Opinion
B329396
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. DESHON BRITT, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal; Deshon Britt, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, No. TA098926 John J. Lonergan, Jr., Judge. Affirmed.
Benjamin Owens, under appointment by the Court of Appeal; Deshon Britt, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SEGAL, Acting P. J.
INTRODUCTION
A jury convicted Deshon Britt in August 2009 of first degree murder. The jury found, among other things, that Britt personally used a firearm and that he committed the crimes in association with, 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. Britt was sentenced to a prison term of 50 years to life. We affirmed Britt's conviction on direct appeal. (People v. Britt (June 6, 2011, B218965) [nonpub. opn.] (Britt I).)
On February 15, 2023 the superior court denied Britt's petition for resentencing under Penal Code section 1172.6 (former section 1170.95) without issuing an order to show cause. The court ruled Britt was ineligible for resentencing as a matter of law because the court had denied a similar petition by Britt in January 2019 and the court was "not going to revisit the same exact petition on the same grounds." The trial court also pointed out that in February 2020 we (after transfer from the Supreme Court) affirmed the court's January 2019 order denying Britt's prior petition for resentencing. (People v. Britt (Dec. 15, 2021, B297588) [nonpub. opn.] (Britt III).) Britt appealed from the February 15, 2023 order denying his most recent petition.
Statutory references are to the Penal Code.
We appointed counsel to represent Britt in this appeal. After reviewing the record, Britt's appointed appellate counsel filed a brief that did not identify any arguable issues. After independently reviewing the record and the contentions presented by Britt in his supplemental brief, we have not identified any either. Therefore, we affirm.
FACTUAL BACKGROUND
A. A Jury Convicts Britt of First Degree Murder, and We Affirm
In July 2008 Britt confronted Aaron Patterson, who was walking with two companions outside a liquor store, and asked, "Where are you from?" Patterson responded to this common gang challenge by stating, "8 Trey Gangster Crip," which indicated he belonged to a rival gang. Britt responded by stating "99 Watts Mafia Crip" and went into the liquor store to get a fellow gang member, Milton Jones.
Outside the store, Jones and Patterson argued and got into a fight. Patterson knocked Jones and Britt to the ground. Jones pulled out a gun and shot Patterson in the back of the head as Patterson tried to run away, killing him.
The jury found Britt guilty of first degree murder and found true the firearm and gang allegations. The trial court sentenced Britt to a prison term of 50 years to life.
Britt appealed, and we affirmed. We concluded that there "was sufficient evidence for a reasonable jury to find that Britt aided and abetted Jones in the murder"; that, "[l]ooking at the factors for specific intent," there was "sufficient evidence to conclude Britt shared the same intent as Jones"; and that "there was substantial evidence Britt premeditated and deliberated Patterson's murder." (Britt I, supra, B218965).
B. The Superior Court Denies Britt's First Petition for Resentencing, and We (Ultimately) Affirm
In January 2019 Britt, representing himself, filed a petition for resentencing under former section 1170.95. Britt checked boxes stating that he could not now be convicted of murder because of legislative changes to sections 188 and 189 effective 2019 and that he was convicted of felony murder and could not now be convicted because of those legislative changes. Britt also checked boxes stating he "was not the actual killer"; "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree"; and "was not a major participant in the felony or . . . did not act with reckless indifference to human life during the course of the crime or felony." Britt asked the superior court to appoint counsel for him.
The superior court, without appointing counsel, summarily denied Britt's petition. After reviewing the record of conviction and our opinion in Britt I, the court ruled Britt "was a major participant in the crime who acted with reckless indifference." Britt timely appealed from the order denying his petition.
In February 2020 we affirmed the superior court's order denying Britt's petition. We rejected his contentions the court erred in denying his petition without appointing counsel or issuing an order to show cause and in "stepping outside the four corners of [the] petition" by considering our opinion in Britt I to conclude he had not made a prima facie case for relief. (People v. Britt (Feb. 18, 2020, B297588) [nonpub. opn.] (Britt II), review granted May 13, 2020, S261128.)
In May 2020 the Supreme Court granted Britt's petition for review of our decision in Britt II (People v. Britt (May 13, 2020), S261128). In September 2021 the Supreme Court transferred the case back to us with directions to vacate Britt II and reconsider our decision in light of People v. Lewis (2021) 11 Cal.5th 952.
In Britt III we concluded that the superior court erred in not appointing counsel for Britt, but that the error was harmless. We explained that the jury was not "instructed on the natural and probable consequences doctrine or the felony-murder rule" and that under the trial court's instructions the jury could not have convicted Britt of murder on a now-invalid theory of imputed malice. (Britt III, supra, B297588).
C. The Superior Court Denies Britt's Second Petition for Resentencing
On November 21, 2022 Britt, representing himself, filed another form petition for resentencing under former section 1170.95. Britt again checked boxes indicating he could not presently be convicted of murder because of the legislative changes to sections 188 and 189 and again asked the court to appoint counsel to represent him.
On February 15, 2023, after appointing counsel for Britt, the superior court denied the petition. The court ruled Britt was ineligible for resentencing as a matter of law because "the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine." The court also stated its prior order "was affirmed by the appellate court, so this court is not considering this petition. You obviously can look at further recourse if there is any available. But as far as I'm concerned, once the appellate court has made a decision, I'm not going to revisit the same exact petition on the same grounds." Britt filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Britt in this appeal. After reviewing the record, appointed counsel filed a brief that did not identify any arguable issues. Appointed counsel advised Britt on October 30, 2023 he was filing a brief stating that he was unable to find arguable issues and that Britt could personally submit any contentions he believed this court should consider. Counsel also sent Britt a copy of the brief and the record on appeal. On October 31, 2023 this court also notified Britt that he could submit within 30 days a supplemental brief or letter stating any grounds for an appeal, contentions, or arguments he wanted us to consider and that, if he did not file a timely supplemental brief or letter, the court may dismiss the appeal as abandoned.
After granting Britt several extensions, on March 7, 2024 we received an 11-page, typed supplemental brief from Britt. Among other things, Britt argues there was no evidence that he "had expressly agreed to serve as back up while Jones committed the murder" or that "he committed an act that proximately caused the death to Mr. Patterson." Britt also argues that the jury "could have reasonably construed the instructions in a manner permitting it to convict [him] under a theory of imputed malice" and that the jurors were not instructed on "what crime" he allegedly aided and abetted.
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. Reyes (2023) 14 Cal.5th 981, 984; People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Curiel (2023) 15 Cal.5th 433,448-449; People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis, supra, 11 Cal.5th at p. 957.) 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). The latter provision requires the People to prove that the defendant was the actual killer (§ 189, subd. (e)(1)); that the defendant, though not the actual killer, with the intent to kill assisted in the commission of the murder (§ 189, subd. (e)(2)); or that the defendant was a major participant in a felony listed in section 189, subdivision (a), and acted with reckless indifference to human life, "as described in subdivision (d) of Section 190.2," the felony-murder specialcircumstance provision (§ 189, subd. (e)(3)). (See Curiel, at p. 448; People v. Wilson (2023) 14 Cal.5th 839, 868-869; Strong, at p. 708; Gentile, at pp. 842-843; People v. Cody (2023) 92 Cal.App.5th 87, 105.)
Section 1172.6 creates "a procedural mechanism for those convicted of murder under prior law to seek retroactive relief." (People v. Wilson, supra, 14 Cal.5th at p. 869; see People v. Curiel, supra, 15 Cal.5th at p. 449.) The statute authorizes an individual convicted of felony murder or murder, attempted murder, or voluntary manslaughter based on a natural and probable consequences doctrine, "or any other theory under which malice is imputed to a person based solely on that person's participation in a crime," 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, attempted murder, or manslaughter because of the changes the Legislature made to the definitions of the crime of murder. (See People v. Strong, supra, 13 Cal.5th at p. 798; People v. Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843.)
Section 1172.6, however, does not allow a petitioner to raise new arguments that are not based on the changes to sections 188 and 189. (See People v. Burns (2023) 95 Cal.App.5th 862, 865 ["Section 1172.6 does not create a right to a second appeal"].) The "mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Thus, to the extent Britt's supplemental brief challenges the original verdict, we cannot consider those arguments in this appeal.
Moreover, none of the contentions raised by Britt in his supplemental brief implicates the legislative changes to sections 188 and 189. Britt was not convicted on a theory of felony murder or under the natural and probable consequences doctrine. While the trial court instructed the jury on aiding and abetting, the amendments to the statutes governing accomplice liability for murder did "not change the law to prohibit direct aider and abettor liability on an imputed malice theory." (People v. Berry-Viverwinden (2023) 97 Cal.App.5th 921, 936.) As we explained in Britt III, there was "no reasonable likelihood the jurors would have understood the 'equally guilty' language [in CALCRIM former No. 400] to allow them to base defendant's liability for first degree murder on the mental state of the actual shooter, rather than on defendant's own mental state in aiding and abetting the killing." (Britt III, supra, B297588.) None of the issues in Britt's supplemental brief shows that he "could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 ...." (§ 1172.6, subd. (a)(3).)
Because neither Britt nor his appellate counsel has identified a cognizable legal issue, and our independent review has not identified one either, the order denying his petition for resentencing is affirmed. (See People v. Delgadillo (2022) 14 Cal.5th 216, 231-232; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The order is affirmed.
WE CONCUR: FEUER, J., MARTINEZ, J.