People v. Brumfield

1

THE PEOPLE, Plaintiff and Respondent, v. PAUL RANDOLF BRUMFIELD, JR., Defendant and Appellant.

B319717

California Court of Appeals, Second District, Fifth Division

August 24, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No SA092218, Kathryn A. Solorzano, Judge. Affirmed as modified with directions.

Stephen M. Vasil, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung Deputy Attorneys General, for Plaintiff and Respondent.

MOOR J.

Paul Randolph Brumfield, Jr. appeals the trial court's order summarily denying his petition for vacatur of his murder conviction and resentencing under Penal Code section 1172.6.^[1]

On appeal, Brumfield contends that: (1) he is entitled to resentencing because the instructions given to the jury permitted it to find him guilty of second degree murder as a consequence of the jury finding that he violated the prima facie speed law and committed gross vehicular manslaughter; (2) counsel provided ineffective assistance at his section 1172.6 hearing, and (3) the matter must be remanded for the trial court to recalculate Brumfield's custody credits and correct errors in the abstract of judgment.

We affirm the trial court's order denying Brumfield's section 1172.6 petition, modify the abstract of judgment to reflect that the trial court did not impose three one-year enhancements under section 667.5, subdivision (b), and remand the matter for the trial court to recalculate Brumfield's custody credits.

FACTS AND PROCEDURAL HISTORY^[2]

On November 15, 2015, officers noticed that Brumfield was driving in an unusual manner. They checked the license plates and learned that the vehicle had been stolen, so they began following Brumfield. Brumfield drove on the highway and then on several surface streets at a high rate of speed. He made unsafe lane changes, weaving through traffic, and ran two stop signs. On Venice Boulevard, one of the officers saw a pedestrian at an intersection on the center island look to his right toward the traffic. The pedestrian stepped off the island into the crosswalk and crossed against a red light. There were no oncoming vehicles approaching the intersection at that point. The pedestrian looked down at his phone or his hand and walked at a normal speed. Brumfield accelerated out of traffic and hit the pedestrian. The officer saw a cloud of blood, and the victim's decapitated body flying through the air. He testified that Brumfield could have avoided the victim by moving to either the second or the third lane, which were both unoccupied, but instead lined up with the victim and accelerated. Brumfield did not brake before or after the impact. He continued traveling at a high rate of speed, accelerating away from the intersection. Brumfield escaped apprehension on the day of the killing.

Brumfield abandoned the vehicle on Rose Avenue, where the manager of an apartment building discovered it a few days later. One of the residents of the apartment building noticed damage to the front end of the car and a blood-stained hole in the windshield. He was concerned that the vehicle had been involved in a fatal accident, so he notified the authorities. Responding officers determined that the vehicle had been stolen and was involved in a crime. The interior of the car was spattered with blood. An officer recovered a severed head that was on the floorboard covered by a blanket.

Brumfield was arrested for an unrelated offense on November 20, 2015. Forensic evidence, including DNA, cell phone evidence, and witnesses tied Brumfield to the vehicle and the incident.

Brumfield was tried as the sole perpetrator of the killing. As relevant here, the jury was instructed regarding violation of the prima facie speed law (CALCRIM No. 595), gross vehicular manslaughter (a modified version of CALCRIM No. 592), and second degree murder (CALCRIM No. 520). The jury was not instructed on the natural and probable consequences doctrine or felony murder.

The jury found Brumfield guilty of second degree murder (§ 187, subd. (a); count 1), driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 2), gross vehicular manslaughter (§ 192, subd. (c)(1); count 3), and hit-and-run driving resulting in death (Veh. Code, § 20001, subd. (b)(2); count 4). The jury found true the allegation that Brumfield fled the scene of the collision in count 3. (Veh. Code, § 20001, subd. (c).)

In a bifurcated trial, the trial court found true the allegations that Brumfield suffered a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) &1170.12, subds. (a)-(d)), a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and three prior prison terms for felony offenses within the meaning of section 667.5, subdivision (b). The court granted Brumfield's motion to strike the prior strike conviction.

Brumfield was sentenced to 15 years to life in count 1 (§ 187, subd. (a)), plus a five-year enhancement pursuant to section 667, subdivision (a)(1). The trial court selected count 4 as the principal determinate term and imposed a consecutive high term of four years. (Veh. Code, § 20001, subd. (b)(2).) The court imposed a second consecutive sentence of eight months (one-third the midterm) in count 2. (Id., § 10851, subd. (a).) In count 3 the court imposed the upper term of six years (§ 192, subd. (c)(1)), plus a 5-year term for the attached special allegation (Veh. Code, § 20001, subd. (c)), both of which it stayed pursuant to section 654. Finally, it imposed three one-year prior prison term enhancements under section 667.5, subdivision (b). Brumfield was sentenced to a total determinate term of 4 years 8 months and total indeterminate term of 23 years to life.

Brumfield appealed. Another panel of this court modified the judgment to strike the three one-year enhancements imposed under section 667.5, subdivision (b), and remanded the matter to the trial court to consider exercising its discretion to strike the five-year section 667, subdivision (a) enhancement under Senate Bill No.1393 (2017-2018 Reg. Sess.), which had been recently enacted. The judgment was affirmed in all other respects.

On March 11, 2019, prior to remand, Brumfield petitioned for resentencing under section 1172.6. On July 25, 2019, the trial court summarily denied the petition because the court found that Brumfield was the actual killer. Brumfield did not appeal the court's order.

On remand on August 22, 2019, the trial court exercised its discretion to strike the five-year prior serious felony conviction enhancement, noted that the appellate opinion modified the judgment to strike three one-year terms imposed under 667.5, subdivision (b), and ordered the Department of Corrections to recalculate Brumfield's custody credits.

On October 4, 2021, Brumfield filed a second section 1172.6 petition. The court appointed counsel. On December 17, 2021, the court ruled that Brumfield was ineligible for relief under section 1172.6 because he was the actual killer.

On January 26, 2022, the trial court received Brumfield's third petition for resentencing under section 1172.6, which Brumfield prepared without the assistance of counsel. In an attached letter, Brumfield asked that new counsel be appointed. In his letter Brumfield inquired about the status of his resentencing petition and asked whether he needed to file a notice of appeal.

On March 28, 2022, the trial court denied Brumfield's request for new counsel and explained that the denial of the previous petition for resentencing did not result from counsel's errors or incompetence. The court stated that the appropriate remedy was for Brumfield to appeal the court's December 17, 2021 decision. The court made March 28, 2022, the effective date for filing a notice of appeal.

Brumfield timely appealed.

DISCUSSION

Instructional Error

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) "amended existing law on accomplice liability for murder' "to ensure that murder liability is not imposed on a person who is not the actual killer ...."' (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018, ch 1015, § 1, subd. (f); see § 189, subd. (e)(1).) To accomplish this goal, Senate Bill 1437 limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder . . . (People v. Gentile (2020) 10 Cal.5th 830, 842 843 . . .; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 ....)" (People v. Patton (2023) 89 Cal.App.5th 649, 655.) The bill also added former section 1170.95 (now section 1172.6),^[3] which provides that "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts." (Id., subd. (a).) Among the requirements to be eligible for relief, the petitioner must show that he or she "could not presently be convicted of murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (Id., subd. (a)(3).) Senate Bill 1437 amended section 188, subdivision (a)(3) so that "(e)xcept as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in...