People v. Bryant CA3 ( 2022 )

Filed 7/1/22 P. v. Bryant CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094225
Plaintiff and Respondent, (Super. Ct. No. 13F01946)
v.
SHOREEM DOMINIQUE BRYANT,
Defendant and Appellant.
Defendant Shoreem Dominique Bryant appeals from the trial court’s order
denying his petition for resentencing under Penal Code section 1170.95 1 and Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant argues the trial court
erred in concluding that he was ineligible for relief as a matter of law at the prima facie
stage of the petition process. We will affirm the trial court’s order.
1 Undesignated statutory references are to the Penal Code.
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BACKGROUND
A. The underlying conviction
For expediency, we will incorporate relevant information from the published
opinion in defendant’s prior appeal, People v. Vasquez (2016) 246 Cal.App.4th 1019(Vasquez):
“Defendants Marquon Deanthony Vasquez and Shoreem Dominique Bryant were
tried together in front of separate juries for murder and attempted murder with allegations
these crimes were committed for the benefit of a street gang. Vasquez fatally shot
Deandra Horton and wounded her companion, Tionee Duncan, who was confined to a
wheelchair. Bryant had driven Vasquez to where the shooting took place and was also
the getaway driver. The shooting was in retaliation for an altercation between Vasquez’s
cousin (Kaveon Plummer-Lee) and one of Duncan’s friends (Marcus Lebeau). Bryant,
Vasquez, and Plummer-Lee were members of the North Highlands Gangster Crips.
Lebeau was a member of the rival Bloods.
“The first jury found Vasquez guilty of second degree murder (a lesser included
offense of the charged first degree murder) and attempted voluntary manslaughter (a
lesser included offense of the charged attempted murder) and found not true the gang
enhancements. The second jury found Bryant guilty as an aider and abettor of both first
degree murder and attempted murder and found true the gang enhancements.” (Vasquez,
supra, 246 Cal.App.4th at p. 1021.)
The trial court sentenced defendant on count one, first degree murder (§ 187, subd.
(a)), to 25 years to life plus a consecutive term of 25 years to life for the gang
enhancement (§ 12022.53, subd. (e)(1)) and one year for a prior prison term (§ 667.5,
subd. (b)), and on count two, attempted murder (§§ 664, 187, subd. (a)), a concurrent
term of seven years to life plus 25 years to life for the gang enhancement (§ 12022.53,
subd. (e)(1)), for a total aggregate term of one year plus 50 years to life.
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On appeal, we upheld defendant’s conviction and affirmed the judgment.
(Vasquez, supra, 246 Cal.App.4th at p. 1026.)
B. The section 1170.95 petition
On June 24, 2019, defendant filed a petition for resentencing under section
1170.95 with a check-the-box form and a handwritten declaration stating that he was
eligible for resentencing because: (1) defendant “was called to the crime after the
incident occurred”; (2) trial testimony proved he “was not the shooter and was not with
the shooter when he committed the crime”; (3) the original charge was “accessory after
the fact,” but “was amended 4 months into the case to attempt to pressure [defendant]
into testifying against the shooter”; and (4) defendant “had no idea a crime had been
committed when the shooter had called him for assistance.”
As requested in the petition, the trial court appointed counsel for defendant.
The People moved to dismiss the petition, arguing, among other things, that
defendant was found guilty of first degree murder on a direct aiding and abetting theory.
Accordingly, defendant was not among the class of offenders eligible for relief under
section 1170.95.
On reply, defendant argued he was not the shooter and could only have been
convicted under a natural and probable consequences theory. Defendant reasoned that he
could not now be convicted of aiding and abetting murder because, under the changes to
section 188 made by Senate Bill 1437, he lacked the requisite mental state, intent to kill.
Defendant maintained the record showed that the only intent he had with respect to the
shooting was to drive codefendant Vasquez away from the scene, but there was no proof
that he intended to assist in a murder. Defendant contended the record showed he had no
idea Vazquez planned to kill Duncan or Horton and did not learn what Vasquez had done
until defendant arrived at the scene. Defendant also argued that no “conclusive evidence”
showed Vasquez and defendant had created a plan before the shooting. Lastly, defendant
contended he was not a major participant in crimes of conviction as measured by the
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factors in People v. Banks (2015) 61 Cal.4th 788, 803, and did not act with reckless
indifference to human life.
C. The trial court’s ruling
On May 5, 2021, the trial court denied defendant’s petition in a written ruling.
The court explained that, as stated in our opinion in Vazquez, the jury was not instructed
on the natural and probable consequences doctrine on aiding and abetting, but rather
instructed with CALCRIM No. 401 on direct aiding and abetting. The trial court further
noted we rejected defendant’s argument on appeal that the jury could have erroneously
found him guilty of first degree murder on a natural and probable consequences theory.
Section 1170.95 and its legislative history show that the statute afford s relief only to a
person convicted of felony murder or under the natural and probable consequences
doctrine. Where the record of conviction contains substantial evidence on which a
reasonable trier of fact could find a defendant guilty beyond a reasonable doubt under
current law, despite changes made by Senate Bill 1437, the petition has failed to make a
prima facie showing and the petition must be denied even though the allegations, if true,
would meet the statutory criteria for relief. The court concluded that our decision and the
record of conviction clearly demonstrated defendant was not convicted under a natural
and probable consequences theory and is not entitled to relief.
The trial court also quoted People v. Garcia (B300163, opn. filed Nov. 4, 2020,
review granted Feb. 10, 2021, S265692),2 explaining the meaning of “ ‘prima facie
showing,’ ” which included the following statement: “[I]n determining whether the
2 On December 29, 2021, the California Supreme Court transferred People v.
Garcia to the Court of Appeal with directions to vacate and reconsider the decision in
light of People v. Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis), and ordered the
appellate court’s opinion “depublished” or “not citable.”
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petitioner has made a prima facie showing of entitlement under section 1170.95, the trial
court is not required to accept the allegations in the petition as true.”
Defendant timely appealed.
DISCUSSION
A. Background
Senate Bill 1437 (Stats. 2018, ch. 1015, § 2, eff. Jan. 1, 2019) amended section
188 to require proof of personal malice aforethought in all murder convictions, except in
felony murder cases where a defendant is liable for murder only if he or she is the actual
killer, aided and abetted the actual killer, or was major participant in the underlying
felony and acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189,
subd. (e).) “The effect of the new law was to eliminate liability for murder under the
natural and probable consequences doctrine. [Citation.]” (People v. Offley (2020) 48
Cal.App.5th 588, 594; see also People v. Gentile (2020) 10 Cal.5th 830, 838-839.)
Criminal liability for direct aiding and abetting did not change. (Offley, supra, at pp.
595-596.) Senate Bill 1437 also enacted section 1170.95, permitting a defendant to
petition to vacate a murder conviction and seeking resentencing where the defendant
could not have been convicted by the new law. (Stats. 2018, ch. 1015, § 4; Gentile,
supra, at p. 843.)
When the trial court ruled on defendant’s petition, section 1170.95 did not
expressly permit a petition for resentencing on an attempted murder conviction. (People
v. Porter (2022) 73 Cal.App.5th 644, 651-652.) Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Senate Bill 775) (Stats. 2021, ch. 551, §§ 1-2) amended section 1170.95 to
“ ‘[c]larif[y] that persons who were convicted of attempted murder or manslaughter under
a theory of felony murder and the natural [and] probable consequences doctrine are
permitted the same relief as those persons convicted of murder under the same theories.’
(Sen. Bill No. 775; Stats. 2021, ch. 551, § 1, subd. (a).) These amendments took effect
on January 1, 2022.” (Porter, supra, at pp. 651-652, fn. omitted.)
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Section 1170.95, subdivisions (b) and (c) create a two-step process for evaluating
a petitioner’s eligibility for relief. (Lewis, supra, 11 Cal.5th at pp. 960, 961-963, 964.)
First, the trial court determines whether the petition is facially sufficient under section
1170.95, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient, then the
trial court moves on to subdivision (c), appointing counsel (if requested) and following
the briefing schedule set forth in the statute. (Lewis, at pp. 965-966.) Following the
completion of this briefing, the trial court holds a hearing and determines whether the
petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95,
subd. (c).)
As the high court explained in Lewis: “While the trial court may look at the record
of conviction after the appointment of counsel to determine whether a petitioner has
made a prima facie case for section 1170.95 relief, the prima facie inquiry under
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.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’ [Citations.]
‘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.” ’ [Citations.]” (Lewis, supra, 11 Cal.5th at p.
971; see also People v. Coley (2022) 77 Cal.App.5th 539, 545-546.)
B. Analysis
Here, the trial court denied defendant’s petition at the prima facie stage
(§ 1170.95, subd. (c)) after determining that defendant was not tried under a theory
eligible for relief under Senate Bill 1437. Rather, defendant’s convictions for murder and
attempted murder were premised upon direct aider and abettor liability.
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Relying principally on Lewis, defendant argues that the trial court incorrectly
stated that it was not required to accept the allegations of the petition as true. However,
defendant acknowledges that the court also relied on authority that the allegations of the
petition may be refuted by the record of conviction. Indeed, as mentioned, Lewis so held.
(Lewis, supra, 11 Cal.5th at p. 971.) That is the case here.
Nonetheless, defendant maintains that, as a result of the court’s incorrect statement
that the allegations of the section 1170.95 petition need not be taken as true, the trial
court ignored the evidence, for example, that defendant was not at the scene of the
murder until after it occurred. But defendant also acknowledges that the trial court cited
cases holding that a petitioner is not eligible for relief where, as here, the jury was not
instructed on the natural and probable consequences doctrine.3 One such case cited by
both the trial court and defendant, People v. Soto (2020) 51 Cal.App.5th 1043, held that
the defendant “did not make a prima facie showing that he is entitled to relief under
section 1170.95” because the jury was not instructed on the natural and probable causes
doctrine, therefore “the jury instructions given at his trial conclusively demonstrate as a
matter of law that he was not convicted of murder under a natural and probable
consequences theory . . . .” (Soto, supra, at p. 1059.) The court in Soto explained that
“[t]he jury instructions given at a petitioner’s trial may provide ‘readily ascertainable
facts from the record’ that refute the petitioner’s showing, and reliance on them to make
the eligibility or entitlement determinations may not amount to ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at p. 1055; see also People v.
Daniel (2020) 57 Cal.App.5th 666, 676-677; People v. Cortes (2022) 75 Cal.App.5th
198, 205-206 [the defendant was ineligible for resentencing under section 1170.95 where
3 To the extent defendant conflates in his briefing the requirements of proof for
felony murder, that theory was not applicable either as there was no underlying felony
charged.
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jury was instructed that the defendant could be found guilty only as a direct perpetrator or
direct aider and abettor, and was not instructed on the natural and probable consequences
doctrine].)
In this instance, as stated in our prior opinion cited by the trial court, the jury was
instructed only with CALCRIM No. 401 on direct aiding and abetting. (Vazquez, supra,
246 Cal.App.4th at p. 1024, fn. 1.) Thus, not only was the jury not instructed on the
natural and probable consequences doctrine, but jurors were instructed on direct aiding
and abetting liability under CALCRIM No. 401. A fortiori, defendant could not establish
a prima facie case of eligibility under section 1170.95. (See People v. Estrada (2022) 77
Cal.App.5th 941, 947-948 [defendant was ineligible for section 1170.95 relief where jury
was instructed with CALCRIM No. 401 on aiding and abetting and not on natural and
probable consequences theory]; People v. Coley, supra, 77 Cal.App.5th at p. 546 [same].)
Moreover, as to the principal fact on which defendant relies, that he was not present when
the shooting occurred, CALCRIM No. 401 instructs the jury, and the trial court noted, if
the requirements for direct aiding and abetting are proved, “ ‘the defendant does not need
to actually have to be present where the crime was committed to be guilty as an aider and
abettor.’ ” (Vazquez, at p. 1024, fn. 1.)
Given the instructions in this matter, the jury necessarily found defendant was a
direct aider and abettor to first degree murder and attempted first degree murder, and
therefore he is ineligible for relief under section 1170.95 as a matter of law.
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DISPOSITION
The trial court’s order denying the petition for resentencing is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
DUARTE , J.
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