People v. Bragg CA3

Filed 6/17/22 P. v. Bragg 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C093561
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE19920007209)
v.
ANDRE MARCUS BRAGG,
Defendant and Appellant.
In 1993, a jury convicted defendant Andre Marcus Bragg of second degree murder
(count 1), attempted premeditated murder (count 2), shooting at an occupied vehicle
(count 3—Pen. Code, § 246),1 and permitting the discharge of a firearm from his vehicle
(count 4). The trial court sentenced Bragg to prison for 15 years to life on count 1 and a
1 Undesignated statutory references are to the Penal Code.
1
consecutive middle term of 7 years on count 2; execution of sentence on counts 3 and 4
was stayed pursuant to section 654.
In January 2019, Bragg filed a petition for resentencing pursuant to section
1170.95. After issuing an order to show cause and holding a hearing to determine
whether to vacate Bragg’s murder conviction, the trial court granted the petition, vacated
the conviction, dismissed count 1, and resentenced him to credit for time served. The
court ordered Bragg released from prison subject to a three-year period of parole.2 The
People, represented in this proceeding by the District Attorney of San Joaquin County,
appealed. The People contend the court erred in granting the resentencing petition
because Bragg was not convicted of murder under the natural and probable consequences
doctrine, the court refused to analyze whether Bragg could be convicted of second degree
murder under an implied malice theory, and he was guilty under this theory beyond a
reasonable doubt. The People also contend the court erred in excluding certain
statements Bragg made during his parole hearings. We conclude that, even without
considering evidence from Bragg’s parole hearings, the court erred in granting relief
because the jury’s original findings rendered him ineligible for relief under section
1170.95 as a matter of law. We reverse and remand for further proceedings reinstating
the original judgment and sentence.
I. BACKGROUND
A. Factual Background
As the parties do, we take our summary of the relevant facts from this court’s prior
opinion in Bragg’s direct appeal. (People v. Bragg (June 13, 1994, C015773) [nonpub.
opn.].)
2 The parties agree that the court was not permitted to impose a parole term longer than
two years. Because we conclude the trial court had no authority to vacate Bragg’s
murder conviction at all, we do not address this issue.
2
Sometime after 11:00 p.m. on May 5, 1992, gun shots were fired at a car occupied
by Rachelle Jones and her boyfriend, Alfonso, from another car as they were driving on a
freeway in Stockton. One of the shots struck Jones, causing her car to leave the freeway
and come to rest against a cyclone fence. Jones died from a gunshot wound to the chest.
Alfonso testified that Jones had picked him up outside M.M.’s apartment complex
on the night of the shooting. As Alfonso waited for Jones at a parking stall at the rear of
the complex, M.M. pointed to a car that was leaving a nearby alley. Alfonso recognized
the car as belonging to defendant. After Jones arrived and picked up Alfonso, she drove
down the same alley that defendant’s car had driven through. At that time, defendant’s
car came back in the opposite direction and passed Jones’ car. Shortly thereafter,
Alfonso saw defendant’s car at a stop sign.
Defendant’s car followed Jones’ car onto the freeway. Jones told Alfonso that
someone from defendant’s car “had something hanging out the window.” Shots were
fired from the car, and Jones was hit. When interviewed by police, Alfonso stated that he
saw the driver of the car and “thought he was [defendant].” He described the driver as a
“light-skinned Black male,” a phrase which accurately describes defendant.
On the morning of May 6, 1992, defendant went to the police station and reported
that he had heard from a relative that he and his car had been identified as being involved
in the shooting. After waiving his Miranda3 rights, defendant claimed his Oldsmobile
Delta 88 was not involved because it had not been running for a few days. He claimed
that he and his girlfriend had been driven to the Conway area where they spent the day.
He claimed that after they returned home at around 9:30 p.m., he went to sleep.
Defendant repeatedly claimed that he had not been in the Louis Park area, where M.M.
resided, for months. When informed by the police that several witnesses had identified
3 Miranda v. Arizona (1966) 384 U.S. 436.
3
him as the person who was driving in the Louis Park area on the night of the shooting,
defendant stated, “They couldn’t identify me, because my windows are tinted.” When
told to recall that his driver’s window was down, defendant responded with an
affirmative nod. The police then asked defendant who was with him at the time of the
shooting; he responded, “There’s nothing I can say, I’ll just have to do the time.”
B. Statutory Background
“Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill
1437) eliminated natural and probable consequences liability for murder as it applies to
aiding and abetting, and limited the scope of the felony-murder rule” by amending
sections 188 and 189. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The
amended section 188 provides that “[e]xcept as stated in subdivision (e) of Section 189
[regarding felony murder], 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.” (§ 188, subd. (a)(3).)
“Senate Bill 1437 also added section 1170.95 to the Penal Code, which creates a
procedure for convicted murderers who could not be convicted under the law as amended
to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957, fn. omitted.) Under
former section 1170.95, a petitioner was required to “file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
4
degree murder because of changes to Section 188 or 189 made effective January 1,
2019.’ ” (Lewis, supra, at pp. 959-960.)4
“If the trial court determines that a prima facie showing for relief has been made,
the trial court issues an order to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not greater than the
initial sentence.’ (§ 1170.95, [former] subd. (d)(1).) ‘The prosecutor and the petitioner
may rely on the record of conviction or offer new or additional evidence to meet their
respective burdens.’ (§ 1170.95, [former] subd. (d)(3).) At the hearing stage, ‘the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.’ ” (§ 1170.95, [former] subd. (d)(3).)” (Lewis,
supra, 11 Cal.5th at p. 960.)5
4 The statute has since been amended to specify it applies to petitioners who were
convicted of attempted murder or manslaughter as well. (§ 1170.95, subd. (a); Stats.
2021, ch. 551, § 2.)
5 Section 1170.95, subdivision (d)(3) now provides: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner 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. The admission of evidence in the hearing shall be governed by
the Evidence Code, except that the court may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed. The court may also
consider the procedural history of the case recited in any prior appellate opinion. . . .
The prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens. A finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails
to sustain its burden of proof, the prior conviction, and any allegations and enhancements
attached to the conviction, shall be vacated and the petitioner shall be resentenced on the
remaining charges.”
5
C. Procedural Background
In January 2019, Bragg filed his petition for resentencing under section 1170.95.
The People filed an opposition to the petition arguing, in part, that Bragg could
still be convicted of second degree murder because he acted with implied malice.
The trial court found that Bragg made a prima facie showing of entitlement to
relief, and issued an order to show cause.
The parties submitted additional briefing. The People argued the jury was not
instructed on either felony murder or murder under the natural and probable
consequences doctrine, and that Bragg’s conviction was unaffected by Senate Bill 1437.
At the hearing to determine whether to vacate the murder conviction and recall
Bragg’s sentence, the court concluded, “I think that it’s clear that Mr. Bragg was
convicted on a natural and probable consequences theory under aiding and abetting. I
don’t think that he would be convicted today given the changes to . . . [s]ection 188.”
The prosecutor “ask[ed] the Court to articulate the facts upon which the Court ha[d]
relied to find that Mr. Bragg, beyond a reasonable doubt, ha[d] not acted with implied
malice or reasonable --.” The court responded, “It’s based on the totality of the
documents submitted by both the People and by Mr. Bragg.” The court granted the
petition, vacated Bragg’s murder conviction, dismissed count 1, and resentenced him to
credit for time served.
II. DISCUSSION
A. Appealability
Bragg argues we should dismiss the People’s appeal because it is unauthorized by
section 1238, and reversing his new sentence and subjecting him to a second evidentiary
hearing would violate the constitutional prohibitions against double jeopardy.
As this court recently explained in People v. Hampton (2022) 74 Cal.App.5th
1092, 1102, “the trial court’s order finding defendant entitled to relief under section
1170.95 is appealable under section 1238, subdivision (a)(5).” We will therefore focus
6
on Bragg’s assertion that the People’s appeal should be disallowed because it would
violate principles of double jeopardy.
“The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 15 of the California Constitution guarantee that a
person may not be placed twice ‘in jeopardy’ for the ‘same offense.’ ” (People v. Seel
(2004) 34 Cal.4th 535, 541-542.)
“At its core, the double jeopardy clause ‘protect[s] an individual from being
subjected to the hazards of trial and possible conviction more than once for an alleged
offense.’ . . . [¶] ‘The constitutional protection against double jeopardy unequivocally
prohibits a second trial following an acquittal,’ because the ‘public interest in the finality
of criminal judgments is so strong that an acquitted defendant may not be retried even
though ‘the acquittal was based upon an egregiously erroneous foundation.” ’ [Citation.]
Consequently, the People cannot appeal from a jury’s verdict acquitting a defendant,
seeking a reversal in order to retry the defendant.” (People v. Eroshevich (2014) 60
Cal.4th 583, 588-589.) “On the other hand, if a trial court rules that evidence was
insufficient to support a conviction after the jury has returned a verdict the People may
appeal that ruling ‘because reversal would result in reinstatement of the jury verdict of
guilt, not a new trial.’ [Citations.] ‘[W]here a Government appeal presents no threat of
successive prosecutions, the double jeopardy clause is not offended.’ ” (Id. at p. 590.)
“An evidentiary hearing under section 1170.95 . . . does not implicate double
jeopardy because section 1170.95 ‘involves a resentencing procedure, not a new
prosecution.’ [Citation.] The retroactive relief provided by section 1170.95 is a
legislative ‘act of lenity’ intended to give defendants serving otherwise final sentences
the benefit of ameliorative changes to applicable criminal laws and does not result in a
new trial or increased punishment that could implicate the Double Jeopardy Clause.”
(People v. Hernandez (2021) 60 Cal.App.5th 94, 111; see also People v. Myles (2021) 69
Cal.App.5th 688, 704 [“double jeopardy principles are not at stake because defendant is
7
voluntarily seeking to vacate her prior conviction, not subjecting herself to a new trial or
the possibility of increased punishment”].) Additionally, we will not be ordering a new
evidentiary hearing. Rather, as we will explain, the trial court erred in granting Bragg’s
section 1170.95 petition because he was ineligible for relief as a matter of law. This is an
issue we may address on appeal.
B. The Jury’s Instructions on the Natural and Probable Consequences Doctrine
The People argue defendant was not convicted of murder under the natural and
probable consequences doctrine or any other now invalid theory of murder because the
jury was instructed only on direct aiding and abetting. The People’s argument turns on
the fact the instruction on the natural and probable consequences doctrine mistakenly
informed the jury that it had to find Bragg aided and abetted murder, which would have
nullified any use of the doctrine with respect to murder. Bragg does not address this
particular error.
“Our law recognizes two forms of liability for aiders and abettors. [Citation.]
First, under direct aiding and abetting principles, an accomplice is guilty of an offense
perpetrated by another if the accomplice aids the commission of that offense with
‘knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 843,
superseded by statute on other grounds.) Bragg’s jury was correctly instructed on direct
aider and abettor liability.
“Second, under the natural and probable consequences doctrine, an accomplice is
guilty not only of the offense he or she directly aided or abetted (i.e., the target offense),
but also of any other offense committed by the direct perpetrator that was the ‘natural and
probable consequence’ of the crime the accomplice aided and abetted (i.e., the nontarget
offense).” (People v. Gentile, supra, 10 Cal.5th at p. 843.)
CALJIC No. 3.02 was “the pattern jury instruction concerning aider and abettor
liability under the natural and probable consequences doctrine.” (People v. Covarrubias
8
(2016) 1 Cal.5th 838, 899) Bragg’s jury was instructed with a version of this instruction
that failed to accurately utilize the model:
“One who aids and abets another in the commission of a crime or crimes is not
only guilty of those crimes, but is also guilty of any other crime committed by a principal
which is a natural and probable consequence of the crimes originally aided and abetted.
“In order to find the defendant guilty of the crime of murder and attempted murder
as charged in Counts One and Two of the information, you must be satisfied beyond a
reasonable doubt that:
“One, the crime or crimes of murder and attempted murder were committed;
“Two, the defendant aided and abetted such crimes;
“Three, that a co-principal in such crime committed the crimes of shooting at an
occupied motor vehicle and driver permitting discharge of the firearm from the vehicle;
“Four, the crimes of murder and attempted murder were a natural and probable
consequence of the commission of the crimes shooting at an occupied vehicle and the
driver permitting discharge of firearm from the vehicle.” (Italics added.)
The instruction given was incorrect because the above emphasized portions were
transposed. As a result, the instruction explained the general concept of the natural and
probable consequences doctrine correctly but then told the jury that it needed to
specifically find Bragg aided and abetted murder to find him guilty of that offense. Such
a finding would mean that the verdict was not actually based on the natural and probable
consequences doctrine but on direct aiding and abetting principles. Section 1170.95
provides no authority to vacate such a conviction.
We agree with Bragg that the prosecutor’s argument, while it never used the
phrase “natural and probable consequence,” was consistent with applying the doctrine
with shooting at an occupied vehicle as the target offense and murder as the non-target
offense. The prosecutor referenced the existence of jury instructions, but did not review
them and did not address the instruction’s statement that the jury must find Bragg aided
9
and abetted murder to convict him of that offense. Rather, the prosecutor argued
generally, “even if the driver didn’t intend to facilitate a murder in this case, certainly the
evidence all points at that being the case. Even if he only intended he was going to shoot
at the car, not hurt the people in it, when those people died, he was [as] guilty of murder
as the person who pulled the trigger. [¶] Once you set a chain of events in motion, once
you start a crime, then you’re responsible for what the person you’re helping does. And
that’s it. You’ll get instructions on that, that is basically it.”
Where an attorney’s arguments conflict with the instructions, we presume the jury
followed the instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Indeed, the
jury was instructed to do so. Nonetheless, we conclude the inconsistency in the
instructions coupled with the prosecutor’s arguments created enough uncertainty that we
cannot, at this point in our discussion, eliminate any possibility that the jury convicted
Bragg of murder under the natural and probable consequences doctrine without also
making additional findings that effectively nullified any use of the doctrine. Therefore,
we turn to the findings we are certain the jury made and address their impact on Bragg’s
eligibility for resentencing.
C. Implied Malice Murder
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) “ ‘It is implied
. . . “when the killing results from an intentional act, the natural consequences of which
are dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard for
life.” ’ ” (People v. Taylor (2004) 32 Cal.4th 863, 867.) The jury was accurately
instructed on these principles and found Bragg guilty of second degree murder.
“[N]otwithstanding Senate Bill 1437’s elimination of natural and probable
consequences liability for second degree murder, an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second degree murder if the
10
person knows that his or her conduct endangers the life of another and acts with
conscious disregard for life.” (People v. Gentile, supra, 10 Cal.5th at p. 850.) At his
section 1170.95 hearing, defense counsel argued the fact the jurors found the murder was
not first degree precluded a determination that the jury would have found Bragg guilty of
murder without using the natural and probable consequences doctrine. Defense counsel
argued implied malice had been presented to the jury, but it is no different from the
natural and probable consequences doctrine, and both had been eliminated by Senate Bill
1437. The court stated that if the jury had found Bragg had implied malice it would have
convicted him of first degree murder. The prosecutor argued the jury reached this
conclusion because it found no premeditation and deliberation, and not because it
concluded Bragg lacked implied malice. The People assert the court rejected implied
malice as a valid legal theory by conflating it with the natural and probable consequences
doctrine. At a minimum, the record does not disclose that the court ever adequately
explained why implied malice did not apply. The court seemed to be focused solely on
whether this theory was argued to the jury. Regardless, it erred in applying the concept
of implied malice to this case.
Section 246 prohibits the malicious and willful discharge of a firearm at an
occupied motor vehicle. (People v. Rivera (2019) 7 Cal.5th 306, 333.) Bragg’s
conviction for this offense thus establishes, at a minimum, that the jury found beyond a
reasonable doubt that he was a direct aider and abettor of that crime who knew of the
shooter’s unlawful purpose and intended to commit or facilitate the shooting at the
occupied vehicle. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 [“ ‘A “person aids
and abets the commission of a crime when he or she, acting with (1) knowledge of the
unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime” ’ ”].) Importantly,
“ ‘section 1170.95, subdivision (c) cannot reasonably be read to permit a “do-over” of
11
factual issues that were necessarily resolved against a section 1170.95 petitioner by a
jury.’ ” (People v. Price (2021) 71 Cal.App.5th 1128, 1149.)
In People v. Chun (2009) 45 Cal.4th 1172 (Chun), our Supreme Court addressed
the impact of similar findings by a jury. Chun held that a violation of section 246
“merge[s] with the charged homicide and cannot be the basis for a second degree felony-
murder instruction.” (Id. at p. 1178.) The court then explained that the fact the trial court
had instructed the jury on second degree felony-murder was not prejudicial:
“any juror who relied on the felony-murder rule necessarily found that defendant
willfully shot at an occupied vehicle. The undisputed evidence showed that the vehicle
shot at was occupied by not one but three persons. The three were hit by multiple
gunshots fired at close range from three different firearms. No juror could have found
that defendant participated in this shooting, either as a shooter or as an aider and abettor,
without also finding that defendant committed an act that is dangerous to life and did so
knowing of the danger and with conscious disregard for life—which is a valid theory of
malice. In other words, on this evidence, no juror could find felony murder without also
finding conscious-disregard-for-life malice. The error in instructing the jury on felony
murder was, by itself, harmless beyond a reasonable doubt.” (Id. at p. 1205.)
Bragg concedes the record establishes he drove his armed passenger near the car
driven by the victims, but argues the jury could have been unconvinced he intended his
passenger to shoot at the occupants rather than at the car itself,6 and could have been
6 The trial court excluded transcripts from two of Bragg’s parole hearings in which he
explained the shooter told him to pull alongside the other car because he was going to
shoot them. The court excluded the evidence on the basis that the district attorney
questioned Bragg at the most recent hearing. The court’s discussion indicated it was
unaware Bragg had said the same thing at the earlier hearing that was not attended by the
deputy district attorney. It does not appear the People drew this distinction to the court’s
attention. The court indicated it would have deemed statements made in response to
questions from a parole board commissioner reliable and admissible. (See also People v.
12
unconvinced he knew and disregarded that the shooting would endanger the lives of the
victims. Bragg argues Chun is distinguishable because here the facts were that only one
firearm was used, only one shot hit a victim, and the vehicles were driving on the
freeway. Whether a jury’s conviction for shooting at an occupied vehicle will always
preclude relief under section 1170.95 is a question that is not before us. But we cannot
conclude Chun left any room to conclude the jury necessarily found anything less than
implied malice in this case. The natural and probable consequences doctrine and implied
malice are different because only the latter requires the defendant to share the mental
state of the actual perpetrator of implied malice murder. (People v. Soto (2020) 51
Cal.App.5th 1043, 1058, abrogated on other grounds by People v. Lewis, supra, 11
Cal.5th 952.) But, here, it would be impossible to find Bragg guilty under the natural and
probable consequences doctrine and not find implied malice if the jury found, as it did,
that Bragg aided and abetted shooting at an occupied vehicle. Hence, defense counsel at
the hearing on Bragg’s petition stated that the natural and probable consequences doctrine
and implied malice “are exactly the same thing. I think that’s exactly what was presented
to the original jury.” His statement was accurate as to this case.
Based on the jury’s findings, we must conclude it necessarily found Bragg guilty
of murder under a theory that is still valid. As such, the trial court was not permitted to
relitigate the issue and reach a different conclusion. (People v. Price, supra, 71
Cal.App.5th at p. 1149.) Bragg was ineligible for relief under section 1170.95 and the
Anderson (2022) 78 Cal.App.5th 81, 84 [concluding trial court did not err in considering
testimony from parole suitable hearings in section 1170.95 evidentiary hearing]; People
v. Myles, supra, 69 Cal.App.5th at p. 692 [concluding parole hearing transcript is
admissible in section 1170.95 resentencing hearing].) Nonetheless, the People bore the
burden of proof beyond a reasonable doubt and the trial court expressed skepticism that
Bragg could have taken responsibility for his actions at his parole hearing without
extrapolating at all on the facts. As such, we have not considered this evidence because
we are not engaging in any factfinding.
13
court erred as a matter of law in concluding the prosecution failed to meet its burden of
proof.
III. DISPOSITION
We reverse the trial court’s order granting Bragg’s petition, vacating his murder
conviction, and dismissing count 1, and we remand for further proceedings reinstating the
original judgment and sentence.
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
14