their way in. Entering the room, Taylor and Byrd tied up Fields and Parker. During the preliminary examination, Linus Fields testified that one of the individuals held a gun to Parker’s head and a second individual struck him over the head with what he believed to be a bottle.

“[Defendant], who had obtained the .357 magnum handgun from Taylor, then approached Shirley Brown. [Defendant] demanded money from her, but she replied she had none. [Defendant] ordered Brown to ‘suck his dick’ and when she refused, [defendant] struck her numerous times in the face with his fist. Brown was then gagged with a T-shirt.

“While [defendant] was assaulting Shirley Brown, Green and Byrd were searching for money. Between eight and ten dollars was removed from the dresser in the motel room.

“As all four individuals prepared to leave the room, [defendant] approached Shirley Brown, who was tied and gagged, and seated in a chair, put the handgun up to her face, and fired one shot. The four individuals then fled the motel.

“An officer responding to the scene observed an individual believed to be Darrell Green running through Roeding Park. Green dropped the .22 caliber sawed-off rifle which was later recovered by officers.

“Upon arrival at the scene of the shooting, officers found a receipt for the purchase of a camera. Printed on the receipt was the name Tim Taylor and an address ….

“Officers proceeded to that location and arrested Tim Taylor and Richard Byrd. Later that same day, officers arrested Darrell Green and [defendant]. All four individuals were booked into the Fresno County Jail and charged with Murder and Robbery.

“A subsequent autopsy revealed that Shirley Brown had died of shock and hemorrhaging due to a gunshot wound to the head. Dr. Thomas Nelson further testified that Brown had numerous facial injuries and bruises on her upper arms, neck, head and legs. Dr. Nelson testified the injuries to her face were probably from a fist, however, the injuries on the scalp were caused by a hard object.”

On July 3, 1980, defendant was charged with murder (Pen. Code, § 187; count 1) with the personal use of a firearm (§ 12022.5) and robbery (§ 211; count 2) with the personal use of a firearm (§ 12022.5).

On July 7, 1980, defendant pled guilty to second degree murder and robbery, and he admitted personally using a firearm during the commission of both crimes.

At the sentencing hearing on August 4, 1980, the trial court found the murder involved a high degree of cruelty, viciousness, and callousness. Defendant committed the murder as a separate venture after the robbery had been completed. The victim was particularly vulnerable—she was outnumbered and gagged, and weapons were used. The crimes involved prior planning. At the time of the crimes, defendant was on parole from California Youth Authority. After considering these circumstances, the court sentenced defendant to 15 years to life in prison for the murder in count 1, plus two consecutive years for the gun enhancement related to that count. On the robbery in count 2 and the related firearm enhancement, the court imposed five years, plus two consecutive years for the enhancement, and stayed both terms.

More than 38 years later, on January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended sections 188 and 189 to reduce accomplice liability for murder (see discussion infra) and provided a procedure for petitioning for relief (§ 1170.95).

On January 7, 2019, defendant filed a petition for resentencing under section 1170.95, alleging he was convicted of second degree murder under the felony murder rule or the natural and probable consequences doctrine, and that under the new law, he could not be convicted of murder.

On June 20, 2019, the trial court denied the petition because defendant failed to make a prima facie showing that he fell within the provisions of section 1170.95 because he “was not an accomplice convicted under the natural and probable consequences doctrine and he was not convicted of second degree felony murder. [He] was the actual killer.” The court found him ineligible for resentencing.

On July 15, 2019, defendant filed a notice of appeal.

DISCUSSION

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 2) amended sections 188 and 189 to reduce accomplice liability where the accomplice did not commit the act that killed the victim. The bill 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).) The bill “accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

Senate Bill No. 1437 also added section 1170.95, which provides a procedure by which those already convicted of murder before the enactment of Senate Bill No. 1437 may seek retroactive relief in a petition to the trial court. (See People v. Martinez, supra, 31 Cal.App.5th at p. 724.) Section 1170.95 allows “[a] person convicted of felony murder or murder under a natural and probable consequences theory” to file a petition with the trial court that sentenced him, to have the murder conviction vacated and to be resentenced when three conditions are met: (1) the charges 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 first degree or second degree murder following a trial or plea agreement; and (3) the petitioner “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing, the prosecutor must file and serve a response, and the petitioner may file and serve a reply. (Id., subd. (c).) If the trial court concludes the petitioner has made a prima facie showing, the court shall issue an order to show cause and shall hold a hearing at which the prosecution shall have the burden of proof. (Id., subd. (d)(1), (3).) The prosecutor and the petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Id., subd. (d)(3).) “If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (Id., subd. (d)(2).)

In this case, the trial court properly denied defendant’s petition. Defendant was the actual killer of Shirley Brown, and the changes to sections 188 and 189 would not now operate to spare him a murder conviction (§ 1170.95, subd. (a)(3)). Thus, defendant could not make a prima facie showing he was entitled to relief under section 1170.95.

As for defendant’s contention he entered his plea on August 4, 1980, rather than July 7, 1980, and the unreliability of the record constitutes reversible error, we have reviewed both the record and defendant’s exhibits, and we find no support for his contention that he entered his plea on August 4, 1980, the day of his sentencing. Indeed, the record contains a minute order of the July 7, 1980 arraignment hearing, describing the plea entered by defendant, and reflecting that the trial court referred the matter to the probation department for preparation of a probation officer’s report. The record contains the probation officer’s report, prepared on July 23, 1980, and received by the trial court on July 24, 1980. Finally, the record contains the August 4, 1980 reporter’s transcript of the “RPO & JUDGMENT,” in which the trial court reviewed the probation officer’s report and sentenced defendant. Thus, we find nothing to suggest the dates in the record are erroneous.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.