People v. Brown CA3

Filed 1/13/22 P. v. Brown CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

(Shasta)

----

THE PEOPLE, C089260

Plaintiff and Respondent, (Super. Ct. No. 93F1202)

v. OPINION ON TRANSFER

CURTIS EDWARD BROWN,

Defendant and Appellant.

Defendant Curtis Edward Brown appeals from the trial court’s order summarily

denying his petition for resentencing pursuant to Penal Code section 1170.95 and Senate

Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437).1 We affirmed the order in our

unpublished opinion filed November 16, 2020, and approved the procedure adopted by

the trial court in summarily denying the petition. (People v. Brown (Nov. 16, 2020,

1 Undesignated statutory references are to the Penal Code.

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C089260) [nonpub. opn.].) The California Supreme Court granted review and transferred

the matter back to us with directions to vacate our opinion and reconsider the cause in

light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Upon reconsideration, we agree

with defendant that the trial court erred by summarily denying his petition on the merits

and failing to appoint counsel and receive briefing prior to determining his eligibility for

resentencing. We cannot say the errors were harmless. Accordingly, we will reverse and

remand with instructions to the trial court to appoint counsel for defendant and issue an

order to show cause for further proceedings under section 1170.95.

I. BACKGROUND

A jury found defendant and a co-defendant, Brian Franklin Thames, guilty of first-

degree murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664, subd. (a))

in May 1994. The jury found true allegations that Thames used a deadly weapon in the

commission of the murder, acted willfully and with premeditation in the commission of

the attempted murder, and inflicted great bodily injury in the attempted murder. The jury

found not true allegations that defendant acted willfully and with premeditation in the

commission of the attempted murder. Defendant was sentenced to 25 years to life for the

murder, with an additional 16 years for the attempted murder and other enhancements.

Defendant and Thames appealed their convictions and another panel of this court

affirmed. (People v. Thames et al. (Nov. 30, 1995, C018384) [nonpub. opn.].)

A. The Murder and Attempted Murder

We take certain facts from the unpublished opinion we issued in 1995 affirming

defendant’s convictions in People v. Thames, supra, C018384:

The evidence at trial showed that Thames and defendant set out to commit acts of

violence against unsuspecting strangers on the night of January 1, 1993. Thames set

things in motion with an altercation in a bar, which caused him and defendant to be

ejected. Thames then precipitated an incident with two other men in a parking lot,

challenging them to a fight and threatening to kill them. Thames and defendant

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eventually left the parking lot in a car driven by L.C. Defendant was sitting in the front

passenger seat of the car, and Thames was seated in the back. They drove past a group of

people. One of the men—Thames or defendant—wanted to see where the group was

going. When they were unable to find the group again, Thames said, “ ‘They were

lucky.’ ”

R.G. was walking down Gold Street around the same time. Two men jumped out

of a car and started beating him up. The men were laughing and made no attempt to rob

him. R.G. suffered wounds to his cheek and neck caused by a sharp instrument.

That same night, D.P. saw two men running down a side street towards a car

matching the description of the one L.C. was driving. One of the men had a hairstyle

similar to the one Thames favored. Shortly thereafter, D.P. saw a man stumbling down

the hill coming from the same direction as the two men. The man made gurgling noises

and collapsed on the street. A short time later, Donald Dobbs was found lying in a pool

of blood nearby. Dobbs suffered two stab wounds, one to the cheek and one to the neck.

The wound to Dobbs’s neck perforated his carotid artery, causing death.

Police interviewed L.C. Taken together, L.C.’s testimony and the testimony of the

police officer who interviewed her established that L.C. drove Thames and defendant

down Gold Street, where they saw a man (R.G.) walking towards a liquor store. One of

the men instructed L.C. to stop the car. When she did so, both jumped out and ran behind

the car. When they returned, they were “very excited.” Defendant said he knocked the

man out with one punch. Thames had two knives and blood on his arm. Thames asked

L.C. for something to wipe the blood off; Thames and defendant eventually found

something in the car.

A short time later, the group saw another man (Dobbs) walking down the street.

Once again, Thames and defendant instructed L.C. to stop the car. As before, they

jumped out and ran behind the car. When they returned, they were breathing hard.

Defendant exulted that Thames “ ‘got him again in one punch.’ ” When L.C. asked what

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happened, Thames responded, “ ‘he’s dead, [L.C].’ ” L.C. listened as Thames described

the sight and sound of blood pouring from Dobbs’s jugular vein. Thames and defendant

laughed and asked L.C. if she wanted “ ‘to see one.’ ”

Later, L.C. saw Thames washing two steak knives. L.C. surmised that the knives

had been used to commit the murder and attempted murder. Defendant disposed of the

knives. Later still, Thames told L.C.’s boyfriend that he “ ‘stuck somebody in the jugular

vein’ ” with a steak knife. Thames also admitted that he stabbed another man in the face.

Defendant told L.C.’s boyfriend that “there would be a 187 in the news.”

B. The Jury Instructions and Verdict

The jury was instructed on principles of aiding and abetting intended crimes as

well as the natural and probable consequences doctrine. Under that doctrine, “ ‘ “[a]

person who knowingly aids and abets criminal conduct is guilty of not only the intended

crime [target offense] but also of any other crime the perpetrator actually commits

[nontarget offense] that is the natural and probable consequence of the intended

crime.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161.) The prosecutor argued both

theories of liability in closing argument.

As noted, the jury found Thames and defendant guilty of first degree murder and

attempted murder. The jury found true allegations that Thames personally used a knife in

each crime, personally inflicted great bodily injury in the attempted murder, and

committed the attempted murder willfully and with premeditation. The jury found not

true allegations that defendant committed the attempted murder willfully and with

premeditation.

C. The Original Appeal

Thames and defendant challenged the convictions on several grounds. (People v.

Thames, supra, C018384.) Two such grounds, asserted by defendant only, are relevant

here.

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First, defendant challenged the sufficiency of the evidence to support the

conviction for attempted murder as an aider and abettor. (People v. Thames, supra,

C018384.) This court rejected defendant’s challenge, stating: “The jury could infer that

defendants, angry at their exclusion from [the bar] and frustrated in their attempt to seek

revenge there, went hunting for any individuals unlucky enough to cross their path. From

the speed, violence, and viciousness of the attack on [R.G.], the jury could conclude

[defendant] intended at the very least, to aid Thames in administering a severe beating

upon an unsuspecting, vulnerable victim. Attempted murder is a reasonably foreseeable

consequence of such an attack.” (Ibid.)

“However,” the court continued, “the evidence supports the further inference that

[defendant] was aware of, and shared, Thames’s deadlier intent. Not only were the

defendants apparently willing to take on superior numbers, but [defendant] took the time

to prepare for combat by putting on the latex gloves before the attack on [R.G]. The jury

could infer defendants were willing to attack a group because they were armed. They

could further infer the defendants prepared for the attack in such a manner as to minimize

the evidentiary trail. Even if [defendant’s] part was limited to hitting the victim with his

fists, his actions were calculated to quickly debilitate the victim increasing the likelihood

that Thames’s knife attack would result in death. Ample evidence supports the jury’s

verdict.” (People v. Thames, supra, C018384.)

Second, relying on People v. Woods (1992) 8 Cal.App.4th 1570 (Woods),

defendant argued the trial court had a sua sponte duty to instruct the jury that, as an aider

and abettor to Dobbs’s murder, he could be found guilty of a lesser degree of the offense

than Thames because it was not reasonably foreseeable that Thames would commit a

deliberate and premeditated murder. (People v. Thames, supra, C018384.) In Woods,

another panel of this court held that, “an aider and abettor may be found guilty of a lesser

crime than that ultimately committed by the perpetrator where the evidence suggests the

ultimate crime was not a reasonably foreseeable consequence of the criminal act

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originally aided and abetted, but a lesser crime committed by the perpetrator during the

accomplishment of the ultimate crime was such a consequence.” (Woods, supra, at p.

1577.) The court found the rule in Woods inapplicable on the facts. (People v. Thames,

supra, C018384.) The court explained: “From the sequence of events leading to the

stabbing of Dobbs, the jury could only conclude that both Thames and [defendant] shared

a deliberate premeditated intent to kill their hapless victim.” (Ibid.)

The court continued: “Even were we, charitably, to grant that at the time of the

attack on [R.G.], [defendant] intended to aid and abet only a violent assault, at the

conclusion of that attack, [defendant] unquestionably knew that Thames had, and used,

the knives. The subsequent statements and conduct of the defendants make it clear they

shared a purpose to attack and, if possible, kill any person they happened upon. Dobbs

was that person. Once defendants selected him as a target, [defendant] fully cooperated

in letting Thames out of the back seat of the car without demur, hunting Dobbs down

through the darkened streets, and facilitating Thames’s deadly attack. Both men were

aware of what they had done and even offered to do another killing so [L.C.] could

witness it. Because the evidence did not suggest a lesser crime than first degree murder,

the trial court was not required to give the instruction suggested by Woods.” (People v.

Thames, supra, C018384.) Accordingly, this court rejected defendant’s claim of

instructional error and affirmed the conviction.

D. The Petition

Defendant, representing himself, filed a form petition for resentencing under

former section 1170.95 on January 14, 2019. In the petition, defendant declared that he

met the requirements under section 1170.95 for relief under Senate Bill 1437, including

that: (1) the information allowed the prosecution to proceed under a theory of felony

murder or the natural and probable consequences doctrine; (2) he was convicted of

murder based on a theory of felony murder or the natural and probable consequences

doctrine; and (3) he could not be convicted of first degree murder under changes to

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section 189 effective January 1, 2019, because he was not the actual killer, and 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. Defendant further declared

that he was not a major participant in the felony, and did not act with reckless

indifference to human life during the course of the felony. Defendant further declared

that the victim was not a peace officer. Defendant requested that the court appoint him

counsel.

The trial court denied the petition. Relying on our opinion in the previous appeal,

the trial court found that, “The facts of the defendant’s involvement in the killing are such

that his application does not come close to making a prima facie showing. The defendant

was present at the time the victim was killed, he assisted in the killing, he enjoyed the

process of the killing and he shared Mr. Thames’[s] intention to kill the victim. The facts

suggest that both the defendant and Mr. Thames were on the prowl to commit a murder.”

The trial court found support for this conclusion in our discussion of defendant’s

challenge to the sufficiency of the evidence, which we have partially excerpted above.

Accordingly, the trial court concluded, “defendant has failed to establish a prima facie

showing that his petition warrants consideration for the relief requested.”

Defendant timely appealed.

II. DISCUSSION

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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).) In addition to substantively amending sections 188 and 189 of the Penal Code,

Senate Bill 1437 added section 1170.95, which provides a procedure for convicted

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murderers who could not be convicted under the law as amended to retroactively seek

relief.” (Lewis, supra, 11 Cal.5th at p. 959.)

A person convicted of felony murder or murder under a natural and probable

consequences theory could file a petition for resentencing under former section 1170.95

if: “(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 or accepted a plea offer in lieu of a trial

at which the petitioner could be convicted for first degree or second degree murder[;] [¶]

[and] (3) The petitioner could not be convicted of first or second degree murder because

of changes to Section 188 or 189 made effective January 1, 2019.” (Former § 1170.95,

subd. (a)(1)-(3).) The petition must include a declaration stating the petitioner is eligible

for relief “based on all the requirements of subdivision (a)” and whether the petitioner

requests the appointment of counsel. (Former § 1170.95, subd. (b)(1).)

Pursuant to former section 1170.95, subdivision (c), “[t]he 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.” (Former § 1170.95, subd. (c),

emphasis added.) The parties would then proceed with additional briefing and, “[i]f the

petitioner makes a prima facie showing that he or she is entitled to relief, the court shall

issue an order to show cause” (former § 1170.95, subd. (c)) and “hold a hearing to

determine whether to vacate the murder conviction and to recall the sentence and

resentence the petitioner on any remaining counts (id., subd. (d)(1)).

Before Lewis, many courts, including this one, interpreted former section 1170.95,

subdivision (c) “to require two distinct, sequential inquiries,” with the trial court being

required to appoint counsel only once it determined the petitioner was not ineligible for

relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 961; see People v. Verdugo

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(2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493; and see People

v. Brown, supra, C089260.) Lewis rejected this interpretation. (Lewis, supra, at p. 967.)

Our Supreme Court has now clarified that former “subdivision (c) does not establish an

internal, threshold barrier to the appointment of counsel and the opportunity for briefing.”

(Ibid.) Instead, “petitioners who file a complying petition requesting counsel are to

receive counsel upon the filing of a compliant petition.” (Id. at p. 963, emphasis added.)2

It is undisputed that defendant here filed a facially sufficient petition. Given

Lewis, the People concede the trial court erred by failing to appoint counsel for defendant

or entertain briefing, but argue the errors were harmless. We accept the People’s

concession and agree that the trial court erred by denying defendant’s petition at the

prima facie stage without appointing counsel and permitting additional briefing. We

disagree, however, with the People’s contention that the errors were harmless.

Error in denying a facially sufficient petition without appointing counsel or

receiving additional briefing is tested under the standard of People v. Watson (1956) 46

Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 957-958.) Under that standard,

defendant “must . . . ‘demonstrate there is a reasonable probability that in the absence of

the error he . . . would have obtained a more favorable result.’ [Citations.] More

specifically, a petitioner ‘whose petition is denied before an order to show cause issues

has the burden of showing “it is reasonably probable that if [he or she] had been afforded

assistance of counsel his [or her] petition would not have been summarily denied without

an evidentiary hearing.’ ” ” (Id. at p. 974.)

2 The Legislature recently enacted an amendment to section 1170.95, which took effect

on January 1, 2022. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) § 2.) Senate Bill No. 775

reinforces our view that remand is required but does not materially change our analysis.

Because the trial court applied the former law, and because we are charged with

reconsidering our prior opinion in light of Lewis, which also applied the former law, we

shall do the same.

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Defendant argues there was a reasonable probability he would have obtained a

more favorable result had counsel been appointed and given an opportunity to direct the

trial court’s attention to parts of the record that supported the petition, including jury

instructions on the natural and probable consequences doctrine, and the prosecutor’s

closing argument, which invited jurors to reach a guilty verdict with that theory. The

People counter that the errors were harmless because defendant was ineligible for relief

as a matter of law, a position we endorsed in our most recent opinion. Upon

reconsideration, however, we now agree with defendant.

Lewis establishes that “the prima facie inquiry under [former section 1170.95,]

subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th at p. 971.) “Like the analogous

prima facie inquiry in habeas corpus proceedings, ‘ “the 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.” ’ ” (Ibid.) Although the trial court may

appropriately consider the record of conviction, including any appellate opinions, “the

probative value of an appellate opinion is case specific, and ‘it is certainly correct that an

appellate opinion might not supply all answers.’ ” (Id. at p. 972.) Furthermore, “[i]n

reviewing any part of the record of conviction at this preliminary juncture, a trial court

should not engage in ‘factfinding involving the weighing of evidence or the exercise of

discretion.’ ” (Ibid.) This is so, the high court explained, because “the ‘prima facie bar

was intentionally and correctly set very low.’ ” (Ibid.)

Following Lewis, we now perceive a reasonable probability that appointed counsel

could have credibly argued that our original opinion should not be given preclusive effect

at this preliminary juncture. Although we continue to believe that our discussion of

defendant’s claim of instructional error warrants consideration by the trial court, we now

acknowledge that our original opinion “ ‘might not supply all answers.’ ” (Lewis, supra,

11 Cal.5th at p. 972.) We must also acknowledge that our original opinion may not

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establish, as a matter of law, that defendant cannot meet his prima facie burden to show

that he could not be convicted of murder under the amendments to sections 188 and 189.

It is one thing to say that no instructions on lesser offenses to first degree murder were

necessary because the evidence showed that defendant “if guilty at all,” was “guilty of

something beyond that lesser offense.” (Woods, supra, 8 Cal.App.4th at p. 1593.) But it

is another thing to say that jurors necessarily found defendant guilty as a direct aider and

abettor, despite the prosecutor’s invitation to apply the natural and probable

consequences doctrine. Because the jury returned a general verdict, we perceive a

reasonable probability that appointed counsel could have credibly argued that some jurors

may have found defendant guilty under the now invalid natural and probable

consequences doctrine, or may have seen little reason to choose between alternative

theories of guilt, such that an evidentiary hearing was required.

Defendant argues that appointed counsel would have provided necessary context

for the conclusions set forth in our original opinion and offered to introduce evidence that

the prosecution’s main witness, L.C., suffered from credibility problems that made the

jury’s reliance on the natural and probable consequences doctrine more likely. Following

Lewis, we conclude that defendant has demonstrated a reasonable probability that the

“ ‘ “petition would not have been summarily denied without an evidentiary hearing” ’ ”

had counsel been appointed and briefing entertained. (Lewis, supra, 11 Cal.5th at p. 974;

see People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we will reverse and

remand with instructions for the trial court to appoint counsel and permit additional

briefing in accordance with section 1170.95, subdivision (c). We express no opinion on

defendant’s ultimate entitlement to relief.

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III. DISPOSITION

The trial court’s order is reversed. The trial court is ordered to appoint counsel for

defendant, issue an order to show cause, and conduct further proceedings under section

1170.95.

/S/

RENNER, J.

We concur:

/S/

MAURO, Acting P. J.

/S/

DUARTE, J.

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