People v. Grissom CA2/7 ( 2023 )

Filed 8/28/23 P. v. Grissom CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303540
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA026000)
v.
JOHN LEWIS GRISSOM,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Hector M. Guzman, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal;
John Lewis Grissom, in pro. per., for Defendant and Appellant.
Rob Bonta, Attorney General, Noah P. Hill, Supervising
Deputy Attorney General, for Plaintiff and Respondent.
_______________________
John Lewis Grissom, convicted in 1996 of first degree
murder and attempted willful, deliberate and premeditated
murder, appeals the denial of his petition for resentencing
pursuant to Penal Code section 1172.6 (former section 1170.95).1
We originally dismissed the appeal after Grissom’s appointed
counsel filed an opening brief pursuant to People v. Wende (1979)
25 Cal.3d 436 stating he was unable to identify any arguable
issues and Grissom failed to timely file a supplemental letter or
brief identifying any issues he wanted the court to consider. We
subsequently deemed Grissom’s late-filed supplemental brief a
petition for rehearing and denied the petition.
After granting Grissom’s petition for review, on June 28,
2023 the Supreme Court transferred the case to this court with
directions to vacate our prior decision and to consider whether to
exercise our discretion to conduct an independent review of the
record or provide any other relief in light of its decision in People
v. Delgadillo (2022) 14 Cal.5th 216. We have done so and now
affirm the order denying Grissom’s petition for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. Grissom’s Trial and Convictions for Murder and
Attempted Murder
Grissom was charged by information filed in December
1995 with the first degree murder of Darryl Thomas Johnson
(§ 187, subd. (a)); the attempted deliberate, willful and
premeditated murder of Shavon Robinson (§§ 187, subd. (a), 664,
subd. (a)); carjacking (§ 215, subd. (a)); and second degree robbery
(§ 211). The information also alleged Grissom had personally
1 Statutory references are to the Penal Code.
2
used a firearm in the commission of the offenses (§ 12202.5,
subd. (a)).
The evidence at trial established that members of the
Underground Crips, Grissom’s criminal street gang, stole Carl
Simmons’s black Honda Civic at gunpoint shortly before
midnight on April 2, 1995 and then used the car approximately
30 minutes later in a drive-by shooting in the territory of the
Hoover Crips, a rival gang. Johnson and Robinson, both
members of Hoover Crips, were sitting and talking in Johnson’s
car when the shooting occurred. Johnson was killed by one of the
shots; Robinson fled the car without being hit. The incident was
apparently in retaliation for the recent beating of Grissom’s
brother by Hoover Crips gang members.
The prosecutor presented evidence that Grissom was with
the group that stole Simmons’s car, which Grissom then drove to
the apartment complex where Tajuan Randall, another member
of the Underground Crips, lived. Grissom called to Randall, who
came out and spoke to Grissom. The two men then drove away in
separate cars—Grissom in the stolen Civic, and Randall following
him in a white Oldsmobile. One shot was fired from the Civic as
it drove by Johnson’s car. The Civic then backed up and stopped
next to Johnson’s car, at which point a second shot was fired.
Grissom and Randall then drove back to Randall’s apartment
where Grissom hid the rifle used in the attack. Two rifle
ammunition casings were later found in the Civic.2
2 The People’s witnesses at trial included Robinson, who
testified about the shooting from a black vehicle that had pulled
alongside the car in which she and Johnson were sitting; and
Bonnitta Harris, Randall’s live-in girlfriend, who testified that
Grissom came to their apartment complex in a black Honda and
3
In a statement to police following his arrest, Grissom, after
initially denying he had been with Randall on April 2, 1995,
admitted he was present during the carjacking and the murder of
Johnson but denied participating in either offense. He claimed
Randall had shot at Johnson from the Civic’s passenger seat.
Grissom’s testimony at trial was essentially the same. He again
admitted he was present during the carjacking and murder and
insisted he did not participate in either crime. Grissom said he
was in the car that followed the Civic and was four car lengths
behind it when Randall shot at Johnson’s car from the passenger
seat of the Civic.
The trial court instructed the jury, in part, with CALJIC
No. 3.01 on direct aiding and abetting: “A person aids and abets
the commission of a crime when he or she, [¶] (1) with knowledge
of the unlawful purpose of the perpetrator and [¶] (2) with the
intent or purpose of committing, encouraging, or facilitating the
commission of the crime, by act or advice aids, promotes,
encourages or instigates the commission of the crime. [¶] Mere
presence at the scene of a crime which does not itself assist the
commission of the crime does not amount to aiding and abetting.
[¶] Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.”
The People did not argue, and the court did not instruct the jury,
that Grissom could be found guilty of murder under the felony-
spoke to Randall, the two men left with Grissom in the Honda
and Randall driving a white Oldsmobile, and, when they
returned, Grissom was carrying a rifle and said “he got them
niggers for beating up his mama.” The People also called several
sheriff’s deputies involved in the investigation of the crimes and a
gang expert.
4
murder rule or guilty of murder or attempted premediated
murder under the natural and probable consequences doctrine.
The jury found Grissom guilty of first degree murder,
attempted willful, deliberate and premeditated murder,
carjacking and second degree robbery. It also found true the
firearm-use enhancement for carjacking and robbery but not for
murder and attempted murder. The court, after dismissing the
robbery count as included within carjacking, sentenced Grissom
to an aggregate indeterminate state prison term of 31 years to
life. We affirmed Grissom’s convictions on appeal. (People v.
Grissom (Aug. 19, 1997, B104406) [nonpub. opn.].)
2. Grissom’s Petition for Resentencing
On March 11, 2019 Grissom, representing himself, filed a
document he titled, “Motion To Calendar Penal Code § 1170(d)(1)
Hearing To Consider CDCR’s Notation of Disparity In Sentencing
With § 1170.95 Consideration re Declaration of Petitioner.” The
motion stated, in part, it was “made on the Declaration of
Defendant indicating qualification and prima facie basis to find
good cause to § 1170.95 sentencing consideration.”3
3 The August 28, 2018 letter from the California Department
of Corrections and Rehabilitation attached to Grissom’s motion
stated the minute order and abstract of judgment reflected that
the superior court had imposed a three-year term for the
section 12022.5, subdivision (a), firearm enhancement on the
carjacking count, but the triad for that enhancement was actually
four, five or 10 years. The letter then stated, “Please review your
file to determine if a correction is required. When notified by the
Department of Corrections and Rehabilitation that an illegal
sentence exists, the trial court is entitled to reconsider all
sentencing choices.”
5
The superior court deemed Grissom’s motion a petition for
resentencing pursuant to former section 1170.95 and appointed
counsel to represent him in the proceedings. Extensive briefing
ensued. The People filed two oppositions, one contending
section 1170.95 was unconstitutional; a second one arguing
Grissom remained guilty of murder under amended sections 188
and 189. Grissom’s appointed counsel filed a reply to the People’s
constitutional argument. The People then filed a supplemental
opposition addressing the factual and nonconstitutional legal
issues presented by Grissom’s petition, and Grissom’s counsel
followed with a reply that included as exhibits the reporter’s
transcript and jury instructions from Grissom’s trial.
The superior court denied the petition on December 24,
2019 without issuing an order to show cause, finding Grissom
ineligible for relief as a matter of law because the record of
conviction (the instructions and jury verdict) clearly established
he had been convicted of murder and attempted murder as a
direct aider and abettor.
Grissom appealed the denial of his petition.4 We appointed
counsel to represent Grissom in this appeal. On May 20, 2020
Grissom’s appellate counsel notified this court that, after
4 The notice of appeal filed on Grissom’s behalf by counsel
appointed to represent him in the superior court misidentified
the order being appealed as dated December 6, 2019, rather than
December 24, 2019. (See generally In re Joshua S. (2007)
41 Cal.4th 261, 272 [“‘[i]t is, and has been, the law of this state
that notices of appeal are to be liberally construed so as to protect
the right of appeal if it is reasonably clear what [the] appellant
was trying to appeal from, and where the respondent could not
possibly have been misled or prejudiced’”]; Cal. Rules of Court,
rule 8.100(a)(2) [“notice of appeal must be liberally construed”].)
6
examination of the record, he was unable to identify any arguable
issue and asked us to independently review the record on appeal
under People v. Wende, supra, 25 Cal.3d 436. Appellate counsel
also advised Grissom he could submit a letter or brief to this
court within 30 days raising any contentions or arguments he
wanted us to consider.
On May 20, 2020 we also notified Grissom through his
counsel that he could submit a supplemental letter or brief within
30 days. That notice did not state the appeal would be dismissed
if no letter or brief was filed. We thereafter granted Grissom’s
request to extend his time to file a supplemental brief to
August 10, 2020. Having received no response by August 19,
2020, we dismissed the appeal.
On August 25, 2020 Grissom filed his supplemental brief.
Because we had already dismissed the appeal, we deemed the
document a petition for rehearing and denied the petition.
3. The Supreme Court’s Direction To Reconsider Grissom’s
Appeal
Grissom filed a petition for review in the Supreme Court
(S264576), which was granted and initially held pending the
Court’s decision in People v. Lewis (2021) 11 Cal.5th 952. The
Court later granted Grissom’s motion to expand review to
including the issues pending in People v. Delgadillo, supra,
14 Cal.5th 216; further action was deferred pending the decision
in that case. On June 28, 2023 the Supreme Court transferred
Grissom’s case to us with directions to vacate our decision and to
reconsider whether to exercise our discretion to conduct an
independent review of the record or provide any other relief in
light of Delgadillo.
7
Pursuant to California Rules of Court, rule 8.200(b),
Grissom’s appointed counsel filed a supplemental brief after
transfer requesting that we exercise our discretion to conduct an
independent review of the record and otherwise follow the
procedures outlined in People v. Delgadillo, supra, 14 Cal.5th
216. In their supplemental brief after transfer the People
acknowledged our notice to Grissom did not comply with the
requirements articulated in Delgadillo but contended the error
was harmless because we had considered the late-filed
supplemental brief as a petition for rehearing. Alternatively, the
People suggested we could send a new notice to Grissom that
expressly advised him his appeal would be dismissed if he failed
to file a supplemental letter brief and also independently review
the record.
DISCUSSION
1. Section 1172.6 Petitions for Resentencing
Under the ameliorative changes to the law relating to
accomplice liability for murder effected by Senate Bill No. 1437
(Stats. 2018, ch. 1015), malice must be proved to convict a
principal of murder except under the narrowed felony-murder
rule set forth in revised section 189, subdivision (e), and may not
be imputed based solely on an individual’s participation in a
crime (§ 188, subd. (a)(3)), thereby eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843; see People v. Reyes (2023) 14 Cal.5th 981, 984). As amended
by Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective
January 1, 2022, Senate Bill No. 1437’s changes to the law of
murder expressly apply to individuals convicted of attempted
murder and voluntary manslaughter.
8
Section 1172.6 authorizes an individual convicted of
murder under the felony-murder rule or murder or attempted
murder based on the natural and probable consequences doctrine
or any other theory under which malice is imputed based solely
on that person’s participation in a crime to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not now be convicted of
murder or attempted murder under revised sections 188 and 189.
The superior court may not engage in judicial factfinding or make
credibility decisions before issuing an order to show cause
pursuant to section 1172.6, subdivision (c), and conducting an
evidentiary hearing pursuant to section 1172.6, subdivision (d), to
determine whether the People have proved the petitioner is
guilty of murder or attempted murder under current law. (People
v. Lewis, supra, 11 Cal.5th at pp. 970-971.) However, when first
evaluating whether the petitioner has carried the burden of
making a prima facie showing of entitlement to relief, the
superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Id. at p. 971; accord,
People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) “[I]f the
record, including the court’s own documents, contain[s] facts
refuting the allegations made in the petition, then the court is
justified in making a credibility determination adverse to the
petitioner.” (Lewis, at p. 971, internal quotation marks omitted.)
9
2. People v. Delgadillo
In People v. Delgadillo, supra, 14 Cal.5th 216 the Supreme
Court determined the procedures appointed counsel and the
courts of appeal must follow when counsel determines an appeal
from an order denying postconviction relief under section 1172.6
lacks arguable merit. The court of appeal in Delgadillo had
notified the appellant/petitioner that he could file a supplemental
brief or letter after his counsel filed a no-arguable-issue brief but
did not advise him the appeal would be dismissed as abandoned if
no supplemental brief or letter was filed. In addition, although
the court’s notice indicated the Wende independent review
procedures would be applied, the court dismissed Delgadillo’s
appeal as abandoned when he did not file a supplemental letter
and did so without conducting an independent review of the
record on appeal. (Delgadillo, at pp. 222, 224.)
The Supreme Court, explaining there was no constitutional
right to counsel in a postconviction appeal, held the procedures
for independent review set out in People v. Wende, supra,
25 Cal.3d 436 did not apply when the petitioner’s appointed
counsel filed a notice that the appeal from the denial of a petition
for resentencing under section 1172.6 lacked arguable merit.
(People v. Delgadillo, supra, 14 Cal.5th at pp. 222, 231.)
However, the Supreme Court also held, when appointed counsel
files a no-issue brief, the court of appeal must provide notice to
the petitioner concerning his or her right to file a supplemental
letter or brief within 30 days and that notice must advise the
petitioner the appeal will be dismissed as abandoned if no
supplemental brief or letter is filed. (Id. at pp. 222, 231.) If the
petitioner files a supplemental brief, the Supreme Court
continued, “the Court of Appeal is required to evaluate the
10
specific arguments presented in that brief and to issue a written
opinion. The filing of a supplemental brief or letter does not
compel an independent review of the entire record to identify
unraised issues.” (Id. at p. 232.) Finally, the Supreme Court
noted, “[w]hile it is wholly within the court’s discretion, the Court
of Appeal is not barred from conducting its own independent
review of the record in any individual section 1172.6 appeal.”
(Ibid.)
3. Grissom’s Appeal Lacks Any Colorable Merit
The notice sent to Grissom, like the notice in Delgadillo,
failed to advise him his appeal would be dismissed if he failed to
submit a supplemental letter or brief. However, no new notice is
necessary in this case. Because we have vacated our prior
decision, we may now consider the specific issues raised in
Grissom’s late-filed 47-page supplemental brief, as required by
the Delgadillo procedures. In addition, as requested by Grissom’s
appointed counsel and suggested by the People, we exercise our
discretion to independently review the record.
Grissom’s supplemental brief raised three issues. First, in
describing the procedural background of the case in its ruling
denying Grissom’s petition, the superior court stated, “As to the
attempted murder, carjacking, and robbery convictions, the jury
found petitioner personally used a rifle.” Grissom argued this
statement demonstrated he was denied his due process right to
an impartial judge because the jury did not find true the firearm
enhancement allegation on the attempted murder count.5 The
5 Grissom also complains, incorrectly, that the superior court
erred in stating the jury had convicted him of robbery. Although
the trial court dismissed the robbery charge before sentencing,
the jury found Grissom guilty of that crime.
11
court’s misstatement, however, played no part in its
determination that the record of conviction established Grissom’s
ineligibility for resentencing relief as a matter of law. As
discussed, that finding was based on the instructions relating to
murder and attempted murder, the absence of any instructions
involving imputed malice, and the jury’s guilty verdicts on the
substantive offenses, not its findings on the enhancement
allegations.
Second, emphasizing that his March 11, 2019 motion
included a request for a hearing under former section 1170,
subdivision (d)(1), based on the August 28, 2018 letter to the
court from the California Department of Corrections and
Rehabilitation (CDCR) concerning a possible sentencing
discrepancy, Grissom argued the court’s failure to schedule a
hearing on that portion of his motion deprived him of his right to
a judicial determination of his claims. The CDCR letter, however,
was not a recommendation that Grissom be resentenced, as authorized
by former section 1170, subdivision (d)(1), but notice that the trial
court may have incorrectly imposed a three-year term for the firearm
enhancement on the carjacking count, rather than a minimum four-
year term.6 Moreover, in his supplemental letter brief Grissom,
who was 19 years old at the time of Johnson’s murder, explained
6 In 2019 when the superior court deemed Grissom’s motion
to be a petition for resentencing under former section 1170.95,
whether to conduct a hearing pursuant to former section 1170,
subdivision (d)(1), following receipt of a resentencing
recommendation from the CDCR was within the court’s broad
discretion. (See People v. McCallum (2020) 55 Cal.App.5th 202,
215-216.) As subsequently amended and renumbered as
section 1172.1, subdivision (a), a CDCR recommendation may not
be denied without a hearing. (§ 1172.1, subd. (a)(8).)
12
he was seeking an opportunity to exercise his rights under People
v. Franklin (2016) 63 Cal.4th 261 and In re Cook (2019) 7 Cal.5th
439 to supplement the record in his case with information
relevant to an eventual youth offender parole hearing. The
correct procedural vehicle for an inmate to request a
postjudgment evidence preservation proceeding, as the Supreme
Court held in In re Cook, is a motion pursuant to section 1203.01,
subdivision (a) (see In re Cook, at pp 451-454), not a petition or
motion for resentencing. Nothing in the record before us
precludes Grissom from filing a proper section 1203.01 motion in
superior court.
Third, liberally interpreting the final argument in his
supplement letter brief, Grissom contended the record of
conviction did not establish he was ineligible for resentencing
relief as a matter of law because the trial court’s instructions on
express and implied malice pursuant to CALJIC No. 8.11
(“‘Malice Aforethought’—Defined”) explained, “Malice is implied
when: [¶] 1. The killing resulted from an intentional act; [¶]
2. The natural consequences of the act are dangerous to human
life; and [¶] 3. The act was deliberately performed with
knowledge of the danger to, and with conscious disregard for,
human life.” Thus, Grissom argued, the jury may have convicted
him of murder and attempted murder based on the now-invalid
natural and probable consequences doctrine.7
7 Grissom also argued the trial court erred in failing to
instruct, pursuant to CALJIC No. 3.18, that the jury should view
an accomplice’s testimony with caution, seemingly suggesting,
without explanation or record citation, that Randall’s girlfriend,
who testified during the People’s case-in-chief, was an
accomplice. Nothing in our review of the record supports that
contention.
13
As has been repeatedly held, section 1172.6 addresses
theories of imputed malice, not implied malice; and aiding and
abetting implied malice murder remains a valid theory of murder
liability. (People v. Reyes, supra, 15 Cal.5th at p. 990; People v.
Gentile, supra, 10 Cal.5th at p. 850; People v. Maldonado (2023)
87 Cal.App.5th 1257, 1263 [“[d]irect aiding and abetting an
implied malice murder remains a valid theory after the
amendments of Senate Bills 1437 and 775”]; People v. Vizcarra
(2022) 84 Cal.App.5th 377, 390-391 [same].) “[I]mplied malice is
defined, in part, in terms of an act, the natural consequences of
which are dangerous to life. But while the words ‘natural’ and
‘consequences’ overlap, the rest of the two formulations are
completely different. ‘[T]he use of the term “natural
consequences” in the . . . definition of implied malice does not
import into the crime of murder the case law relating to the
distinct “natural and probable consequences” doctrine developed
in the context of aiding and abetting liability.’ [Citation.] [¶] . . .
‘Though [Senate Bill No. 1437] abolished the natural and
probable consequences doctrine, it maintained the viability of
murder convictions based on implied malice, and the definition of
implied malice remains unchanged.’” (People v. Carr (2023)
90 Cal.App.5th 136, 144.)
In any event, the trial court instructed the jury on the
count charging Grissom with the attempted willful, deliberate
and premeditated murder of Robinson with CALJIC Nos. 8.66
and 8.67, which required the jury to find that the individual
shooting at Robinson acted with express malice—“a specific
intent to kill unlawfully another human being”—and with “a
clear, deliberate intent to kill.” For the jury to convict Grissom as
an aider and abettor of the attempted premeditated murder of
14
Robinson, therefore, pursuant to CALJIC No. 3.01 it had to find
Grissom aided the shooter with knowledge that the shooter, when
firing at the car in which Johnson and Robinson were sitting,
expressly intended to kill and that Grissom acted with his own
intent to facilitate the commission of a murder—that is, that
Grissom acted with express malice.
In addition to reviewing the issues raised by Grissom in his
supplemental brief, we have exercised our discretion and
independently reviewed the record and, like Grissom’s appointed
counsel, have identified no cognizable legal issues. Accordingly,
the order denying Grissom’s petition for resentencing is affirmed.
(See People v. Delgadillo, supra, 14 Cal.5th at pp. 231-232; see
also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see
generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v.
Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
15