Opinion
B321402
02-07-2024
THE PEOPLE, Plaintiff and Respondent, v. DAITREON THOMAS BROWDER, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA481424. Laura F. Priver, Judge. Affirmed in part, reversed in part, and remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
Daitreon Browder was convicted of murder (Pen. Code,§ 187, subd. (a)), premeditated attempted murder (§§ 664 &187, subd. (a)), shooting from a motor vehicle (§ 26100, subd. (c)), and shooting at an occupied motor vehicle (§ 246). The jury found true the special circumstance allegations that the murder was committed by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)) and that the murder was committed for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)). The jury also found true allegations as to all four counts that a principal used and discharged a firearm causing great bodily injury and death within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1) and the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced appellant to life without the possibility of parole for the murder conviction, 25 years to life for the section 12022.53 firearm enhancement, and a consecutive term of 15 years to life for the attempted murder conviction. The court stayed appellant's sentence on the remaining two counts pursuant to section 654.
Undesignated statutory references are to the Penal Code.
Appellant appeals from the judgment of conviction, contending his conviction should be reversed in light of recently enacted Assembly Bill No. 333, which requires bifurcation of gang allegations at the request of the defendant. He contends that the true findings on the gang enhancement and the gang special circumstance allegations must also be reversed due to changes made by Assembly Bill No. 333 as to proof of predicate criminal acts. Finally, appellant contends that this case should be remanded to permit the trial court to reconsider the firearm enhancement in light of amendments to section 1385 made by Senate Bill No. 81.
We reverse the true findings on the section 186.22 gang enhancement allegations and the section 190.2, subdivision (a)(22) gang-related special circumstance allegation and remand to permit a new trial. The trial court is instructed to exercise its discretion concerning imposition of the firearm enhancement in light of amended section 1385. We affirm the judgment of conviction in all other respects.
BACKGROUND
Appellant has raised sentencing issues which require very little consideration of the facts of the underlying offense, and so we summarize those facts only briefly.
On September 4, 2019, about 1:10 p.m., Timothy Phillips began backing his gray car out of the driveway outside his house on South Harvard Boulevard. James Carter, a passenger in the car, knocked Phillips's cigarette out of his hand. Phillips stopped his car near the curb and bent down to pick up his cigarette.
Phillips heard several gunshots as glass began breaking all over the car. Phillips noticed that Carter had been shot and appeared to be unconscious. He drove to a friend's house and put Carter into her car. She drove Carter to the hospital. Carter died from the gunshot wound.
Phillips returned to his home and spoke with police. He told them he saw a four-door burgundy vehicle with tinted windows, which looked like a Mitsubishi or a Mazda. It was the only car on the street. Phillips believed there were two people inside, and that the shots came from the passenger side of the vehicle. He did not hear anything before the shooting began, and nobody in the burgundy vehicle said anything to him.
At trial, Phillips denied that he saw anything.
Much of the police investigation focused on video surveillance footage. Police recovered footage from about 20 locations.
At trial, Detective John Flores testified that surveillance footage from September 4, 2019, showed appellant and Levon Tippit driving a 2003 burgundy Toyota which was registered to appellant. Video surveillance footage from a house on La Salle Avenue captured a partially obscured view of events on Harvard Boulevard. The footage showed Phillips walking from his front door to his driveway. It then showed Phillips's gray car backing out of the driveway and stopping along the curb. The video showed a white vehicle stop about 20 feet before the intersection with 89th Street, back up and then move forward onto 89th Street, going west. About 1:13 p.m., appellant's burgundy Toyota appeared next to Phillips's car, paused for two to three seconds and then turned right onto 89th Street. Phillips's car immediately went south on Harvard Boulevard.
At trial, Inglewood Police Department Detective Samuel Bailey testified as an expert on gangs, primarily in Inglewood. One such gang is the Inglewood Family Bloods, which has a number of cliques, including the 80th Street clique. Detective Bailey opined that appellant and Tippett were members of the Inglewood Family Bloods and that appellant belonged to the 80th Street clique.
The prosecution offered evidence of three predicate offenses, all committed in 2016 by Inglewood Family Blood gang members: an assault by means of force likely to produce great bodily injury by Maasai Lopez, an attempted murder by Mitchell Grace, and a first degree murder by Kenny Birdine. Detective Bailey provided additional information about the facts of the offenses.
According to Detective Bailey, the Inglewood Family Bloods are enemies and rivals of the Neighborhood Crips, including the Rolling 90's Neighborhood Crips. The Rolling 90's claim as their territory the intersection of 91st Street and Hobart Boulevard, which is one block from Harvard Boulevard.
In response to a hypothetical mirroring of the facts of this case, Detective Bailey opined that the shooting was committed for the benefit of, at the direction of, and in association with a criminal street gang. He described the benefit as "to establish and maintain the fearsome reputation I talked about with their rivals and the neighborhood . . . and law enforcement." The direction and association elements were satisfied by the fact that two gang members committed the shooting in concert.
DISCUSSION
A. Failure to Bifurcate the Section 186.22 Enhancement Allegations Was Harmless.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) amended the Penal Code to add section 1109, which requires bifurcation of section 186.22 gang enhancement allegations upon request by the defendant. Appellant contends the amendment applies retroactively to his case and requires a new trial. We do not agree.
As the parties note, there is a split of appellate authority on the retroactivity issue and the California Supreme Court has granted review to decide this issue. (People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743 [§ 1109 applies retroactively]; People v. Perez (2022) 78 Cal.App.5th 192, review granted Aug. 17, 2022, S275090 [§ 1109 does not apply retroactively]; People v. Ramirez (2022) 79 Cal.App.5th 48, review granted Oct. 12, 2022, S275341 [same]; People v. Boukes (2022) 83 Cal.App.5th 937, review granted Dec. 14, 2022, S277103 [same].)
Even if section 1109 operated retroactively, reversal would not be required in this case. Failure to bifurcate does not constitute structural error, and the Watson standard for state law error applies when examining whether the failure to bifurcate was prejudicial with respect to an appellant's guilty verdicts. (People v. Tran (2022) 13 Cal.5th 1169, 1208-1209 (Tran).) Under the Watson standard, any error here in failing to bifurcate was not prejudicial because even if the gang enhancement allegations had been bifurcated, the gang evidence would have been admissible at trial to prove the special circumstance allegation against appellant pursuant to section 190.2, subdivision (a)(22). Section 190.2, subdivision (a)(22) renders first degree murder punishable by death or life without the possibility of parole if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).)
We agree with our colleagues in the Fifth District Court of Appeal that because section 1109 makes no reference to section 190.22, subdivision (a)(22), it does not apply to the determination of a special circumstance allegation under section 190.2, subdivision (a)(22). (People v. Montano (2022) 80 Cal.App.5th 82, 114 (Montano).) Because the gang evidence would have been admitted at trial to prove the section 190.2, subdivision (a)(22) special circumstance allegation, appellant was not prejudiced by the failure to bifurcate. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 ["To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled"]; People v. Osband (1996) 13 Cal.4th 622, 667 [if evidence is cross-admissible, prejudice is dispelled].
Appellant contends Montano was wrongly decided because it permits a prosecutor to avoid the bifurcation requirements of section 1109 by adding a section 190.2 gang special circumstance allegation in addition to a gang enhancement allegation under section 186.22. Specifically, appellant contends (1) Montano's analysis is wrong because it relies on section 1109's failure to expressly mention section 190.2, subdivision (a)(22), but such an express mention was unnecessary because an allegation under section 190.2, subdivision (a)(22) necessarily encompasses allegations under section 186.22, subdivisions (a) and (b); (2) when a prosecutor alleges a section 186.22, subdivision (b) gang enhancement in addition to the gang special circumstance allegation under section 190.2, the failure to bifurcate the special circumstance allegation is necessarily a failure to bifurcate the section 186.22, subdivision (b) allegation; (3) the analysis is based on the incorrect conclusion that bifurcation of the section 190.2 allegation was prohibited by section 190.1; (4) the interpretation of section 1109 would undermine the Legislature's intent in enacting that section, which was to preclude the admission of gang evidence before the jury decided guilt; and (5) the interpretation would lead to an absurd result in special circumstance murder cases, that is, it would encourage prosecutors to charge special circumstance allegations in gang cases for the purpose of rendering gang evidence admissible as to the murder charge.
Whatever the overlap between sections 186.22 and 190.2, subdivision (a)(22), they are in fact separate and distinct code sections. Section 1109 mentions only one of those two sections, that is section 186.22. We cannot add the section the Legislature omitted. "When construing a statute, our job is 'simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.'" (People v. Bell (2015) 241 Cal.App.4th 315, 321.)
The remainder of appellant's contentions are all based on the supposition that the Legislature must have intended to treat the gang special circumstance allegation exactly the same as the section 186.22 gang enhancement allegations for lesser crimes, and for both to be subject to bifurcation at the defense's request. The norm in special circumstance cases is for the special circumstance allegation to be tried with the underlying murder charge. The Legislature has specifically exempted the special circumstance of section 190.2, subdivision (a)(2), involving prior convictions for murder, from this rule. It could have done so for the gang special circumstance allegation but did not. Again, we cannot add what the Legislature has omitted.
B. The Evidence Is Insufficient to Support the True Findings on the Section 186.22 Allegations and Section 190.2 Special Circumstance Allegations.
Appellant contends there is insufficient evidence to support the true findings on the section 186.22 gang enhancement allegations and the section 190.2, subdivision (a)(22) gang-related special circumstance allegation because the predicate offenses admitted to show a pattern of criminal activity were each committed by an individual gang member, not two or more gang members as required after the passage of Assembly Bill 333. We agree.
"Assembly Bill 333 made the following changes to the law on gang enhancements: . . . [W]hereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) . . . Assembly Bill 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).)" (Tran, supra, 13 Cal.5th at p. 1206.) There is no dispute that this and other changes to section 186.22 apply retroactively to all cases not yet final on appeal. (Tran, at p. 1206.)
There is another split in authority as to whether those changes can constitutionally apply to the section 190.2, subdivision (a)(22) gang-related special circumstance, because that special circumstance was added by Proposition 21. The California Supreme Court has granted review to resolve this issue. (See People v. Rojas (2022) 80 Cal.App.5th 542, review granted Oct. 19, 2022, S275835 [amended definition unconstitutional]; People v. Lee (2022) 81 Cal.App.5th 232, review granted Oct. 19, 2022, S275499 (Lee) [amended definition constitutional].)
We find the reasoning of Lee to be persuasive and apply it here. We agree that when the voters reenacted section 186.22, subdivision (f) without substantive change as part of Proposition 21, "the voters left intact the Legislature's power to amend the definition of a criminal street gang in section 186.22, subdivision (f)." (Lee, supra, 81 Cal.App.5th at p. 242.) We further agree that applying the amendments to the gang-murder special circumstance is fully consistent with the purpose of Proposition 21, since it "does not change the punishment for 'murderers who kill as part of any gang-related activity,' the relevant purpose of Proposition 21." (Lee, at pp. 243-244.)
Turning to the actual changes to section 186.22, there is a split of appellate authority as to whether the word "collectively" requires each predicate offense to be committed by two or more gang members, and the California Supreme Court has granted review to resolve this issue. (People v. Clark (2022) 81 Cal.App.5th 133, review granted Oct. 19, 2022, S275746.)
We have previously indicated that section 186.22, as amended, requires the prosecution "to prove collective, not merely individual, engagement in a pattern of criminal gang activity." (People v. Lopez (2021) 73 Cal.App.5th 327, 344-345 [evidence that gang member William Vasquez committed two murders in 2005 and gang member Guillermo de Los Angeles committed a carjacking and robbery in 2005 would not be sufficient to prove collective engagement under amended section 186.22].) We agree with the subsequent decision in People v. Delgado (2022) 74 Cal.App.5th 1067, that "proof that individual gang members committed the predicate offenses on separate occasions is [insufficient] to show the gang members 'collectively' engaged in a pattern of criminal activity." (Id. at p. 1073.)
Here, the records of conviction offered by the prosecution to prove the predicate offenses showed only one defendant was charged and convicted in each case. Respondent contends Detective Bailey's testimony about the three offenses showed that a second person participated in each offense. We agree that Detective Bailey's testimony provided some indirect evidence that a second person participated in the crimes, but for the predicate offenses committed by Maasai Lopez and Mitchell Grace, the detective did not testify that the second person was a gang member. The detective's testimony about the third predicate offense does suggest that the unidentified uncharged second person was a gang member, but the detective did not testify that he had first-hand knowledge of the identity of the second person.
Even if the evidence for this predicate offense were sufficient to support a gang enhancement, it would be the only predicate offense committed by two gang members. Section 186.22 requires two or more predicate offenses, and the current offense may not be used to show the predicate activity. (§ 186.22, subd. (e)(1), (2).) Thus, reversal would still be required.
The true findings on the section 186.22 enhancements and the section 190.2, subdivision (a)(22) special circumstance finding are reversed and remanded for a new trial, if the People so elect.
C. Resentencing is Appropriate for the Firearm Enhancement in Light of Senate Bill No. 81.
Senate Bill No. 81 (2021-2022 Reg. Sess.), enacted in 2021, amended section 1385 to specify various factors that the trial court must consider in deciding whether to strike enhancements in the interests of justice. As relevant here, amended section 1385, subdivision (c)(2)(B) provides that when multiple enhancements have been imposed, all but one "shall" be dismissed and section 1385, subdivision (c)(2)(C) provides that when the application of an enhancement could result in a sentence of over 20 years, the enhancement "shall" be dismissed. (§ 1385, subd. (c)(2)(B), (C).)
Appellant contends these provisions would apply to the 25 years-to-life section 12022.53 enhancement. He acknowledges that notwithstanding the use of the word "shall," several Courts of Appeal have held that trial courts maintain discretion to impose an enhancement if dismissing it would endanger public safety. (People v. Mendoza (2023) 88 Cal.App.5th 287, 290-293; People v. Anderson (2023) 88 Cal.App.5th 233, review granted Apr. 19, 2023, S278786 (Anderson); People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21; People v. Walker (2022) 86 Cal.App.5th 386, 391, review granted Mar. 22, 2023, S278309.)
The issue under review in Walker is "Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to 'afford great weight' to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?" (People v. Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023.) Briefing has been deferred in Anderson pending resolution of this issue.
Appellant contends that, pending further guidance from the Supreme Court, the matter should be remanded for resentencing to permit the trial court to consider the factors in amended section 1385 and exercise its discretion to decide whether to strike the section 12022.53 enhancement. We agree. (See, e.g. People v. Ochoa (2020) 53 Cal.App.5th 841, 852-853 [where the record is at the very least ambiguous as to the whether the trial court understood and exercised its sentencing discretion, remand is appropriate].)
DISPOSITION
We reverse the true findings on the section 186.22 gang enhancement allegations and the section 190.2, subdivision (a)(22) gang-related special circumstance allegation and remand to permit a new trial on these allegations. We remand the sentence on the firearm enhancement to permit the trial court to exercise its discretion under section 1385. The judgment of conviction is affirmed in all other respects.
We concur: GRIMES, J. VIRAMONTES, J.