P. v. Brinson

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Filed 6/16/20 P. v. Brinson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY LAWRENCE
BRINSON,
Defendant and Appellant.
A157869
(Sonoma County
Super. Ct. No. SCR289231)
Penal Code1 section 1170.95, enacted as part of Senate Bill No.
1437 (Stats. 2018, ch. 1015), permits a person convicted of felony
murder or murder under a natural and probable consequences theory
to petition to vacate the murder conviction and be resentenced on any
remaining counts.
Defendant and appellant Johnny Lawrence Brinson (Brinson)
appeals the summary denial of his section 1170.95 petition. The
superior court summarily denied his petition because (1) section
1170.95 provides relief only for persons convicted of murder, not
attempted murder, and (2) even if the statute applied, Brinson was
1 All further unspecified statutory references are to the Penal
Code.

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ineligible for relief because he was not convicted under a natural and
probable consequences theory. We affirm.
Factual and Procedural Background
In 1999, Brinson and a codefendant were charged with attempted
murder and jointly tried. The People presented three eyewitnesses,
including the victim, all of whom identified Brinson as the person who
shot the victim in the arm with a shotgun. The trial prosecutor argued
to the jury that Brinson was the actual shooter and his codefendant
was responsible as either a principal or aider and abettor. The trial
prosecutor never argued the theory of natural and probable
consequences, and there were no jury instructions or verdict forms
referencing that theory.
The jury found Brinson guilty of attempted willful, deliberate and
premeditated murder (§§ 664, 187, subd. (a)) with a related allegation
that he had personally used and discharged a firearm (§ 12022.53,
subds. (b),(c)). The jury also found Brinson guilty of being a felon in
possession of a firearm (§12021, subd. (a)(1)). The court found Brinson
had a prior strike and serious felony conviction. (§§ 667, subd. (a),
1170.12.) The jury failed to reach a verdict concerning the codefendant,
and the charge of attempted murder against him was later dismissed.
In May 2000, Brinson was sentenced to an aggregate term of 39
years to life. We affirmed the conviction in an unpublished opinion
(People v. Brinson (June 26, 2001, A091236) [nonpub. opn.]), and review
was denied by the Supreme Court (People v. Brinson (Sept. 12, 2001,
S099585).

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Section 1170.95 Petition
In June 2019, Brinson, appearing in propria persona, filed a
section 1170.95 petition, using “a downloadable form” petition and
declaration “prepared by Re: Store Justice . . . .” (People v. Verdugo
(2020) 44 Cal.App.5th 320, 324, rev. granted Mar. 18, 2020, S260493
(Verdugo).) “The substantive portion of the form petition consists of a
declaration with boxes to be checked against averments essentially
tracking the statutory language as to the prerequisites for filing a
petition and demonstrating a prima facie showing that the petitioner
falls within the provisions of section 1170.95 and is eligible for relief.”
(People v. Edwards (2020) 48 Cal.App.5th 666, 670, pet. for rev.
pending (Edwards).)
Brinson, checking boxes on the form petition, averred, in
pertinent part, that:
“A complaint, information, or indictment was filed against me
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine”;
“At trial, I was convicted of 1st or 2nd degree murder pursuant to
the felony murder rule or the natural and probable consequences
doctrine,” as well as “I was convicted of 2nd degree murder under
the natural and probable consequences doctrine or under the 2nd
degree felony murder doctrine”;
“I 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,” as well as, “I could not now be convicted of murder
because of the changes to Penal Code § 188, effective January 1,
2019.”
“I was convicted of 1st degree felony murder and I could not now
be convicted because of changes to Penal Code § 189, effective
January 1, 2019, for the following reasons . . .:”

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“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”;
“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”; and
“The victim of the murder was not a peace officer in the
performance of his or her duties, or I was not aware that the
victim was a peace officer in the performance of his or her duties
and the circumstances were such that I should not reasonably
have been aware that the victim was a peace officer in the
performance of his or her duties.” (Bolded language in original.)
Brinson’s petition also requested appointed counsel to represent
him “during this re-sentencing process.”
On July 16, 2019, the superior court summarily denied the
petition, without appointing counsel for Brinson or receiving a response
from the People. In its written order the court gave two reasons for its
denial. The court first recognized that although “California has no
crime of attempted felony murder” (People v. Billa (2003) 31 Cal.4th
1064, 1071, fn. 4), an attempted murder conviction could be based on a
natural and probable consequences theory. However, persons convicted
of attempted murder under a natural and probable consequences
theory were not eligible for section 1170.95 relief because the statute
applied only to persons convicted of murder. The court also found that,
even if the statute applied to persons convicted of attempted murder,
Brinson was not eligible for relief because he was not convicted based
on a natural and probable consequences theory as shown by the

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judicially-noticed case file of the record of conviction, which included
the trial prosecutor’s arguments, jury instructions, and verdict forms.
Brinson filed a timely notice of appeal from the July 16, 2019
order.
DISCUSSION
I. Applicable Law
Section 1170.95 permits a person convicted of felony murder or
murder under a natural and probable consequences theory to petition
the sentencing court to vacate the murder conviction and for
resentencing on any remaining counts when all of the following
conditions apply: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial . . . . [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1,
2019.” (Id., subd. (a)(1), (2), (3).)
Subdivision (b) of section 1170.95 provides that the petition must
include: “(A) A declaration by the petitioner that he or she is eligible for
relief under this section, based on all the requirements of subdivision
(a). [¶] (B) The superior court case number and year of the petitioner’s
conviction. [¶] (C) Whether the petitioner requests the appointment of
counsel.” If any of this 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 and advise the petitioner that

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the matter cannot be considered without the missing information.”
(§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 “provides the process by which
the court is to decide the petition: ‘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[’s] response is served.
These deadlines shall be extended for good cause. 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.’ Therefore, no order to show
cause and no hearing is held (§ 1170.95, subd. (d)(1)) unless the court
first determines a prima facie showing of entitlement to relief.”
(Edwards, supra, 48 Cal.App.5th at p. 673.)
II. The Superior Court Correctly Determined Brinson Is Not
Eligible for Relief Under Section 1170.95 as a Matter of Law
The parties present extensive arguments directed at the superior
court’s ruling that section 1170.95 does not provide relief for persons
convicted of attempted murder. However, we need not address this
issue2 because, even if section 1170.95 were applicable to persons
2 We acknowledge this issue is currently pending for review before
our Supreme Court. (See People v. Lopez (2019) 38 Cal.App.5th 1087,
1103-1105 [Senate Bill No. 1437, which added § 1170.95, “does not
apply to convictions for attempted premeditated murder”], rev. granted
Nov. 13, 2019, S258175 [lead case][review will include whether Senate
Bill No. 1437 (Stats. 2018, ch. 1015) applies to attempted murder
liability under the natural and probable consequences doctrine].)

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convicted of attempted murder, the court also, and correctly, found
Brinson was not eligible for relief as he was not convicted under a
natural and probable consequences theory.
Brinson makes no specific challenge to the court’s substantive
finding that he is not eligible for relief because he was not convicted
under a natural and probable consequences theory. His only complaint
is that this finding is not dispositive because, when deciding the
threshold issue of whether he falls within the provisions of section
1170.95, the superior court cannot look “beyond the four corners of the
petition;” its review is limited to the facts as pleaded in the petition and
it may not rely on any material in the case file of his record of
conviction. We disagree and conclude the superior court did not err in
considering material in the case file of the record of conviction in
determining Brinson’s eligibility for section 1170.95 relief.
In Edwards, supra, 48 Cal.App.5th 666, we agreed with other
appellate courts that the superior court is not limited to a review of the
section 1170.95 petition in deciding whether a petition falls within the
provisions of section 1170.95 but may also look at documents that are
in the court files or are part of the record of conviction. (Id. at pp. 673-
674; see Verdugo, supra, 44 Cal.App.5th at pp. 323, 329-332; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138, rev. granted Mar. 18, 2020,
S260598 (Lewis).) In so concluding, we agreed with the reasoning in
Verdugo that the relevant statutory language, viewed in context, made
clear that the Legislature envisioned the superior court performing a
“ ‘substantive gatekeeping function screening out clearly ineligible
petitioners,’ ” by an examination of “ ‘readily available portions of the
record of conviction to determine whether a prima facie showing has

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been made that the petitioner falls within the provisions of section
1170.95 . . . .’ ” (Edwards, supra, at p. 673, quoting Verdugo, supra, at
pp. 323, 331-332.) Thus, we agreed with Lewis that “ ‘ “if the petition
contains sufficient summary allegations that would entitle the
petitioner to relief, but a review of the court file shows the petitioner
was convicted of murder without instruction or argument based on the
felony murder rule or [the natural and probable consequences doctrine],
. . . it would be entirely appropriate to summarily deny the petition
based on petitioner’s failure to establish even a prima facie basis of
eligibility for resentencing.” ’ ” (Edwards, supra, at p. 674, quoting
Lewis, supra, at p. 1138, quoting Couzens, et al., Sentencing Cal.
Crimes (The Rutter Group 2019) [¶] 23.51(H)(1), pp. 23-150 to 23-151.)
Here, Brinson filed a form check the box section 1170.95 petition,
which tracks the statutory language. However, as the superior court
found, a review of the readily available case file of the record of his
conviction shows he could not meet the statutory prerequisites for even
filing a petition because he was not convicted of attempted murder
under a natural and probable consequences theory. Accordingly,
summary denial was correct on this ground alone.
Brinson also argues summary denial was improper because the
superior court made its decision before appointing counsel to represent
him and without waiting for a response from the People. However, we
need not address these issues. Because Brinson does not fall within the
provisions of section 1170.95 as a matter of law, these purported errors
were harmless under any standard of review (Chapman v. California
(1967) 386 U.S. 18, 24 [constitutional error]; People v. Watson (1956) 46

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Cal.2d 818, 836 [state law error]) and remand would be an idle act (Civ.
Code § 3532 [the law does not require idle acts]).
For the reasons stated above,3 we affirm the July 16, 2019 order
denying the section 1170.95 petition.
DISPOSITION
The July 16, 2019 order denying the Penal Code section 1170.95
petition is affirmed.
3 We acknowledge that currently pending for review before our
Supreme Court are the following issues: “(1) May superior courts
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? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c).” (See Lewis,
supra, 43 Cal.App.5th 1128, rev. granted Mar. 18, 2020, S260598 [lead
case].)

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_________________________
Petrou, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Jackson, J.
A157869/People v. Brinson

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