People v. Britt CA2/7 ( 2021 )

Filed 12/15/21 P. v. Britt CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B297588
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA098926)
v.
DESHON BRITT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Mark D. Lenenberg, 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, Senior
Assistant Attorney General, Amanda V. Lopez and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
INTRODUCTION
Deshon Britt appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1170.95.1 In an earlier opinion we affirmed the superior court’s
ruling, after which Britt successfully petitioned the Supreme
Court for review. (People v. Britt (Feb. 18, 2020, B297588)
[nonpub. opn.], review granted May 13, 2020, S261128.) The
Supreme Court transferred the case to us with directions to
vacate our earlier opinion and reconsider our decision in light of
People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We now vacate our
earlier opinion and again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Britt of First Degree Murder, and
This Court Affirms His Conviction
In July 2008 Britt confronted Aaron Patterson, who was
walking with two companions outside a liquor store, with the
common gang challenge, “Where are you from?” Patterson’s
response, “8 Trey Gangster Crip,” indicated he belonged to a rival
gang. Britt responded to Patterson with “99 Watts Mafia Crip”
and went into the liquor store to get a fellow gang member,
Milton Jones.
Outside the store, Jones and Patterson argued, then fought.
Patterson knocked Jones and Britt to the ground. Jones pulled
1 Statutory references are to the Penal Code.
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out a gun and shot Patterson in the back of the head as Patterson
tried to run away, killing him.
The jury found Britt guilty of first degree murder and
found true firearm and gang allegations. The trial court
sentenced Britt to a prison term of 50 years to life.
We affirmed Britt’s conviction. We concluded that there
“was sufficient evidence for a reasonable jury to find that Britt
aided and abetted Jones in the murder”; that, “[l]ooking at the
factors for specific intent,” there was “sufficient evidence to
conclude Britt shared the same intent as Jones”; and that “there
was substantial evidence Britt premeditated and deliberated
Patterson’s murder.” (People v. Britt (June 6, 2011, B218965)
[nonpub. opn.] (Britt I).)
B. Britt Petitions for Resentencing
In January 2019 Britt, representing himself, filed a petition
for resentencing under section 1170.95. In his petition Britt
checked boxes stating that he “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” and that “I was
convicted of 1st degree felony murder and I could not now be
convicted because of changes to Penal Code § 189.” Britt also
checked boxes stating “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,” and “I was not a major participant in
the felony or I did not act with reckless indifference to human life
3
during the course of the crime or felony.” Britt asked the
superior court to appoint counsel for him.
The superior court, without appointing counsel, summarily
denied Britt’s petition. After reviewing the trial record and our
opinion in his direct appeal, the court ruled Britt “was a major
participant in the crime who acted with reckless indifference.”
Britt timely appealed from the order denying his petition.
In February 2020 we affirmed the superior court’s order
denying Britt’s petition. In doing so, we rejected his contentions
the court erred in denying his petition without appointing counsel
or issuing an order to show cause and in “stepping outside the
four corners of [the] petition” by considering our opinion in Britt I
to conclude he had not made a prima facie case for relief. (People
v. Britt, supra, B297588, review granted.)
In May 2020 the Supreme Court granted Britt’s petition for
review of our decision (People v. Britt (May 13, 2020), S261128),
and in September 2021 the Supreme Court transferred the case
to us with directions to vacate that decision and reconsider the
cause in light of Lewis, supra, 11 Cal.5th 952. Following the
transfer, the parties filed supplemental briefs.
DISCUSSION
A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) “eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule.”
(Lewis, supra, 11 Cal.5th at p. 957; see §§ 188, subd. (a)(3), 189,
4
subd. (e); People v. Gentile (2020) 10 Cal.5th 830, 842 [the
Legislature enacted Senate Bill 1437 “‘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’”].) “Senate Bill 1437 also added section 1170.95 to
the Penal Code, which creates a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief.” (Lewis, at p. 957, fn. omitted;
see Gentile, at p. 859.)
“Section 1170.95 envisions three stages of review of a
petition for resentencing.” (People v. Wilson (2021)
69 Cal.App.5th 665, 675; see Lewis, supra, 11 Cal.5th at
pp. 959-960.) First, the petitioner “must file a petition in the
sentencing court averring that: ‘(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 or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted of first degree or
second degree murder[;] [¶] [and] (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.’” (Lewis, at
pp. 959-960; see § 1170.95, subd. (a)(1)-(3).)
Second, if a petition under section 1170.95 contains all the
required information, including a declaration by the petitioner
that he or she was convicted of murder and is eligible for relief
(§ 1170.95, subd. (b)(1)(A)), the court, after appointing counsel,
must “assess whether the petitioner has made a ‘prima facie
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showing’ for relief.” (Lewis, supra, 11 Cal.5th at pp. 960, 963; see
§ 1170.95, subd. (c); People v. Wilson, supra, 69 Cal.App.5th at
p. 675; People v. Barboza (2021) 68 Cal.App.5th 955, 962.) “In
determining whether the petitioner has carried the burden of
making the requisite prima facie showing 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.’” (People v. Mancilla (2021)
67 Cal.App.5th 854, 863.) The prima facie inquiry, however, is
limited. 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.”’” (Lewis, at p. 971; see Barboza, at
p. 962; People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815;
People v. Drayton (2020) 47 Cal.App.5th 965, 980, disapproved on
another ground in Lewis, at p. 963.)
The court’s authority to resolve the petition at the prima
facie stage “is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(People v. Drayton, supra, 47 Cal.App.5th at p. 980; see Lewis,
supra, 11 Cal.5th at p. 972 [“at this preliminary juncture, a trial
court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion’”]; People v. Clayton (2021)
66 Cal.App.5th 145, 153 [same]; People v. Harris (2021)
60 Cal.App.5th 939, 958 [same], review granted Apr. 28, 2021,
S267802.) “‘However, if the record, including the court’s own
6
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.”’” (Lewis, at p. 971;
accord, People v. Jenkins (2021) 70 Cal.App.5th 924, 932; see
People v. Duchine, supra, 60 Cal.App.5th at p. 815 [“absent a
record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent, the trial court should not question his evidence”].)
Third, if “the trial court determines that a prima facie
showing for relief has been made, the trial court issues an order
to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the
sentence and resentence the petitioner on any remaining counts
in the same manner as if the petitioner had not . . . previously
been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’” (Lewis, supra, 11 Cal.5th at
p. 960; see § 1170.95, subd. (d)(1); People v. Wilson, supra,
69 Cal.App.5th at p. 675.) “At the hearing to determine whether
the petitioner is entitled to relief, the burden of proof shall be on
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3);
see Lewis, at p. 960.) The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence.
(§ 1170.95, subd. (d)(3); see Lewis, at p. 960.)2
2 In October 2021 the Legislature amended section 1170.95.
Among other changes, the amendments (1) apply section 1170.95
to convictions for voluntary manslaughter and attempted
murder; (2) state the requirement to appoint counsel, if
requested, in new subdivision (b)(3), rather than in
subdivision (c); (3) affirm that the standard of proof at the
hearing on the order to show cause is proof beyond a reasonable
7
B. The Superior Court Erred in Not Appointing Counsel
for Britt, but the Error Was Harmless
Britt continues to maintain the superior court erred in
denying his petition without appointing counsel and issuing an
order to show cause.3 The People concede, and we agree, the
superior court erred in not appointing counsel. (See Lewis, supra,
11 Cal.5th at p. 963 [“petitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a
compliant petition”].) The People argue, however, that the error
was harmless and that the court did not err in failing to issue an
order to show cause because the record of conviction shows Britt
is not eligible for relief as a matter of law. (See Lewis, at p. 974
[“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”’”]; People v. Mancilla, supra, 67 Cal.App.5th
at p. 864 [error in failing to appoint counsel was harmless where
doubt; and (4) clarify that “a finding there is substantial evidence
to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (See
Stats. 2021, ch. 551, § 2 (Senate Bill No. 775).) Because the
Legislature did not pass these amendments as urgency
legislation, they will become effective on January 1, 2022. (See
Cal. Const., art. IV, § 8, subd. (c).)
3 Britt now concedes the superior court did not err in
reviewing the record of conviction when determining whether he
made a prima facie case for relief. (See Lewis, supra, 11 Cal.5th
at pp. 970-971.)
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the record of conviction established the petitioner was ineligible
for relief under section 1170.95 as a matter of law].) We agree
with the People again.
“Section 1170.95 authorizes a petition for resentencing only
by individuals convicted of murder under the felony-murder rule
or the natural and probable consequences doctrine.” (People v.
Mancilla, supra, 67 Cal.App.5th at pp. 866-867.) Where the
record of conviction establishes the petitioner’s jury was not
instructed on the felony-murder rule or the natural and probable
consequences doctrine, the petitioner is ineligible for relief under
section 1170.95 as a matter of law. (People v. Daniel (2020)
57 Cal.App.5th 666, 677; see People v. Soto (2020) 51 Cal.App.5th
1043, 1055, 1059 [petitioner was ineligible for relief under section
1170.95 as a matter of law where the instructions did not permit
the jury to convict him of murder under the felony-murder rule or
the natural and probable consequences doctrine].)
Britt does not suggest his jury was instructed on the
natural and probable consequences doctrine or the felony-murder
rule, and the record in his direct appeal shows it was not.
Therefore, Britt is ineligible for relief under section 1170.95 as a
matter of law. Consequently, the superior court’s error in failing
to appoint counsel for him was harmless, and the court did not
err in denying his petition without issuing an order to show
cause.
Britt argues he is eligible for relief under section 1170.95
because the trial court instructed the jury on aiding and abetting
with CALCRIM No. 400, which provided in part: “A person is
equally guilty of the crime whether he or she committed it
personally or aided and abetted the perpetrator who committed
9
it.”4 Britt argues “the ‘equally guilty’ language was misleading”
and “misdescribed the prosecutor’s burden” because it suggested
the jurors could (or even should) impute Jones’s mental state to
Britt without considering Britt’s mental state. As a result, Britt
argues, he “could have been convicted at trial under an imputed
malice theory which is now invalid under Code section 188.”
This possibility was foreclosed, however, by the trial court’s
additional instruction on aiding and abetting, CALCRIM No. 401.
That instruction, as we observed in our opinion in Britt’s direct
appeal,5 “explained that an aider and abettor had to know the
unlawful purpose of the perpetrator, intend to encourage or
facilitate the commission of the crime[,] and by act or advice,
aid[ ] or encourage[ ] the commission of the crime.” (Britt I,
supra, B218965.) Where, as here, the trial court instructs the
jury with CALCRIM No. 401, there is “no reasonable likelihood
the jurors would have understood the ‘equally guilty’ language [in
CALCRIM former No. 400] to allow them to base defendant’s
liability for first degree murder on the mental state of the actual
shooter, rather than on defendant’s own mental state in aiding
and abetting the killing.” (People v. Johnson (2016) 62 Cal.4th
600, 641; see id. at pp. 640-641 [because the trial court
“instructed the jury with CALCRIM No. 401, which sets out the
requirements for establishing aider and abettor liability,” the
jury “was informed that for them to find defendant guilty of
4 In April 2010 the Judicial Council revised CALCRIM
No. 400 to remove the word “equally” from the phrase “equally
guilty.” (People v. Johnson (2016) 62 Cal.4th 600, 640 & fn. 5.)
5 “Appellate opinions . . . are generally considered to be part
of the record of conviction.” (Lewis, supra, 11 Cal.5th at p. 972.)
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murder as an aider and abettor the prosecution must prove that
[the] defendant knew [the perpetrator] intended to kill [the
victim], that he intended to aid and abet [the perpetrator] in
committing the killing, and that he did in fact aid him in that
killing, which would have cleared up any ambiguity arguably
presented by CALCRIM former No. 400’s reference to principals
being ‘equally guilty’”].)
DISPOSITION
Our prior opinion in this appeal, People v. Britt, supra,
B297588, is vacated, and the superior court’s order denying
Britt’s petition under section 1170.95 is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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