Opinion
F084451
03-11-2024
THE PEOPLE, Plaintiff and Respondent, v. KEON ANDRE BRACKENRIDGE, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF170249A Brian M. McNamara, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FRANSON, J.
Keon Andre Brackenridge was denied access to a casino in Bakersfield and was being escorted off the property by several casino employees when he shot and killed one employee and shot at another. As a result, he was convicted of first degree murder, attempted murder, various assault and firearm charges and enhancements, and it was found true that he had one "strike" prior felony conviction.
Brackenridge contends the prior strike finding was not supported by the evidence; that there is insufficient evidence of first degree and attempted murder with premeditation and deliberation, and should have instead been convicted only of voluntary manslaughter based on imperfect self-defense or provocation; and that counsel was ineffective for failing to call an eyewitness. We agree with respondent's concession on the first issue and remand for resentencing. In all other respects, we affirm.
STATEMENT OF THE CASE
Keon Andre Brackenridge was charged by amended information in count 1 with first degree murder (Pen. Code, §§ 187, subd. (a); 189), with use and discharge of a firearm causing death (§§ 12022.5, subd. (a); 12022.53, subd. (d)); in counts 2, 4 and 6 with assault with a firearm (§ 245, subd. (a)(2)), with use of a firearm (§ 12022.5, subd. (a)), and the infliction of great bodily injury (§ 12022.7, subd. (a)); in counts 3 and 5 with willful and premeditated attempted murder (§§ 664/187, subd. (a); 189); in count 7 with discharge of a firearm at an inhabited dwelling (§ 246), with the infliction of great bodily injury (§ 12022.7, subd. (a)) and discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)); and in count 8 with unlawful possession of a handgun (§ 29800, subd. (a)(1)), with use of a firearm (§ 12022.5, subd. (a)) and the infliction of great bodily injury (§ 12022.7, subd. (a)). As to each count, it was alleged Brackenridge had suffered a prior "strike" (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)); a prior serious felony conviction (§ 667, subd. (a)) and served three prior prison terms (§ 667.5, subd. (b)), and multiple aggravating factors were alleged (Cal. Rules of Court, rule 4.421).
All further statutory references are to the Penal Code unless otherwise stated.
At the People's request, the trial court dismissed the section 667.5, subdivision (b) allegations prior to sentencing.
A jury found Brackenridge guilty as charged, except it acquitted him of count 5 (one of the two attempted murder allegations), and it found all the special allegations true. In a bifurcated proceeding, the People asked to dismiss the section 667.5 enhancements, which was granted. The trial court found the prior serious felony conviction allegation true under section 667, subdivisions (a) and (e), and found three of the aggravating factors true.
The trial court sentenced Brackenridge to a total of 33 years plus 114 years to life in prison as follows:
Count 1, murder, a term of 25 years to life, doubled (§ 667, subd. (e)), plus 25 years to life (§ 12022.53, subd. (d)), plus five years (§ 667, subd. (a)); and it imposed and stayed 20 years (§ 12022.53, subd. (c)) and 10 years (§ 12022.5, subd. (a)) pursuant to section 654.
Count 2, assault with a firearm, four years, doubled (§ 667, subd. (e)), plus 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7, subd. (a)), all stayed pursuant to section 654.
Count 3, attempted murder, seven years to life, doubled (§ 667, subd. (e)), plus 25 years to life (§ 12022.53, subd. (d)), plus five years (§ 667, subd. (a)); and it stayed 20 years (§ 12022.53, subd. (c)), 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7) pursuant to section 654.
Count 4, assault with a firearm, four years, doubled (§ 667, subd. (e)), and 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7), all stayed pursuant to section 654.
Count 6, assault with a firearm, four years, doubled (§ 667, subd. (e)), plus 10 years (§ 12022.5, subd. (a)), and it imposed and stayed three years (§ 12022.7) and five years (§ 667, subd. (a)), pursuant to section 654.
Count 7, shooting at inhabited dwelling, seven years, doubled, (§ 667, subd. (e)), 25 years to life (§ 12022.53, subd. (d)), and three years (§ 12022.7), all stayed pursuant to section 654.
Count 8, illegal possession of firearm, three years, doubled (§ 667, subd. (e)), which was stayed pursuant to section 654.
STATEMENT OF THE FACTS
On November 3, 2017, Johnathan Calderon, Richard Iloilo, Jose Lopez, and Manuel Castellanos were all working security detail at the Golden West Casino in Bakersfield. The casino had a policy that anyone under the age of 35 who walked onto the property was required to present identification in order to enter the casino. Sometime between 5:00 and 5:30 p.m., Lopez and Castellanos made contact with Brackenridge in front of the casino and asked him to provide identification, which he refused to do.
Brackenridge repeatedly asked if he needed to be on a list to get into the casino, but was told that all he needed to do was show proof of his age. When Brackenridge asked to speak to a supervisor and to see the casino's policy, Lopez contacted Iloilo, his supervisor, who came out. At this point, Castellanos headed inside the front door of the casino, where he watched through the front windows with Calderon.
With Iloilo present, Lopez again asked Brackenridge for his identification. Brackenridge was a bit belligerent and continued to refuse to show identification, asking Iloilo if he was "the baddest man in Bakersfield." Iloilo said, "No" and again advised Brackenridge he needed to provide identification or security would need to escort him off the property. Brackenridge responded, "Okay well, escort me out then."
Iloilo and Lopez began walking away from the casino with Brackenridge - Lopez on Brackenridge's right and Iloilo on his left. After a few steps, Brackenridge turned to his left and looked at Iloilo, then kept walking. From in the building, Castellano noticed that, after Brackenridge stopped, Iloilo gave Brackenridge "a little courtesy shove" to keep him moving. As captured on the casino surveillance video, Brackenridge then pulled a handgun from his waistband, took a few steps in front of Iloilo and Lopez, and fired at the two.
Lopez grabbed his own firearm and fired back at Brackenridge, who ran to the east parking lot and continued firing shots towards the entrance of the casino. Lopez discharged his entire magazine, which held 10 rounds.
Calderon, who had been inside the casino, ran out of the building and returned fire in Brackenridge's direction. Brackenridge continued to fire his gun five more times towards the casino where Iloilo, Lopez and Calderon were located. Iloilo also fired at Brackenridge as he fled south.
While this was going on, Joseph Crotwell had been working as a card dealer inside the casino, with six customers at table 12, near a front window. Crotwell heard a series of pops and glass in the front window shattered, sending everyone under the tables.
Castellanos took cover behind the wall next to the sliding doors inside the casino, where he directed patrons to stay back. Castellanos estimated there were more than 20 people inside the casino at the time. Castellanos radioed that there had been shots fired and ran outside, where he saw Lopez and Calderon run to the south gate after Brackenridge and noticed Iloilo was on his back, bleeding profusely and having trouble breathing. Iloilo died soon thereafter.
Law enforcement responded to 911 calls that there had been a shooting at the casino. Brackenridge, who ran to a market at the next intersection, also called 911 to report that he had been shot multiple times by the security guards at the casino. Brackenridge was arrested and his nine-millimeter firearm seized.
Officers on the scene found six nine-millimeter Blazer casings, which Brackenridge admitted during his testimony belonged to him. In all, 18 casings were found in the courtyard - 12 were .40-caliber and six were nine-millimeter. Iloilo had fired a Glock .40-caliber handgun. It had one round in the chamber and three in the 10-round magazine. Calderon had fired a .40-caliber handgun, which had one round chambered and eight out of 10 rounds in the magazine. He had also emptied another 10-round magazine. Lopez had fired a Springfield Armory nine-millimeter handgun, which had nine rounds in the magazine and one in the chamber; he also emptied another 10-round magazine.
An autopsy on Iloilo determined that he had suffered three gunshot wounds - one entering his heart, one his left forearm, and one his left buttock.
Defense
Brackenridge testified in his own defense that he had walked to the casino that evening to get something to eat. He carried a loaded firearm with him for protection. Brackenridge testified that he was told he could not enter the casino because he was not on the guest list; he denied ever being asked for identification. Because Brackenridge saw other patrons entering the building, he asked to see a supervisor. Brackenridge insisted that the security guards threatened him and called him various names and told him that, if he did not leave right away, they would "beat my ass" and "basically kill me." Brackenridge testified that, on his way out, Iloilo attacked him by hitting him in the back. Brackenridge then grabbed his gun and fired at Iloilo out of fear. He never intended to kill Iloilo, but only to stop him from attacking him and to defend himself. During the incident, Brackenridge was shot in the wrist and leg.
Brackenridge admitted that he pled no contest to a felony charge in 2011 and, after that, illegally acquired the nine-millimeter Hi-Point firearm he used in the shooting.
DISCUSSION
I. IS THE TRIAL COURT'S FINDING THAT BRACKENRIDGE'S PRIOR CONVICTION FOR VIOLATING SECTION 186.22, SUBDIVISION (A), WAS A STRIKE SUPPORTED BY SUBSTANTIAL EVIDENCE?
Brackenridge contends first that the trial court's finding that his prior conviction for violating section 186.22, subdivision (a) was a strike is not supported by substantial evidence. Respondent agrees, as do we, that the finding must be reversed and remanded to allow for retrial of the prior conviction allegation.
Background
The amended information alleged that Brackenridge was convicted on October 4, 2011, of a prior felony offense under section 186.22, subdivision (a), and Health and Safety Code section 11351, and alleged the conviction constituted a strike for purposes of sections 667, subdivisions (b)-(j) and 1170.12, subdivision (b).
Following the jury guilty verdicts, Brackenridge requested a court trial on the prior convictions and aggravating factors. At the hearing, the People's evidence consisted of the following exhibits as to Brackenridge: his certified CLETS DMV image record; a certified CLETS rap sheet; a certified "969(b) packet" indicating a CDC discharge date of November 13, 2015; and a second packet indicating a discharge date of October 31, 2005. The only court record regarding the 2011 prior strike conviction was the abstract of judgment showing a plea of violating section 186.22, subdivision (a). The exhibits were admitted into evidence and, upon submission, the People rested.
The trial court considered the documents and ruled as follows: "[A]s to the October 4, 2011, Penal Code 186.22(a) and Health and Safety Code Section 11351, the convictions are true . . . and the convictions do qualify under 667(e) and under 667(a). So those are found true beyond a reasonable doubt[.]"
As a result of this finding, Brackenridge's minimum periods of his indeterminate terms were doubled under the three strikes law and each of the determinate convictions, both stayed and unstayed, were doubled under three strikes as well. In addition, pursuant to section 667, subdivision (a), a five-year unstayed term was added to his sentence terms on counts 1 and 3, and a stayed five-year term was added on count 6.
Applicable Law and Analysis
The California three strikes law is contained in section 667, subdivisions (b)-(i), and section 1170.12. (See People v. Williams (1998) 17 Cal.4th 148, 152.) Under section 667, subdivision (e), a defendant is subject to a sentencing enhancement when the defendant has one or more "prior serious or violent felony conviction[s]." As applicable here, if a defendant has one prior serious or violent felony conviction as defined in subdivision (d), "the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided for the current felony conviction." (§ 667, subd. (e)(1).) Under section 667, subdivision (a)(1), "[a] person convicted of a serious felony who previously has been convicted of a serious felony in this state . . ., shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
Brackenridge does not dispute that street terrorism in violation of section 186.22, subdivision (a), qualifies as a strike under section 667, subdivisions (b)-(i), and that it also qualifies as a serious felony under section 667, subdivision (a). Instead, relying on People v. Strike (2020) 45 Cal.App.5th 143 (Strike), Brackenridge asserts that there was insufficient evidence he was convicted of a violation of section 186.22, subdivision (a), as that crime has now been judicially interpreted by People v. Rodriguez (2012) 55 Cal.4th 1125. Respondent agrees that Strike applies here, and reversal and retrial of Brackenridge's prior serious felony conviction is required.
Standard of Review
With certain exceptions, a prosecutor must, "plead and prove each prior serious or violent felony conviction." (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) And, "[d]ue process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt." (People v. Tenner (1993) 6 Cal.4th 559, 566.) In identifying the facts proven by the existence of a prior conviction, "[t]he trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.'" (People v. Gallardo (2017) 4 Cal.5th 120, 134.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1083.) 2011 Conviction Under Section 186.22, Subdivision (a)
Brackenridge concedes that, taken together, the exhibits offered by the People provide sufficient proof that he was convicted of violating section 186.22, subdivision (a) in 2011. His argument is that, as reflected in decisional authority announced after his 2011 conviction, the documents considered by the trial court do not provide sufficient evidence that his prior conviction under section 186.22, subdivision (a), was for a serious felony under the laws current meaning. We consider his argument, but first set out the basic statutory language of section 186.22, subdivision (a), in 2011 and now, and outline the elements of a section 186.22 cause of action.
In 2011, section 186.22, subdivision (a), provided a punishment for "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (Former § 186.22, subd. (a).) This language in section 186.22, subdivision (a), remained the same in 2014 (former § 186.22, subd. (a)).
By 2018, commas were added to offset the phrase "or have engaged in" (former § 186.22, subd. (a); Stats. 2017, ch. 561, § 179), and that language remained in effect until January 1, 2022, (former § 186.22, subd. (a)). The version of section 186.22, subdivision (a), in effect between January 1, 2022, and December 31, 2022, contained nonsubstantive changes, providing a punishment for "A person who actively participates in a criminal street gang..." instead of "Any person who actively participates in any criminal street gang ...." (former § 186.22, subd. (a); Stats. 2021, ch. 699, § 4, italics added.) The version of section 186.22, subdivision (a) that came into effect on January 1, 2023, contained the same language as the 2022 version. (§ 186.22, subd (a).) Between 2009 and the present time, while substantive changes to the greater statutory scheme punishing criminal street gang activity have occurred, the language in section 186.22, subdivision (a), has remained relatively unchanged.
Under section 186.22, subdivision (a), there are three elements to a gang participation offense. (People v. Rodriguez, supra, 55 Cal.4th at p. 1130.) They are, "[f]irst, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Ibid.)
Brackenridge's argument that his 2011 conviction for street terrorism under section 186.22, subdivision (a), is related to the changed understanding that developed after 2011 about the nature of the third element of a section 186.22, subdivision (a) offense. Essentially, Brackenridge asserts that at the time he pled guilty to a conviction under section 186.22, subdivision (a), the subdivision could be interpreted to allow for a gang participation finding when the alleged perpetrator acted alone. However, in 2012, in People v. Rodriguez, supra, 55 Cal.4th at page 1131, our Supreme Court considered "whether the third element" of a section 186.22, subdivision (a) offense "is satisfied when a gang member commits a felony while acting alone," and concluded it is not.
Brackenridge argues that due to this post-2011 change in the understanding of section 186.22, subdivision (a), in order for the trial court to find his 2011 conviction was for a serious felony as contemplated by the three strikes law, the trial court needed to find not only that he had a prior conviction under section 186.22, subdivision (a), as it existed in 2011, but also that he committed the act that lead to his conviction in the 2011 action with another member of the gang rather than alone. He argues that the trial court made no finding that he acted with another gang member, and, more importantly, the documents admitted regarding his prior conviction contain no evidence to support such a finding. He argues that, therefore, the trial court's finding that his 2011 conviction under section 186.22, subdivision (a), was a prior serious felony must be reversed and the matter should be remanded to the trial court for retrial on this prior conviction. Respondent concedes the issue, and we agree.
To support this argument, the parties cite to Strike, supra, 45 Cal.App.5th 143, review denied June 10, 2020. We agree that Strike is instructive on this issue.
In Strike, supra, 45 Cal.App.5th at pages 145 to 146, following a jury trial in which the defendant was found guilty of various crimes, in a bifurcated proceeding, the trial court found the defendant had a prior conviction in 2007 for gang participation under section 186.22, subdivision (a), "which qualified as a 'strike' under the 'Three Strike' law. (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1).)" The trial court doubled the defendant's base sentence due to the strike finding. (Id. at p. 146.)
On appeal, the Fourth District Court of Appeal found that the trial court had engaged in impermissible fact finding to determine that the defendant's 2007 offense was committed with a fellow gang member, and reversed the trial court's findings. (Strike, supra, 45 Cal.App.5th at pp. 147-149.) In so doing, it discussed the impact of the Rodriguez decision in the assessment of when a pre-2012 conviction under section 186.22, subdivision (a), can qualify as a strike under the Three Strikes law. (See Strike, supra, at p. 149, et seq.) The court stated that while the statutory text of section 186.22, subdivision (a), and the basic list of the three elements of a gang participation offense might have remained unchanged between the 2007 date the defendant entered his section 186.22, subdivision (a), plea and 2020, the interpretation of the third element of the gang participation offense had changed with our Supreme Court's issuance of the Rodriguez opinion in 2012. (Strike, supra, at p. 149.) The court observed that, as a consequence, while "at the time defendant entered his [2007] plea, it was not a required element of the gang participation offense that defendant had committed a felony offense with another member of his gang. [¶] ... [¶] [F]ollowing the Supreme Court's decision in Rodriguez, a conviction for gang participation under section 186.22[, subdivision ](a), requires the prosecution to prove the alleged gang member engaged in felonious conduct with another member of his or her gang." (Id. at pp. 149-150.)
As a result, in 2017, when the prosecution sought to prove defendant's 2007 gang participation conviction qualified as a strike in Strike, the understanding of the elements of the offense had shifted. Rodriguez had narrowed the scope of section 186.22, subdivision (a). Certain conduct that was considered gang participation prior to Rodriguez no longer qualified. This change in the interpretation of section 186.22, subdivision (a), rendered a pre- Rodriguez conviction inconclusive on its face as to whether it qualified as a strike. (See People v. Watts (2005) 131 Cal.App.4th 589, 596597 [holding a strike finding was not supported by the record where the defendant pleaded guilty to the offense, a violation of § 12031, subd. (a)(2)(C), prior to a Supreme Court decision clarifying its elements].)
A conviction under section 186.22, subdivision (a), prior to Rodriguez could have been committed in ways that would not warrant a conviction and therefore a strike postRodriguez. Thus, to prove the strike allegation, the prosecution could not simply rely on the fact defendant had pled to a conviction for violating section 186.22, subdivision (a). The prosecution had to prove defendant admitted all of the elements of the offense as explained by Rodriguez, including, as to the defendant in Strike, that he committed a felony offense with another member of his gang. (See People v. Miles, supra, 43 Cal.4th at p. 1082 [an alleged sentence enhancement must be proved beyond a reasonable doubt]; Strike, supra, 45 Cal.App.5th at pp. 149-150.)
We note that Strike was concerned with the application of Rodriguez when, as here, the prior section 186.22, subdivision (a), offense was being used as a strike for purposes of a sentencing enhancement under section 667, subdivision (e). But here, although not mentioned by the parties, we are also concerned with its application when the prior section 186.22, subdivision (a), offense was used to enhance Brackenridge's sentence due to its nature as a serious felony as contemplated under section 667, subdivision (a). In both situations, the court is looking to a list of serious felonies identified in section 1192.7, subdivision (c) - namely subdivision (c)(28)'s reference to "any felony offense, which would also constitute a felony violation of section 186.22." (Strike, supra, 45 Cal.App.5th at p. 146; see also § 667, subds. (a)(1), (a)(4) &(d)(1).) Thus, we find Strike's explanation of the impact of Rodriguez on how we consider pre-2012 convictions under section 186.22, subdivision (a), to be instructive in our consideration of a pre-2012 offense that is also being relied on to support a prior serious felony allegation under section 667, subdivision (a).
Nothing in the record before the trial court suggests that Brackenridge committed the 2011 gang offense with another member of his gang. As such, substantial evidence did not support the trial court's finding that the section 186.22, subdivision (a), conviction qualified as a prior serious felony under section 667, subdivision (a) either. (Strike, supra, 45 Cal.App.5th at pp. 149-150.)
"[R]eversal of a true finding on a prior conviction allegation does not prevent retrial of that enhancement. (People v. Barragan (2004) 32 Cal.4th 236, 241.) As explained in [People v. Gallardo, supra, 4 Cal.5th at page 139], the appropriate remedy is to remand the case to the trial court for a new hearing." (Strike, supra, 45 Cal.App.5th 143.) Thus, on remand, the trial court may hold a new hearing on whether the 2011 section 186.22, subdivision (a), conviction satisfied all the required elements to qualify as a prior strike under section 667, subdivisions (c) through (j) and section 1170.12, subdivisions (a) through (e), as well as a prior serious felony as contemplated under section 667, subdivision (a).
Because we address this issue on the merits, we need not discuss Brackenridge's claim that counsel was ineffective for failing to challenge the validity of the 2011 prior conviction as a strike.
II. IS THERE SUBSTANTIAL EVIDENCE OF PREMEDITATION AND DELIBERATION TO SUPPORT BRACKENRIDGE'S CONVICTIONS FOR FIRST DEGREE MURDER AND ATTEMPTED MURDER?
Brackenridge contends there was insufficient evidence of intent to kill, premeditation, and deliberation to sustain his convictions for first degree murder and premeditated and deliberate attempted murder. We disagree.
Sufficiency of the Evidence
"In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 643.)
Brackenridge was prosecuted for first degree murder and attempted murder on the theory that the actions were willful, deliberate, and premeditated. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(2).) An unlawful killing with express malice, such as a "willful, deliberate, and premeditated killing," is first degree murder. (§ 189, subd. (a).) An unlawful killing with implied malice is second degree murder. (§ 189, subd. (a).)
To prove the crime of attempted murder, the prosecution must establish "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez, supra, 54 Cal.4th at p. 654.)
As a result, the jury had to find there was sufficient evidence of premeditation and deliberations to uphold the first degree murder and attempted murder verdicts."' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation ... does not require any extended period of time." '" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) A decision to kill is ''premeditated" if considered beforehand and "deliberate" if resulting from careful thought and weighing of competing considerations. (People v. Lee (2011) 51 Cal.4th 620, 636.) The required extent of reflection may occur quickly. (Ibid.)
In assessing the sufficiency of evidence of premeditation and deliberation, courts often use the three "Anderson factors": planning (i.e., facts about what the defendant did prior to the killing that show he was engaged in activity toward killing), motive (i.e., facts about the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill the victim), and method (i.e., facts about the manner of killing from which the jury could reasonably infer that the defendant had a preconceived design to take the victim's life in a particular way). (People v. Shamblin (2015) 236 Cal.App.4th 1, 10 &fn. 16 (Shamblin), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27, see also People v. Gonzalez, supra, 54 Cal.4th at p. 664 [applying Anderson factors to conclude rational jury would have found attempted murder was premeditated and deliberate].) The Anderson factors are merely guidelines. (Gonzalez, at p. 663.) Although motive is one Anderson factor, "the lack of a discernable rational motive does not preclude a conviction for first degree premeditated murder." (People v. Whisenhunt (2008) 44 Cal.4th 174, 202, accord, People v. Thomas (1992) 2 Cal.4th 489, 519 [" 'A senseless, random, but premeditated, killing supports a verdict of first degree murder' "].)
Here, a rational jury could have found beyond a reasonable doubt that Brackenridge formed the intent to kill Iloilo and attempted to kill Lopez through premeditation and deliberation to sustain his convictions for murder and attempted murder. Brackenridge admitted at trial that he rode the bus to the casino carrying a concealed loaded firearm for the purpose of defending himself "if necessary," even though he was barred from possessing a firearm as a convicted felon. Evidence that a defendant arms himself prior to an attack can support a finding of planned activity. (People v. Elliot (2005) 37 Cal.4th 453, 471.)
In addition, the surveillance video of the incident, which the jury was shown, shows that Brackenridge had ample time to think about his actions before shooting the victims. One camera recorded Brackenridge speaking with Lopez and then Iloilo for several minutes, neither of whom were standing particularly close to Brackenridge. The video shows no indication that Iloilo or Lopez ever physically threatened Brackenridge or acted aggressively toward him while he was outside the casino. Instead, Iloilo appeared to have been speaking to Brackenridge calmly, while Lopez looked on from several feet away. The video then shows Brackenridge walking towards the right of the casino, with Iloilo and Lopez on either side of him. At one point, Brackenridge stopped walking and paused. It was at this point that Iloilo gave Brackenridge a push or shove on the back to presumably keep him moving. Brackenridge took a couple of quick steps out in front of Iloilo and Lopez, turned back towards them, and began firing.
The surveillance video shows that, not only did Brackenridge have time to consider his actions while speaking with Iloilo and Lopez outside the casino entrance, but he paused when walking with the two of them, reasonably supporting the notion that he premeditated and deliberated before open fire on the security guards. In addition, the video shows Brackenridge shooting Iloilo multiple times from only a few feet away. Gun casings found at the scene appear to show that Brackenridge emptied his gun while shooting towards the security guards and the entrance of the casino. (People v. Harris (2008) 43 Cal.4th 1269, 1287 [defendant's actions implied that he made the decision to kill while he was at the service window and then considered the decision as he walked to the door to commit the murder]; People v. Manriquez (2005) 37 Cal.4th 547, 578 [sufficient evidence showed killing at motel was result of the defendant's premeditation and deliberation when the defendant, armed with a concealed firearm, left his room at the motel, angrily confronted the victim, and fired several times, inflicting multiple wounds to victim's chest].)
Courts have frequently upheld premeditation and deliberation findings where the manner of killing was a close range gunshot to a vital area of the body. Iloilo suffered a fatal gunshot wound to the heart, another wound to the left forearm, and a third gunshot wound to his left buttock. (See People v. Gonzalez and Soliz (2011) 52 Cal.4th 254, 295 [evidence indicated manner of killing where the defendant shot one victim and shot him again when he attempted to crawl away]; People v. Marks (2003) 31 Cal.4th 197, 206 [evidence indicated deliberate manner of killing where the defendant shot a taxi driver in the face in the taxi]; People v. Koontz (2002) 27 Cal.4th 1041, 1082 [evidence indicated deliberate manner of killing where the defendant shot a man in the abdomen in a security guard office].)
Brackenridge contends there was no evidence he had any pre-existing motive concerning the casino or its employees. While this may be true, Brackenridge was described by Lopez as "a little belligerent" when he was asked for identification, and Brackenridge himself testified that he fired at Iloilo and Lopez to "stop the attack" "[b]y force" to defend himself. Thus, while the lack of a discernable rational motive does not preclude a conviction of first degree premeditated murder (People v. Whisenhunt, supra, 44 Cal.4th at p. 202), Brackenridge himself voiced a clear motive for firing at the three.
The facts and circumstances here provide substantial evidence to support the jury's verdict of first degree murder and premeditated and deliberate attempted murder. The Anderson factors support this conclusion. First, Brackenridge's decision to come with a concealed firearm to the casino and then stop and pause before turning around and shooting at the victims is evidence of planning. (See People v. San Nicolas (2004) 34 Cal.4th 614, 658 [the defendant's testimony that he saw victim's reflection in mirror before turning around and stabbing her was evidence of planning, as it established defendant had sufficient time to reflect].) Second, the manner in which Brackenridge killed Iloilo and attempted to kill Lopez - repeated shots from close range - supports an inference of a deliberate decision to ensure death. (See People v. Poindexter (2006) 144 Cal.App.4th 572, 588 [manner of killing supported findings of premeditation and deliberation, where defendant "quickly fired three shots at the victim, with a shotgun, from a relatively close range"]; People v. Gonzalez and Soliz, supra, 52 Cal.4th at p. 295 [same, where killings were accomplished through "a close-range shooting without any provocation or evidence of a struggle"].) Finally, the jury reasonably could have found a motive for the attempted murder, viz., Brackenridge's anger at the victims for insisting that he provide identification and request that he leave the premises and Brackenridge's mistaken perception that he needed to defend himself. (See People v. Williams (2018) 23 Cal.App.5th 396, 410 [the defendant's rage at collapse of his marriage evinced motive for killing his wife].)
In sum, substantial evidence supported the jury's findings that Brackenridge intended to kill Iloilo and attempted to kill Lopez and formed that intent through premeditation and deliberation.
Because we find sufficient evidence to support Brackenridge's murder and attempted murder convictions, we necessarily reject his claim that the evidence only supports a conviction for voluntary manslaughter based on imperfect self-defense or provocation. Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. (In re Christian S. (1994) 7 Cal.4th 768, 773; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.) When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought. (People v. Blakeley (2000) 23 Cal.4th 82, 87 - 88.) Similarly, if a defendant acted under sufficient provocation to cause a person of average disposition to act rashly and without deliberation, the defendant is deemed to have acted without malice and is guilty only of voluntary manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Here, the jury was instructed on these principles pursuant to CALCRIM Nos. 522, 570 and 571. The trial court also instructed the jury on Brackenridge's right to selfdefense pursuant to CALCRIM No. 505. During closing argument, defense counsel did not argue that Brackenridge was guilty of voluntary manslaughter based on unreasonable self-defense or provocation, but instead argued that Iloilo's push, which was evident in the surveillance video shown to the jury, gave Brackenridge the right to legally defend himself. By finding Brackenridge guilty of first degree murder and premeditated and deliberate attempted murder, the jury necessarily rejected Brackenridge's claim of selfdefense or any theories of voluntary manslaughter based on imperfect self-defense or provocation. (People v. Manriquez, supra, 37 Cal.4th at p. 588; People v. Lewis (2001) 25 Cal.4th 610, 646.)
III. WAS DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO CALL A WITNESS?
Brackenridge contends defense counsel performed ineffectively by failing to call a specific witness - casino employee Arthur Morris. We disagree.
Background
At the preliminary hearing, Sheriff's Deputy Kevin Kimmel testified that he interviewed eyewitness Morris, a banker for the casino, at 8:00 p.m. on the day of the shootings. Morris was sitting on a bench in front of the casino entrance when the incident occurred, and overheard the security guards tell an individual he needed identification to enter the casino. Morris also heard Iloilo tell the individual the same or else he would have to leave. When the individual did not leave, Morris heard the individual say," 'You can go ahead and try and escort me off the property.'" Morris then described how the individual took a few steps, stopped in his tracks, turned around, and started shooting before running off.
On cross-examination, defense counsel asked Deputy Kimmel if he remembered Morris stating whether the guards grabbed Brackenridge "in any physical way." After reviewing his report, Deputy Kimmel stated that Morris told him the guards grabbed Brackenridge by his arm as they were escorting him off the property.
Applicable Law and Analysis
"To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant." (People v. Samayoa (1997) 15 Cal.4th 795, 845; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.)" 'When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. "If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' [citation], the contention must be rejected." '" (Samayoa, at p. 845.)
Here, the record sheds no light on why defense counsel chose not to call Morris as a witness. The witness could have been hostile or incriminated Brackenridge. Brackenridge claims that Morris's testimony that the guards grabbed him by the arm corroborated "the most important issues at trial" - that the guards attempted to gain physical control over him leading to his need to defend himself. However, the surveillance video of the incident, which the jury had full access to during deliberations, provided the most accurate recounting of what actually occurred. Accordingly, Brackenridge cannot show he suffered prejudice by counsel's failure to call Morris as a witness and he has therefore failed to establish ineffective assistance of counsel.
DISPOSITION
The court's true finding regarding the prior strike and prior serious felony allegation is reversed and Brackenridge's sentence is vacated. We remand the matter for retrial of the prior conviction allegation and resentencing. In all other respects, the judgment is affirmed.
FRANSON, J.
WE CONCUR: LEVY, Acting P. J., MEEHAN, J.