Filed 5/12/22 P. v. Bracy CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093998
Plaintiff and Respondent, (Super. Ct. No. 95F10098)
v.
TRISTAN LAWRENCE BRACY,
Defendant and Appellant.
In 1996, a jury found defendant Tristan Lawrence Bracy guilty of first degree
murder and found true the special circumstance allegation the murder was committed
during the commission or attempted commission of rape. Defendant appeals the denial of
his petition for resentencing pursuant to Penal Code section 1170.95.1 He argues the trial
court erred in dismissing his petition without issuing an order to show cause. We shall
affirm.
1 This case was fully briefed and assigned to this panel on February 14, 2022.
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FACTUAL AND PROCEDURAL BACKGROUND
We take the basic facts of this case from our opinion in defendant’s original
appeal. (People v. Drayton et al. (Jan. 5, 1998, C023966) [nonpub. opn.] (Drayton).)2
“On September 27, 1995, Caecile Lenker, a homeless woman, went to a transient
encampment along the American River where she drank and talked with [codefendant
Robert Anthony] Drayton and Jonathan and Veda Britton. As the Brittons were leaving,
[defendant] arrived with Charlie Hisaw and George Hooulu.
“[Lenker], who had been kissing Drayton, turned her attention to [defendant] and
they entered a nearby lean-to. A short time later, [Lenker] began yelling, ‘No, please
don’t,’ and sometime thereafter [Lenker] and [defendant] came out of the lean-to
straightening their clothing. Hisaw asked [defendant] what happened, and [defendant]
responded, ‘We did it.’ [Defendant] stated he raped [Lenker] and told the others to ‘get
rid of her’ because he wasn’t going to jail for it.
“[Lenker] had walked about six feet from the lean-to when Drayton grabbed her
and threw her down an embankment, where she fell approximately 15 feet to·some rocks
below. Drayton and Hisaw threw rocks at her. [Lenker] entered the river and swam to
the other side. After unsuccessfully attempting to retrieve [Lenker]’s purse, which
floated away, Drayton ran to the other side of the levee, and as [Lenker] got out of the
water, he started throwing rocks at her. [Lenker] crawled back to the river. Drayton
caught her and held her head under the water, then dragged her to the beach, removed her
clothing, and dropped a huge rock on her face. Drayton removed [Lenker]’s watch and
rings, breaking one of her fingers as he did so. Drayton then dragged [Lenker] back to
the river, and after again holding her head underwater, let her go and she floated down
the river. At [defendant’s] direction, the men threw [Lenker]’s clothes in the river.
2 We take judicial notice of this prior opinion on our own motion. (Evid. Code, § 452,
subd. (d).)
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“The day after [Lenker]’s murder, [defendant] analogized his role in the killing to
‘a general commanding his troops,’ and declared, ‘We killed the bitch.’
“The coroner testified [Lenker] died from drowning. Drayton did not present a
defense; [defendant] offered witnesses who testified to his nonviolent character.”
(Drayton, supra, C023966 [pp. 2-3], fns. omitted.)
The jury found defendant guilty of first degree murder and attempted rape. (Pen.
Code, §§ 187, subd. (a), 664, 261, subd. (a)(2).)3 It also found true the special
circumstance allegation that the murder was committed during the commission or
attempted commission of rape. (§ 190.2, subd. (a)(17)(C).) The trial court sentenced
defendant to life without the possibility of parole.
We affirmed the conviction on direct appeal. (Drayton, supra, C023966.) As
relevant here, we concluded substantial evidence supported the attempted rape
conviction. We also concluded substantial evidence supported defendant’s conviction for
first degree murder both under the felony-murder rule and as an aider and abettor who
ordered the killing. We further concluded substantial evidence supported the special
circumstance finding. Lastly, we concluded the trial court did not err when it failed to
give the jury CALJIC No. 8.80.1 which states, in relevant part: “[If you find that a
defendant was not the actual killer of a human being, [or if you are unable to decide
whether the defendant was the actual killer or [an aider and abettor] [or] [co-
conspirator],] you cannot find the special circumstance to be true [as to that defendant]
unless you are satisfied beyond a reasonable doubt that such defendant with the intent to
kill [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or]
[assisted] any actor in the commission of the murder in the first degree] [.] [, or with
reckless indifference to human life and as a major participant, [aided,] [abetted,]
[counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the
3 Unspecified statutory references are to the Penal Code.
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commission of the crime of (Penal Code, § 190.2[, subd.] (a)(17) crime)
which resulted in the death of a human being, namely .]” Instead, in light of the
substantial evidence that defendant had the intent to kill Lenker when he ordered her
murder, we concluded the trial court properly instructed the jury: “ ‘If you find beyond a
reasonable doubt that the defendant was an aider or abettor, then you must also find
beyond a reasonable doubt that the defendant with intent to kill, aided and abetted an
actor in the commission of the murder in the first degree, in order to find the special
circumstance to be true.’ ” (Drayton, supra, C023966 [p. 17].)
In 2020, defendant filed a petition under section 1170.95 to have his murder
conviction vacated and to be resentenced. Defendant’s section 1170.95 petition declared
he met the requirements for relief, specifically, that (1) the complaint, information, or
indictment filed against him allowed the prosecution to proceed under a theory of felony
murder or the natural and probable consequences doctrine; (2) he was convicted of first
or second degree murder under the felony-murder rule or the natural and probable
consequences doctrine; and (3) he could not now be convicted of first or second degree
murder because of changes to sections 188 and 189, effective January 1, 2019.
Defendant checked the boxes he was not the actual killer; 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 he was not a major participant in the felony
or did not act with reckless indifference to human life. The trial court appointed counsel
for defendant and the prosecution submitted briefs opposing the petition.
The trial court issued a preliminary ruling indicating it believed defendant was not
eligible for resentencing due to the jury’s true special circumstance finding and our prior
conclusion the jury found defendant had the intent to kill the victim. The trial court
ordered further briefing on this point.
Defendant’s counsel submitted a letter to the court stating he had reviewed our
prior opinion, researched the law, and would not be filing any further briefing. After it
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received this letter, the trial court denied the petition. The trial court noted the jury had
not been instructed on the natural and probable consequences doctrine, but had been
instructed on malice murder and felony murder. The trial court noted our opinion stated
the evidence demonstrated defendant harbored and expressed an intent to kill Lenker
when he directed the other men to kill her. As a result, the trial court found defendant
failed to demonstrate a prima facie case that he could not now be convicted of murder.
DISCUSSION
Defendant argues the trial court erred when it concluded defendant failed to
establish a prima facie case he was entitled to relief. We disagree.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) 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 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).)
Effective January 1, 2019, the legislation amended sections 188 and 189 and added
section 1170.95.
Section 189, subdivision (e) now limits the circumstances under which a person
may be convicted of felony murder: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [defining first degree murder] in which a
death occurs 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.”
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Section 1170.954 allows those “convicted of felony murder or murder under a
natural and probable consequences theory [to] 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 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 . . . . [¶] (3) The petitioner could not be
convicted of first or second degree murder because of changes to [s]ection 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).)
Section 1170.95 includes a prima facie determination. Under subdivision (c), the
trial court must appoint the defendant counsel if requested, take briefing from the parties,
and then determine whether “the petitioner makes a prima facie showing that he or she is
entitled to relief.” (§ 1170.95, subd. (c).) In performing this preliminary screening
function, courts are not limited to the allegations of the petition; rather, they may “rely on
the record of conviction in determining whether that single prima facie showing is made.”
(People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis).) Thus, if the record of conviction
establishes the petition lacks merit, the trial court may deny the petition without
conducting further proceedings. (Id. at p. 971 [“The record of conviction will necessarily
inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are clearly meritless”].)
4 References in this opinion to section 1170.95 refer to the version in effect at the time
the trial court ruled on the petition. (Stats. 2018, ch. 1015, § 4.) The Legislature further
amended section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 551). This amendment to section 1170.95 has no
impact on the issues raised by this appeal.
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“[W]hen assessing the prima facie showing, the trial court should assume all facts
stated in the section 1170.95 petition are true. [Citation.] The trial court should not
evaluate the credibility of the petition’s assertions, but it need not credit factual assertions
that are untrue as a matter of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing.” (People v. Drayton (2020) 47 Cal.App.5th
965, 980, abrogated on other grounds in Lewis, supra, 11 Cal.5th at p. 963.) The
“authority to make determinations without conducting an evidentiary hearing pursuant to
section 1170.95, subd[ivision] (d) is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the crime).” (People v. Drayton,
at p. 980.)
A special circumstance finding under section 190.2, subdivision (a)(17)
disqualifies a defendant from relief under section 1170.95. “The requirements for the
felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and
are identical to the new requirements for felony murder following the enactment of
Senate Bill No. 1437. In both instances, the defendant must have either actually killed
the victim [citations]; acted with the intent to kill in aiding, abetting, counseling,
commanding, inducing, soliciting, requesting, or assisting in the killing [citations]; or
been a major participant in the underlying felony and acted with reckless indifference to
human life [citations]. By finding a special circumstance allegation true, the jury makes
precisely the same finding it must make in order to convict a defendant of felony murder
under the new law. 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. Galvan (2020) 52 Cal.App.5th 1134, 1140-1141; see
People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854;
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People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct. 14, 2020, S264033;
People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020,
S264978; People v. Allison (2020) 55 Cal.App.5th 449, 457.)
We recognize some appellate courts have come to contrary conclusions and the
issue is currently pending in our Supreme Court. (See People v. Torres (2020)
46 Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrogated on
another ground by Lewis, supra, 11 Cal.5th at p. 963; People v. Law (2020)
48 Cal.App.5th 811, 821, review granted July 8, 2020, S262490; People v. Smith (2020)
49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835; People v. York (2020)
54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Harris
(2021) 60 Cal.App.5th 939, 957, review granted Apr. 28, 2021, S267802.) Defendant
urges us to follow the Torres line of cases. Until we receive direction from the Supreme
Court, we conclude the Galvan line of cases is more persuasive.
Here, the record of conviction establishes the jury found true the allegation
defendant committed the murder during the commission or attempted commission of a
rape. (§ 190.2, subd. (a)(17)(C).) On the special circumstance allegation, the trial court
did not instruct the jury on aiding and abetting liability based on defendant being a major
participant in the murder who acted with reckless indifference to human life. Rather, the
trial court instructed the jury that to find the special circumstance allegation true, it had to
find defendant had the intent to kill when he aided and abetted the principals in the
commission of this murder. The jury so concluded. As reflected by our prior decision,
substantial evidence supported the jury’s finding defendant had the actual intent to kill
when he ordered the murder. Based on this finding, defendant could still be found guilty
of felony murder after Senate Bill No. 1437 and is ineligible for resentencing as a matter
of law.
Defendant argues the jury’s felony-murder special circumstance finding does not
preclude him from eligibility for resentencing because it was made before our Supreme
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Court clarified the meaning of a “major participant” and “reckless indifference to human
life” in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th
522. This argument has no application here. Defendant’s conviction was based on the
fact that he had the intent to kill Lenker when he ordered her murder. It was not based on
the fact he was a major participant who acted with reckless indifference to human life.
We reject this claim of error.
DISPOSITION
The trial court’s order is affirmed.
/s/
EARL, J.
We concur:
/s/
HOCH, Acting P. J.
/s/
KRAUSE, J.
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