Filed 6/8/23 P. v. Brownlee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, Plaintiff and Respondent, C091028 v. (Super. Ct. No. 16FE018278) BENJAMIN JUSTIN BROWNLEE, Defendant and Appellant. Defendant Benjamin Justin Brownlee appeals from an order denying his petition to vacate his murder conviction under Penal Code section 1172.6.1 In 2020, appointed counsel for defendant asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) When defendant did not file a supplemental brief, this court 1 Undesignated statutory references are to the Penal Code. Defendant filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 1 dismissed the appeal as abandoned. The California Supreme Court granted review of the case and later transferred the matter back to this court with instructions to vacate the dismissal and reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellate counsel filed supplemental briefing asking this court to “comply with its notice obligations under Delgadillo” and exercise its discretion to independently review defendant’s case if defendant does not file a supplemental brief. This court sent a notice to defendant informing him of his opportunity to file a supplemental brief under Delgadillo and defendant filed a supplemental brief raising two issues. Having considered defendant’s arguments, we will affirm the trial court’s order. I In August 2017, a jury convicted defendant of first degree murder (§ 187, subd. (a)) and robbery (§ 211) and found true a robbery-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(A)). On direct appeal, this court summarized the evidence from trial, which included statements from defendant that he choked the victim to death. After police apprehended defendant, his ex-girlfriend gave them a backpack containing some of the victim’s possessions and said the backpack belonged to defendant. This court affirmed the convictions. (People v. Brownlee (Apr. 16, 2019, C085652) [nonpub. opn.].) In 2019, defendant filed a petition for resentencing under former section 1170.95, alleging he had been prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of first degree murder; and he could not currently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court appointed counsel and received briefing. At a hearing, the prosecution argued that because the jury had found true a robbery-murder special- circumstance allegation, defendant was ineligible for relief as the actual killer. The trial court …
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