People v. Brandon CA2/5 ( 2021 )

Filed 11/1/21 P. v. Brandon CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300932
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA073477)
v.
CHRISTOPHER LAMAR
BRANDON, et al.,
Defendants and
Appellants.
APPEALS from judgments of the Superior Court of the
County of Los Angeles, Daviann L. Mitchell, Judge. Affirmed, in
part, reversed, in part, and remanded with directions.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant Christopher Lamar Brandon.
John P. Dwyer, under appointment by the Court of Appeal,
for Defendant and Appellant Acorri Patton.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________
I. INTRODUCTION
In a joint trial, separate juries found defendants
Christopher Lamar Brandon and Acorri Patton guilty of first
degree felony murder and first degree robbery and also found
true, among others, robbery and burglary special circumstance
allegations. On appeal, they contend that there was insufficient
evidence to support the felony murder and special circumstance
findings and that they received ineffective assistance of counsel.
They also raise various other challenges, individually and jointly,
including to certain aspects of their sentences. We vacate the
murder conviction and special circumstance findings as to Patton
and remand to the trial court with directions to conduct a
resentencing hearing as to Patton and to modify the sentence as
to Brandon. We otherwise affirm.
II. FACTUAL BACKGROUND
A. The Victim
In August 2017, 64-year old Vincent Roper (the victim)
lived alone in a two-story home on Patty Court in Palmdale. He
kept his home “very clean” and “very neat and orderly.”
2
Marquisha Kirklin, a friend of the victim’s daughter, saw
the victim a few times a week and spoke to him almost daily.
According to Kirklin, the victim liked to cook and she had seen
him using pots and pans while cooking. None of the pots and
pans she had seen him use had dents in them or handles broken
off.
Francis Tulanda had been married to the victim’s daughter
for 10 years, but the two divorced in January 2017. Brandon was
Tulanda’s long-time friend and had attended Tulanda’s wedding
to the victim’s daughter.
B. Events Prior to the Victim’s Murder
Two or three months before his death, the victim told
Kirklin that he “‘[g]ot one over’ on . . . Tulanda[.]” The victim
also told his daughter that he “‘fucked’” Tulanda. Kirklin
understood that the victim was referring to money or drugs when
he made those statements.
Around the Monday before his murder, Kirklin took the
victim to a doctor’s appointment. The following Wednesday
morning, the victim texted Kirklin, and that was the last time
she heard from him.
When Kirklin did not hear from the victim by Friday,
August 25, 2017, she became worried. She texted and called him
but received no replies. On Friday morning, Kirklin and her
husband went to the victim’s house to check on him. As she
walked toward the front door, she saw what looked like a “muddy
[footprint].” Kirklin tried the front doorknob, and it was
unlocked. As she pushed open the door, she saw that the house
had been ransacked. Once she saw the condition of the interior of
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the house, she did not venture further inside. Instead, she called
911.
C. Murder Scene
On August 25, 2017, deputies with the Los Angeles County
Sheriff’s Department responded to the victim’s home. When the
deputies entered the house, they observed glass fragments and
broken picture frames on the floor. It looked like the living room
furniture had been “thrown around.” The deputies observed
footprints “traveling to and from th[e] front door” and shoe
impressions on an outdoor mat as well. Investigators determined
there were three distinct types of shoe impressions left at the
scene; two different types of shoe impressions were from larger
shoes and one other type was left by smaller shoes.
Inside the front door, there was broken glass, shoe
impressions, and photographs on the tile entryway floor, as well
as damaged photographs and other intact photographs hanging
on the wall facing the door. In the living room adjacent to the
entryway, there was a bicycle that had fallen, couches that had
been moved, and more shoe impressions. The living room
appeared “to be disheveled[, as if] a fight occurred in th[e]
residence, and there was blood throughout that room.” There
also were “pots, handles, [and] numerous items” in that room.
One pot was dented and had a handle broken off. There were
bloodstains on the pot and the couch.
The deceased victim was lying face down on the floor of the
kitchen. At the entrance to the kitchen from the living room,
there was a pink canister of pepper spray. In the kitchen itself,
there was a “lot of blood throughout the kitchen floor, [on]
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kitchen cabinets, [and on the] refrigerator. There [were]
numerous [other items, including] a grease fryer, pots, pans, and
. . . dry blood.”1
On the stairway leading to the second story, there were
bloody shoe prints going up the stairs and bloodstains on the
railings and walls.
In the second-story master bedroom, there were bloodstains
on the bed cover and, in the closet, there was a broken broom
handle near where the carpet and padding had been pulled up to
expose the wood floor underneath. The deputies also found a gun
inside a dresser drawer.
In the rear second-story bedroom, there were significant
bloodstains on the wall upon entry, including bloodstains near
the light switch. An investigating detective also noticed blankets
on the ground, drawers opened, and more bloodstains. In the
closet, the carpet and padding had been pulled up, as well as a
square portion of the plywood flooring. Where the plywood had
been removed, there was “a hollow space . . . at the bottom of the
closet” with a bloodstained knife in it. From the condition of the
hollow space, the detective determined that “something was there
and [had been] taken.”
D. Autopsy
A deputy medical examiner for the Los Angeles County
Department of Medical Examiner-Coroner performed the autopsy
of the victim and determined that he suffered a total of seven
sharp force wounds—six to his head and one to his face. The
1 A criminalist testified that a deep fryer found in the
kitchen was “heavily dented.”
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victim also had a contusion to the chest, abrasions to the back of
one arm, an abrasion to the upper back, and two broken ribs.
The medical examiner concluded that the victim died from
exsanguination from stab wounds, i.e., he bled to death. The stab
wounds caused hemorrhaging from the wounds and the blunt
force trauma to the victim’s head caused hemorrhaging into
tissue. Given the amount of blood around the victim, as shown in
the crime scene photos, it would have “taken [the victim]
minutes, but not hours, to die.”
E. DNA Evidence
A criminalist for the Los Angeles County Sheriff’s
Department crime laboratory compared certain samples taken
from the victim’s home against defendants’ DNA. The DNA
profile obtained from a bloodstain on the interior face of the
victim’s front door matched Brandon’s DNA profile. Brandon’s
DNA profile also matched the sample taken from a bloodstain on
the coffee table in the living room. The DNA profile obtained
from the pink canister of pepper spray was consistent with at
least three contributors, two of whom were Patton and the victim.
F. Brandon’s Arrest2
On March 22, 2018, Detective Joseph Valencia went to a
residence on East 113th Street in Los Angles. Deputies had
observed Brandon at the residence during an earlier surveillance
operation and Brandon provided this as his address during his
2 The evidence about the details of Brandon’s arrest was
presented only to his jury.
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booking. When the detective arrived at the scene, Brandon’s
family members at the residence3 directed him to the converted
garage. The garage appeared to be a living quarters because it
contained a bed, personal belongings, and its own bathroom. It
also had a computer system, recording and sound mixing
equipment, foam sound proofing on the walls, and headsets.
On the bed in the converted garage, a deputy saw a Crown
Royal bag that contained a loaded semiautomatic handgun.
Another deputy recovered ammunition from the garage in “a few
different calibers.”
G. Perkins4 Operation
During the course of his investigation, Detective John
Duncan identified Tulanda and Brandon as suspects in the
murder. On March 22, 2018, Tulanda and Brandon were
arrested. That same day, detectives conducted a Perkins
3 The detective saw four or five people at the residence,
including children and an elderly woman.
4 “In Illinois v. Perkins (1990) 496 U.S. 292 . . . [(Perkins)],
the United States Supreme Court held that a criminal suspect
who makes incriminating statements is not entitled to Miranda
warnings ‘when the suspect is unaware that he is speaking to a
law enforcement officer and gives a voluntary statement.’ (Id. at
p. 294; see Miranda v. Arizona (1966) 384 U.S. 436 . . .
[(Miranda)]; see also People v. Williams (1988) 44 Cal.3d 1127,
1141–1142 . . . [stating Miranda ‘has never been applied to
conversations between an inmate and an undercover agent’].)”
(People v. Foster (2021) 61 Cal.App.5th 430, 434, fn.1.)
7
operation.5 At the beginning of the operation, Brandon was
placed in a cell with the Perkins agent, who engaged him in
conversation about the reasons for and the circumstances of their
respective arrests. Brandon told the agent that he shot “videos.
[He] engineer[ed], produced. [He did] music.”
A short time later, a deputy interrupted Brandon and the
agent, informing Brandon that he was being charged with
murder and confirming for Brandon that his bail was $1 million.
The agent and Brandon then proceeded to discuss whether
the detectives had any incriminating information, with Brandon
surmising that they may know about his phone. When the agent
asked if there was someone else involved, Brandon replied, “A
bitch.” According to Brandon, he “was just with her” and she had
his phone, but she “got rid of it” “that same day.” The agent
responded, “[W]hat the broad got to do with it though?” and
Brandon replied, “[S]he met this motherfucker . . . .”
At that point, a deputy placed Tulanda in the cell with
Brandon, but the two men acted as if they were strangers.
Brandon was then removed from the cell, leaving Tulanda alone
with the agent. The agent proceeded to engage Tulanda in
conversation, during which the agent explained that he was
originally arrested for a fight that put his opponent in a coma. In
response, Tulanda commented that he “got into a fight with
someone too,” complaining that investigators were “trying to say
[he] killed someone, but [he] didn’t do it. [He] got into a fight
. . . . [But he did]n’t know what happened to [the victim] after
that.” According to Tulanda, “[the victim] didn’t die, when [he]
5 A detective described a Perkins operation as a planned
procedure during which investigators place a criminal suspect in
a cell with an undercover agent and record their conversations.
8
was there, so [he didn’t] know what happened after [he] was
gone.”
The agent next asked where Tulanda and the victim
fought, and Tulanda replied, “At [the victim’s] house. He . . .
owed [Tulanda] some money,” “[a] lot of [money] . . . .” The agent
followed up, inquiring how much the victim owed, and Tulanda
replied, “Sixty grand.” The agent then asked whether Tulanda
got his money back, and Tulanda said, “No,” the victim “had
spent it already.” Tulanda mused that he “should have just left it
alone.” Asked why the victim owed him $60,000, Tulanda said it
was for “[w]eed.”
Tulanda added: “So when I tried to go back to get it,
(INAUDIBLE) all my shit was done. So I’m like, bro where is my
money? He pulled out a gun on me, he’s like, it’s mine now. I’m
like are you serious? O.K. Alright.”
Tulanda maintained that he then went back for his money
alone, without a gun, and “[w]hooped [the victim’s] ass.” But he
did not go “there to kill [the victim. He] didn’t want him to die.”
He “just wanted to get [his] shit” and to “[t]each [the victim] a
lesson.” Tulanda also claimed that he asked the victim “for the
money first.” But the victim “started giving [Tulanda] some
bullshit, so [he] just whoop, whoop, whoop.” Tulanda again
confirmed that no one went with him, “no big homeys . . . or
nothing[.]”
The agent asked what Tulanda “hit [the victim] with,” and
Tulanda replied, “Man, just my fists.” Tulanda then apparently
showed the agent his finger, stating, “That shit broke when I
(INAUDIBLE) [the victim].” The agent responded, “It broke?
Damn. It’s still broke,” to which Tulanda replied, “Yeah. . . .
[T]his bent to the side.” The agent was curious whether the
9
victim “went out,” prompting Tulanda to explain that the victim
“went out,” but then “woke up” two minutes later when “we
looked for the money” “[a]round the house . . . .” Tulanda was
certain the victim had a safe, but he “just couldn’t find it.”
Deputies then entered the cell and exchanged Brandon for
Tulanda, whom the agent immediately engaged in conversation.
The agent told Brandon that Tulanda “was saying something
about he . . . whooped on somebody. He [stole] something. [¶]
. . . [¶] . . . But he said he was by himself.” Brandon responded
by admitting that he knew Tulanda.
When Brandon informed the agent that Tulanda got his
money back, the agent replied that Tulanda “said it was like
sixty” and asked how Tulanda got it “with[out a] burner,”
referring to a gun. Brandon explained that he “sent [his] bitch
. . . in there,” apparently referring to Patton, because Brandon
knew from Tulanda that the victim had previously pulled a gun
on Tulanda. Brandon also said that he had a sawed-off blower,
i.e. shotgun, but had been forced by financial circumstances to
sell it before the robbery.
According to Brandon, Patton advised him to “go in there
with[out a] gun. [She said they should] do it smooth[;] let [her] go
in there and trick [the victim] out.” Because Patton did not know
the victim, she would introduce herself by telling him that her
son’s “‘drone fell in the [victim’s] back[yard].’”
Brandon then changed the topic to his interview with
detectives, saying that one of the detectives advised him that he
had been arrested for murder. When the agent asked how
investigators could prove that charge, Brandon claimed that he
did not leave any blood at the scene and that he could not have
10
left hair because it was “braided up.” He also maintained that
“[i]t was a[n] accident.”
When the agent again focused on the money Tulanda took
from the victim, Brandon disclosed that the victim was Tulanda’s
ex-father-in-law and that Tulanda knew the money was in a
closet under the carpet. The agent wondered why Tulanda would
beat the victim, prompting Brandon to speculate that the victim
must have felt he was “in power” because he had a gun.
The agent next inquired, “[H]ow did [the victim] go out all
the way?” Brandon reported that the victim said defiantly,
“[F]uck that shit. . . . [Y]ou gunna kill me? (INAUDIBLE) You
gotta kill me?” The agent then clarified, “But I’m talking about
your (INAUDIBLE). That’s what I’m saying (INAUDIBLE)[.]”
Brandon explained, “(INAUDIBLE) hit [the victim] with pots.
Like whatever around. So he don’t get back up no more.” The
agent reiterated, “He finally didn’t get up, huh?” and Brandon
replied, “Hell yeah.” Asked if the victim screamed, Brandon said
no and added that there were no witnesses and that they had
thrown the victim’s phone away in the mountains.
Brandon reported that he was told by the deputy that his
DNA was “‘all over the house.’” When the agent offered that
“other than having to wrestle with [the victim], it was easy,”
Brandon disagreed and responded, “Aw that shit wasn’t easy.”
The agent was curious why Brandon and his companions
did not just wait until the victim left to rob the home. According
to Brandon, the victim “had this Rottweiler, [an] ADT security
[system, and a gun]. [And, they d]idn’t know the [victim’s]
schedule.” Brandon and his companions were also aware that
any time the victim left his house, he armed the security system.
11
The agent returned to the extent of Patton’s involvement,
and Brandon explained that she went to the victim’s house “for a
blunt.” When the victim stepped inside to “the kitchen to light
it,” Patton, who was sitting by the front door, signaled Tulanda
and Brandon to come. The two men “jump[ed] over the gate and
slid[] in—[and] that [was] when [Brandon and the victim ran]
into each other” at the front door. A “wrestling match” ensued in
the home’s entryway during which Tulanda joined the fray and
Patton closed the front door.
Brandon next detailed how Patton “low key saved [his] life
. . . .” She was supposed to pepper spray the victim, but instead
she sprayed Brandon in the mouth, causing him to lose his
breath and sit on the couch to “try to get [his] wind.” While
Brandon was temporarily incapacitated, Patton “kept [the victim]
down,” “whacking [him] with the pot.”
Deputies eventually returned Tulanda to the cell, where he
and Brandon talked about their respective interviews. Deputies
then removed the agent from the cell, and Tulanda asked
Brandon what incriminating information the investigators had.
Brandon said the detectives claimed to have blood evidence, but
that was “bullshit. (INAUDIBLE) they d[id]n’t have no blood.”
Tulanda then wanted to know more about “Promise,” i.e.,
Patton, and Brandon assured him that she was “straight” and
that the investigators “d[id]n’t have nothing on her.” Following
further conversation between Brandon and Tulanda, much of
which was inaudible, the detectives ended the Perkins operation
and escorted the two men to their respective cells.
12
H. Brandon’s Interview6
While the Perkins operation was ongoing, Detectives
Duncan and Valencia took Brandon to a separate room to
interview him. Before the interview, Detective Duncan advised
Brandon of his Miranda rights. Brandon denied knowing the
victim, denied having been in Palmdale, and claimed that it was
“completely weird” that his blood had been found at the crime
scene.
I. Arrest and Interview of Patton7
Following the Perkins operation, Detective Valencia
listened to jail house calls, trying to identify the woman Tulanda
and Brandon referred to as “Promise.” Among others, he listened
to a call between Brandon and “Promise,” during which she
informed him that she was going to appear in court to clear up
some warrants. In response, Brandon cautioned her not to allow
deputies to “‘swab’” her. Phone numbers provided during
monitored calls were researched by a crime analyst who
determined that they belonged to Patton.
On May 15, 2018, Detective Valencia took part in an
operation to arrest Patton. That same day, he and Detective
6 Evidence concerning Brandon’s interview with detectives,
including the audio recording of it, was presented to Brandon’s
jury only.
7 Evidence concerning Patton’s arrest and interview by
detectives, including the audio recording of the interview, was
presented to Patton’s jury only.
13
Duncan interviewed her, and delivered certain advisements to
her.8
Patton admitted that Brandon was her ex-boyfriend and
that they met in September 2015, but claimed they broke up in
December of that year. She “stopped talking to him for a long
time because he was real abusive,” and that was why “[she] left.”
Her family did not “want [her] around him.”
Patton had heard through Brandon’s mother that he had
been arrested. But she denied being in contact with Brandon
since he had been jailed. She also denied knowing Tulanda.
The detectives confronted Patton with information from the
Perkins operation and accused her of lying. She then claimed
that she “just got them in the house, and then that was it.” She
also asserted that she “didn’t want nobody to get hurt.”
According to Patton, Tulanda said that the victim had robbed
him at gunpoint of $100,000, so “they were just going to rob the
guy back . . . .”
At first, the plan was for Tulanda and Brandon “to go by
[themselves]. And then . . . [Brandon] changed the plan” and
made Patton participate. Brandon did not want anyone “to get
killed,” so he needed Patton to “get them in the house . . . .”
The new plan was for Patton “‘to use [her] sex appeal’” and
“to put Visine in [the victim’s] drink” so he would “go to sleep”
and Tulanda and Brandon could gain entry to the house.
Brandon told Patton “what to do, and [she] just did it.” Brandon
told Patton that “Visine makes people go to sleep. It don’t kill
him . . . .”
8 We discuss the details of the advisement in the discussion
section below.
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Patton first made contact with the victim after Brandon
told her to knock on the door and tell him that her son’s drone
had fallen in his yard. Patton complied, exchanged phone
numbers with the victim, and left.
The next day, Patton and Brandon stole Visine from a gas
station to put in the victim’s drink. According to Patton, she only
placed three drops in the victim’s drink because “she didn’t want
to over doze it.” The Visine did not work as intended because the
victim stayed up all night watching television. Patton drank and
had sex with the victim and then fell asleep. In the morning,
Patton dressed and left. Tulanda and Brandon were angry with
her because she fell asleep.
Patton did not talk to the victim “for a couple of days after
[she] had spent the night.” But the victim eventually called her
and “asked [her] to come over . . . .” Patton went to the victim’s
house and sat outside the front door drinking with him. The
victim said Patton “could roll the blunt” and went into the house
to get an item to break down the marijuana. Tulanda and
Brandon then jumped over a gate and “rushed [the victim into]
the house” as he was coming out of the front door. When Patton
entered the house, she had to calm Brandon down because he
could not breathe after Tulanda “sprayed the mace.” She denied
that she had sprayed Brandon, but admitted that she had
handled the pink pepper spray container when she and Brandon
purchased it.
The detectives then asked Patton to describe the events
that took place after Tulanda and Brandon entered the house.
She said that when the two men rushed in “they were all . . .
fighting.” Brandon had the victim in a chokehold and Tulanda
“was trying to grab him too,” but “he was . . . squirming and
15
fighting,” “three big old guys just fighting . . . .” Tulanda was
“holding [the victim] but he [was also] socking him in the face
. . . .” The fight moved from the entryway to the living room and
then to the kitchen where the men fell to the ground with
Tulanda on top of the victim “punching him.” Tulanda was
“hitting [the victim] with his hands, and then . . . [i]t was all
types of shit, just swinging and flying.”
Patton saw Brandon grab a knife and stab the victim, but
“[t]he knife wouldn’t go through.” Patton did not remember
“exactly where [Brandon] was stabbing [the victim],” but she
remembered him throwing the knife because “it didn’t work.”
Then Brandon “started grabbing stuff because [the victim]
wouldn’t stop moving.” Patton saw blood coming from the
victim’s head and became scared.
While the two men were assaulting the victim, Tulanda
directed Patton to “go upstairs and get the money.” He told her it
was underneath the carpet in a bedroom closet. She complied
and pulled up the carpet, but she couldn’t pull up the “little
square piece” of wood, so she asked Tulanda “for something to get
it up with” but “they were still down there fighting.” Tulanda
eventually came upstairs with “a little hammer,” and “popped it
open,” while Brandon was still “fighting [the victim].” Patton saw
Tulanda take a safe from the space he had exposed.
Patton tried to convince Tulanda and Brandon to leave
because she was scared. Tulanda told her to start cleaning up,
but she protested, saying, “‘No, let’s just go. Let’s just go.’”
Patton started throwing pots and pans in the sink, but denied
using them to hit the victim. Tulanda then gave her a towel and
“told [her] to wipe up stuff.” Patton said, “‘No’” and ran out.
16
Patton went to the car and entered the passenger side.
When Brandon and Tulanda “got done,” they came to the car;
Brandon entered the rear passenger seat and Tulanda, who was
carrying a safe, entered the driver’s seat. Brandon opened the
safe with a pair of fingernail clippers, and Patton saw that there
“was a [lot] of money [inside].”
III. PROCEDURAL BACKGROUND
Following a joint trial before separate juries, Brandon’s
jury found him guilty on count 1 of first degree murder in
violation of Penal Code section 187, subdivision (a)9; on count 2 of
first degree robbery in violation of section 211; and on count 3 of
possession of a firearm by a felon in violation of section 29800,
subdivision (a)(1). His jury also found true: the robbery and
burglary special circumstance allegations within the meaning of
section 190.2, subdivision (a)(17)(A) and (G); the personal use of a
deadly weapon allegation within the meaning of section 12022,
subdivision (b)(1); and the personal infliction of great bodily
injury allegation within the meaning of section 12022.7,
subdivision (a).
The trial court sentenced Brandon on count 1 to life
without the possibility of parole, plus a one-year enhancement
pursuant to section 667.5, subdivision (b); on count 2 to a high
term of six years, plus an additional one-year term for the
personal use of a weapon enhancement, and a three-year term for
the great bodily injury enhancement, all of which the court
9 All further statutory references are to the Penal Code
unless otherwise indicated.
17
stayed; and on count 3 to a consecutive two-year middle-term
sentence.
Patton’s jury found her guilty on count 1 of first degree
murder in violation of section 187, subdivision (a) and on count 2
of first degree robbery in violation of section 211. Her jury also
found true: the robbery and burglary special circumstance
allegations within the meaning of section 190.2, subdivision
(a)(17)(A) and (G); but found not true the personal use of a deadly
weapon allegation within the meaning of section 12022,
subdivision (b)(1) and the personal infliction of great bodily injury
allegation within the meaning of section 12022.7, subdivision (a).
The trial court sentenced Patton on count 1 to life without
the possibility of parole and on count 2 to the high term of six
years, which the court stayed.
IV. DISCUSSION
A. Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence in
support of the jury’s findings on the felony murder counts and the
robbery and burglary special circumstance allegations,
contending that the evidence against them did not show either
that they intended to kill the victim or that they acted with
reckless indifference to human life. Brandon also challenges the
sufficiency of the evidence in support of the jury’s findings that he
(1) personally used a dangerous weapon and (2) caused great
bodily injury. And, Brandon maintains that there was
insufficient evidence to support the verdict on the felon in
possession of a firearm count.
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1. Standard of Review
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27 . . . .) In so
doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’ (People v. Kraft (2000) 23 Cal.4th 978, 1053 . . . .) The
same standard of review applies to the sufficiency of the evidence
supporting special circumstance findings. (People v. Chatman
(2006) 38 Cal.4th 344, 389 . . . .)” (People v. Powell (2018) 5
Cal.5th 921, 944.)
2. Felony Murder and Special Circumstance Findings
a. Legal Principles
The prosecution proceeded against both defendants under a
felony murder theory of liability. That theory sought to impose
liability under section 189 based on defendants’ participation in
two statutorily enumerated underlying felonies, robbery and
burglary. “[A] participant in enumerated crimes is liable under
the felony-murder doctrine only if he or she was the actual killer;
or, with the intent to kill, aided and abetted the actual killer in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
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human life. (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v.
Lopez (2019) 38 Cal.App.5th 1087, 1099–1100, 1102–1104 &
fn. 9[, review granted Nov. 13, 2019, S258175] . . . .)” (People v.
Munoz (2019) 39 Cal.App.5th 738, 749, fn. omitted, review
granted Nov. 26, 2019, S258234.)
The prosecution also sought to increase the penalty for
first-degree murder against both defendants based on a special
circumstances murder theory under section 190.2. The “standard
under section 189, subdivision (e)(3) for holding . . . a defendant
liable for felony murder is the same as the standard for finding a
special circumstance under section 190.2[, subdivision] (d), as the
former provision expressly incorporates the latter.” (In re Taylor
(2019) 34 Cal.App.5th 543, 561.)
We need not decide whether the evidence was sufficient to
show that Brandon was the actual killer of the victim, or aided
and abetted the murder with the intent to kill, because, as we
explain below, the evidence as to him was sufficient to show that
he was a major participant in the robbery and burglary who acted
with reckless indifference to human life. As to Patton, the
Attorney General does not contest that the evidence was not
sufficient to show that she was the actual killer of the victim or
aided and abetted in the murder with the intent to kill. As we
discuss below, the evidence was insufficient to show that she was
a major participant in the robbery who acted with reckless
indifference to human life.
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), the California
Supreme Court provided general guidelines for determining
whether a defendant was a major participant in the underlying
felony who acted with reckless indifference to human life. The
20
court in Banks, supra, 61 Cal.4th 788 described the factors that
may play a role in deciding whether a defendant was a major
participant. (Id. at p. 803.) And, in Clark, supra, 63 Cal.4th
522, the court delineated certain factors relevant to whether a
defendant acted with reckless indifference to human life. (Id.
at pp. 618–623.) Those factors were recently summarized by
the court in In re Scoggins (2020) 9 Cal.5th 667. “We analyze
the totality of the circumstances to determine whether [a
defendant] acted with reckless indifference to human life.
Relevant factors include: Did the defendant use or know that a
gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present
at the crime? Did he or she have the opportunity to restrain
the crime or aid the victim? What was the duration of the
interaction between the perpetrators of the felony and the
victims? What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using
lethal force? What efforts did the defendant make to minimize
the risks of violence during the felony? (Clark, supra, 63
Cal.4th at pp. 618–623.) ‘“[N]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.”’ (Id.
at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)” (In re
Scoggins, supra, 9 Cal.5th at p. 677.)
b. Evidence Against Brandon
Brandon concedes that the evidence was sufficient to show
that he was a major participant in the underlying felonies. He
contends, however, that the evidence was insufficient to show
that he acted with the necessary reckless indifference to human
21
life during the commission of those crimes. Using the factors
outlined by Clark, supra, 63 Cal.4th 522 (Clark factors), we
conclude to the contrary.
As to whether Brandon was aware that weapons would be
used in the planned robbery, he explained to the Perkins agent
that the plan was for Patton to be armed with pepper spray to
incapacitate the victim. Pepper spray is not the type of weapon
that would kill a victim. Thus, this factor does not weigh in favor
of finding that Brandon acted with reckless indifference. The
other factors, however, support such a finding.
For instance, the evidence demonstrated that Brandon was
physically present during the robbery and had ample opportunity
to restrain his cohorts or aid the victim. Brandon admitted to the
agent not only that he was present during the assault, but that
he initially wrestled with the victim and later hit him with
pots.10 In addition, Brandon’s DNA was found on the interior of
the front door and on a coffee table in the living room. He also
admitted that he had an opportunity to restrain his cohorts when
he told the agent that he witnessed the victim being hit with pots
during Tulanda’s struggle with him. But Brandon made no effort
to prevent that brutal beating. Similarly, Tulanda told the agent
10 Brandon maintains that the record is ambiguous as to
whether he told the Perkins agent that he personally struck the
victim with pots. Brandon, however, said that his interaction
with the victim “wasn’t easy.” Further, his admission to hearing
the victim say “[Y]ou gunna kill me? . . . You gotta kill me” before
the victim went “all the way out,” supported an inference that
Brandon was the person who “(INAUDIBLE) hit [the victim] with
pots. . . . So he don’t get back up no more.” (Italics added.) Based
on this evidence, a reasonable juror could have concluded that
Brandon struck the victim with at least one pot.
22
that during the assault, the victim was rendered temporarily
unconscious, but then “woke up” two minutes later. Again,
Brandon made no effort at that time to aid the victim and instead
resumed the assault. Finally, the evidence showed that Brandon
had the opportunity to aid the victim following the assault, but
he chose instead to leave him lying bloody and helpless on the
kitchen floor11 and to close the front door as they left the scene,
ensuring that the victim, who lived alone, would not quickly be
discovered.
The duration of the assault and robbery also supports a
finding of reckless indifference. The evidence suggested that the
assault and robbery of the victim played out over an extended
period of time. Brandon told the agent that it began in the
entryway to the victim’s home, as evidenced by the framed
photographs that had been knocked from the wall and broken on
the tile floor. The fight then moved into the living room where a
bicycle was knocked over, couches were displaced, and the victim
was struck by a pot so hard that the pot’s handle broke and it
was dented. It then continued to a third phase in the kitchen
where the victim was apparently stabbed repeatedly in the head
and face and beaten with at least two other pots. As Tulanda
explained to the agent, at one point the victim “went out,” but he
then awoke minutes later while Tulanda and his cohorts looked
for the money they knew was hidden in the home. As Brandon
admitted, the victim did not go “all the way out” until after he
was beaten so severely with pots that he “[didn’t] get back up no
more.” And, the search of the home by Brandon and his cohorts
consumed more time, involving at least two upstairs bedrooms in
11 Tulanda told the agent that the victim was alive when he
left him.
23
which carpet and padding were removed from the closet floors
and, in one closet, the plywood subflooring was pried open.
Next, we consider whether there was evidence that
Brandon knew of the likelihood that his cohorts would kill the
victim and whether he made any efforts to minimize the risks of
violence during the robbery. Although both Brandon and
Tulanda told the Perkins agent that they did not go to the
victim’s house to kill him, Brandon and Tulanda immediately
resorted to vicious physical violence once they entered the
victim’s home, which supported an inference that Brandon knew
there was a likelihood that either he or Tulanda would kill the
victim. Further, far from making any effort to minimize the risk
of violence during the robbery, Brandon actively participated in
such violence, over a lengthy period of time. Thus, these two
factors also support a finding that Brandon acted with reckless
indifference to human life. Having considered the Clark factors,
we conclude there was sufficient evidence to support the jury’s
verdict of murder as to Brandon.
c. Evidence Against Patton
Like Brandon, Patton concedes that there was sufficient
evidence to support a finding that she was a major participant in
the underlying robbery and burglary. We thus consider whether,
under the Clark factors, the evidence supported a finding that
she acted with reckless indifference to human life in the
commission of those crimes.
As to whether Patton was aware that weapons would be
used in the robbery and burglary, Patton told investigators that
she convinced Tulanda and Brandon not to use guns during the
24
robbery and to instead accomplish it by stealth; and Brandon’s
statements to the Perkins agent corroborated that she was
against the use of deadly force at the outset of her involvement.
Patton also explained that she initially tried to accomplish the
robbery using a combination of “sex appeal,” alcohol, and Visine,
again suggesting that she wanted to minimize the risk that the
victim, whom she liked, could be seriously injured or killed by a
deadly weapon. Finally, as we discuss above, the weapon that
she did ultimately agree to use, pepper spray, was not the type of
weapon that would suggest a reckless indifference to human life.
On the issue of whether Patton was present and had the
opportunity to restrain her cohorts or aid the victim, the evidence
showed that Patton was present during the initial physical
assault and robbery. Among other things, she admitted to going
to the victim’s house and to alerting Brandon and Tulanda when
the opportunity arose to enter the home and overwhelm the
victim. She also admitted to following the men into the home and
watching as they fought with the victim. Her DNA was found on
the pepper spray canister at the scene, but she denied using it
after initially handling it when purchased. In addition, she said
that she saw Brandon repeatedly stab the victim and that she
went upstairs, while the assault was ongoing, to search the
bedroom closets for the hiding place for the victim’s money.
Thus, although the evidence showed that Patton was present for
some portion of the assault, it did not establish that she had any
meaningful opportunity to restrain her larger male cohorts, one
of whom, Brandon, had physically abused her in the past causing
her to fear him. And, although Brandon told the Perkins agent
that Patton joined in the assault by hitting the victim with pots,
the jury’s not true findings on the allegations that Patton used a
25
deadly weapon and inflicted great bodily injury suggest that the
evidence on this point was at best weak.
As for Patton’s knowledge of her cohorts’ propensity for
violence, she told investigators that she had broken off her
relationship with Brandon because he was abusive toward her.
That evidence supported an inference that Patton was aware of
Brandon’s propensity for violence when she agreed to participate
in the robbery. But Patton’s awareness that Brandon could be
abusive, by itself, was insufficient to support an inference of
reckless indifference to human life. As the Supreme Court
explained in In re Scoggins, supra, 9 Cal.5th 667, “Even if [the
defendant] knew that [his two cohorts] were prone to some degree
of violence, and even though the planned assault of [the victim]
necessarily contemplated the use of violence, the evidence does
not support a finding that [the defendant] acted with reckless
indifference to human life. As noted, ‘[a]wareness of no more
than the foreseeable risk of death inherent in any [violent felony]
is insufficient’; reckless indifference to human life requires
‘knowingly creating a “grave risk of death.”’ (Banks, supra, 61
Cal.4th at p. 808, italics added.)” (In re Scoggins, supra, 9
Cal.5th at p. 682.) Moreover, as explained above, the evidence
also showed that Patton made affirmative efforts to ensure that
the robbery would not become violent.
Taken together, we conclude that the evidence related to
the Clark factors was insufficient to support the jury’s finding
that Patton acted with reckless indifference to human life during
her participation in the robbery. Her murder conviction and the
special circumstance findings must therefore be reversed and the
matter remanded for a full resentencing hearing. (People v.
Buycks (2018) 5 Cal.5th 857, 893.)
26
3. Substantial Evidence: Personal Use and
Great Bodily Injury Findings against Brandon
Brandon’s challenges to the sufficiency of the evidence in
support of the jury’s personal use of a deadly weapon (section
12022, subd. (b)(1)12) and great bodily injury (section 12022.7,
subd. (a)13) findings are based on his assertion that, although
Brandon may have had physical contact with the victim in the
entryway and living room, there was no evidence that Brandon
personally used a pot to hit the victim. We disagree.
As we discuss above, there was sufficient evidence for a
reasonable juror to conclude that Brandon admitted to personally
striking the victim with at least one pot. Further, the evidence of
the dented pots found at the scene corroborated the inference
that these pots were used forcefully. Finally, the coroner’s
testimony that blunt force trauma and stabbing caused the victim
to bleed to death and that hitting someone in the head with pots
could cause hemorrhaging into tissue supported an inference that
the victim suffered great bodily injury as a result of being hit in
12 Section 12022, subdivision (b)(1) provides: “A person who
personally uses a deadly or dangerous weapon in the commission
of a felony or attempted felony shall be punished by an additional
and consecutive term of imprisonment in the state prison for one
year, unless use of a deadly or dangerous weapon is an element of
that offense.”
13 Section 12022.7, subdivision (a) provides: “Any person who
personally inflicts great bodily injury on any person other than
an accomplice in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.”
27
the head with pots. Taken together, the evidence supported the
findings that Brandon used at least one pot as a deadly weapon
and caused great bodily injury.
4. Substantial Evidence: Possession of Firearm
By Brandon
Brandon’s challenge to his conviction on count 3 for being a
felon in possession of a firearm in violation of section 29800 14 is
based on his contention that there was no substantial evidence
linking him to the converted garage where the weapon was
found. According to Brandon, the jurors’ confusion, as evidenced
by their questions during deliberations,15 showed that the
evidence of the converted garage being used as a recording studio
was insufficient to establish that he lived there.
“Possession [of a firearm] may be physical or constructive,
and more than one person may possess the same contraband.
(People v. Williams (2009) 170 Cal.App.4th 587, 625 . . . [drugs
and weapons found in room used by defendant, in house owned
14 Section 29800, subdivision (a)(1) provides: “Any person who
has been convicted of a felony under the laws of the United
States, the State of California, or any other state, government, or
country, or of an offense enumerated in subdivision (a), (b), or (d)
of [s]ection 23515, or who is addicted to the use of any narcotic
drug, and who owns, purchases, receives, or has in possession or
under custody or control any firearm is guilty of a felony.” (Italics
added.)
15 Among other things, the jurors asked, “On the weapons
possessing charge, I am still very confused. Who did this gun
belong to? There were multiple people who lived in the house.”
28
by someone else].) Possession may be imputed when the
contraband is found in a place which is immediately accessible to
the joint dominion and control of the accused and another.
(People v. Newman (1971) 5 Cal.3d 48, 53 . . . .) In People v. Nieto
(1966) 247 Cal.App.2d 364 . . . , a firearm was found under the
central part of the front seat of the car which the defendant was
driving. Notwithstanding the passenger’s testimony that the gun
was his and the defendant’s testimony that he did not know
about the gun, the court found the presence of the gun under the
front seat, together with the defendant’s admission that he lied
when police asked for the passenger’s name, constituted
substantial circumstantial evidence that the defendant was in
possession of the gun. (Id. at pp. 366–367.)” (People v. Miranda
(2011) 192 Cal.App.4th 398, 410.)
The evidence supported a reasonable inference that
Brandon resided in the garage located on East 113th Street from
which deputies recovered a handgun from a bag on the bed.
Police had observed Brandon in front of the residence prior to his
arrest and Brandon provided the East 113th Street address as
his residence during his booking. Further, the items found in the
garage demonstrated that someone who recorded music lived
there; and Brandon described himself to the Perkins agent as
someone who engineered, produced, shot videos, and “[did]
music.”
Given that the gun was found on the bed inside that
location, the evidence was sufficient to support a finding that it
was within Brandon’s dominion and control and, therefore, that
he was in constructive possession of it.
29
B. Ineffective Assistance of Counsel
Brandon additionally contends that he received ineffective
assistance of counsel because his trial attorney failed to request a
modification to the instructions on felony murder and felony-
murder special circumstances that included the factors for
reckless indifference to human life set forth in Clark, supra, 63
Cal.4th 522.16 Patton argues that she received ineffective
assistance because her trial attorney failed to move to suppress
her confession during her interview with detectives based on
Miranda.
1. Legal Principles
When challenging a conviction on grounds of ineffective
assistance, “[a defendant] ‘must show that counsel’s performance
was deficient, and that the deficiency prejudiced the defense.’
[Citations.] On direct appeal, a finding of deficient performance
is warranted where ‘(1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.’
[Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be
16 Having concluded that Patton’s murder conviction and
special circumstances finding must be vacated, we need not
consider the merits of her contention that her counsel was
ineffective for failing to request modifications of these same jury
instructions.
30
no conceivable reason for counsel’s acts or omissions.’” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165.)
2. Failure to Request Instruction on Clark Factors
a. Background
Brandon’s jury was instructed on first degree felony
murder using CALCRIM No. 540B. That instruction included the
following regarding the reckless indifference requirement: “A
person acts with reckless indifference to human life when he or
she knowingly engages in criminal activity that he or she knows
involves a grave risk of death.” The instruction, however, went
on to discuss the major participant requirement in detail using
the Banks factors.
On the robbery and burglary special circumstance
allegation, the jury was instructed with CALCRIM No. 703, using
the same brief definition of reckless indifference to human life.
But, the instruction again included a detailed discussion of the
major participant requirement using the Banks factors.
Brandon’s counsel did not ask that the Clark factors be
included in the instructions on felony murder or in the
instructions on the robbery and burglary special circumstance
allegations. And, counsel did not make an argument on the
reckless indifference element using the Clark factors.
b. Analysis
Brandon concedes that the trial court did not have a sua
sponte duty to instruct on the reckless indifference requirement
31
using the Clark factors, but notes that the court would have
given the instruction if requested by counsel. Based on the
record, we cannot conclude that there was no rational tactical or
strategic purpose for failing to ask for an instruction on the Clark
factors. For example, given the evidence discussed above
concerning the Clark factors, counsel may have reasonably
decided that an instruction on the Clark factors would only have
served to highlight the substantial adverse evidence against
Brandon that supported a finding of reckless indifference. We
therefore conclude that defendant cannot prevail on his claim on
direct appeal. Any such claim is more appropriately decided in a
habeas corpus proceeding.
3. Failure to Suppress Patton’s Confession
Patton raises a claim of ineffective assistance based on her
counsel’s failure to move to suppress her confession during her
interview by investigators. According to Patton, because the
Miranda warning given by the detective at the beginning of her
interview was incomplete and ambiguous, no reasonable attorney
would have failed to move the court to suppress it.
a. Background
At the beginning of her interview with Detectives Duncan
and Valencia, Patton admitted that she had been arrested before
and that she was familiar with her rights. Detective Valencia
informed her that he was going to explain her rights to her “just
so [she knew],” and told her that “if [she] didn’t understand them,
[she should] tell [him].” The detective then stated: “You have the
32
right to remain silent. Anything you say can and will be used
against you in a court of law. [¶] You have the right to an
attorney. If you can’t afford one, they’ll give you one for free.
Okay? [¶] One through four, do you understand what I just
said?” Patton responded, “Yes,” and the detectives proceeded
with the interview. Neither detective specifically advised Patton
that she had a right to an attorney before and during the
detectives’ questioning.
b. Analysis
We will assume that there was a legitimate basis to move
to suppress Patton’s statements to Detective Valencia under
Miranda. We cannot, however, conclude on this record that there
was no reasonable tactical or strategic reason for failing to make
such a motion. The evidence against Patton included the DNA
evidence from the pepper spray canister which placed her at the
crime scene. It also included the Perkins statements of Tulanda
and Brandon that corroborated that she was at the scene. And,
Brandon specifically stated that Patton helped formulate the plan
for the robbery and willingly participated in it by befriending the
victim and joining in the brutal assault on him by first
attempting to pepper spray him and then hitting him repeatedly
with a pot. Given this evidence, Patton’s counsel may have
decided that the exculpatory statements she made during the
interview—including that she (1) had been an unwilling
participant who was forced to take part in the robbery; (2) did not
have any ill-will toward the victim or any desire to hurt him; and
(3) did not use the pepper spray against the victim or hit him
with any weapon—would benefit her case without requiring her
33
to testify and exposing her to cross-examination. Indeed, despite
Brandon’s statements, the jury found not true the allegations
that Patton personally used a deadly weapon and personally
inflicted great bodily injury. On this record, we reject Patton’s
claim on direct appeal that counsel was ineffective in failing to
make a motion to suppress her confession.
C. Patton’s Confrontation Clause Challenge
Patton challenges the trial court’s ruling allowing her jury
to hear the statements made by Brandon during the Perkins
operation that implicated her in the robbery and assault of the
victim. According to Patton, the admission of the statements
from a non-testifying codefendant violated her confrontation
clause rights under the Aranda/Bruton line of cases.17
1. Background
Prior to trial, the prosecution filed a written motion to
introduce the Perkins statements against both defendants,
arguing that they did not violate Miranda, were not hearsay, and
were non-testimonial under Bruton, supra, 391 U.S. 123. At the
hearing on the motion, Patton’s counsel interposed “general”
objections on the grounds that admission of the statements would
violate her rights under the Fifth and Sixth Amendments,
including her right “to confront and cross-examine.” Counsel also
argued that the statements made by Brandon were self-serving
and unreliable. The trial court granted the motion, ruling that
17 People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton
v. United States (1968) 391 U.S. 123 (Bruton).
34
the statements were trustworthy given the circumstances under
which they were made.
2. Legal Principles
The Sixth Amendment to the United States Constitution
provides that “‘“[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.”’” (People v. Gallardo (2017) 18 Cal.App.5th 51, 65
(Gallardo).) In Crawford v. Washington (2004) 541 U.S. 36, the
United States Supreme Court “‘held that the admission of
“testimonial” out-of-court statements violates a criminal
defendant’s confrontation rights unless the declarant is
unavailable to testify and the defendant had a prior opportunity
for cross-examination [citation], or waived that right by his own
wrongdoing [citation].’ [Citation.] The court further held that
the admission of ‘nontestimonial’ statements ‘is the concern of
state and federal rules of evidence, not the [Sixth Amendment]
Confrontation Clause. [Citations.]” (Gallardo, supra, 18
Cal.App.5th at p. 66.)
3. Analysis
The parties disagree on whether Patton forfeited her
confrontation clause challenge to Brandon’s Perkins statements
by failing to adequately specify in the trial court that those
statements were testimonial and therefore inadmissible under
the confrontation clause. We will assume for the sake of
argument that Patton did not forfeit her confrontation clause
challenge, but nevertheless reject it because, under well-
35
established California case law, those statements were
nontestimonial and therefore admissible. (People v. Arauz (2012)
210 Cal.App.4th 1394, 1402; see Gallardo, supra, 18 Cal.App.5th
at pp. 67–68; People v. Almeda (2018) 19 Cal.App.5th 346, 362–
363.) Although Patton maintains that these cases are mistaken,
we decline on these facts to depart from that established line of
authority and the federal cases to the same effect. (See, e.g.,
United States v. Marguet-Pillado (9th Cir. 2009) 560 F.3d 1078,
1085 [the determinative factor in determining whether a
declarant bears testimony is the declarant’s awareness or
expectation that his or her statements may later be used at a
trial].)
D. Cumulative Error
Patton contends that even if her ineffective assistance of
counsel claim regarding the failure to suppress her statement
and confrontation clause challenge were not individually
prejudicial, their cumulative impact on her trial was prejudicial.
Because we have concluded that Patton is unable to prevail on
her ineffective assistance of counsel claim on appeal and the trial
court did not commit the asserted confrontation clause error,
there is no error to cumulate. (In re Reno (2012) 55 Cal.4th 428,
483.)
36
E. Sentencing Issues as to Brandon
1. Eighth Amendment Challenge
Brandon contends that the jury’s true findings on the
robbery and burglary special circumstance allegations within the
meaning of section 190.2 should be reversed because, in light of
the changes to that section under Senate Bill No. 1437, it violates
the narrowing principle of the Eighth Amendment. Because we
deem California Supreme Court authority to be controlling on
this issue (see e.g. People v. Winbush (2017) 2 Cal.5th 402, 488;
People v. Abilez (2007) 41 Cal.4th 472, 528), we are bound by
principles of stare decisis to follow it and reject Brandon’s Eighth
Amendment challenge to his sentence. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
2. Joint and Severable Liability for Restitution
Brandon additionally argues that his abstract of judgment
should be modified to reflect that the trial court’s restitution
order was imposed jointly and severally on all defendants. The
Attorney General agrees. At Patton’s restitution hearing, the
trial court ordered restitution to the victim’s daughter, Reneaka
Roper, and the California Victim’s Compensation Board, and
specified that such order shall be “joint and several” as to “other
defendants.”18 But Brandon’s abstract of judgment does not
reflect the joint and several aspect of the restitution orders. We
18 Codefendant Tulanda was tried separately.
37
therefore agree with the parties that Brandon’s abstract of
judgment should be modified to reflect the trial court’s order.
3. One-Year Section 667.5 Sentence Enhancement
Brandon also maintains that the one-year enhancement
imposed on his sentence under section 667.5, subdivision (b) must
be stricken because the amendments to that section under Senate
Bill No. 136, effective January 1, 2020, must be applied
retroactively. The Attorney General concedes, and we agree that
the amendments apply retroactively to Brandon’s sentence and
that the one-year enhancement should be stricken. (People v.
Winn (2020) 44 Cal.App.5th 859, 872–873.)
38
V. DISPOSITION
Brandon’s judgment of conviction is affirmed, but Patton’s
first degree felony murder conviction and the true findings on the
special circumstance allegations as to her only are reversed. The
matter is remanded to the trial court with directions: (1) to
conduct a resentencing hearing on the remaining count of
conviction as to Patton; (2) to strike the one-year section 667.5,
subdivision (b) enhancement imposed on Brandon’s sentence and
modify his abstract of judgment to reflect that reduction in
sentence; and (3) to modify Brandon’s abstract of judgment to
reflect that the restitution order was imposed jointly and
severally on him and Tulanda.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
39
PEOPLE v BRANDON – B300932
RUBIN, P. J. – Concurring:
I have signed the majority opinion. I write separately
because I have reservations about the continued vitality of the
rule that trial courts have no sua sponte duty to instruct on the
specific factors that may be helpful to a jury’s understanding of
“reckless indifference to human life.”
The majority points out that defendants here “concede that
the trial court did not have a sua sponte duty to instruct on the
reckless indifference requirement using the [People v.] Clark
factors.” (See People v. Clark (2016) 63 Cal.4th 522 (Clark).)
Defendants’ concession is understandable because our Supreme
Court has held there is no sua sponte duty. “Consistent with our
decision in Dellinger,[1] we conclude the generally accepted
meaning of the phrase, ‘reckless indifference to human life,’ in
common parlance amply conveys to the jury the requirement of a
defendant’s subjective awareness of the grave risk to human life
created by his or her participation in the underlying felony. This
is the meaning intended by the phrase ‘reckless indifference to
human life’ as it is used in [Penal Code] section 190.2(d), and as
defined in Tison.2 The phrase therefore does not have a technical
meaning peculiar to the law, and the trial court had no sua
sponte duty to further define the statutory phrase for the jury.”
(People v. Estrada (1995) 11 Cal.4th 568, 578.)
That was 26 years ago. Much has changed in the world of
felony murder. People v. Banks (2015) 61 Cal.4th 788, and People
v. Clark, supra, 63 Cal.4th 522 gave new meaning to the terms
1 People v. Dellinger (1989) 49 Cal.3d 1212.
2 Tison v. Ariz. (1987) 481 U.S. 137.
1
“major participant” and “reckless indifference to human life.”
Banks identified several factors to be considered in assessing
whether a defendant was a major participant in the crime. Clark
articulated factors related to whether a defendant acted with
reckless indifference to human life. In the context of resentencing
hearings under section 1170.95, this court has recognized that
Banks and Clark interpreted “major participant” and “reckless
indifference to human life” “in a significantly different, and
narrower manner than courts had previously” (People v. Torres
(2020) 46 Cal.App.5th 1168, 1179 abrogated on another ground
by People v. Lewis (2021) 11 Cal.5th 952. See also People v. York
(2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020,
S264954 [“As a consequence, a pre-Banks and Clark special
circumstance finding cannot preclude eligibility for relief under
the section 1170.95 as a matter of law, because the factual issues
that the jury was asked to resolve in a trial that occurred before
Banks and Clark were decided are not the same factual issues
our Supreme Court has since identified as controlling”]; People v.
Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July 22,
2020, S262835; but see People v. Allison (2020) 55 Cal.App.5th
449, 452, & fn. 2.)
Following Banks and Clark, CALCRIM 703 was amended
to include various factors the Supreme Court had identified,
which the jury may consider in determining “major participant”
and “reckless indifference to human life.”3 CALCRIM 703
3 CACRIM No. 703 was amended twice, once in 2016 (major
participant) and again in 2019 (reckless indifference to human
life), presumably because Banks and Clark were decide nearly a
year apart. Senate Bill No. 1437 became effective on January 1,
2019.
2
identifies nine non-exclusive factors for reckless indifference. For
major participant, it lists six.4
Then, the Legislature enacted Senate Bill No. 1437 and
Penal Code section 1170.95. In section 1 of the uncodified version
of the statute, the Legislature made several findings, including:
“(d) It is a bedrock principle of the law and of equity that a
person should be punished for his or her actions according to his
or her own level of individual culpability . . . (f) It 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.” In People v. Avila (2020)
57 Cal.App.5th 1134, 1151, Justice Dhanidina wrote for the court,
“Senate Bill No. 1437 (2017-2018 Reg. Sess.) thus effects a sea
4 “Following the decisions in Banks and Clark, the Judicial
Council’s Advisory Committee on Criminal Jury Instructions
added optional language to CALCRIM No. 703 designed to
capture the culpability factors enunciated in those decisions.
(See Bench Note to CALCRIM No. 703 (Feb. 2016 and Apr. 2020
revisions) [Banks and Clark ‘identified certain factors to guide
the jury in its determination of’ the major participant and
reckless indifference to human life issues, but did not hold that
the court has a sua sponte duty to instruct on those factors].) The
accompanying Bench Note advises that the trial court should
determine whether these optional instructions setting forth
guidance on the Banks and Clark factors need be given. (Ibid.)”
(People v. Secrease (2021) 63 Cal.App.5th 231, 252, fn. 12, review
granted June 30, 2021, S268862.) In neither Banks nor Clark did
our Supreme Court discuss whether a trial court must give an
instruction of this nature sua sponte.
3
change in sentences that have been and will be imposed on
various offenders.”
It may not follow automatically from these developments
that a trial court must instruct sua sponte on the factors
associated with major participant and reckless indifference. But
it seems to me that Estrada’s holding that a court has no sua
sponte duty to instruct on “reckless indifference to human life”
may be ripe for reconsideration. In Estrada’s words, the two
terms may have developed “a technical meaning peculiar to the
law”, one not easily understood by jurors. (People v. Estrada,
supra, 11 Cal.4th at p. 578.)
RUBIN, P. J.
4
The People v. Christopher Brandon et al.
B300932
BAKER, J., Concurring
I join the court’s opinion, which reverses defendant Acorri
Patton’s (defendant’s) murder conviction and otherwise affirms in
the main. I write separately to say more about why I do not
believe defendant has presented grounds to reverse her
remaining robbery conviction for what is often referred to as
Bruton/Aranda error. (Bruton v. United States (1968) 391 U.S.
123; People v. Aranda (1965) 63 Cal.2d 518.)
To my knowledge, our Supreme Court has not been recently
asked to decide whether there exists a constitutional basis to
limit or forbid using statements made by a nontestifying
1
defendant during a so-called Perkins operation against another
defendant—including whether the Perkins setting might be
sufficiently unique as to affect a confrontation or due process
analysis. Instead, these use of nontestifying co-defendant
statement issues have been explored largely through the prism of
state hearsay rules. (See, e.g., People v. Grimes (2016) 1 Cal.5th
698 [citing cases].)
Defendant makes only a Confrontation Clause argument in
this appeal; she does not argue co-defendant statements
implicating her should have been excluded as hearsay under
state law. I am persuaded in this case that there is no basis for
1
So named after Illinois v. Perkins (1990) 496 U.S. 292.
1
concluding the statements made during the Perkins operation
should have been excluded on Confrontation Clause grounds.
BAKER, J.
2