People v. Brittain CA4/1

Filed 1/5/23 P. v. Brittain CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078233
Plaintiff and Respondent,
v. (Super. Ct. No. SCD187149)
LANCE DENE BRITTAIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Reversed and remanded with directions.
Lynda A. Romero, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L.
Amann and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.
Lance Dene Brittain appeals the order denying the petition to vacate
his 2007 murder conviction, which he filed based upon postconviction
statutory changes that narrowed the scope of liability for felony murder. The
trial court relied on the jury’s robbery-murder special-circumstance finding to
deny relief at the prima facie review stage.
In our initial opinion, we concluded the jury’s finding did not
categorically bar relief, reversed the order, and remanded the matter for
further proceedings. The Supreme Court of California granted the People’s
petition for review and held the case for its decision in People v. Strong (2022)
13 Cal.5th 698 (Strong), where it held a jury’s true finding on a felony-
murder special-circumstance allegation did not preclude a petitioner from
making a prima facie showing of eligibility for resentencing when the jury
made the finding before the Supreme Court had issued two decisions on key
phrases in the statute defining the special circumstance. After the Supreme
Court issued its decision in Strong, it transferred Brittain’s appeal to us with
directions to vacate our opinion and to reconsider the matter in light of the
decision.
In compliance with those directions, we hereby vacate our prior
opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order
denying Brittain’s resentencing petition and remand the matter for further
proceedings.
I.
BACKGROUND
A. Underlying Murder Conviction
The following quoted paragraphs are taken from our opinion affirming
the judgment of conviction against Brittain.
“1. The Abramovitz Murder
“On July 13, 2004, Brittain and [Larry Ray] Phillips beat Stewart
Abramovitz to death in the office of A&R Motors at 7364 El Cajon Boulevard.
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In the process of beating Abramovitz, Brittain and Phillips obtained the PIN
number for Abramovitz’s ATM card. Brittain then used the ATM card to
make repeated withdrawals from an ATM at the Sycuan Casino.
“An ATM camera took pictures of Brittain making the withdrawals,
and those pictures were later broadcast on a Crime Stoppers television
segment and on San Diego County Crime Stoppers Web site, leading to
Brittain’s identification by members of the public. DNA matching Brittain’s
genetic profile and DNA consistent with Phillips’s genetic profile were found
in a blood stain in Abramovitz’s office.
“[¶] . . . [¶][1]
“3. Escape and Capture
“In August 2004, after viewing the Crime Stoppers television segment,
Brittain decided to leave town. Brittain stole a car from the parking lot of In
Cahoots bar in Mission Valley, and fled to Colorado with his fiancée, Kerlinda
Ramirez. On August 26, 2004, Brittain was arrested in Commerce City,
Colorado, after a police officer stopped the couple in the stolen car. During
the stop, Ramirez told the police officer about the car theft and related to him
Brittain’s statements indicating his complicity in the Abramovitz murder.
“On November 7, Phillips was stopped for a traffic violation and
arrested in Norwood, Colorado. After being transported to a San Diego jail,
Phillips told an inmate about the Abramovitz murder and [another crime].
While in jail, Brittain attempted to send a note to Phillips. The note stated:
‘I will take our cases. I’ll take a deal for life without. You call me as a
witness and I’ll get on the stand and say I did them.’ ” (People v. Brittain
(Mar. 2, 2009, D050186) [nonpub. opn.].)
1 The omitted portion described a separate incident that resulted in an
attempted murder conviction that is not at issue on this appeal.
3
A jury found Brittain guilty of first degree murder (Pen. Code, § 187,
subd. (a); subsequent undesignated section references are to this code) and
robbery (§ 211) and found true a special-circumstance allegation he
committed the murder during the robbery (§ 190.2, subd. (a)(17)(A)). On
January 16, 2007, the trial court sentenced Brittain to prison for life without
the possibility of parole on the murder conviction. (§ 190.2.)
B. Petition for Resentencing
On January 1, 2019, legislation took effect that, among other things,
narrowed the scope of liability for felony murder by amending sections 188
and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The legislation also added a new
statute authorizing those convicted of felony murder to petition for
resentencing if they could not be convicted of that crime under the amended
statutes had they been in effect at the time of the killing. (Former § 1170.95,
enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2,
and renumbered § 1172.6 by Stats. 2022, ch. 58, § 10.)2
On January 8, 2019, Brittain, proceeding in propria persona, filed a
form petition for relief under the new legislation. He checked boxes stating
an accusatory pleading had been filed that allowed prosecution under a
theory of felony murder; he was convicted of first degree murder under the
felony-murder rule; and because of the changes to section 189 that took effect
a week earlier, he could not now be convicted of first degree murder. Brittain
also checked boxes on the form petition stating he was not the actual killer,
did not aid and abet the actual killer with intent to kill, and was not a major
participant in the felony during which the victim was killed or did not act
2 The amendments are not relevant to this appeal. We shall cite the
current version of the statute (§ 1172.6) in this opinion even though Brittain
filed his petition under the former version (§ 1170.95).
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with reckless indifference to human life in the felony. Brittain attached to
the petition copies of the abstract of judgment and the accusatory pleading.
The People opposed the petition on the ground the jury’s robbery-
murder special-circumstance finding made Brittain ineligible for relief. They
attached to their opposition copies of the accusatory pleading, the jury’s
verdicts, the trial court’s sentencing minutes, and this court’s opinion on
Brittain’s appeal.
In reply, Brittain, represented by appointed counsel, argued he had
stated a prima facie case for relief and the trial court therefore was required
to issue an order to show cause and to hold an evidentiary hearing.
The People filed a supplemental brief that cited then-recent cases in
support of their contention the jury’s robbery-murder special-circumstance
finding meant Brittain could be convicted of first degree murder even after
the changes to section 189 and so was not entitled to resentencing.
The trial court held a hearing at which the parties submitted on their
briefs. The court denied the petition “because it appears that [Brittain] was
an active participant in this homicide.”
C. Prior Appellate Proceedings
On Brittain’s appeal of the trial court’s order denying his section 1172.6
petition, we issued an opinion in which we concluded the jury’s true finding
on the felony-murder special-circumstance allegation did not categorically bar
relief, reversed the order denying the petition, and remanded the matter to
the trial court for further proceedings. (People v. Brittain (Feb. 16, 2022,
D078233) [nonpub. opn.].) The Supreme Court of California granted review
and held the appeal for its decision in Strong, supra, 13 Cal.5th 698. (People
v. Brittain, S273731, Supreme Ct. Mins., Apr. 27, 2022.) In Strong, the
Supreme Court ruled that a jury’s true finding on a felony-murder special-
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circumstance allegation made before the decisions in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
which for the first time provided substantial guidance on the meanings of the
phrases “major participant” and “with reckless indifference to human life” as
used in the statute defining the special circumstance (§ 190.2, subd. (d)), does
not preclude a petitioner from stating a prima facie case for relief under
section 1172.6. (Strong, at p. 721.) After issuing its decision, the Supreme
Court transferred Brittain’s appeal back to us with directions to vacate our
initial opinion and to reconsider the matter in light of the decision. (People v.
Brittain, S273731, Supreme Ct. Mins., Nov. 30, 2022.)
II.
DISCUSSION
Brittain contends the trial court erred by denying his petition for
resentencing based on the jury’s true finding on the felony-murder special-
circumstance allegation because the finding was made before the Supreme
Court decided Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th
522. He asks us to reverse the order and to remand the matter to the trial
court for further proceedings under section 1172.6. The People initially
disagreed with Brittain and urged us to affirm the order, but after the
Supreme Court decided Strong, supra, 13 Cal.5th 698, the People agree the
order must be reversed and the matter remanded for further proceedings.
We agree with the parties.
As noted earlier, the Supreme Court recently decided that where, as
here, a defendant’s case “was tried before both Banks and Clark, the special
circumstance findings do not preclude him from making out a prima facie
case for resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at
p. 721.) The Supreme Court reasoned that section 1172.6 requires the
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petitioner to make a prima facie showing that he could not be convicted of
murder under the amended versions of sections 188 and 189, and “[a] pre-
Banks and Clark special circumstance finding does not negate that showing
because the finding alone does not establish that the petitioner is in a class of
defendants who would still be viewed as liable for murder under the current
understanding of the major participant and reckless indifference
requirements.” (Strong, at pp. 717-718.) “This is true even if the trial
evidence would have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001,
1008 [trial court may not deny section 1172.6 petition at prima facie stage
based on its own determination defendant was major participant in felony
and acted with reckless disregard for human life].) Thus, “[n]either the jury’s
pre-Banks and Clark findings nor a court’s later sufficiency of the evidence
review amounts to the determination section 1172.6 requires, and neither set
of findings supplies a basis to reject an otherwise adequate prima facie
showing and deny issuance of an order to show cause.” (Strong, at p. 720.)
In Brittain’s case, the jury made its special circumstance finding
several years before the Supreme Court decided Banks, supra, 61 Cal.4th
788, and Clark, supra, 63 Cal.4th 522. Under Strong, those findings do not
preclude Brittain from stating a prima facie case for relief. (Strong, supra,
13 Cal.5th at p. 721.) Because his petition alleged the facts necessary for
relief under section 1172.6 and nothing in the record shows he is ineligible for
relief as a matter of law, the trial court erred by summarily denying the
petition. We therefore must remand the matter to the court to issue an order
to show cause and, to the extent necessary, hold an evidentiary hearing.
(§ 1172.6, subds. (c), (d); Strong, at pp. 708-709; People v. Duchine (2021)
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60 Cal.App.5th 798, 816.) We express no opinion on how the trial court
should ultimately rule on the petition.
III.
DISPOSITION
The opinion filed on February 16, 2022, is vacated. The order denying
the petition for relief under section 1172.6 is reversed. The matter is
remanded to the trial court with directions to issue an order to show cause
and, to the extent necessary, to hold an evidentiary hearing.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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