The opinion
Filed 5/20/24 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, B331971
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA020150)
TABATHA DARNELL BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Richard M. Goul, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal;
Tabatha Brown, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________
A jury convicted Tabatha Brown in 1996 of, among other
crimes, the first degree murder of Ruby Chong, with a true
finding on a felony-murder special-circumstance allegation, and
of conspiracy to commit murder. We affirmed the convictions.
(People v. Brown (July 15, 1997, B102674) [nonpub. opn.]
(Brown I).)
On June 5, 2023 the superior court denied Brown’s petition
for resentencing under Penal Code section 1172.61 without
issuing an order to show cause. The court ruled Brown was
ineligible for resentencing as a matter of law because the court
had previously found her ineligible for relief. Brown appealed.
We appointed counsel to represent Brown in this appeal.
After reviewing the record, Brown’s appointed appellate counsel
filed a brief that did not identify any arguable issues. After
independently reviewing the record and the contentions
presented by Brown in her two-page supplemental brief, we have
not identified any either. Therefore, we affirm.
FACTUAL BACKGROUND
A. A Jury Convicts Brown of First Degree Murder,
and We Affirm
In November 1993 Chong hired Brown to live with and care
for her 88-year-old mother, Fay Dawson, who lived on the same
block as Chong and Chong’s sister, Delena Deane.2 Shortly after
1 Statutory references are to the Penal Code.
2 We provide a recitation of the facts as stated in Brown I as
background only and do not rely on the facts for purposes of this
appeal. (See People v. Lee (2023) 95 Cal.App.5th 1164, 1183 [“the
2
Brown began working as Dawson’s caregiver, Dawson fell and
was seriously injured. When it became apparent Dawson would
not be able to return home, Chong terminated Brown’s
employment, but allowed her to stay in Dawson’s home through
the end of the month (November 1993).
On December 1, 1993 Brown, her sister, and a friend stole
some items from Deane’s home while visiting her. The next day
Brown, her sister, and a different friend went to Chong’s home,
robbed her, and killed her. Chong’s body was discovered the
following day in a chair with a rope tightly wound around her
neck. Chong’s face was scratched and bruised, her chest was cut,
and she had a deep gash in her neck.
A jury convicted Brown on one count of first degree murder
(§ 187, subd. (a)) and found true the allegation she committed the
murder during the commission of a robbery, within the meaning
of section 190.2, subdivision (a)(17); two counts of conspiracy to
commit murder (§ 182, subd. (a)(1)); one count of robbery (§ 211);
and one count of burglary (§ 459). The trial court sentenced
Brown to life without the possibility of parole on the murder
conviction and imposed concurrent terms on her other
convictions.3 We affirmed the convictions, modified the judgment
to stay execution of the prison term for robbery under
section 654, and corrected the abstract of judgment. (Brown I,
supra, B102674.)
factual summary . . . may not be used to determine a petitioner’s
eligibility at the prima facie stage”]; People v. Bratton (2023)
95 Cal.App.5th 1100, 1113 [same].)
3 The sentences on the convictions for robbery and burglary
were concurrent to each other but consecutive to the murder and
conspiracy convictions.
3
B. Brown’s First Petition for Resentencing
On March 29, 2019 Brown filed a petition for resentencing
under former section 1170.95, which, as amended effective
January 1, 2022, authorized certain individuals convicted of
murder under the felony-murder rule or murder, attempted
murder, or voluntary manslaughter under the natural and
probable consequences doctrine to petition the superior court for
resentencing. Brown checked boxes on the form petition to
establish her eligibility for resentencing, including the boxes
stating she had been convicted of first degree murder under the
felony-murder rule, was not the actual killer, and could not now
be convicted of first or second degree murder because of changes
the Legislature made to sections 188 and 189. (Stats. 2018, ch.
1015.)
The superior court denied Brown’s petition without issuing
an order to show cause, ruling 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.” We
affirmed the order denying the petition for resentencing. (People
v. Brown (Aug. 3, 2022, B317776) [nonpub. opn.] (Brown II).)
C. Brown’s Second Petition for Resentencing
On May 5, 2023 Brown, representing herself, filed another
form petition for resentencing under section 1172.6. Brown
checked the box indicating she “could not presently be convicted
of murder or attempted murder because of changes made to
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Penal Code §§ 188 and 189, effective January 1, 2019” and asked
the court to appoint counsel for her.
On June 5, 2023 the superior court summarily denied the
petition without appointing counsel. The court ruled that it
“previously found petitioner ineligible for relief under
[section] 1172.6” and that we had “affirmed that denial. . . . The
petition for resentencing is denied again with prejudice.” Brown
timely appealed.
DISCUSSION
We appointed counsel to represent Brown on appeal from
the order denying her second petition for resentencing. After
reviewing the record, appointed counsel filed a brief that did not
identify any arguable issues. Appointed counsel advised Brown
that she was filing a brief stating she was unable to find any
arguable issues and that Brown had a right to file a
supplemental brief. Appointed counsel also sent Brown a copy of
the brief, as well as the transcripts of the record on appeal.
On April 9, 2024 we received a two-page, handwritten
supplemental brief from Brown. In her supplemental brief,
Brown argues she is now “a grown woman who has taken
responsibility for my part in my crime. I have taken many, many
groups to help me grow and become a changed responsible
woman.” Brown explained that she has not had a single incident
of violence in prison, that she now knows what her “triggers” are
and “how to deal with them in a positive way,” and that she
would like “the chance to give back to society.” Brown also
expressed remorse for Chong’s murder, but argued she “did not
5
take Ruby Chong’s life nor did [she] plan to take her life. It’s all
he said, she said.”
Effective 2019, the Legislature eliminated the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder and significantly limited the scope of the felony-
murder rule. (People v. Reyes (2023) 14 Cal.5th 981, 984; People
v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-
843, 847-848.) Section 188, subdivision (a)(3), now prohibits
imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of
murder, except under the revised felony-murder rule in section
189, subdivision (e). Section 189 requires the People to prove
that the defendant was the actual killer (§ 189, subd. (e)(1)); that
the defendant, though not the actual killer, with the intent to kill
aided or assisted in the commission of the murder (§ 189,
subd. (e)(2)); or that the defendant was a major participant in a
felony listed in section 189, subdivision (a), and “acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2,” the felony-murder special-circumstance
provision (§ 189, subd. (e)(3)). (People v. Curiel (2023) 15 Cal.5th
433, 448; see People v. Wilson (2023) 14 Cal.5th 839, 868-869;
Strong, at p. 708; Gentile, at pp. 842-843; People v. Cody (2023)
92 Cal.App.5th 87, 105.) Under section 1172.6 a defendant
convicted of murder may file a resentencing petition “when all of
the following conditions apply”: (1) the charging document filed
against the petitioner allowed the prosecution to proceed under a
theory of felony murder or another theory of imputed malice;
(2) the petitioner was convicted of murder, attempted murder or
manslaughter following a trial or plea proceeding at which the
6
petitioner could have been convicted of murder or attempted
murder; and (3) the “petitioner could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)
Brown was convicted of conspiracy to commit murder.4
“[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. Medrano (2024) 98 Cal.App.5th 1254, 1264 [“A person cannot
be convicted of conspiracy to commit first degree murder based on
. . . ‘imputed’ malice”].) Thus, a person convicted of conspiracy to
commit murder is not eligible for resentencing under
section 1172.6 on a murder conviction.5 (See People v. Allen
(2023) 97 Cal.App.5th 389, 395-396 [defendant is not eligible for
relief under section 1172.6 if she was “convicted . . . of murder . . .
4 The trial court instructed the jury with CALJIC No. 6.10 as
follows: “A conspiracy is an agreement entered into between two
or more persons with the specific intent to agree to commit the
public offense of murder and with the further specific intent to
commit such offense . . . .” (Brown I, supra, B102674; cf. People v.
Whitson (2022) 79 Cal.App.5th 22, 34 [“trial court’s deletion of
the phrase ‘and with the further specific intent to commit
[murder]’ from the jury instruction on conspiracy to [commit]
murder precludes a finding that [the petitioner] is ineligible for
section 1170.95 relief as a matter of law with respect to his
murder and attempted murder convictions”].)
5 A person is not eligible for resentencing under
section 1172.6 on a conviction for conspiracy to commit murder.
(People v. Lovejoy (May 2, 2024, D080941) ___ Cal.App.5th ___,
___ [2024 WL 1925340, p. 5]; People v. Whitson (2022)
79 Cal.App.5th 22, 36.)
7
on a conspiracy theory”]; People v. Medrano (2021) 68
Cal.App.5th 177, 182-183 [defendant convicted of conspiracy to
murder is ineligible for relief under section 1172.6].) Because the
jury found Brown had the intent to kill Chong, she can be
convicted of murder beyond a reasonable doubt on a theory of
liability that remains valid under section 1172.6. (See People v.
Strong, supra, 13 Cal.5th at p. 708 [“If the petition and record in
the case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition”].)
Neither Brown nor her appellate counsel has identified a
cognizable legal issue, and our independent review has not
identified one either. The order denying Brown’s petition for
resentencing is affirmed. (See People v. Delgadillo (2022)
14 Cal.5th 216, 231-232; People v. Kelly (2006) 40 Cal.4th 106,
118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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