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In re Brown

California Court of Appeals, Second District, Seventh Division

August 14, 2013

In re JAMALL BROWN, on Habeas Corpus.

Petition for writ of habeas corpus; relief granted. Los Angeles County Super. Ct. No. TA117056 Arthur Lew, Judge.

Linda L. Gordon, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; James William Bilderback II, Supervising Deputy Attorney General; Kathy S. Pomerantz, Deputy Attorney General, for Respondent.

ZELON, J.

INTRODUCTION

Defendant Jamall Brown was charged with assault with a deadly weapon and vandalism. The information contained a prior strike allegation asserting that Brown had previously suffered a juvenile adjudication for robbery in violation of Penal Code, section 211. After the jury convicted Brown of vandalism, he discussed the strike allegation with his attorney and agreed to admit the strike. As a result of the admission, the trial court doubled Brown’s prison term.

Following his conviction, Brown’s appellate counsel obtained the record of the juvenile proceedings and discovered that the defendant’s sustained adjudication did not qualify as a strike. Brown filed a petition for a writ of habeas corpus arguing that his trial counsel rendered ineffective assistance by failing to investigate the validity of the prior strike allegation. We previously issued an order to show cause and now grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Court Proceedings

On June 7, 2011, the District Attorney for the County of Los Angeles filed an information charging Jamall Brown with one count of assault with a deadly weapon (Penal Code, § 245, subd. (a)(1)[1]) and one count of vandalism resulting in damage over $400 (§ 594, subd. (a).) The information further alleged that, in March of 2006, Brown had sustained a juvenile adjudication for robbery (§ 211), which qualified as a “serious” or “violent” felony under California’s Three Strike law (see §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) [2] Brown pleaded not guilty to the charges and denied the prior strike allegation.

On November 9, 2011, the jury acquitted Brown of assault with a deadly weapon and found him guilty of vandalism. After discussing the prior strike allegation with his client, defense counsel informed the court that Brown intended to admit the strike. The prosecutor proceeded to take the admission, stating: “You have one prior conviction for a robbery. It’s a sustained adjudication, for robbery in the meaning of 1170.12 (a) through (d) and 667(b) through (i), in case number JJ13722 for robbery on or about March 24th, 2006..., do you admit?” Brown admitted the allegation and his counsel joined the admission.[3]

Prior to sentencing, Brown filed a “Romero motion” to dismiss the prior juvenile adjudication strike. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court denied the motion and sentenced Brown to two years in prison for vandalism, which it doubled to four years based on the strike admission. Brown filed a timely appeal.

B. Post-Conviction Investigation and Petition for Habeas Corpus

Following the entry of judgment, Brown’s appellate counsel, Linda Gordon, began researching the juvenile adjudication underlying the strike allegation. Gordon contacted Brown’s trial counsel and asked him whether the prosecution had provided any documents to prove the strike. Trial counsel stated that the district attorney had shown him a document, but he could not recall its contents. Gordon ...


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