Filed 3/23/22 P. v. Brumfield CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308605
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA232436)
v.
ANTHONY RAY BRUMFIELD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael E. Pastor, Judge. Affirmed.
Daniel King for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Ryan M. Smith, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
In 2004, a jury convicted appellant Anthony Brumfield of
first degree murder and found true the special circumstance that
the murder was intentional and committed by shooting from a
motor vehicle at another person outside the vehicle with the
intent to inflict death. (Pen. Code,1 §§ 187, subd. (a), 190.2,
subd. (a)(21).) The jury found not true the allegation that
appellant used and discharged a firearm and that he acted for the
benefit of a gang. In 2006, we affirmed the conviction on direct
appeal. (People v. Brumfield (Nov. 27, 2006, B182910) [nonpub
opn.].)
On December 19, 2019, appellant through counsel filed a
section 1170.95 petition for resentencing. He alleged he had been
convicted of murder but could not be so convicted today under the
statutory changes made by Senate Bill No. 1437.
The trial court denied the petition without issuing an order
to show cause. The court found appellant had failed to show
prima facie that he had been convicted under either the felony
murder rule or the natural and probable consequences doctrine,
the two theories Senate Bill No. 1437 eliminated as bases of
liability for murder.
Appellant filed a timely notice of appeal. We affirm.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
A. Factual Background
These facts are taken from the decision affirming
appellant’s conviction. The victim was driving a car with three
passengers. A gold-colored Blazer drove up alongside the victim’s
car. The front passenger window of the Blazer rolled down and a
man wearing a black top and baseball cap with braces on his
teeth extended his arm and pointed a handgun at the car. The
victim and his passengers ducked. The man, later identified as
petitioner by people in the victim’s car, fired several shots, killing
the victim. (People v. Brumfield, supra, B182910.)
Appellant was ejected from the gold-colored Blazer when
the victim’s car collided with it. Appellant, who was wearing a
black shirt, had difficulty moving; he ultimately fled but was
apprehended by police. Two other individuals wearing white t-
shirts were seen running away as well. Inside or near the Blazer
police recovered two handguns, one of which had fired the bullets
found in the victim. A bullet fragment found in the victim’s car
had been fired from the other handgun. (People v. Brumfield,
supra, B182910.)
At the hearing on appellant’s resentencing petition,
appellant agreed the trial court did not instruct the jury on felony
murder or natural and probable consequences as theories of
liability at trial.
B. Senate Bill No. 1437
Senate Bill No. 1437 (2017–2018 Reg. Sess.), effective
January 1, 2019, was enacted 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
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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. Gentile (2020) 10 Cal.5th 830,
842.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.) also created
section 1170.95 which sets out a procedure by which defendants
already convicted of murder under the now-impermissible theory
of natural and probable consequences and the now-limited theory
of felony murder may seek resentencing if they believe they
cannot be re-convicted of murder under current law. (People v.
Gentile, supra, 10 Cal.5th at p. 843.) The procedure set out in
section 1170.95 allows such persons to file a petition for
resentencing. Once the court finds the petition has sufficiently
alleged eligibility for relief, the court appoints counsel upon
request and orders briefing to determine whether a prima facie
showing of eligibility can be made. (§ 1170.95, subds. (a) & (b).)
If such a showing is made, the court then issues an order
requiring the People to show cause why petitioner should not be
granted relief. The statute directs the court to set an evidentiary
hearing at which the People must prove and the court must find,
beyond a reasonable doubt, that petitioner is still guilty of the
offense of conviction under current law, that is, without reliance
on the felony murder rule or the natural and probable
consequences doctrine. (Id., subds. (c) & (d); People v. Lewis
(2021) 11 Cal.5th 952, 960.)
If the People can show a petitioner is ineligible for relief as
a matter of law at the prima facie stage, the court may deny the
petition. In making such a finding, the court may rely on the
record of conviction. (People v. Lewis, supra, 11 Cal.5th at
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pp. 970–971.) Ineligibility as a matter of law occurs when a
petitioner was not convicted under the felony murder rule or
natural and probable consequences doctrine. (People v. Daniel
(2020) 57 Cal.App.5th, 666, 677.) A finding of ineligibility may be
based on a legal holding or explanatory statement from a prior
appellate opinion concerning the conviction, so long as the trial
court does not engage in factfinding based on the prior opinion.
(People v. Lewis, at p. 972.)
Before makings its finding here, the trial court stated it
reviewed the petition for resentencing; the People’s response;
petitioner’s reply; the People’s surreply; the information; the jury
instructions; communications to and from the jury; the verdict
forms; and the appellate decision. At the hearing appellant
agreed the jury was not instructed on the felony murder rule or
the natural and probable consequences doctrine. Instead, the
jury was instructed on liability as a direct principal and as a
direct aider and abettor. After acknowledging appellant’s
concessions, the trial court specifically rested its denial of the
resentencing petition on the fact that appellant was not convicted
of felony murder or murder under the natural and probable
consequences doctrine.
The trial court can rely on jury instructions, which are part
of the record of conviction, in assessing prima facie showings
under section 1170.95, subdivision (c). The jury instructions
given at a petitioner’s trial may provide readily ascertainable
facts from the record that refute a petitioner’s showing of
eligibility. Reliance on jury instructions to make the eligibility or
entitlement determination may not amount to “ ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ”
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(People v. Soto (2020) 51 Cal.App.5th 1043, 1055, disapproved on
another ground in People v. Lewis, supra, 11 Cal.5th 952.)
Here, appellant concedes the jury was not instructed on
felony murder or natural and probable consequences. If the jury
was not instructed on these doctrines, the jury necessarily found
appellant culpable for murder based on his own actions and
mental state as a direct aider and abettor of murder or as the
actual shooter. (People v. Soto, supra, 51 Cal.App.5th at p. 1055.)
Because section 1170.95 applies only to qualifying defendants
convicted of felony murder or murder under a natural and
probable consequences theory, appellant is ineligible for
resentencing as a matter of law. (Soto, at p. 1055.)
As a final note, appellant argues the evidence was
insufficient to support his conviction as an aider and abettor
because no one else was convicted as the direct perpetrator.
Whether the evidence was sufficient to convict appellant as the
shooter or as an aider and abettor is immaterial at this point.
Appellant was not convicted under a now-impermissible theory of
liability because the jury was never told about such theories. He
is therefore not eligible for resentencing under section 1170.95.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, Acting P. J.
We concur:
WILEY, J.
HARUTUNIAN, J.
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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