People v. Brittain CA4/1

Filed 1/5/23 P. v. Brittain CA4/1 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078233

Plaintiff and Respondent,

v. (Super. Ct. No. SCD187149)

LANCE DENE BRITTAIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Reversed and remanded with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Lance Dene Brittain appeals the order denying the petition to vacate his 2007 murder conviction, which he filed based upon postconviction

statutory changes that narrowed the scope of liability for felony murder. The trial court relied on the jury’s robbery-murder special-circumstance finding to deny relief at the prima facie review stage. In our initial opinion, we concluded the jury’s finding did not categorically bar relief, reversed the order, and remanded the matter for further proceedings. The Supreme Court of California granted the People’s petition for review and held the case for its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong), where it held a jury’s true finding on a felony- murder special-circumstance allegation did not preclude a petitioner from making a prima facie showing of eligibility for resentencing when the jury made the finding before the Supreme Court had issued two decisions on key phrases in the statute defining the special circumstance. After the Supreme Court issued its decision in Strong, it transferred Brittain’s appeal to us with directions to vacate our opinion and to reconsider the matter in light of the decision. In compliance with those directions, we hereby vacate our prior opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order denying Brittain’s resentencing petition and remand the matter for further proceedings. I. BACKGROUND A. Underlying Murder Conviction The following quoted paragraphs are taken from our opinion affirming the judgment of conviction against Brittain. “1. The Abramovitz Murder “On July 13, 2004, Brittain and [Larry Ray] Phillips beat Stewart Abramovitz to death in the office of A&R Motors at 7364 El Cajon Boulevard.