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P. v. Brinson CA1/3

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P. v. Brinson CA1/3
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05:11:2022

Filed 4/7/22 P. v. Brinson CA1/3

Opinion on remand 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY LAWRENCE BRINSON,

Defendant and Appellant.

A157869

(Sonoma County

Super. Ct. No. SCR289231)

On June 16, 2020, we issued our original opinion on this appeal from a summary denial of a petition for resentencing under Penal Code section 1170.95. [1] We affirmed on the basis that defendant Johnny Lawrence Brinson (Brinson) was ineligible for resentencing on his conviction for attempted murder as a matter of law, and any trial court errors in failing to appoint him counsel and waiting for the prosecution’s response were harmless under any standard of review. (People v. Brinson (dec. Jun. 16, 2020, A157869) [nonpub. opn.].)

Following the issuance of our opinion, our Supreme Court decided People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified certain procedural provisions in former section 1170.95, as enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019. (Stats. 2018, ch. 1015; Cal. Const., art. IV, § 8, subd. (c)(1).) The Legislature later codified and clarified certain portions of Lewis by enacting Senate Bill No. 775 (2021-2022 Reg. Sess.)(Senate Bill 775), effective January 1, 2022 (Stats. 2021, ch. 551; Cal. Const., art. IV, § 8, subd. (c)(1)), which amended several provisions of former section 1170.95, while leaving other provisions unchanged; “reaffirm[ed] the burden of proof at a resentencing hearing; and addresse[d] the evidence a court may consider at a resentencing hearing. (Stats. 2021, ch. 551, § 1, subds. (b)-(d).)” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2, review granted March 23, 2022, S273159 (Mejorado).) Section 1170.95, as amended, now provides that persons convicted of attempted murder under the natural and probable consequences doctrine (id., subd. (a)) “may obtain the same relief as persons convicted of murder under [that theory].” (Mejorado, supra, at p. 568, fn. 2, citing Stats. 2021, ch. 551, § 1, subd. (a).)

On January 26, 2022, having granted Brinson’s petition for review, our Supreme Court remanded the case to us with directions to vacate our prior opinion and reconsider the cause in light of Senate Bill 775 and Lewis, supra, 11 Cal.5th 952. By order dated April 1, 2022, we vacated our June 16, 2020 opinion.

The Attorney General has submitted a supplemental brief, arguing that the summary denial of the resentencing petition remains correct because under the new statutory and case law Brinson is still ineligible for relief as a matter of law, and any procedural errors were harmless. Brinson has submitted a supplemental brief, arguing that we should remand the case to the trial court for a reconsideration of his petition in the first instance under the expanded law.

Having reconsidered the cause, we conclude Brinson is ineligible for resentencing as a matter of law under the new statutory and case law, and any procedural errors were harmless. Accordingly, we affirm the order summarily denying the section 1170.95 petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Brinson and a codefendant were charged with attempted murder and jointly tried. The People presented three eyewitnesses including the victim, all of whom identified Brinson as the person who fired a shotgun at the victim, hitting him in the arm. The trial prosecutor argued to the jury that Brinson was the actual shooter and his codefendant was responsible as either a principal or aider and abettor. The trial prosecutor never argued the theory of natural and probable consequences, and there were no jury instructions or verdict forms referencing that theory.

The jury found Brinson guilty of attempted willful, deliberate, and premeditated murder (§§664, 187, subd. (a)) with a related allegation that he had personally used and discharged a firearm (§12022.53, subds. (b), (c)). The jury also found Brinson guilty of being a felon in possession of a firearm (§12021, subd. (a)(1)). The court found Brinson had a prior strike and serious felony conviction. (§§ 667, subd. (a), 1170.12.) The jury failed to reach a verdict concerning the codefendant, and the charge of attempted murder against him was later dismissed.

In May 2000, Brinson was sentenced to an aggregate term of 39 years to life. We affirmed the conviction in an unpublished opinion (People v. Brinson (Jun. 26, 2001, A091236) [nonpub. opn.]), and review was denied by the Supreme Court (People v. Brinson (Sept. 12, 2001, S099585).

Section 1170.95 Petition

In June 2019, Brinson, appearing in propria persona, filed a section 1170.95 petition, using “a downloadable form” petition and declaration. “The substantive portion of the form petition consists of a declaration with boxes to be checked against averments essentially tracking the statutory language as to the prerequisites for filing a petition and demonstrating a prima facie showing that the petitioner falls within the provisions of section 1170.95 and is eligible for relief.” (People v. Edwards (2020) 48 Cal.App.5th 666, 670, overruled in part on other grounds in Lewis, supra, 11 Cal.5th at p. 963.)

Brinson, checking boxes on the form petition, averred, in pertinent part, that:

“A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”;

“At trial, I was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine,” as well as “I was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine”;

“I 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,” as well as, “I could not now be convicted of murder because of the changes to Penal Code §188, effective January 1, 2019.”

“I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code §189, effective January 1, 2019, for the following reasons . . . :”

“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”;

“I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony”; and

“The victim of the murder was not a peace officer in the performance of his or her duties, or I was not aware that the victim was a peace officer in the performance of his or her duties and the circumstances were such that I should not reasonably have been aware that the victim was a peace officer in the performance of his or her duties.” (Bolded language in original.)

Brinson’s petition also requested counsel be appointed to represent him “during this re-sentencing process.”

On July 16, 2019, the trial court summarily denied the petition, without appointing counsel for Brinson or receiving a response from the prosecution. In its denial order, the court recognized that although “California has no crime of attempted felony murder” (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4), an attempted murder conviction could be based on a natural and probable consequences theory. However, the court found that, even if former section 1170.95 applied to persons convicted of attempted murder, Brinson was not eligible for relief because he was not convicted based on a natural and probable consequences theory as shown by the judicially-noticed case file of the record of conviction, which included the trial prosecutor’s arguments, jury instructions, and verdict forms.

Brinson timely appealed.

DISCUSSION

I. Applicable Law

Amended section 1170.95 envisions three stages of review on a petition for resentencing. First, the court is asked to determine the facial sufficiency of the petition – that is, whether it alleges, in pertinent part, that (1) an accusatory pleading was filed against the petitioner allowing prosecution under “a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) the petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder (id., subd. (a)(2)); and (3) the petitioner “could not presently be convicted of murder or attempted murder because of changes to Sections 188 and 189 made effective January 1, 2019” (id., subd. (a)(3).)

If the petition is facially sufficient, at the second stage “the court must appoint counsel, if one has been requested, and entertain briefing on the defendant’s entitlement to relief under a prima facie standard. (Lewis, supra, [11 Cal.5th] at p. 962.)” (People v. Wilson (2021) 69 Cal.App.5th 665, 675, review granted December 22, 2021, S271604; see § 1170.95, subds. (b)(3), (c).) “After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing . . ., the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1170.95, subd. (c).)

Following the court’s issuance of an order to show cause, at the third stage, the court “shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts . . . .” (§ 1170.95, subd. (d).)

II. Brinson Is Not Eligible for Relief Under Section 1170.95 as a Matter of Law

In his initial briefing, Brinson made no specific challenge to the trial court’s substantive finding that he is not eligible for relief as a matter of law. His only complaint was that this finding was not dispositive because, when deciding the threshold issue of whether he was eligible for relief under section 1170.95, the trial court could not look “beyond the four corners of the petition,” its review was limited to the facts as pleaded in the petition, and it could not rely on any material in the case file of his record of conviction.

However, in Lewis, our Supreme Court stated “there is no categorical bar to consulting the record of conviction at the prima facie stage” (11 Cal.5th at p. 972, fn. 6), specifically confirming that the trial court can “use the record of conviction . . . in reliably assessing whether a petitioner has made a prima facie case for relief” (id. at p. 972). Lewis further explained that while the court may look at the record of conviction “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. . . . ‘ “[T]he 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.” ’ ” (Lewis, supra, at p. 971.)

Section 1170.95, as amended, provides that defendants “convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition” for resentencing. (§ 1170.95, subd. (a), italics added; see People v Montes (2021) 71 Cal.App.5th 1001, 1007 [“appellant is eligible for resentencing relief under section 1170.95 [as amended] by virtue of his attempted murder conviction so long as appellant was convicted under a natural and probable consequences theory”].) Nonetheless, as found by the trial court here, “a review of the readily available” judicially-noticed case file of the record of conviction shows Brinson could not meet the statutory prerequisites for even filing a petition because he was not convicted of attempted murder under a natural and probable consequences theory. Accordingly, Brinson is ineligible for resentencing as a matter of law under subdivision (a) of section 1170.95, as amended. (Stats. 2021, ch. 551, § 2.) We therefore affirm the summary denial of his section 1170.95 petition on this basis alone.

II. Trial Court Committed Harmless Errors by Failing to Appoint Counsel for Brinson and Not Waiting for the Prosecution’s Response

Brinson argued in his original briefing that summary denial was improper because the trial court made its decision before appointing counsel to represent him and without waiting for the prosecution’s response. We conclude these procedural errors were harmless.

At the time of its decision in 2019 the trial court did not have the benefit of Lewis, supra, 11 Cal.5th 952, which determined that, at the prima facie stage, “petitioners who file a complying petition requesting counsel are to receive counsel upon the filing of a compliant petition” (id. at p. 963), and the court should allow an opportunity for briefing by the parties (id. at p. 967). The cited portions of Lewis were codified by the 2021 amendment to subdivisions (b)(3) and (c) of section 1170.95. (Stats. 2021, ch. 551, § 2.) Because Brinson filed a complying petition and requested counsel, Lewis and amended section 1170.95, require us to now find the trial court should not have summarily denied the petition without first appointing counsel and waiting for the prosecution’s response.

However, we are required to reverse for the above-described state law procedural errors (Cal. Cons., art. VI, § 13) only if after an examination of the entire cause it appears “reasonably probable” Brinson would have obtained a more favorable outcome had the errors not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see Lewis, supra, 11 Cal.5th at pp. 972–974 [a trial court’s failure to appoint counsel under subdivision (c) of section 1170.95 is “state law error only,” to be reviewed for prejudice under Watson].)

Because we have concluded Brinson is ineligible for section 1170.95 relief as a matter of law, we find the procedural errors to be harmless as it is not “reasonably probable” that a different outcome would result had the court appointed counsel for Brinson and waited for the prosecution’s response. (Watson, supra, 46 Cal.2d at p. 836; see People v. Daniel (2020) 57 Cal.App.5th 666, 676, review dismd. [procedural error in deciding section 1170.95 petition was harmless since the jury instructions decisively established petitioner was ineligible for resentencing as he was convicted under a still-valid theory of murder].) We therefore decline Brinson’s request that we remand the matter for further proceedings on the petition. (See Civ. Code §3532 [the law does not require idle acts].)

DISPOSITION

The July 16, 2019 order denying the Penal Code section 1170.95 petition is affirmed.

_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez, J.

A157869/People v. Brinson


[1] All undesignated statutory references are to the Penal Code.





Description On June 16, 2020, we issued our original opinion on this appeal from a summary denial of a petition for resentencing under Penal Code section 1170.95. We affirmed on the basis that defendant Johnny Lawrence Brinson (Brinson) was ineligible for resentencing on his conviction for attempted murder as a matter of law, and any trial court errors in failing to appoint him counsel and waiting for the prosecution’s response were harmless under any standard of review. (People v. Brinson (dec. Jun. 16, 2020, A157869) [nonpub. opn.].)
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