People v. Briscoe CA1/4

Filed 1/20/22 P. v. Briscoe CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159174
v.
KHYLE ARMANDO BRISCOE, (Solano County
Super. Ct. No. C46114)
Defendant and Appellant.
This appeal requires us to consider whether a defendant
convicted under a theory of provocative act murder is potentially
eligible for resentencing under Penal Code1 section 1170.95. We
join other courts that have unanimously concluded section
1170.95 is unavailable to such defendants as a matter of law.
Accordingly, we affirm the denial of defendant Khyle Armando
Briscoe’s petition to vacate his murder conviction and for
resentencing.
1 Further statutory citations are to the Penal Code.
1
BACKGROUND2
On an April night in 1998 Briscoe and Shaun Pina, both
armed with handguns, entered the home of Ben Parovel on the
pretense of wanting to buy marijuana and attempted to rob him
at gunpoint. During the ensuing struggle Briscoe held a
.38-caliber handgun to Parovel’s girlfriend’s neck, held her at
gunpoint in a headlock, and repeatedly struck Parovel in the
head with a 10-millimeter Glock semiautomatic pistol. Parovel
eventually managed to gain control of the .38 and shot both
assailants, killing Pina. (People v. Briscoe, supra, 92 Cal.App.4th
at pp. 577–580.)
Briscoe was charged with first degree murder, robbery, and
burglary. The information alleged the murder was committed in
the commission of robbery and burglary and that Briscoe
personally used a firearm in the commission of all three offenses.
(People v. Briscoe, supra, 92 Cal.App.4th at pp. 579–580.) It
further alleged as special circumstances that Briscoe acted with
reckless indifference to human life and acted as a major
participant in the underlying felonies. A jury convicted him on all
charges, found the firearm-use enhancements true, found he was
engaged in the crimes of robbery and burglary during the
commission of the murder, and found the special circumstances
allegations to be true. (Id. at p. 580.) The court sentenced Briscoe
to life imprisonment without possibility of parole for the murder
2The relevant events are described in greater detail in our
opinion affirming Briscoe’s murder conviction, People v. Briscoe
(2001) 92 Cal.App.4th 568.
2
with a four-year consecutive term for the associated firearm
enhancement. Terms for the robbery and burglary convictions
and their related enhancements were stayed pursuant to section
654. (Ibid.)
In December 2018 Briscoe filed a petition for resentencing
under section 1170.95. The petition alleged Briscoe had been
convicted of first degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine and that
he could not now be so convicted because of changes to sections
188 and 189 effective January 2019, because he was not the
actual killer, did not have the intent to kill or aid and abet the
actual killer, and was not a major participant in the felony or did
not act with reckless indifference to human life.
The trial court appointed counsel for Briscoe and issued an
order to show cause as to why his petition should not be granted,
but subsequently granted a motion for reconsideration, reversed
its prior finding that Briscoe had made a prima facie showing
under section 1170.95, and denied the petition. It explained:
“In terms of whether a prima facie standard has been met,
in this case, the Court is looking to determine whether assuming
that the petition’s factual allegations are true, it’s determining
whether there’s a reasonable likelihood that the petitioner may
be entitled to relief. In this particular case, again, upon a closer
analysis, the Court believes that the defendant has failed to
make a threshold showing.
“The Court reviewed the appellate decision . . . People v.
Briscoe. In that appellate decision, the Court went through the
3
provocative act theory that was [the] reason[] . . . the defendant
was convicted, the jury instructions that were given by the Court
when the defendant was in trial in this county, and the special
circumstances findings that were made.
“And the petition[er] was found guilty under the
provocative act doctrine that finds a conscious disregard for life
and the . . . mens rea element is satisfied. The defendant knows
his actions had a high probability, not merely a foreseeable
probability, of eliciting a life-threatening response from the
person who actually fires the fatal bullet. The jury . . . was
instructed pursuant to [section 190.2, subdivision (d)] which
requires reckless indifference to human life as a major
participant in the crime.”
The court rejected defense arguments that Briscoe was the
least involved in planning the crime, attempted to minimize the
risk of violence during its commission, did not intend to kill or
use his weapon, and attempted to aid Pina after he was shot.
“While his attempt to assist Pina from being shot may be noted,
the other factors, that is, the knowledge of the weapons, the
duration of the crime, the awareness of whether others would be
likely killed, efforts to minimize violence, do not seem to tip in
the petitioner’s favor.” The court concluded the petition for
resentencing failed to establish a prima facie case.
Briscoe filed a timely appeal.
DISCUSSION
Because the issues in this appeal require us to interpret
section 1170.95 in relation to provocative act murder, our review
4
is de novo. (Weatherford v. City of San Rafael (2017) 2 Cal.5th
1241, 1247.) We review the ruling, not the court’s reasoning, and
affirm if correct on any ground. (People v. Zapien (1993) 4 Cal.4th
929, 976.)
1. Senate Bill No. 1437 and Section 1170.95
Senate Bill No. 1437 (Senate Bill 1437), effective
January 1, 2019, “was enacted 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 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.’ (Stats. 2018, ch.
1015, § 1, subd. (f).)” (People v. Martinez (2019) 31 Cal.App.5th
719, 723.) To that end, “Senate Bill 1437 substantially modified
the law relating to accomplice liability for murder, eliminating
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder [citation] and significantly
narrowing the felony-murder exception to the malice requirement
for murder.” (People v. Mancilla (2021) 67 Cal.App.5th 854, 862,
review den. Oct. 27, 2021 (Mancilla).)
As relevant here, the new legislation amended section 188
by adding a requirement that, with the exception of felony
murder, “to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (Sen.
Bill 1437, ch. 1015 (2017-2018 Reg. Sess.), § 2; § 188, subd.
(a)(3).) This effectively eliminated the natural and probable
5
consequences doctrine as a basis for murder liability. (People v.
Gentile (2020) 10 Cal.5th 830, 846–847.) At the same time Senate
Bill 1437 amended section 189 to require that the perpetrator of a
felony murder was either the actual killer, aided and abetted the
killer with the intent to kill, or was a major participant in the
underlying felony and acted with reckless indifference to human
life. (Sen. Bill 1437, ch. 1015 (2017-2018 Reg. Sess.), § 3; § 189,
subd. (e).)
Senate Bill 1437 also created, through new section 1170.95,
an avenue for offenders previously convicted of murder under the
felony-murder law or the natural and probable consequences
doctrine to petition the trial court to vacate their conviction and
for resentencing if they could not have been convicted of murder
under the amended statutes. (Sen. Bill 1437, § 4; Mancilla,
supra, 67 Cal.App.5th at p. 862.) It provides: “(a) A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced 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 . . . [;] [¶]
[and] (3) The petitioner could not be convicted of first or second
6
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
If the petition makes a prima facie showing that the
petitioner falls within the provisions of section 1170.95, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(Mancilla, supra, 67 Cal.App.5th at p. 863.) At the hearing the
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence. (Ibid.) The prosecutor has the
burden of proving beyond a reasonable doubt that the petitioner
is ineligible for resentencing. (Ibid.)
2. Murderers Convicted under the Provocative Act
Murder Rule Are Ineligible for Section 1170.95 Relief
Having laid out the narrowing of murder liability effected
by Senate Bill 1437, we turn to whether Briscoe’s conviction for
provocative act murder renders him ineligible for relief under
section 1170.95. We conclude it does.
“ ‘The provocative act doctrine is to be distinguished from
the felony-murder rule.’ [Citation.] The felony-murder rule
applies to killings ‘committed in the perpetration of, or attempt to
perpetrate’ certain crimes. (§ 189, subd. (a).) ‘When a killing is
not committed by [the defendant] or by his accomplice but by his
victim,’ however, ‘malice aforethought is not attributable to the
[defendant], for the killing is not committed by him in the
perpetration or attempt to perpetrate’ the underlying felony.
[Citation.] Thus, the felony murder rule cannot support a murder
7
conviction when an accomplice is killed by a third party rather
than by the defendant or another accomplice. [Citations.]
“Under such circumstances, the defendant may nonetheless
be convicted of murder under the provocative act doctrine.
‘[W]hen the perpetrator of a crime maliciously commits an act
that is likely to result in death, and the victim kills in reasonable
response to that act, the perpetrator is guilty of murder.
[Citations.] “In such a case, the killing is attributable, not merely
to the commission of a felony, but to the intentional act of the
defendant or his accomplice committed with conscious disregard
for life.” ’ ” (People v. Lee (2020) 49 Cal.App.5th 254, 263–264
(Lee), review granted July 15, 2020, S262459; review dism. and
remanded Nov. 23, 2021 in light of People v. Lewis (2021)
11 Cal.5th 952 (Lewis).)
“Like any other murder, a provocative act murder
committed without deliberation and premeditation is murder of
the second degree.” (People v. Swanson (2020) 57 Cal.App.5th
604, 616 (Swanson), review granted Feb. 17, 2021, S266262,
review dism. and remanded Nov. 23, 2021 in light of Lewis,
supra, 11 Cal.5th 952.) While the felony murder rule cannot be
used to impute malice when neither the defendant nor an
accomplice actually committed the killing, “section 189 may be
used to establish the degree of the murder if malice—and
therefore murder—is otherwise proved. [Citation.] Thus, a
provocative act murder which occurs when a defendant acts with
implied malice may nevertheless be first degree murder if it
occurs during the course of a section 189 felony.” (People v. Mejia
8
(2012) 211 Cal.App.4th 586, 619; see Swanson, at p. 616; People
v. Caldwell (1984) 36 Cal.3d 210, 216, fn.2; People v. Baker-Riley
(2012) 207 Cal.App.4th 631, 635–636.) This principle, known as
the Gilbert rule, has been the law since the Supreme Court
articulated it in People v. Gilbert (1965) 63 Cal.2d 690, vacated on
other grounds in Gilbert v. California (1967) 388 U.S. 263, 274.3
Critical to the present analysis, it has long been established
that murder under the provocative act doctrine incorporates a
malice element. “Unlike felony murder or murder under the
natural and probable consequences doctrine, ‘[a] murder
conviction under the provocative act doctrine . . . requires proof
that the defendant personally harbored the mental state of malice,
and either the defendant or an accomplice intentionally
committed a provocative act that proximately caused’ the death of
another accomplice.” (Lee, supra, 49 Cal.App.5th at p. 264, italics
added, quoting People v. Gonzalez (2012) 54 Cal.4th 643, 655;
Swanson, supra, 57 Cal.App.5th at p. 613 [conviction under
provocative act murder “ ‘requires proof that the defendant
personally harbored the mental state of malice’ ”]; People v. Mai
(1994) 22 Cal.App.4th 117, 124, disapproved on another point in
People v. Nguyen (2000) 24 Cal.4th 756, 761 [“an element of the
provocative act doctrine is implied malice”]; see People v. Gilbert,
supra, 63 Cal.2d at pp. 703–704; People v. Smith (2005)
3 Although not relevant in this case, provocative act murder
is also of the first degree when the defendant acts with express
malice and the killing is willful, deliberate, and premeditated.
(People v. Mejia, supra, 211 Cal.App.4th at p. 604.)
9
37 Cal.4th 733, 747 [“conscious disregard for life” is implied
malice].)
Briscoe concedes as much, and acknowledges that for this
reason a person convicted of second degree provocative act
murder “[i]n most cases” cannot establish the prima facie
showing required by section 1170.95, subdivision (a) 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).) He argues, however, that he is
nonetheless potentially eligible for resentencing because the
Gilbert rule was invoked to elevate his conviction to first degree
murder. In his view, “by limiting application of the felony murder
rule stated in Section 189, Senate Bill 1437 also limited
application of the Gilbert rule.” Therefore, “even under the
Gilbert rule, it must additionally be proven that the person was
the actual killer, had the intent to kill or ‘was a major participant
in the underlying felony and acted with reckless indifference to
human life. . . .’ ”
We disagree. Briscoe was convicted of provocative act
murder, not felony murder. Nothing in Senate Bill 1437 indicates
a legislative intent to impose the new felony murder
requirements on provocative act murder, a distinct theory of
murder liability (People v. Gonzalez, supra, 54 Cal.4th at p. 654),
or to incorporate them into the Gilbert rule as additional
requirements for elevation of a provocative act murder conviction
to first degree. To the contrary, the Legislature unambiguously
limited resentencing eligibility to “person[s] convicted of felony
10
murder or murder under the natural and probable consequences
doctrine.” (§ 1170.95, subd. (a).) “[W]hen statutory language is
‘clear and unambiguous there is no need for construction, and the
courts should not indulge in it.’ ” (Pacific Gas & Electric Co. v.
Public Utilities Com. (2000) 85 Cal.App.4th 86, 92.)
Briscoe was not convicted of felony murder or murder
under a probable and natural consequences theory, so he is not
eligible for relief. Nor does the elevation of his offense to first
degree under the Gilbert rule because the killing took place
during the course of an offense listed in section 189 mean, as he
asserts, that he was convicted of both provocative act murder and
felony murder. Indeed, because the fatal shot was fired by one of
the victims, it is a legal impossibility for Briscoe to have been
convicted of felony murder. (People v. Johnson (2020)
57 Cal.App.5th 257, 266 (Johnson); People v. Gonzalez, supra,
54 Cal.4th at pp. 654–655 [felony murder principles are
inapplicable when someone other than the defendant or an
accomplice kills during the commission of a crime].)
Briscoe is also ineligible for resentencing for another
reason. Section 1170.95, subdivision (a)(3) requires as a condition
of eligibility that “[t]he petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” That Briscoe cannot satisfy this
requirement is established by his concession that he could have
been convicted of second degree provocative act murder under
current law. “ ‘The plain and ordinary meaning of the word “or” is
well established. When used in a statute, the word “or” indicates
11
an intention to designate separate, disjunctive categories.’ ”
(Eddie E. v. Superior Court (2015) 234 Cal.App.4th 319, 327, see
p. 325.) Thus, Eddie E. held a statutory prerequisite of
abandonment by one or both parents was satisfied by proof of
abandonment by one parent. (Id. at p. 327.) By the same token,
even if Briscoe’s murder conviction could no longer be elevated to
first degree under Gilbert after Senate Bill No. 1437,4 he could
“be convicted of first or second degree murder” notwithstanding
the enactment of Senate Bill 1437.5 We are therefore unsurprised
that every court to consider the issue has affirmed the prima
facie denial of a section 1170.95 petition for a provocative act
murder conviction elevated to first degree murder under the
Gilbert rule. (Johnson, supra, 57 Cal.App.5th at p. 266 [first
degree murder pursuant to Gilbert rule]; Swanson, supra,
57 Cal.App.5th at pp. 616–617 [same]; Lee, supra, 49 Cal.App.5th
at pp. 259, 263–266.)
Briscoe argues this result contravenes the core principles
underlying Senate Bill 1437 because his conviction was elevated
to first degree “without regard for his subjective mens rea, and
4 To be clear, we reach no such conclusion.
5 As amended by Senate Bill No. 775 (2021-2022 Reg.
Sess.), effective January 1, 2022, section 1170.95, subdivision
(a)(3) no longer makes a distinction between first and second
degree murder. In its current form, it requires as a condition of
eligibility that “[t]he petitioner could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” Neither this nor any
other changes to the resentencing statute effected by Senate Bill
No. 775 support Briscoe’s arguments here.
12
based upon the exact same felony murder rule that the
Legislature has now abandoned as ‘inconsistent with basic
principles of law and equity.’ ” We disagree. Senate Bill 1437 was
enacted to ensure that “[a] person’s culpability for murder must
be premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, §1, subd. (g).) In convicting Briscoe of
provocative act murder, the jury necessarily found that he acted
with implied malice. That culpable mental state having been
established, we see no tension between the principles underlying
Senate Bill 1437 and a rule that elevates the degree of Briscoe’s
offense based on a particular actus reus, i.e., its commission
during a specified felony.
For all these reasons, we reject Briscoe’s contention that
barring him from section 1170.95 relief is contrary to legislative
intent because he “plainly” belongs in the category of eligible
offenders. His attempt to import the new felony murder
requirements into the provocative act murder doctrine is
unsupported by case law and, more importantly, irreconcilable
with section 1170.95’s express restriction of relief to persons
convicted of felony murder or murder under a natural and
probable consequences theory. “When interpreting statutory
language, we may neither insert language which has been
omitted nor ignore language which has been inserted.” (Rudd v.
California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 952;
see Johnson, supra, 57 Cal.App.5th at p. 269.)
13
3. Excluding Offenders Convicted of Provocative Act
Murder from Relief under Section 1170.95 Does Not
Violate Equal Protection.
We also reject Briscoe’s claim that the exclusion of
provocative act murder from Senate Bill 1437 violates his
constitutional right to equal protection. “The concept of equal
treatment under the laws means that persons similarly situated
regarding the legitimate purpose of the law should receive like
treatment. [Citation.] ‘ “The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” [Citations.]
This initial inquiry is not whether persons are similarly situated
for all purposes, but “whether they are similarly situated for
purposes of the law challenged.” ’ ” (People v. Morales (2016)
63 Cal.4th 399, 408.)
A like equal protection claim was raised and rejected in
Johnson, supra, 57 Cal.App.5th at pp. 270–271. There, as here,
the defendant’s provocative act murder conviction was elevated to
first degree based on the victim’s shooting of an accomplice
during an armed home invasion robbery. (Id. at pp. 261, 266.) As
explained there, “Johnson [was] . . . not similarly situated to
persons convicted of felony murder or murder under the natural
and probable consequences doctrine because ‘[u]nlike [these
murders], “[a] murder conviction under the provocative act
doctrine . . . requires proof that the defendant personally
harbored the mental state of malice. . . .” ’ [Citation.] ‘Because
[Johnson] was convicted of provocative act murder, the jury
14
necessarily found he acted with malice aforethought.’ ” (Id. at
pp. 270–271, first brackets added, fn. omitted.) In contrast, the
felony murder rule generally acts as a substitute for the mental
state ordinarily required for murder, while the natural and
probable consequences doctrine allows an aider and abettor to be
convicted of murder without malice. (Id. at p. 271, fn. 4.)
Even more recently, Mancilla, supra, 67 Cal.App.5th at
pp. 869–870 followed Johnson in rejecting the contention that
offenders convicted of provocative act murder and those convicted
under the natural and probable consequences doctrine are
similarly situated. “Given the express intent of Senate Bill 1437
‘to more equitably sentence offenders in accordance with their
involvement in homicides’ [citations], offenders who acted with
malice and those who did not are not similarly situated for
purposes of section 1170.95.” (Mancilla, at p. 870.) We agree.
Briscoe argues Johnson is not controlling because “while
the jury did consider whether [he] acted with implied malice in
finding that he committed provocative act murder, the jury did
not consider the same” in elevating the offense to first degree
murder under the Gilbert rule. That is the precisely the situation
presented in Johnson, supra, 57 Cal.App.5th at p. 266, so it does
not distinguish the cases. In any event, to convict Briscoe of
provocative act murder the jury found he acted with malice. That
it did not consider his mens rea again in finding the murder was
15
committed during a robbery and burglary6 does not erase this
critical difference between his offense and felony murder.
Because Briscoe is ineligible for section 1170.95
resentencing for these reasons, we do not address his additional
contentions that (1) the true findings on the special
circumstances allegations did not also preclude resentencing;7
and (2) the court erred in finding he was a major participant who
acted with reckless indifference.8
DISPOSITION
The order denying Briscoe’s petition for resentencing under
section 1170.95 is affirmed.
6 The verdict form asked the jurors to decide whether
Briscoe was engaged in these crimes only if they had found him
guilty of murder.
7Whether a felony murder special circumstance finding
made before People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522 precludes a defendant from making a
prima facie showing of eligibility for section 1170.95 relief is
currently pending in the Supreme Court. (People v. Strong
(Dec. 18, 2020, C091162) review granted Mar. 10, 2021,
S266606.)
8 By separate order filed contemporaneously with this
opinion we deny Briscoe’s petition for writ of habeas corpus
challenging the section 190.2, subdivision (d) special
circumstances findings (In re Briscoe, A163984) without prejudice
to the petition being filed in the Solano County Superior Court.
16
_________________________
Ross, J. *
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
A159174 People v. Briscoe
*Judge of the San Francisco Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17