Opinion
A165655
05-15-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY TYRONE CAMPBELL, Sr., Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. SC039245)
Fineman, J. [*]
Anthony Tyrone Campbell, Sr., appeals the denial of his petition for resentencing under Penal Code section 1172.6 . Campbell is serving a sentence of 25 years to life after this court affirmed his 1997 conviction of attempted murder (§§ 187, subd. (a), 664). (People v. Campbell (May 24, 1999, A079209) [nonpub. opn.] (Campbell I).) His appointed counsel filed a brief identifying no arguable issues to pursue and asked us to exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo) to review the record independently for error (in the manner required on a direct criminal appeal by People v. Wende (1979) 25 Cal.3d 436, 440-442 (Wende)). Counsel advised Campbell of his right to personally file a supplemental brief and Campbell timely filed his brief. We will thus resolve the arguments Campbell raises. (Delgadillo, supra, 14 Cal.5th at p. 232.)
All statutory references are to the Penal Code. At the time of the proceedings below, the provision was codified as section 1170.95. The Legislature renumbered the provision in 2022 without substantive change as section 1172.6. (Stats. 2022, ch. 58, § 10.) All references in this opinion are to the current section number.
On appeal, Campbell contends that at his jury trial, the trial court allowed the prosecution to impute malice to him on a natural-and-probable-consequences or felony murder theory, but that current law prohibits conviction under this theory. He also appears to ask us to review the record independently, citing Anders v. California (1967) 386 U.S. 738 (Anders), a federal decision on which Wende relied. (Wende, supra, 25 Cal.3d at pp. 439442.) We conclude that Campbell's arguments lack merit. Moreover, given the limited scope of issues that may be raised in a section 1172.6 petition, and the review of the record already performed by the trial court and appointed appellate counsel, we decline to exercise our discretion to review the record independently.
Factual and Procedural History
We draw this factual summary, for purposes of background, from Campbell I. In so doing, we acknowledge that section 1172.6 requires a court assessing whether a petition makes a prima facie showing to assume the truth of all factual allegations in the petition unless the record of conviction conclusively refutes them. (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) An appellate opinion affirming a conviction is considered part of the record of conviction and "may be considered in determining whether a prima facie showing has been made," but "on prima facie review such an opinion may not be conclusive." (People v. Langi (2022) 73 Cal.App.5th 972, 980, summarizing Lewis, supra, at pp. 971-972.) We do not rely on Campbell Is statement of facts to disregard or negate any factual allegations in Campbell's petition.
The operative pleading charged Campbell with attempted murder, aggravated mayhem (§ 205), and assault with a firearm (§ 245, subd. (a)(2)), with sentence-enhancement allegations for personally using a gun (§ 12022.5, subd. (a)), causing great bodily injury and paralysis (§ 12022.7, subds. (a)-(b)), and having two prior prison convictions (§ 667.5, subd. (b)).
The charges also included a torture count (§ 206), which the court dismissed for insufficient evidence (§ 1118.1).
Witnesses at trial testified that on a summer afternoon in 1996 at a social gathering in a park, Campbell shot an acquaintance, Cedrick Brazell, after Campbell was angered by a bit of drunken horseplay by Brazell. Brazell had slapped or grabbed Campbell in the rear from behind, leading Campbell to punch him. After the two exchanged heated words and were separated by others, Campbell asked Brazell, "do you want to die or something?," and Brazell replied "when, today?" Campbell then approached Brazell holding a gun and shot him once in the chest from 12-15 feet away-nearly killing him, damaging his spinal cord, and leaving him paralyzed from the chest down.
At trial, Brazell identified Campbell as his shooter. As described in the opinion, the defense focused on the issue of identity, as the evidence was conflicting on whether Brazell's intoxication prevented him from accurately remembering his shooter. The opinion never refers to evidence or arguments that there were multiple guns or gunshots, or that Campbell aided and abetted a different person who fired the shot that injured Brazell.
The jury found Campbell guilty on each count, and either the jury or the trial court found each enhancement allegation true. The jury specifically found that Campbell personally used the firearm and personally inflicted great bodily injury on Brazell. The court sentenced him to an aggregate determinate term of 11 years (for the sentencing enhancements) followed by an indeterminate term of 25 years to life on the attempted murder count.
The 11-year determinate sentence comprised 4 years for the personalgun-use enhancement (§ 12022.5, subd. (a)), 5 years for the infliction-of-paralysis enhancement (§ 12022.7, subd. (b)), and 1 year on each of the 2 prior-prison-term enhancements (§ 667.5). The court stayed sentence pursuant to section 654 as to the convictions for mayhem and assault with a firearm (as well as the enhancements as found in connection with those counts, which paralleled those found in connection with the attempted murder conviction).
On appeal, this court affirmed the judgment. (Campbell I, supra, A079209, at p. 2.) We rejected, among other arguments, a contention that the trial court had erred by not instructing the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder. (Id. at p. 12.) Campbell contended that the jury could have found that he formed the intent to kill Brazell only in the heat of passion. (Ibid.) We held that any error had been harmless, as the court had instructed the jury with CALJIC 8.67:" 'If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation. and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion, or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder.'" (Campbell I, supra, A079209, at pp. 12-13.) Thus, to convict, the jury necessarily found that Campbell did not act in the heat of passion, and it would not have convicted him of attempted voluntary manslaughter if given the option, as it had "rejected the option of convicting [him] of the lesser offense of attempted murder without premeditation." (Id. at p. 13.)
In November 2021, Campbell, representing himself, filed a petition for resentencing under section 1172.6. He alleged that the information filed against him "allowed the prosecution to proceed under a theory of felony murder as relevant to the natural and probable consequences doctrine." At his request, the trial court appointed advisory counsel to assist him as he proceeded in pro per.
Section 1172.6 in fact requires a petitioner to allege that the pleading "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a)(1).)
The court received an opposition from the district attorney, with attached copies of the jury instructions and verdict forms and this court's opinion affirming the conviction, contending that the petition did not state a prima facie case, and two replies from Campbell.
In June 2022, the trial court, after reviewing the parties' briefing and case law, heard oral argument and held that the petition did not make a prima facie showing. The trial court denied the motion by minute order, and Campbell timely appealed.
Discussion
In 2018, Senate Bill No. 1437" 'amend[ed] 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.'" (People v. Gentile (2020) 10 Cal.5th 830, 842, quoting Stats. 2018, ch. 1015, § 1, subd. (f), superseded in other part by statute, as stated in People v. Birdsall (2022) 77 Cal.App.5th 859, 866, fn. 19.) As enacted, the statute added three provisions to the Penal Code addressing liability for murder, but did not address attempted murder. (People v. Porter (2022) 73 Cal.App.5th 644, 651 (Porter).) The first provision concerns felony murder and is thus not applicable here. (See People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4 ["California has no crime of attempted felony murder"].) The second provision narrowed the natural and probable consequences doctrine by amending section 188 to add subdivision (a)(3), which states that (with one irrelevant exception), "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.'" (Gentile, supra, at pp. 842-843.) The third provision, section 1172.6, created a procedure for one convicted of murder on a natural and probable consequences theory to seek relief. (Id. at p. 843.)
In 2021, the Legislature passed Senate Bill No. 775 to provide, as relevant here, that" 'persons who were convicted of attempted murder or manslaughter under . . . the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theor[y].'" (Porter, supra, 73 Cal.App.5th at p. 651, quoting Stats. 2021, ch. 551, § 1, subd. (a).)
The section 1172.6 process "begins with the filing of a petition containing a declaration that all requirements for eligibility are met." (People v. Strong (2022) 13 Cal.5th 698, 708, citing § 1172.6, subd. (b)(1)(A) (Strong).) Since the 2021 amendment, those requirements include, in relevant part, that the information allowed the prosecution to proceed under a theory of "attempted murder under the natural and probable consequences doctrine"; that the petitioner was convicted of attempted murder; and that they "could not presently be convicted of . . . attempted murder" because of recent changes to Section 188. (§ 1172.6, subds. (a)(1)-(3).)
Upon receiving a petition making those allegations, a trial court must determine if the petition states "a prima facie case for relief." (§ 1172.6, subd. (c).) If the petition and the record "establish conclusively that the [petitioner] is ineligible for relief," the court may dismiss the petition, but if the petitioner makes a prima facie showing," 'the court must issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.)
In assessing a prima facie showing, the court" 'can and should make use of the record of conviction.'" (Lewis, supra, 11 Cal.5th at p. 971.) That record includes jury instructions. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review dismissed Nov. 17, 2021, overruled in part on other grounds in Lewis, supra, at p. 957). It also includes verdict forms. (People v. Harden (2022) 81 Cal.App.5th 45, 59.) The prima facie inquiry is limited. The court takes the petition's factual allegations as true and preliminarily assesses whether, if proven, they would entitle the petitioner to relief. But if the record of conviction, including the court's own documents, establishes facts conclusively refuting the petition's allegations, the court need not treat them as true. (Lewis, supra, at p. 971.)
In his petition, Campbell made the three required allegations for an attempted-murder case under section 1172.6, subdivision (a).
The petition, drafted by Campbell, included an extraneous allegation that the information allowed the prosecution to proceed "under a theory of Felony Attempted Murder as relevant to the Natural and Probable Consequences Doctrine." (Italics added; cf. People v. Billa, supra, 31 Cal.4th at p. 1071 & fn. 4 ["attempted felony murder" does not exist].) In accord with the mistaken focus on felony murder, the petition contended that the evidence showed that he did not act with "reckless indifference," one of the possible grounds for liability for an actual killing on that theory (see § 189, subd. (e)(3) ["The person was a major participant in the underlying felony and acted with reckless indifference to human life"]), because he did not play a significant role in planning to commit attempted murder. At oral argument below, Campbell clarified that he had not meant to contend that he was convicted on a theory of "felony attempted murder." Because the felony murder doctrine is irrelevant to this attempted murder case, we treat the petition as claiming simply that Campbell was subject to prosecution for "attempted murder under the natural and probable consequences doctrine" (§ 1172.6, subd. (a)(1)).
Although the district attorney has not filed a response to Campbell's supplemental brief in this court, he argued below that the petition did not make a prima facie case because the record of conviction showed conclusively that the jury could not have convicted Campbell of attempted murder on a theory of natural and probable consequences. That argument's unstated premise was that the natural and probable consequences doctrine applies only to an aider or abettor rather than, as in this case, a direct perpetrator. (See, e.g., People v. Laster (1997) 52 Cal.App.4th 1450, 1462-1463 [natural and probable consequences liability for attempted murder for aiding and abetting].)
In the trial court, the district attorney noted the jury's finding that, in the commission of the attempted murder, Campbell personally used a firearm and personally inflicted great bodily injury on Brazell. Those findings exclude the possibility that the jury found that the shooter was a different person whom Campbell aided and abetted. The district attorney also noted that the trial court had given a standard attempted murder instruction requiring the jury to find that "[t]he person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being," (CALJIC 8.66) and an instruction for the special allegation of premeditation and deliberation, which required a finding that the attempted murder "was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation" (CALJIC 8.67).Pursuant to that instruction, the jury returned a special verdict that "the attempt to murder Cedric Dwayne Brazell was willful, deliberate and premeditated."
Unlike murder, the crime of attempted murder does not have different degrees, but an attempted murder committed with premeditation and deliberation is subject to more severe penalties. (See § 664, subd. (a); People v. Favor (2012) 54 Cal.4th 868, 876-877.)
In his reply below, Campbell primarily argued that parts of CALJIC 8.66, the standard instruction defining attempted murder, permitted the jury to find him guilty on a natural and probable consequences or "attempted felony murder" theory. However, the parts of the instruction he quoted- which define murder, express malice aforethought, and the kind of act that can satisfy the "direct but ineffectual act . . . towards killing another human being" element of attempted murder-are unrelated to the natural and probable consequences doctrine and would not have enabled the jury to find him guilty on such a theory.
In finding that the petition did not make a prima facie showing, the court noted that the jury was given no instructions on a natural and probable consequences theory of liability for attempted murder. The court properly relied on the jury instructions (Lewis, supra, 11 Cal.5th at pp. 967, 971; Soto, supra, 51 Cal.App.5th at p. 1055) in reaching its conclusions.
On appeal, Campbell contends that the prosecution was allowed to impute malice to him on a natural and probable consequences theory but does not point to any evidence or present any argument showing how the prosecution could have done so. He does not contend that the set of jury instructions submitted by the district attorney is incomplete. Those instructions, as the trial court noted, include none on aiding and abetting, the natural and probable consequences theory, or any other doctrine under which the jury could have found that someone other than Campbell shot Brazell, and imputed that person's malice to Campbell.
The instructions permitted the jury to find Campbell guilty of attempted murder only if it found that "a direct but ineffectual act was done by one person towards killing another human being," and that the person committing the act "harbored express malice aforethought." The instructions did not enable the jury to find that someone else committed the "direct but ineffectual act" while harboring express malice, and that Campbell was guilty of attempted murder as an aider and abettor of that other person. Moreover, as noted, the jury found true the allegations that, during the commission of the attempted murder, Campbell "personally used a firearm" and "personally inflicted great bodily injury upon . . . Brazell," further negating any possibility that he was found guilty as an aider and abettor on a natural and probable consequences theory. The trial court did not err in denying his petition.
If the jury did not believe the testimony of Brazell and other witnesses that Campbell was the shooter, Campbell would have been acquitted.
Campbell's further arguments on appeal that the record contains no evidence to support the prosecution theory that he committed the attempted murder with premeditation and deliberation, and that the trial court erroneously sentenced him as for actual rather than attempted murder, are not cognizable on a section 1172.6 petition.
Disposition
The order denying Campbell's petition for relief pursuant to Penal Code section 1172.6 is affirmed.
WE CONCUR: Streeter, Acting P. J. Goldman, J.
[*] Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.