People v. Brackin CA3

Filed 8/11/21 P. v. Brackin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C090794
Plaintiff and Respondent, (Super. Ct. No. SCR002160)
v.
SHAWN BRACKIN,
Defendant and Appellant.
In 1997, defendant Shawn Brackin pleaded guilty to second degree murder, assault
with a firearm, and assault with a firearm upon a police officer. He also admitted various
firearm use enhancements. As part of his plea, the parties stipulated to a finding that
defendant was not guilty by reason of insanity to the murder charge, but did not stipulate
to that finding for the other two counts. He was committed to the state hospital pursuant
to the plea agreement to a term of 15 years to life for the second degree murder offense
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and a concurrent determinate term of 13 years four months for the assault offenses and
gun enhancements.
During his commitment, the Legislature enacted Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4) (Senate Bill 1437), which amended the law
governing murder liability under felony murder and natural and probable consequences
theories, and provided a new procedure under Penal Code section 1170.95 for eligible
defendants to petition for recall and resentencing. (Statutory section references that
follow are to the Penal Code.) Defendant filed a section 1170.95 petition, and after
receiving briefing from the parties, the trial court denied the petition, finding defendant
had failed to make a prima facie showing that he was eligible for relief.
Defendant appeals, arguing the court erred in determining he was ineligible for
resentencing. He contends section 1170.95 applies to not guilty by reason of insanity
commitments and that a person convicted of provocative act murder is statutorily eligible
for relief. Although he acknowledges that several courts have disagreed with his latter
contention, he nevertheless urges us not to follow those cases.
We conclude the trial court did not err in denying defendant’s section 1170.95
petition. We affirm the court’s order.
FACTS AND HISTORY OF THE PROCEEDINGS
In 1995, defendant went into the lobby of the Roseville Police Department and
pointed a gun at a civilian in the lobby as well as at the clerk. The clerk ran from the
lobby, yelling that defendant had a gun and activating a panic alarm. Officers responded,
with one officer opening a door about a foot and telling defendant to put the gun down.
Defendant pointed the gun towards the door. An officer then fired, hitting defendant.
During the confusion, an officer in plain clothes who entered the lobby was shot and
killed by friendly fire.
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In March 1996, defendant was charged with second degree murder (§ 187, subd.
(a), count one), two counts of assault with a firearm (§ 245, subd. (a)(2), counts two and
three), and three counts of assault with a firearm upon a peace officer (§ 245, subd.
(d)(1), counts four, five, and six). Enhancements for personally using a firearm were also
alleged (§ 12022.5, subd. (a)).
In January 1997, defendant entered a plea pursuant to People v. West (1970)
3 Cal.3d 595. Under the agreement, defendant would plead guilty to counts one, three,
and six and admit the attached firearm enhancements. The parties stipulated that the plea
to second degree murder in count one would be not guilty by reason of insanity. The
parties further stipulated that the determinate term for counts three and six with the use of
a gun would be 13 years four months. It was agreed that the term for the second degree
murder would be 15 years to life. The plea agreement contemplated state hospital
incarceration in lieu of state prison with a minimum incarceration period of the
determinate term and a maximum possible state hospital term of life.
During the plea hearing, the court asked defendant if in committing second degree
murder, he “did willfully and unlawfully and with malice aforethought commit the
murder of Mark White, a human.” Defendant responded, “Guilty under West” and not
guilty by reason of insanity. Defendant also pleaded guilty under West to the assault
charges and admitted the firearm use enhancements as set forth pursuant to the terms of
the plea agreement.
The court sentenced defendant in February 1997. The court committed defendant
to the state hospital per the agreement to a term of 15 years to life for the second degree
murder offense and a concurrent determinate term of 13 years four months for the assault
offenses.
In April 2019, defendant filed a form petition for resentencing under Senate Bill
1437 and section 1170.95. On the form, he checked various boxes stating that a
complaint was filed against him that allowed the prosecution to proceed under a theory of
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felony murder or murder under the natural and probable consequences doctrine, that he
pleaded guilty or no contest to first or second degree murder in lieu of going to trial
because he believed that he could have been convicted of first or second degree murder at
trial 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, effective January 1, 2019.
Defendant’s form petition also checked boxes indicating that he was not the actual
killer; that he did not, with the intent to kill, aid, abet, or assist the actual killer in a first
degree murder; that he was not a major participant or did not act with reckless
indifference to human life during the course of the crimes; and that the victim of the
murder was not a peace officer in the performance of his or her duties, or that he was not
aware that the victim was a peace officer in the performance of his or her duties and the
circumstances were such that he should not reasonably have been aware that the victim
was a peace officer in the performance of his or her duties. Defendant requested the
appointment of counsel.
The People filed an “invitation to deny” the petition, arguing defendant had failed
to make a prima facie showing because his form petition contained conclusory allegations
and no facts regarding his convictions. The People further argued that the court file
would show defendant was never prosecuted for felony murder or under the natural and
probable consequences doctrine; the only viable murder theory was the provocative act
doctrine, which Senate Bill 1437 did not affect.
Defendant, represented by the public defender, filed a reply arguing submission of
the form petition alone satisfied a prima facie showing for relief under the statute. The
burden therefore shifted to the prosecution to prove beyond a reasonable doubt that
defendant was not eligible for relief.
At a subsequent hearing, the court ruled that section 1170.95, subdivision (c)
contained two prima facie showings. The court found that defendant had satisfied the
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first prima facie showing that he fell within the provisions of the section, but requested
further briefing from the parties before deciding whether defendant had satisfied the
second prima facie showing that he was entitled to relief.
Following the court’s ruling, the prosecution filed an opposition brief again
arguing that defendant was not prosecuted for second degree murder based on either the
felony-murder rule or the natural and probable consequences doctrine, and that he could
still be convicted of second degree murder despite Senate Bill 1437’s changes based on
either implied malice or provocative act murder. And, even if the court found the natural
and probable consequences or felony-murder theories applied, defendant was still
ineligible for relief under the peace officer exclusion contained in section 189,
subdivision (f). As exhibits, the prosecution attached copies of the police reports, which
the parties had stipulated could serve as the factual basis for defendant’s plea, as well as
the transcript of the change of plea hearing.
Defense counsel filed a reply brief arguing that because CALCRIM No. 560
defined provocative act murder in terms of natural and probable consequences,
provocative act murder fell within the parameters of section 1170.95. Defendant had thus
satisfied his prima facie burden.
At a hearing on the petition in October 2019, defense counsel argued that because
defendant entered into a West plea and no factual basis was stated at the entry of the plea,
it was not clear whether defendant had indeed engaged in a provocative act. Counsel
further argued that by eliminating murder under the natural and probable consequences
doctrine, Senate Bill 1437 and section 1170.95 necessarily eliminated provocative act
murder as well, and that a police officer exception did not apply.
The prosecutor reiterated that given the factual basis for defendant’s plea in the
police reports, the record of conviction showed that defendant was not prosecuted for
murder based on either felony murder or the natural and probable consequences doctrine.
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Had the Legislature intended to affect provocative act murder, it could have easily said
so, but it did not.
The court took the matter under submission. In a subsequent written ruling, the
court denied the petition, finding defendant could not have been convicted of second
degree murder based on a theory of felony murder or natural and probable consequences.
It also rejected defendant’s argument that Senate Bill 1437 eliminated the provocative act
doctrine because it was inextricably intertwined with the natural and probable
consequences doctrine. In so ruling, the court noted that the provocative act doctrine
differed materially from both felony murder or the natural and probable consequences
doctrine because a defendant, to be convicted of murder under the provocative act
doctrine, the defendant had to have the mental state of implied malice. Because the
record of conviction showed defendant personally acted without an accomplice and
necessarily had to act with implied malice under the provocative act doctrine, defendant
could still be convicted of murder even after Senate Bill 1437’s amendments to sections
188 and 189. And, this took the matter out of the reach of the felony murder or natural
and probable consequences doctrine.
This appeal followed.
DISCUSSION
I
Overview of Senate Bill 1437
The Legislature enacted Senate Bill 1437 to “amend the felony murder rule and
the natural and probable consequences doctrine, . . . 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).) Senate Bill 1437 achieves these goals
by amending section 188 to require that a principal act with express or implied malice
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(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state
that a person can be liable for felony murder only if (1) the “person was the actual killer”;
(2) the person, with an intent to kill, was an aider or abettor in the commission of murder
in the first degree; or (3) the “person was a major participant in the underlying felony and
acted with reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats.
2018, ch. 1015, § 3.)
Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a petition and
the court performs an initial review for missing information, subdivision (c) of section
1170.95 provides: “The court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the provisions of this section.
If the petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the prosecutor
response is served. These deadlines shall be extended for good cause. If the petitioner
makes a prima facie showing that he or she is entitled to relief, the court shall issue an
order to show cause.”
Following an order to show cause, the court must hold a hearing “to determine
whether to vacate the murder conviction and to recall the sentence . . . .” (§ 1170.95,
subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a
reasonable doubt that the defendant is not eligible for resentencing. (§ 1170.95, subd.
(d)(3).) “The prosecutor and the petitioner may rely on the record of conviction or offer
new or additional evidence to meet their respective burdens.” (Ibid.) The parties also
may waive a resentencing hearing and stipulate that a defendant “is eligible to have his or
her murder conviction vacated and for resentencing.” (§ 1170.95, subd. (d)(2).)
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II
Denial of Section 1170.95 Petition
Defendant contends the trial court erred in denying his section 1170.95 petition
because he stated a prima facie case that he was eligible for resentencing under the new
statutory scheme. In his view, a finding of not guilty by reason of insanity does not
preclude relief under section 1170.95 and Senate Bill 1437 invalidated the provocative
act murder doctrine thus making him eligible for relief. While he acknowledges that
several recent cases have found to the contrary regarding provocative act murder, he
urges us not to follow them.
We need not resolve the parties’ dispute over whether a person who pleads guilty
under West to murder and not guilty by reason of insanity and is committed to the state
hospital for the murder offense qualifies as a person “convicted of murder” within the
meaning of section 1170.95. Even if we assume, for sake of argument, that such a
commitment does not render defendant ineligible for relief under the statute, we agree
with those authorities that have held Senate Bill 1437 did not invalidate or otherwise
eliminate the provocative act murder doctrine. (See, e.g., People v. Lee (2020)
49 Cal.App.5th 254, review granted July 15, 2020, S262459 (Lee); People v. Johnson
(2020) 57 Cal.App.5th 257 (Johnson); People v. Swanson (2020) 57 Cal.App.5th 604,
review granted Feb. 17, 2021, S266262 (Swanson).)
Ordinarily, a defendant may not be convicted of murder absent proof that he
unlawfully killed a human being with either express or implied malice. (§§ 187, subd.
(a), 188, subd. (a).) Prior to Senate Bill 1437, however, a defendant could be found
guilty of murder without proof of malice under either the felony-murder rule or the
natural and probable consequences doctrine. (People v. Powell (2018) 5 Cal.5th 921,
942; People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).)
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Under the felony-murder rule, a defendant could be convicted of murder when he
or an accomplice killed someone while committing or attempting to commit an inherently
dangerous felony. (People v. Powell, supra, 5 Cal.5th at p. 942.) A felony listed in
section 189 qualified as first degree felony murder, while a nonlisted felony qualified as
second degree felony murder. (Ibid.) Prior to Senate Bill 1437, the felony-murder rule
did not require an intent to kill, or even implied malice, but merely an intent to commit
the underlying felony. (Gonzalez, supra, 54 Cal.4th at p. 654.)
Under the natural and probable consequences doctrine, “a person who knowingly
aided and abetted a crime, the natural and probable consequence of which was murder or
attempted murder, could be convicted of not only the target crime but also of the resulting
murder or attempted murder. [Citations.] ‘This was true irrespective of whether the
defendant harbored malice aforethought. Liability was imposed “ ‘for the criminal harms
[the defendant] . . . naturally, probably, and foreseeably put in motion.’ ” ’ ” (People v.
Munoz (2019) 39 Cal.App.5th 738, 749, review granted on other grounds Nov. 26, 2019,
S258234.) The natural and probable consequences doctrine “is not an implied malice
theory; the mens rea of the aider and abettor with respect to the [murder or attempted
murder], actual or imputed, is irrelevant.” (People v. Lopez (2019) 38 Cal.App.5th 1087,
1102, review granted on other grounds Nov. 13, 2019, S258175.)
As Lee, Johnson, and Swanson explain, unlike the felony-murder rule 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 an accomplice or third party. (Lee,
supra, 49 Cal.App.5th at pp. 264-265, review granted; Johnson, supra, 57 Cal.App.5th at
pp. 266-268; Swanson, supra, 57 Cal.App.5th at pp. 612-614, review granted.) “The
provocative act murder doctrine has traditionally been invoked in cases in which the
perpetrator of the underlying crime instigates a gun battle, either by firing first or by
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otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the
police, or a victim of the underlying crime, responds with privileged lethal force by
shooting back and killing the perpetrator’s accomplice or an innocent bystander.”
(People v. Cervantes (2001) 26 Cal.4th 860, 867.) The malice requirement for
provocative act murder was well established in 1997 when defendant pleaded guilty and
not guilty by reason of insanity to murder. (See, e.g., People v. Mai (1994)
22 Cal.App.4th 117, 124 [“an element of the provocative act doctrine is implied malice”],
disapproved on other grounds by People v. Nguyen (2000) 24 Cal.4th 756, 757.)
Provocative act murder has both a physical and a mental element. (People v.
Mejia (2012) 211 Cal.App.4th 586, 603.) The mental state is malice aforethought.
(Ibid.) The physical element is the provocative act itself, defined in Mejia as “an act, the
natural and probable consequence of which is the use of deadly force by a third party.”
(Ibid.)
Contrary to defendant’s argument, although provocative act murder incorporates
some concepts related to the natural and probable consequences doctrine, this does not
mean Senate Bill 1437 eliminated provocative act murder. While a defendant convicted
of provocative act murder is vicariously liable for the physical act of killing carried out
by a victim or a third party (Gonzalez, supra, 54 Cal.4th at pp. 654-655), “[w]ith respect
to the mental element of provocative act murder, a defendant cannot be vicariously liable;
he must personally possess the requisite mental state of malice aforethought when he
either causes the death through his provocative act or aids and abets in the underlying
crime the provocateur who causes the death.” (People v. Mejia, supra, 211 Cal.App.4th
at p. 603.)
Defendant implicitly concedes, like the trial court found, that the only two theories
available to prosecute him for Officer White’s murder were provocative act murder or
implied malice murder. Pleading guilty to murder under either theory necessarily means
that defendant admitted he possessed implied malice during the killing. Thus, defendant
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cannot show that he “could not be convicted of first or second degree murder because of
changes to Section 188 or 189” as required for relief under section 1170.95, subdivision
(a)(3).
DISPOSITION
The trial court’s order denying defendant’s section 1170.95 petition for
resentencing is affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
DUARTE, J.
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