People v. Green

1

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALMOND GREEN et al., Defendants and Appellants.

E078468

California Court of Appeals, Fourth District, Second Division

August 13, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino, No. FSB1600375 J David Mazurek, Judge. Affirmed in part; reversed in part with directions.

Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant, Robert Green.

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

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

On the evening of January 29, 2016, two masked men committed an armed robbery of a drive-through dairy market. During the course of the robbery, one of the men shot one of the market's owners. The armed men fled the scene in a vehicle being driven by a third individual. Surveillance video from a nearby liquor store depicted what appeared to be the same armed men attempt to rob the liquor store that same evening.

As a result of these incidents, a jury convicted defendants and appellants, Robert Almond Green (Green) and Jason Allen (Allen), of one count of first degree murder (Pen. Code,^[1] § 187, subd. (a); count 1); two counts of robbery (§ 211, subd. (a); counts 2, 3); one count of attempted robbery (§§ 211, subd. (a), 664; count 4); and one count of possession of a firearm by a felon (§ 29800, subd. (a); count 6 [as to Green], count 7 [as to Allen]). The jury also found true multiple special allegations, including the allegation that counts 1, 2, 3, 4, 6, and 7 were committed for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b).)

On appeal, both Green and Allen argue that: (1) there was insufficient evidence to support their convictions for first degree felony murder;^[2] (2) there was insufficient evidence to support the jury's true finding on the gang enhancement allegations; (3) the trial court abused its discretion in refusing to bifurcate trial on the related gang enhancement allegations; and (4) the case should be remanded for resentencing in light of amendments to section 1385. Allen also separately argued that the trial court erred in refusing to give a requested pinpoint instruction related to count 1.

In supplemental briefing, both Green and Allen argue their gang enhancement convictions must be reversed as a result of the California Supreme Court's recent decision in People v. Clark (2024) 15 Cal.5th 743 (Clark II). Further, Green separately filed a petition for writ of habeas corpus, arguing he is entitled to reversal of his felony murder conviction because his trial counsel was ineffective for failing to present evidence of his intellectual disability at the time of trial and sentencing; and we ordered the petition to be considered with this appeal for the purpose of determining whether an order to show cause should issue.

Our review of the record leads us to conclude that (1) there was insufficient evidence to support Allen's felony murder conviction; (2) substantial evidence in the record supports Green's conviction for felony murder; (3) Green has not shown prejudice requiring reversal with respect to the trial court's decision not to bifurcate trial on the gang enhancement allegations; and (4) reversal of both defendants' gang enhancement convictions is warranted under Clark II. Given this conclusion, we need not reach defendants' additional arguments on appeal, and we also dismiss, without prejudice, Green's petition for writ of habeas corpus as moot.

II. RELEVANT BACKGROUND

A. Facts and Charges

In the evening of January 29, 2016, police were dispatched to a drive-through dairy market in the City of San Bernardino and discovered a man lying on the ground with a gunshot wound to his chest. Surveillance video from the market depicted two men armed with firearms enter the market; one of the men shoot one of the market's owners; and that same man proceed to empty the market's cash register. That same evening, police were also dispatched to a liquor store located less than two miles from the dairy market in response to a report of an armed robbery. Surveillance video from the liquor store depicted two men who resembled the men depicted in the surveillance video obtained from the dairy market.

As a result of these events, Stevenson, Green, and Allen were charged with one count of first degree murder (§ 187, subd. (a); count 1); two counts of robbery (§ 211, counts 2, 3); and one count of attempted robbery (§§ 211, 664; count 4). Each of them were also separately charged with one count of unlawful possession of a firearm (§ 29800, subd. (a)(1); counts 5-7), and Allen was charged with an additional count of obliterating the identification of a firearm (§ 23900; count 8). The information also alleged the following: (1) count one was committed while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)); (2) Green personally used a firearm and a principal used and discharged a firearm causing death in the commission of counts one through three (§ 12022.53, subds. (b), (d), (e)(1)); (3) Green personally used a firearm and a principal used a firearm in the commission of count 4 (§ 12022.53, subds. (b), (e)(1)); and (4) all counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).^[3]

B. Relevant Evidence at Trial

1. Testimony by Witnesses to the Robberies^[4]

S.P. co-owned the dairy market with the victim. On the evening of January 29, 2016, S.P., the victim, and one of their employees were working at the market. While S.P. was using the restroom, he heard a gunshot. When he exited the restroom, he was approached by two masked individuals who held him at gunpoint. The taller individual held a long gun, while the shorter individual held a handgun. The taller individual demanded money and eventually emptied the market's cash register. S.P. confirmed that surveillance video depicted the victim already lying on the ground, while the taller man emptied the cash register. When the masked individuals left, S.P. called 911 and attempted to render medical aid to the victim, but the victim died before paramedics arrived at the scene.

M.H. testified that she visited the dairy market with her husband on the evening of January 29, 2016. She drove up to the store in her vehicle and was in the process of greeting the victim when she saw two men approaching. The taller man wore a hoodie sweatshirt, with a rag over his face, and carried what appeared to be a long-barreled shotgun. The other man was wearing a pull-over ski mask and was carrying a shortbarrel handgun. Upon seeing the two men, she immediately reversed her vehicle onto the street and called 911. Her husband stepped out of their vehicle while she was on the phone. She exited her vehicle only after seeing a white vehicle speed away from the scene. After exiting the vehicle, she saw the victim on the ground, bleeding from the left side of his chest, and gurgling blood from his mouth. She attempted to aid the victim by administering CPR.

D.H. testified that he visited the dairy market with his wife on the evening of the shooting. While they were still inside their vehicle, he saw two people approaching them wielding firearms. His wife immediately reversed their vehicle and drove out to the street. When his wife parked their vehicle, he exited the vehicle to check on the market's owner, whom he had known for years and considered to be like family. He looked into the market and saw the victim lying on the floor. However, he did not further enter the store because he saw one of the armed men "messing with the register." Once the man "messing" with the register had left, D.H. entered the store to attempt to aid the victim.

B.W. testified that he owned a liquor store in the City of San Bernardino. On the evening of January 29, 2016, he was working alone when "a couple guys" came to his store wielding firearms. One individual held a "little gun" and the other held a "big gun."

Even though he was surrounded by protective glass, he recalled that the individual wielding the larger gun attempted to point the gun at him through an opening in the glass. He told the two men that they should leave, threatened to call the police, and pressed a security button designed to contact law enforcement. The men left his store without obtaining any money.

2. Testimony by Defendants' Associates and Relatives

J.T. testified that Green is his brother and Allen is his cousin. In January 2016, he was living in an apartment with his girlfriend and their children. On the evening of January 29, he was visiting his sister when he received a phone call from his girlfriend, J.H. In response, he returned to his apartment and encountered Green outside. J.T. initially testified that during this encounter, Green was not holding any items and that J.T. did not take any items from Green. J.T. was impeached with his prior statements to police that, during this encounter, Green was holding a shotgun and arguing with a group of individuals. In response, J.T. insisted he was truthful when speaking with police, but he denied ever making such statements. When confronted with photographs taken during a search of his apartment that depicted a shotgun under his bed, J.T. claimed he did not own a gun and admitted that he had taken the shotgun from Green on the evening of the murder and placed it under his bed.

J.H testified that she was in a relationship with J.T. and the mother of J.T.'s children. S...