In re Brigham

3 Cal.App.5th 318

207 Cal.Rptr.3d 498

IN RE Lelslie BRIGHAM, on Habeas Corpus.

A144572

Court of Appeal, First District, Division 2, California.

Filed September 14, 2016

As Modified on Denial of Rehearing October 7, 2016

Jonathan Soglin, Paula Rudman, San Francisco, under appointments by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Dorian Jung, Deputy Attorney General, for Respondent.

Miller, J.Petitioner was convicted in 1987 of first degree murder as an aider and abettor. In 2014, the California Supreme Court held that an aider and abettor may be convicted of first degree premeditated murder only under direct aiding and abetting principles, not under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155, 158–159, 172 Cal.Rptr.3d 438, 325 P.3d 972(Chiu ).) Petitioner filed this writ, claiming the record does not establish beyond a reasonable doubt that the jury convicted him of first degree murder on a legally authorized ground. He seeks reversal of his conviction and remand for a new trial or reduction of the conviction to second degree murder. We will grant the petition.

STATEMENT OF THE CASE

As described in our opinion on petitioner's appeal from his 1987 conviction (People v. Brigham (1989) 216 Cal.App.3d 1039, 1042, 265 Cal.Rptr. 486 (Brigham )), petitioner was charged by information with the first degree murder of Hosea Barfield (Pen. Code, § 187¹ ), with allegations that he personally used a firearm and inflicted great bodily injury on the victim, and that he had been convicted of a serious felony for which he received probation in New Mexico. (Pen. Code, §§ 12022.5 ; 667.) A jury convicted petitioner of first degree murder, but found that he did not personally use a firearm or inflict great bodily injury. Petitioner waived jury trial on the enhancement allegation of prior serious felony conviction, and the court found it true. Petitioner was sentenced to a prison term of 25 years to life on the murder conviction, with a consecutive five-year term for the prior. (Brigham, supra, 216 Cal.App.3d at p. 1042, 265 Cal.Rptr. 486.)

On appeal, a different panel of this court struck the five-year enhancement, affirmed the judgment (over the dissent of Presiding Justice Kline), and denied a contemporaneous petition for writ of habeas corpus. (Brigham, supra, 216 Cal.App.3d at p. 1057, 265 Cal.Rptr. 486.)

The present petition was filed on March 19, 2015. After considering respondent's informal opposition to the petition and petitioner's reply thereto, we issued an order to show cause why the requested relief should not be granted. Respondent filed its return on November 17, 2015, and petitioner filed his traverse on December 11, 2015.

STATEMENT OF FACTS²

On the evening of January 21, 1986, Barbara Dawson and her cousin Catherine Barfield experienced car trouble while parked on East 14th Street, near 61st Avenue. Mrs. Barfield, who lived nearby in the 65th Village, telephoned her husband and 14–year–old son Hosea Barfield (Barfield), who both agreed to come help. As the two women walked back to the car, they saw Barfield across the street walking along East 14th to meet them. (Brigham, supra, 216 Cal.App.3d at p. 1042, 265 Cal.Rptr. 486.)

Upon reaching the car, while starting to unlock the door, Ms. Dawson saw a man wearing dark clothes and a ski mask pulled down over his face come around the corner. The man lifted a rifle-type gun and shot it several times. Ms. Dawson ducked down, then flagged a passing car. She did not see the man when she got up. (Brigham, supra, 216 Cal.App.3d at p. 1043, 265 Cal.Rptr. 486.)

As Ms. Dawson approached the driver's side of the car, Mrs. Barfield went to join her son at the passenger side. Noticing a clicking noise, she turned and saw a man standing by the corner barbershop with a dark ski mask covering his face and a rifle-type gun in his hands. Barfield told her to run, and as she did so, she saw the gun fire. Mrs. Barfield called the police from a store, then returned to find her son dead on the sidewalk. (Brigham, supra, 216 Cal.App.3d at p. 1043, 265 Cal.Rptr. 486.)

The driver of the car Ms. Dawson flagged down testified that he heard shots as he was driving down East 14th, approaching 61st. He looked to his left and saw a man crouched down and running. The man appeared to be wearing a drab-colored army jacket with a fur collar; the driver could not see the man's face or hands. (Brigham, supra, 216 Cal.App.3d at p. 1043, 265 Cal.Rptr. 486.)

A pathologist testified that Barfield had at least three gun shot wounds to his neck, back, arm, and chest, and extensive internal injuries in his chest and brain. The police recovered three spent .223 caliber casings at the scene, which a ballistics expert said could have been fired by either an AR–15 or an HK–93. In his opinion, however, the bullets had not been fired from an HK–93. (Brigham, supra, 216 Cal.App.3d at p. 1043, 265 Cal.Rptr. 486.)

Nearly nine months after the murder, when the police investigation had reached a dead end, petitioner approached an Oakland police officer and asked to talk to a homicide investigator about a “ ‘mistaken identity murder’ ” on East 14th Street. After a voluntary preliminary interview, petitioner was admonished about his rights and gave two taped statements. Petitioner related that on the night of the murder, he and another man, Norbert Bluitt (Bluitt), were ordered by “ ‘The Man’ ” (a person petitioner refused to identify) to kill “Chuckie,” whom “ ‘The Man’ ” had held a grudge against for some time and petitioner considered an enemy of the group. Petitioner thought the group Chuckie was part of was “ ‘out to kill me.’ ” (Brigham, supra, 216 Cal.App.3d at pp. 1043–1044, 265 Cal.Rptr. 486.)

“ ‘The Man’ ” arranged for automatic weapons to be delivered to petitioner and Bluitt; petitioner said his was an “HK–9,” Bluitt had a similar gun and Dual Moore had a handgun. A ballistics expert testified that petitioner must have been referring to an HK–93. (Brigham, supra, 216 Cal.App.3d at p. 1044, 265 Cal.Rptr. 486.)

Petitioner, Bluitt and Moore set out to find Chuckie, with Moore driving. Petitioner said that he was wearing dark clothes and a rolled-up ski mask, and Bluitt was wearing a baseball cap marked with an “ ‘N’ ” pulled low over his face. Petitioner, an experienced hit man, stated that the only time he would put a ski mask “ ‘on my face’ ” was “ ‘when I'm tryin’ ta hit, kill somebody.' ” Petitioner had “ ‘worked’ ” with Bluitt before and knew Bluitt was “ ‘just hardheaded.’ ” (Brigham, supra, 216 Cal.App.3d at p. 1044, 265 Cal.Rptr. 486.)

The hit men arrived at the 65th Village, where Chuckie was supposed to be, parked, and walked “ ‘in the back way’ ” to a porch where a group of men was gathered. The group scattered. Following one of the departing men, petitioner and his companions ran back to their car and drove toward East 14th on 64th, by a place known as “Plucky's,” where they saw “ ‘a young guy.’ ” (Brigham, supra, 216 Cal.App.3d at p. 1044, 265 Cal.Rptr. 486.) Seeing Barfield from the car, petitioner said it was Chuckie and Bluitt said, “ ‘ [“]we're gonna get him.[”] ’ ” As they got closer, petitioner said, “ ‘man, that is not Chuckie, man.’ ” Bluitt said, “ ‘we're gonna get him’ ” and directed the driver to make a right turn and stop. Petitioner and Bluitt both got out of the car with their weapons. Petitioner went, with his weapon, to the street corner near where the shooting occurred, saw an officer in a police car, then returned his gun to the car and told Bluitt, “ ‘[P]olice right there, man. Don't do it. It ain't cool. That's not the dude, man. Come on.’ ” Bluitt said, “ ‘[“M]an, fuck dat. We's gonna waste it up. We's gonna let dese niggers know we serious. [”]’ ” Petitioner tried to grab Bluitt's arm, but Bluitt fired more than twice, hitting Barfield in the face. (Brigham, supra, 216 Cal.App.3d at pp. 1044–1045, 265 Cal.Rptr. 486.)

At the end of the police interview, petitioner identified photographs of Bluitt, Moore and the AR–15 rifle Bluitt carried. (Brigham, supra, 216 Cal.App.3d at p. 1045, 265 Cal.Rptr. 486.) Ms. Dawson had identified the AR–15 military rifle as being most like the gun she saw in the hands of the shooter, choosing it over an HK–93 assault rifle. (Brigham, supra, 216 Cal.App.3d at p. 1043, 265 Cal.Rptr. 486.)

The investigating officer testified that Moore told him Bluitt was wearing a dark gray hood. Both Ms. Dawson and Mrs. Barfield testified that the killer was not wearing a baseball cap. (Brigham, supra, 216 Cal.App.3d at p. 1044, 265 Cal.Rptr. 486.)

DISCUSSION

I.

Petitioner has filed this petition for writ of habeas corpus without seeking relief from the trial court, and respondent has raised no objection to this court exercising original jurisdiction. “ ‘It has long been the law in California that, while a Court of Appeal may have original jurisdiction in a habeas corpus proceeding, it has the discretion to deny a petition without prejudice if it has not been first presented to the trial court.’ (In re Kler (2010) 188 Cal.App.4th 1399, 1403 [115 Cal.Rptr.3d 889].) ‘ “Generally speaking, habeas corpus proceedings involving a factual situation should be tried in superior court rather than in an appellate court, except where only questions of law are involved.” ...’ (In re of Hillery (1962) 202 Cal.App.2d 293, 294 [20 Cal.Rptr. 759], quoting 24 Cal.Jur.2d, Habeas Corpus, § 68, pp. 524–525; In re Davis (1979) 25 Cal.3d 384, 389 [158 Cal.Rptr. 384, 599 P.2d 690] [exercising original jurisdiction where the petitions raised issues of law and there were no material factual issues].)” (In re Johnson (2016) 246 Cal.App.4th 1396, 1402, 201 Cal.Rptr.3d 214 (Johnson ).) Resolution of the issue presented here does not require further factual determinations but...