People v. Brightmon CA4/2

Filed 11/8/22 P. v. Brightmon CA4/2
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

Defendant and Appellant.

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

Reversed and remanded with directions.

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

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys

General, Meredith S. White, Robin Urbanski and Donald W. Ostertag, 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 former section 1170.95,1 which the court dismissed.

On appeal, defendant contended the court erred in summarily dismissing his petition. By

opinion filed July 19, 2021, we affirmed the court’s dismissal of defendant’s petition.

On October 19, 2022, the California Supreme Court transferred the matter back to

us with directions to vacate our decision and reconsider the cause in light of People v.

Strong (2022) 13 Cal.5th 698 (Strong). On October 21, 2022, we ordered our decision

vacated and set a briefing schedule.

Defendant argues that pursuant to Strong, he can challenge the jury’s true finding

on the felony-murder special-circumstance allegations because they were rendered prior

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

(2016) 63 Cal.4th 522 (Clark). Defendant maintains he made the requisite prima facie

showing, and the matter should be remanded for an order to show cause hearing. The

People concede that the matter should be remanded for further proceedings. We reverse

and remand the matter for reconsideration.

1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
All further statutory references are to the Penal Code unless otherwise indicated.

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 I. PROCEDURAL BACKGROUND 2

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

and found true multiple felony-murder special-circumstance allegations (§ 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.)

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

former section 1170.95. 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

2 On our own motion, we take judicial notice of the record in defendant’s appeal
from the original judgment (People v. Brightmon (Sept. 20, 2001, E027391) [nonpub.
opn.] (Brightmon)), on which the People below relied, and both parties on appeal rely on
for their recitation of the facts. (See Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of
Court, rule 8.1115(b)(1).) 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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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 on Brightmon, that defendant “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 he was the actual shooter. Defense counsel

responded that she did not. The court dismissed the petition over defense counsel’s

objection.4

II. DISCUSSION

Defendant argues the court erred in dismissing his petition, and the matter should

be remanded for an evidentiary hearing. The People concede the matter should be

remanded for further proceedings. We remand the matter for a new prima facie hearing.

4 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.)

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 “Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the

felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill

1437 also created a special procedural mechanism for those convicted under the former

law to seek retroactive relief under the law as amended. [Citations.] Under newly

enacted section 1172.6, the process begins with the filing of a petition containing a

declaration that all requirements for eligibility are met [citations], including that ‘[t]he

petitioner could not presently be convicted of murder or attempted murder because of

changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of

Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)

“When the trial court receives a petition containing the necessary declaration and

other required information, the court must evaluate the petition ‘to determine whether the

petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record

in the case establish conclusively that the defendant is ineligible for relief, the trial court

may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a

trial court should afford both parties the opportunity to brief the question of a petitioner’s

eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary

to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,

fn. 4.)

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 “While the trial court may look at the record of conviction after the appointment of

counsel to determine whether a petitioner has made a prima facie case for . . . relief, the

prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas

corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a

preliminary assessment regarding whether the petitioner would be entitled to relief if his

or her factual allegations were proved. If so, the court must issue an order to show

cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on

credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra,

11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie

bar was intentionally and correctly set very low.’” (Ibid.)

Where a defendant’s “case was tried before both Banks and Clark, . . . special

circumstance findings do not preclude him from making out a prima facie case for

resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]

in concluding otherwise.” (Ibid.)

If, instead, a defendant has made a prima facie showing of entitlement to relief,

“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)

Once the court determines that a defendant has made a prima facie showing, “the court

must [then] hold an evidentiary hearing at which the prosecution bears the burden of

proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted

murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that

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there is substantial evidence to support a conviction for murder, attempted murder, or

manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of

proof, the prior conviction, and any allegations and enhancements attached to the

conviction, shall be vacated and the petitioner shall be resentenced on the remaining

charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was

either the actual killer, acted with the intent to kill, or ‘was a major participant in the

underlying felony and acted with reckless indifference to human life . . . .’” (Id. at

p. 710.)

“[E]ffective January 1, 2022, the Legislature limited use of prior appellate

opinions, allowing trial judges to ‘consider the procedural history of the case recited.’

[Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should

not rely on the factual summaries contained in prior appellate decisions when a [former]

section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” (People

v. Clements (2022) 75 Cal.App.5th 276, 292; accord People v. Flores (2022)

76 Cal.App.5th 974, 988 [“[T]he factual summary in an appellate opinion is not evidence

that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for

resentencing.”].)

Here, the court dismissed the petition based on a determination that defendant was

the actual killer. However, 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

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court sentenced him to death. (Brightmon, supra, E027391; see People v. Johnson

(2015) 61 Cal.4th 734, 740.) Therefore, the court erred in denying defendant’s petition

on that basis.

Moreover, the jury rendered the special murder circumstance findings before both

Banks and Clark were decided. With respect to those findings, “no judge or jury has ever

found the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at

p. 718, italics added.) Thus, contrary to our original determination, the felony-murder

special-circumstance findings did not, alone, render defendant per se ineligible for relief.

Therefore, the matter must be remanded for a new prima facie hearing.

III. DISPOSITION

The order dismissing defendant’s petition is reversed. The matter is remanded

with directions to hold a new prima facie hearing. We express no opinion on whether

defendant is entitled to relief following the hearing. 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.
We concur:

RAMIREZ
P. J.

RAPHAEL
J.

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