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,

Plaintiff and Respondent,

v.

ERIC BRYANT,

Defendant and Appellant.

 B325593

 (Los Angeles County

 Super. Ct. No. TA016309)

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.
2

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.
3

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 
5

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 
6

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.