Mayor London Breed asked Gov. Jerry Brown last December to consider commuting the sentence of her brother, Napoleon Brown. (Kevin N. Hume/S.F. Examiner)

Mayor London Breed asked Gov. Jerry Brown last December to consider commuting the sentence of her brother, Napoleon Brown. (Kevin N. Hume/S.F. Examiner)

Mayor Breed’s brother will get a chance to argue for resentencing

Mayor London Breed’s imprisoned brother may have a shot at getting a reduced sentence under a new state law after a San Francisco Superior Court judge on Friday ruled in favor of hearing arguments in his case.

Napoleon Brown was convicted of murder, carjacking and robbery in 2005. He has served some 19 years of a 44-year sentence in connection with the death of his girlfriend, who was pushed out of a car into oncoming traffic on the Golden Gate Bridge while escaping a robbery.

Judge Brendan Conroy on Friday declined to dismiss a petition requesting a new hearing on Brown’s re-sentencing and set a date in January to hear full arguments in the case.

Brown was convicted under California’s felony murder rule, which previously allowed prosecutors to charge a person with first-degree murder for participating in certain crimes that resulted in death, even if the defendant was not the actual killer.

However, a new law that took effect this year has scaled that rule back, allowing hundreds of prisoners to petition for reduced sentences.

Brown pleaded no contest to involuntary manslaughter in 2011 after a judge set aside the murder conviction over a technicality. He was sentenced to 42 years in prison.

Two years were added on to his sentence after he was caught with heroin in prison.

On Friday, Marc Zilversmit, Brown’s attorney, argued that the state law should apply to manslaughter convictions as well as murder convictions, because lawmakers broadly refer to “homicide” convictions in the text of the bill.

“The bill at the very outset says that there is a need … to more equitably sentence offenders in accordance with their involvement in homicides,” said Zilversmit. “That’s the legislative purpose that is stated right in the beginning of [the bill].”

Zilversmit argued that “there is no dispute that homicide involves manslaughter.”

He acknowelged that the statute “uses the word murder in several different places and that will not include manslaughter,” and thus the text of the bill creates a “clear ambiguity.”

Zilversmit’s interpretation of the law was disputed by Assistant District Attorney David Merin, who argued in court that the new law only applies to those convicted of murder and called the statute “plain, clear and unambigious.”

Merin also argued that since Brown’s full sentence was derived from other charges — including robbery and carjacking — and not the murder charge, he is therefore disqualified from being resentenced under the new law.

“That sentence was completely untethered to any murder conviction, and in fact the murder conviction had been set aside by [a] judge,” said Merin. “So that 44 year, four month sentence had nothing to do at the time of sentencing with the murder conviction. It’s the people’s position that, just based upon that, the defendant is not entitled to relief.”

Regardless, Conroy said that he was compelled to rule in favor of defendants in these types of cases because of the bill’s ambiguity and intent.

“There is clearly a problem here,” said Conroy. “There are inconsistencies in what the chaptered version says and what the statute says.”

“I’m not going to say that Mr. Brown can’t attempt to show that …he is entitled to relief under this statute,” Conroy said. However he added that, given the complexity of the case, “Mr. Brown has an uphill battle in trying to convince the court” that his case should be resentenced.

Breed’s previous attempts to free her brother have come under scrutiny in light of a highly anticipated race for district attorney this year.

A source with knowledge of the situation has told the San Francisco Examiner that Breed contacted former District Attorney Geroge Gascon more than a year after her election to the Board of Supervisors in 2012 and asked him to review the case.

However, Gascon’s office determined that Brown was not entitled to relief. When Brown filed the petition to overturn his conviction in April, Gascon, who resigned in October, continued to oppose the resentencing.

Breed has denied contacting Gascon.

“I have no recollection of ever calling George Gascon in 2014 to discuss my brother or his case,” she said in a statement. “I am absolutely certain that through the long course of my brother’s legal case, I have never asked for any special treatment from the District Attorney’s Office or anyone else, nor have I received any. Every time I have weighed in on my brother’s case, it has been under the guidance of his defense attorney, at appropriate times and by appropriate means.”

Breed made news last December after she and her family sent letters asking then-Gov. Jerry Brown to commute her brother’s sentences. Jerry Brown left office without acting on her request, the Examiner reported previously.

Last month, Breed appointed Suzy Loftus, a candidate for District Attorney, to serve in the position vacated by Gascon in the interim, just weeks before the November 5 election.

The appointment generated controversy from critics who said that it gave Loftus a leg up in the race against Public Defender Chesa Boudin, Deputy Attorney General Leif Dautch and longtime prosecutor Nancy Tung.

It also stirred speculation that Loftus would switch positions on Brown’s resentencing, but Loftus said that she also believed that the new law did not apply to Brown’s case.

Responding to criticism that Breed is using her influence to impact her brother’s case, Zilversmit said on Friday that “there are no politics involved in this case.”

Breed “is aware of this petition being filed, [but] she’s had no input,” he said.

“She loves her brother and she wrote a heart-felt letter in support of him for his parole process, but other than that she’s treated him like a brother,” he said, adding that district attorney candidate Chesa Boudin, who has run his campaign on a platform of ending mass incarceration, among other things, is “much more receptive to the argument that I am making than Suzy Loftus.”

Michael Barba contributed to this story.

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