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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

TRISTAN LAWRENCE BRACY,

Defendant and Appellant.

C093998

(Super. Ct. No. 95F10098)

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).)

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 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] [coconspirator],] 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.