THE PEOPLE, Plaintiff and Respondent, v. DAITREON THOMAS BROWDER, Defendant and Appellant.
B321402
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 6/26/24
Opinion following transfer from Supreme Court. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. BA481424)
APPEAL from a judgment of the Superior Court of Los Angeles County. Laura F. Priver, Judge. Affirmed 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.
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 a 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 Browder 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 walking2
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 Tippit 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 Bloods 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. As discussed in more detail below, 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 the Harvard Boulevard residence where the shooting occurred.
DISCUSSION
A. Lack of Instruction on the New Collective Engagement Element Was Harmless.
In Clark, the Supreme Court explained that when Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) amended
It is undisputed that the jury in this matter was not instructed on this new element of collective engagement as described in Clark. In his supplemental brief on remand, appellant contends this error was not harmless, and so this matter must be remanded for a new trial on the
In Clark, supra, 15 Cal.5th 743, the California Supreme Court considered what the collective engagement requirement of amended
The Court elaborated: “This organizational nexus may be shown by evidence linking the predicate offenses to the gang‘s organizational structure, meaning its manner of governance; its primary activities; or its common goals and principles. By reference to these elements of a gang‘s affairs and operations, we do not mean to overstate the degree of formality required. As we have recognized, some gangs have a ‘“loose“’ structure [citation], while others are ‘highly ordered and disciplined,’ with a ‘well-defined’ hierarchy [citation]. Similarly, some gangs may have loosely defined goals and principles, while others may have clearly defined missions. Given this variability, collective engagement will be established in different ways.” (Clark, supra, 15 Cal.5th at p. 762.)
The Supreme Court provided examples of evidence which could show the requisite collective engagement. As relevant here, “evidence might show a . . . general, well-understood expectation that members must engage in certain types of offenses. (E.g., People v. Elizalde (2015) 61 Cal.4th 523, 528 [189 Cal.Rptr.3d 518, 351 P.3d 1010] [junior members received a general order to attack rivals to support the gang and earn their status].) In other cases, collective engagement might be shown by
The Court described the collective engagement requirement as a “new” element that applied retroactively and recognized that then-current instructions did not contain this element. (Clark, supra, 15 Cal.5th at p. 763.) The Court found that the lack of instruction on this element could be found to be harmless beyond a reasonable doubt. (Ibid., citing People v. Cooper (2023) 14 Cal.5th 735, 742 (Cooper).) We ask whether, beyond a reasonable doubt, the error did not contribute to the verdict. (See Clark, at p. 764.) More specifically, as Cooper explains: “When a jury instruction has omitted an element of an offense, our task ‘is to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.“’ ” (Cooper, at pp. 742-743.)
Here, we conclude there is no such contrary evidence for any of the three predicate offenses. At the same time, the evidence concerning two of the predicate offenses overwhelmingly established the required organizational nexus. Only two
The evidence showed that two of the predicate offenses involved attacks by a member of the Inglewood Family Bloods gang on an individual believed to be a member of one of the gangs which together make up the Neighborhood Crips. Inglewood Family Bloods gang member Maasai Lopez was convicted of an assault with force likely to produce great bodily injury on a perceived member of the Crips Rolling 60‘s gang and Mitchell Grace was convicted of the attempted murder of a perceived member of the Crips Rolling 100‘s gang, in Rolling 100‘s territory.
Detective Bailey testified that due to the long-standing rivalry and “on again, off again shooting war” between Neighborhood Crips and Inglewood Family Bloods, “[t]here‘s no meeting. There‘s no written order. There‘s no text message, calls, or emails. It‘s understood that if you‘re from specifically a Blood gang from Inglewood, specifically Inglewood Family, and you have the opportunity to attack one of your rivals, specifically the Neighborhood Crips, that—that you don‘t have to check in with anybody. You can go out and Nap bash. You‘re expected to do that without receiving some kind of official order from some hierarchy in the gang. [¶] And let‘s make it from the other direction. If you had opportunity and you didn‘t do it, then you‘d be dealt with from inside the gang.”
Given the overwhelming evidence of collective engagement and the lack of contrary engagement, we conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.
B. No Instructions on the Amended Requirement for Gang Benefit Was Harmless.
As respondent acknowledges, because we reversed the gang allegation findings based on the insufficiency of the evidence of collective engagement, we did not address appellant‘s claim that he was prejudiced by the absence of an instruction on Assembly Bill 333‘s new requirement that both the predicate offenses and charged offenses benefitted the gang in a way that was more than reputational. We address that claim now and find harmless the absence of such an instruction.
As the Supreme Court has explained, the requirement that the benefit to the gang be more than reputational in effect creates a new element for the enhancement. (People v. Tran (2022) 13 Cal.5th 1169, 1207.) Thus, “reversal is required unless ‘it appears beyond a reasonable doubt’ that the jury verdict would have been the same in the absence of the error.” (Ibid.)
As we have just discussed, the evidence was overwhelming that the two predicate crimes involved attacks on individuals who were perceived to be gang rivals. This is one of the statutory examples of a common benefit that is more than reputational. Thus, beyond a reasonable doubt the jury finding would have been the same in the absence of the error.
The evidence is similar for the current offense. There was overwhelming evidence that appellant targeted a rival gang. Detective Bailey testified that the offense took place on September 4, which was a “hood day” for one of the Inglewood Family Bloods subsets. A hood day was a day of celebration for a gang. Members of other Inglewood Family Bloods subsets could show up to the party or put money into the party or “that kind of stuff” or, if they were not going to show up they could “go hunt [the] enemy, which is favorable, well-looked upon.” The route appellant and Tippit took to and from the shooting was a route Inglewood Family Bloods members commonly took from their territory to the territory of the Rolling 90‘s subset of the Neighborhood Crips. Phillips and Carter were not gang members. However, Phillips‘s house was in the territory claimed by the Rolling 90‘s subset of the Neighborhood Crips gang. More specifically, Phillips‘s house was about a block from the
C. Failure to Bifurcate the Section 186.22 Enhancement Allegations Was Harmless.
Assembly Bill 333 amended the Penal Code to add
D. Resentencing is Appropriate for the Firearm Enhancement in Light of Senate Bill No. 81.
Senate Bill No. 81 (2021-2022 Reg. Sess.), enacted in 2021, amended
Appellant contends these provisions would apply to the 25 years-to-life sentence imposed for the true finding on the
Appellant contends that pending further guidance from the Supreme Court, the matter should be remanded for resentencing to permit the trial court to consider the factors in amended
We remand the sentence on the firearm enhancement to permit the trial court to exercise its discretion under
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
Notes
In his opening brief in this matter, appellant noted there was a split of authority on whether this new definition could constitutionally be applied to