P. v. Brown

Filed 2/22/07 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent,
v.
BRADLEY KISU BROWN,
Defendant and Appellant.
B187952
(Los Angeles County
Super. Ct. No. LA049911)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard Kirschner, Judge. Affirmed as modified and remanded with directions.
Linda Casey Mackey, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney
General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________________________________

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2.
Bradley Kisu Brown was convicted of assault with a deadly weapon, with
true findings on allegations that he had served two prior prison terms. (Pen.
Code, §§ 245, subd. (a)(1), 667.5, subd. (b).) 1 Brown was sentenced to state
prison for a term of five years (upper term of four years plus one year for one
prior prison term). He appeals, claiming (I) the trial court should have granted
his request for a continuance so that he could retain private counsel, and (II) his
upper term sentence must be vacated. We agree that the upper term
sentence must be vacated (Cunningham v. California (2007) ___ U.S. ___ [127
S.Ct. 856]) but otherwise reject Brown’s claim of error, modify the judgment,
affirm as modified, and remand with directions to enter a corrected abstract of
judgment.
FACTS
Brown gave a “crumbled” $20 bill to Razia Nazir, a convenience store
clerk, for a phone card, then left the store. Nazir, believing the bill was a fake,
followed Brown to his car, telling him “take your money and give me back the
card.” When Nazir put her arm into Brown’s open window to give him the bill,
Brown rolled up the window (trapping Nazir’s arm) and drove off, forcing Nazir
to run along side the car. Brown increased his speed and drove some distance
before rolling down his window so Nazir could withdraw her arm. As Nazir lay on
the ground, Brown made a U-turn and drove toward her. A woman who had
been watching pulled Nazir out of the way and Brown fled. When Brown was
apprehended, he had a phone card similar to the one he bought from Nazir.
1 All section references are to the Penal Code.

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3.
DISCUSSION
I.
Brown contends the trial court should have granted his request for a
continuance so that he could retain private counsel. We disagree.
A.
The case was called for trial on Monday, November 14, 2005. In the
morning, the court considered several motions while it awaited the arrival of a
panel of prospective jurors. When the jurors arrived just before lunch, they were
excused until 2:00 p.m. At 2:10 p.m., the court pre-instructed the jury,
questioned the prospective jurors, then permitted defense counsel (Deputy
Public Defender Michael Many) to question the jurors before adjourning for the
day.
On Tuesday morning, Many moved for a mistrial, contending among other
things that the court had repeatedly interrupted her voir dire, which she felt
communicated to the jurors that she was “acting improperly or
unprofessionally.” The court explained that it had interrupted when Many’s
questions were “unfocused,” “not well articulated,” or based on misstatements
of law, and noted that “there [was only] one juror who . . . expressed his
concern about [Many, and] no indication that any other juror fel[t] that way.” 2
2 The juror who commented about Many (he said he could be fair and impartial about her but
that he “would be fired in two seconds” if he acted like her in his job) assured the court he would
base his decision on the evidence. Moreover, we have reviewed Many’s voir dire and note that
the court’s interruptions were necessary and appropriate (for example, when Many began by
telling the jurors she was going to ask some questions and also “address some constitutional
issues that are . . . the basis of criminal prosecutions and criminal trials”) or, for another example,
when Many was lecturing rather than inquiring (“And so what we’re asking jurors to do . . . is

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4.
The court denied the mistrial motion, stating it would instruct the panel “on that
issue.”
Many then informed the court that Brown wanted a continuance so he
could “hire private counsel.” When the court denied the request without
comment, Brown said, “I want a Marsden.” (People v. Marsden (1970) 2 Cal.3d
118.) At the hearing that followed, Brown said, “I don’t believe that [Many’s]
ineffective or anything,” just that there were “certain motions, subpoenas and
witnesses [he] felt . . . were vital” but she did not. He complained that the
prosecutor had not turned over a videotape earlier than it was produced
(although Many told the court that Brown had declined her offer to seek a
continuance on that ground), and expressed concern that the jurors were
“possibly prejudiced against” Many due to the manner in which she conducted
voir dire. He said he wanted to retain “personal counsel.”
The court acknowledged that one juror had expressed a negative
response to Many’s questions, then explained to Brown that the jurors would be
instructed about their duties. The court denied the Marsden motion, and also
denied Brown’s renewed request for a continuance to enable him to obtain
private counsel (on the grounds that it was “made at the 11th hour” during jury
selection, and that there was “no basis for it”). When the jurors returned to the
courtroom, the court explained that it was sometimes necessary to admonish
counsel and that they were not to be prejudiced by the court’s words or actions
with regard to the lawyers. Brown’s further request for a continuance (or
Marsden relief) at the end of trial was also denied.
come to the table or this process with the understanding that the prosecutor has a version of
events”).

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5.
B.
We reject Brown’s contention that it was error for the court to “rely on the
Marsden analysis” because he was seeking a continuance to obtain private
counsel, not the appointment of another lawyer. The record shows that the trial
court took Brown at his word -- that both issues were raised -- and gave due
consideration to both requests.
Brown’s first request was for a continuance to “hire private counsel.”
When the request was denied, he asked for a “Marsden” hearing, and told the
court he was “requesting that Miss Many . . . be relieved as [his] attorney and
that another attorney be appointed to represent [him.]” (Italics added.) The
court then heard and denied Brown’s Marsden motion, which is hardly surprising
in light of Brown’s admission that he did not believe Many was ineffective.
(People v. Cole (2004) 33 Cal.4th 1158, 1190; People v. Smith (2005) 135
Cal.App.4th 914, 926; People v. Lucky (1988) 45 Cal.3d 259, 281-282.) The court
then heard Many’s renewed request for a continuance to hire private counsel
and denied it as untimely, again hardly surprising in light of the fact that trial had
commenced and no good cause had been shown. (People v. Ortiz (1990) 51
Cal.3d 975, 982-987; People v. Courts (1985) 37 Cal.3d 784, 789-791; People v.
Blake (1980) 105 Cal.App.3d 619, 623-624.)
II.
Brown contends his upper term sentence cannot stand. (Cunningham v.
California, supra, ___ U.S. ___ [127 S.Ct. 856].) We agree.

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6.
The trial court selected the high term sentence because Brown had
“engaged in a continuing, escalating pattern of criminal conduct, which
indicates a serious danger to society and [he was] also on parole at the time of
this offense,” neither of which was charged or found true by the jury. For this
reason, the sentence cannot stand.3
On February 13, 2007, Brown filed a supplemental letter brief to make sure
we were aware of Cunningham but the Attorney General has not responded
and both sides waived oral argument. We treat this as a concession that
Brown’s sentence must be modified to mid-term.
DISPOSITION
Brown’s sentence on the assault is modified by reducing it to the mid-term
of three years and, as modified, the judgment is affirmed and the cause is
3 We reject the Attorney General’s contention (raised pre-Cunningham in his respondent’s brief)
that this issue was forfeited by Brown’s failure to raise it below. (People v. Vera (1997) 15 Cal.4th
269, 276-278; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.)

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7.
remanded to the trial court with directions to issue a corrected abstract of
judgment and forward it to the Department of Corrections.
NOT TO BE PUBLISHED.
VOGEL, Acting P.J.
We concur:
ROTHSCHILD, J.
JACKSON, J.*
______________________________________________________________________________
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

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