People v. Browder

1

THE PEOPLE, Plaintiff and Respondent, v. DAITREON THOMAS BROWDER, Defendant and Appellant.

B321402

California Court of Appeals, Second District, Eighth Division

February 7, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA481424. Laura F. Priver, Judge. Affirmed in part reversed in part, and remanded with directions.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

STRATTON, P. J.

Daitreon Browder was convicted of murder (Pen. Code,^[1]§ 187, subd (a)), premeditated attempted murder (§§ 664 &187, subd. (a)), shooting from a motor vehicle (§ 26100, subd. (c)), and shooting at an occupied motor vehicle (§ 246). The jury found true the special circumstance allegations that the murder was committed by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)) and that the murder was committed for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)). The jury also found true allegations as to all four counts that a principal used and discharged a firearm causing great bodily injury and death within the meaning of section 12022.53 subdivisions (b), (c), (d) and (e)(1) and the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced appellant to life without the possibility of parole for the murder conviction, 25 years to life for the section 12022.53 firearm enhancement, and a consecutive term of 15 years to life for the attempted murder conviction. The court stayed appellant's sentence on the remaining two counts pursuant to section 654.

Appellant appeals from the judgment of conviction, contending his conviction should be reversed in light of recently enacted Assembly Bill No. 333, which requires bifurcation of gang allegations at the request of the defendant. He contends that the true findings on the gang enhancement and the gang special circumstance allegations must also be reversed due to changes made by Assembly Bill No. 333 as to proof of predicate criminal acts. Finally, appellant contends that this case should be remanded to permit the trial court to reconsider the firearm enhancement in light of amendments to section 1385 made by Senate Bill No. 81.

We reverse the true findings on the section 186.22 gang enhancement allegations and the section 190.2, subdivision (a)(22) gang-related special circumstance allegation and remand to permit a new trial. The trial court is instructed to exercise its discretion concerning imposition of the firearm enhancement in light of amended section 1385. We affirm the judgment of conviction in all other respects.

BACKGROUND

Appellant has raised sentencing issues which require very little consideration of the facts of the underlying offense, and so we summarize those facts only briefly.

On September 4, 2019, about 1:10 p.m., Timothy Phillips began backing his gray car out of the driveway outside his house on South Harvard Boulevard. James Carter, a passenger in the car, knocked Phillips's cigarette out of his hand. Phillips stopped his car near the curb and bent down to pick up his cigarette.

Phillips heard several gunshots as glass began breaking all over the car. Phillips noticed that Carter had been shot and appeared to be unconscious. He drove to a friend's house and put Carter into her car. She drove Carter to the hospital. Carter died from the gunshot wound.

Phillips returned to his home and spoke with police. He told them he saw a four-door burgundy vehicle with tinted windows, which looked like a Mitsubishi or a Mazda. It was the only car on the street. Phillips believed there were two people inside, and that the shots came from the passenger side of the vehicle.^[2] He did not hear anything before the shooting began, and nobody in the burgundy vehicle said anything to him.

Much of the police investigation focused on video surveillance footage. Police recovered footage from about 20 locations.

At trial, Detective John Flores testified that surveillance footage from September 4, 2019, showed appellant and Levon Tippit driving a 2003 burgundy Toyota which was registered to appellant. Video surveillance footage from a house on La Salle Avenue captured a partially obscured view of events on Harvard Boulevard. The footage showed Phillips walking from his front door to his driveway. It then showed Phillips's gray car backing out of the driveway and stopping along the curb. The video showed a white vehicle stop about 20 feet before the intersection with 89th Street, back up and then move forward onto 89th Street, going west. About 1:13 p.m., appellant's burgundy Toyota appeared next to Phillips's car, paused for two to three seconds and then turned right onto 89th Street. Phillips's car immediately went south on Harvard Boulevard.

At trial, Inglewood Police Department Detective Samuel Bailey testified as an expert on gangs, primarily in Inglewood. One such gang is the Inglewood Family Bloods, which has a number of cliques, including the 80th Street clique. Detective Bailey opined that appellant and Tippett were members of the Inglewood Family Bloods and that appellant belonged to the 80th Street clique.

The prosecution offered evidence of three predicate offenses, all committed in 2016 by Inglewood Family Blood gang members: an assault by means of force likely to produce great bodily injury by Maasai Lopez, an attempted murder by Mitchell Grace, and a first degree murder by Kenny Birdine. Detective Bailey provided additional information about the facts of the offenses.

According to Detective Bailey, the Inglewood Family Bloods are enemies and rivals of the Neighborhood Crips, including the Rolling 90's Neighborhood Crips. The Rolling 90's claim as their territory the intersection of 91st Street and Hobart Boulevard, which is one block from Harvard Boulevard.

In response to a hypothetical mirroring of the facts of this case, Detective Bailey opined that the shooting was committed for the benefit of, at the direction of, and in association with a criminal street gang. He described the benefit as "to establish and maintain the fearsome reputation I talked about with their rivals and the neighborhood . . . and law enforcement." The direction and association elements were satisfied by the fact that two gang members committed the shooting in concert.

DISCUSSION

A. Failure to Bifurcate the Section 186.22 Enhancement Allegations Was Harmless.

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) amended the Penal Code to add section 1109, which requires bifurcation of section 186.22 gang enhancement allegations upon request by the defendant. Appellant contends the amendment applies retroactively to his case and requires a new trial. We do not agree.

As the parties note, there is a split of appellate authority on the retroactivity issue and the California Supreme Court has granted review to decide this issue. (People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743 [§ 1109 applies retroactively]; People v. Perez (2022) 78 Cal.App.5th 192, review granted Aug. 17, 2022, S275090 [§ 1109 does not apply retroactively]; People v. Ramirez (2022) 79 Cal.App.5th 48, review granted Oct. 12, 2022, S275341 [same]; People v. Boukes (2022) 83 Cal.App.5th 937, review granted Dec. 14, 2022, S277103 [same].)

Even if section 1109 operated retroactively, reversal would not be required in this case. Failure to bifurcate does not constitute structural error, and the Watson standard for state law error applies when examining whether the failure to bifurcate was prejudicial with respect to an appellant's guilty verdicts. (People v. Tran (2022) 13 Cal.5th 1169, 1208-1209 (Tran).) Under the Watson standard, any error here in failing to bifurcate was not prejudicial because even if the gang enhancement allegations had been bifurcated, the gang evidence would have been admissible at trial to prove the special circumstance allegation against appellant pursuant to section 190.2, subdivision (a)(22). Section 190.2, subdivision (a)(22) renders first degree murder punishable by death or life without the possibility of parole if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).)

We agree with our colleagues in the Fifth District Court of Appeal that because section 1109 makes no reference to section 190.22, subdivision (a)(22), it does not apply to the determination of a special circumstance allegation under section 190.2, subdivision (a)(22). (People v. Montano (2022) 80 Cal.App.5th 82, 114 (Montano).) Because the gang evidence would have been admitted at trial to prove the section 190.2, subdivision (a)(22) special circumstance allegation, appellant was not prejudiced by the failure to bifurcate. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 ["To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled"]; People v. Osband (1996) 13 Cal.4th 622, 667 [if evidence is cross-admissible, prejudice is dispelled].

Appellant contends Montano was wrongly decided because it permits a prosecutor to avoid the bifurcation requirements of section 1109 by adding a section 190.2 gang special circumstance allegation in...