Filed 5/20/24 P. v. Brown CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

TABATHA DARNELL BROWN,

Defendant and Appellant.

 B331971

 (Los Angeles County

 Super. Ct. No. 

 NA020150)

APPEAL from an order of the Superior Court of 

Los Angeles County, Richard M. Goul, Judge. Affirmed. 

Nancy Gaynor, under appointment by the Court of Appeal; 

Tabatha Brown, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________
2

A jury convicted Tabatha Brown in 1996 of, among other 

crimes, the first degree murder of Ruby Chong, with a true 

finding on a felony-murder special-circumstance allegation, and 

of conspiracy to commit murder. We affirmed the convictions. 

(People v. Brown (July 15, 1997, B102674) [nonpub. opn.]

(Brown I).)

On June 5, 2023 the superior court denied Brown’s petition 

for resentencing under Penal Code section 1172.61 without 

issuing an order to show cause. The court ruled Brown was 

ineligible for resentencing as a matter of law because the court 

had previously found her ineligible for relief. Brown appealed. 

We appointed counsel to represent Brown in this appeal. 

After reviewing the record, Brown’s appointed appellate counsel 

filed a brief that did not identify any arguable issues. After 

independently reviewing the record and the contentions 

presented by Brown in her two-page supplemental brief, we have 

not identified any either. Therefore, we affirm.

FACTUAL BACKGROUND

A. A Jury Convicts Brown of First Degree Murder,

and We Affirm

In November 1993 Chong hired Brown to live with and care 

for her 88-year-old mother, Fay Dawson, who lived on the same 

block as Chong and Chong’s sister, Delena Deane.

2 Shortly after 

1 Statutory references are to the Penal Code.

2 We provide a recitation of the facts as stated in Brown I as 

background only and do not rely on the facts for purposes of this

appeal. (See People v. Lee (2023) 95 Cal.App.5th 1164, 1183 [“the
3

Brown began working as Dawson’s caregiver, Dawson fell and 

was seriously injured. When it became apparent Dawson would 

not be able to return home, Chong terminated Brown’s 

employment, but allowed her to stay in Dawson’s home through 

the end of the month (November 1993). 

On December 1, 1993 Brown, her sister, and a friend stole 

some items from Deane’s home while visiting her. The next day 

Brown, her sister, and a different friend went to Chong’s home, 

robbed her, and killed her. Chong’s body was discovered the 

following day in a chair with a rope tightly wound around her 

neck. Chong’s face was scratched and bruised, her chest was cut, 

and she had a deep gash in her neck.

A jury convicted Brown on one count of first degree murder

(§ 187, subd. (a)) and found true the allegation she committed the 

murder during the commission of a robbery, within the meaning 

of section 190.2, subdivision (a)(17); two counts of conspiracy to 

commit murder (§ 182, subd. (a)(1)); one count of robbery (§ 211);

and one count of burglary (§ 459). The trial court sentenced 

Brown to life without the possibility of parole on the murder 

conviction and imposed concurrent terms on her other 

convictions.3 We affirmed the convictions, modified the judgment 

to stay execution of the prison term for robbery under

section 654, and corrected the abstract of judgment. (Brown I, 

supra, B102674.)

factual summary . . . may not be used to determine a petitioner’s

eligibility at the prima facie stage”]; People v. Bratton (2023)

95 Cal.App.5th 1100, 1113 [same].)

3 The sentences on the convictions for robbery and burglary 

were concurrent to each other but consecutive to the murder and 

conspiracy convictions.
4

B. Brown’s First Petition for Resentencing

On March 29, 2019 Brown filed a petition for resentencing 

under former section 1170.95, which, as amended effective 

January 1, 2022, authorized certain individuals convicted of 

murder under the felony-murder rule or murder, attempted 

murder, or voluntary manslaughter under the natural and 

probable consequences doctrine to petition the superior court for 

resentencing. Brown checked boxes on the form petition to 

establish her eligibility for resentencing, including the boxes 

stating she had been convicted of first degree murder under the 

felony-murder rule, was not the actual killer, and could not now 

be convicted of first or second degree murder because of changes 

the Legislature made to sections 188 and 189. (Stats. 2018, ch. 

1015.)

The superior court denied Brown’s petition without issuing 

an order to show cause, ruling she had not made a prima facie 

showing of eligibility for relief “by reason of the conspiracy to 

commit murder which does require an intent to kill.” We 

affirmed the order denying the petition for resentencing. (People 

v. Brown (Aug. 3, 2022, B317776) [nonpub. opn.] (Brown II).)

C. Brown’s Second Petition for Resentencing

On May 5, 2023 Brown, representing herself, filed another 

form petition for resentencing under section 1172.6. Brown

checked the box indicating she “could not presently be convicted 

of murder or attempted murder because of changes made to 
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Penal Code §§ 188 and 189, effective January 1, 2019” and asked 

the court to appoint counsel for her. 

On June 5, 2023 the superior court summarily denied the 

petition without appointing counsel. The court ruled that it 

“previously found petitioner ineligible for relief under 

[section] 1172.6” and that we had “affirmed that denial. . . . The 

petition for resentencing is denied again with prejudice.” Brown 

timely appealed. 

DISCUSSION

We appointed counsel to represent Brown on appeal from 

the order denying her second petition for resentencing. After 

reviewing the record, appointed counsel filed a brief that did not 

identify any arguable issues. Appointed counsel advised Brown

that she was filing a brief stating she was unable to find any 

arguable issues and that Brown had a right to file a 

supplemental brief. Appointed counsel also sent Brown a copy of 

the brief, as well as the transcripts of the record on appeal. 

On April 9, 2024 we received a two-page, handwritten

supplemental brief from Brown. In her supplemental brief, 

Brown argues she is now “a grown woman who has taken 

responsibility for my part in my crime. I have taken many, many 

groups to help me grow and become a changed responsible 

woman.” Brown explained that she has not had a single incident 

of violence in prison, that she now knows what her “triggers” are 

and “how to deal with them in a positive way,” and that she 

would like “the chance to give back to society.” Brown also 

expressed remorse for Chong’s murder, but argued she “did not 
6

take Ruby Chong’s life nor did [she] plan to take her life. It’s all 

he said, she said.” 

Effective 2019, the Legislature eliminated the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder and significantly limited the scope of the felonymurder rule. (People v. Reyes (2023) 14 Cal.5th 981, 984; People 

v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 

11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-

843, 847-848.) Section 188, subdivision (a)(3), now prohibits 

imputing malice based solely on an individual’s participation in a 

crime and requires proof of malice to convict a principal of 

murder, except under the revised felony-murder rule in section 

189, subdivision (e). Section 189 requires the People to prove 

that the defendant was the actual killer (§ 189, subd. (e)(1)); that 

the defendant, though not the actual killer, with the intent to kill 

aided or assisted in the commission of the murder (§ 189, 

subd. (e)(2)); or that the defendant was a major participant in a 

felony listed in section 189, subdivision (a), and “acted with 

reckless indifference to human life, as described in subdivision (d) 

of Section 190.2,” the felony-murder special-circumstance 

provision (§ 189, subd. (e)(3)). (People v. Curiel (2023) 15 Cal.5th 

433, 448; see People v. Wilson (2023) 14 Cal.5th 839, 868-869; 

Strong, at p. 708; Gentile, at pp. 842-843; People v. Cody (2023) 

92 Cal.App.5th 87, 105.) Under section 1172.6 a defendant

convicted of murder may file a resentencing petition “when all of 

the following conditions apply”: (1) the charging document filed 

against the petitioner allowed the prosecution to proceed under a 

theory of felony murder or another theory of imputed malice; 

(2) the petitioner was convicted of murder, attempted murder or 

manslaughter following a trial or plea proceeding at which the 
7

petitioner could have been convicted of murder or attempted 

murder; and (3) the “petitioner could not presently be convicted of 

murder or attempted murder because of changes to Section 188 

or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).) 

Brown was convicted of conspiracy to commit murder.4 

“[A] conviction of conspiracy to commit murder requires a finding 

of intent to kill, and cannot be based on a theory of implied 

malice.” (People v. Swain (1996) 12 Cal.4th 593, 607; see People 

v. Medrano (2024) 98 Cal.App.5th 1254, 1264 [“A person cannot 

be convicted of conspiracy to commit first degree murder based on 

. . . ‘imputed’ malice”].) Thus, a person convicted of conspiracy to 

commit murder is not eligible for resentencing under 

section 1172.6 on a murder conviction.

5 (See People v. Allen

(2023) 97 Cal.App.5th 389, 395-396 [defendant is not eligible for 

relief under section 1172.6 if she was “convicted . . . of murder . . .

4 The trial court instructed the jury with CALJIC No. 6.10 as 

follows: “A conspiracy is an agreement entered into between two 

or more persons with the specific intent to agree to commit the 

public offense of murder and with the further specific intent to 

commit such offense . . . .” (Brown I, supra, B102674; cf. People v. 

Whitson (2022) 79 Cal.App.5th 22, 34 [“trial court’s deletion of 

the phrase ‘and with the further specific intent to commit 

[murder]’ from the jury instruction on conspiracy to [commit] 

murder precludes a finding that [the petitioner] is ineligible for 

section 1170.95 relief as a matter of law with respect to his 

murder and attempted murder convictions”].) 

5 A person is not eligible for resentencing under 

section 1172.6 on a conviction for conspiracy to commit murder.

(People v. Lovejoy (May 2, 2024, D080941) ___ Cal.App.5th ___, 

___ [2024 WL 1925340, p. 5]; People v. Whitson (2022) 

79 Cal.App.5th 22, 36.)
8

on a conspiracy theory”]; People v. Medrano (2021) 68 

Cal.App.5th 177, 182-183 [defendant convicted of conspiracy to 

murder is ineligible for relief under section 1172.6].) Because the 

jury found Brown had the intent to kill Chong, she can be 

convicted of murder beyond a reasonable doubt on a theory of 

liability that remains valid under section 1172.6. (See People v. 

Strong, supra, 13 Cal.5th at p. 708 [“If the petition and record in 

the case establish conclusively that the defendant is ineligible for 

relief, the trial court may dismiss the petition”].)

Neither Brown nor her appellate counsel has identified a 

cognizable legal issue, and our independent review has not 

identified one either. The order denying Brown’s petition for 

resentencing is affirmed. (See People v. Delgadillo (2022) 

14 Cal.5th 216, 231-232; People v. Kelly (2006) 40 Cal.4th 106, 

118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)

DISPOSITION

The order is affirmed.

SEGAL, J.

We concur:

MARTINEZ, P. J.

FEUER, J.