People v. Brown CA1/4

Filed 11/4/20 P. v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A157170
v.
GREGORY BROWN, (City & County of San Francisco
Super. Ct. No. SCN159271)
Defendant and Appellant.

Gregory Brown is serving a sentence of 56 years to life in prison as a
result of his 1995 convictions for conspiracy to commit murder and attempted
murder. In 2019, Brown filed a petition for resentencing under Penal Code
section 1170.95 (section 1170.95; subsequent statutory references are to this
code). The trial court denied Brown’s petition, finding he was ineligible for
relief. We affirm.
BACKGROUND
I. The 1995 Convictions
The facts underlying Brown’s 1995 convictions are summarized in
People v. Brown, et al. (Jan. 28, 1998, A072126) [nonpub. opn.] (Brown I).1
Brown and two other individuals were tried on charges they conspired and

This court has granted Brown’s request to take judicial notice of the
1

appellate record in Brown I.

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attempted to murder Robin Williams, an ostensible long-time friend of
Brown’s. Brown’s codefendants were his apartment mate, Wanda Fain, and
Fain’s close friend, Joseph Diggs.
Trial evidence showed that, on an early morning in January 1995,
Brown was arrested at his apartment following a police search and seizure of
drugs and a weapon. (Brown I, at p. 2.) Williams, who frequently visited
Brown at his apartment, was present when Brown was arrested. She gave
police a statement confirming that she had seen Brown with the gun and
drugs. Several days later, Williams was visiting a neighbor when Brown and
Fain showed up there. (Brown I, at p. 3.) Brown waited outside while Fain
came into the house, handed Williams an envelope and told her Brown
wanted to talk. The envelope contained an explicit picture of Williams and a
threatening note. Williams was too afraid to talk to Brown that day, but
about a week and a half later, they had a conversation at Brown’s apartment.
Brown told Williams that she should “ ‘stay out of sight’ ” and he would take
care of her as long as she did not testify against him. (Ibid.) After this
conversation, Williams felt safe and resumed visiting Brown.
On February 7, 1995, which was three days before Brown’s preliminary
hearing, Williams went to Brown’s apartment in the afternoon. (Brown I, at
p. 3.) Brown was out but Fain and Diggs were there, and Williams consumed
“ ‘a lot’ ” of cocaine, which Fain supplied. Williams left for a while and when
she returned, Brown and Fain were having a private conversation. So
Williams left again, returning about five minutes later. Then Fain asked if
Williams wanted to go to a house where people engaged in prostitution.
Williams agreed to go because she wanted more cocaine. (Ibid.) Williams,
Fain and Diggs left the apartment at around 7:30 p.m., traveling by bus and
on foot. At one point, they walked down Jerrold Street, the women talking

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and laughing together while Diggs walked behind them. (Id. at p. 4.) At
approximately 8:30 p.m. that evening, Williams was found lying unconscious
on Jerrold Street. She had been shot in the back of the head with a semi-
automatic pistol. Williams survived but did not remember being shot. She
told police that the last people she remembered being with were Fain and
Diggs and she suspected Brown may have been involved. (Ibid.)
The jury returned verdicts convicting Brown, Fain and Diggs of
conspiracy to commit first degree murder. (§§ 182 & 187.) (Brown I, at p. 1.)
All three defendants were also convicted of attempted premeditated murder.
(§§ 187 & 189/664.)2 As to Brown, the jury found true an allegation that one
of the principals was armed with a firearm during the commission of these
crimes. (§ 12022.) In a separate proceeding, the court found Brown suffered
a prior serious felony conviction, which also constituted a strike. (§ 667.)
II. Senate Bill 1437
In 2019, the California Legislature modified the law relating to
accomplice liability for murder. “Senate Bill 1437, which became effective
January 1, 2019, was enacted based on the Legislature’s express finding that
‘[i]t is necessary 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.) It did so by amending section 188, which defines malice
aforethought, and section 189, which addresses felony-murder liability.

2 Fain and Diggs were also convicted of assault with a firearm (§ 245)
and Diggs incurred an additional conviction for possession of a firearm by a
felon (§ 12021).

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(Stats. 2018, ch. 1015, §§ 2, 3.)” (People v. Alaybue (2020) 51 Cal.App.5th 207,
212–213 (Alaybue).)
Because the felony-murder doctrine is not relevant to this appeal, we
focus our discussion on the amendment to the definition of malice
aforethought. Murder is defined in section 187 as “the unlawful killing of a
human being . . . with malice aforethought.” Malice is defined in section 188,
which states in part: “(a) For purposes of Section 187, malice may be express
or implied. [¶] (1) Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice
is implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant
heart.”
Senate Bill 1437 added a new provision to section 188, subdivision
(a)(3) (section 188(a)(3)). This provision states: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal
in a crime shall act with malice aforethought. Malice shall not be imputed to
a person based solely on his or her participation in a crime.” When the
Legislature enacted section 188(a)(3), it “stated in the uncodified statutory
findings and declarations that it intended that ‘[a] person’s culpability for
murder must be premised upon that person’s own actions and subjective
mens rea.’ (Stats. 2018, ch. 1015, § 1.)” (Alaybue, supra, 51 Cal.App.5th at
p. 213.)
Senate Bill 1437 also added section 1170.95, the provision Brown seeks
to invoke in the present case. (See Alaybue, supra, 51 Cal.App.5th at p. 213.)
Section 1170.95 provides, in part:
“A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that

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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 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).)
Under this resentencing scheme, if the petitioner is found eligible for
relief, his or her conviction is vacated and the petitioner is resentenced “on
any remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) If “murder was
charged generically, and the target offense was not charged,” then the
petitioner’s murder conviction must be “redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subd. (e).)
III. Brown’s Section 1170.95 Petition
On February 26, 2019, Brown filed a petition under section 1170.95
without the assistance of counsel, which was captioned as a petition to vacate
his “MURDER” conviction. In the petition itself, Brown acknowledged that
he was not convicted of murder, but of conspiracy to commit first degree
murder and attempted murder. Brown claimed his conspiracy conviction had
to be vacated under section 1170.95 because (1) he was not an active
participant in the shooting of Williams and therefore (2) under the current

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law, he could not be convicted based on a theory of felony murder or the
natural-and-probable consequences doctrine.
On March 6, 2019, the People filed an “Initial Response” to Brown’s
petition. The People argued that Brown was not entitled to relief under
section 1170.95 because he was not convicted of murder and that section
1170.95 does not apply to Brown’s convictions for conspiracy to murder and
attempted murder.
On March 8, 2019, the trial court held a hearing to determine whether
Brown’s petition stated a prima facie case for relief under section 1170.95. At
the hearing, Brown was represented by appointed counsel, both parties
submitted the matter without presenting an oral argument, and the court
stated that it had considered all papers filed by both sides. The court then
found that section 1170.95 does not apply to a conviction for conspiracy to
commit murder. The court also noted that “it does not look like the felony
murder rule was involved or natural probable consequences rule was involved
in Mr. Brown’s conviction.” Accordingly, the court denied Brown’s petition on
the ground that he did not state a prima facie case for relief under section
1170.95.
DISCUSSION
Brown contends the trial court erred by denying his petition because
(1) section 1170.95 applies to a defendant who was convicted of attempted
murder and/or conspiracy to commit murder based on the natural-and-
probable consequences doctrine, and (2) Brown’s 1995 convictions for these
crimes may have been based on the natural-and-probable consequences
doctrine. Putting aside the fact that Brown’s petition did not seek to vacate
his attempted murder conviction, we reject both prongs of this appellate
argument.

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I. Section 1170.95 Applies to Murder Convictions
First, we conclude that Brown is ineligible for relief under section
1170.95 because he was convicted, not of committing murder, but of
attempting and conspiring to do so. The language of section 1170.95 applies
only to convictions for “felony murder or murder under a natural and
probable consequences theory.” (§ 1170.95, subd. (a).) Section 1170.95 does
not, on its face, reach the crimes of attempted murder or conspiracy to
commit murder.
Brown argues that section 1170.95 must be read as applying to
attempted murder in order to effectuate legislative intent. This argument
has been repeatedly rejected by the appellate courts. To the extent Brown
claims otherwise, he conflates two distinct legal issues.
There is a split of authority as to whether Senate Bill 1437 abrogates
the natural-and-probable consequences doctrine as a theory of establishing
accomplice liability for attempted murder. (Compare People v. Lopez (2019)
38 Cal.App.5th 1087, 1103–1107 (Lopez), review granted Nov. 13, 2019,
S258175, with People v. Larios (2019) 42 Cal.App.5th 956, 969–970 (Larios),
review granted Feb. 26, 2020, S259983.)
Courts following Lopez conclude that the Legislature did not intend for
Senate Bill 1437 to affect convictions for attempted murder, as evidenced by
unambiguous language in section 188(a)(3) and the senate bill as well as the
pertinent legislative history. (Lopez, supra, 38 Cal.App.5th at pp. 1104–1105;
People v. Munoz (2019) 39 Cal.App.5th 738, 753–760 (Munoz), review granted
Nov. 26, 2019, S258234; People v. Dennis (2020) 47 Cal.App.5th 838, 844–847
(Dennis), review granted July 29, 2020, S262184; see also Alaybue, supra, 51
Cal.App.5th at p. 222.)

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 A different view, expressed by the Fifth District Court of Appeal,
concludes that the amended definition of malice in section 188(a)(3) must be
read to apply to the crime of attempted murder because malice aforethought
is an element of both murder and attempted murder. (Larios, supra, 42
Cal.App.5th at p. 964–968; People v. Medrano (2019) 42 Cal.App.5th 1001,
1013–1016 (Medrano), review granted March 11, 2020, S259948; People v.
Sanchez (2020) 46 Cal.App.5th 637, 642–644 (Sanchez), review granted June
10, 2020, S261768.) According to these cases, amended section 188 is an
ameliorative change to the criminal law applicable to defendants whose
attempted murder convictions are not yet final. (Ibid.)
Notwithstanding their conflicting holdings regarding the application of
Senate Bill 1437, both lines of authority agree that section 1170.95’s
resentencing procedure is not available to people previously convicted of
attempted murder whose convictions are now final. (Lopez, supra, 38
Cal.App.5th at pp. 1104–1105; Munoz, supra, 39 Cal.App.5th at p.754;
Dennis, supra, 47 Cal.App.5th at p. 845–846; Alaybue, supra, 51 Cal.App.5th
at p. 223; Larios, supra, 42 Cal.App.5th at pp. 968–970; Medrano, 42
Cal.App.5th at pp. 1016–1018.) Indeed, the Lopez court found that the
language of section 1170.95 “underscored” the Legislature’s “intent to exclude
attempted murder from the ambit of the Senate Bill 1437 reform,” as section
1170.95 refers repeatedly to a petitioner’s “ ‘murder conviction.’ ” (Lopez, at
pp. 1104–1105.) Despite the Fifth District’s different interpretation of other
aspects of Senate Bill 1437, its Larios line of authority agrees with Lopez that
unambiguous language in section 1170.95, subdivision (a) limits application
of this resentencing statute to convictions for “ ‘felony murder or murder
under a natural and probable consequences theory.’ ” (Larios, at p. 969
[quoting § 1170.95, subd. (a)].) Larios also quotes with approval the Lopez

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court’s explanation of “ ‘sound policy reasons’ ” that may have caused the
Legislature to limit section 1170.95 only to murder cases. (Larios, at p. 969.)
Brown urges us to depart from this general consensus. He contends
that the Fifth District cases are correct to the extent they hold that the
definition of malice aforethought in amended section 188(a)(3) necessarily
applies to attempted murder and, by extension, to conspiracy to murder.
And, according to Brown, the same analysis of Senate Bill 1437 that allegedly
compels this conclusion also requires that section 1170.95 be construed to
apply to people serving a prison sentence for attempted murder or for
conspiracy to commit murder. We are not persuaded.
As a preliminary matter, we disagree with Brown that attempted
murder and conspiracy to murder are indistinguishable for purposes of
implementing Senate Bill 1437. The natural-and-probable consequences
doctrine operates differently in conspiracy cases than in attempted murder
cases. When a defendant is charged with conspiracy to commit murder, the
target offense of the conspiracy is murder and, therefore, proof of an intent to
kill is required to support a conviction for this crime. (People v. Swain (1996)
12 Cal.4th 593, 599–601.) Only where the target offense is something other
than murder is the natural-and-probable consequences doctrine implicated.
A conspirator whose target crime is, for example, robbery or assault, may be
convicted of murder based on a natural-and-probable consequences theory
because he or she “is criminally responsible for the acts of fellow conspirators
committed in furtherance of, and which follow as a natural and probable
consequence of, the conspiracy.” (People v. Guillen (2014) 227 Cal.App.4th
934, 998.) However, in that situation an actual murder occurs and the
amended definition of malice in section 188(a)(3) squarely applies.

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 In any event, the question presented by this appeal is how to apply
section 1170.95. The consensus view that section 1170.95 is limited to
discrete categories of murder convictions and that it excludes all other
convictions is consistent with the statutory language and is supported by
legitimate reasons for limiting this relief to certain murders, rather than
including attempt crimes that are not as severely punished. (See Alaybue,
supra, 51 Cal.App.5th at p. 225.) To the extent the law is less established
with regard to a conviction for conspiracy to commit murder, we need not
come to rest on this point since the facts in this case establish that Brown
was not convicted on a natural-and-probable consequences theory, the subject
to which we now turn.
II. Brown Was Not Convicted Under the Natural-And-Probable
Consequences Doctrine
Even if section 1170.95 could apply to Brown’s crimes, the record does
not support Brown’s factual claim that his convictions for conspiracy and
attempted murder may have been based on the natural-and-probable
consequences doctrine.
“[C]onspiracy is a specific intent crime requiring an intent to agree or
conspire, and a further intent to commit the target crime, [i.e.], the object of
the conspiracy.” (People v. Swain, supra, 12 Cal.4th at p. 602.) Here, Brown
was charged with and convicted of conspiracy to commit first degree murder.
On the verdict forms, the jury made an express finding that Brown conspired
to commit murder and that his target offense was murder in the first degree.
They specifically found, as one of the overt acts in furtherance of this
conspiracy, that between January 7 and February 7, 1995, Brown encouraged
Fain and Diggs to murder Williams. Thus, the jury necessarily found that
Brown himself acted with malice aforethought.

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 Brown contends that the jury may have relied on the natural-and-
probable consequences doctrine to impute to him the malice of one of Brown’s
coconspirators. As evidence of this, Brown relies on the fact that the jury was
instructed with CALJIC No. 6.11, which states that a member of a conspiracy
is guilty of not just the crime that the conspirators have agreed to commit
“but is also liable for the natural and probable consequences of any crime or
act of a coconspirator to further the object of the conspiracy, even though
such crime or act was not intended as a part of the original plan . . .” In
presenting this argument, Brown ignores that the target offense of his
conspiracy was first degree murder. Brown was not accused of having
conspired to commit some lesser offense and then convicted of murder based
on his status as a member of this lesser conspiracy. Thus, his conviction for
conspiracy to murder could not have been based on the natural-and-probable
consequences doctrine. (See e.g. People v. Beck and Cruz (2019) 8 Cal.5th
548, 645.)
Nor do we find any indication that Brown’s attempted murder
conviction was based on a natural-and-probable consequences theory of
imputed mens rea. The jury instructions pertaining specifically to the
attempted murder charge made no reference to this doctrine. Nor was Brown
accused of attempting or intending to commit any crime other than murder.
(Compare e.g. People v. Favor (2012) 54 Cal.4th 868 [attempted murders were
natural and probable consequence of target robbery offenses].) Nevertheless,
Brown argues the jury may have imputed a codefendant’s malice onto him
because he was prosecuted for attempted murder under an aider and abettor
theory. This argument is unsound.
As the jury was instructed, attempted murder is a specific intent crime;
it requires the specific intent to kill and the commission of a direct but

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ineffectual act toward that end. (See People v. Lee (2003) 31 Cal.4th 613,
623.) The jury was also instructed that a person who aids and abets the
commission of a crime acts “with knowledge of the unlawful purpose of the
perpetrator and . . . . [¶] . . . with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime.” Thus, if Brown’s
attempted murder conviction was based on an aider and abettor theory, the
jury must have found that he had the intent to kill. (See Lee, at p. 624.)
Brown argues the jury may have been confused or misled to believe
that a codefendant’s malice could be imputed to him because the jury was
instructed with CALJIC former No. 3.00, which has been disapproved. The
version of CALJIC former No. 3.00 that was used at Brown’s trial states that
persons “who are regarded as principals in the crime,” and are considered
“equally guilty thereof,” include those who “directly and actively commit or
attempt to commit the act constituting the crime” and those who “aid and
abet the commission or attempted commission of the crime.” Brown posits
that CALJIC former No. 3.00 is confusing and that it may have misled the
jury to think that an aider and abettor and a direct perpetrator are always
“equally guilty.”
Our State Supreme Court has found that CALJIC former No. 3.00 is a
correct statement of the law, but the instruction “could be misleading in a
case in which the principals might be guilty of different crimes and the jury
believes the instruction prevents such a verdict.” (People v. Johnson (2016)
62 Cal.4th 600, 640.) For example, in People v. Nero (2010) 181 Cal.App.4th
504, 518, the jury in a murder case involving multiple defendants asked
whether it could find an aider and abettor defendant guilty of a greater or
lesser degree of murder than her codefendant who was the actual killer. The
trial court’s only response was to re-read CALJIC former No. 3.00, which

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could have misled the jury to conclude that it could not find the aider and
abettor defendant guilty of a lesser degree of murder than her codefendant.
(Ibid.; See Johnson, at p. 641.)
Here, the record does not support Brown’s contention that his jury may
have been misled by CALJIC former No. 3.00. Brown cites no evidence
suggesting that his mental state was less culpable than that of his
codefendants. Moreover, in convicting Brown of conspiracy to murder, the
jury made an express finding that Brown “did encourage [Fain and Diggs] to
murder Robin Williams.” Ignoring these facts, Brown intimates that this
case is like People v. Nero, supra, 181 Cal.App.4th 504 because the jury asked
a question during deliberations, which led the court to re-read CALJIC
former No. 3.00. We are not persuaded by this argument, which fails to
consider the substance of the jury’s question. The jury asked whether a
conspirator had to be present at the scene of the crime to be convicted of
attempted murder. This question had nothing to do with the mental
culpability of an aider and abettor. Instead, the jury was grappling with
evidence suggesting that Brown was not present when Williams was shot. It
was this circumstance that explains why Brown was prosecuted as an aider
and abettor. The prosecution theory at trial was that Brown had the motive
and intent to kill Williams, and the jury specifically found that he encouraged
Fain and Diggs to commit the murder.
Finally, Brown contends that this court’s 1998 opinion in Brown I
demonstrates that the natural-and-probable consequences doctrine was
involved in his convictions. Brown I addressed several issues specific to each
codefendant and found, among other things, that substantial evidence
supports Brown’s convictions. The analysis of Brown’s attempted murder
conviction includes a general discussion of principles governing aider and

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abettor liability, but it does not establish that the natural-and-probable
consequences doctrine played a role in Brown’s convictions. Indeed, Brown I
concludes its recitation of the substantial evidence supporting Brown’s
conviction for attempted murder with the observation that the jury could
reasonably have inferred Brown “advised or encouraged the attempt to
murder Williams,” which would have made him a direct aider and abettor of
this crime.
DISPOSITION
The judgment is affirmed.

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 _________________________
TUCHER, J.

WE CONCUR:

_________________________
POLLAK, P. J.

_________________________
STREETER, J.

People v. Brown (A157170)

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