People v. Britt

THE PEOPLE, Plaintiff and Respondent, v. DESHON BRITT, Defendant and Appellant.

B297588

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

February 18, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA098926)

APPEAL from order of the Superior Court of Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General for Plaintiff and Respondent.

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INTRODUCTION

Deshon Britt appeals from the superior court's order denying his petition under Penal Code section 1170.95,¹ which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Britt argues that his petition stated a prima facie case for relief under the statute and that the superior court erred in denying the petition without a hearing and without appointing him counsel. Britt, however, was not convicted under a felony murder or natural and probable consequences theory, which the superior court properly determined after reviewing this court's opinion in Britt's prior appeal. Therefore, Britt did not state a prima facie case for relief, and the superior court did not err in denying his petition.

PROCEDURAL AND FACTUAL BACKGROUND

A. A Jury Convicts Britt of First Degree Murder, and This Court Affirms His Conviction

In July 2008 Britt confronted Aaron Patterson, who was walking with two companions outside a liquor store, with the common gang challenge, "Where are you from?" Patterson's response, "8 Trey Gangster Crip," indicated he belonged to a rival gang. Britt responded to Patterson with "99 Watts Mafia Crip" and went into the liquor store to get his fellow gang member, Milton Jones.

Outside the store, Jones and Patterson first argued and then fought. Patterson knocked Jones and Britt to the ground. Jones pulled out a gun and shot Patterson in the back of the head as Patterson tried to run away.

The jury found Britt guilty of first degree murder and found true firearm and gang allegations. The trial court sentenced Britt to prison for 50 years to life.

In June 2011 this court affirmed Britt's conviction. We stated: "There was sufficient evidence for a reasonable jury to find that Britt aided and abetted Jones in the murder . . . . [¶] Looking at the factors for specific intent, there is sufficient evidence to conclude Britt shared the same intent as Jones. The trial court noticed Britt's statements exhibited a 'consciousness of guilt' to his family since he was so obsessed with taking his clothes off to avoid the police; instead, for example, of establishing his innocence or that he did not know Jones had a gun. Britt also demonstrates his shared specific intent when he retrieved Jones to reinitiate the confrontation with Patterson. A brief fistfight ensued. Although Britt argues that he only wanted to fight Patterson, his retrieval of Jones belies that argument. Patterson began to run away from the fight. Jones tried to shoot Patterson, but his (Jones) gun jammed. Jones fixed his gun and then shot Patterson in the back of his head. A jury may reasonably infer that Britt was an aider or abettor because there was no evidence that Britt was surprised by Jones's conduct or too afraid to interfere with it. [Citation.] In fact, Britt fled the scene at the same time as Jones only after the shooting and the murder was complete." (People v. Britt (June 6, 2011, B218965) [nonpub. opn.].) This court also concluded there was substantial evidence Britt premeditated and deliberated Patterson's murder.

B. Britt's Petitions for Resentencing

On January 1, 2019 Britt, representing himself, filed a form petition under section 1170.95, asking the court to vacate his first degree murder conviction and to resentence him.² In his petition, Britt checked boxes stating that he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019" and that "I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code § 189." Britt also checked the boxes stating "I was not the actual killer," "I 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 "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony." Britt attached to his petition a memorandum setting forth section 1170.95, subdivisions (a) and (b), a declaration stating the charges against him, a request for appointment of counsel, copies of the felony complaint and information, the versions of CALCRIM No. 520 and CALCRIM No. 521 the court give to the jury, a motion regarding the admissibility of certain statements by Britt the prosecution contended were admissible as declarations against penal interest, and excerpts of the closing arguments. The People opposed Britt's petition, arguing the statute that enacted section1170.95, Senate Bill No. 1437, was unconstitutional and violated the separation of powers doctrine.³

On March 7, 2019 the superior court, after reviewing the available trial record and this court's 2011 opinion in Britt's direct appeal, summarily denied the petition without a hearing. The court stated: "As the appellate court pointed out [in] the affirmed decision, defendant Britt initiated the confro[n]tation with the victims and then retrieved co-defendant (and shooter) Jones in order to reinitiate the confrontation with the deceased victim. Eyewitnesses and surveillance video establish the defendant as starting the initial confrontation by asking the victim 'Where are you from'? After the initial confrontation by defendant Britt, Britt then goes back into the liquor store to retri[e]ve co-defendant Jones, who is armed with a gun, when both seek out the victims to confront them again. [¶] The petitioner was a major participant in the crime and acted with reckless indifference. [Citation.] As noted in the appellate record, the defendant was known to approach young males at the location where the crime occurred and ask 'Where are you from.' In this case, after the victim responded with a rival gang name, defendant Britt immediately retrieved co-defendant Jones (who was armed with a gun) and re-confronted the victim before he was shot to death. Also, looking at the factors for specific intent, the trial court noted [Britt's] statements exhibited a 'consciousness of guilt' to his family since he was so obsessed with taking his clothes off to avoid the police instead of, for example, establishing his innocen[c]e or that he did not know co-defendantJones had a gun." Britt timely appealed the order denying his petition.

DISCUSSION

A. Senate Bill No. 1437 Changes the Felony Murder and Natural and Probable Consequences Doctrines

Senate Bill No. 1437 became effective on January 1, 2019. (See Stats. 2018, ch. 1015, § 4). The purpose of the new legislation was "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); see People v. Larios (2019) 42 Cal.App.5th 956, 964.) To accomplish this purpose, Senate Bill No. 1437 amended section 188 to provide "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Senate Bill No. 1437 also added section 189, subdivision (e), which provides that a person is liable for murder "only 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, as described in subdivision (d) of Section 190.2." (See Larios, at p. 964.)

"The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. The rule has two applications: first degree felony murder and second degree felony murder. . . . First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189.'" (People v. Chun (2009) 45 Cal.4th 1172, 1182; accord, In re White (2019) 34 Cal.App.5th 933, 946; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1142, fn. 3 [section 188, subdivision (a)(3) "brings into question the ongoing viability of second degree felony murder in California"].)

"There are two distinct forms of culpability for aiders and abettors. 'First, an aider and abettor with the necessary mental state is guilty of the intended crime. ...