People v. Bridges CA2/3 ( 2021 )

Filed 10/21/21 P. v. Bridges CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B309404
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A649931)
v.
TOMMY BRIDGES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
In 1990, Tommy Bridges was convicted of, among other
offenses, first degree murder (Pen. Code,1 §§ 187, subd. (a), 189)
with true findings on a lying-in-wait special circumstance
allegation (§ 190.2, subd. (15)) and a personal-use-of-a-firearm
enhancement allegation (§ 12022.5, subd. (a)). In October 2020,
Bridges filed a petition for resentencing pursuant to section
1170.95. The superior court, without first appointing counsel
or allowing an opportunity for briefing, summarily denied the
petition. Because the record of conviction establishes that
Bridges was ineligible for relief under section 1170.95 as a
matter of law, any error committed by the superior court in
denying the petition was harmless. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Bridges’s Trial for Murder and Attempted Murder
During the evening of September 17, 1988, Marvin Christy
(Christy), the murder victim in this case, was standing at the
corner of 90th Street and Avalon Boulevard in the City of Los
Angeles with David Conley (Conley) and John Dailey (Dailey),
the attempted murder victims, and with Ronyell Smith (Smith).
1 Unless otherwise stated, all further statutory references
are to the Penal Code.
2 We derive the factual and procedural background in part
from this court’s prior opinion affirming Bridges’s judgment of
conviction with a modification in sentencing. (People v. Bridges
(Oct. 12, 1993, B057697) [nonpub. opn.].) On this court’s own
motion, we take judicial notice of our prior opinion. (Evid. Code,
§§ 452, 459, subd. (a).)
2
Conley and Christy were members of the Grape Street Crips
gang; Smith was a member of the “Rolling 30’s,” or Harlem Crips.
Across the street, Howard Brown (Brown), a Rolling 30, was
standing in front of his mother’s house.
Between 9:00 and 9:30 p.m., a burgundy van emerged from
an alley, paused briefly near where the victims and Smith were
standing, made a left turn and disappeared heading eastward on
90th Street. Bridges, a member of the 89 Family Blood gang, was
driving. Upon seeing the van, Conley suggested that the group
leave. Smith did leave and walked across the street to join
Brown. Smith left because, earlier that day, Bridges had
approached him and said Smith was “good as a dead man” if he
was “from Avalon” and was on the street that night. Brown had
also been approached by Bridges earlier in the day and told “Bet’
not be any Crips on the street.”
Between five and 10 minutes after the van left, Bridges
and two other men stepped from an alley between duplexes on
Avalon, positioned themselves next to a group of automobiles,
and after approximately two minutes, began shooting at Christy,
Conley and Dailey. Bridges fired an Uzi; the other two men fired
shotguns.
The victims had their backs to the attackers when the
shooting began. Christy was shot in the head and immediately
fell to the ground. As he lay on the ground calling out, “Oh lord,
help me!” Bridges approached to within three or four feet and
shot him several more times.
Conley and Dailey ran. Dailey was hit by gunfire. Conley
escaped around the corner of Avalon and 91st Street and from
there fired back at the attackers with a .25 caliber automatic
handgun. Conley was unable to see the attackers from where he
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was firing, but he fired in the direction where he heard footsteps,
hoping his shooting would persuade the attackers to stop firing at
the wounded Christy.
Christy died of his wounds. James Ribe, a medical
examiner in the Los Angeles County Coroner’s office, testified
that Christy sustained two fatal gunshots wounds and 16
additional gunshot wounds which were not in themselves fatal.
Appellant’s mother testified that her husband, an
independent contractor for the United States Post Office, was
making a run to the Mojave Desert in the burgundy van on the
night of September 17, 1988, and was just leaving the Bridges
home on 90th Street at approximately 9:30 p.m. She testified
that her husband resembled Bridges in appearance. Delfina
Urbina, a resident of an apartment adjacent to the shooting
scene, testified there were no outside lights at her apartment
building on the night of the shootings. Andre Wilkins, who
owned a business at the corner of 90th and Avalon, testified
that on the night of the shootings, he closed his business at
7:30 p.m. and turned off all the lights.
Bridges’s Verdict, Sentence, and Appeal
The jury convicted Bridges of one count of first degree
murder (§§ 187, subd. (a), 189) and found true the special
circumstance allegation that the murder was committed
while lying in wait (§ 190.2, subd. (15)) and the enhancement
allegation that Bridges personally used a firearm during the
commission of the offense (§ 12022.5, subd. (a)). The jury also
convicted Bridges of two counts of attempted murder (§§ 664,
187) with a firearm enhancement (§ 12022.5, subd. (a)) as to
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each count and a great bodily injury enhancement (§ 12022.7)
as to one of the counts. Bridges was sentenced to two consecutive
terms of life without the possibility of parole, plus two additional
years.
On appeal from his judgment of conviction, Bridges
challenged the sufficiency of the evidence supporting the lying-in-
wait theory of first degree murder and the lying-in-wait special
circumstance. In affirming the judgment, we concluded the
evidence was sufficient to support Bridges’s first degree murder
conviction, stating, “Evidence that Bridges and his companions
emerged from a darkened alley while the victims’ backs were
turned to them, positioned themselves next to a group of parked
cars, and fired without warning was evidence from which a
reasonable trier of fact could conclude the attackers ‘lay in wait’
for the victims within the meaning of section 189.” We further
concluded that, even if the evidence had not supported a lying-
in-wait theory of murder, a “finding of premeditation and
deliberation was abundantly supported by evidence that Bridges
told witnesses during the afternoon preceding the shootings that
if any Crips were on the street that night, they were ‘good as
dead’; evidence that Bridges and his companions emerged from
an alley carrying firearms, took aim and fired; and most
emphatically, evidence that Bridges stood three to four feet from
Christy and continued to fire at him as he lay on the ground
calling for help.”
We also concluded the evidence was sufficient to support
the lying-in-wait special circumstance. As we explained, “the
jury could reasonably find physical concealment and a
substantial period of watching and waiting for an opportune time
to act from the circumstances that Bridges and his companions
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first drove past the victims and paused, then appeared to leave
the vicinity, then emerged five to [10] minutes later from a
darkened alley while the victims’ backs were turned, positioned
themselves next to a group of parked cars, and fired without
warning from that protected location.”
Bridges’s Petition for Resentencing
On October 26, 2020, Bridges, representing himself, filed
a petition for resentencing under section 1170.95. Checking
boxes on the printed form petition, Bridges declared under
penalty of perjury that he had been convicted of first or second
degree murder pursuant to the felony-murder rule or the natural
and probable consequences doctrine, and that he could not now
be convicted of first or second degree murder because of changes
made to sections 188 and 189. In his petition, Bridges also
requested the appointment of counsel during the resentencing
process.
On November 4, 2020, the superior court summarily denied
the petition without appointing counsel for Bridges or inviting
briefing by the parties. In its minute order, the court concluded
that Bridges was not entitled to relief as a matter of law because
he was “the actual killer.” The court noted that Bridges “shot
and killed” the victim using an Uzi, and that as the victim “called
out ‘oh lord, help me,’ [Bridges] walked up to him within three to
four feet and shot him several more times.” The court also
concluded that Bridges was not entitled to relief because the
prosecution “did not proceed under a theory of felony murder or
murder under the natural and probable consequences theory,”
but rather “argued that the murder was deliberate, willful[,] and
premeditated.”
Bridges timely appealed.
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DISCUSSION
Overview of Section 1170.95
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) amended murder liability under
the felony murder rule and natural and probable consequences
doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis);
People v. Gentile (2020) 10 Cal.5th 830, 842–843.) It amended
the felony-murder rule by adding section 189, subdivision (e),
which provides that a participant in the perpetration or
attempted perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was not
the actual killer but, with the intent to kill, acted as a direct
aider and abettor in the murder; or (3) was a major participant in
the underlying felony and acted with reckless indifference to
human life, as described in section 190.2, subdivision (d). (See
Gentile, supra, at p. 842.) It amended the natural and probable
consequences doctrine by adding section 188, subdivision (a)(3),
which states that malice shall not be imputed to a person based
solely on his or her participation in a crime. (Id. at p. 843.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony murder or natural and probable consequences
theory may petition the superior court to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (See Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile,
supra, 10 Cal.5th at p. 843.) A petitioner is eligible for relief if he
or she: (1) was charged with murder by means of a charging
document that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine; (2) was convicted of first or second degree
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murder; and (3) could no longer be convicted of first or second
degree murder due to the changes to sections 188 and 189
effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)
If the petition contains all the required information,
including a declaration by the petitioner that he was convicted
of murder and is eligible for relief (§ 1170.95, subd. (b)(1)(A)),
section 1170.95, subdivision (c) requires the superior court to
appoint counsel to represent the petitioner, if requested; to direct
the prosecutor to file a response to the petition and permit the
petitioner to file a reply; and to determine if the petitioner has
made a prima facie showing that he is entitled to relief. (See
Lewis, supra, 11 Cal.5th at pp. 959–960.)
In determining whether the petitioner has made the
requisite prima facie showing that he or she falls within the
provisions of section 1170.95 and is entitled to relief, the superior
court properly examines the record of conviction, “allowing the
court to distinguish petitions with potential merit from those
that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction” that the court may review in evaluating
whether the petitioner has established a prima facie case. (Id.
at p. 972.) The “prima facie inquiry under [section 1170.95,]
subdivision (c) is limited. Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.” ’ [Citations.] . . . [Citations.] ‘However,
if the record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” then “the
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court is justified in making a credibility determination adverse to
the petitioner.” ’ ” (Id. at p. 971.)
If a petitioner makes a prima facie showing of entitlement
to relief, the superior court must issue an order to show cause
(§ 1170.95, subd. (c)), and hold a hearing to determine whether
to vacate the murder conviction and resentence the petitioner
(§ 1170.95, subd. (d)(1)). At that hearing, the prosecution has
the burden of proving beyond a reasonable doubt that the
petitioner is ineligible for relief (§ 1170.95, subd. (d)(3))—that
is, the People must prove beyond a reasonable doubt that the
petitioner is guilty under a theory that remains valid after
Senate Bill 1437’s enactment. (See People v. Clements (2021)
60 Cal.App.5th 597, 615, review granted Apr. 28, 2021, S267624;
People v. Rodriguez (2020) 58 Cal.App.5th 227, 230, review
granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309 [holding substantial evidence
standard applies at a § 1170.95, subd. (d)(3) hearing].) Both
the prosecution and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (§ 1170.95, subd. (d)(3).) If the prosecution
fails to sustain its burden of proof, the court must vacate the
murder conviction and any allegations and enhancements
attached to it, and resentence the petitioner on the remaining
counts. (§ 1170.95, subd. (d)(3).)
The Error in Denying Bridges’s Petition Without
Appointing Counsel Was Harmless
In Lewis, supra, 11 Cal.5th at page 957, the California
Supreme Court, resolving a conflict among the courts of appeal,
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held that a petitioner seeking relief under section 1170.95 is
“entitled to the appointment of counsel upon the filing of a
facially sufficient petition [citation] and that only after the
appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine
whether ‘the petitioner makes a prima facie showing that he or
she is entitled to relief.’ ”
Our Supreme Court, however, also held that a superior
court’s failure to appoint counsel to represent a petitioner when
assessing whether he or she has made a prima facie showing of
entitlement to relief under section 1170.95, subdivision (c) is
state law error only, reviewable for prejudice under the harmless
error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis,
supra, 11 Cal.5th at pp. 973–974.) Under this standard, a
petitioner must “ ‘demonstrate there is a reasonable probability
that in the absence of the error he . . . would have obtained a
more favorable result.’ [Citations.] 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 p. 974.)
In this case, because Bridges checked the necessary boxes
on his form petition, the superior court erred in denying the
petition without first appointing counsel and allowing an
opportunity for briefing. The error was harmless, however,
because the record of conviction establishes that Bridges was
ineligible for resentencing as a matter of law. (See People v.
Mancilla (2021) 67 Cal.App.5th 854, 864 [error in denying
petition at prima facie stage without appointing counsel was
10
harmless where “the record of conviction establishes [petitioner]
is ineligible for relief under section 1170.95 as a matter of law”].)
To be eligible for relief under section 1170.95, Bridges was
required to show that he “could not be convicted of first or second
degree murder because of changes to Section 188 or 189” made
by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) Bridges could not
make such a showing, however, because the record of conviction
conclusively demonstrates that he was the actual killer. As set
forth in our prior opinion, Bridges told witnesses on the afternoon
preceding the shooting that if any Crips were on the street that
night, they were “good as dead.” Later that night, Bridges and
his companions emerged from an alley and fired their weapons at
Christy and the other victims, and then, as the wounded Christy
lay on the ground pleading for help, Bridges approached him
within three to four feet and shot him several more times. In
affirming Bridges’s conviction for first degree murder, we
concluded the evidence was sufficient to support his conviction
under either a lying-in-wait theory or a premeditated murder
theory. We further explained that this was a case where the
evidence of premeditation was “so convincing . . . that the
reviewing court can conclude with confidence that the jury must
have based its verdict upon that theory.” Because Bridges was
convicted of premeditated murder as the actual killer of Christy,
he was not eligible for relief under section 1170.95. (See Lewis,
supra, 11 Cal.5th at p. 967 [Senate Bill 1437 was enacted “ ‘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’ ”].)
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Moreover, even if Bridges was not the actual killer but
rather an aider and abettor, he still would be ineligible for
resentencing as a matter of law. “Senate Bill 1437 does not
eliminate direct aiding and abetting liability for murder because
a direct aider and abettor to murder must possess malice
aforethought.” (People v. Gentile, supra, 10 Cal.5th at p. 848.)
“[E]xpress malice requires an intent to kill.” (People v. Delgado
(2017) 2 Cal.5th 544, 571.) Here, by finding the lying-in-wait-
special circumstance allegation to be true, the jury necessarily
found that Bridges acted with the intent to kill. (See, e.g., People
v. Fayed (2020) 9 Cal.5th 147, 203 [“To determine whether an
aider and abettor who is not the actual killer can be subject to the
lying-in-wait special circumstance, ‘the questions are whether
defendant, with the intent to kill, aided and abetted the victim’s
killing, and whether the actual killer intentionally killed the
victim by means of lying in wait’ ”]; People v. Nelson (2016) 1
Cal.5th 513, 549 [“ ‘lying-in-wait special circumstance requires
intent to kill’ ”]; People v. Sandoval (2015) 62 Cal.4th 394, 416
[lying in wait “ ‘is the functional equivalent of proof of
premeditation, deliberation, and intent to kill’ ”].)
Accordingly, whether Bridges was the actual killer or
aided and abetted the killing with an intent to kill, he could
still be convicted of murder notwithstanding Senate Bill 1437’s
amendments to sections 188 and 189. Because Bridges was
ineligible for relief under section 1170.95 as a matter of law,
there is no reasonable probability that he would have obtained a
more favorable result if counsel had been appointed and given
the opportunity for briefing. Under these circumstances, the
error in denying the petition without first appointing counsel
was harmless.
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DISPOSITION
The order denying Tommy Bridges’s Penal Code section
1170.95 petition is affirmed.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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