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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 a n 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 o f, 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 conviction s

. ( 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 117 2.6 1 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 he r 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 h er two

- page supplemental brief, we have not identified any either. Therefore, we aff irm.

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 Dea ne

. 2 S hortly 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 [“the3

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

t he end of the month ( November 1993)

. On December 1, 1993 Brown, her sister , a nd 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 on e count of first degree murder (§ 1 87, 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 with out 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 probab le consequences doctrine to petition the superior court for resentencing . Brown checked boxes on the f orm petition to establish her eligibility for resentencing, including the boxes stating she had been convicted of first degree murder under the felony

- mu rder 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 ca u se, 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 a nother form petition for resentencing under section 1172.6

. Brown
checked the box indicating s he “could not presently be convicted of murder or attempted murder because of changes made to5

Penal Code §§ 188 and 189, effective January 1, 2019 ” and asked the court to appoint counsel for her

. On June 5, 2023 t he superior court sum marily 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 resenten c ing . After reviewing the record, appointed co unsel filed a brief that did not identify any arguable issues. Appointed counsel advised Brown
that s he was filing a brief stating s he 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 bec o me a changed responsible woman.” Brown explain ed that she ha s 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 not6

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 felony

murder rule. ( People v. Reyes (2023) 14 Cal.5th 9 81, 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 provis ion (§ 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 s ection 1172.6 a defendant

conv icted 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 the7

petitioner could have been convicted of murder or attempted murder; and (3) the “petitioner could not presently be convicted of

mur der 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 unde r section 1172.6 if she was “ convicted

. . . of murder

. . .

4 The trial court instructed the jury with CALJIC N o. 6.10 as follows : “A conspiracy is an agreement entered into between two or more persons with the specif ic 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 th e 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 c onvictions ”].)

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 1 172.6] .) Because the jury foun d 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 es tablish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition”] .)
N either Brown nor h er appellate counsel has identified a cognizable legal issue, and our independent review has not
identified one either . T he 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 1 06,
118

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

- 442.)

DISPOSITIO N

The order is affirmed.

SEGAL , J.

We c oncur:

MARTINEZ

, P. J.

FEUER , J.