P. v. Britt

Filed 2/18/20 P. v. Britt CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DESHON BRITT,
Defendant and Appellant.
B297588
(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.
1 Statutory references are to the Penal Code.

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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.

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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 section
2 We described this form petition, which is available on the
Internet, in People v. Verdugo (Jan. 15, 2020, B296630)
___ Cal.App.5th ___, ___, fn. 2 [2020 WL 219302, p. 2, fn. 2].

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1170.95, 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-defendant
3 The court in People v. Lamoureux (2019) 42 Cal.App.5th
241 and People v. Superior Court (Gooden) (2019) 42 Cal.App.5th
270 held Senate Bill No. 1437 is not unconstitutional.

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Jones 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.)

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“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. Second, under the natural
and probable consequences doctrine, an aider and abettor is
guilty not only of the intended crime, but also “for any other
offense that was a ‘natural and probable consequence’ of the
crime aided and abetted.”’” (People v. Williams (2015) 61 Cal.4th
1244, 1268; see People v. Medrano (2019) 42 Cal.App.5th 1001,
1012-1013 [“Excepting the felony-murder rule, an accomplice may
be convicted of a crime under one of two alternative theories:
direct aiding and abetting liability and the natural and probable
consequences doctrine.”]; People v. Gastelum (2019) 40
Cal.App.5th 772, 777 [“‘[A]n aider and abettor’s liability for
criminal conduct is of two kinds. First, an aider and abettor with
the necessary mental state is guilty of the intended crime.
Second, under the natural and probable consequences doctrine,

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an aider and abettor is guilty not only of the intended crime, but
also “for any other offense that was a ‘natural and probable
consequence’ of the crime aided and abetted”’”].) Under the direct
theory, the prosecution “must show that the defendant acted
‘with knowledge of the criminal purpose of the perpetrator and
with an intent or purpose either of committing, or of encouraging
or facilitating commission of, the offense.’ [Citation.] ‘The aider
and abettor doctrine merely makes aiders and abettors liable for
their accomplices’ actions as well as their own. It obviates the
necessity to decide who was the aider and abettor and who the
direct perpetrator or to what extent each played which role.’”
(People v. Gomez (2018) 6 Cal.5th 243, 279; see People v.
Penunuri (2018) 5 Cal.5th 126, 146 [“‘“[A]n aider and abettor is a
person who, ‘acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the
commission of the crime.’”’”].)
B. Section 1170.95 Creates a Procedure for Certain
Defendants To File a Petition To Vacate Their
Sentences and for Resentencing
Senate Bill No. 1437 also added section 1170.95,
subdivision (a), which provides that “[a] person convicted of
felony murder or murder under a natural and probable
consequences theory 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 when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the

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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 or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (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.” (§ 1170.95, subd. (a); see People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 417 [§ 1170.95 provides “a procedure
by which those convicted of murder can seek retroactive relief if
the changes in the law would affect their previously sustained
convictions”]; People v. Martinez (2019) 31 Cal.App.5th 719, 722
[same].)
Section 1170.95, subdivision (b)(1), provides: “The petition
shall include all of the following: [¶] (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.” Section 1170.95, subdivision (b)(2),
states: “If any of the information required by this subdivision is
missing from the petition and cannot be readily ascertained by
the court, the court may deny the petition without prejudice to
the filing of another petition and advise the petitioner that the
matter cannot be considered without the missing information.”
Section 1170.95, subdivision (c), provides that, once the
petition is filed, “[t]he 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

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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. 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.”
Finally, section 1170.95, subdivision (d)(1), states: “Within
60 days after the order to show cause has issued, the court shall
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not been previously been [sic] sentenced, provided
that the new sentence, if any, is not greater than the initial
sentence. This deadline may be extended for good cause.”
C. The Superior Court Did Not Err in Determining
Whether Britt’s Petition Stated a Prima Facie Case
Without Appointing Counsel or Issuing an Order To
Show Cause
Britt contends his petition stated a prima facie case for
relief under section 1170.95, subdivision (a), by alleging he was
not the actual killer and by checking boxes on the pre-printed
form indicating that he was convicted “pursuant to the felony
murder or and [sic] the natural and probable consequences
doctrine” and 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.” According to Britt, these
allegations (and the documents he attached to his petition) were

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sufficient under section 1170.95 to state a prima facie case, which
in turn required the superior court to appoint counsel and issue
an order to show cause.4
Britt’s contentions lack merit. As this court recently
explained in People v. Verdugo (Jan. 15, 2020, B296630) ____
Cal.App.5th ___ [2020 WL 219302] (Verdugo), “the relevant
statutory language, viewed in context, makes plain the
Legislature’s intent to permit the sentencing court, before counsel
must be appointed, to examine readily available portions of the
record of conviction to determine whether a prima facie showing
has been made that the petitioner falls within the provisions of
section 1170.95—that is, a prima facie showing the petitioner
may be eligible for relief because he or she could not be convicted
of first or second degree murder following the changes made by
[Senate Bill No.] 1437 to the definition of murder in sections 188
and 189.” (Verdugo, at p. ___ [p. 1].) We further explained:
“[P]ursuant to section 1170.95, subdivision (b)(2), the sentencing
court may deny a petition without prejudice if any of the
information required by subdivision (b)(1) is missing from the
petition and cannot be readily ascertained by the court. This
initial review thus determines the facial sufficiency of the
petition. Subdivision (c) then prescribes two additional court
reviews before an order to show cause may issue, one made before
any briefing to determine whether the petitioner has made a
prima facie showing he or she falls within section 1170.95—that
is, that the petitioner may be eligible for relief—and a second
after briefing by both sides to determine whether the petitioner
4 We review questions of statutory construction de novo.
(People v. Tran (2015) 61 Cal.4th 1160, 1166; Verdugo, supra, ___
Cal.App.5th at p. ___, fn. 8 [p. 5, fn. 8].)

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has made a prima facie showing he or she is entitled to relief.”
(Verdugo, at p. ___ [p. 4]; see People v. Lewis (Jan. 6, 2020,
B295998) ___ Cal.App.5th __, ___ [2020 WL 57841, p. 5].)
Therefore, the superior court did not err in determining whether
Britt stated an initial prima facie case for relief under section
1170.95 without appointing counsel or issuing an order to show
cause. (See Lewis, at p. ____ [p. 6] [“the trial court’s duty to
appoint counsel does not arise unless and until the court makes
the threshold determination that petitioner ‘falls within the
provisions’ of the statute,” and because “the trial court denied
defendant’s petition based upon his failure to make a prima facie
showing that the statute applies to his murder conviction,
defendant was not entitled to the appointment of counsel”].)
D. The Superior Court Properly Considered This Court’s
Prior Opinion in Ruling Britt Failed To State a
Prima Facie Case
In this court’s opinion affirming Britt’s conviction, we
concluded there was substantial evidence Britt aided and abetted
Jones in the murder and shared Jones’s intent. We cited
evidence that Britt initiated the confrontation that led to
Patterson’s murder by making a gang challenge and that Britt
summoned his fellow gang member to shoot Patterson. We held a
jury reasonably could have concluded Britt knew Jones was
armed with the gun because they were in the same criminal
street gang and spent time together on a regular basis, including
prior to the shooting. In denying Britt’s petition under section
1170.95, the trial court relied on the facts and conclusions in our
prior opinion.

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Britt argues the superior court erred “by ignoring the
requirements of § 1170.95 that required appointment of counsel
. . . and by stepping outside the four corners of [the] petition to
conduct an unauthorized investigation.” Britt also argues the
court “erred by relying on this [court’s] prior opinion to assess
whether a prima facie showing was made in the petition.”
According to Britt, the superior court “not only erred at the initial
stage by going beyond its function to determine if the three
required allegations were set forth in the petition, it further erred
by engaging in an analysis of the evidence as outlined in the
Court of Appeal opinion and making credibility determinations
without either party being afforded an opportunity to participate
in a hearing and present additional evidence.”
This court rejected similar if not the same arguments in
Verdugo, which held the superior court, in evaluating a petition
under section 1170.95, should determine from all readily
ascertainable information “whether there is a prima facie
showing the petitioner falls within the provisions of the statute.”
(Verdugo, supra, ___ Cal.App.5th at p. ___ [p. 6].) We stated:
“Although subdivision (c) does not define the process by which the
court is to make this threshold determination, subdivisions (a)
and (b) of section 1170.95 provide a clear indication of the
Legislature’s intent. . . . [S]ubdivision (b)(2) directs the court in
considering the facial sufficiency of the petition to access readily
ascertainable information. The same material that may be
evaluated under subdivision (b)(2)—that is, documents in the
court file or otherwise part of the record of conviction that are
readily ascertainable—should similarly be available to the court
in connection with the first prima facie determination required by
subdivision (c).” (Verdugo, at p. ___ [p. 5].) We further held that

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the superior court should examine not only “the complaint,
information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea; and
the abstract of judgment,” but also any “court of appeal opinion,
whether or not published, [because it] is part of the appellant’s
record of conviction.” (Ibid.; see People v. Lewis, supra, __
Cal.App.5th at p. ___ [p. 4] [“Allowing the trial court to consider
its file and the record of conviction is also sound policy.”];
Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2013)
¶ 23:51(H)(1), pp. 23–150 to 23–151 [“It would be a gross misuse
of judicial resources to require the issuance of an order to show
cause or even appointment of counsel based solely on the
allegations of the petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief.”].)
Britt’s petition attached the felony complaint, the
information, two jury instructions, a motion filed by the
prosecution, and portions of the parties’ closing arguments.
Neither these documents nor this court’s prior opinion refers to
the felony murder rule or aiding and abetting under a natural
and probable consequences theory. To the contrary, this court’s
prior opinion shows that Britt was convicted of murder as a direct
aider and abettor who shared the shooter’s intent to kill, not
under a natural and probable consequences theory. (See People
v. Cornelius (Jan. 7, 2020, B296605) ___ Cal.App.5th ___, ___
[2020 WL 63835, p. 2] [petitioner under section 1170.95 was not
entitled to appointed counsel where the petitioner “was ineligible
for relief because he was not convicted of felony murder or
murder as an aider or abettor under a natural and probable
consequences theory”].) Indeed, although the superior court did

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not have a complete set of jury instructions from Britt’s trial
when the court denied Britt’s petition under section 1170.95, the
record in the prior appeal shows the trial court did not instruct
the jury on the natural and probable consequences doctrine
(CALCRIM No. 402) or the felony murder rule (CALCRIM No.
540A). Therefore, the superior court did not err in ruling Britt
did not state a prima facie case for relief. (See People v. Lewis,
supra, ___ Cal.App.5th at p. ___ [p. 4] [“‘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’”].)
DISPOSITION
The order denying the petition is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.

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