People v. Bratton

95 Cal.App.5th 1100

314 Cal.Rptr.3d 106

The PEOPLE, Plaintiff and Respondent,

v.Tory Palmer BRATTON, Defendant and Appellant.

E078627

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

Filed September 26, 2023

Certified for Partial Publication.^*

Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski, Alan L. Amann, Juliet W. Park, A. Natasha Cortina, Felicity Senoski and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

At the age of 16, defendant Tory Palmer Bratton confessed to robbing a local market, with an accomplice, shooting the clerk dead, and taking $184. At his trial, his counsel argued that defendant's confession was false and that he did not participate in the robbery at all. However, trial counsel did not argue that, even if defendant did participate, he was not the shooter. Defendant was convicted of (among other things) first degree murder, with a personal firearm use enhancement and felony-murder special circumstances. He appealed; we affirmed.

When defendant filed a petition to vacate the murder conviction under Penal Code section 1172.6,¹ the trial court denied it; it ruled that our opinion in defendant's direct appeal showed that he was the actual killer.

The People concede that this was error. In ruling on a section 1172.6 petition, a trial court is not allowed to consider facts stated in an appellate opinion. They contend, however, that the error was harmless because the record of conviction establishes that defendant was the actual killer.

Anticipating this response, defendant contends that, under standard principles of issue preclusion (a/k/a collateral estoppel), preclusion does not apply here because:

(1) Whether defendant was the shooter was not actually litigated.

(2) Trial counsel had an incentive not to contest whether defendant was the shooter.

(3) The significance of whether defendant was the shooter was small at trial but, due to the then-unforeseeable enactment of section 1172.6, has since become great.

(4) Section 1172.6 is a significant change in the law that warrants reexamination of whether defendant was the shooter.

We agree that standard principles of issue preclusion apply here. However, we hold that the issue of whether defendant was the shooter was actually litigated. Moreover, trial counsel did have an incentive to contest this issue; evidently, he simply made a tactical decision not to.

Because trial counsel did have an incentive to contest the issue, it does not matter that it was unforeseeable that the issue would have additional future consequences. And finally, while section 1172.6 is a significant change in the law, the Legislature intended that it not constitute an exception ipso facto to issue preclusion.

ISTATEMENT OF FACTS

A. The Area of the Crime.

Defendant's arguments require an understanding of the layout of the area of the crime. The exhibits that we have include two aerial views of the scene. However, due to the age of the case, two other exhibits that were maps of the scene have been destroyed. Defendant asks that in lieu of the missing exhibits, we consider a current Google Maps view of the area. We deem this to be a request for judicial notice of a Google Maps view of the area, which is granted. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a) ; see also United States v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1182, fn. 1.)

The area involved is the southeast corner of Mountain Avenue (north-south) and I Street (east-west) in Ontario. On the corner itself, there was a gas station. Immediately east of that was the I Street Market, and immediately east of that was an alley running north-south.

On Mountain, south of the gas station, there was a Taco Bell, and south of that, a McDonald's. The alley ran behind (i.e., east of) both of these businesses.

Behind the McDonald's, on the other side of the alley, there was an apartment complex, made up of 823 and 827 Palmetto Street. Between the two buildings, there was a small triangular area. On the night of the crimes, a white pickup truck was parked in that triangular area. There was also a wrought iron fence, with a gate, between the two buildings.

B. The Arrival of the Police at the Scene.

On June 14, 1995, around 8:40 p.m., a 911 operator answered a call but heard only "a moaning sound."

Also around 8:40 p.m., Ellen Trakes drove to an ATM on I Street, directly across from the market, to get cash. She saw three "kids," all male, come out of the market. Two of them, whose race she could not determine, ran east on I Street, toward the alley. The third was Black, wearing a white tank top. Trakes did not notice any of them holding anything.

After getting the cash, Trakes went to the market. There she found the dead body of the clerk, Swindel "Sonny" Singh, lying behind the counter. He had been shot once, in the left chest. The bullet went through his heart, killing him. Trakes picked up the store's phone to call 911, but found the 911 operator already on the line.

When the police arrived, the cash register drawer was open and the money tray was missing. On the floor, behind the counter, they found one fired bullet and one bullet casing. The casing was .380-caliber. The bullet was fully jacketed and consistent with .380-caliber. The presence of the casing meant that the gun was semiautomatic. The bullet hit a tobacco display behind the counter, indicating that the shot was fired from the customer side of the counter while Singh was standing behind the counter, at the cash register. In a planter south of the market, the police also found "fresh footprints."

C. Other Eyewitnesses.

1. Irene Lopez.

Irene Lopez lived in the apartment complex. About 8:30 p.m., she was driving north through the alley to go home. She saw three Black men and one Black woman standing in a planter area behind the I Street Market. One man was wearing a white tank top. The tallest man had something shiny.²

2. John Miranda.

John Miranda also lived in the apartment complex. Around 8:35 p.m., he was at a payphone at the McDonald's when he heard two backfires coming from the north.

Seconds later, Miranda finished his call and started walking home across the alley. He saw two Black men, in their early 20's or younger, running south down the alley. The one in front was holding a gun. The one in back was carrying a dark object, about a foot and a half wide, in both hands. One of them was wearing a white T-shirt or tank top.

The one with the object went to a white pickup and put something under the tire. "He then panicked and went towards the alley," where he met up with the one with the gun. One of them picked the object back up. They rattled the wrought iron fence. They ran south, then east toward the fence again.

3. Mary Prestridge.

Mary Prestridge, too, lived in the apartment complex. Around 8:40 p.m., as she was leaving her apartment to go to the market, a Black man, aged 18 to 20 and "kind of tall," ran into the triangular area. He looked around, under, and into a white pickup.

A second young Black man "came running down the alley and stopped and stuck his head around the corner and said something to [the first] man." The first man then ran east and jumped over a gate. The second man did not go with him, but Prestridge was not sure where he went.

4. Second-Hand Statements of Unknown Witnesses.

When Detective Michael Cover arrived at the scene, other officers told him that according to witnesses, two Black men — one holding a money tray — had jumped over the wrought iron fence.³

D. Defendant's Confession.

About two weeks later, "[a]fter various investigations," Detective Cover interviewed defendant at the police department. In his opinion, defendant was not under the influence of any controlled substance. Defendant said he had last used PCP two days before the interview.

Defendant said that after he took "a couple of hits off" a "sherm," he and a friend decided to rob the I Street Market. He had shopped there; he knew Singh and Singh knew him.

They drove to the market. Defendant brought along a gun that he claimed to have found in a park. It was a .380 semiautomatic; he had loaded it with fully jacketed bullets.

They spent 10 or 15 minutes casing the store, going back and forth between the planter area and the front of the store, to look inside. When defendant saw there were no customers inside, he and his friend went in.

Defendant pulled out the gun and ordered Singh to go to the register and give him the money. Singh opened the register; defendant took out the money tray and put it in a black bag. Singh said defendant's name — "Tory" — and defendant shot him once in the chest. He explained that he shot Singh because "he realized Sonny knew him." At that moment, defendant was in front of the counter, to the right of the register; Singh was behind the counter, between the register and the tobacco display.

According to defendant's account, he and his friend went out the front door, turned right (east), then turned right again (south) down an alley. At this point, the friend was holding the black bag; he turned left into an area where there were some trucks and tried to hide the bag by a truck. Defendant told him, "No, not here. Let's go."

They resumed running south down the alley. Then the friend turned left (east). Defendant ran west toward the Taco Bell. He threw the gun into a dumpster at the Taco Bell. He continued west to a friend's apartment and stayed there for a while before going home. He took the money out of the money tray, then threw both the money tray and the black bag into a dumpster by his apartment.

The money totaled $184. Defendant had planned to give his friend half but decided to give him only $60 because defendant "had done the killing."

Initially, defendant refused to identify his friend. Then he said his name...