Opinion
B300186
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH M. BROWN, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA238176) APPEAL from a judgment of the Superior Court for Los Angeles County, Douglas Sortino, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kenneth M. Brown appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95. Defendant was convicted of first degree murder as an aider and abettor. The trial court found, based upon the jury instructions given and our previous decision affirming defendant's conviction, that defendant was ineligible for resentencing as a matter of law because he was not convicted under a felony murder or natural and probable consequences theory. Defendant contends the trial court erred in summarily denying his petition because (1) a section 1170.95 petition is a "special proceeding" governed by statute, and the trial court is required to adhere strictly to the procedure set forth in the statute; and (2) he alleged a prima facie claim for relief, and the trial court must take those allegations as true. Defendant's first contention may be correct, but his interpretation of the statutory procedure is not. His second contention, however, fails; the trial court need not accept as true allegations that contradict the court's own records. Because those records establish as a matter of law that defendant is not eligible for relief, we affirm the judgment.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
Our summary of the factual background is based upon our opinion affirming defendant's conviction, People v. Brown [nonpub. opn., filed July 20, 2005], case No. B170310 (Brown I), which was relied upon by the trial court and is a part of the record on appeal. A. The Murder
In May 2002, Javarri Wilds was shot and killed at an automobile repair shop owned by his uncle, Carl Bayard, on Venice Boulevard in Los Angeles. Wilds, who lived in Las Vegas, had brought his car (a blue Oldsmobile Cutlass) to the shop to have the engine rebuilt. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, p. *2.) On the afternoon of the shooting, defendant and another man drove up to the shop in a white Buick Regal, and were looking at Wilds' car, which was parked in the driveway of the shop. (Id. at pp. *2-3.) Bayard approached the Regal and spoke to the two men through the driver's window; Bayard subsequently identified defendant as the driver. The passenger asked about the blue Cutlass, and Bayard said it was his nephew's and was not for sale, but he said he had a similar car in the shop. The passenger went inside the shop with Bayard to look at the other car. (Id. at p. *3.)
While the passenger and Bayard were in the shop, defendant drove west down Venice Boulevard to the end of the block, turned the corner, and parked. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, p. *3.) A short time later, as the passenger and Bayard came out of the shop, Wilds arrived and went to his Cutlass to retrieve his wallet and jacket; Wilds was wearing a blue T-shirt, blue pants, and blue shoes. (Ibid.) The passenger finished his business with Bayard, walked to where the white Regal was parked, and got inside. (Id. at pp. *3-4.) Bayard and Wilds stood in the street, talking about Wilds' car. (Id. at p. *4.)
While Bayard and Wilds were talking, Bayard heard someone yell, "They have a gun, they have a gun." Bayard saw the white Regal, stopped on the south side of Venice Boulevard near the other end of the block; he assumed it had turned around and headed east on Venice Boulevard, stopping before it reached the end of the block. Bayard heard five gunshots as Wilds ran across Venice Boulevard. He turned and saw the man who had been the passenger in the white Regal standing nearby, holding a gun. The man walked to the white Regal, which was still being driven by defendant, got in, and the car drove away. Wilds collapsed; he had been shot three times, and died later at the hospital. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, p. *4.)
Police were able to trace the white Regal. It was owned by Sterling Woods, but defendant had received several traffic tickets while driving the car. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, pp. *4-5.) Both Sterling Woods and defendant were members of the Black P-Stones gang, which is a Bloods gang. (Id. at pp. *5-7.) The Bitty Stone Bloods, which is a subset of the Black P-Stone Bloods, claimed the territory around the automobile repair shop. The area adjacent to that territory was claimed by the Schoolyard Crips. (Id. at p. *5.) Bloods gangs are rivals of Crips gangs. The Bloods gangs' color is red; the Crips gangs' color is blue. The fact that Wilds was wearing blue clothing, owned a blue car, and was not recognizable from the neighborhood could lead members of the Black P-Stone Bloods to believe that Wilds was a Crips member who was in Black P-Stone territory. (Id. at p. *6.) B. The Conviction and Appeal
Defendant was convicted of first degree murder (§ 187), and the jury found to be true allegations that a principal used and discharged a firearm (§ 12022.53, subds. (b), (c), (d), and (e)(1)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1).) He was sentenced to a term of 50 years to life in state prison. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, pp. *1-2.) He appealed, contending (among other things) that the evidence was insufficient to prove his guilt as an aider and abettor, and to prove premeditation and deliberation. (Id. at p. *2.)
We affirmed the judgment. In rejecting defendant's insufficiency of the evidence contention, we observed that "defendant was convicted of a specific intent crime (first degree murder), and his guilt was not predicated on the natural and probable consequences doctrine. '"When the offense charged is a specific intent crime, the accomplice must 'share the specific intent of the perpetrator'; this occurs when the accomplice 'knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' [Citation.]" [Citation.] What that means here, when the charged offense and the intended offense—murder or attempted murder—are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator.'" (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, pp. *9-10, quoting People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
After examining the evidence, we concluded that substantial evidence supported the jury's finding that defendant aided the shooter, knowing of and sharing the shooter's intent to kill. (Brown I, supra, 2005 Cal.App.Unpub.LEXIS 6307, p. *10.) We also concluded the evidence was sufficient to support the jury's finding that the killing was premeditated and deliberate. (Id. at p. *13.) C. The Section 1170 .95 Petition and Proceedings
On February 8, 2019, defendant filed a petition for resentencing under section 1170.95. After receiving the petition, the trial court filed a minute order directing the prosecution to file an informal response, and ordering that defendant would have 30 days after receipt of the informal response to submit his reply to the court. The court noted that defendant requested appointment of counsel, and that it would address that request "upon the receipt of the informal response."
In its response to the petition, the prosecution argued that defendant was not entitled to resentencing under section 1170.95 because he was not convicted of murder under a felony murder or a natural and probable consequences theory, but was instead convicted as a direct aider and abettor who acted with the intent to assist the shooter in the murder. The prosecution attached as an exhibit to its response our opinion affirming the judgment against defendant, along with materials related to the prosecution's argument regarding the constitutionality of section 1170.95 (which is not an issue we must address here).
After receiving the prosecution's response, the court held a hearing at which the prosecutor, but not defendant (or any counsel representing defendant) was present. The court indicated that it had received part of the court file, which contained the jury instructions that were given, and had reviewed the file and our opinion affirming defendant's conviction. The court indicated that it was prepared to rule that defendant was not eligible for relief, but it ultimately decided that it should appoint counsel for defendant and allow defendant time to file a reply.
At the next hearing, held two months later, appointed counsel appeared on behalf of defendant. No reply to the prosecution's response had been filed. The court began the hearing by stating that it had reviewed the court file again, and confirmed that the jury was given only direct aiding and abetting instructions, and was not given any natural and probable consequences instruction. Therefore, it observed that by convicting defendant of first degree willful and premeditated murder, the jury necessarily found that defendant shared the intent to kill. The court asked defense counsel if he had anything to add, and counsel responded, "I haven't seen all the documents you have. I did read the court of appeal opinion, which is included in the People's [response]." Counsel told the court that "in order to proceed on this, I need more materials, because what I have—I don't have anything to respond to it." The court stated that it believed there was nothing that could change the fact that defendant is not eligible for relief because a jury found he had the intent to kill. The court denied the petition. Defendant timely filed a notice of appeal from that denial.
DISCUSSION
Defendant contends that a petition for resentencing under section 1170.95 is a "special proceeding," which requires the trial court to adhere strictly to the statutory procedure. He argues that the statute requires the court to appoint counsel for defendant and issue an order to show cause if defendant's petition states a prima facie case for relief. And, in determining whether defendant has alleged a prima facie case, the court must take the allegations as true and draw all legitimate inferences in favor of defendant, without considering other evidence and setting aside the possibility of contradiction. Defendant is mistaken.
A. Amendment of the Felony Murder Rule and Natural and Probable Consequences Doctrine
On January 1, 2019, California's felony murder rule and the natural and probable consequences doctrine were altered by Senate Bill No. 1437 (S.B. 1437). S.B. 1437 was enacted to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) It accomplished this purpose by amending section 188, defining malice, and section 189, defining the degrees of murder.
In amending section 188, S.B. 1437 added the following provision: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) S.B. 1437 also added the following as subdivision (e) of section 189: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.) B. Petitions Under Section 1170 .95
In addition to amending the felony murder rule and the natural and probable consequences doctrine, S.B. 1437 also added section 1170.95. (Stats. 2018, ch. 1015, § 4.) That statute allows a person convicted of felony murder, or murder under the natural and probable consequences doctrine, to "file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial. . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189." (§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the petition be filed with the court that sentenced the petitioner, and must include (a) a declaration by the petitioner that he or she is eligible for relief under the section; (b) the superior court case number and year of conviction; and (c) whether the petitioner requests appointment of counsel. Subdivision (b)(2) provides that the trial court may deny the petition without prejudice if any of the information required by subdivision (b)(1) is missing and cannot be readily ascertained by the court. (§ 1170.95, subd. (b)(2).)
Subdivision (c) provides: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
The remainder of the statute sets forth the procedure for responding to, and the hearing on, the order to show cause, as well as post-hearing matters.
Our court, and other appellate courts in California, have been inundated with appeals from summary denials of section 1170.95. In most, if not all, of those appeals defendants contend that section 1170.95 does not allow a trial court to deny a section 1170.95 petition before the appointment of counsel (if requested) and briefing by the parties. As we have noted in our previous opinions, that contention has been rejected by numerous courts, and the issue is currently before our Supreme Court. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1140 (Lewis), rev. granted, S260598, March 18, 2020; People v. Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), rev. granted, S260410, March 18, 2020; People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), rev. granted, S260493, March 18, 2020.)
We find the analysis in Verdugo particularly persuasive. As that court explained, "the relevant statutory language, viewed in context, makes plain the Legislature's intent to permit the sentencing court, before counsel must be appointed, to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made that the petitioner falls within the provisions of section 1170.95—that is, a prima facie showing the petitioner may be eligible for relief because he or she could not be convicted of first or second degree murder following the changes made by [S.B.] 1437 to the definition of murder in sections 188 and 189." (Verdugo, supra, 44 Cal.App.5th at p. 323; see also Lewis, supra, 43 Cal.App.5th at pp. 1137-1140; Cornelius, supra, 44 Cal.App.5th at p. 58.)
In reaching this conclusion, the Verdugo court noted that subdivision (b)(2) of section 1170.95 provides for an initial review to determine the facial sufficiency of the petition, while subdivision (c) "then prescribes two additional court reviews before an order to show cause may issue." (Verdugo, supra, 44 Cal.App.5th at p. 328.) The first of those is "made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Ibid.)
The court observed that the first prima facie review of the petition under subdivision (c) of section 1170.95 "must be something more than simply determining whether the petition is facially sufficient; otherwise given subdivision (b)(2), this portion of subdivision (c) would be surplusage." (Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) But the court noted that "the prebriefing determination whether the petitioner has made a prima facie showing he or she 'falls within the provisions of this section' must also be different from the postbriefing prima facie showing the petitioner 'is entitled to relief,' required for issuance of an order to show cause, if only in the nature and extent of materials properly presented to the court in connection with the second prima facie step, or else the two prima facie showings specified in subdivision (c) would be redundant." (Id. at p. 329.) The court concluded that "[t]he midpoint between section 1170.95, subdivision (b)(2)'s initial finding the petition is facially sufficient and subdivision (c)'s second prima facie showing the petitioner is entitled to relief is a preliminary review of statutory eligibility for resentencing, a concept that is a well-established part of the resentencing process under Propositions 36 and 47. [Citations.] The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Ibid.)
Addressing the process by which the court is to conduct the first review under section 1170.95, subdivision (c), the Verdugo court found that "subdivisions (a) and (b) of section 1170.95 provide a clear indication of the Legislature's intent. As discussed, subdivision (b)(2) directs the court in considering the facial sufficiency of the petition to access readily ascertainable information. The same material that may be evaluated under subdivision (b)(2)—that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable—should similarly be available to the court in connection with the first prima facie determination required by subdivision (c). . . . Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder. The record of conviction might also include other information that establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding [S.B.] 1437's amendments to sections 188 and 189. . . . [¶] Because the court is only evaluating whether there is a prima facie showing the petitioner falls within the provisions of the statute, however, if the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) C. Defendant's Contentions
As the above analysis makes clear, defendant's contention that under the procedure set forth in subdivision (c) of section 1170.95 the trial court cannot consider any materials beyond the allegations of the petition and must appoint counsel and issue an order to show cause if those allegations state a prima facie case for relief is incorrect. As in petitions for writ of habeas corpus, when the court's records contradict the allegations of the petition, the court is not required to assume the truth of the petition's allegations. (In re Serrano (1995) 10 Cal.4th 447, 456.) Here, the court's record of conviction—in particular, the jury instructions and our decision affirming defendant's conviction—establish as a matter of law that defendant's allegation that he is eligible for resentencing under section 1170.95 is untrue. Because the record shows that defendant was convicted of murder as a direct aider and abettor, the trial court did not err by summarily denying defendant's section 1170.95 petition.
The fact that the prosecution submitted a copy of our decision in Brown I is irrelevant. That decision is part of the record of conviction. (People v. Woodell (1998) 17 Cal.4th 448, 456.) --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.