P. v. Russell

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Filed 9/18/20 P. v. Russell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
TITENESHA RUSSELL,
Defendant and Appellant.
C090723
(Super. Ct. No. 05F00798)
Defendant Titenesha Russell appeals the trial court’s denial of her petition for
resentencing under Penal Code section 1170.95,1 arguing the trial court failed to follow
the proper procedure before denying her petition, including permitting her counsel to file
a brief. In a prior decision, we concluded the jury found defendant had the intent to kill,
rendering her ineligible for relief under section 1170.95. We therefore affirm.
BACKGROUND
We summarized the relevant facts of this case in defendant’s prior appeal (People
v. Curry (2007) 158 Cal.App.4th 766 (Curry)): “The four defendants, Tashara Boone,
1 Undesignated statutory references are to the Penal Code.

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Terry Buford, Dwayne Michael Curry and [defendant] beat, robbed and kidnapped
Buford’s ex-girlfriend L.R. who was seven months pregnant with Buford’s child. They
were charged with six felonies: count one—attempted premeditated murder of ‘Baby
Doe,’ a seven-month-old fetus ([ ]§§ 664, 187) with the special allegation that Boone,
Curry and [defendant] personally used a deadly and dangerous weapon (§ 12022, subd.
(b)(1)); count two—assault with a deadly weapon by means of force likely to cause great
bodily injury (§ 245, subd. (a)(1)) with the special allegation that Boone, Curry and
[defendant] inflicted the injuries when they knew or should have known that the victim
was pregnant and that the injuries terminated the pregnancy ([former] § 12022.9, subd.
(a)); count three—second degree robbery (§ 211); count four—kidnapping to commit
robbery or ‘aggravated kidnapping’ (§ 209, subd. (b)(1)); count five—attempted robbery
(§§ 664, 211); and count six—conspiracy to murder a human fetus (§§ 182, subd. (a)(1),
187, subd. (a)).” (Curry, supra, at pp. 771-772.)
“The jury convicted the three defendants on all counts, except it found [defendant]
not guilty of robbery and Curry not guilty of conspiracy. It found true all the special
allegations except the allegation that Curry acted with premeditation in attempting to
murder the fetus.” (Curry, supra, 158 Cal.App.4th at p. 772.) The court sentenced
defendant “to life in prison for aggravated kidnapping and a consecutive term of 25 years
to life for conspiracy to commit murder. It stayed sentence on the remaining counts
pursuant to section 654.” (Ibid.)
Defendant appealed, challenging, among other issues, the given voluntary
intoxication jury instruction. (Curry, supra, 158 Cal.App.4th at pp. 784-785.) The
instruction stated the jury could “ ‘not consider evidence of intoxication in deciding
whether attempted murder is a natural and probable consequence of felony assault.’ ”
(Id. at p. 785.) Defendant argued it was unfair that the intoxication defense was
unavailable to her when she did not know the perpetrators intended to kill. (Id. at p. 786.)

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On this issue we found, in part, any instructional error was not prejudicial to
defendant because, “[i]n finding [defendant] guilty of attempted murder, the jury found
true the allegation that she acted with premeditation and personally used a deadly and
dangerous weapon. . . . The jury also found both Curry and [defendant] guilty of assault
and found true the allegation that they personally inflicted great bodily injury upon L.R.,
when they knew or should have known L.R. was pregnant. These findings demonstrate
that the jury (1) rejected defendants’ voluntary intoxication claims and (2) found Curry
and [defendant] guilty as perpetrators.” (Curry, supra, 158 Cal.App.4th at p. 789.)
Defendant also challenged the premeditation instruction for attempted
premeditated murder on the basis that “these instructions improperly ‘allowed [the] jurors
to attach a premeditation finding to [her] attempted murder charge, even if they explicitly
found she did not personally premeditate, exposing her to a sentence of life without
parole . . . .’ ” (Curry, supra, 158 Cal.App.4th at p. 791.) We found this misread the
instruction because the jury had to find “the defendant ‘share[d] the intent to kill.’ A jury
could not make a true finding on the special allegation on premeditation if it determined
that [defendant] only intended to aid and abet a perpetrator in felony assault without
harboring the intent to kill L.R.’s unborn child.” (Ibid.) We found any instructional error
here also harmless because “[t]he jury convicted [defendant] of conspiracy to commit
murder in addition to premeditated attempted murder. In finding [defendant] guilty of
conspiracy to commit murder, the jury necessarily found that she premeditated and
deliberated the murder of L.R.’s unborn child. (See People v. Cortez (1998) 18 Cal.4th
1223, 1232 [‘The mental state required for conviction of conspiracy to commit murder
necessarily establishes premeditation and deliberation of the target offense of murder’
(italics omitted)].)” (Id. at p. 792.) We noted the “record provide[d] overwhelming
support for the jury’s findings” on this issue. (Ibid.)
On January 9, 2019, defendant filed a petition for dismissal and resentencing
under section 1170.95. The petition alleged defendant was eligible for relief because she

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was charged with “felony murder or murder under the natural and probable consequences
doctrine,” she “was convicted of first degree or second degree murder,” and she could not
now “be convicted of first or second degree murder.” The trial court appointed defendant
counsel.
The district attorney submitted a letter brief arguing against resentencing on the
basis defendant was convicted of attempted murder and reserved the right to file
additional briefing. Defendant’s counsel sought a stay of proceedings until the Court of
Appeal, Second Appellate District, decided another case dealing with section 1170.95.
Several months later, the district attorney filed a motion to dismiss defendant’s petition,
arguing that Senate Bill No. 1437 (Senate Bill 1437) (2017-2018 Reg. Sess.)—the bill
that amended sections 188 and 189 and added section 1170.95—was unconstitutional and
defendant could not make a prima facie case for relief because she was convicted of
attempted murder.
The day after the district attorney filed her motion to dismiss, and without
soliciting a responsive brief from defendant’s counsel, the court denied defendant’s
petition in a five-page order. Relying on Curry, the court determined defendant had been
convicted of a variety of crimes, including attempted murder, but not first or second
degree murder. The court found, under People v. Lopez (2019) 38 Cal.App.5th 1087,
review granted November 13, 2019, S258175, that section 1170.95 does not apply to
attempted murder convictions. Therefore defendant was not convicted of any crime for
which section 1170.95 provides relief and she had failed to state a prima facie claim for
relief. The order made no mention of the district attorney’s motion.
DISCUSSION
Defendant contends the court violated section 1170.95 by denying her petition
before permitting her counsel to respond to the district attorney’s brief. She further
asserts that the trial court erred in finding that attempted murder convictions are not
eligible for relief under section 1170.95.

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Senate Bill 1437 (2017-2018 Reg. Sess.) was enacted to “amend the felony murder
rule and the natural and probable consequences doctrine, . . . 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).) Senate Bill 1437
achieves these goals by amending section 188 to require that a principal act with express
or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending
section 189 to state that a person can be liable for felony murder only if (1) the “person
was the actual killer”; (2) the person, with an intent to kill, was an aider or abettor in the
commission of murder in the first degree; or (3) the “person was a major participant in
the underlying felony and acted with reckless indifference to human life.” (§ 189, subd.
(e), as amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 (2017-2018 Reg. Sess.) also added section 1170.95 to provide the
resentencing petition process for a “person convicted of felony murder or murder under a
natural and probable consequences theory.” (§ 1170.95, subd. (a).) After a defendant
submits a petition and the court performs an initial review for missing information,
subsection (c) of section 1170.95 provides, in part: “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.” (§ 1170.95, subd. (c).)
We concluded in the prior Curry appeal that the jury found defendant had the
intent to kill, both through premeditation as a perpetrator of attempted murder, and in
finding her guilty of conspiracy to commit murder. These conclusions are law of the case
and are binding. (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092,
1106.) Defendant’s intent to kill renders her ineligible for relief under Senate Bill 1437

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(see §§ 189, subd. (e)(2), 1170.95, subd. (a)(3)), thus, any alleged error in not allowing
her counsel to respond to the district attorney’s motion to dismiss was harmless beyond a
reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705,
710-711].) Defendant also argues the attempted murder jury instructions permitted her to
be “convicted of premeditated attempted murder even if she neither directly committed
attempted murder nor personally premeditated.” We rejected this argument in Curry, and
reject it again here. Defendant also does not dispute that she also was convicted of
conspiracy to murder a fetus, but contends the trial court did not reject her petition on this
basis and we “should rule on the reasoning actually given by the trial court.” This is
incorrect—we are concerned with the correctness of the trial court’s determination, not
its reasoning. (People v. Orozco (2018) 24 Cal.App.5th 667, 672-673.) Thus, even if
section 1170.95 applied to attempted murder convictions and the trial court was required
to do more before denying the petition, we conclude this error also would have been
harmless.2
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
2 In light of our conclusion, we need not reach defendant’s arguments regarding the
interpretation of section 1170.95 and whether it applies to attempted murder because any
error was harmless beyond a reasonable doubt.

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