People v. Baskett

THE PEOPLE, Plaintiff and Respondent, v. BRANDON KEITH BASKETT, Defendant and Appellant.

E073937

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

May 11, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVA1001189)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Reversed and remanded with directions.

Joanna Rehm, under appointment by the Court of Appeal; Spolin Law, Aaron Spolin and Annette Gifford for Defendant and Appellant.

Xavier Becerra and Rob Banta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

In 2013, this court affirmed defendant Brandon Keith Baskett's conviction of first degree felony murder for his participation in an armed robbery of a gold dealer that resulted in the dealer's murder, and affirmed his state prison sentence of 11 years, plus 25 years to life. Almost six years later, Baskett petitioned the superior court to vacate his murder conviction pursuant to Penal Code¹ section 1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). In a nutshell, that bill limited first and second degree murder under the natural and probable consequences doctrine and under the felony-murder rule to defendants who: (1) are the actual killer; (2) are not the actual killer, but who share the killer's intent to kill, and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life. The superior court summarily denied Baskett's petition after finding the record of his conviction established that he was the actual killer, and he was a major participant in the robbery and acted with reckless indifference for human life.

On appeal, Baskett argues the superior court erred when it found he had not made a prima facie case for relief, and the court was required to conduct a jury trial to determine his eligibility for relief. The People concede the superior court erred by ignoring the allegation in Baskett's petition that he was not the shooter and making a factual finding that he was the actual killer. But, the People contend the error was harmless because the record of conviction establishes he was a major participant in the underlying robbery who acted with reckless indifference to human life. Because Baskettcannot establish he is entitled to relief under section 1170.95, the People argue the superior court correctly denied the petition without conducting an evidentiary hearing.

We agree with Baskett that the superior court exceeded the limited scope of the inquiry under section 1170.95, subdivision (c), into whether a petitioner makes a prima facie case for relief. Therefore, we reverse and remand for the superior court to issue an order to show cause and set an evidentiary hearing on Baskett's petition. However, we disagree with Baskett that the People will be barred during that evidentiary hearing from attempting to prove beyond a reasonable doubt that he was the actual shooter, and we disagree with his additional assertion that he will be entitled to a jury.

I.

FACTS

We take our summary of facts from this court's nonpublished decision in Baskett's direct appeal in People v. Tucker et al. (July 26, 2013, E054399), of which we take judicial notice. (Evid. Code, §§ 452, subd. (a), 459, subd. (a); see People v. Allison (2020) 55 Cal.App.5th 449, 454 & fn. 3.)

"On the evening of July 26, 2010, defendants [Baskett and Ricco Tucker] met with [A.S.²], [R.B.], and someone named 'Little Trouble' or 'Lil D.' [A.S.] and [R.B.] had previously dealt with [the victim, L.T.]; they knew he bought gold and carried a lotof cash.³ The five men 'set up a plan to rob' [L.T.] The plan was to meet the next morning, lure [L.T.] to Rialto under the pretense of selling him gold, and rob him.

"On the morning of July 27, defendants and Little Trouble picked up [A.S.] and [R.B.] in a blue Dodge Avenger. Then, around 10:00 a.m., [A.S.] called [L.T.], told him he had a lot of gold to sell, and asked him to meet him at a garage in front of an apartment on Jackson Street in Rialto. The plan was for [A.S.] and [R.B.] to meet [L.T.] while defendants waited in the Dodge, hidden from view. When [A.S.] or [R.B.] walked out of the garage to 'get more gold,' that would signal defendants to come into the garage and rob [R.T.]

"Later that day, [A.S.] and [R.B.] met [L.T.] in front of the appointed garage. [L.T.]'s friend [G.G.] was with [L.T.], and [L.T.] had $8,000 to $10,000 with him. [A.S.] and [R.B.] led [L.T.] and [G.G.] into the garage, and [A.S.] handed [L.T.] a Rolex chain. [A.S.] told [R.B.] to get more gold and [R.B.] left.

"Moments later, defendants walked into the garage with guns drawn. According to [A.S.], Baskett put a silver and black .40-caliber gun to the back of [G.G.]'s head and told [G.G.] and [L.T.] to get down. Tucker then pointed a black and brown nine-millimeter gun at [G.G.], while Baskett turned his gun away from [G.G.] and pointed it at [L.T.]'s head. [Fn. omitted.] [L.T.] reached for Baskett's gun. Tucker then pointed his gun at [L.T.] and said, 'This is for real.' [L.T.] picked up his bag and ran out of the garage. Next, [A.S.] ran out of the garage. [A.S.] heard two shots, turned, and saw [L.T.]lying on the ground. [A.S.] ran back toward the Dodge Avenger and saw defendants in the car, speeding away. [A.S.] and [R.B.] walked to [R.B.]'s house. Later that day, [A.S.] spoke with Baskett by phone and asked him whether he would give some of the robbery proceeds to [A.S.] and [R.B.] Baskett said, 'Yeah, later on.'

"[G.G.] came out of the garage after hearing shots and 'all the footsteps running.' [L.T.] was lying on the ground and had two gunshot wounds. [G.G.] called for an ambulance and the police. [¶] . . . [¶]

"The police arrived at the scene of the shooting at 1:27 p.m. on July 27, 2010. Three .40-caliber shell casings were found on the garage floor. Trible suffered two gunshot wounds, and one was fatal.

"A day or two after the shooting, officers stopped Baskett driving the blue Dodge Avenger and discovered that [C.C.] had rented the car on July 23, 2010, four days before the shooting. Tucker was apprehended in [C.C.]'s home. In the trunk of [C.C.]'s Chevrolet Suburban, officers found a receipt from Shiekh Shoe Store in Victorville dated July 27, 2010, at 2:17 p.m. Surveillance videotapes showed Baskett and Tucker in the store, displaying large amounts of cash around the time the receipt was issued.

"On July 28, the day after the shooting, a witness saw Baskett and Tucker wearing new clothing, in contrast to the 'raggedy' clothing they had been wearing. Baskett was also carrying a black handgun in his waistband and flashing 'a large amount of hundred dollar bills.'

"During a police interview, Tucker admitted his role in the robbery and that he and Baskett bought shoes in Victorville after the robbery, but Tucker denied shooting [L.T.]Baskett gave Tucker $600 of the robbery proceeds." (People v. Tucker et al., supra, E054399.)

II.

PROCEDURAL HISTORY

A. Baskett's Trial.

In a first amended information, the People charged Baskett with first degree murder (§ 187, subd. (a), count 1), second degree robbery (§ 211, count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1), count 5). Inter alia, with respect to the murder and robbery counts, the People alleged Baskett personally and intentionally discharged a firearm and caused great bodily injury and death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.53, subd. (b)). Finally, the People alleged Basket suffered a prior prison term. (§ 667.5, subd. (b).)

At the prosecutor's request, the trial court dismissed the count of second degree robbery. Instead, the prosecutor tried Baskett on the theory of felony murder with second degree robbery as the target offense. (People v. Tucker et al., supra, E054399.) The jury was instructed with CALCRIM Nos. 540A and 540B that it could find Baskett guilty of murder if it found beyond a reasonable doubt that he was the actual shooter or if it found beyond a reasonable doubt that he aided and abetted in the commission of the robbery during which the murder took place. In addition, the jury was instructed it need not agree unanimously on which theory was true, so long as each juror found one or the other theory had been proven beyond a reasonable doubt.

During deliberations, the jury asked whether a conviction on count 1 required it to find that Baskett "pulled the trigger." The trial court referred the jury to the instructions and reiterated the jury could convict Baskett if it found beyond a reasonable doubt that he was the actual killer or that he aided and abetted the robbery during which a coparticipant killed L.T. In a follow-up question, the jury seemed to indicate that it had reached a guilty verdict on the aiding and abetting theory, but asked the trial court whether it was nonetheless required to reach a conclusion on the direct-shooter theory. The trial court responded that the jury was not required to unanimously agree on the theory of first degree felony murder, so long as each juror found one or the other theory had been proven beyond a reasonable doubt.

After further deliberation, the jury indicated it had reached its verdicts but, when the trial court noted the jury had not signed either of the verdict forms (true or not true) for the sentencing allegation that Baskett personally discharged a firearm and caused death or great bodily injury, the court sent the jury...