Opinion
F086768
03-07-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE BRIGGS, Defendant and Appellant.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F22904417, Gregory T. Fain, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2022, appellant and defendant Johnny Lee Briggs (defendant) was convicted of first degree murder with a firearm enhancement and sentenced to 50 years to life. In 2023, he filed a petition for resentencing pursuant to Penal Code section 1172.6. The trial court summarily denied the petition and found he was ineligible for resentencing as a matter of law since he was tried and convicted after the effective date of the amendments enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437).
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellate counsel filed a brief that summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Defendant submitted a letter brief. We review his claims and affirm the trial court's denial of his petition.
After notice to the parties and without opposition, this court takes judicial notice of the record and nonpublished opinion in People v. Briggs (Sept. 18, 2023, F085346) (Briggs) that affirmed the judgment on direct appeal. (Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22 Cal.App.5th 284, 286-287, fn. 2.) The following factual statement is taken from this court's opinion. In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972.) We will not rely on these facts to resolve appellant's appeal from the trial court's order that found his petition did not state a prima facie case for relief.
"Defendant shot and killed his cousin, Russell Lowe, one evening in June 2022 at a Fresno public park where Lowe frequently socialized. Earlier that evening, Lowe had picked up Kenyanna Ricks-with whom he had several children-and dropped her off near the park, telling her he would meet her at the park soon. According to the detective later assigned to the homicide case, Ricks reported that while she was in the car with Lowe driving toward the park, Lowe received a call on speakerphone during which the caller mentioned that defendant was at the park. Defendant and Lowe had once been 'fairly close' but they were no longer on friendly terms, for reasons unknown to Ricks.
"At trial, Ricks denied having said this to the detective but testified that Lowe did receive a call from another woman during their drive." (Briggs, supra, F085346, at p. 3, fn. 4.)
"After being dropped off, Ricks walked to the park and sat on the bleachers near one of the softball fields. About 60 people were at the park that evening, and a recreational team was playing or practicing on the softball diamond. Defendant was indeed at the park already; Ricks saw him standing near the bleachers, acting 'nonchalant' and talking with others.
"Soon after, Lowe arrived in his car; but he did not park in a designated space. He double parked in the middle of the street, got out, and left the car running and his driver's side door open. Lowe walked over to the bleachers where Ricks was. Ricks testified that Lowe was acting 'cocky' but 'he wasn't looking like he was angry or anything.' At the same time, she also testified that, although she did not know the basis for 'whatever dispute, whatever argument [defendant and Lowe] had,' she knew that 'when [Lowe] got out [of] the car like that, there was a reason for it.'
"At trial, Ricks described Lowe's fatal encounter with defendant as follows. Lowe was coming toward Ricks from one direction, defendant was coming up from behind her, and they stopped in front of her, about six feet apart from each other. Lowe greeted defendant by saying,' "What's up, bitch ass [n*****]?"' Lowe did not 'flinch' or 'lunge' at defendant; he 'just stood there.' Defendant did not say anything back, but he pulled a gun partly out of his pocket, displaying the handle to Lowe. Lowe stayed where he was standing and said,' "I'm not worried about that."' Defendant then pulled out the gun and shot Lowe in the face. Lowe fell to the ground, and Ricks rushed to give him CPR. Defendant walked past them, smiled, and walked away.
"Two men who were playing on the softball diamond that evening also testified at the trial. Both heard the gunshot and an argument beforehand, but neither saw the shooting nor heard any of the words exchanged. The first ballplayer, who was playing shortstop, took special notice of Lowe's arrival because it was his car that Lowe had double parked beside. The shortstop did not know Lowe, but he described seeing a tall African American man get out of the car and walk into the park fast, 'like he was in a hurry.' He saw Lowe give a little hug to a woman (perhaps Ricks) and then walk up to a group of about five men standing nearby. When asked whether Lowe seemed angry, the ballplayer testified, 'He just looked like he was there to do something, that's it.' He added that Lowe's 'face looked a little angry, but he just had a calm like look type of face [sic].' After Lowe approached the group, the shortstop looked away for less than 15 seconds and then heard the gunshot. Just before the gunshot, he heard 'a mild argument, like voices were getting loud' for "a couple [of] seconds, maybe to a minute.' He did not hear any threats, nor could he hear any of the statements being made.
"The second ballplayer was standing near first base conversing, with his back to the bleachers, when he heard the loud pop of the gunshot behind him. When asked whether he heard any sort of argument or loud words spoken beforehand, the second ballplayer answered that it was 'just loud in general,' with music and people talking. He recalled a group of about six African American people in the area. He heard 'somebody getting really loud,' and he did hear a short argument, which he described as 'two people ... bickering' behind him. He estimated that 45 seconds or less passed between the bickering and the pop of the gunshot. Like his teammate, the first baseman could not say what words were exchanged before the gunshot, and he did not hear any threats.
"Lowe was taken to the hospital, where he died about two weeks later as a result of the gunshot, which perforated his brain. Defendant was apprehended the day after the shooting." (Briggs, supra, F085346, at pp. 3-5.)
PROCEDURAL BACKGROUND
On July 13, 2022, an information was filed in the Superior Court of Fresno County charging defendant with count 1, murder of Lowe on or about June 20, 2022 (§187, subd. (a)), with the special allegation that he personally and intentionally discharged a firearm that caused death or great bodily injury (§12022.53, subd. (d)).
"The information also alleged as an aggravating factor that defendant had numerous prior convictions or convictions of increasing seriousness under rule 4.421(b)(2) of the California Rules of Court. However, at the People's request the trial court later struck the prior conviction allegations." (Briggs, supra, F085346, at p. 2, fn. 2.)
Jury Instructions
On September 22, 2022, defendant's jury trial began.
The jury was instructed with CALCRIM No. 520, which defined first and second degree murder and express and implied malice; CALCRIM No. 521 on premeditation and deliberation for first degree murder, and CALCRIM No. 522 on provocation that could reduce first degree murder to second degree. The jury was also instructed with CALCRIM No. 3149 on the firearm enhancement.
The jury was not instructed on aiding and abetting, the felony-murder rule, the natural and probable consequences doctrine, or any other theory of imputed malice prohibited by the amendments to sections 188 and 189.
Verdict and Sentence
On October 5, 2022, the jury found defendant guilty of first degree murder, and found true the section 12022.53, subdivision (d) enhancement.
On November 2, 2022, the trial court held defendant's sentencing hearing, stated that it was aware it could strike the firearm enhancement, and explained the reasons why it declined to do so. The court sentenced defendant to 25 years to life for murder, and a consecutive term of 25 years to life for the firearm enhancement.
Direct Appeal
In Briggs, supra, F085346, defendant's direct appeal, we rejected his argument that the trial court prejudicially erred by refusing his request to instruct the jury on voluntary manslaughter as a lesser included offense. (Briggs, at p. 5.)
We agreed with the parties that two clerical errors required correction. First, the minute order for the sentencing hearing erroneously stated the section 12022.53, subdivision (d) enhancement was imposed pursuant to subdivision (b). Second, the abstract of judgment erroneously indicated defendant was sentenced under the "Three Strikes Law" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). We ordered the trial court to correct the minute order and abstract of judgment accordingly, and affirmed the judgment as corrected. (Briggs, supra, F085346, at pp. 9-11.)
DEFENDANT'S PETITION FOR RESENTENCING
On May 18, 2023, defendant filed, in propria persona, a petition for resentencing pursuant to section 1172.6, and requested appointment of counsel. He filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because he was convicted of murder, attempted murder, or manslaughter following a trial, and he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
On the same day, defendant filed a separate petition, also in propria persona, asserting that he was eligible for resentencing pursuant to section 1172.75 and People v. Burgess (2022) 86 Cal.App.5th 375. Section 1172.75 addresses the dismissal of section 667.5, subdivision (b) prior prison term enhancements that are no longer valid as a result of statutory amendments. (§ 1172.75, subd. (a).) Moreover, the statute requires the California Department of Corrections and Rehabilitation to initiate the dismissal and not an individual defendant, such that the denial of a defendant's section 1172.75 petition is a nonappealable order. (Burgess, at pp. 380, 384.) The trial court did not address defendant's section 1172.75 petition and he has not raised this matter in his letter brief. Moreover, defendant is statutorily ineligible for section 1172.75 relief under any circumstances because a section 667.5, subdivision (b) enhancement was not pleaded, proved, or imposed in this case.
The Court's Order
On August 7, 2023, the trial court filed an order that summarily denied defendant's section 1172.6 petition for resentencing. "In this matter, the alleged [m]urder took place in June [2022], the [j]ury [t]rial was held in October [2022,] and [d]efendant was sentenced in November [2022]. Thus, all relevant events in the current matter occurred AFTER the passage [of] the new law (Senate Bill 1437 took effect on January 1, 2019.) This court is not required to issue an order to show cause or schedule an evidentiary hearing because the defendant is ineligible for resentencing as a matter of law."
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief included counsel's declaration that appellant was advised he could file his own brief with this court. This court also advised appellant that he could file a supplemental letter brief, and the appeal would be dismissed pursuant to Delgadillo if he failed to do so within 30 days.
In response to this court's order, defendant filed a letter brief and states the trial court's summary denial of his petition was erroneous because the court relied on his murder conviction and the section 12022.53, subdivision (d) firearm enhancement to find he was ineligible for relief under section 1172.6 as a matter of law. Defendant asserts the jury could have convicted him of "natural and probable consequences murder without finding beyond a reasonable doubt that he acted with malice aforethought," under the now-prohibited theory, and the jury's finding on the firearm enhancement did not establish as a matter of law that he acted with express or implied malice.
To the extent the trial court erroneously denied defendant's petition without appointing counsel or conducting a hearing on the prima facie issue, it is not reasonably probable that, absent the error, his petition would not have been summarily denied without an evidentiary hearing. (People v. Lewis, supra, 11 Cal.5th at pp. 957-958, 972974; People v. Watson (1956) 46 Cal.2d 818, 836.)
First, the jury in this case was not instructed on aiding and abetting, the felony-murder rule, the natural and probable consequences doctrine, or any theory of imputed malice. We note that while CALCRIM No. 520 defined implied malice using the phrase "natural and probable consequences," such language did not implicate imputed malice. As used in CALCRIM No. 520, "implied malice is defined, in part, in terms of an act, the natural consequences of which are dangerous to life. But while the words 'natural' and 'consequences' overlap, the rest of the two formulations are completely different. '[T]he use of the term "natural consequences" in the .. definition of implied malice does not import into the crime of murder the caselaw relating to the distinct "natural and probable consequences" doctrine developed in the context of aiding and abetting liability.' [Citation.] [¶] . 'Senate Bill [1437] did nothing to remove implied malice as a basis for a second degree murder conviction.' [Citation.] . 'Though [Senate Bill 1437] abolished the natural and probable consequences doctrine, it maintained the viability of murder convictions based on implied malice, and the definition of implied malice remains unchanged.'" (People v. Carr (2023) 90 Cal.App.5th 136, 144; People v. Soto (2020) 51 Cal.App.5th 1043, 1056-1057; People v. Roldan (2020) 56 Cal.App.5th 997, 1004-1005.)
Second, the record conclusively refutes defendant's claim that the trial court denied defendant's petition based on the section 12022.53, subdivision (d) enhancement. Instead, the court correctly found defendant was ineligible because he was not charged, tried, or convicted under the now-prohibited theories of imputed malice. "[I]n order to be resentenced, the charging document filed against [the petitioner] must have allowed the prosecution to proceed under a theory of murder liability that is now invalid." (People v. Reyes (2023) 97 Cal.App.5th 292, 298 (Reyes).) "In order to be resentenced, a petitioner must allege that he could not presently be convicted of murder (or its attempt) 'because of changes' brought by Senate Bill No. 1437." (Ibid.)
Senate Bill 1437's amendments to sections 188 and 189, and enactment of the predecessor statute to section 1172.6, became effective on January 1, 2019; further amendments to the statute were enacted by Senate Bill 775 and became effective on January 1, 2022. (People v. Viscarra (2022) 84 Cal.App.5th 377, 387-388.) Defendant "was not convicted under the prior law, which permitted a theory of murder based on imputed malice." (Reyes, supra, 97 Cal.App.5th at p. 298.) Instead, he was charged, tried, and convicted in 2022, when "the now invalid theories of murder liability had already been eliminated. Consequently, [he] has already received the benefits of Senate Bill [1437]." (Ibid.)
As the trial court correctly found, defendant is not the type of petitioner that "this retroactive procedure was intended to benefit, and any contrary interpretation of this statute would lead to absurd results. The court did not err in denying the petition for resentencing, and a remand is not appropriate. This claim fails and we will affirm the court's order." (Reyes, supra, 97 Cal.App.5th at p. 299, fn. omitted.)
DISPOSITION
The trial court's order of August 7, 2023, denying defendant's petition for resentencing, is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and Snauffer, J.