People v. Bradish CA3 ( 2023 )

Filed 3/27/23 P. v. Bradish CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C094772
Plaintiff and Respondent, (Super. Ct. No. CM015924)
v.
DONALD JENE BRADISH,
Defendant and Appellant.
Defendant Donald Jene Bradish and another man, Morgan John Andrews, broke
into Carl O’Shea’s apartment while attempting to rob the attached motel office. Andrews
then shot and killed O’Shea. A jury found defendant guilty of first degree murder,
attempted robbery, and first degree burglary. Defendant later filed a petition for
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resentencing under former Penal Code1 section 1170.95 (now section 1172.6).2 After
issuing an order to show cause and receiving evidence from the parties, the trial court
denied defendant’s petition.
On appeal, defendant contends the trial court erroneously found that he acted with
reckless indifference to human life. We conclude substantial evidence supports the trial
court’s finding. We shall therefore affirm the order denying defendant’s petition.
BACKGROUND
A. The Murder
In accordance with the standard of review, we recite the facts underlying
defendant’s convictions in the light most favorable to the judgment. (See People v.
Edwards (2013) 57 Cal.4th 658, 715.)
One evening, defendant and Andrews visited defendant’s friend, Christian Romeo,
for the purpose of asking to borrow Romeo’s sawed-off, pump-action shotgun. Romeo
handed the gun to defendant, who made sure it was loaded. Defendant then put the gun
in a bag, which was also provided by Romeo, and left with Andrews in a hurry.
Defendant and Andrews went to the Rio Lindo Motel. At some point before
entering the motel office, Andrews took the shotgun from defendant. O’Shea and his
fiancée, Camille H., managed the motel and lived in an apartment attached to the office.
They were watching television in their bedroom when they heard the bell indicating
someone had entered the motel office. Camille H. walked out of the bedroom through
the living room and opened the door to the office. Defendant and Andrews were standing
in the office. Andrews immediately pumped the shotgun, chambering a round.
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6,
with no change in text (Stats. 2022, ch. 58, § 10).
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Camille H. turned back into the apartment, shut the door, and sat down on a
recliner with her hands up. She could still watch the men through the lattice of the door.
Andrews came up to the apartment door, broke it open without saying anything, and
entered the living room. Defendant followed Andrews to the apartment door and stood in
the doorway, blocking Camille H.’s exit.
As Andrews entered the living room, O’Shea also entered from the bedroom.
Andrews quickly approached O’Shea, who grabbed the gun but then fell to the ground.
Andrews put the butt of the gun into O’Shea’s back and told him to stay down.
Undeterred, O’Shea got back up and grabbed the gun again. The two struggled for a few
seconds. The gun then discharged, with the ammunition striking O’Shea’s head
immediately killing him. The entire struggle over the gun lasted less than one minute.
Defendant did not say anything during these events and did not attempt to intervene in
any way.
Defendant and Andrews immediately fled, leaving untouched the cash drawer in
the office with $300 inside. They hid the shotgun under a storage container behind a
nearby bowling alley. They then went to defendant’s apartment, where they showered,
and later disposed of their blood-stained clothing.
The jury found defendant guilty of first degree murder, attempted robbery, and
first degree burglary. The jury also found true special circumstance allegations that the
murder was committed while defendant was engaged in the commission of a burglary and
the attempted commission of a robbery. Defendant waived his right to appeal his
convictions in return for the prosecution agreeing to dismiss the special circumstances.
The trial court sentenced defendant to an indeterminate term of 25 years to life in prison
for murder, plus a total of nine years in prison for attempted robbery and burglary, with
the nine-year term stayed pursuant to section 654.
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B. Senate Bill No. 1437 and Defendant’s Resentencing Petition
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats.
2018, ch. 1015) amended sections 188 and 189 to restrict the application of the felony-
murder rule and the natural and probable consequences doctrine. As amended, section
188, subdivision (a)(3) provides: “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her participation in a
crime.” Section 189, subdivision (e), as amended, limits murder liability based on
participation in a felony to a person who: (1) was the actual killer; (2) although not the
actual killer, intended to kill and aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of first degree murder;
or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. (§ 189, subd. (e).) Senate Bill No. 1437 also added former
section 1170.95 (now section 1172.6), creating a procedure for those convicted of murder
to seek resentencing if they could no longer be convicted of murder under the new law.
(Stats. 2018, ch. 1015, § 4.)
Defendant filed a resentencing petition alleging that he could no longer be
convicted of first degree murder under the current version of section 189 because he was
not the actual killer, he did not aid or abet the killing with the intent to kill, and he did not
act with reckless indifference to human life during the course of the burglary and
attempted robbery. The trial court issued an order to show cause why defendant’s
petition should not be granted and held an evidentiary hearing. The trial court reviewed
the record of defendant’s trial in addition to evidence offered by the prosecution at the
hearing. The court heard argument from both parties, took the matter under submission,
and then issued a written order denying defendant’s petition. The court found that the
prosecution had proved beyond a reasonable doubt that defendant either directly aided
and abetted Andrews in the killing or was a major participant in the burglary and
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attempted robbery and had acted with reckless indifference to human life. Defendant
timely appealed that order.
DISCUSSION
The People do not pursue the trial court’s alternative finding that defendant
directly aided and abetted Andrews in the killing, and defendant concedes that he was a
major participant in the robbery so only the reckless indifference to human life
requirement is at issue here. Defendant contends we should independently review the
trial court’s finding and, under any standard, the trial court erred in finding defendant
acted with reckless indifference to human life. The People contend substantial evidence
supports the trial court’s finding. We agree with the People.
A. Standard of Review
We review the trial court’s determination that defendant is ineligible for
resentencing under section 1172.6 under the substantial evidence standard because it was
based on a factual determination that defendant acted with reckless indifference to human
life. (See People v. Perez (2018) 4 Cal.5th 1055, 1066.) Defendant argues that we
should not follow the general rule of deference to the trial court’s factual findings
because they were “derived purely from a cold documentary record.” This is precisely
the argument our Supreme Court rejected in Perez with regards to a different
resentencing statute. (Ibid. [“eligibility determination, to the extent it was ‘based on the
evidence found in the record of conviction,’ is a factual determination reviewed on appeal
for substantial evidence”].) Likewise, every court to consider the issue with respect to
section 1172.6 has rejected the defendant’s argument that the statute presents a special
situation warranting independent review. (People v. Clements (2022) 75 Cal.App.5th
276, 298-299, 302 [reviewing finding that the defendant acted with knowledge of danger
to and conscious disregard for victim’s life]; People v. Vargas (2022) 84 Cal.App.5th
943, 951-955 [same]; People v. Sifuentes (2022) 83 Cal.App.5th 217, 229-230, 233
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[reviewing finding that the defendant knew or should have known that victim was a peace
officer engaged in performance of his duties].)
Under the substantial evidence standard, “ ‘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.’ [Citation.] We
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ [Citation.] 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. Edwards, supra, 57 Cal.4th at p. 715; see People v.
Vargas, supra, 84 Cal.App.5th at p. 951.) Substantial evidence also “ ‘includes
circumstantial evidence and any reasonable inferences drawn from that evidence.’ ”
(People v. Brooks (2017) 3 Cal.5th 1, 57; see Vargas, at p. 951.) “Our job on review is
different from the trial judge’s job in deciding the petition. While the trial judge must
review all the relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt standard, our job is to
determine whether there is any substantial evidence, contradicted or uncontradicted, to
support a rational fact finder’s findings beyond a reasonable doubt.” (People v.
Clements, supra, 75 Cal.App.5th at p. 298.)
B. Reckless Indifference to Human Life
Under section 1172.6, a defendant is ineligible for resentencing if the prosecution
proves beyond a reasonable doubt that the defendant “is guilty of murder or attempted
murder under California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The current version of section 189
makes a person liable for murder if the person “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189, subd. (e)(3).) The
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requirements of being a major participant and acting with reckless indifference
“ ‘significantly overlap . . . in general, for the greater the defendant’s participation in the
felony murder, the more likely that he acted with reckless indifference to human life.’ ”
(People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).)
Recognizing the overlap between the major participant and reckless indifference
elements, our high court has considered the following list of nonexclusive factors in
determining whether a defendant acted with reckless indifference to human life: (1) a
defendant’s knowledge of weapons, and the use and number of those weapons; (2) a
defendant’s physical presence at the crime and opportunities to restrain the crime and/or
aid the victim; (3) the duration of the felony; (4) a defendant’s knowledge of the cohort’s
likelihood of killing; and (5) a defendant’s efforts to minimize the risks of the violence
during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) No one factor is required or
dispositive. (Id. at p. 618.)
Given the standard of review, the ultimate question we must answer is whether
any reasonable fact finder could find beyond a reasonable doubt that: (1) defendant was
“ ‘aware of and willingly involved in the violent manner in which the particular offense
[wa]s committed’ ”; (2) he consciously disregarded the significant risk of death; and
(3) his disregard for the risks he perceived in the situation “ ‘ “involve[d] a gross
deviation from the standard of conduct that a law-abiding person would observe” ’ ” in
his situation. (In re Scoggins (2020) 9 Cal.5th 667, 677.)
We conclude that substantial evidence supports the trial court’s finding beyond a
reasonable doubt that defendant acted with reckless indifference to human life, especially
given defendant’s significant level of participation in the burglary and attempted robbery.
(See Clark, supra, 63 Cal.4th at p. 615 [being major participant in felony murder
provides “ ‘significant support’ ” for finding that the defendant acted with reckless
indifference to human life].) Defendant obtained the shotgun, ensured the shotgun was
loaded, and never unloaded it. Defendant never told Andrews not to use the shotgun, nor
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did defendant attempt to take the weapon back. Defendant contends this was a robbery of
a business, not a riskier home invasion; but defendant did not attempt to steal the money
in the office when Camille H. left it undefended and retreated into the apartment with her
hands up. Nor did defendant try to redirect Andrews after Andrews responded to Camille
H.’s appearance by pumping the shotgun to chamber a shell, rendering the gun ready to
fire immediately. Defendant did not balk or try to convince Andrews to focus on the
office or abort the robbery when Andrews began breaking down the door to the victim’s
apartment, despite the increased risk the residents might defend their home. Rather,
defendant followed Andrews and stood in the doorway, blocking exit from the apartment.
Defendant did not try to stop Andrews when the victim resisted and fell or when
Andrews forced the victim to the ground with the butt of the gun. Given all of these
circumstances, we cannot say that no rational fact finder would find that defendant acted
with reckless indifference to human life.
Defendant refers to our Supreme Court’s caution that defendants “ ‘who simply
had awareness their confederates were armed and armed robberies carried a risk of death,
lack the requisite reckless indifference to human life.’ ” (Clark, supra, 63 Cal.4th at p.
618.) This is not such a case, nor are the cases defendant cites comparable. In In re
Taylor (2019) 34 Cal.App.5th 543, the defendant planned an after-hours robbery; did not
supply the gun, served as the getaway driver, stayed in the car, could not see the shooting,
and left the scene only when he saw help was coming. (Id. at pp. 557-559; see People v.
Douglas (2020) 56 Cal.App.5th 1, 11.) In People v. Ramirez (2021) 71 Cal.App.5th 970,
the defendant did not plan the carjacking, did not supply the gun, had reason to believe
violence was unlikely, and had no opportunity to prevent violence when the shooter
suddenly began firing. (Id. at pp. 988-990.) In In re Moore (2021) 68 Cal.App.5th 434,
the defendant did not supply the gun, never left the car, and had no opportunity to prevent
his codefendant’s sudden, unprovoked shooting of one of the robbery victims in a parking
lot full of witnesses. (Id. at pp. 452-453.)
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In contrast to these three cases, defendant obtained the shotgun and ensured it was
loaded, entered the office only a few feet behind Andrews, blocked exit from the
apartment, and had repeated opportunities to deescalate the situation. At the very least,
defendant’s actions demonstrate reckless indifference to the increased risk of death
caused by Andrews’s conduct. These distinctions highlight the substantial evidence that
supports the trial court’s finding.
Also instructive is In re McDowell (2020) 55 Cal.App.5th 999. There, McDowell
and Hutchison planned and executed a home invasion robbery of a drug dealer, Meehan.
(Id. at pp. 1005, 1006.) McDowell was armed with a knife and Hutchison was armed
with a handgun when they entered Meehan’s home and demanded money and/or drugs.
(Id. at p. 1005.) When Meehan said he did not have anything, Hutchison fired a warning
shot into the floor. (Ibid.) Meehan then told Hutchison to go ahead and kill him. (Ibid.)
Two guests were also at Meehan’s home at the time. (Ibid.) One of them told Hutchison
not to hurt Meehan, while the other picked up an object and struck McDowell, knocking
him down. (Ibid.) Meehan then tried to grab Hutchison’s gun, causing Hutchison to
shoot him twice in the chest. (Ibid.) Concluding the evidence supported a finding that
McDowell acted with reckless indifference to human life, the court first accepted
McDowell’s statement that he did not know Hutchison had a gun, but pointed out
McDowell himself was armed with a knife, and he necessarily knew Hutchison had a gun
at least by the time the warning shot was fired. (Id. at p. 1013.) The court also
emphasized that McDowell both planned and actively participated in “a crime with a
particularly high risk of violence—a home invasion robbery of a drug dealer.” (Ibid.)
The court further found McDowell took no steps to minimize the “obvious risks of lethal
violence” such a plan entailed. (Id. at pp. 1013-1014.) Finally, the court also relied on
McDowell’s presence at the scene of the murder and failure to take any steps to prevent
it. Specifically, when Hutchison fired the warning shot and Meehan responded with a
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dare, “there was a brief but critical opportunity for McDowell to say or do something to
deescalate the situation,” but he did not. (Id. at p. 1014.)
Like McDowell, defendant here participated in an attempted home invasion
robbery, and his confederate shot and killed a resisting inhabitant. But McDowell did not
know his confederate brought a gun, whereas defendant provided the shotgun to Andrews
and ensured it was loaded. Most significantly, while McDowell failed to take one “brief
but critical” opportunity to say or do something to deescalate the situation, defendant
passed up multiple such opportunities. Defendant thus acted more recklessly than
McDowell and with greater awareness of the potential risk of death, which further
supports our conclusion that substantial evidence supports the trial court’s finding that
defendant acted with reckless indifference to human life.
Defendant also contends, “[t]he superior court’s failure to address a factor as
important as appellant’s youth is reversible error on its own,” but defendant did not raise
this issue in the trial court, other than informing the court that defendant was “barely 20
years of age” at the time of the murder. A defendant’s youth is one of many factors to be
considered when weighing the totality of the circumstances. (In re Harper (2022) 76
Cal.App.5th 450, 470.) Defendant cannot fairly contend the trial court failed to consider
his youth when defendant never asked the trial court to do so. (See People v. Tully
(2012) 54 Cal.4th 952, 980 [“ ‘[a] party cannot argue the court erred in failing to conduct
an analysis it was not asked to conduct’ ”].) Nor does evidence that defendant was 20
years old at the time of the murder cancel out the substantial evidence we have already
identified supporting the trial court’s finding. “Once such evidence is found, the
substantial evidence test is satisfied. [Citation.] Even when there is a significant amount
of countervailing evidence, the testimony of a single witness that satisfies the standard is
sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Thus, evidence of defendant’s age does not affect our conclusion that substantial
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evidence supports the trial court’s finding, based on the totality of the circumstances, that
defendant acted with reckless indifference to human life.
DISPOSITION
The order denying defendant’s resentencing petition is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
DUARTE, J.
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