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Filed 11/4/20 P. v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY BROWN,

Defendant and Appellant.

 A157170

 (City & County of San Francisco 

 Super. Ct. No. SCN159271)

Gregory Brown is serving a sentence of 56 years to life in prison as a 

result of his 1995 convictions for conspiracy to commit murder and attempted 

murder. In 2019, Brown filed a petition for resentencing under Penal Code 

section 1170.95 (section 1170.95; subsequent statutory references are to this 

code). The trial court denied Brown’s petition, finding he was ineligible for 

relief. We affirm.

BACKGROUND

I. The 1995 Convictions

The facts underlying Brown’s 1995 convictions are summarized in 

People v. Brown, et al. (Jan. 28, 1998, A072126) [nonpub. opn.] (Brown I).

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Brown and two other individuals were tried on charges they conspired and

1 This court has granted Brown’s request to take judicial notice of the 

appellate record in Brown I. 
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attempted to murder Robin Williams, an ostensible long-time friend of 

Brown’s. Brown’s codefendants were his apartment mate, Wanda Fain, and 

Fain’s close friend, Joseph Diggs. 

Trial evidence showed that, on an early morning in January 1995, 

Brown was arrested at his apartment following a police search and seizure of

drugs and a weapon. (Brown I, at p. 2.) Williams, who frequently visited 

Brown at his apartment, was present when Brown was arrested. She gave 

police a statement confirming that she had seen Brown with the gun and 

drugs. Several days later, Williams was visiting a neighbor when Brown and 

Fain showed up there. (Brown I, at p. 3.) Brown waited outside while Fain 

came into the house, handed Williams an envelope and told her Brown 

wanted to talk. The envelope contained an explicit picture of Williams and a 

threatening note. Williams was too afraid to talk to Brown that day, but 

about a week and a half later, they had a conversation at Brown’s apartment. 

Brown told Williams that she should “ ‘stay out of sight’ ” and he would take 

care of her as long as she did not testify against him. (Ibid.) After this 

conversation, Williams felt safe and resumed visiting Brown.

On February 7, 1995, which was three days before Brown’s preliminary 

hearing, Williams went to Brown’s apartment in the afternoon. (Brown I, at 

p. 3.) Brown was out but Fain and Diggs were there, and Williams consumed 

“ ‘a lot’ ” of cocaine, which Fain supplied. Williams left for a while and when 

she returned, Brown and Fain were having a private conversation. So

Williams left again, returning about five minutes later. Then Fain asked if 

Williams wanted to go to a house where people engaged in prostitution. 

Williams agreed to go because she wanted more cocaine. (Ibid.) Williams, 

Fain and Diggs left the apartment at around 7:30 p.m., traveling by bus and 

on foot. At one point, they walked down Jerrold Street, the women talking 
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and laughing together while Diggs walked behind them. (Id. at p. 4.) At 

approximately 8:30 p.m. that evening, Williams was found lying unconscious 

on Jerrold Street. She had been shot in the back of the head with a semiautomatic pistol. Williams survived but did not remember being shot. She 

told police that the last people she remembered being with were Fain and 

Diggs and she suspected Brown may have been involved. (Ibid.)

The jury returned verdicts convicting Brown, Fain and Diggs of 

conspiracy to commit first degree murder. (§§ 182 & 187.) (Brown I, at p. 1.) 

All three defendants were also convicted of attempted premeditated murder. 

(§§ 187 & 189/664.)2 As to Brown, the jury found true an allegation that one 

of the principals was armed with a firearm during the commission of these 

crimes. (§ 12022.) In a separate proceeding, the court found Brown suffered 

a prior serious felony conviction, which also constituted a strike. (§ 667.) 

II. Senate Bill 1437

In 2019, the California Legislature modified the law relating to 

accomplice liability for murder. “Senate Bill 1437, which became effective 

January 1, 2019, was enacted based on the Legislature’s express finding that 

‘[i]t is necessary 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.) It did so by amending section 188, which defines malice 

aforethought, and section 189, which addresses felony-murder liability. 

2 Fain and Diggs were also convicted of assault with a firearm (§ 245) 

and Diggs incurred an additional conviction for possession of a firearm by a 

felon (§ 12021).
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(Stats. 2018, ch. 1015, §§ 2, 3.)” (People v. Alaybue (2020) 51 Cal.App.5th 207, 

212–213 (Alaybue).) 

Because the felony-murder doctrine is not relevant to this appeal, we 

focus our discussion on the amendment to the definition of malice 

aforethought. Murder is defined in section 187 as “the unlawful killing of a 

human being . . . with malice aforethought.” Malice is defined in section 188,

which states in part: “(a) For purposes of Section 187, malice may be express 

or implied. [¶] (1) Malice is express when there is manifested a deliberate 

intention to unlawfully take away the life of a fellow creature. [¶] (2) Malice 

is implied when no considerable provocation appears, or when the 

circumstances attending the killing show an abandoned and malignant 

heart.” 

Senate Bill 1437 added a new provision to section 188, subdivision 

(a)(3) (section 188(a)(3)). This provision states: “Except as stated in 

subdivision (e) of Section 189, in order to be convicted of murder, a principal 

in a crime shall act with malice aforethought. Malice shall not be imputed to 

a person based solely on his or her participation in a crime.” When the 

Legislature enacted section 188(a)(3), it “stated in the uncodified statutory 

findings and declarations that it intended that ‘[a] person’s culpability for 

murder must be premised upon that person’s own actions and subjective 

mens rea.’ (Stats. 2018, ch. 1015, § 1.)” (Alaybue, supra, 51 Cal.App.5th at 

p. 213.)

Senate Bill 1437 also added section 1170.95, the provision Brown seeks 

to invoke in the present case. (See Alaybue, supra, 51 Cal.App.5th at p. 213.) 

Section 1170.95 provides, in part: 

“A person convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court that 
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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 or accepted a plea offer in lieu of a trial at which the 

petitioner could be convicted for first degree or second degree murder. [¶] (3) 

The petitioner could not be convicted of first or second degree murder because 

of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, 

subd. (a).)

Under this resentencing scheme, if the petitioner is found eligible for 

relief, his or her conviction is vacated and the petitioner is resentenced “on 

any remaining counts in the same manner as if the petitioner had not . . . 

previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) If “murder was 

charged generically, and the target offense was not charged,” then the 

petitioner’s murder conviction must be “redesignated as the target offense or 

underlying felony for resentencing purposes.” (§ 1170.95, subd. (e).)

III. Brown’s Section 1170.95 Petition

On February 26, 2019, Brown filed a petition under section 1170.95

without the assistance of counsel, which was captioned as a petition to vacate 

his “MURDER” conviction. In the petition itself, Brown acknowledged that 

he was not convicted of murder, but of conspiracy to commit first degree 

murder and attempted murder. Brown claimed his conspiracy conviction had 

to be vacated under section 1170.95 because (1) he was not an active 

participant in the shooting of Williams and therefore (2) under the current 
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law, he could not be convicted based on a theory of felony murder or the 

natural-and-probable consequences doctrine. 

On March 6, 2019, the People filed an “Initial Response” to Brown’s 

petition. The People argued that Brown was not entitled to relief under 

section 1170.95 because he was not convicted of murder and that section 

1170.95 does not apply to Brown’s convictions for conspiracy to murder and 

attempted murder. 

On March 8, 2019, the trial court held a hearing to determine whether 

Brown’s petition stated a prima facie case for relief under section 1170.95. At 

the hearing, Brown was represented by appointed counsel, both parties 

submitted the matter without presenting an oral argument, and the court 

stated that it had considered all papers filed by both sides. The court then 

found that section 1170.95 does not apply to a conviction for conspiracy to 

commit murder. The court also noted that “it does not look like the felony 

murder rule was involved or natural probable consequences rule was involved 

in Mr. Brown’s conviction.” Accordingly, the court denied Brown’s petition on 

the ground that he did not state a prima facie case for relief under section 

1170.95. 

DISCUSSION

Brown contends the trial court erred by denying his petition because 

(1) section 1170.95 applies to a defendant who was convicted of attempted 

murder and/or conspiracy to commit murder based on the natural-andprobable consequences doctrine, and (2) Brown’s 1995 convictions for these 

crimes may have been based on the natural-and-probable consequences 

doctrine. Putting aside the fact that Brown’s petition did not seek to vacate 

his attempted murder conviction, we reject both prongs of this appellate 

argument.
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I. Section 1170.95 Applies to Murder Convictions

First, we conclude that Brown is ineligible for relief under section 

1170.95 because he was convicted, not of committing murder, but of 

attempting and conspiring to do so. The language of section 1170.95 applies 

only to convictions for “felony murder or murder under a natural and 

probable consequences theory.” (§ 1170.95, subd. (a).) Section 1170.95 does 

not, on its face, reach the crimes of attempted murder or conspiracy to 

commit murder. 

Brown argues that section 1170.95 must be read as applying to 

attempted murder in order to effectuate legislative intent. This argument 

has been repeatedly rejected by the appellate courts. To the extent Brown

claims otherwise, he conflates two distinct legal issues.

There is a split of authority as to whether Senate Bill 1437 abrogates 

the natural-and-probable consequences doctrine as a theory of establishing 

accomplice liability for attempted murder. (Compare People v. Lopez (2019) 

38 Cal.App.5th 1087, 1103–1107 (Lopez), review granted Nov. 13, 2019, 

S258175, with People v. Larios (2019) 42 Cal.App.5th 956, 969–970 (Larios), 

review granted Feb. 26, 2020, S259983.)

Courts following Lopez conclude that the Legislature did not intend for 

Senate Bill 1437 to affect convictions for attempted murder, as evidenced by 

unambiguous language in section 188(a)(3) and the senate bill as well as the 

pertinent legislative history. (Lopez, supra, 38 Cal.App.5th at pp. 1104–1105;

People v. Munoz (2019) 39 Cal.App.5th 738, 753–760 (Munoz), review granted 

Nov. 26, 2019, S258234; People v. Dennis (2020) 47 Cal.App.5th 838, 844–847 

(Dennis), review granted July 29, 2020, S262184; see also Alaybue, supra, 51 

Cal.App.5th at p. 222.) 
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A different view, expressed by the Fifth District Court of Appeal, 

concludes that the amended definition of malice in section 188(a)(3) must be 

read to apply to the crime of attempted murder because malice aforethought 

is an element of both murder and attempted murder. (Larios, supra, 42 

Cal.App.5th at p. 964–968; People v. Medrano (2019) 42 Cal.App.5th 1001, 

1013–1016 (Medrano), review granted March 11, 2020, S259948; People v. 

Sanchez (2020) 46 Cal.App.5th 637, 642–644 (Sanchez), review granted June 

10, 2020, S261768.) According to these cases, amended section 188 is an 

ameliorative change to the criminal law applicable to defendants whose 

attempted murder convictions are not yet final. (Ibid.)

Notwithstanding their conflicting holdings regarding the application of 

Senate Bill 1437, both lines of authority agree that section 1170.95’s 

resentencing procedure is not available to people previously convicted of 

attempted murder whose convictions are now final. (Lopez, supra, 38 

Cal.App.5th at pp. 1104–1105; Munoz, supra, 39 Cal.App.5th at p.754; 

Dennis, supra, 47 Cal.App.5th at p. 845–846; Alaybue, supra, 51 Cal.App.5th 

at p. 223; Larios, supra, 42 Cal.App.5th at pp. 968–970; Medrano, 42 

Cal.App.5th at pp. 1016–1018.) Indeed, the Lopez court found that the 

language of section 1170.95 “underscored” the Legislature’s “intent to exclude 

attempted murder from the ambit of the Senate Bill 1437 reform,” as section 

1170.95 refers repeatedly to a petitioner’s “ ‘murder conviction.’ ” (Lopez, at 

pp. 1104–1105.) Despite the Fifth District’s different interpretation of other 

aspects of Senate Bill 1437, its Larios line of authority agrees with Lopez that 

unambiguous language in section 1170.95, subdivision (a) limits application 

of this resentencing statute to convictions for “ ‘felony murder or murder 

under a natural and probable consequences theory.’ ” (Larios, at p. 969

[quoting § 1170.95, subd. (a)].) Larios also quotes with approval the Lopez
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court’s explanation of “ ‘sound policy reasons’ ” that may have caused the 

Legislature to limit section 1170.95 only to murder cases. (Larios, at p. 969.)

Brown urges us to depart from this general consensus. He contends 

that the Fifth District cases are correct to the extent they hold that the 

definition of malice aforethought in amended section 188(a)(3) necessarily 

applies to attempted murder and, by extension, to conspiracy to murder. 

And, according to Brown, the same analysis of Senate Bill 1437 that allegedly 

compels this conclusion also requires that section 1170.95 be construed to 

apply to people serving a prison sentence for attempted murder or for 

conspiracy to commit murder. We are not persuaded.

As a preliminary matter, we disagree with Brown that attempted 

murder and conspiracy to murder are indistinguishable for purposes of 

implementing Senate Bill 1437. The natural-and-probable consequences 

doctrine operates differently in conspiracy cases than in attempted murder 

cases. When a defendant is charged with conspiracy to commit murder, the 

target offense of the conspiracy is murder and, therefore, proof of an intent to 

kill is required to support a conviction for this crime. (People v. Swain (1996) 

12 Cal.4th 593, 599–601.) Only where the target offense is something other 

than murder is the natural-and-probable consequences doctrine implicated. 

A conspirator whose target crime is, for example, robbery or assault, may be 

convicted of murder based on a natural-and-probable consequences theory 

because he or she “is criminally responsible for the acts of fellow conspirators 

committed in furtherance of, and which follow as a natural and probable 

consequence of, the conspiracy.” (People v. Guillen (2014) 227 Cal.App.4th 

934, 998.) However, in that situation an actual murder occurs and the 

amended definition of malice in section 188(a)(3) squarely applies. 
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In any event, the question presented by this appeal is how to apply 

section 1170.95. The consensus view that section 1170.95 is limited to 

discrete categories of murder convictions and that it excludes all other 

convictions is consistent with the statutory language and is supported by 

legitimate reasons for limiting this relief to certain murders, rather than 

including attempt crimes that are not as severely punished. (See Alaybue, 

supra, 51 Cal.App.5th at p. 225.) To the extent the law is less established

with regard to a conviction for conspiracy to commit murder, we need not 

come to rest on this point since the facts in this case establish that Brown 

was not convicted on a natural-and-probable consequences theory, the subject 

to which we now turn.

II. Brown Was Not Convicted Under the Natural-And-Probable 

 Consequences Doctrine

Even if section 1170.95 could apply to Brown’s crimes, the record does 

not support Brown’s factual claim that his convictions for conspiracy and 

attempted murder may have been based on the natural-and-probable 

consequences doctrine.

“[C]onspiracy is a specific intent crime requiring an intent to agree or 

conspire, and a further intent to commit the target crime, [i.e.], the object of 

the conspiracy.” (People v. Swain, supra, 12 Cal.4th at p. 602.) Here, Brown 

was charged with and convicted of conspiracy to commit first degree murder. 

On the verdict forms, the jury made an express finding that Brown conspired 

to commit murder and that his target offense was murder in the first degree. 

They specifically found, as one of the overt acts in furtherance of this 

conspiracy, that between January 7 and February 7, 1995, Brown encouraged

Fain and Diggs to murder Williams. Thus, the jury necessarily found that 

Brown himself acted with malice aforethought. 
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Brown contends that the jury may have relied on the natural-andprobable consequences doctrine to impute to him the malice of one of Brown’s

coconspirators. As evidence of this, Brown relies on the fact that the jury was 

instructed with CALJIC No. 6.11, which states that a member of a conspiracy 

is guilty of not just the crime that the conspirators have agreed to commit 

“but is also liable for the natural and probable consequences of any crime or 

act of a coconspirator to further the object of the conspiracy, even though 

such crime or act was not intended as a part of the original plan . . .” In 

presenting this argument, Brown ignores that the target offense of his 

conspiracy was first degree murder. Brown was not accused of having 

conspired to commit some lesser offense and then convicted of murder based 

on his status as a member of this lesser conspiracy. Thus, his conviction for 

conspiracy to murder could not have been based on the natural-and-probable 

consequences doctrine. (See e.g. People v. Beck and Cruz (2019) 8 Cal.5th 

548, 645.) 

Nor do we find any indication that Brown’s attempted murder 

conviction was based on a natural-and-probable consequences theory of 

imputed mens rea. The jury instructions pertaining specifically to the 

attempted murder charge made no reference to this doctrine. Nor was Brown 

accused of attempting or intending to commit any crime other than murder. 

(Compare e.g. People v. Favor (2012) 54 Cal.4th 868 [attempted murders were 

natural and probable consequence of target robbery offenses].) Nevertheless, 

Brown argues the jury may have imputed a codefendant’s malice onto him

because he was prosecuted for attempted murder under an aider and abettor 

theory. This argument is unsound. 

As the jury was instructed, attempted murder is a specific intent crime; 

it requires the specific intent to kill and the commission of a direct but 
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ineffectual act toward that end. (See People v. Lee (2003) 31 Cal.4th 613, 

623.) The jury was also instructed that a person who aids and abets the 

commission of a crime acts “with knowledge of the unlawful purpose of the 

perpetrator and . . . . [¶] . . . with the intent or purpose of committing, 

encouraging, or facilitating the commission of the crime.” Thus, if Brown’s 

attempted murder conviction was based on an aider and abettor theory, the 

jury must have found that he had the intent to kill. (See Lee, at p. 624.)

Brown argues the jury may have been confused or misled to believe 

that a codefendant’s malice could be imputed to him because the jury was 

instructed with CALJIC former No. 3.00, which has been disapproved. The 

version of CALJIC former No. 3.00 that was used at Brown’s trial states that 

persons “who are regarded as principals in the crime,” and are considered 

“equally guilty thereof,” include those who “directly and actively commit or 

attempt to commit the act constituting the crime” and those who “aid and 

abet the commission or attempted commission of the crime.” Brown posits 

that CALJIC former No. 3.00 is confusing and that it may have misled the 

jury to think that an aider and abettor and a direct perpetrator are always

“equally guilty.” 

Our State Supreme Court has found that CALJIC former No. 3.00 is a 

correct statement of the law, but the instruction “could be misleading in a 

case in which the principals might be guilty of different crimes and the jury 

believes the instruction prevents such a verdict.” (People v. Johnson (2016) 

62 Cal.4th 600, 640.) For example, in People v. Nero (2010) 181 Cal.App.4th

504, 518, the jury in a murder case involving multiple defendants asked 

whether it could find an aider and abettor defendant guilty of a greater or 

lesser degree of murder than her codefendant who was the actual killer. The 

trial court’s only response was to re-read CALJIC former No. 3.00, which 
13

could have misled the jury to conclude that it could not find the aider and 

abettor defendant guilty of a lesser degree of murder than her codefendant. 

(Ibid.; See Johnson, at p. 641.)

Here, the record does not support Brown’s contention that his jury may 

have been misled by CALJIC former No. 3.00. Brown cites no evidence 

suggesting that his mental state was less culpable than that of his 

codefendants. Moreover, in convicting Brown of conspiracy to murder, the 

jury made an express finding that Brown “did encourage [Fain and Diggs] to 

murder Robin Williams.” Ignoring these facts, Brown intimates that this 

case is like People v. Nero, supra, 181 Cal.App.4th 504 because the jury asked 

a question during deliberations, which led the court to re-read CALJIC 

former No. 3.00. We are not persuaded by this argument, which fails to 

consider the substance of the jury’s question. The jury asked whether a 

conspirator had to be present at the scene of the crime to be convicted of 

attempted murder. This question had nothing to do with the mental 

culpability of an aider and abettor. Instead, the jury was grappling with 

evidence suggesting that Brown was not present when Williams was shot. It

was this circumstance that explains why Brown was prosecuted as an aider 

and abettor. The prosecution theory at trial was that Brown had the motive 

and intent to kill Williams, and the jury specifically found that he encouraged 

Fain and Diggs to commit the murder. 

Finally, Brown contends that this court’s 1998 opinion in Brown I

demonstrates that the natural-and-probable consequences doctrine was 

involved in his convictions. Brown I addressed several issues specific to each 

codefendant and found, among other things, that substantial evidence 

supports Brown’s convictions. The analysis of Brown’s attempted murder 

conviction includes a general discussion of principles governing aider and 
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abettor liability, but it does not establish that the natural-and-probable 

consequences doctrine played a role in Brown’s convictions. Indeed, Brown I

concludes its recitation of the substantial evidence supporting Brown’s 

conviction for attempted murder with the observation that the jury could 

reasonably have inferred Brown “advised or encouraged the attempt to 

murder Williams,” which would have made him a direct aider and abettor of 

this crime.

DISPOSITION

The judgment is affirmed.
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_________________________

TUCHER, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

STREETER, J.

People v. Brown (A157170)