Filed 7/19/21 P. v. Brightmon CA4/2 See dissenting opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074478
v. (Super.Ct.No. CR66248)
TODD DeWAYNE BRIGHTMON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed as modified.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant, Todd DeWayne Brightmon, filed a petition for
resentencing pursuant to Penal Code section 1170.95,1 which the court dismissed. On
appeal, defendant contends the court erred in summarily dismissing his petition. We
affirm with modifications.
I. PROCEDURAL BACKGROUND2
A jury found defendant guilty of first degree murder (§ 187, subd. (a), count 1)
and found true multiple felony-murder special circumstances (§ 190.2, subd. (a)(17)).
(Brightmon, supra, E027391.) The jury additionally found true allegations that a
principal was armed with a firearm in the commission of the murder. (§ 12022,
subd. (a)(1).) Allegations that defendant had suffered four prior prison terms (§ 667.5,
subd. (b)) and a prior strike conviction (§§ 667, subds. (c), (e), 1170.12, subd. (c)) were
also found true. The court sentenced defendant to life imprisonment without the
possibility of parole, plus five years. Defendant appealed the judgment, which this court
affirmed by opinion filed September, 20, 2001.3 (Brightmon, supra, E027391.)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On our own motion, we take judicial notice of the record in defendant’s appeal from the original judgment, on which the People below relied, and both parties on appeal rely on for their recitation of the facts. (People v. Brightmon (Sept. 20, 2001, E027391) [nonpub. opn.] (Brightmon); see Evid. Code, § 459.) Nonetheless, we find the facts unnecessary to our resolution of the issues on appeal.
3 This court modified the judgment only insofar as striking a parole revocation fine. (Brightmon, supra, E027391.)
2 On September 4, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95.4 The People filed a response, in which they argued, in part, that the
petition should be denied because the jury had found true “special circumstance findings
that [required] [it] find [defendant] intended to kill or was a major participant [acting]
with reckless indifference” to human life. Defense counsel filed a reply contending
defendant had “made a prima facie showing that he[] is entitled to relief. It is necessary
to conduct further investigation to determine what role, if any, petitioner played in the
offense and for the court to examine if [defendant] could be convicted under the law as
amended . . . .”
At the hearing on the petition on December 13, 2019, the People moved to dismiss
the petition because “there was a felony-murder special circumstance found true.” The
People also noted, in reliance upon this court’s opinion from defendant’s appeal from the
judgment, that defendant had “testified for a codefendant and admitted that he shot the
victim. So he’s the actual killer based on his own testimony.” The court asked defense
counsel if she took issue with the People’s representation that defendant had testified that
4 Defendant filed a form petition on which he did not check the boxes indicating that he “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,” and that he “was not a major participant in the felony or . . . did not act with reckless indifference to human life during the course of the crime or felony.”
3 he was the actual shooter. Defense counsel responded that she did not. The court
dismissed the petition over defense counsel’s objection.5
II. DISCUSSION
Defendant contends the trial court erred in dismissing his petition based on this
court’s recitation of defendant’s testimony at trial, recounted in this court’s opinion from
the judgment.6 (Brightmon, supra, E027391.) He maintains that the error was not
harmless because the jury rendered the special circumstance findings prior to the
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), which require a “much more rigorous analysis” for determining
when a defendant acted with reckless disregard for human life.
5 The reporter’s transcript reflects that the trial court dismissed the petition; however, the minute order indicates it denied the petition. We shall direct the court to correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)
6 As defendant notes, the issue of whether superior courts can “consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95,” is currently pending before the California Supreme Court. (People v. Lewis (2020) ___ Cal.5th ___ [2020 Cal. Lexis 1946].) Nonetheless, as it now stands, when ruling on a section 1170.95 petition, the court may rely upon the record of conviction, including any prior appellate opinion. (People v. Offley (2020) 48 Cal.App.5th 588, 596-598; People v. Torres (2020) 46 Cal.App.5th 1168, 1173, 1177-1178, review granted June 24, 2020, S262011; People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
4 Preliminarily, though not raised by either party on appeal or below, we note that
defendant failed to allege a prima facie case by not checking the boxes on his form
petition reflecting that he did not intend to kill and that he was not a major participant
acting with reckless indifference to human life during the course of the crime or felony.7
This, in and of itself, would have rendered defendant ineligible for relief as a matter of
law.8 Nonetheless, although we agree that the court erred by dismissing the petition
based on a determination that defendant was the actual killer,9 that decision was harmless
because the jury had found true robbery-murder special circumstances, which defendant
has failed to challenge by the appropriate vehicle, a petition for writ of habeas corpus.
7 “‘[T]he prima facie showing the [petitioner] must make is that he [or she] did not, in fact, act [as required] or harbor the mental state required . . . for a murder conviction under current law.’” (People v. Rivera (2021) 62 Cal.App.5th 217, 230.) “Section 189, subdivision (e), as amended, provides that a participant in a specified felony is liable for murder for a death during the commission of the offense . . . if one of the following is proven: ‘(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.’” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.)
8 “‘“[W]e will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.”’” (Anderson v. Davidson (2019) 32 Cal.App.5th 136, 144.)
9 As defendant accurately points out, although defendant testified he had possession of the gun when it “went off,” killing the victim, he was not convicted as the actual killer; instead, a jury found defendant’s codefendant guilty as the actual killer of the victim, for which the court sentenced him to death. (Brightmon, supra, E027391; see People v. Johnson (2015) 61 Cal.4th 734, 740.)
5 A. Legal Background.
“In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . . ,
which abolished the natural and probable consequences doctrine . . . . Under section 189,
subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony
murder only if he: actually killed the victim; directly aided and abetted or solicited the
killing, or otherwise acted with the intent to kill; or ‘was a major participant in the
underlying felony and acted with reckless indifference to human life.’ [Citations.] The
legislation also enacted section 1170.95 [(Stats. 2018, ch. 1015, § 4)], which established a
procedure for vacating murder convictions for defendants who would no longer be guilty
of murder because of the new law and resentencing those who were so convicted.”
(People v. Murillo (2020) 54 Cal.App.5th 160, 166 (Murillo), review granted Nov. 18,
2020, S264978.)
“Section 1170.95 allows a defendant serving a sentence for felony murder who
would not be guilty of murder because of the new law to petition for resentencing. The
statute requires a defendant to submit a petition affirming that he meets three criteria of
eligibility: (1) He was charged with murder in a manner ‘that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first
degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of
first or second degree murder because of changes to Section[s] 188 or 189 made
effective’ as a part of Senate Bill No. 1437 [citation]. As described above, those changes
eliminated the natural and probable consequences doctrine as a basis for murder liability,
6 and added a requirement for felony murder that a defendant must have been at least a
major participant in the underlying felony and have acted with reckless indifference to
human life.” (Murillo, supra, 54 Cal.App.5th at p. 166.)
Section 1170.95, subdivision (b), states that the petition must include: a
declaration from the petitioner that he or she is eligible for relief under the statute, the
trial court’s case number and year of conviction, and a statement as to whether the
petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the
required information is missing and cannot “readily [be] ascertained by the court, the
court may deny the petition without prejudice to the filing of another petition.” (Id., at
subd. (b)(2).)
Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a
complete petition has been filed: “The 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. The prosecutor shall file and serve a response within
60 days of service of the petition and the petitioner may file and serve a reply within
30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue an order to show cause.”
If the court issues an order to show cause, it must hold a hearing to determine whether to
vacate the murder conviction. (Id., at subd. (d).) At that hearing, the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. (Id., at subd. (d)(3).) The prosecutor and petitioner “may rely on the
7 record of conviction or offer new or additional evidence to meet their respective
burdens.” (Ibid.)
In short, a section 1170.95 petitioner must first make a prima facie case for relief
and, if they are able to do so, the trial court must issue an order to show cause and hold a
hearing to determine whether to vacate the murder conviction and recall the sentence.
(See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,
2020, S260493.) “‘A prima facie showing is one that is sufficient to support the position
of the party in question.’” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review
granted Mar. 18, 2020, S260598, quoting Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 851.)
In this case, the trial court dismissed defendant’s petition at the first stage of prima
facie review under section 1170.95, subdivision (c). “A denial at that stage is appropriate
only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as
a matter of law.’ [Citations.] This is a purely legal conclusion, which we review
de novo.” (Murillo, supra, 54 Cal.App.5th at p. 167; accord, People v. Galvan (2020)
52 Cal.App.5th 1134, 1137, 1142 (Galvan), review granted Oct. 14, 2020, S264284.)
“To be eligible for resentencing under section 1170.95, [a defendant] must show
that he ‘could not be convicted of first or second degree murder because of changes to
Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437. [Citation.]
Under the newly amended version of section 189, a defendant can be convicted of felony
murder only if he was the actual killer; acted with the intent to kill in aiding, abetting,
counseling, commanding, inducing, soliciting, requesting, or assisting in first degree
8 murder; or ‘was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.’” (Murillo,
supra, 54 Cal.App.5th at p. 167.)
A jury’s special circumstance finding shows as a matter of law that the defendant
could still be convicted of murder under the new definition; thus, preventing the
defendant from making a prima facie case that he is eligible for resentencing under
section 1170.95. (Murillo, supra, 54 Cal.App.5th at p. 167; Galvan, supra,
52 Cal.App.5th at p. 1141 [“Because a defendant with a felony-murder special
circumstance could still be convicted of murder, he is ineligible as a matter of law to have
his murder conviction vacated.”]; People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez),
review granted Oct. 14, 2020, S264033; accord, People v. Jones (2020) 56 Cal.App.5th
474, 482 (Jones), review granted Jan. 27, 2021, S265854 [“A defendant with a special
circumstance finding under section 190.2, subdivision (d) is not eligible for relief under
section 1170.95 as a matter of law.”]; contra, People v. Torres (2020) 46 Cal.App.5th
1168, 1173 (Torres), review granted June 24, 2020, S262011 [trial court’s exclusive use
of jury’s special circumstance findings alone was not sufficient to preclude § 1170.95];
accord, People v. Smith (2020) 49 Cal.App.5th 85, 94 (Smith), review granted July 22,
2020, S262835 [some special circumstance findings will not preclude § 1170.95
eligibility as a matter of law]; People v. York (2020) 54 Cal.App.5th 250, 258 (York),
review granted Nov. 18, 2020, S264954 [“[A] pre-Banks and Clark special circumstance
finding cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law
. . . .”]; People v. Secrease (2021) 63 Cal.App.5th 231, 254 (Secrease) [“[A] murder
9 defendant facing a pre-Banks and Clark felony-murder special circumstance may
properly allege that the murder conviction is no longer valid ‘because of changes to
Section 188 or 189 made effective January 1, 2019.’”].)
B. Robbery-murder Special Circumstance Findings.
Here, the jury found defendant guilty of first degree murder with multiple robbery
-murder special circumstances. (Brightmon, supra, E027391.) As this court held in its
prior opinion, evidence relating to another murder charged against defendant’s
codefendant was relevant to prove defendant acted with reckless indifference to human
life in the murder charged against defendant, which was required under section 190.2 in
order for the jury to find the robbery-murder special circumstance allegations true.
(Ibid.)
The jury’s findings, even under current law, would render defendant ineligible for
relief pursuant to section 1170.95. (§ 189, subd. (e)(2), (e)(3); People v. Verdugo, supra,
44 Cal.App.5th at p. 326; Murillo, supra, 54 Cal.App.5th at p. 167 [true finding on
burglary special murder circumstance rendered defendant ineligible for § 1170.95 relief];
accord, Galvan, supra, 52 Cal.App.5th at pp. 1140-1141 [any murder special
circumstance finding under § 190.2, subd. (a)(17), renders defendant ineligible for
§ 1170.95 relief as a matter of law]; Jones, supra, 56 Cal.App.5th at p. 482 [“A defendant
with a special circumstance finding under section 190.2, subdivision (d) is not eligible for
relief under section 1170.95 as a matter of law.”]; cf. Gomez, supra, 52 Cal.App.5th at
p. 15 [the jury’s true findings on robbery and kidnapping special circumstance allegations
rendered defendant ineligible for § 1170.95 relief as a matter of law]; contra, Torres,
10 supra, 46 Cal.App.5th at p. 1173; accord, Smith, supra, 49 Cal.App.5th at p. 94; accord,
York, supra, 54 Cal.App.5th at p. 258; Secrease, supra, 63 Cal.App.5th at p. 254.) We
agree with Gomez, Galvan, Murillo, and Jones and hold that the jury’s robbery-murder
special circumstance findings in this case necessarily established, at minimum, as a
matter of law, that defendant was a major participant who acted with reckless
indifference to human life. Thus, the trial court properly dismissed defendant’s petition.
C. The Proper Vehicle to Challenge a Felony-murder Special Circumstance
Finding is a Petition for Writ of Habeas Corpus.
Despite the jury’s robbery-murder special circumstance findings, defendant
contends that the evidence is insufficient to support a finding that he was a major
participant in the robbery, who acted with reckless indifference to human life under
Banks and Clark, which were decided subsequent to the judgment in his case. He
therefore asserts he may maintain a challenge to the sufficiency of the evidence to
support those findings in his section 1170.95 proceedings. We disagree.
A number of cases have found that “the proper remedy for challenging a special
circumstance finding is by a petition for habeas corpus, not a petition for resentencing
under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1137; see Murillo, supra,
54 Cal.App.5th at pp. 167-168); Gomez, supra, 52 Cal.App.5th at p. 17; Jones, supra,
56 Cal.App.5th at pp. 483-484 [“‘Jury instructions regarding the mental state required for
a felony-murder special circumstance are not defective if they do not include
the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding
major participation and reckless indifference remains the same as it was
11 before Banks and Clark.’”.]) Petitioners like defendant “‘had the same incentive’ at their
original trials to attempt to minimize their involvement in the robbery and their
culpability for the killings as they would have had if their trials ‘had taken place
after Banks and Clark.’ [Citation.] In short, Banks and Clark did not significantly
narrow the definitions of ‘major participant’ and ‘reckless indifference,’ and there is no
basis for concluding that [defendant’s] jury was asked to resolve different factual issues
than a correctly instructed post-Banks/Clark jury would be asked to resolve.” (Jones, at
p. 484.) We agree with Gomez, Galvan, Murillo, and Jones and hold that the proper
procedure of challenging a felony-murder special circumstance finding is a petition for
writ of habeas corpus.10 Thus, the trial court properly dismissed defendant’s petition for
resentencing summarily.
10 We acknowledge the contrary holdings in Torres, supra, 46 Cal.App.5th 1168, Smith, supra, 49 Cal.App.5th 85, York, supra, 54 Cal.App.5th 250, and Secrease, supra, 63 Cal.App.5th 231, which would allow defendants to challenge the validity of murder convictions that predated the Banks and Clark decisions, by requiring the People to prove, once again, the special circumstances beyond a reasonable doubt. We simply disagree that the language of section 1170.95 provides defendant an opportunity to relitigate special circumstance findings because of the clarification of the requirements for those findings in Banks and Clark.
12 III. DISPOSITION
The order denying defendant’s petition for resentencing pursuant to Penal Code
section 1170.95 is affirmed. The superior court is directed to modify its December 13,
2019, minute order to reflect that it dismissed, rather than denied, defendant’s petition for
resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. I concur:
RAMIREZ P. J.
13 [People v. Brightmon, E074478]
RAPHAEL, J., Dissenting.
I respectfully dissent because I think it incorrect to require defendant and appellant
Todd DeWayne Brightmon, who is challenging his murder conviction under Penal Code
section 1170.95 (section 1170.95), to set aside his robbery murder special circumstance
finding through a petition for a writ of habeas corpus before obtaining review here.
The changes to Penal Code section 189, subdivision (e)(3) effective at the
beginning of 2019 make it possible for a defendant convicted on a felony murder theory
to challenge his murder conviction under section 1170.95 on the ground that he was not a
major participant in the underlying felony who acted with reckless indifference to human
life. Lumord Johnson received the death penalty as the shooter who killed the victim
(People v. Johnson (2015) 61 Cal.4th 734), while defendant was convicted on a felony
murder theory in a 1995 jury trial. Defendant’s jury was required to find he was a “major
participant” with “reckless indifference” when it found true his robbery murder special
circumstance. (Maj. opn., ante, at p. 10.) But no court reviewed whether the facts were
sufficient under the later decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).
I think our division had it right in People v. Law (2020) 48 Cal.App.5th 811, 825,
when we held that in such a situation, the special circumstance finding, on its own, does
not preclude an evaluation of the murder conviction under section 1170.95. Today,
following other cases, the majority agrees that defendant can potentially have a court
review whether the murder conviction is valid, but cannot do so now. The “proper
1 vehicle” is a habeas petition challenging the special circumstance findings under Banks
and Clark. (Maj. opn., ante, at p. 11). If the defendant is successful on habeas, then he
can file a new section 1170.95 petition to attack his murder conviction. In contrast, I see
nothing in the text or purpose of the statute to require that the special circumstance be set
aside through a habeas petition before the murder conviction can be evaluated through a
section 1170.95 petition.
This is not just a matter of how a petition is labeled. Habeas petitions are subject
to procedural bars that may preclude relief. Here, there is a serious possibility that a
habeas writ is unavailable to defendant because the facts at his trial were in dispute. (See
In re Scoggins (2020) 9 Cal.5th 667, 674 [no procedural bar to a Banks/Clark habeas
challenge to the special circumstance where “no material dispute” as to facts].) If so,
consigning defendant to the habeas court would be tantamount to barring review of his
felony murder conviction under the terms of section 1170.95.
Because evidence supporting the special circumstance finding has not been
reviewed for sufficiency under Banks and Clark, a court “could properly determine he
was ineligible for relief as a matter of law only after reviewing the available record of
conviction in light of the Banks and Clark factors.” (People v. Harris (2021) 60
Cal.App.5th 939, 956-958, review granted Apr. 28, 2021, S267802.) I would reverse and
remand for the trial court to proceed consistently with 1170.95, subdivision (d).
RAPHAEL J.