People v. Brown CA2/4

Filed 5/11/16 P. v. Brown CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B258677
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.LA062986)
v.
NICHOLAS BRADFORD BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas
Rubinson, Judge. Affirmed.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Nicholas Brown appeals from the judgment entered following his
conviction by jury of robbery, attempted robbery, and assault with a deadly weapon,
arising from incidents at two medical marijuana dispensaries. He contends there was
insufficient evidence to sustain his conviction for attempted robbery because the
employee fled as soon as defendant brandished a weapon. Defendant further contends
the trial court failed to adequately consider mitigating factors when sentencing him to
consecutive terms on the four counts of robbery. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Procedural Background
The Los Angeles County District Attorney (the People) filed an amended
information on April 21, 2014 charging defendant with second-degree robbery (Pen.
Code, § 2111; counts 1-4 and 8-9), attempted second-degree robbery (§§ 664, 211; count
5), attempted murder (§§ 664, 287, subd. (a); count 6), and assault with a semiautomatic
firearm (§ 245, subd. (b); count 7). The information further alleged that defendant
personally used a handgun (§ 12022.53, subd. (b); counts 1-4, 6, and 8-9), personally and
intentionally discharged a handgun causing great bodily injury (§ 12022.53, subds. (c),
(d); counts 5-6), and personally used a handgun and inflicted great bodily injury upon the
victim (§ 12022.5, subd.(a), § 12022.7, subd. (a); count 7). As to counts 8 and 9, the
information alleged that at the time of the commission of the offenses, defendant was
released from custody on bail or own recognizance (§ 12022.1).
At the conclusion of the jury trial, the court granted the defense motion for
acquittal as to count 9. The jury found defendant guilty on counts 1 through 5 and 7.
The jury further found true each of the special allegations as to those counts. The trial
court found the jury hopelessly deadlocked on counts 6 and 8, declared a mistrial, and
dismissed those counts.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The court denied probation and sentenced defendant to 27 years to life in state
prison on count 5, comprised of a base term of the mid-term of two years, plus 25 years
to life for the enhancement pursuant to section 12022.53, subdivision (d). The court
further imposed four years and four months on counts 1 through 4, comprised of one year
for each count (one-third the mid-term), plus 40 months for the firearm enhancements
pursuant to section 12022.53, subdivision (b), each to run consecutive to count 5.
Finally, the court imposed a term of 13 years on count 7 but stayed that sentence pursuant
to section 654. Defendant timely appealed.
B. Evidence at Trial2
The prosecution presented evidence that defendant was involved in an armed
robbery of a medical marijuana dispensary on May 23, 2009 and then in an attempted
armed robbery of another dispensary on August 15, 2009, during which defendant shot an
employee. Along with testimony at trial by employees from both dispensaries, the
People played footage and showed photographic stills from surveillance videos taken
during both incidents. Defendant does not contest his participation in either incident on
appeal; thus, we have excluded from our discussion much of the evidence presented at
trial regarding identification.
1. May 23, 2009 Robbery - Counts 1-4
In the afternoon on May 23, 2009, defendant and three other armed men robbed
Topanga Caregivers, a medical marijuana dispensary. Ryan Salerno testified that he was
working that day as a receptionist at the dispensary. He was responsible for letting
patients in the front door and then “checking them in,” by entering a patient’s name into
the dispensary computer to confirm that they had a valid medical marijuana
recommendation from a physician. The dispensary kept electronic records of its patients,
including copies of patients’ driver’s licenses and physician recommendations. Once a
patient had been verified, he or she would be allowed into the locked medicine room
where the marijuana was kept. Both the front entry and medicine room doors were kept
2
We omit the underlying facts of counts 8 and 9, as they were ultimately dismissed
and are not the subject of this appeal.
3
locked; the front door had to be opened manually, while the medicine room door could be
opened using a buzzer from the reception desk.
On the day of the robbery, Salerno was working at the dispensary with Johnny
Bona, Johnny’s brother Christopher Bona,3 and Johnie MacDonald. At approximately
1:30 p.m., Salerno was watching the dispensary surveillance cameras and saw a car drive
up to the dispensary. He saw three individuals exit the vehicle and approach the
dispensary, so he opened the front door to let them in.
Salerno testified that he “immediately” recognized the first individual as someone
who had come into the dispensary a few days prior. Salerno described this person as an
African-American male, with a goatee, wearing a hat. He also had a white towel hanging
from his pants.4 Salerno described the second suspect as an African-American male with
red sunglasses and a bald head, and the third suspect as a Hispanic male who was “really
big.”
The three men stood in front of the desk as if they intended to check in.
According to Salerno, Suspect 1 “looked like he was going to pull out his wallet to give
me his I.D.” but instead “pulled out a gun,” walked around the desk behind Salerno, and
put the gun in Salerno’s back. The other two suspects pointed guns at Salerno as well.
Suspect 1 began swearing at Salerno and ordered him to buzz open the medicine room,
and also slammed Salerno against the door.
Once the medicine room door was open, Suspect 1 pushed Salerno into the
medicine room with the gun in his back, followed by the other two suspects. The three
other employees were in the medicine room and were told to get on the floor. Suspect 1
“dragged” Salerno into the office, where the dispensary safe was kept, and threatened to
shoot him if he did not open the safe. Suspect 1 repeatedly counted down from ten to
one, pointing the gun at different parts of Salerno’s body, yelling at him to open the safe.
3
Because they share a surname, we refer to Christopher and Johnny Bona by their
first names for clarity.
4
This individual was alternately referred to as “Suspect 1” and “towel guy” during
trial. We refer to the suspects (other than defendant) herein as Suspects 1, 2, and 3.
Defendant was identified as Suspect 4.
4
When Salerno said he did not know the code, Suspect 1 hit him in the head with his gun.
Suspect 1 then made Salerno open the cash register. Finally Suspect 1 took Salerno to
join the other employees, and made him lie face down on the floor. Salerno was hit in the
head four times by Suspect 1 over the course of the robbery.
Once Salerno was lying on the floor, he was able to peek to the side to “see what
was going on.” About five minutes into the robbery, he noticed a fourth suspect (later
identified as defendant) enter the medicine room. Defendant was wearing “red shiny
basketball shorts and basketball shoes” and a long, white t-shirt. At one point, Salerno
saw defendant standing over him, filling up a bag, holding a gun.
MacDonald, a manager at the dispensary, testified that he could hear Salerno
“screaming and pleading for his life” as he tried to open the safe. MacDonald started
telling the robbers that he could open the safe instead and that Salerno did not know the
code. Suspect 1 grabbed MacDonald, put a gun to his head, and had him open the safe.
MacDonald was loading marijuana into bags as directed by the robbers when he saw
defendant enter. Defendant then hit MacDonald with a gun in the back of his head and
MacDonald started bleeding.
The suspects emptied the register and tip jar and cleared “out the rest of the
dispensary.” Christopher, another manager, estimated that the robbers took a few
hundred dollars cash from the register and 10-12 pounds of marijuana. Christopher
observed defendant make several trips in and out of the dispensary as the suspects were
loading their cars. Then “on his very last trip out he stepped over me, smashed me in the
back of the head with the gun, and then ran out.”
Once the suspects left, the employees contacted the police and took MacDonald to
the hospital because his head was bleeding.
Several of the dispensary employees testified that they recognized Suspect 1 and
defendant because both men had come into the dispensary on May 20, 2009, three days
before the robbery. Salerno recalled that on that day, Suspect 1 (carrying a white towel
over his shoulder) remained in the waiting room the entire time, chatting with Salerno
and another patient. Defendant checked in with a valid recommendation and then went
5
into the medicine room. Salerno said defendant “was acting really shady in the medicine
room, trying to buy a bunch of product at once” and “fiddling with his pockets.”
Christopher was also present during the visit on May 20. He testified that
defendant came into the dispensary that day, asked to see a manager, and then met with
Christopher. Defendant pulled out a “giant” stack of money from a paper bag and said he
wanted to buy all the marijuana in the dispensary. Christopher said he could only sell
defendant a small amount. Christopher recalled feeling “extremely uncomfortable”
during this interaction and noted defendant’s behavior was unusual. MacDonald also
testified that he recognized defendant as having come in a few days prior to the robbery;
during that earlier occasion, MacDonald described defendant as “jumpy” and said
defendant made him nervous.
Salerno testified that within half an hour of the robbery on May 23, he looked
through the driver’s license photos in the dispensary files in an attempt to identify
Suspects 1 and 4, because he recognized them from their prior visit. Salerno pulled
defendant’s file, identified defendant as Suspect 4, and gave that file to the police.
2. August 15, 2009 Attempted Robbery - Counts 5-7
The second incident occurred on August 15, 2009 at West Valley Patient Group
(West Valley) medical marijuana dispensary. James Tanis, one of the owners of the
dispensary, testified that West Valley required new patients to provide a physician’s
recommendation and a valid identification. For returning patients, Tanis would check
their identification and confirm their patient status in the dispensary’s computer system.
Footage from the dispensary’s surveillance cameras showed that shortly after
10:00 a.m. on August 15, 2009, a red Mercedes pulled into the dispensary parking lot.
Tanis testified that he saw two African-American men enter the dispensary, both wearing
t-shirts and hats. The man wearing a red hat stayed back near the door, while the man
wearing a black hat walked up to the check-in window where Tanis was sitting.5 Tanis
5
The prosecution presented evidence that defendant was the man in the black hat
who approached the check-in window, while the man in the red hat was the same
individual as Suspect 1 from the Topanga Caregivers robbery.
6
started to ask defendant for his patient information when defendant mumbled something
and pulled out a gun.6 Tanis recalled that he put up his hands and started to say
something like “Listen, I don’t want any trouble,” but before he finished that statement,
he “tried to spin out of the chair as quick as I could and get to the exit in the hallway.”
Tanis did not clearly see the person’s face who pulled the gun. As he ran he heard
a pop and felt a sensation in his right arm. He yelled at his other employees to go into the
back room, and then tried to close the door but realized he could not use his right arm.
Once they reached the back room, Tanis looked at the security camera and saw the red
Mercedes pulling out of the parking lot.
Tanis was hospitalized for three days. The bullet entered his mid-back two inches
to the left of his spine and lodged in his arm with no exit wound. The damage from the
bullet required insertion of a metal rod into his arm, which limited his arm mobility and
caused him pain.
A fingerprint investigator from the Los Angeles Police Department (LAPD) lifted
four latent prints from the customer counter at the check-in desk at West Valley. One of
the partial palm prints matched defendant’s left palm print.
3. Defendant’s Arrest and Interview
On September 2, 2009, LAPD officers pulled over a red Mercedes matching the
description of the car involved in the incident at West Valley. Defendant, who was the
registered owner of the car and was driving at the time, was arrested. Investigating
LAPD detective Pam Pitcher searched the car the following day. She found a pair of red
basketball shorts in the back seat that appeared to match those worn by Suspect 4 on May
23, 2009.
Detective Pitcher and her partner interviewed defendant on September 2, 2009
after he waived his Miranda7 rights. A partially-redacted video of the interview was
6
Tanis testified at the preliminary hearing and at trial that he heard mumbling. But
he acknowledged he told the police on August 25, 2009 that he heard someone say
something like “What’s up, mother fucker?”
7
Miranda v. Arizona (1966) 384 U.S. 436.
7
played at trial. Defendant agreed to review photos of other individuals but asked to call
his mother before identifying anyone or providing further information about other
suspects. After the detectives showed him a number of photos, defendant asked what he
was being charged with. Detective Pitcher said she believed defendant was involved in
three robberies of medical marijuana dispensaries. Defendant replied “Never. No way. I
swear to God to you. No way.” Pitcher then showed defendant two photographic stills
from surveillance video of Topanga Caregivers and West Valley. In response to each
photo, defendant replied, “Okay. What else?” Detective Pitcher then showed a third
photo from an uncharged robbery, stating she thought that one “was close.” Defendant
responded, “That’s not me.”
DISCUSSION
A. Attempted Robbery
Defendant challenges only one aspect of his conviction on appeal. Specifically, he
contends that there was insufficient evidence to support his conviction on count 5 for
attempted robbery at the West Valley dispensary. We disagree.
1. Legal Principles
In reviewing a challenge to the sufficiency of the evidence, we “review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must
disclose substantial evidence to support the verdict—i.e., evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal. 4th 327, 357.) Thus, a
“reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (Ibid.)
8
The same standard governs in cases where the prosecution relies primarily on
circumstantial evidence. (People v. Maury (2003) 30 Cal. 4th 342, 403.) Accordingly,
we “must accept logical inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]” (Ibid.)
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) “An attempted robbery requires a specific intent to commit
robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.
[Citations.]” (People v. Medina (2007) 41 Cal. 4th 685, 694; see also § 21a.) “The crime
of attempted robbery requires neither the commission of an element of robbery nor the
completion of a theft or assault.” (People v. Lindberg (2008) 45 Cal. 4th 1, 28 [citing
People v. Medina, supra, 41 Cal.4th at p. 694].)
2. Substantial Evidence Supports Jury’s Verdict
Defendant contends that “the facts underlying [his] conviction rest squarely on
[his] drawing the gun” and pointing it at Tanis at the West Valley dispensary on August
15, 2009. Thus, while he admits the evidence supports his conviction for assault with a
firearm, he argues it does not establish beyond a reasonable doubt that he intended to
commit a robbery at West Valley.
Numerous cases have found sufficient evidence to support a reasonable inference
that the defendant intended to commit a robbery even where there was no express
demand for money or other direct statement of intent. In People v. Rodrigues (1994) 8
Cal. 4th 1060, 1128, for example, the defendant and his companion, armed with a knife
and a tire iron, rushed into the victim’s apartment and began attacking the victim and his
brother. During the course of the attack, defendant’s companion asked the victim,
“where do you have it?”; the victim assumed “it” meant money or drugs and responded
that “it” was in the closet. (Ibid.) The suspects fled when the telephone began ringing.
(Id. at pp. 1128-1129.) The California Supreme Court rejected defendant’s challenge to
the sufficiency of the evidence, finding that “[e]ven though the attackers were not
specific in demanding money or drugs, the totality of circumstances . . . clearly justified
9
the jury’s determination that an attempted robbery and burglary had taken place. (See,
e.g., People v. Jackson (1963) 222 Cal. App. 2d 296, 298 [attempted robbery conviction
upheld where evidence established that defendant entered store, pointed a gun at store
operator, and said only, ‘This is it.’]; People v. Gilbert (1963) 214 Cal. App. 2d 566, 567-
568 [where two armed men appeared in market shortly after closing time and
simultaneously displayed their weapons, one pointing at proprietor near cash drawer and
the other herding remaining occupants to rear room, lack of phrase such as ‘this is a
stickup’ or ‘hand over your money’ does not bar the reasonable inference that a forceful
taking of property was intended].)” (People v. Rodrigues, supra, 8 Cal.4th at pp. 1129-
1130.) The court similarly upheld the conviction in People v. Banks (2014) 59 Cal. 4th
1113, 1156-1157, overruled in part on other grounds by People v. Scott (2015) 61 Cal. 4th
363, 391, fn. 3, based on evidence that defendant interacted with the victim at an ATM
for approximately 25 seconds before raising his gun to fire, including touching the
victim’s arm, brandishing his gun, and standing near the victim as he attempted to use the
ATM. And in People v. Lindberg, supra, 45 Cal.4th at p. 29, the Supreme Court
concluded that “the jury reasonably could have found that defendant harbored an intent to
steal Ly’s property when he knocked Ly to the ground, demanded to know whether he
had a car, and put his knife to his throat before asking him again whether he had a car.”
Here, there was evidence at trial that defendant and his accomplices committed a
robbery of Topanga Caregivers by approaching the dispensary appearing to be legitimate
patients, then confronting the check-in employee with a gun. Four months later,
defendant, again accompanied by Suspect 1, approached the West Valley dispensary in
the same manner, pointed a gun at Tanis at the check-in window, and fired when Tanis
attempted to flee. Given the totality of these circumstances, a jury could reasonably infer
that defendant intended to rob West Valley, even absent an express verbal declaration of
that intent at the time.
Moreover, the fact that defendant did not actually take any property from the
dispensary and instead fled the scene does not defeat the jury’s finding that defendant
attempted to commit the robbery. As noted above, it is well-settled that a completed theft
10
is not required for attempted robbery. (People v. Lindberg, supra, 45 Cal.4th at p. 30;
People v. Medina, supra, 41 Cal.4th at p. 694.) From the evidence presented, the jury
could have reasonably inferred that defendant intended to commit a robbery at the
dispensary but fled after shooting Tanis, knowing that Tanis or another employee would
call the police. (See People v. Banks, supra, 59 Cal.4th at pp. 1156-1157; People v.
Zapien (1993) 4 Cal. 4th 929, 984 [affirming a jury’s reasonable inference that the
defendant fled without completing the robbery because he knew someone had telephoned
the police].) Finally, as the Attorney General points out, no evidence suggests defendant
had any motive for pulling out a gun at the dispensary for any other purpose—for
example, there was no evidence that defendant knew Tanis or had ever visited the
dispensary before. As such, substantial evidence supports defendant’s conviction on
count 5.
B. Imposition of Consecutive Sentences
Defendant also contends the trial court abused its discretion in imposing
consecutive sentences on counts 1 through 4. He argues the court failed to adequately
consider the mitigating factors in his case, including that counts 1 through 4 were based
on a single incident at Topanga Caregivers and thus constituted “a single period of
aberrant behavior,” as well as defendant’s youth (he was 19 years old at the time of the
crimes) and minimal prior record, as balanced against the length of the entire sentence
imposed.
The decision to impose consecutive or concurrent sentences belongs to the
sentencing court. (§ 669; People v. Gray (1986) 176 Cal. App. 3d 520, 523-524.) In
deciding to impose consecutive sentences, the court looks to the factors in California
Rules of Court, rule 4.425 (rule 4.425), including, as relevant here, the fact that the
crimes involved “separate acts of violence or threats of violence.” (Rule 4.425(a).) The
court also may consider any other circumstances in mitigation or aggravation not relied
upon to impose an upper term or otherwise enhance a sentence. (Rule 4.425(b).) “Only
one criterion or factor in aggravation is necessary to support a consecutive sentence.
[Citation.]” (People v. Davis (1995) 10 Cal. 4th 463, 552.)
11
Defendant’s sole claim of sentencing error is that the trial court failed to “fairly
consider” his mitigating factors under rule 4.425. This contention is not borne out by the
record. At the sentencing hearing, the court heard statements by defendant’s family and
argument by counsel. The court also inquired whether defendant wished to be heard, but
he declined. The court expressly stated it considered defendant’s minimal prior record as
a mitigating factor. In rendering consecutive terms on counts 1 through 4, the court
explained its reasoning, concluding: “These crimes involve separate acts of violence and
threats of violence within the meaning of Rule of Court 4.425, which justifies a
consecutive sentence. It involved the threat of great bodily injury or great bodily harm.
They involve a high degree of cruelty, viciousness and callousness. These victims were
highly vulnerable, as well, as they were doing their jobs, trying to get through the day at
the dispensary, and certainly were not looking for any trouble.” The court further noted
that the crimes “were obviously planned out in advance, indicating a degree of
sophistication and professionalism. And I do believe that Mr. Brown’s conduct clearly
represents a significant danger to society.”
It is clear from the court’s statements that it found the offenses in counts 1 through
4 involved separate acts of violence, on which it could reasonably base the imposition of
consecutive sentences under rule 4.425. Moreover, the court identified several
aggravating factors that further justified consecutive terms: the offenses involved the
threat of great bodily injury, the victims were particularly vulnerable, the manner in
which the robberies were carried out indicated “planning, sophistication, or
professionalism,” and defendant’s violent conduct “indicates a serious danger to society.”
(Cal. Rules of Court, rule 421(a)(1), (3), & (8), 421(b)(1) [circumstances in
aggravation].) Defendant does not dispute that these were appropriate factors for the
court to consider. While he suggests the court should have weighed his mitigating factors
12
more heavily, he has not demonstrated any abuse of discretion in the trial court’s
determination.8
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
8
Defendant’s citation to People v. Caballero (2012) 55 Cal. 4th 262 is inapposite,
as that case involves a juvenile defendant sentenced to 110 years to life (effectively life
without the possibility of parole).
13