In re LESLIE BRIGHAM on Habeas Corpus.
No. A144572
First Dist., Div. Two.
Sept. 14, 2016.
318
Paula Rudman, under appointment by the Court of Appeal, for Petitioner Leslie Brigham.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Dorian Jung, Deputy Attorneys General, for Respondent The People.
OPINION
MILLER, J.-Petitioner was convicted in 1987 of first degree murder as an aider and abettor. In 2014, the California Supreme Court held that an aider and abettor may be convicted of first degree premeditated murder only under direct aiding and abetting principles, not under the natural and probable consequences dоctrine. (People v. Chiu (2014) 59 Cal.4th 155, 158-159 [
STATEMENT OF THE CASE
As described in our opinion on petitioner‘s appeal from his 1987 conviction (People v. Brigham (1989) 216 Cal.App.3d 1039, 1042 [265 Cal.Rptr. 486] (Brigham)), petitioner was charged by information with the first degree murder of Hosea Barfield (
On appeal, a different panel of this court struck the five-year enhancement, affirmed the judgment (over the dissent of Presiding Justice Kline), and denied a contemporaneous petition for writ of habeas corpus. (Brigham, supra, 216 Cal.App.3d at p. 1057.)
The present petition was filed on March 19, 2015. After considering respondent‘s informal opposition to the petition and petitioner‘s reply thereto, we issued an order to show cause why the requested relief should not be granted. Respondent filed its return on November 17, 2015, and petitioner filed his traverse on December 11, 2015.
STATEMENT OF FACTS2
On the evening of January 21, 1986, Barbara Dawson and her cousin Catherine Barfield experienced car trouble while parked on East 14th Street, near 61st Avenue. Mrs. Barfield, who lived nearby in the 65th Village, telephoned her husband and 14-year-old son Hosea Barfield (Barfield), who both agreed to come help. As the two women walked back to the car, they
Upon reaching the car, while starting to unlock the door, Ms. Dawson saw a man wearing dark clothes and a ski mask pulled down over his face come around the corner. The man lifted a rifle-type gun and shot it several times. Ms. Dawson ducked down, then flagged a passing car. She did not see the man when she got up. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
As Ms. Dawson approached the driver‘s side of the car, Mrs. Barfield went to join her son at the passenger side. Noticing a clicking noise, she turned and saw a man standing by the corner barbershop with a dark ski mask covering his face and a rifle-type gun in his hands. Barfield told her to run, and as she did so, she saw the gun fire. Mrs. Barfield called the police from a store, then returned to find her son dead on the sidewalk. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
The driver of the car Ms. Dawson flagged down testified that he heard shots as he was driving down East 14th, approaching 61st. He looked to his left and saw a man crouched down and running. The man appeared to be wearing a drab-сolored army jacket with a fur collar; the driver could not see the man‘s face or hands. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
A pathologist testified that Barfield had at least three gunshot wounds to his neck, back, arm, and chest, and extensive internal injuries in his chest and brain. The police recovered three spent .223-caliber casings at the scene, which a ballistics expert said could have been fired by either an AR-15 or an HK-93. In his opinion, however, the bullets had not been fired from an HK-93. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
Nearly nine months after the murder, when the police investigation had reached a dead end, petitioner approached an Oakland police officer and asked to talk to a homicide investigator about a “‘mistaken identity murder‘” on East 14th Street. After a voluntary preliminary interview, petitioner was admonished about his rights and gave two taped statements. Petitioner related that on the night of the murder, he and another man, Norbert Bluitt (Bluitt), were ordered by “‘The Man‘” (a person petitioner refused to identify) to kill “Chuckie,” whom “‘The Man‘” had held a grudge against for some time and petitioner considered an enemy of the group. Petitioner thought the group Chuckie was part of was “‘out to kill me.‘” (Brigham, supra, 216 Cal.App.3d at pp. 1043-1044.)
“‘The Man‘” arranged for automatic weapons to be delivered to petitioner and Bluitt; petitioner said his was an “HK-9,” Bluitt had a similar gun and
Petitioner, Bluitt and Moore set out to find Chuckie, with Moore driving. Petitioner said that he was wearing dark clothes and a rolled-up ski mask, and Bluitt was wearing a baseball cap marked with an “‘N‘” pulled low over his face. Petitioner, an experienced hit man, stated that the only time he would put a ski mask “‘on my face‘” was “‘when I‘m tryin’ ta hit, kill somebody.‘” Petitioner had “‘worked‘” with Bluitt before and knew Bluitt was “‘just hardheaded.‘” (Brigham, supra, 216 Cal.App.3d at p. 1044.)
Thе hit men arrived at the 65th Village, where Chuckie was supposed to be, parked, and walked “‘in the back way‘” to a porch where a group of men was gathered. The group scattered. Following one of the departing men, petitioner and his companions ran back to their car and drove toward East 14th on 64th, by a place known as “Plucky‘s,” where they saw “‘a young guy.‘” (Brigham, supra, 216 Cal.App.3d at p. 1044) Seeing Barfield from the car, petitioner said it was Chuckie and Bluitt said, “‘[“]we‘re gonna get him.[“]‘” As they got closer, petitioner said, “‘man, that is not Chuckie, man.‘” Bluitt said, “‘we‘re gonna get him‘” and directed the driver to make a right turn and stop. Petitiоner and Bluitt both got out of the car with their weapons. Petitioner went, with his weapon, to the street corner near where the shooting occurred, saw an officer in a police car, then returned his gun to the car and told Bluitt, “‘[P]olice right there, man. Don‘t do it. It ain‘t cool. That‘s not the dude, man. Come on.‘” Bluitt said, “‘[“M]an, fuck dat. We‘s gonna waste it up. We‘s gonna let dese niggers know we serious.[“]‘” Petitioner tried to grab Bluitt‘s arm, but Bluitt fired more than twice, hitting Barfield in the face. (Brigham, supra, 216 Cal.App.3d at pp. 1044-1045.)
At the end of the police interview, petitioner identified photographs of Bluitt, Moore and the AR-15 rifle Bluitt carried. (Brigham, supra, 216 Cal.App.3d at p. 1045.) Ms. Dawson had identified the AR-15 militаry rifle as being most like the gun she saw in the hands of the shooter, choosing it over an HK-93 assault rifle. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
The investigating officer testified that Moore told him Bluitt was wearing a dark gray hood. Both Ms. Dawson and Mrs. Barfield testified that the killer was not wearing a baseball cap. (Brigham, supra, 216 Cal.App.3d at p. 1044.)
DISCUSSION
I.
Petitioner has filed this petition for writ of habeas corpus without seeking relief from the trial court, and respondent has raised no objection to
II.
As we have said, petitioner was “convicted of first degree murder as an aider and abettor.” (Brigham, supra, 216 Cal.App.3d at p. 1042.)3 “There are two distinct forms of culpability for aiders and abettors. ‘First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 [108 Cal.Rptr.2d 188, 24 P.3d 1210] . . . .)‘” (Chiu, supra, 59 Cal.4th at p. 158.) “A nontarget offense is a ‘natural and probable consequence’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable. ([People v.] Medina[ (2009)] 46 Cal.4th [913,] 920 [95 Cal.Rptr.3d 202, 209 P.3d 105].) The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. (Ibid.) Rather, liability “‘is measured by whether a reasonable person in the defendant‘s position would have or should have known that the charged offense was a reasоnably foreseeable consequence of the act aided and abetted.‘” (Ibid.) Reasonable foreseeability ‘is a factual issue to be resolved by the jury.’ (Id. at p. 920.)” (Chiu, supra, 59 Cal.4th at pp. 161-162.)
“The natural and probable consequences doctrine is based on the principle that liability extends to reach ‘the actual, rather than the planned or “intended” crime, committed on the policy [that] . . . aiders and abettors
Chiu considered these principles in the context of a case where the target offense of assault or disturbing the peace resulted in a murder. (Chiu, supra, 59 Cal.4th at p. 160.) For policy reasons, the court held that “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” (Id. at pp. 158-159.) The court explained: “A primary rationale for punishing such аiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator‘s commission of the nontarget offense of second degree murder.” (Id. at p. 165.) “However, this same public policy concern loses its force in the context of a defendant‘s liability as an aider and abettor of a first degree premeditated murder. First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation, which trigger a heightened penalty. ([People v.] Knoller[ (2007)] 41 Cal.4th [139,] 151 [59 Cal.Rptr.3d 157, 158 P.3d 731].) That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].). . . . [T]he connection between the defendant‘s culpability and the perpetrator‘s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence.” (Chiu, supra, 59 Cal.4th at p. 166.)
Chiu further explained that aiders and abettors “may still be convicted of first degree premeditated murder based on direct aiding and abetting principles,” under which “the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.” (Chiu, supra, 59 Cal.4th at pp. 166-167.) “An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully,
Respondent maintains that Chiu is inapplicable where, as here, the target offense is itself premeditated murder.4 The Chiu opinion did not suggest any exceptions to the rule it stated. In respondent‘s view, however, there is no unfairness in holding petitioner liable for the premeditated murder of Barfield because petitioner intended to facilitate a premeditated murder, albeit the murder of Chuckie rathеr than Barfield. Respondent argues that where the target offense is premeditated murder and the perpetrator commits that offense against a different victim, there is no “disjunction” between the aider and abettor‘s intent to commit the target offense and the perpetrator‘s intent to commit the non-target offense. In effect, respondent maintains that petitioner acted with the intent of a direct aider and abettor, albeit with a different intended victim, and limiting the prosecution to second degree murder in this situation would confer a windfall upon petitioner.
Respondent‘s argument evokes the doctrine of transferred intent, under which “‘a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had “the fatal blow reached the person for whom intended.“‘” (People v. Bland (2002) 28 Cal.4th 313, 321 [121 Cal.Rptr.2d 546, 48 P.3d 1107], quoting People v. Suesser (1904) 142 Cal. 354, 366 [75 P. 1093].) Indeed, respondent argues that in the present case, the prosecutor used the natural and probable consequences theory “as a proxy for the transferred intent doctrine.” But, as respondent points out, the jury was also instructed on transferred intent. This theory would have established petitioner‘s liability as а direct aider and abettor without resort to consideration of natural and probable consequences. Respondent does not explain why the prosecutor would have needed to use the natural and probable consequences doctrine to “substitute for” or “supplement” the transferred intent theory.
If the jury rejected petitioner‘s defense, the transferred intent theory would have easily directed it to find petitioner guilty of the premeditated murder of
Respondent‘s argument that Chiu does not apply where the target crime is premeditated murder, despite some superficial appeal, is not persuasive. The appeal lies in the fact that, unlike the defendant in Chiu, petitioner intended to facilitate a premeditated murder, not some lesser offense. But, if the jury accepted petitioner‘s defense, petitioner intended only to facilitate one specific premeditated murder, the murder of Chuckie. Respondent‘s argument assumes that the mens rea of a person who knowingly acts with the intention of assisting in the premeditated murder of a specific victim necessarily transfers to an intention to assist in killing a completely unrelated victim the perpetrator independently decides to kill instead.
The Chiu decision was based upon the “uniquely subjective and personal” mental state required for conviction of first degree premeditated murder—the “willfulness, premeditation, and deliberation” that trigger the harsher penalty
As applied to this case, Chiu directs that petitioner could be found guilty of the first degree premeditated murder of Barfield as a direct aider and abettor, only if he “aided or encouraged the commission of the murder [of Barfield] with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.” (Chiu, supra, 59 Cal.4th at p. 167.) If he did not intend to commit, encourage or facilitate the premeditated murder of Barfield, he could not be found guilty of that offense on the theory that the murder of Barfield was a natural and probable consequence of the crime he did intend to commit, encourage or facilitate (the premeditated murder of Chuckie). As we have said, however, the jury in the present case was instructed on both direct aiding and abetting and the natural and probable consequences theory.
Assessing whether the error in Chiu was harmless, the court explained, “When a trial court instructs a jury on two theoriеs of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [17 Cal.Rptr.2d 365, 847 P.2d 45]; People v. Green (1980) 27 Cal.3d 1, 69-71 [164 Cal.Rptr. 1, 609 P.2d 468].) Defendant‘s first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.” (Chiu, supra, 59 Cal.4th at p. 167.)
Respondent argues that this test should not be employed on collateral review. Instead, respondent argues that petitioner is not entitled to relief on
Respondent‘s position on the assessment of Chiu error in the habeas context was rejected in Johnson, supra, 246 Cal.App.4th at pp. 1406-1407. As Johnson explained, cases involving changes in law analogous to Chiu have employed the Chapman6 beyond a reasonable doubt standard on habeas review. In Chun, supra, 45 Cal.4th 1172, the Supreme Court “reconsidered the scope of the second degree felony-murder rule and expressly overturned its previous holding that shooting at an occupied vehicle could form the basis for such a conviction.” (Johnson, supra, 246 Cal.App.4th at p. 1405.) This change was the basis for a habeas petition in Lucero, supra, 200 Cal.App.4th 38, in which the jury instructions permitted a murder conviction to be predicated on such a shooting. After concluding that Chun applied, the Lucero court found the error “harmless beyond a reasonable doubt” (Lucero, supra, 200 Cal.App.4th at p. 52), as “‘[n]o juror who correctly followed the instructions could arrive at a verdict of attempted murder without addressing the question of malice aforethought and resolving it against Lucero. Hence, this is a case where “other aspects of the verdict . . . leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice. . . .” (Chun, supra, 45 Cal.4th at p. 1205.)’ (Lucero, at p. 51.)” (Johnson, supra, 246 Cal.App.4th at p. 1405.) Hansen, supra, 227 Cal.App.4th 906, 922-928, applied the beyond a reasonable doubt standard for harmless error in the long-final case that was expressly overturned by Chun, finding prejudice because nothing in the jury‘s verdict showed it relied upon the legally valid theory rather than the invalid felony murder theory, or made the findings necessary to support the valid theory.
By contrast, Mutch and Earley “only addressed insufficiency of the evidence claims and the ‘excess of jurisdiction’ exception to the Waltreus/Dixon rules limiting relitigation of appellate claims on habeas.”8 (Johnson, supra, 246 Cal.App.4th at p. 1407, fn. omitted.) In Mutch and Earley, subsequent to the petitioners’ convictions of kidnapping for the purpose of robbery under section 209, People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225], held—contrary to previous interpretations of the statute—that the asportation element of the offense intended by the Legislature is not satisfied by movements of the victim that are “‘merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.‘” (Earley, supra, 14 Cal.3d at pp. 126-127, italics omitted; Mutch, supra, 4 Cal.3d at p. 394.) Both cases applied the
Unlike the situation in Mutch and Earley, the issue here is not whether the facts support petitioner‘s conviction but whether the jury could have relied upon an invalid legal theory in convicting him. We agree with Johnson that “the scope of California habeas corpus review is not so limited as respondent suggests based on Mutch and Earley. Rather, the Supreme Court‘s Chiu opinion effected a significant change in the law of aiding and abetting, eliminating the naturаl and probable consequences doctrine as a basis for a conviction of first degree murder. There is no question that the arguments and jury instructions allowed the jury to base its murder finding on the now-discredited theory of natural and probable consequences; accordingly, as instructed by our Supreme Court, we now turn to the question of prejudice.” (Johnson, supra, 246 Cal.App.4th at p. 1407.)
We cannot conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that petitioner directly aided and abetted the premeditated murder and not on the legally invalid natural and probable consequences doctrine. No felony-murder theory was offered at trial. The jury rejected the personal use and infliction of great bodily injury enhancements. The jury was instructed on the natural and probable consequences theory, and this theory was argued by the prosecution. This theory would have provided the route to conviction if the jury believed part or all of petitioner‘s defense, and that defense was not implausible. While a defendant‘s statements to the police might often be dismissed as self-serving, in this case petitioner was not a suspect attempting to dispel suspiсion when he spoke with the police. As earlier indicated, petitioner voluntarily contacted the police almost nine months after the murder, after investigation of the murder had reached a dead end, when there is no apparent reason it was in his interest to do so. (Brigham, supra, 216 Cal.App.3d at p. 1043.) There is simply no way to tell from the verdict whether the jury relied on the invalid natural and probable consequences theory or viewed appellant as a direct aider and abettor.
DISPOSITION
The petition for writ of habeas corpus is granted. The judgment of conviction is vacated and the matter is remanded to the superior court with directions to allow the People to accept a reduction of the conviction to second degree murder or elect to retry petitioner on first degree murder under a direct aiding and abetting theory. If the People do not elect to bring petitioner to trial within the time prescribed by law, the trial court shall enter judgment reflecting a conviction of second degree murder and shall resentence petitioner accordingly.
Richman, Acting P. J., and Stewart, J., concurred.
A petition for a rehearing was denied October 7, 2016, and the opinion was modified to read as printed above.