Filed 7/12/23 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, B325593
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA016309)
v.
ERIC BRYANT,
Defendant and Appellant.
THE COURT: *
Defendant and appellant Eric Bryant (defendant) appeals
from the denial of his petition for vacatur of his murder
conviction and for resentencing under Penal Code former section
1170.95, now section 1172.6.1 After examination of the record,
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the section by its new numbering
only.
defendant’s appointed counsel found no arguable issues and filed
a brief requesting that we exercise our discretion to conduct an
independent review of the record, citing People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo). Following the standard
articulated in Delgadillo, we consider defendant’s supplemental
brief and conduct a limited review of the record. (See Id. at pp.
230-232.) Finding no merit to defendant’s appeal, we affirm the
judgment.
BACKGROUND
In 1992, defendant and codefendant Michael Black were
convicted of two counts of attempted murder, with the true
finding that the attempted murder was committed willfully,
deliberately, and with premeditation. The jury found true the
allegations that Black had personally used and discharged a
firearm in the commission of the two offenses and, as to
defendant, that a principal was armed with a firearm. Defendant
was sentenced to two concurrent life terms plus one year.
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017-2018 Reg. Sess.), amending sections 188 and
189, the laws pertaining to felony murder and murder under the
natural and probable consequences doctrine, “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).)
Section 1172.6 provides a procedure for those convicted of murder
All further unattributed code sections are to the Penal Code
unless otherwise stated.
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or attempted murder to seek retroactive relief if they could not
now be convicted under the amended laws. (§ 1172.6, subd. (a);
see People v. Lewis (2021) 11 Cal.5th 952, 957.)
On September 12, 2022, defendant filed a section 1172.6
petition, attaching portions of the trial record as exhibits. The
petition alleged that an information had been filed against him
that allowed the prosecution to proceed under a theory of felony
murder, the natural and probable consequences doctrine, or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime. The petition also alleged
that defendant was convicted of attempted murder and could not
now be convicted of attempted murder because of the changes to
sections 188 and 189 effective January 1, 2019. The People filed
a response, attaching as exhibits additional portions of the trial
record. The trial court appointed counsel to represent defendant
and defendant filed a reply with additional exhibits.
On November 18, 2022, defendant appeared remotely with
counsel, and the trial court offered the parties an opportunity to
present argument. The trial court reviewed the parties’ written
submissions and exhibits, including the jury instructions,
verdicts, and portions of the transcripts, and found the
prosecution had not proceeded at trial on a theory of felony
murder or the natural and probable consequences doctrine. As
the court found no jury instructions regarding either theory, it
ruled defendant had failed to make a prima facie showing of
eligibility for relief under section 1172.6 and denied the petition.
Defendant filed a timely notice of appeal from the court’s
order.
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DISCUSSION
Where, as here, appointed counsel finds no arguable issues
in an appeal that is not from the first appeal after conviction, we
are not required to conduct an independent review of the record.
(See Delgadillo, supra, 14 Cal.5th at p. 226.) However, even if we
do not independently review the record to identify unraised
issues in such a case, we give the defendant the opportunity to
file his or her own supplemental brief or letter and we then
evaluate any specific arguments raised. (See id. at p. 232.)
Here, counsel provided defendant with a copy of the record
on appeal and informed him of his right to file his own
supplemental brief. We also notified defendant of counsel’s brief,
gave him the opportunity to file his own letter or brief stating any
grounds for an appeal, contentions, or arguments that he wished
to be considered. Defendant has filed a supplemental brief, and
we consider the arguments raised.
Defendant argues the instructions given at his trial allowed
the jury to convict him upon a theory of malice imputed to him
based solely on his participation in a crime. He compares his
case to People v. Langi (2022) 73 Cal.App.5th 972, in which the
defendant was convicted of second degree murder, and People v.
Maldonado (2023) 87 Cal.App.5th 1257, in which the defendant
was convicted of first degree murder. As defendant here was not
convicted of murder the cited cases are inapposite.
Section 1172.6, subdivision (a) provides that “[a] person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime . . . may file a petition . . . .” Subdivision
(a) also provides that “[a] person convicted of . . . attempted
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murder under the natural and probable consequences
doctrine . . . may file a petition . . . .” Thus section 1172.6
“applies by its terms only to attempted murders based on the
natural and probable consequences doctrine.” (People v. Coley
(2022) 77 Cal.App.5th 539, 548.) Defendant acknowledges there
were no instructions regarding the natural and probable
consequences doctrine. Thus he is ineligible for relief under
section 1172.6 as a matter of law. (Coley, at p. 546.)
Moreover, defendant was convicted of attempted murder as
an aider and abettor after the jury was instructed with CALJIC
No. 8.66, defining the act of attempted murder and including the
following language: “The person committing such act harbored
express malice aforethought, namely, a specific intent to kill
unlawfully another human being.” The jury was also instructed
with CALJIC No. 3.01, which included the following: “A person
aids and abets the commission or attempted commission of a
crime when he or she, with knowledge of the unlawful purpose of
the perpetrator and with the intent or purpose of committing and
encouraging or facilitating the commission of the crime by act or
advice aids, promotes or encourages or instigates the commission
of the crime.” Thus the jury was instructed that the perpetrator
of an attempted murder must be found to have harbored an
intent to kill, and the aider and abettor must have had
knowledge of that intent and have intended to aid the perpetrator
to commit that intended crime.
Defendant notes the jury found not true the allegations
against Black that he intended to inflict great bodily injury and
that he discharged a firearm at an occupied motor vehicle,
causing great bodily injury. He contends the findings showed
that although Black was the actual perpetrator, he did not have
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an intent to kill. We disagree. There is no collateral estoppel
effect from a not true finding of an enhancement that is
inconsistent with the conviction of the substantive offense.
(People v. Santamaria (1994) 8 Cal.4th 903, 911.) This applies to
a finding for or against a codefendant as well. (See People v.
Superior Court (Sparks) (2010) 48 Cal.4th 1, 13, 18-19.)
Like the trial court, we reviewed the jury instructions
included with the prosecutor’s response to the petition and found
no instructions regarding the natural and probable consequences
doctrine or other theory of imputed malice, thus demonstrating
defendant is ineligible for relief under section 1172.6 as a matter
of law and no prima facie showing can be made. (See People v.
Harden (2022) 81 Cal.App.5th 45, 52-53, 55-56.) We conclude
that the petition was properly denied. (See People v. Lewis,
supra, 11 Cal.5th at p. 971.)
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
* LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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