Opinion
B328318
07-12-2024
THE PEOPLE, Plaintiff and Respondent, v. DANTE BROWN, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Nikhil Cooper, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA212538 William C. Ryan, Judge. Reversed.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Nikhil Cooper, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
In 2002 a jury convicted Dante Brown of first degree murder and attempted murder. We affirmed the convictions. (People v. Brown (Sept. 13, 2004, B162138) [nonpub. opn.] (Brown I).)
Brown filed a petition for resentencing under Penal Code section 1170.95 (now section 1172.6), which the superior court denied without issuing an order to show cause. Because the record of conviction does not establish Brown is ineligible for relief as a matter of law, we reverse the order summarily denying the petition and direct the court to issue an order to show cause and conduct an evidentiary hearing under section 1172.6, subdivision (d).
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Brown and a Codefendant, and We Affirm
One day in January 2001 Hashim Keaton and Anthony Stubbs were walking along the street when a car approached and someone fired several gunshots at them from inside the car. Stubbs was hit several times and died the next day. Keaton was hit in the leg and survived. (Brown I, supra, B162138.)
We rely on the opinion in Brown I to provide a factual and procedural background of this case. We do not rely on any facts summarized in our prior opinion to determine whether the superior court erred in denying Brown's petition. (See People v. Lee (2023) 95 Cal.App.5th 1164, 1183 [superior court may not rely on the factual summary in an appellate opinion to determine at the prima facie stage whether a petitioner is ineligible for resentencing under section 1172.6 as a matter of law]; People v. Flores (2022) 76 Cal.App.5th 974, 988 [same].)
The People charged two men, Brown and Donald Raye Henson, with the murder of Stubbs and the attempted murder of Keaton. A jury convicted Brown and Henson on both counts. On each of the attempted murder convictions, the jury also found true the allegation the attempted murder "was committed willfully, deliberately and with premeditation within the meaning of" section 664, subdivision (a). On the murder and attempted murder convictions for Brown, the jury found true the allegation Brown personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivisions (d) and (e)(1). On the murder and attempted murder convictions for Henson, the jury similarly found true the allegation "a principal" personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivisions (d) and (e)(1). On all counts, the jury found true allegations Brown and Henson committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of section 186.22. The trial court sentenced Brown and Henson each to an aggregate prison term of 75 years to life, plus a term of life.
Brown and Henson appealed. As relevant here, they argued the trial court erred in instructing the jury on the natural and probable consequences doctrine under then-existing law. The trial court had instructed the jury:
"In order to find the defendant guilty of the crimes of murder and/or attempted murder . . . you must be satisfied beyond a reasonable doubt that:
"(1) The crimes of assault with a firearm were committed;
"(2) That the defendant aided and abetted those crimes;
"(3) That a co-principal in that crime committed the crimes of assault with a firearm; and
"(4) The crimes of murder and/or attempted murder were a natural and probable consequence of the commission of the crimes of assault with a firearm ...."
We agreed with Brown and Henson the instruction was improper. We explained that, under the law at the time, to find a person who aided and abetted a criminal act (i.e., the target offense) liable for murder or attempted murder under the natural and probable consequences doctrine, the jury had to find "the actual perpetrator [of the murder or attempted murder] harbored malice (either express or implied)." We held the instruction "misstated the law because it informed the [jurors] they could convict the aider and abettor of murder and attempted murder based merely on a finding the perpetrator possessed the intent to commit an assault with a deadly weapon (the target offense). The instruction failed to tell them that they had to find the perpetrator harbored malice for murder and attempted murder ...." (Brown I, supra, B162138; see People v. Culuko (2000) 78 Cal.App.4th 307, 322.)
We held, however, the error was harmless because the verdict forms reflected the jury necessarily found Brown and Henson guilty on valid theories of murder and attempted murder. We explained that, in addition to giving an erroneous instruction on the natural and probable consequences doctrine, the trial court instructed the jury that it could convict Brown and Henson of murder and attempted murder if they had the intent to kill. Because the verdict forms reflected the jury "clearly found that Brown and Henson committed" the attempted murder of Keaton "deliberately and with premeditation within the meaning of Penal Code section 664, subdivision (a)," we concluded "the jury must have concluded" whichever defendant perpetrated the attempted murder of Keaton "possessed the requisite mental state (malice) for the attempted murder ...." We also concluded that, because "the murder of Stubbs occurred during the same, uninterrupted shooting spree which injured Keaton, . . . the jury must have also relied upon the correct murder theory" in finding Brown and Henson guilty of the murder of Stubbs; i.e., the perpetrator of the murder had malice aforethought. Therefore, we affirmed the convictions. (Brown I, supra, B162138.)
B. Brown Files a Petition for Resentencing, and the Superior Court Denies the Petition Without Issuing an Order To Show Cause
In 2019 Brown filed a petition for resentencing under section 1170.95 (now section 1172.6), which, as amended effective January 1, 2022, authorizes certain individuals convicted of murder under the felony-murder rule, or murder, attempted murder, or voluntary manslaughter under the natural and probable consequences doctrine, to petition the superior court for resentencing. Brown checked boxes on a form petition for resentencing stating he had been convicted of first degree murder under the natural and probable consequences doctrine and could not now be convicted of first or second degree murder because of changes the Legislature made to sections 188 and 189. After the superior court appointed counsel for Brown, the People filed a response arguing Brown was ineligible for resentencing as a matter of law. In particular, the People observed that, on the verdict forms for Brown, the jury found true the allegation "said defendant, Donte Maurice Brown, personally and intentionally discharged a firearm," but that on the verdict forms for Brown's codefendant, Henson, the jury found true the allegation "a principal" personally and intentionally discharged a firearm. Therefore, according to the People, the jury found Brown was the actual shooter who killed Stubbs during the drive-by shooting.
The superior court denied Brown's petition, largely agreeing with the People. According to the court, it was "clear" from the verdict forms that the jury found Brown was the principal who personally and intentionally discharged a firearm and that Henson's liability for the firearm enhancements "stemmed from [Brown] as the principal." In addition, the court discussed our holding in Brown I and concluded we "determined that [Brown] possessed the requisite intent for the murder of Stubbs and that the jury did not rely on the natural and probable consequences doctrine in convicting [Brown]." Brown appealed from the order denying the petition.
DISCUSSION
Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel); People v. Reyes (2023) 14 Cal.5th 981, 986) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see Curiel, at p. 448; People v. Wilson (2023) 14 Cal.5th 839, 868-869 (Wilson)). Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189, subdivision (e). (Curiel, at p. 449; People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Section 1172.6 authorizes an individual convicted of felony murder or murder based on the natural and probable consequences doctrine, attempted murder under the natural and probable consequences doctrine, or manslaughter, to petition the superior court to vacate the conviction and be resentenced on any remaining counts, if he or she could not now be convicted of murder or attempted murder because of the changes the Legislature made effective 2019 to the definitions of the crime. (See Curiel, supra, 15 Cal.5th at pp. 449-450; Wilson, supra, 14 Cal.5th at p. 869.) If a section 1172.6 petition contains all the required information, the court must appoint counsel to represent the petitioner, if requested, and hold a hearing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (§ 1172.6, subds. (b)(1)(A), (3) &(c); see People v. Lewis (2021) 11 Cal.5th 952, 962-963 (Lewis); People v. Hurtado (2023) 89 Cal.App.5th 887, 891.) If the petitioner has made the requisite prima facie showing, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction, and resentence the petitioner on any remaining counts. (See § 1172.6, subds. (c), (d)(1); Curiel, at p. 450; Wilson, at p. 869.)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, "'"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved."'" (Curiel, supra, 15 Cal.5th at p. 460; see § 1172.6, subd. (c); Lewis, supra, 11 Cal.5th at p. 971.) The court, however, may "look at the record of conviction," including jury findings, "to determine whether a petitioner has made a prima facie case for section 1170.95 relief." (Lewis, at p. 971; see Curiel, at p. 451.) The court "'"should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing,"'" nor should the court "engage in '"factfinding involving the weighing of evidence or the exercise of discretion."'" (Curiel, at pp. 460, 465; see Lewis, at pp. 971-972.) But if the record of conviction "'"'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified'"'" in rejecting them. (Curiel, at p. 460; see Lewis, at p. 971.) "Consequently, '[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.'" (Curiel, at p. 460; see People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) We review de novo an order denying a petition under section 1172.6 without issuing an order to show cause. (People v. Estrada (2024) 101 Cal.App.5th 328, 337; People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211; People v. Lee (2023) 95 Cal.App.5th 1164, 1174.)
B. The Trial Court Erred in Ruling Brown Is Ineligible for Relief as a Matter of Law
Brown argues the superior court erred in summarily denying his petition because, Brown maintains, his allegations, if accepted as true, entitle him to relief under section 1172.6. On this point, we agree with Brown. Brown's allegations stated a prima face case for relief on his murder conviction: The information allowed the prosecution to proceed on a theory of murder under the natural and probable consequences doctrine; Brown was convicted of murder following a trial; and Brown could not now be convicted of murder based on the legislative changes to sections 188 and 189. (See § 1172.6, subd. (a)(1)-(3).) Moreover, the record of conviction demonstrates the trial court instructed the jurors that they could find Brown liable for murder under the natural and probable consequence doctrine (albeit an invalid version of the doctrine).
Brown's petition did not include a request for resentencing on his attempted murder conviction, and the superior court ruled only that Brown was ineligible for relief under section 1172.6 on his murder conviction. After Brown filed his petition, the Governor signed Senate Bill No. 775 (2021-2022 Reg. Sess.) which, effective January 1, 2022, "expanded former section 1170.95's provisions to apply also to persons convicted of attempted murder or manslaughter." (People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3; see Stats. 2021, ch. 551.) Brown asserts he is not ineligible as a matter of law for relief on his attempted murder conviction. Because Brown did not (yet) file a petition requesting relief on his attempted murder conviction, and because the superior court did not address Brown's conviction for attempted murder, we do not consider Brown's arguments regarding that conviction.
Brown further argues that neither the jury's finding he personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivisions (d) and (e)(1), nor our holding in Brown I the trial court's erroneous instruction on the natural and probable consequence doctrine was harmless, establishes he is ineligible for relief as a matter of law. We agree with Brown on these points as well.
1. The Jury's Findings on the Firearm Allegations Do Not Establish Brown Is Ineligible for Relief
The People rely on two parts of the record: the verdict forms on the firearm allegations and the prosecutor's closing argument. As stated, on the verdict forms for Brown, the jury found true the allegation that "said defendant, Donte Maurice Brown," personally and intentionally discharged a firearm causing great bodily injury and death to Stubbs, within the meaning of section 12022.53, subdivisions (d) and (e)(1). In contrast, on the verdict forms for Henson, the jury found true the allegations that "a principal" personally and intentionally discharged a firearm causing great bodily injury or death to Stubbs. In her closing argument, the prosecutor made several statements indicating the prosecution's theory was that it was Brown, not Henson, who shot at Stubbs and Keaton. For example, the prosecutor argued: "In this particular case, Defendant Brown has been identified as the shooter. It's the People's position that he's the direct perpetrator of these crimes." At another point, the prosecutor argued: "I don't think the evidence has shown by any witness identification that anybody other than Defendant Brown was responsible for the actual shooting." The People argue the different wording in Brown's and Henson's verdict forms for the findings on the firearm allegations, coupled with the prosecutor's arguments to the jury, shows as a matter of law the jury found Brown was the "sole shooter."
As the Supreme Court has explained, "general principles of issue preclusion inform[ ] our consideration of the effect of prior jury findings in a resentencing proceeding under section 1172.6." (Curiel, supra, 15 Cal.5th at p. 451; see Strong, supra, 13 Cal.5th at p. 715.) "'As traditionally understood and applied, issue preclusion bars relitigation of issues earlier decided "only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding."'" (Curiel, at pp. 451-452; see Strong, at p. 716.)
Here, the first and third requirements are not satisfied; the jury did not decide Brown was the actual shooter, nor was such a determination necessary to the jury's findings on the firearm allegation. The trial court's instruction allowed the jury to find Brown "personally and intentionally discharged a firearm" within the meaning of section 12022.53, subdivisions (d) and (e)(1),regardless of whether the jury found it was Brown or Henson who shot Stubbs. The court did not give a separate instruction on section 12022.53 for Brown and Henson. The court instructed the jury with one, modified version of CALJIC No. 17.19.5: "It is alleged in counts 2 [murder] and 3 [attempted murder] that defendant Brown and or a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person in the commission of the crimes charged. If you find the defendants guilty of one or more of the crimes thus charged, you must determine whether defendant Brown and or a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person in the commission of those felonies....The term 'intentionally and personally discharged a firearm,' as used in this instruction, means that the defendant Brown and or a principal himself must have intentionally discharged it." Thus, under these instructions, by finding that Brown "personally and intentionally discharged a firearm . . . within the meaning of section 12022.53, subdivisions (d) and (e)(1)," the jury found Brown or a principal (i.e., Henson) personally and intentionally discharged a firearm- not necessarily that Brown was the shooter. (See People v. Offley (2020) 48 Cal.App.5th 588, 600 [a true finding under section 12022.53, subdivision (e)(1), "shows only that a principal to the crime proximately caused [great bodily injury or] death," but "does not show that [the defendant] played a direct role in killing the victim"]; see also In re Ferrell (2023) 14 Cal.5th 593, 604 ["findings under Penal Code section 12022.53, subdivision (d), do not, on their own, encompass the definition of implied malice murder"].)
Section 12022.53, subdivision (d), provides that a person who personally and intentionally discharges a firearm and proximately causes great bodily injury or death in the commission of certain enumerated crimes, including murder and attempted murder, shall be punished by an additional, consecutive term of imprisonment of 25 years to life. Subdivision (e)(1) of that section provides that the penalty in subdivision (d) applies "to all principals of a crime regardless of whether or not they personally fired a weapon, so long as the crime was committed for the benefit of a criminal street gang." (People v. Offley (2020) 48 Cal.App.5th 588, 599-600.)
In addition, the jury did not have the ability on Brown's verdict form to specify whether Brown or "a principal" personally and intentionally discharged a firearm. The record includes one verdict form for Brown, and one verdict form for Henson. Brown's verdict form asked the jury to find "true" or "not true" the allegation Brown personally and intentionally discharged a firearm causing death and great bodily injury, "within the meaning of Penal Code section 12022.53, subdivisions (d) and (e)(1) ...." The presiding juror wrote the word "true." Had Brown's verdict form asked, for example, whether it was Brown or "a principal" who personally and intentionally discharged a firearm, the jury's selection of Brown rather than a principal may have indicated a finding Brown was the person who shot Stubbs.But because Brown's verdict form asked the jury to find "true" or "not true" the firearm allegation, and because the court instructed the jury to determine whether "Brown and or a principal" personally and intentionally discharged a firearm, the jurors' verdict does not show they actually or necessarily found Brown was the shooter. (See Curiel, supra, 15 Cal.5th at p. 467 [the standard at the prima facie stage is whether the jury "necessarily found" the elements required to convict the petitioner on a valid theory of murder or attempted murder].)
Even then, however, the jury's finding may not have been necessary to the verdict under the principles of issue preclusion.
Moreover, though the prosecutor argued in closing argument the evidence showed Brown was the shooter, she also told the jurors at one point they could find the allegations true even if they were unsure who the shooter was: "If you think that [Brown] was in the car and Mr. Henson was in the car . . . but you don't know which one of them shot, then you just have to find the principal personal use allegation to be true." Therefore, the firearm findings do not establish the jury necessarily found Brown rather than Henson was the shooter. (See People v. Maldonado (2023) 87 Cal.App.5th 1257, 1269 ["given the ambiguous jury instructions, and after considering the prosecutor's closing argument, we cannot say the record conclusively establishes appellant is ineligible for relief"]; cf. People v. Harden (2022) 81 Cal.App.5th 45, 56 [defendant was ineligible for relief under 1172.6 where the "instructions and verdicts show[ed] the only path to convicting" the defendant of murder with special circumstances findings "was based on a finding she actually killed" victim].)
2. Our Opinion in Brown I Did Not Establish Brown Is Ineligible for Relief
The People contend that in Brown I we held that the trial court's instruction on the natural and probable consequences doctrine "could not have influenced the verdicts." According to the People, the law of the case doctrine bars Brown from challenging that holding in a subsequent proceeding and therefore precludes Brown from obtaining relief under section 1172.6.
"Under the law of the case doctrine, when an appellate court '"states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal ...."' [Citation.] Absent an applicable exception, the doctrine 'requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.'" (People v. Barragan (2004) 32 Cal.4th 236, 246; see People v. Campbell (2023) 98 Cal.App.5th 350, 371.)
The People misconstrue our holding in Brown I. We did not hold the trial court's instruction on the natural and probable consequences doctrine could not have influenced the verdicts. Rather, we held the trial court's error in describing the doctrine to the jury-the error Brown and Henson raised on appeal-did not influence the verdict; that is, the error was harmless because the jury "would have reached the same verdict even in absence of the error ...." (Brown I, supra, B162138.)
As stated, to find a person liable for murder or attempted murder under the natural and probable consequences doctrine under then-existing law, the jury had to find the actual perpetrator of the murder or attempted murder acted with malice. (People v. Culuko, supra, 78 Cal.App.4th at p. 322; see People v. Mendoza (1998) 18 Cal.4th 1114, 1123 ["[t]he actual perpetrator must have whatever mental state is required for each crime charged"].) The trial court's instruction misstated the law because it allowed the jury to convict Brown and Henson of murder or attempted murder under the natural and probable consequences doctrine, even if the jury found the actual perpetrator intended only to commit assault with a firearm. It was that erroneous instruction, on the required mens rea of the actual perpetrator, we held was harmless. Because the jury found true the allegation the attempted murder was committed deliberately and with premeditation, within the meaning of Penal Code section 664, subdivision (a), we concluded the jury could not have found the actual perpetrator of the attempted murder intended only to commit assault with a firearm. And, because the evidence showed there was one, uninterrupted shooting spree, we concluded the jury could not have found the actual perpetrator of the murder intended only to commit assault with a firearm either. For these reasons, we held the jury would have reached the same verdict even in the absence of the court's erroneous instruction. (Brown I, supra, B162138.)
We did not, however, foreclose the possibility the jury still could have convicted Brown or Henson under the natural and probable consequences doctrine. For example, the jury may have found that both Brown and Henson were in the car during the drive-by shooting and that one of the two men (i.e., the shooter) attempted to kill Keaton and killed Stubbs, but the jury may not have determined beyond a reasonable doubt which of the two men was the shooter. The jury then may have convicted each defendant of murder and attempted murder by finding that the shooter acted with premeditation and deliberation under section 664, subdivision (a), and that the nonshooter aided and abetted the commission of an assault with a firearm, of which the crimes of murder and attempted murder were the natural and probable consequence.
As the People concede, "[b]ecause section 664(a) 'requires only that the attempted murder itself was willful, deliberate, and premeditated' [citation], it is only necessary that the attempted murder 'be committed by one of the perpetrators with the requisite state of mind.'" (People v. Favor (2012) 54 Cal.4th 868, 879; see People v. Lee, supra, 31 Cal.4th at p. 626.) Therefore, if the jury convicted a defendant of attempted murder under the then-existing natural and probable consequences doctrine, the jury could find true the allegation under section 664, subdivision (a), against that defendant, even if the defendant did not "personally act[ ] willfully and with deliberation and premeditation ...." (Favor, at p. 877; see Lee, at p. 628 ["section 664(a), properly interpreted, does not require personal willfulness, deliberation, and premeditation on the part of an attempted murderer"].)
We did state in Brown I "the jury must have concluded appellants possessed the requisite mental state (malice) for the attempted murder of Keaton." (Brown I, supra, B162138.) But that single statement does not preclude Brown from relief under the law of the case doctrine. In order to hold the trial court's erroneous instruction was harmless, we did not have to conclude the jury found Brown and Henson possessed the requisite mental state for murder and attempted murder; we only had to hold the jury concluded at least one defendant (the actual perpetrator) possessed the requisite mental state. To the extent our opinion in Brown I could be interpreted as suggesting the jury necessarily found both Brown and Henson acted with malice during the shooting of Stubbs and Keaton, such a suggestion was dictum and would not bar Brown from relief under section 1172.6. (See Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498 ["the 'discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally recorded as obiter dictum and not as the law of the case'" because "'[i]t is fundamental that the point relied upon as law of the case must have been necessarily involved in the case'"]; People v. Neely (1999) 70 Cal.App.4th 767, 783 ["Neither the 'law of the case' nor collateral estoppel doctrines extend to dicta."]; Salaman v. Bolt (1977) 74 Cal.App.3d 907, 917 ["the stated rule of law relied upon as the law of the case must have been necessary to the decision of the case on appeal"].)
DISPOSITION
The order denying Brown's petition under section 1172.6 is reversed. The superior court is directed to issue an order to show cause and conduct an evidentiary hearing under section 1172.6, subdivision (d).
WE CONCUR: MARTINEZ, P. J., STONE, J.