Filed 2/25/22 P. v. Brodis CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Affirmed.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

In 1994, Lance David Brodis (appellant) was convicted of multiple crimes, including first-degree murder (Pen. Code, § 187, subd. (a)),[1] after he and a partner stole from a family at gunpoint and left one of its members dead. He was sentenced to life without the possibility of parole for murder. No sentences were imposed on the other counts.

On February 19, 2019, appellant filed a petition to vacate the murder count, recall his life sentence, and be sentenced for his other crimes. He relied on Senate Bill No. 1437 (2017-2018 Reg. Sess.), a bill that redefined murder and added section 1170.95 as a mechanism to vacate murder convictions for defendants who could no longer be found guilty of that crime. The trial court denied the petition on the ground that appellant was a major participant in the murder and ineligible for relief under section 1170.95.

Appellant now seeks review.

The trial court engaged in improper factfinding and its reasoning was erroneous, but we conclude that any error was harmless. In 1994, the jury found that appellant acted with the intent to kill in connection with two special circumstance findings. Section 1170.95 does not apply because a person who acted with intent to kill can be convicted of murder under our amended laws.

FACTS

Court Proceedings in 1994

The case against appellant went to trial on charges of murder, first-degree residential burglary (§ 459), and three counts of first-degree residential robbery (§ 211). The jury heard the following evidence:

“On November 10, 1989, at about 12:30 p.m., Joe Glossen [(Glossen)] and his accomplice, appellant, went to the apartment of Dorothy Ricks. Ms. Ricks and several members of her family were present. Ms. Ricks’s son-in-law, Gregory Gibson [(Gibson)], responded to Glossen’s knock at the front door. Glossen, armed with a gun, pushed the door open and entered. [Gibson] grabbed Glossen’s wrists. Appellant then pulled a gun out of a paper bag and [Gibson] put up his hands.

“Glossen told everyone to lie on the floor. Ms. Ricks, who was sitting with her three-year-old granddaughter, refused. With the remaining family members on the floor, Glossen searched the bedrooms. Appellant continued to hold the gun on everyone.

Glossen returned to the living room and took the victims’ jewelry and money from them. Appellant took Ms. Ricks’s chain from her neck. Then, Glossen told everyone to put their heads down. [Gibson] was shot once in the back of the head and once in the back of the neck. He died from these wounds.”[2]

Among the various instructions that it gave, the trial court instructed that the “‘unlawful killing of a human being, whether intentional, unintentional[,] or accidental, which occurs during the commission . . . of the crime of burglary or robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime.’”

The jury was also instructed that if a person was killed during a robbery or burglary, “all person[s], who either directly and actively commit the act constituting such crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.”

The jury was given two special circumstance instructions. The first was this: “If you find [the] . . . defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances . . . [are] true or not true: [That the murder was] committed during the, commission of a robbery, [and/or] committed during the commission of a burglary. [¶] The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, [then] you must find it to be not true. [¶] If you find beyond a reasonable doubt that the defendant was an aider and abettor, then you must also find beyond a reasonable doubt that the defendant with intent to kill aided and abetted an actor in commission of the murder in the first degree, in order to find the special circumstances to be true.” In the second instruction, the jury was informed that it had to find that the murder was committed (1) while appellant was either (a) engaged in the commission of a burglary or robbery or (b) during the immediate flight after the commission of a robbery or burglary to which appellant was an accomplice; and (2) the murder was committed in order to carry out or advance the commission of the crime of burglary or robbery or to facilitate the escape therefore or to avoid detention.

The jury rendered a verdict of guilty on all counts. Specifically, it found appellant “guilty of the crime of MURDER IN THE FIRST DEGREE[.]” Further, it found true the special circumstance allegations that the murder of Gibson “was committed[,] aided and [abetted], counseled, commanded, induced, solicited, requested and assisted by [appellant] while . . . [appellant] was” committing robbery and burglary, and while he was an accomplice in robbery and burglary, within the meaning of section 190.2, subdivision (a)(17). The jury concluded that appellant personally used a handgun in the commission of the murder. (§ 12022.5, subd. (a); 1203.6.)

People v. Brodis, supra, B087426

On appeal in People v. Brodis, supra, B087426, appellant argued that confusing and ambiguous instructions failed to adequately instruct the jury that the felony murder special circumstance allegations required proof of his intent to kill, and that the special circumstance findings had to be reversed. We affirmed the special circumstance findings.

The Section 1170.95 Petition

Appellant filed a petition requesting that the trial court vacate his murder conviction and give him a new sentence. He averred: (1) he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine; and (2) he could not be convicted of murder because of changes made to sections 188 and 189.

In the People’s opposing papers, the prosecutor recounted the facts and represented that “Glossen . . . executed Gibson.” The prosecutor argued that appellant was ineligible for relief because the evidence shows that appellant was an accomplice who acted with intent to kill, and also that he was a major participant who acted with reckless indifference to human life under the criteria set forth in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Appellant filed a responsive brief that argued, among other things, that the two special circumstance findings did not make him ineligible for relief.

The trial court engaged in a review of the papers under section 1170.95, subdivision (c) and determined that appellant did not make a prima facie case for relief because he was a major participant in the burglary and robberies. It denied the petition. In so doing, it declined to set an evidentiary hearing under section 1170.95, subdivision (d).

This appeal followed.

DISCUSSION

A person who was not the actual killer can be convicted of murder under our amended murder laws if he or she acted with the intent to kill or was a major participant in an underlying felony and acted with reckless indifference to human life. (§§ 188, 189, 190.2.) In contrast, a person is eligible to have his or her murder conviction vacated and be resentenced if the conviction was based on the felony murder rule or the natural and probable consequences doctrine, and if he or she either lacked the intent to kill or was not a major participant in an underlying felony who acted with reckless indifference to human life. (§§ 188, 189, 190.2, 1170.95.)

When a section 1170.95 petition meets the requirements of subdivisions (a) and (b) of that statute, the trial court reviews the petition under section 1170.95, subdivision (c) to determine whether a petitioner “has made a prima facie case” for vacating his or her murder conviction. If so, the trial court will issue an order to show cause and set an evidentiary hearing. (§ 1170.95, subds. (c)-(d).) The trial court is not permitted to engage in factfinding “‘involving the weighing of evidence or the exercise of discretion[.]’” (People v. Clayton (2021) 66 Cal.App.5th 145, 153.) It may, however, consider the record of conviction in “determining whether [a] petitioner is entitled to relief. [Citation.]” (People v. Simmons (2021) 65 Cal.App.5th 739, 746, review granted Sept. 1, 2021, S270048 (Simmons).) If the record of conviction contains facts refuting the allegations asserted in the petition, the trial court will be justified in denying the petition at the prima facie review stage. (People v. Farfan (2021) 71 Cal.App.5th 942, 953 (Farfan).)

The trial court erred when it denied appellant’s petition because it improperly engaged in factfinding by determining that appellant was a major participant in the burglary and robberies, and because it never determined that appellant acted with reckless indifference to human life.

Any error was harmless. The jury was instructed that it had to find intent to kill before it found the special circumstance allegations true. By making true findings regarding the special circumstances, it necessarily found beyond a reasonable doubt that appellant acted with the intent to kill. Thus, he was ineligible for section 1170.95 relief. (See Farfan, supra, 71 Cal.App.5th at p. 947 [appellant was ineligible for relief because the jury found a felony murder special circumstance true and “necessarily found appellant either acted with intent to kill or was a major participant in the robbery who acted with reckless indifference to human life”]; Simmons, supra, 65 Cal.App.5th at p. 747 [a petitioner is ineligible for section 1170.95 relief if the jury found a special circumstance true and thereby made “the requisite findings necessary to sustain a felony-murder conviction under the amended law”].)

Appellant argues that we cannot conclude that he is ineligible for section 1170.95 relief based on the jury’s special circumstance findings because that would equate to improper factfinding or an improper exercise of discretion on our part. According to appellant, this matter must go back for an evidentiary hearing. But by affirming, we are not making findings of fact regarding his mens rea, nor are we exercising discretion. Rather, we are concluding that the record of conviction discloses that the jury made a finding that he acted with intent to kill. Section 1170.95 does not permit us to throw out that finding. An evidentiary hearing is only warranted when the record of conviction does not conclusively establish that a petitioner is ineligible for relief, i.e., does not conclusively establish that the petitioner was found guilty for reasons that support a murder conviction now. Here, the record of conviction establishes appellant’s ineligibility.

DISPOSITION

The order denying appellant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

LUI

____________________________, J.

CHAVEZ

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] We take these facts from our opinion in (People v. Brodis (Sept. 21, 1995, B087426) [nonpub. opn.], at p. 3.)

In his statement of facts in the opening brief, appellant includes alleged facts set forth in his appellate brief in B087426. Because these are not citations to the underlying record, we decline to include them.