Filed 8/4/26 P. v. Brown CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051370
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2007237)
v.
BRANDON BROWN,
Defendant and Appellant.
The California Racial Justice Act of 2020 (RJA) provides that claimed violations
of the RJA “based on the trial record” may be raised “on direct appeal from the
conviction or sentence.” (Pen. Code, § 745, subd. (b).)1 Under section 1237.5, however,
no appeal can be taken from a plea unless “[t]he defendant has filed with the trial court a
written statement, executed under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds going to the legality of the proceedings”
(id., subd. (a)), and the court “has executed and filed a certificate of probable cause for
such appeal with the clerk of the court” (id., subd. (b)). It is thus a longstanding rule that
“ ‘issues going to the validity of a plea require’ a certificate of probable cause.” (People
v. Stamps (2020) 9 Cal.5th 685, 694 (Stamps).) Defendant Brandon Brown was
convicted by plea of attempted murder (§§ 664, 187, subd. (a)) with a firearm
enhancement and was sentenced to a negotiated term of 17 years in prison. Brown
1
Unspecified statutory references are to the Penal Code.
appealed without obtaining a certificate of probable cause and now argues that the gang
expert testifying at the preliminary hearing violated the RJA by exhibiting racial animus
toward him. Because Brown failed to obtain a certificate of probable cause, we conclude
that his RJA claim is not cognizable on appeal. We agree, however, that the abstract of
judgment requires correction. So we will direct the clerk of the superior court to correct
the abstract of judgment and affirm.
I. BACKGROUND
In May 2020, J.P. was sitting in his car in the driveway of his home when a car
pulled up nearby, occupied by two people.2 J.P. believed that he had previously seen the
same car drive by about an hour before. As J.P. left his car and walked towards his
house, Brown got out of the other car’s passenger seat, pulled out a handgun, and yelled
an expletive. Brown then started shooting. Hiding behind a cement wall, J.P. heard
Brown fire four or five shots, reload, and fire another four or five shots. Brown and the
driver of the car drove away.
Brown and codefendant Elisaul Solis were charged by complaint with attempted
murder (§§ 664, 187, subd. (a); count 1), shooting at an inhabited dwelling (§ 246;
count 2), carrying a loaded firearm with intent to commit a felony (§ 25800, subd. (a);
count 3); and carrying a loaded firearm as a convicted felon (§ 25850, subd. (a); counts 4
[Brown] & 5 [Solis]). Gang enhancements under section 186.22, subdivision (b) were
alleged as to each of these counts. Brown and Solis were also charged with active
participation in a criminal street gang (§ 186.22, subd. (a); count 6).
At the 2022 preliminary hearing, the prosecutor called San Jose Police Department
Detective Christopher Weber to testify as an expert on “Norteño street gangs and Norteño
subsets,” and Weber testified about the gang’s common signs, symbols, its organizational
2
As Brown was convicted by plea, we derive our facts from the probation report’s
summary of the offense, which was based on the police report.
2
structure, and predicate offenses committed by gang members to substantiate the gang
enhancements and gang offenses. Weber opined that Brown and Solis were Norteño
members at the time of the offense and that a hypothetical shooting that tracked the facts
of the case would have been committed for the gang’s benefit. The magistrate declined
to hold Brown to answer for any of the gang enhancements or the substantive gang
offense, finding the evidence insufficient to show that Norteños comprised a criminal
street gang under section 186.22: The predicate offenses established by the evidence
were not within three years of each other as subdivision (e)(1) of section 186.22 requires.
The Santa Clara County District Attorney then charged Brown by information
with attempted murder (§§ 664, 187, subd. (a); count 1), shooting at an inhabited
dwelling (§ 246; count 2), carrying a loaded firearm with intent to commit a felony
(§ 25800, subd. (a); count 3), and carrying a loaded firearm on his person or in a vehicle
with a prior felony (§ 25850, subd. (a); count 4).
The next year, Brown pleaded no contest to attempted murder (count 1) and
admitted a firearm enhancement under section 12022.53, subdivision (c) in return for a
stipulated sentence of 17 years in prison and dismissal of the remaining counts.
At sentencing, the trial court imposed the agreed-upon term of 17 years—the
middle term of seven years for the attempted murder and a 10-year term for the firearm
enhancement, now imposed under section 12022.53, subdivision (b) under People v.
Tirado (2022) 12 Cal.5th 688 (Tirado).3 Brown timely appealed and did not obtain a
certificate of probable cause.
3
In Tirado, the California Supreme Court found that when an accusatory pleading
alleges and a jury finds true an enhancement under section 12022.53, subdivision (d), and
the trial court strikes or dismisses that enhancement under section 12022.53,
subdivision (h), subdivision (j) permits the court to impose a lesser enhancement under
section 12022.53, subdivisions (b) or (c). (Tirado, supra, 12 Cal.5th at p. 700.)
3
II. DISCUSSION
A. Requirement of a Certificate of Probable Cause
The Legislature enacted the RJA in 2020, effective January 1, 2021—more than a
year before the preliminary hearing in this case. (Stats. 2020, ch. 317; § 745.) Under the
RJA, “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose
a sentence on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) Brown
argues that Detective Weber’s expert testimony at the preliminary hearing “exhibited bias
or animus towards the defendant because of the defendant’s race, ethnicity, or national
origin.” (§ 745, subd. (a)(1).) Alternatively, if his RJA claim is forfeited due to
counsel’s failure to object below, Brown argues that counsel rendered ineffective
assistance.4 Although an RJA claim may be raised on direct appeal (§ 745, subd. (b)), the
gravamen of Brown’s RJA claim is that he should be relieved of his otherwise knowing,
intelligent, and voluntary plea agreement as it was obtained in violation of the RJA.
Because his claim thus goes to the validity of his plea, it is not cognizable on appeal
absent a certificate of probable cause.
When the judgment appealed from was obtained by the defendant’s plea of guilty
or no contest, the sole exceptions to the requirement of a certificate are for appeals
“ ‘solely on noncertificate grounds’ ”—“ ‘postplea matters not challenging his plea’s
validity and/or matters involving a search or seizure whose lawfulness was contested
pursuant to section 1538.5.’ ” (Stamps, supra, 9 Cal.5th at p. 694; Cal. Rules of Court,
rule 8.304(b).) The “ ‘critical inquiry is whether a challenge … is in substance a
4
Several appellate courts, including this one, have found that “a section 745 claim,
like any other appellate claim, is subject to the general appellate rules of preservation and
forfeiture of claims that could have been but were not made in the trial court.” (People v.
Lashon (2024) 98 Cal.App.5th 804, 812; People v. Quintero (2024) 107 Cal.App.5th
1060, 1076–1077; People v. Corbi (2024) 106 Cal.App.5th 25, 39; People v. Singh
(2024) 103 Cal.App.5th 76, 114–115; People v. Wagstaff (2025) 111 Cal.App.5th 1207,
1219; People v. Gomez (2026) 118 Cal.App.5th 384, 391–392.)
4
challenge to the validity of the plea, thus rendering the appeal subject to the [certificate]
requirements of section 1237.5.’ ” (Stamps, at p. 694.) Here, Brown explicitly urges this
court to “reduc[e] … his attempted murder conviction to assault with a firearm” because
the RJA violation he alleges “renders [his] conviction invalid” (capitalization omitted).
This is precisely the sort of challenge to the validity of his plea that requires certification
of probable cause. Indeed, Brown has filed no reply brief to dispute the People’s position
that the absence of a certificate is fatal to this claim of error. And our high court has held
that section 1237.5’s requirement of a certificate of probable cause should be “applied in
a strict manner” (People v. Mendez (1999) 19 Cal.4th 1084, 1097 (Mendez)), as it “lays
down a ‘condition precedent’ to the taking of an appeal within its scope” (id. at p. 1098).
“Its assumption is that, as a general matter, a judgment of conviction entered on a
defendant’s plea of guilty or nolo contendere does not present any issue warranting relief
on appeal, and hence should not be reviewed thereon.” (Id. at p. 1097.)
Brown’s alternative claim that his trial counsel’s failure to litigate the RJA claim
denied him constitutionally effective assistance does not alter our conclusion: His claim
of ineffective assistance arises from counsel’s performance before entry of the plea, and
courts have consistently held that claims of ineffective assistance deriving from counsel’s
preplea acts require a certificate. (Mendez, supra, 19 Cal.4th at p. 1092 [deeming
counsel’s failure to request a hearing on competency a certificate issue]; see also People
v. Moore (2024) 104 Cal.App.5th 90, 94 [claim that counsel was ineffective for failing to
request pretrial mental health diversion requires certificate of probable cause]; People v.
Stubbs (1998) 61 Cal.App.4th 243, 244–245 [challenge that counsel’s preplea
performance was deficient requires a certificate of probable cause].)
Nor can we find any suggestion that the Legislature intended to exempt RJA
claims from the requirements of section 1237.5. Had the Legislature “ ‘intended for RJA
claims to be decided on their merits whenever raised, it would not have required RJA
motions to be “made as soon as practicable” ’ ” (People v. Midell (2025) 113 Cal.App.5th
5
1060, 1076) and would have exempted such motions from the traditional rules of
appellate forfeiture. Requiring a defendant to obtain a certificate of probable cause to
challenge “grounds going to the legality of the proceedings” (§ 1237.5, subd. (a)) after a
plea is neither novel nor new, and “the Legislature ‘is deemed to be aware of existing
laws and judicial constructions in effect at the time legislation is enacted.’ ” (People v.
Frahs (2020) 9 Cal.5th 618, 634.)
Nor would imposing the requirements of section 1237.5 be unduly arduous on a
defendant. “The purpose for requiring a certificate of probable cause is to discourage and
weed out frivolous or vexatious appeals challenging convictions following guilty and
nolo contendere pleas.” (People v. Panizzon (1996) 13 Cal.4th 68, 75.) Thus, a “trial
court must issue the certificate if the defendant’s statement under section 1237.5 presents
‘any cognizable issue for appeal which is not clearly frivolous and vexatious.’ ” (People
v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) This low bar for issuance of a
certificate would not hinder defendants from validly challenging their convictions based
on alleged RJA violations.5
Accordingly, we “may not proceed to the merits of the appeal” without a
certificate of probable cause. (Mendez, supra, 19 Cal.4th at p. 1099; but see § 1473,
subd. (e)(1) [providing same “definitions and legal thresholds” for postjudgment petition
for writ of habeas corpus based on violation of § 745, subd. (a)].)
B. Clerical Error
Because Brown did not obtain a certificate of probable cause, our review of his
claims is thus limited to those issues that do not require a certificate. (Cal. Rules of
Court, rule 8.304(b)(3).) Brown argues, and the Attorney General concedes, that the
abstract of judgment contains a clerical error. As we have explained, although Brown
5
If a court refuses to issue a certificate of probable cause, “the defendant may seek
a writ of mandate from the appellate court.” (Johnson, supra, 47 Cal.4th at p. 676.)
6
admitted a firearm enhancement under section 12022.53, subdivision (c), the trial court
ultimately elected to impose a lesser enhancement under section 12022.53,
subdivision (b). (See Tirado, supra, 12 Cal.5th at p. 700.) The abstract of judgment,
however, erroneously lists a section 12022.53, subdivision (c) enhancement. We
therefore direct the clerk of the superior court to correct the abstract of judgment. (People
v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in
an abstract of judgment at any time].)
III. DISPOSITION
The clerk of the superior court is directed to correct the abstract of judgment to
reflect that a firearm enhancement was imposed under Penal Code section 12022.53,
subdivision (b), not subdivision (c). The modified abstract of judgment shall be
forwarded to the Department of Corrections and Rehabilitation. The judgment is
otherwise affirmed.
7
LIE, J.
WE CONCUR:
GROVER, Acting P. J.
WILSON, J.
People v. Brown
H051370