People v. Lee CA2/4 ( 2021 )

Filed 9/22/21 P. v. Lee CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309734
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA081176)
v.
BRIAELL MICHAEL LEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Briaell Michael Lee appeals from the trial court’s order
denying his petition under Penal Code section 1170.95
(Section 1170.95) to vacate his conviction for the second
degree murder of Mario Larios. At trial, Lee admitted --
both in a recorded police interview played for the jury, and
through his counsel’s closing argument -- that he had fatally
shot Larios. In a prior opinion, we affirmed his murder
conviction, along with a sentence enhancement imposed as a
result of the jury’s finding that Lee caused death or great
bodily injury by personally and intentionally discharging a
firearm (the firearm enhancement). (People v. Lee (Oct. 27,
2014, No. B252982) [nonpub. opn.] 2014 Cal.App.Unpub.
LEXIS 7690.) In his petition, Lee alleged he had been
convicted under the felony murder rule or the natural and
probable consequences doctrine, as required to establish
eligibility for relief under Section 1170.95. In response, the
People argued Lee was ineligible for relief because the jury
was not instructed on the felony murder rule or the natural
and probable consequences doctrine, and because the record
of conviction showed that the jury found Lee was Larios’s
actual killer. Without appointing counsel to represent Lee
(as he had requested), or holding a hearing, the trial court
denied the petition. The court determined, in reliance on our
prior opinion, that Lee was the actual killer, and that he
therefore had not made a prima facie showing of eligibility
for relief.
2
On appeal, Lee’s appointed counsel filed a brief raising
no issues and asking this court to independently review the
record under People v. Wende (1979) 25 Cal.3d 436 (Wende).
Lee filed a supplemental brief, in which he raised no issues
concerning the order denying his petition to vacate his
murder conviction, but requested relief from the firearm
enhancement. After the briefs were filed, our Supreme
Court issued its opinion in People v. Lewis (2021) 11 Cal.5th
952 (Lewis), clarifying the procedure required under Section
1170.95.
Having independently reviewed the record, we
conclude that although the trial court erred by failing to
afford Lee the assistance of counsel before denying his
petition, the error was harmless. We further conclude that
Lee has not shown he is entitled to relief from the firearm
enhancement, or to the trial court’s consideration of such
relief on remand. Accordingly, we affirm.
BACKGROUND
A. Lee’s Conviction1
In 2005, Lee and codefendant Cimarron Bernard Bell
were charged with the murder of three men, including Mario
Larios. At Lee’s trial, Bell’s girlfriend, Neysa Wyatt,
testified that on January 26, 2004, she heard Bell agree to
1
The facts in this subsection are taken from the record in
Lee’s prior appeal (of which we have taken judicial notice, on
Lee’s request), including our opinion in that appeal. (People v.
Lee, supra, 2014 Cal.App.Unpub. LEXIS 7690 at *1-*9.)
3
meet with a prospective buyer of his Chevy Monte Carlo,
which Bell had advertised for sale at a price well below
market value. The buyer -- Larios, as suggested by phone
records and other evidence -- said he would be driving a
white “Benz.” Four days later, the bodies of Larios and two
other men were found in a white Mercedes Benz near Bell’s
house. Wyatt saw a news report about the bodies’ discovery,
and questioned Bell, who reported that he had advertised
the Monte Carlo for sale as a ruse to kill the victims for their
money. Bell told Lee to wait in the back room of Bell’s house
until Bell returned with the potential buyer and to come out
if called. Bell persuaded the prospective buyer (Larios) and
his two companions to come to his house, where he started
shooting at them. Larios tried to escape, and Bell yelled at
Lee to “take [Larios] out.” Lee fired two shots but missed.
Bell pointed his gun at Lee and told him, “[I]f you don’t take
him out, I am taking you out.” Lee fatally shot Larios.
Lee was interviewed by the police on three occasions.
In the first two interviews, Lee admitted being present
during the shootings, but denied shooting anyone. In the
last interview, Lee stated that he was attempting to leave
during the shooting when Bell put a gun in his hand and
pointed another gun at him. He admitted that in response to
Bell’s threat, he fatally shot Larios. Lee acknowledged that
“a murder is a murder. If I shoot this dude, I killed him.”
The jury was not instructed on the felony murder rule
or the natural and probable consequences doctrine. During
closing arguments, Lee’s counsel admitted that Lee shot
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Larios, but argued that he did so under duress, purportedly
negating intent to kill. In rebuttal, the prosecutor argued,
“He said, ‘I shot Mr. Larios because if I didn’t shoot him, I
was going to get killed too.’ That’s intent to kill.”
The jury found Lee guilty of the second degree murder
of Larios, and found true an allegation that Lee caused
death or great bodily injury by personally and intentionally
discharging a firearm. The jury acquitted Lee of the
murders of the other victims. The trial court sentenced Lee
to 15 years to life for the murder, plus 25 years to life for the
firearm allegation (Pen. Code, § 12022.53, subd. (d)).
Lee appealed the judgment. After his appointed
appellate counsel filed a brief asking us to independently
review the record pursuant to Wende, supra, 25 Cal.3d 436,
Lee filed a supplemental brief. Rejecting his contentions and
finding no arguable issue after an independent review of the
record, we affirmed.
B. Lee’s Petition
In September 2020, Lee filed a petition in propria
persona for postconviction relief under Section 1170.95.
Lee’s petition was filed on a set of instructions, evidently
published by a nonprofit organization, for filing a petition
under the statute. By circling items in these instructions,
Lee alleged that he was convicted at trial “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that under the law as modified by Senate Bill
No. 1437 (SB 1437), he could not now be convicted of murder.
5
In an attached declaration, he asserted that he was neither
the actual killer, nor an aider and abettor who acted with
intent to kill, nor a major participant in an underlying felony
who acted with reckless indifference to human life. He
requested the appointment of counsel.
Along with his petition, Lee submitted two jury
instructions delivered at his trial: (1) CALJIC No. 8.11,
defining malice aforethought; and (2) CALJIC No. 17.19.5,
setting forth the elements of the allegation that Lee caused
death or great bodily injury by personally and intentionally
discharging a firearm. Lee underlined the phrase “natural
consequences” in the former instruction, and the phrase
2
“natural and probable consequence” in the latter.
In response to Lee’s petition, the People argued Lee
was ineligible for relief because the jury was not instructed
on the felony murder rule or the natural and probable
consequences doctrine, and because the record of conviction
showed that the jury found Lee was Larios’s actual killer.
Without appointing counsel to represent Lee or holding a
hearing, the trial court denied the petition, stating, “The
Court has reviewed the opinion from the Court of Appeal in
this matter and the facts from that opinion are as follows:
2
Lee also underlined the following advisement in the
nonprofit’s instructions for filing a petition: “[T]he phrase
‘natural and probable consequence’ appears in a lot of other jury
instructions that do not convey the theory of murder as a natural
and probable consequence of aiding and abetting a target crime.”
(Italics added.)
6
[¶] Petitioner’s co-defendant hatched a plan whereby the
co-defendant would offer to sell a vehicle below market value
and then kill the buyer and take the money. Co-defendant
advertised a Monte Carlo for sale below market value. A
buyer and two friends met the co-defendant at a gas station
to view the car. The buyer wished to buy the car. The
co-defendant arranged for everyone to go to his house to
complete the sale. Petitioner was waiting at the house and
was armed. At the house, co-defendant started shooting the
buyer and his friends. One of the friends attempted to
escape. Co-defendant called to Petitioner to shoot the fleeing
friend. Petitioner shot and killed the person. [¶] Petitioner
was the killer. He is not eligible for relief under [section]
1170.95 of the Penal Code. He has not made a prima facie
case for relief.” Lee timely appealed.
DISCUSSION
A. Section 1170.95
Neither Lee nor his counsel raised any issue
concerning the trial court’s order denying Lee’s petition to
vacate his murder conviction under Section 1170.95.
Although not constitutionally required to do so, we have
independently reviewed the record. (See People v. Freeman
(2021) 61 Cal.App.5th 126, 133 [“Published decisions by our
courts of appeal uniformly agree that Wende[] does not
require independent review of appeals from post-judgment
orders in criminal proceedings, though they are split on
whether in certain contexts a court should nonetheless
7
exercise discretion independently to review a summary
denial”].) As explained below, we conclude that although the
trial court erred by failing to afford Lee the assistance of
counsel before denying his petition, the error was harmless.
1. Principles
“Before [SB] 1437, the felony-murder rule and the
natural and probable consequences doctrine were exceptions
to the actual malice requirement [for murder liability]. The
felony-murder rule made ‘a killing while committing certain
felonies murder without the necessity of further examining
the defendant’s mental state.’ . . . The natural and probable
consequences doctrine made ‘a person who aids and abets a
confederate in the commission of a criminal act . . . liable not
only for that crime (the target crime), but also for any other
offense (nontarget crime) [including murder] committed by
the confederate as a “natural and probable consequence” of
the crime originally aided and abetted.’” (People v. Johns
(2020) 50 Cal.App.5th 46, 57-58.) SB 1437 amended Penal
Code sections 188 and 189 to eliminate murder liability
under the natural and probable consequences doctrine, and
to narrow the felony murder rule. (See People v. Johns,
supra, 50 Cal.App.5th at 58-59; Pen. Code, §§ 188, subd.
(a)(3), 189, subd. (e); Stats. 2018, ch. 1015, §§ 2-3).
SB 1437 also enacted Section 1170.95. (See Stats.
2018, ch. 1015, § 4.) This section permits a defendant who
was convicted of felony murder or murder under a natural
and probable consequences theory, but who could not be
8
convicted of murder following SB 1437’s changes to the law,
to petition the sentencing court to vacate the conviction.
(Pen. Code, § 1170.95, subd. (a).) After ascertaining that the
petition includes certain basic information, the court must
appoint counsel for the petitioner (if requested), receive the
People’s response to the petition, allow the petitioner to file a
reply, and determine whether the petitioner has made a
prima facie showing of entitlement to relief. (Id., § 1170.95,
subd. (c); Lewis, supra, 11 Cal.5th at 961-970.) If the court
determines the petitioner has made a prima facie showing, it
must issue an order to show cause. (Pen. Code, § 1170.95,
subd. (c).) If the parties do not thereafter stipulate that the
petitioner is entitled to relief, the court must hold a hearing
and, if the prosecution fails to prove the petitioner’s
ineligibility for relief beyond a reasonable doubt, vacate the
petitioner’s murder conviction. (Id., § 1170.95, subd. (d).)
“The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra,
11 Cal.5th at 971.) “In reviewing any part of the record of
conviction at this preliminary juncture, a trial court should
not engage in ‘factfinding involving the weighing of evidence
or the exercise of discretion.’” (Id. at 972.) “‘However, if the
record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination
adverse to the petitioner.”’” (Id. at 971.)
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A trial court’s failure to appoint counsel before denying
a petition under Section 1170.95 is reviewed for prejudice
under the standard set forth in People v. Watson (1956) 46
Cal.2d 818. (Lewis, supra, 11 Cal.5th at 973-974.) “More
specifically, a petitioner ‘whose petition is denied before an
order to show cause issues has the burden of showing “it is
reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have
been summarily denied without an evidentiary hearing.”’”
(Id. at 974.)
2. Analysis
Guided by our Supreme Court’s recent opinion in
Lewis, we conclude the trial court erred by failing to afford
Lee the assistance of counsel before denying the petition.
(See Lewis, supra, 11 Cal.5th at 961-970.) We further
conclude the error was harmless, as there is no reasonable
probability that had Lee been afforded the assistance of
counsel, he would have made a prima facie showing of
eligibility for relief. (See id. at 973-974.) The record of
conviction “necessarily” would have “inform[ed] the trial
court’s prima facie inquiry . . . .” (Id. at 971.) As explained
below, counsel could not have made a prima facie showing on
Lee’s behalf in the face of the record of conviction, because it
shows Lee is ineligible for relief as a matter of law. (See
ibid. [“‘if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the
10
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner”’”].)
The record of conviction refuted Lee’s allegation that
he had been convicted under the felony murder rule or the
natural and probable consequences doctrine. The jury
instructions given at his trial omitted any instruction on
either theory. In light of the omission of such instructions,
Lee is ineligible for relief under Section 1170.95 as a matter
of law. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1055
review granted, Sept. 23, 2020, S263939 [“the jury
instructions in this case demonstrate, on their face and as a
matter of law, that Soto was not and could not have been
convicted of second degree murder under the natural and
probable consequences doctrine. This is so because the
jurors were not provided any instruction on which they could
have found Soto guilty of murder under that doctrine”];
People v. Daniel (2020) 57 Cal.App.5th 666, 677, review
granted Feb. 24, 2021, S266336 [“no instructions were given
on felony murder or murder under the natural and probable
consequences doctrine. Thus, Daniel is not ‘[a] person
convicted of felony murder or murder under a natural and
probable consequences theory,’ and he is therefore ineligible
for relief as a matter of law” (fn. omitted)].)
Lee’s ineligibility for relief is further confirmed by his
admissions (both in a police interview and through his
counsel’s closing argument) that he fatally shot Larios,
together with the jury’s finding that Lee caused death or
great bodily injury by personally and intentionally
11
discharging a firearm. In light of Lee’s admissions and the
jury’s finding on the firearm allegation, Lee’s murder
conviction necessarily reflected a finding that Lee was
Larios’s actual killer. Because Lee was convicted as the
actual killer, he is ineligible for relief under Section 1170.95
as a matter of law. (See Pen. Code, § 1170.95, subd. (a)(3)
[petitioner is eligible for relief only if, inter alia, “[t]he
petitioner could not [now] be convicted of first or second
degree murder because of changes to Section 188 or 189
made [by SB 1437]”]; Lewis, supra, 11 Cal.5th at 959 [“the
Legislature passed Senate Bill 1437 ‘to amend 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 [inter alia] is not the
actual killer’”].)
We conclude it is not reasonably probable Lee would
have made a prima facie showing of eligibility for relief had
he been afforded the assistance of counsel. (See People v.
Edwards (2020) 48 Cal.App.5th 666, 674-675, review
granted July 8, 2020, S262481 [trial court’s failure to
appoint counsel before denying Section 1170.95 petition was
harmless “under any standard of review,” where “a review of
the readily available record of conviction (charging
information and jury instructions) show[ed petitioner] could
not meet the statutory prerequisites”]; People v. Daniel,
supra, 57 Cal.App.5th at 678, rev.gr. [trial court’s failure to
appoint counsel before denying petition was harmless under
Watson standard “in light of the jury’s determination that
12
[petitioner] was directly, not vicariously, liable for [victim’s]
murder”].) In sum, the trial court’s denial of Lee’s request
for the appointment of counsel was harmless. (See Lewis,
supra, 11 Cal.5th at 973-974.)
B. The Firearm Enhancement
In Lee’s supplemental brief, rather than raise any
issue concerning the trial court’s order denying his petition
to vacate his murder conviction, he requests relief from the
firearm enhancement. Lee observes that Senate Bill No. 620
(SB 620) granted trial courts new discretion -- effective
January 1, 2018 -- to strike firearm enhancements in the
interest of justice. (Pen. Code, § 12022.53, subd. (h); Stats.
2017, ch. 682, § 2.) Lee also requests that we review his case
“under the new statute and limitation effective February
2021, under the removal of ‘all’ enhancements.”
Even assuming, arguendo, that this appeal from the
order denying Lee’s petition to vacate his murder conviction
is a proper vehicle for Lee’s request for relief from the
firearm enhancement, Lee fails to show he is entitled to such
relief, or to the trial court’s consideration of such relief on
remand. SB 620 does not apply to a judgment like Lee’s,
which was final before SB 620 went into effect on January 1,
2018. (See People v. Hargis (2019) 33 Cal.App.5th 199, 209
[“Senate Bill No. 620 and the associated amendment to
section 12022.53 apply retroactively to nonfinal cases”];
People v. Harris (2018) 22 Cal.App.5th 657, 659, fn. 2 [where
defendant appeals judgment, it becomes final when time for
13
petitioning the United States Supreme Court for writ of
certiorari expires].) Although Lee appears to reference a
purported law that went into effect in February 2021 and
required or authorized relief from the firearm enhancement,
3
our research has uncovered no such law.
3
We are aware of a bill introduced in February 2021 that
proposes amendments to firearm-enhancement statutes,
including a reduction of the length of the 25-years-to-life
enhancement under Penal Code section 12022.53, subdivision (d),
to three years. (Assem. Bill No. 1509 (2021-2022 Reg. Sess.) § 27,
as introduced Feb. 19, 2021.) The bill has not been enacted into
law.
14
DISPOSITION
The order denying Lee’s petition for relief under Penal
Code section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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