People v. Brackenridge

1

THE PEOPLE, Plaintiff and Respondent, v. KEON ANDRE BRACKENRIDGE, Defendant and Appellant.

F084451

California Court of Appeals, Fifth District

March 11, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No BF170249A Brian M. McNamara, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FRANSON, J.

Keon Andre Brackenridge was denied access to a casino in Bakersfield and was being escorted off the property by several casino employees when he shot and killed one employee and shot at another. As a result, he was convicted of first degree murder attempted murder, various assault and firearm charges and enhancements, and it was found true that he had one "strike" prior felony conviction.

Brackenridge contends the prior strike finding was not supported by the evidence; that there is insufficient evidence of first degree and attempted murder with premeditation and deliberation, and should have instead been convicted only of voluntary manslaughter based on imperfect self-defense or provocation; and that counsel was ineffective for failing to call an eyewitness. We agree with respondent's concession on the first issue and remand for resentencing. In all other respects, we affirm.

STATEMENT OF THE CASE

Keon Andre Brackenridge was charged by amended information in count 1 with first degree murder (Pen. Code, §§ 187, subd. (a); 189)^[1], with use and discharge of a firearm causing death (§§ 12022.5, subd. (a); 12022.53, subd. (d)); in counts 2, 4 and 6 with assault with a firearm (§ 245, subd. (a)(2)), with use of a firearm (§ 12022.5, subd. (a)), and the infliction of great bodily injury (§ 12022.7, subd. (a)); in counts 3 and 5 with willful and premeditated attempted murder (§§ 664/187, subd. (a); 189); in count 7 with discharge of a firearm at an inhabited dwelling (§ 246), with the infliction of great bodily injury (§ 12022.7, subd. (a)) and discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)); and in count 8 with unlawful possession of a handgun (§ 29800, subd. (a)(1)), with use of a firearm (§ 12022.5, subd. (a)) and the infliction of great bodily injury (§ 12022.7, subd. (a)). As to each count, it was alleged Brackenridge had suffered a prior "strike" (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)); a prior serious felony conviction (§ 667, subd. (a)) and served three prior prison terms (§ 667.5, subd. (b))^[2], and multiple aggravating factors were alleged (Cal. Rules of Court, rule 4.421).

A jury found Brackenridge guilty as charged, except it acquitted him of count 5 (one of the two attempted murder allegations), and it found all the special allegations true. In a bifurcated proceeding, the People asked to dismiss the section 667.5 enhancements, which was granted. The trial court found the prior serious felony conviction allegation true under section 667, subdivisions (a) and (e), and found three of the aggravating factors true.

The trial court sentenced Brackenridge to a total of 33 years plus 114 years to life in prison as follows:

Count 1, murder, a term of 25 years to life, doubled (§ 667, subd. (e)), plus 25 years to life (§ 12022.53, subd. (d)), plus five years (§ 667, subd. (a)); and it imposed and stayed 20 years (§ 12022.53, subd. (c)) and 10 years (§ 12022.5, subd. (a)) pursuant to section 654.

Count 2, assault with a firearm, four years, doubled (§ 667, subd. (e)), plus 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7, subd. (a)), all stayed pursuant to section 654.

Count 3, attempted murder, seven years to life, doubled (§ 667, subd. (e)), plus 25 years to life (§ 12022.53, subd. (d)), plus five years (§ 667, subd. (a)); and it stayed 20 years (§ 12022.53, subd. (c)), 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7) pursuant to section 654.

Count 4, assault with a firearm, four years, doubled (§ 667, subd. (e)), and 10 years (§ 12022.5, subd. (a)), and three years (§ 12022.7), all stayed pursuant to section 654.

Count 6, assault with a firearm, four years, doubled (§ 667, subd. (e)), plus 10 years (§ 12022.5, subd. (a)), and it imposed and stayed three years (§ 12022.7) and five years (§ 667, subd. (a)), pursuant to section 654.

Count 7, shooting at inhabited dwelling, seven years, doubled, (§ 667, subd. (e)), 25 years to life (§ 12022.53, subd. (d)), and three years (§ 12022.7), all stayed pursuant to section 654.

Count 8, illegal possession of firearm, three years, doubled (§ 667, subd. (e)), which was stayed pursuant to section 654.

STATEMENT OF THE FACTS

On November 3, 2017, Johnathan Calderon, Richard Iloilo, Jose Lopez, and Manuel Castellanos were all working security detail at the Golden West Casino in Bakersfield. The casino had a policy that anyone under the age of 35 who walked onto the property was required to present identification in order to enter the casino. Sometime between 5:00 and 5:30 p.m Lopez and Castellanos made contact with Brackenridge in front of the casino and asked him to provide identification, which he refused to do.

Brackenridge repeatedly asked if he needed to be on a list to get into the casino, but was told that all he needed to do was show proof of his age. When Brackenridge asked to speak to a supervisor and to see the casino's policy, Lopez contacted Iloilo, his supervisor, who came out. At this point, Castellanos headed inside the front door of the casino, where he watched through the front windows with Calderon.

With Iloilo present, Lopez again asked Brackenridge for his identification. Brackenridge was a bit belligerent and continued to refuse to show identification, asking Iloilo if he was "the baddest man in Bakersfield." Iloilo said, "No" and again advised Brackenridge he needed to provide identification or security would need to escort him off the property. Brackenridge responded, "Okay well, escort me out then."

Iloilo and Lopez began walking away from the casino with Brackenridge - Lopez on Brackenridge's right and Iloilo on his left. After a few steps, Brackenridge turned to his left and looked at Iloilo, then kept walking. From in the building, Castellano noticed that, after Brackenridge stopped, Iloilo gave Brackenridge "a little courtesy shove" to keep him moving. As captured on the casino surveillance video, Brackenridge then pulled a handgun from his waistband, took a few steps in front of Iloilo and Lopez, and fired at the two.

Lopez grabbed his own firearm and fired back at Brackenridge, who ran to the east parking lot and continued firing shots towards the entrance of the casino. Lopez discharged his entire magazine, which held 10 rounds.

Calderon, who had been inside the casino, ran out of the building and returned fire in Brackenridge's direction. Brackenridge continued to fire his gun five more times towards the casino where Iloilo, Lopez and Calderon were located. Iloilo also fired at Brackenridge as he fled south.

While this was going on, Joseph Crotwell had been working as a card dealer inside the casino, with six customers at table 12, near a front window. Crotwell heard a series of pops and glass in the front window shattered, sending everyone under the tables.

Castellanos took cover behind the wall next to the sliding doors inside the casino, where he directed patrons to stay back. Castellanos estimated there were more than 20 people inside the casino at the time. Castellanos radioed that there had been shots fired and ran outside, where he saw Lopez and Calderon run to the south gate after Brackenridge and noticed Iloilo was on his back, bleeding profusely and having trouble breathing. Iloilo died soon thereafter.

Law enforcement responded to 911 calls that there had been a shooting at the casino. Brackenridge, who ran to a market at the next intersection, also called 911 to report that he had been shot multiple times by the security guards at the casino. Brackenridge was arrested and his nine-millimeter firearm seized.

Officers on the scene found six nine-millimeter Blazer casings, which Brackenridge admitted during his testimony belonged to him. In all, 18 casings were found in the courtyard - 12 were .40-caliber and six were nine-millimeter. Iloilo had fired a Glock .40-caliber handgun. It had one round in the chamber and three in the 10-round magazine. Calderon had fired a .40-caliber handgun, which had one round chambered and eight out of 10 rounds in the magazine. He had also emptied another 10-round magazine. Lopez had fired a Springfield Armory nine-millimeter handgun, which had nine rounds in the magazine and one in the chamber; he also emptied another 10-round magazine.

An autopsy on Iloilo determined that he had suffered three gunshot wounds - one entering his heart, one his left forearm, and one his left buttock.

Defense

Brackenridge testified in his own defense that he had walked to the casino that evening to get something to eat. He carried a loaded firearm with him for protection. Brackenridge testified that he was told he could not enter the casino because he was not on the guest list; he denied ever being asked for identification. Because Brackenridge saw other patrons entering the building, he asked to see a supervisor. Brackenridge insisted that the security guards threatened him and called him various names and told him that, if he did not leave right away, they would "beat my ass" and "basically kill me." Brackenridge testified that on his way out, Iloilo attacked him by hitting him in...