People v. Brightmon CA4/2

Filed 7/19/21 P. v. Brightmon CA4/2
See dissenting opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074478

v. (Super.Ct.No. CR66248)

TODD DeWAYNE BRIGHTMON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed as modified.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin

Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Todd DeWayne Brightmon, filed a petition for

resentencing pursuant to Penal Code section 1170.95,1 which the court dismissed. On

appeal, defendant contends the court erred in summarily dismissing his petition. We

affirm with modifications.

I. PROCEDURAL BACKGROUND2

A jury found defendant guilty of first degree murder (§ 187, subd. (a), count 1)

and found true multiple felony-murder special circumstances (§ 190.2, subd. (a)(17)).

(Brightmon, supra, E027391.) The jury additionally found true allegations that a

principal was armed with a firearm in the commission of the murder. (§ 12022,

subd. (a)(1).) Allegations that defendant had suffered four prior prison terms (§ 667.5,

subd. (b)) and a prior strike conviction (§§ 667, subds. (c), (e), 1170.12, subd. (c)) were

also found true. The court sentenced defendant to life imprisonment without the

possibility of parole, plus five years. Defendant appealed the judgment, which this court

affirmed by opinion filed September, 20, 2001.3 (Brightmon, supra, E027391.)

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 On our own motion, we take judicial notice of the record in defendant’s appeal
from the original judgment, on which the People below relied, and both parties on appeal
rely on for their recitation of the facts. (People v. Brightmon (Sept. 20, 2001, E027391)
[nonpub. opn.] (Brightmon); see Evid. Code, § 459.) Nonetheless, we find the facts
unnecessary to our resolution of the issues on appeal.

3 This court modified the judgment only insofar as striking a parole revocation
fine. (Brightmon, supra, E027391.)

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 On September 4, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95.4 The People filed a response, in which they argued, in part, that the

petition should be denied because the jury had found true “special circumstance findings

that [required] [it] find [defendant] intended to kill or was a major participant [acting]

with reckless indifference” to human life. Defense counsel filed a reply contending

defendant had “made a prima facie showing that he[] is entitled to relief. It is necessary

to conduct further investigation to determine what role, if any, petitioner played in the

offense and for the court to examine if [defendant] could be convicted under the law as

amended . . . .”

At the hearing on the petition on December 13, 2019, the People moved to dismiss

the petition because “there was a felony-murder special circumstance found true.” The

People also noted, in reliance upon this court’s opinion from defendant’s appeal from the

judgment, that defendant had “testified for a codefendant and admitted that he shot the

victim. So he’s the actual killer based on his own testimony.” The court asked defense

counsel if she took issue with the People’s representation that defendant had testified that

4 Defendant filed a form petition on which he did not check the boxes indicating
that he “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
that he “was not a major participant in the felony or . . . did not act with reckless
indifference to human life during the course of the crime or felony.”

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he was the actual shooter. Defense counsel responded that she did not. The court

dismissed the petition over defense counsel’s objection.5

II. DISCUSSION

Defendant contends the trial court erred in dismissing his petition based on this

court’s recitation of defendant’s testimony at trial, recounted in this court’s opinion from

the judgment.6 (Brightmon, supra, E027391.) He maintains that the error was not

harmless because the jury rendered the special circumstance findings prior to the

decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)

63 Cal.4th 522 (Clark), which require a “much more rigorous analysis” for determining

when a defendant acted with reckless disregard for human life.

5 The reporter’s transcript reflects that the trial court dismissed the petition;
however, the minute order indicates it denied the petition. We shall direct the court to
correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order
“‘does not control if different from the trial court’s oral judgment and may not add to or
modify the judgment it purports to digest or summarize.’”].) The reviewing court has the
authority to correct clerical errors in the minute order. (People v. Contreras (2009)
177 Cal.App.4th 1296, 1300, fn. 3.)

6 As defendant notes, the issue of whether superior courts can “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,” is currently pending before the
California Supreme Court. (People v. Lewis (2020) ___ Cal.5th ___ [2020 Cal. Lexis
1946].) Nonetheless, as it now stands, when ruling on a section 1170.95 petition, the
court may rely upon the record of conviction, including any prior appellate
opinion. (People v. Offley (2020) 48 Cal.App.5th 588, 596-598; People v. Torres (2020)
46 Cal.App.5th 1168, 1173, 1177-1178, review granted June 24, 2020, S262011; People
v. Drayton (2020) 47 Cal.App.5th 965, 980.)

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 Preliminarily, though not raised by either party on appeal or below, we note that

defendant failed to allege a prima facie case by not checking the boxes on his form

petition reflecting that he did not intend to kill and that he was not a major participant

acting with reckless indifference to human life during the course of the crime or felony.7

This, in and of itself, would have rendered defendant ineligible for relief as a matter of

law.8 Nonetheless, although we agree that the court erred by dismissing the petition

based on a determination that defendant was the actual killer,9 that decision was harmless

because the jury had found true robbery-murder special circumstances, which defendant

has failed to challenge by the appropriate vehicle, a petition for writ of habeas corpus.

7 “‘[T]he prima facie showing the [petitioner] must make is that he [or she] did
not, in fact, act [as required] or harbor the mental state required . . . for a murder
conviction under current law.’” (People v. Rivera (2021) 62 Cal.App.5th 217, 230.)
“Section 189, subdivision (e), as amended, provides that a participant in a specified
felony is liable for murder for a death during the commission of the offense . . . 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.’” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 248.)

8 “‘“[W]e will affirm a judgment correct on any legal basis, even if that basis was
not invoked by the trial court. [Citation.] There can be no prejudicial error from
erroneous logic or reasoning if the decision itself is correct.”’” (Anderson v. Davidson
(2019) 32 Cal.App.5th 136, 144.)

9 As defendant accurately points out, although defendant testified he had
possession of the gun when it “went off,” killing the victim, he was not convicted as the
actual killer; instead, a jury found defendant’s codefendant guilty as the actual killer of
the victim, for which the court sentenced him to death. (Brightmon, supra, E027391; see
People v. Johnson (2015) 61 Cal.4th 734, 740.)

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 A. Legal Background.

“In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . . ,

which abolished the natural and probable consequences doctrine . . . . Under section 189,

subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony

murder only if he: actually killed the victim; directly aided and abetted or solicited the

killing, or otherwise acted with the intent to kill; or ‘was a major participant in the

underlying felony and acted with reckless indifference to human life.’ [Citations.] The

legislation also enacted section 1170.95 [(Stats. 2018, ch. 1015, § 4)], which established a

procedure for vacating murder convictions for defendants who would no longer be guilty

of murder because of the new law and resentencing those who were so convicted.”

(People v. Murillo (2020) 54 Cal.App.5th 160, 166 (Murillo), review granted Nov. 18,

2020, S264978.)

“Section 1170.95 allows a defendant serving a sentence for felony murder who

would not be guilty of murder because of the new law to petition for resentencing. The

statute requires a defendant to submit a petition affirming that he meets three criteria of

eligibility: (1) He was charged with murder in a manner ‘that allowed the prosecution to

proceed under a theory of felony murder or murder under the natural and probable

consequences doctrine’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first

degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of

first or second degree murder because of changes to Section[s] 188 or 189 made

effective’ as a part of Senate Bill No. 1437 [citation]. As described above, those changes

eliminated the natural and probable consequences doctrine as a basis for murder liability,

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and added a requirement for felony murder that a defendant must have been at least a

major participant in the underlying felony and have acted with reckless indifference to

human life.” (Murillo, supra, 54 Cal.App.5th at p. 166.)

Section 1170.95, subdivision (b), states that the petition must include: a

declaration from the petitioner that he or she is eligible for relief under the statute, the

trial court’s case number and year of conviction, and a statement as to whether the

petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the

required 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.” (Id., at

subd. (b)(2).)

Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a

complete petition has been filed: “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. . . . 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.”

If the court issues an order to show cause, it must hold a hearing to determine whether to

vacate the murder conviction. (Id., at subd. (d).) At that hearing, the prosecution has the

burden of proving beyond a reasonable doubt that the petitioner is ineligible for

resentencing. (Id., at subd. (d)(3).) The prosecutor and petitioner “may rely on the

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record of conviction or offer new or additional evidence to meet their respective

burdens.” (Ibid.)

In short, a section 1170.95 petitioner must first make a prima facie case for relief

and, if they are able to do so, the trial court must issue an order to show cause and hold a

hearing to determine whether to vacate the murder conviction and recall the sentence.

(See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,

2020, S260493.) “‘A prima facie showing is one that is sufficient to support the position

of the party in question.’” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review

granted Mar. 18, 2020, S260598, quoting Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 851.)

In this case, the trial court dismissed defendant’s petition at the first stage of prima

facie review under section 1170.95, subdivision (c). “A denial at that stage is appropriate

only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as

a matter of law.’ [Citations.] This is a purely legal conclusion, which we review

de novo.” (Murillo, supra, 54 Cal.App.5th at p. 167; accord, People v. Galvan (2020)

52 Cal.App.5th 1134, 1137, 1142 (Galvan), review granted Oct. 14, 2020, S264284.)

“To be eligible for resentencing under section 1170.95, [a defendant] must show

that he ‘could not be convicted of first or second degree murder because of changes to

Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437. [Citation.]

Under the newly amended version of section 189, a defendant can be convicted of felony

murder only if he was the actual killer; acted with the intent to kill in aiding, abetting,

counseling, commanding, inducing, soliciting, requesting, or assisting in first degree

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murder; or ‘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.’” (Murillo,

supra, 54 Cal.App.5th at p. 167.)

A jury’s special circumstance finding shows as a matter of law that the defendant

could still be convicted of murder under the new definition; thus, preventing the

defendant from making a prima facie case that he is eligible for resentencing under

section 1170.95. (Murillo, supra, 54 Cal.App.5th at p. 167; Galvan, supra,

52 Cal.App.5th at p. 1141 [“Because a defendant with a felony-murder special

circumstance could still be convicted of murder, he is ineligible as a matter of law to have

his murder conviction vacated.”]; People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez),

review granted Oct. 14, 2020, S264033; accord, People v. Jones (2020) 56 Cal.App.5th

474, 482 (Jones), review granted Jan. 27, 2021, S265854 [“A defendant with a special

circumstance finding under section 190.2, subdivision (d) is not eligible for relief under

section 1170.95 as a matter of law.”]; contra, People v. Torres (2020) 46 Cal.App.5th

1168, 1173 (Torres), review granted June 24, 2020, S262011 [trial court’s exclusive use

of jury’s special circumstance findings alone was not sufficient to preclude § 1170.95];

accord, People v. Smith (2020) 49 Cal.App.5th 85, 94 (Smith), review granted July 22,

2020, S262835 [some special circumstance findings will not preclude § 1170.95

eligibility as a matter of law]; People v. York (2020) 54 Cal.App.5th 250, 258 (York),

review granted Nov. 18, 2020, S264954 [“[A] pre-Banks and Clark special circumstance

finding cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law

. . . .”]; People v. Secrease (2021) 63 Cal.App.5th 231, 254 (Secrease) [“[A] murder

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defendant facing a pre-Banks and Clark felony-murder special circumstance may

properly allege that the murder conviction is no longer valid ‘because of changes to

Section 188 or 189 made effective January 1, 2019.’”].)

B. Robbery-murder Special Circumstance Findings.

Here, the jury found defendant guilty of first degree murder with multiple robbery

-murder special circumstances. (Brightmon, supra, E027391.) As this court held in its

prior opinion, evidence relating to another murder charged against defendant’s

codefendant was relevant to prove defendant acted with reckless indifference to human

life in the murder charged against defendant, which was required under section 190.2 in

order for the jury to find the robbery-murder special circumstance allegations true.

(Ibid.)

The jury’s findings, even under current law, would render defendant ineligible for

relief pursuant to section 1170.95. (§ 189, subd. (e)(2), (e)(3); People v. Verdugo, supra,

44 Cal.App.5th at p. 326; Murillo, supra, 54 Cal.App.5th at p. 167 [true finding on

burglary special murder circumstance rendered defendant ineligible for § 1170.95 relief];

accord, Galvan, supra, 52 Cal.App.5th at pp. 1140-1141 [any murder special

circumstance finding under § 190.2, subd. (a)(17), renders defendant ineligible for

§ 1170.95 relief as a matter of law]; Jones, supra, 56 Cal.App.5th at p. 482 [“A defendant

with a special circumstance finding under section 190.2, subdivision (d) is not eligible for

relief under section 1170.95 as a matter of law.”]; cf. Gomez, supra, 52 Cal.App.5th at

p. 15 [the jury’s true findings on robbery and kidnapping special circumstance allegations

rendered defendant ineligible for § 1170.95 relief as a matter of law]; contra, Torres,

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supra, 46 Cal.App.5th at p. 1173; accord, Smith, supra, 49 Cal.App.5th at p. 94; accord,

York, supra, 54 Cal.App.5th at p. 258; Secrease, supra, 63 Cal.App.5th at p. 254.) We

agree with Gomez, Galvan, Murillo, and Jones and hold that the jury’s robbery-murder

special circumstance findings in this case necessarily established, at minimum, as a

matter of law, that defendant was a major participant who acted with reckless

indifference to human life. Thus, the trial court properly dismissed defendant’s petition.

C. The Proper Vehicle to Challenge a Felony-murder Special Circumstance

Finding is a Petition for Writ of Habeas Corpus.

Despite the jury’s robbery-murder special circumstance findings, defendant

contends that the evidence is insufficient to support a finding that he was a major

participant in the robbery, who acted with reckless indifference to human life under

Banks and Clark, which were decided subsequent to the judgment in his case. He

therefore asserts he may maintain a challenge to the sufficiency of the evidence to

support those findings in his section 1170.95 proceedings. We disagree.

A number of cases have found that “the proper remedy for challenging a special

circumstance finding is by a petition for habeas corpus, not a petition for resentencing

under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1137; see Murillo, supra,

54 Cal.App.5th at pp. 167-168); Gomez, supra, 52 Cal.App.5th at p. 17; Jones, supra,

56 Cal.App.5th at pp. 483-484 [“‘Jury instructions regarding the mental state required for

a felony-murder special circumstance are not defective if they do not include

the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding

major participation and reckless indifference remains the same as it was

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before Banks and Clark.’”.]) Petitioners like defendant “‘had the same incentive’ at their

original trials to attempt to minimize their involvement in the robbery and their

culpability for the killings as they would have had if their trials ‘had taken place

after Banks and Clark.’ [Citation.] In short, Banks and Clark did not significantly

narrow the definitions of ‘major participant’ and ‘reckless indifference,’ and there is no

basis for concluding that [defendant’s] jury was asked to resolve different factual issues

than a correctly instructed post-Banks/Clark jury would be asked to resolve.” (Jones, at

p. 484.) We agree with Gomez, Galvan, Murillo, and Jones and hold that the proper

procedure of challenging a felony-murder special circumstance finding is a petition for

writ of habeas corpus.10 Thus, the trial court properly dismissed defendant’s petition for

resentencing summarily.

10 We acknowledge the contrary holdings in Torres, supra, 46 Cal.App.5th 1168,
Smith, supra, 49 Cal.App.5th 85, York, supra, 54 Cal.App.5th 250, and Secrease, supra,
63 Cal.App.5th 231, which would allow defendants to challenge the validity of murder
convictions that predated the Banks and Clark decisions, by requiring the People to
prove, once again, the special circumstances beyond a reasonable doubt. We simply
disagree that the language of section 1170.95 provides defendant an opportunity to
relitigate special circumstance findings because of the clarification of the requirements
for those findings in Banks and Clark.

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 III. DISPOSITION

The order denying defendant’s petition for resentencing pursuant to Penal Code

section 1170.95 is affirmed. The superior court is directed to modify its December 13,

2019, minute order to reflect that it dismissed, rather than denied, defendant’s petition for

resentencing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
I concur:

RAMIREZ
P. J.

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 [People v. Brightmon, E074478]

RAPHAEL, J., Dissenting.

I respectfully dissent because I think it incorrect to require defendant and appellant

Todd DeWayne Brightmon, who is challenging his murder conviction under Penal Code

section 1170.95 (section 1170.95), to set aside his robbery murder special circumstance

finding through a petition for a writ of habeas corpus before obtaining review here.

The changes to Penal Code section 189, subdivision (e)(3) effective at the

beginning of 2019 make it possible for a defendant convicted on a felony murder theory

to challenge his murder conviction under section 1170.95 on the ground that he was not a

major participant in the underlying felony who acted with reckless indifference to human

life. Lumord Johnson received the death penalty as the shooter who killed the victim

(People v. Johnson (2015) 61 Cal.4th 734), while defendant was convicted on a felony

murder theory in a 1995 jury trial. Defendant’s jury was required to find he was a “major

participant” with “reckless indifference” when it found true his robbery murder special

circumstance. (Maj. opn., ante, at p. 10.) But no court reviewed whether the facts were

sufficient under the later decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and

People v. Clark (2016) 63 Cal.4th 522 (Clark).

I think our division had it right in People v. Law (2020) 48 Cal.App.5th 811, 825,

when we held that in such a situation, the special circumstance finding, on its own, does

not preclude an evaluation of the murder conviction under section 1170.95. Today,

following other cases, the majority agrees that defendant can potentially have a court

review whether the murder conviction is valid, but cannot do so now. The “proper

1
vehicle” is a habeas petition challenging the special circumstance findings under Banks

and Clark. (Maj. opn., ante, at p. 11). If the defendant is successful on habeas, then he

can file a new section 1170.95 petition to attack his murder conviction. In contrast, I see

nothing in the text or purpose of the statute to require that the special circumstance be set

aside through a habeas petition before the murder conviction can be evaluated through a

section 1170.95 petition.

This is not just a matter of how a petition is labeled. Habeas petitions are subject

to procedural bars that may preclude relief. Here, there is a serious possibility that a

habeas writ is unavailable to defendant because the facts at his trial were in dispute. (See

In re Scoggins (2020) 9 Cal.5th 667, 674 [no procedural bar to a Banks/Clark habeas

challenge to the special circumstance where “no material dispute” as to facts].) If so,

consigning defendant to the habeas court would be tantamount to barring review of his

felony murder conviction under the terms of section 1170.95.

Because evidence supporting the special circumstance finding has not been

reviewed for sufficiency under Banks and Clark, a court “could properly determine he

was ineligible for relief as a matter of law only after reviewing the available record of

conviction in light of the Banks and Clark factors.” (People v. Harris (2021) 60

Cal.App.5th 939, 956-958, review granted Apr. 28, 2021, S267802.) I would reverse and

remand for the trial court to proceed consistently with 1170.95, subdivision (d).

RAPHAEL
J.

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