Opinion
A157869
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LAWRENCE BRINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR289231)
Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015), permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition to vacate the murder conviction and be resentenced on any remaining counts.
All further unspecified statutory references are to the Penal Code.
Defendant and appellant Johnny Lawrence Brinson (Brinson) appeals the summary denial of his section 1170.95 petition. The superior court summarily denied his petition because (1) section 1170.95 provides relief only for persons convicted of murder, not attempted murder, and (2) even if the statute applied, Brinson was ineligible for relief because he was not convicted under a natural and probable consequences theory. We affirm.
Factual and Procedural Background
In 1999, Brinson and a codefendant were charged with attempted murder and jointly tried. The People presented three eyewitnesses, including the victim, all of whom identified Brinson as the person who shot the victim in the arm with a shotgun. The trial prosecutor argued to the jury that Brinson was the actual shooter and his codefendant was responsible as either a principal or aider and abettor. The trial prosecutor never argued the theory of natural and probable consequences, and there were no jury instructions or verdict forms referencing that theory.
The jury found Brinson guilty of attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a)) with a related allegation that he had personally used and discharged a firearm (§ 12022.53, subds. (b),(c)). The jury also found Brinson guilty of being a felon in possession of a firearm (§12021, subd. (a)(1)). The court found Brinson had a prior strike and serious felony conviction. (§§ 667, subd. (a), 1170.12.) The jury failed to reach a verdict concerning the codefendant, and the charge of attempted murder against him was later dismissed.
In May 2000, Brinson was sentenced to an aggregate term of 39 years to life. We affirmed the conviction in an unpublished opinion (People v. Brinson (June 26, 2001, A091236) [nonpub. opn.]), and review was denied by the Supreme Court (People v. Brinson (Sept. 12, 2001, S099585).
Section 1170.95 Petition
In June 2019, Brinson, appearing in propria persona, filed a section 1170.95 petition, using "a downloadable form" petition and declaration "prepared by Re: Store Justice . . . ." (People v. Verdugo (2020) 44 Cal.App.5th 320, 324, rev. granted Mar. 18, 2020, S260493 (Verdugo).) "The substantive portion of the form petition consists of a declaration with boxes to be checked against averments essentially tracking the statutory language as to the prerequisites for filing a petition and demonstrating a prima facie showing that the petitioner falls within the provisions of section 1170.95 and is eligible for relief." (People v. Edwards (2020) 48 Cal.App.5th 666, 670, pet. for rev. pending (Edwards).)
Brinson, checking boxes on the form petition, averred, in pertinent part, that:
"A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine";
"At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine," as well as "I was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine";
"I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019," as well as, "I could not now be convicted of murder because of the changes to Penal Code § 188, effective January 1, 2019."
"I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code § 189, effective January 1, 2019, for the following reasons . . .:"
"I was not the actual killer";
"I 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";
"I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony"; and
"The victim of the murder was not a peace officer in the performance of his or her duties, or I was not aware that the victim was a peace officer in the performance of his or her duties and the circumstances were such that I should not reasonably have been aware that the victim was a peace officer in the performance of his or her duties." (Bolded language in original.)
Brinson's petition also requested appointed counsel to represent him "during this re-sentencing process."
On July 16, 2019, the superior court summarily denied the petition, without appointing counsel for Brinson or receiving a response from the People. In its written order the court gave two reasons for its denial. The court first recognized that although "California has no crime of attempted felony murder" (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4), an attempted murder conviction could be based on a natural and probable consequences theory. However, persons convicted of attempted murder under a natural and probable consequences theory were not eligible for section 1170.95 relief because the statute applied only to persons convicted of murder. The court also found that, even if the statute applied to persons convicted of attempted murder, Brinson was not eligible for relief because he was not convicted based on a natural and probable consequences theory as shown by the judicially-noticed case file of the record of conviction, which included the trial prosecutor's arguments, jury instructions, and verdict forms.
Brinson filed a timely notice of appeal from the July 16, 2019 order.
DISCUSSION
I. Applicable Law
Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and for resentencing 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 made effective January 1, 2019." (Id., subd. (a)(1), (2), (3).)
Subdivision (b) of section 1170.95 provides that the petition must include: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel." If any of this information is missing "and cannot readily be ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 "provides the process by which the court is to decide the petition: '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['s] 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.' Therefore, no order to show cause and no hearing is held (§ 1170.95, subd. (d)(1)) unless the court first determines a prima facie showing of entitlement to relief." (Edwards, supra, 48 Cal.App.5th at p. 673.) II. The Superior Court Correctly Determined Brinson Is Not Eligible for Relief Under Section 1170.95 as a Matter of Law
The parties present extensive arguments directed at the superior court's ruling that section 1170.95 does not provide relief for persons convicted of attempted murder. However, we need not address this issue because, even if section 1170.95 were applicable to persons convicted of attempted murder, the court also, and correctly, found Brinson was not eligible for relief as he was not convicted under a natural and probable consequences theory.
We acknowledge this issue is currently pending for review before our Supreme Court. (See People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105 [Senate Bill No. 1437, which added § 1170.95, "does not apply to convictions for attempted premeditated murder"], rev. granted Nov. 13, 2019, S258175 [lead case][review will include whether Senate Bill No. 1437 (Stats. 2018, ch. 1015) applies to attempted murder liability under the natural and probable consequences doctrine].)
Brinson makes no specific challenge to the court's substantive finding that he is not eligible for relief because he was not convicted under a natural and probable consequences theory. His only complaint is that this finding is not dispositive because, when deciding the threshold issue of whether he falls within the provisions of section 1170.95, the superior court cannot look "beyond the four corners of the petition;" its review is limited to the facts as pleaded in the petition and it may not rely on any material in the case file of his record of conviction. We disagree and conclude the superior court did not err in considering material in the case file of the record of conviction in determining Brinson's eligibility for section 1170.95 relief.
In Edwards, supra, 48 Cal.App.5th 666, we agreed with other appellate courts that the superior court is not limited to a review of the section 1170.95 petition in deciding whether a petition falls within the provisions of section 1170.95 but may also look at documents that are in the court files or are part of the record of conviction. (Id. at pp. 673-674; see Verdugo, supra, 44 Cal.App.5th at pp. 323, 329-332; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, rev. granted Mar. 18, 2020, S260598 (Lewis).) In so concluding, we agreed with the reasoning in Verdugo that the relevant statutory language, viewed in context, made clear that the Legislature envisioned the superior court performing a " 'substantive gatekeeping function screening out clearly ineligible petitioners,' " by an examination of " '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 . . . .' " (Edwards, supra, at p. 673, quoting Verdugo, supra, at pp. 323, 331-332.) Thus, we agreed with Lewis that " ' "if the petition contains sufficient summary allegations that would entitle the petitioner to relief, but a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing." ' " (Edwards, supra, at p. 674, quoting Lewis, supra, at p. 1138, quoting Couzens, et al., Sentencing Cal. Crimes (The Rutter Group 2019) [¶] 23.51(H)(1), pp. 23-150 to 23-151.)
Here, Brinson filed a form check the box section 1170.95 petition, which tracks the statutory language. However, as the superior court found, a review of the readily available case file of the record of his conviction shows he could not meet the statutory prerequisites for even filing a petition because he was not convicted of attempted murder under a natural and probable consequences theory. Accordingly, summary denial was correct on this ground alone.
Brinson also argues summary denial was improper because the superior court made its decision before appointing counsel to represent him and without waiting for a response from the People. However, we need not address these issues. Because Brinson does not fall within the provisions of section 1170.95 as a matter of law, these purported errors were harmless under any standard of review (Chapman v. California (1967) 386 U.S. 18, 24 [constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [state law error]) and remand would be an idle act (Civ. Code § 3532 [the law does not require idle acts]).
For the reasons stated above, we affirm the July 16, 2019 order denying the section 1170.95 petition.
We acknowledge that currently pending for review before our Supreme Court are the following issues: "(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)." (See Lewis, supra, 43 Cal.App.5th 1128, rev. granted Mar. 18, 2020, S260598 [lead case].)
DISPOSITION
The July 16, 2019 order denying the Penal Code section 1170.95 petition is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Jackson, J.