P. v. Brown

Filed 1/25/08 P. v. Brown CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Harold I. Cherness, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Mitchell Ray Brown was convicted of first degree murder, with a special circumstance finding that he committed the murder during a forcible rape. (Pen. Code, 187, 190.2, subd. (a)(17)(C).)[1] He was sentenced to state prison for life without the possibility of parole. Brown appeals, claiming evidentiary error, contending he was entitled to presentence credits, and objecting to a $20 fine. We affirm.

FACTS

In July 1987, Sandra Marie Beverlys body was discovered by the side of a house on Gage Avenue. Her pants and underwear were pulled down, and she had multiple stab wounds (the fatal one was through her heart). Defensive wounds, her torn clothing, and a sexual assault assessment revealing semen on Beverlys body established that she had been sexually assaulted before she was stabbed.

In 2005, DNA testing was performed on the evidence (several items of clothing and a vaginal swab) collected at the time of Beverlys murder. The results matched Browns DNA (according to the expert, the particular combination of genetic marker types occurs in approximately one in one quintillion unrelated individuals, a one followed by 18 zeros or, as to the DNA taken from Beverlys sock, one in 100 quadrillion individuals, a one with 17 zeros).

In January 2005, two Los Angeles Police Detectives interviewed Brown in Texas. Brown initially claimed he did not know Beverly, but during further questioning by a Texas law enforcement officer admitted he had promised to give Beverly drugs and money in exchange for sex. According to Brown, Beverly had asked for more money and drugs than originally agreed, and she threatened to call the police and claim she had been raped. When Brown refused, Beverly started to scream, things got out of control, and he stabbed her. During a subsequent interview conducted by all three officers, Brown said he and a friend (Michael Mosley, since deceased) had encountered Beverly, offered her money and drugs in exchange for sex, and she had agreed -- but then grabbed the mens money and turned as though she was about to take off. Mosley and Brown grabbed her, Brown had sex with her, and Mosley then stabbed her because she was screaming.

An information was filed charging Brown with murder with a special circumstance allegation that the crime had been committed during a robbery, forcible rape, and robbery (based on evidence that Beverlys purse had been found in an alley away from her body). ( 187, 190.2, subd. (a)(17)(A), 261, subd. (a)(2), 211.) The case was tried in early 2006 but the jurors were unable to reach a unanimous verdict and a mistrial was declared.

An amended information was filed in April 2006, this time limited to the murder count with special circumstance allegations that the crime had been committed during a robbery and during a forcible rape. ( 190.2, subds. (a)(17)(A), (C).) At trial, the People presented evidence of the facts summarized above and, in addition, evidence that in 1990 and 2001, Brown had stabbed two men. Brown did not present a defense and was convicted as charged.

DISCUSSION

I.

Brown contends the evidence of his subsequent stabbings should have been excluded. Assuming error, it was harmless by any standard.[2]

The evidence about the other stabbings could not possibly have affected the outcome in this case. (People v. Watson (1956) 46 Cal.2d 818, 836.) First, the DNA evidence and Browns confession -- neither is challenged by Brown on this appeal -- are certainly what mattered to the jury, not the other crimes evidence, as shown by the fact that the jury deliberated less than three hours. Second, the trial court instructed the jurors that they could not consider the other crimes evidence to prove that Brown was a person of bad character or that he was disposed to commit crimes. (CALJIC No. 2.50.)

To avoid this conclusion, Brown points to the hung jury in his first trial at which the other crimes evidence was not presented, claiming the other crimes evidence had to be the cause of his conviction in the second trial. This is pure speculation. Although the reporters transcript from the first trial is not a model of clarity, we are satisfied that the jury in that trial was deadlocked 11 to 1 in favor of guilt, not the other way around as claimed by Brown. When asked by the trial court in what direction [they] were leaning, the foreman answered guilty. When the court asked, Eleven/one guilty, the jurors said no and the court then asked, Eleven/one not guilty? and the jurors answered affirmatively. In light of the foremans statement that they were leaning toward guilt, the jurors must have understood the first question to mean, Are you deadlocked with eleven for not guilty and one guilty, which is why they said no. In any event, we decline Browns invitation to speculate about the reasons for the first jurys inability to reach a decision. We do not view this as a close case.

II.

Brown contends and the People concede that he is entitled to 624 days of presentence custody credits and 312 days of conduct credits. ( 2900.5, 4019.) As Brown correctly observes, the current preclusion of credit in murder cases ( 2933.2) applies only to murders committed after 1998. (People v. Ly (2001) 89 Cal.App.4th 44, 47.) Because Brown murdered Beverly in 1987, we agree in the abstract that, given a not true finding on the special circumstance allegation, Brown would have been entitled to credits -- but conclude that no modification to the judgment is appropriate in this case because the issue is mooted by our affirmance of the special circumstance finding and Browns sentence of life without the possibility of parole. The sentence means what it says -- that Brown will remain in prison until he dies.

III.

We reject Browns contention that the trial court should not have imposed a $20 court security fee pursuant to section 1465.8. Although the statute was not enacted until 2003, the fee is not a punishment and thus does not run afoul of the rules against ex post facto laws. (People v. Alford (2007) 42 Cal.4th 749.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Undesignated section references are to the Penal Code.

[2] In 1990, Brown got into a fight with an unarmed man (Chester Saddler) and stabbed him in the neck and stomach. In 2001, Brown got into a fight with an unarmed man (Delroy Bernard), and went after him first with a hammer, then with a knife. Aside from the fact that the victims were unarmed and stabbed, we see very little similarity to the charged crime. (Evid. Code, 1101, subd. (b), 352.)