The opinion
Filed 8/3/22 P. v. Brown CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B317776
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA020150)
v.
TABATHA BROWN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Richard M. Goul, Judge. Affirmed.
Alex Green, under appointment by the Court of Appeal;
Tabatha Brown, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Tabatha Brown was convicted in 1996 following a jury trial
of the first degree murder of Ruby Chong with a felony-murder
special-circumstance finding and conspiracy to commit murder.
We affirmed the convictions on appeal. (People v. Brown
(July 15, 1997, B102674) [nonpub. opn.].)
On March 29, 2019 Brown, representing herself, filed a
petition for resentencing pursuant to Penal Code former
section 1170.95 (now section 1172.6).1 The superior court denied
the petition after appointing counsel for Brown and receiving
briefing from the prosecutor and Brown’s appointed counsel,
finding Brown ineligible for resentencing as a matter of law
because the jury finding that she had conspired to murder Chong
necessarily meant she had acted with express malice.
No arguable issues relating to this order have been
identified following review of the record by Brown’s appointed
appellate counsel or by Brown in her supplemental letter brief to
this court. We also have identified no arguable issues after our
own independent review of the record. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at Brown’s trial established that
Brown was hired in November 1993 by Chong to live with and
care for Chong and Delena Deane’s 88-year-old mother, Fay
Dawson. (The two sisters and their mother lived near each other
on the same block.) However, shortly after Brown began working
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
Undesignated statutory references are to the Penal Code.
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as Dawson’s caregiver, Dawson fell and seriously injured herself.
When it became apparent Dawson would never return to her
home, Chong terminated Brown’s employment, allowing her to
stay in Dawson’s home through the end of November.
After apparently stealing items from Deane’s home while
visiting with Deane on the evening of December 1, 1993, Brown,
her younger sister, Cindy Brown, and a friend, Kenny Johnson,
went to Chong’s home on December 2, 1993, where they robbed
and killed Chong. Chong’s body was discovered the following
day: She was in a chair with a rope tightly wound around her
neck; her face was scratched and bruised; her chest was cut; and
there was a deep gash in her neck.
Brown was convicted following a jury trial of first degree
murder (§ 187, subd. (a)) with a true finding the murder had been
committed during the commission of a robbery (§ 190.2,
subd. (a)(17)). The jury also convicted Brown of first degree
robbery (§ 211) and two counts of conspiracy to commit murder
(targeting Chong and Deane) (§ 182, subd. (a)(1)). The trial court
sentenced Brown to life in prison without the possibility of parole.
We affirmed the convictions on appeal and modified the judgment
to reflect a stay of the prison term for robbery pursuant to
section 654. (People v. Brown, supra, B102674.)
On March 29, 2019 Brown filed a petition for resentencing
pursuant to former section 1170.95, which, as amended effective
January 1, 2022, provided for resentencing relief for certain
individuals convicted of murder under the felony-murder rule and
murder, attempted murder or voluntary manslaughter under the
natural and probable consequences doctrine. Brown checked
boxes on the printed form petition to establish her eligibility for
resentencing relief, including the boxes stating she had been
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convicted at trial of first degree murder pursuant to the felony-
murder rule, was not the actual killer, and could not now be
convicted of first or second degree murder because of changes
made to Penal Code sections 188 and 189 by Senate Bill No. 1437
(Stats. 2018, ch. 1015) (Senate Bill 1437).
The prosecutor filed a memorandum opposing the petition
on constitutional grounds and also argued Brown was not
entitled to relief because Brown “harbored an intent to kill Ruby
Chong,” and Brown had been a major participant acting with
reckless indifference to human life during the robbery of Chong.
Brown’s appointed counsel filed a reply memorandum that
argued a determination whether Brown had been a major
participant in the robbery and had acted with reckless disregard
for human life required factual findings not properly made at the
prima facie stage of the resentencing process, but acknowledged
Brown’s convictions for conspiracy to commit murder meant the
jury had found Brown acted during the crimes with an intent to
kill (that is, with express malice).
The superior court denied Brown’s petition at a hearing on
January 24, 2022, finding she had not made a prima facie
showing of eligibility for relief “by reason of the conspiracy to
commit murder which does require an intent to kill.” Brown filed
a timely notice of appeal.
DISCUSSION
1. Former Section 1170.95
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
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the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Lewis (2021) 11 Cal.5th 952, 957.) It also
authorized, through former section 1170.95, an individual
convicted of felony murder or murder based on the natural and
probable consequences doctrine to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not now be convicted of murder because
of Senate Bill 1437’s changes to the definitions of the crime.
(See Lewis, at p. 957; Gentile, at p. 843.) As amended by Senate
Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective
January 1, 2022, these ameliorative changes to the law now
expressly apply to attempted murder and voluntary
manslaughter.
In determining whether a petitioner has carried the burden
of making a prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, it is
appropriate to examine the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (People v. Lewis, supra, 11 Cal.5th at
p. 971.)
2. Brown’s Appeal
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Brown on appeal.
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Brown on June 6, 2022 that
she could submit a brief or letter raising any grounds of appeal,
contentions or arguments she wanted the court to consider. We
provided a similar notice the following day.
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On June 30, 2022 we received a three-page handwritten
letter brief in which Brown assumed full responsibility for her
role in the crimes for which she was convicted, briefly described
her abusive childhood and rehabilitation and growth while in
prison, and explained her post-prison goal of creating a nonprofit
to work with teenagers and younger children who are on the
streets. In a one sentence postscript to her letter Brown stated,
without elaboration, “I also fall under [Senate Bill] 775 law,
which is under the [Senate Bill] 1437 law too.”
Notwithstanding former section 1170.95’s provisions for
resentencing many individuals convicted of murder, attempted
murder or manslaughter on a theory of accomplice liability, a
petitioner who aided and abetted murder while acting with
express malice remains ineligible for resentencing relief as a
matter of law. (See People v. Gentile, supra, 10 Cal.5th at p. 848
[“Senate Bill 1437 does not eliminate direct aiding and abetting
liability for murder because a direct aider and abettor to murder
must possess malice aforethought”]; People v. Mancilla (2021)
67 Cal.App.5th 854, 864 [petitioner is ineligible for relief as a
matter of law if the record of conviction establishes he or she was
not convicted under a theory of liability affected by the 2019
amendments to the law of murder].)
Here, Brown was convicted of both first degree murder and
conspiracy to commit murder. “[A] conviction of conspiracy to
commit murder requires a finding of intent to kill, and cannot be
based on a theory of implied malice.” (People v. Swain (1996)
12 Cal.4th 593, 607; see People v. Beck and Cruz (2019) 8 Cal.5th
548, 641 [“‘all conspiracy to commit murder is necessarily
conspiracy to commit premeditated and deliberated first degree
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murder’”].) As such, she is ineligible for resentencing relief as a
matter of law.
Because no cognizable legal issues have been raised by
Brown’s appellate counsel or by Brown or identified in our
independent review of the record, the order denying the petition
for resentencing is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Brown’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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