Filed 3/9/22 P. v. Bryant CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315034
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA016309)
v.
ERIC BRYANT,
Defendant and Appellant.
THE COURT:*
Defendant and appellant Eric Bryant appeals from the
order denying his petition for vacatur and resentencing under
Penal Code section 1170.95.1
In 1992 defendant and codefendant Michael Black were
charged with two counts of willful, deliberate, premeditated
attempted murder in violation of Penal Code sections 664 and
187, subdivision (a). The information also alleged that in the
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
commission of both crimes a principal was armed with a firearm
within the meaning of section 12022, subdivision (a)(1). After a
jury trial, defendant and Black were found guilty of both counts
of attempted murder as charged. The jury found true that a
principal had been armed with a firearm. The trial court
sentenced defendant on each count to prison for life plus one year
for the firearm enhancement and stayed the sentence on count 2.
The judgment was affirmed on appeal. (See People v. Black
(Nov. 3, 1993, B069290) [nonpub. opn.].)
The evidence at trial established that in December 1991,
Isaiah Gupton and his passenger Antwone Sanford stopped at a
gas station in Compton. With Black in the passenger seat,
defendant drove up beside Gupton and Sanford. Black fired three
shots at them with a .32-caliber revolver. Gupton tried to drive
away; but defendant drove in front of him, blocking his escape.
Black fired several more shots before both cars drove off in
separate directions. Sanford suffered gunshot wounds to the nose
and cheek. There were bullet holes in Sanford’s headrest and in
Gupton’s windshield. The police were notified. Defendant’s car
was stopped, and within a half-hour Gupton identified Black,
defendant, and defendant’s car. Defendant presented a defense
of mistaken identity.
In January 2021 defendant filed, pro. per., a petition for
resentencing pursuant to section 1170.95, alleging that he had
been convicted of attempted murder under the felony-murder
rule. Defendant attached to his petition a copy of the preliminary
hearing transcript from the record of his conviction and the
affidavit of Black stating that at the time the crimes were
committed defendant was unaware that Black was armed; did
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not know that he was going to fire his weapon; and did not assist,
encourage, or participate in the shooting.
The prosecutor filed a response to the petition urging
denial on the grounds that defendant was ineligible for relief
under section 1170.95 because his conviction was for attempted
murder. Defendant, through by counsel, filed a reply including
the information, the clerk’s transcript, the reporter’s transcript,
and the appellate opinion affirming the judgment. The reply
acknowledged that no instruction had been given regarding the
felony-murder rule or the natural and probable consequences
doctrine but argued that the policy underlying Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (which enacted § 1170.95)
required that relief should be extended to those convicted of
attempted murder. Defendant asked the trial court to review the
documents provided to determine his eligibility for relief.
On August 31, 2021, at the prima facie eligibility hearing,
both counsel submitted the issue on their papers without further
argument. The trial court read and considered all the documents
filed in support and opposition to the petition, as well as the trial
transcripts, including the jury instructions and the prosecutor’s
closing arguments. The trial court denied defendant’s petition,
ruling that defendant was ineligible for relief under section
1170.95 because he had been convicted of attempted murder, not
murder. The court also ruled that defendant was ineligible
because the jury was not instructed with regard to the felony
murder rule or the natural and probable consequences doctrine,
and the only theory on which the prosecution relied was direct
aiding and abetting with the intent to kill.2
2 Effective January 1, 2022, section 1170.95, subdivision
(a)(2) permits those convicted of not only murder, but also to
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Defendant filed a timely notice of appeal from the order
denying his petition. Appointed counsel found no arguable issues
and requested this court to follow the procedures prescribed in
People v. Serrano (2012) 211 Cal.App.4th 496. Under Serrano,
where appointed counsel finds no arguable issues in an appeal
seeking postjudgment relief, the appellate court is not required to
conduct an independent review of the record for arguable issues.
(See id. at p. 503.) However if defendant files his own
supplemental brief or letter, the appellate court will review the
contentions or arguments set forth therein. If defendant does not
file a supplemental brief, the appeal will be dismissed as
abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039-
1040, review granted Oct. 14, 2020, S264278.) Defendant was
notified of the court’s policy and failed to file a supplemental
brief.
The appeal is dismissed.
* LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
those convicted of attempted murder under the natural and
probable consequences doctrine to petition for relief. However,
where no instructions were given at trial on attempted murder
under the natural and probable consequences doctrine, the
petitioner remains ineligible for relief as a matter of law. (See
People v. Daniel (2020) 57 Cal.App.5th 666, 677.)
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