THE PEOPLE, Plaintiff and Respondent, v. JONAS BROWN, Defendant and Appellant.
D075476
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 7/31/20
CERTIFIED FOR PARTIAL PUBLICATION*
(Super. Ct. No. SCD272812)
APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed as modified.
Thomas Eugene Robertson, by appointment of the Court of Appeal, for Defendant and Appellant Jonas Brown.
Xavier Becerra, Attorney General, Lance E. Winters Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Ann Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
Jonas Brown was tried for his involvement in three gang-related shootings. Tremayne Jones, a member of the Skyline gang and a confidential informant, died in the third incident. Among other counts, Brown was convicted by jury of the first-degree murder of Jones. On appeal, Brown asserts one trial error and three sentencing errors. He argues that: (1) the court prejudicially erred by failing to instruct the jury on voluntary manslaughter, (2) his conduct and actual custody credits were miscalculated, (3) two gang enhancements added to his sentence were unauthorized, and (4) the court was unaware of its discretion regarding a firearm enhancement. We agree with Jones that his actual custody credits and gang enhancements require correction, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are extensive, involving three shootings, two guns and dozens of witnesses. We limit our initial recitation of the facts to those pertinent to Brown‘s first-degree murder conviction since it is the only trial issue he raises. Procedural facts related to his sentencing are discussed in the relevant sections below.
Tremayne Jones was shot and killed in the middle of the afternoon on Encinitas Way, a neighborhood street. About a week later, Brown (who was known to police as a Skyline gang member) was pulled over for a traffic violation and arrested on an unrelated charge. He pleaded guilty and began serving his sentence. Only later was he charged with Jones‘s murder.
At trial, a spotty portrait of Jones‘s death emerged from the testimony of witnesses who lived on Encinitas Way—none of whom saw the entire event. Chance Lions was one of these residents. On the afternoon of the shooting, he was hanging around the house of his girlfriend, Alicia Williams. Both Lions and Williams noticed two cars parked out front, a black car and another car parked in front of it. Lions was about to enjoy an afternoon beer outside when he heard an argument happening in the street. The tone made him think a fight was imminent.
Lions came around the side of the house to see what was happening and observed a young man (Jones) in the street yelling at people who Lions could not see. A man sitting in the black BMW sedan gave Lions an intimidating glare and Lions retreated to the garage. Other witnesses established that the man in the BMW was Tony Tabbs, another Skyline member who was with Jones that day. After he heard gunshots, Lions came back out to see Jones wounded on the ground and Tabbs yelling for someone to call 911. Jones did not survive, and Tabbs did not cooperate with investigators.
Police searched the scene for weapons, but only succeeded in recovering shell casings—six .9-millimeter jackets and one Aguila brand .25-caliber jacket—indicating two different guns were fired. Ballistic analysis further concluded that the .9-millimeter casings were all ejected from the same gun, which was also the weapon used in an unsolved shooting a few months earlier. Under the hood of the BMW, which was registered to Jones‘s wife, investigators recovered a Crown Royal bag with an Aguila .25-caliber bullet stashed inside.
The medical examiner who performed Jones‘s autopsy testified he was shot four or five times; he had five distinct gunshot wounds, but two may have been caused by the same shot passing through his body in two places. The entry points and angles of the wounds indicated Jones was probably shot from behind. One of the bullets had a trajectory consistent with Jones falling forward as it struck him; the entry wound was below Jones‘s buttocks, and the projectile traveled upward, exiting his hip. The bullet that killed him entered his lower back, traveled through his spine, heart, and lung, and lodged in his upper chest. Another went through his back and exited near his armpit. This shot may have reentered his arm. He had one additional gunshot wound from a .25-caliber bullet that entered his left hand and lodged in his forearm. This one was different. There was soot at the entry wound, suggesting it was fired at very close range, and a comparison to the larger bullet recovered from his chest indicated the projectile came from a different gun.
Physical evidence circumstantially tied Brown to Jones‘s murder. A gun holster with Brown‘s DNA was left at the scene of another shooting where the same .9-millimeter handgun was used, cell phone tower data indicated Brown was near Encinitas Way when Jones was killed, and Brown was tied to an Audi that left the neighborhood right after the shooting. The prosecution also offered evidence to support their theory that Brown planned to kill Jones, a member of his own gang, because he thought Jones was a snitch.
Detective Joseph Castillo testified extensively about local gangs, Skyline specifically, and Jones‘s reputational problems with other Skyline members. Jones was a police informant. Castillo was Jones‘s handler, and the two were working together to set up controlled drug and firearm buys from Skyline members.
Although no arrests had yet occurred when Jones was killed, some Skyline members were already questioning Jones‘s loyalty due to rumors of his involvement in an earlier prosecution in Pennsylvania. Jones had testified against a former cellmate there, and the incident caught the attention of Skyline members after someone connected to the cellmate blogged about Jones‘s involvement. A forensic search of Brown‘s phone showed the device was used to browse and take screenshots of these online articles.
To counter suspicion, Jones had the transcript of his testimony in Pennsylvania doctored to hide the extent of his cooperation. He then distributed these edited documents to Skyline members, apparently believing it would restore their trust in him. But a series of text messages between Brown and other Skyline members indicate it may have had the opposite effect. Brown texted that he did not trust Jones after reading the transcript and discussed the consequences of snitching. In an extended text exchange with Michael Dunbar,
DISCUSSION
Brown claims he was entitled to a jury instruction on imperfect self-defense, but we find no error because there was no substantial evidence presented at trial that Brown shot Jones in fear for his life—reasonable or otherwise. Brown also challenges the calculation of presentence conduct credits because the court uniformly applied a credit-limiting statute for those convicted of murder to a period of custody before Brown had been charged with murder. However, case law and procedural history following our Supreme Court‘s decision in In re Reeves (2005) 35 Cal.4th 765 (Reeves) lead us to reject that claim. By contrast, we accept Brown‘s claim of error in the award of actual custody credits and make necessary corrections. Brown further contests the firearm and gang enhancements added to his sentence, arguing the court was unaware of its discretion
1. Evidence of self-defense and the lack of a voluntary manslaughter instruction
Brown contends the trial court erred by not instructing the jury on voluntary manslaughter under a theory of imperfect self-defense. To prevail, he must first show there was substantial evidence to support this theory of the case and then demonstrate the lack of instruction was prejudicial. We are not persuaded the evidence Brown points to was substantial enough to warrant an instruction. Even if somehow it were, he was not prejudiced.
When the evidence presented at trial lends substantial support to a lesser included offense, courts must instruct the jury accordingly. (People v. Breverman (1998) 19 Cal.4th 142, 148–149 (Breverman).) This obligation remains even when the defense objects to the instruction or relies on a contradictory defense strategy. (People v. Moye (2009) 47 Cal.4th 537, 541.) But a court‘s duty to instruct on its own initiative only arises if substantial evidence supports the conclusion that “the lesser offense, but not the greater, was committed.” (Breverman, at p. 162.)
Voluntary manslaughter is a lesser included crime within murder. (People v. Barton (1995) 12 Cal.4th 186, 200–201.) Imperfect self-defense is not a complete defense to an unlawful killing, but rather a theory under which murder is reduced to manslaughter “when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury.” (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.) In a case such as this, any alleged error in jury instructions on lesser included offenses are evaluated for prejudice in accordance with People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Beltran (2013) 56 Cal.4th 935, 955.) Under the Watson test, Brown must show it was reasonably probable a more favorable result would have occurred if the jury had been instructed on voluntary manslaughter. (Watson, at p. 836.) Our review “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error” considering the relative strength of all the evidence. (Breverman, supra, 19 Cal.4th at p. 177.)
Brown asserts there was substantial evidence he actually believed he needed to defend himself. His central claim is that there were indications Jones pulled his gun first on Brown, who then reacted by shooting Jones. In support of this account, Brown points to four pieces of evidence: (1) Chance Lions heard Jones yelling; (2) Tabbs gave Lions an intimidating look; (3) Jones was likely armed; and (4) Jones likely shot himself in the hand.
The first point—that Lions heard Jones yelling and inferred from the tone that things were “getting ugly“—does very little for Brown‘s claim. At most, it shows that Jones might have been angry. But it does not lend any real support to the specific contention that Jones pulled his gun first. The second point is even weaker because it involves the conduct of Tabbs, not Jones himself. That Tabbs glared at Lions is consistent with the tense scene Lions described—presumably a nonverbal warning to mind your own business—but has no tendency to indicate Jones took out his weapon before Brown did.
As to the remaining particulars, we agree there is substantial evidence that Jones was armed and shot himself in the hand. One casing from an Aguila brand .25-caliber bullet was recovered from the scene, and the bullet that was lodged in Jones‘s left hand was that same caliber. Soot indicated his hand wound was sustained at very close range—within a few inches of the gun. Another (unfired) Aguila brand .25-caliber bullet was recovered from a bag in the engine compartment of Jones‘s car. And Jones was known to be right-handed.
But the conclusion that Jones had a gun and shot himself simply has little to no bearing on who fired first. It is just as likely that Jones took out his gun in self-defense, after Brown either brandished a weapon or shot him. Brown believes the self-inflicted wound supports an inference that Jones pulled out his gun and misfired before Brown fired at all. But we are not convinced. If the misfire tends to show anything at all, it lends slight support to the idea that Jones was already panicked or wounded when he reached for his weapon, which made an accidental discharge more likely.
The evidence Brown cites does not substantially support a sequence of events in which Jones pulled his gun first and caused Brown to fear for his life—either reasonably or unreasonably. But even if we entertain that notion, he was not prejudiced. The weight of the evidence as a whole leads us to believe a reasonable jury would not be likely to conclude Brown feared for his life if they had been instructed on voluntary manslaughter. Two aspects of the case simply overwhelm that narrative with a stronger one in which Brown planned and carried out Jones‘s execution.
The first is that Jones was shot from behind. Brown asserts the medical examiner‘s testimony on this point was uncertain, but there is little ambiguity in the record. The fatal bullet entered Jones‘s low back, traveled through his torso, and lodged in his upper chest. Another entered his upper leg from the back and came out through his hip, traveling upward. A third again entered his back and exited his armpit. Three entry wounds to the back of the body is enough to strongly support the conclusion that Jones was facing away from his killer when the shots were fired.
The other aspect of the case that contradicts a self-defense narrative is the evidence of premeditation and motive. The text messages presented at trial substantially support the conclusion that Brown planned to kill Jones because he thought him untrustworthy. Over a series of messages, he indicated he did not trust Jones due to the Pennsylvania case, discussed consequences for snitching, and referenced shooting up Jones‘s car. His conversation with Michael Dunbar ended with Dunbar‘s suggestion that they plan the shooting.
The cases Brown relies on provide him little assistance. The evidence to support jury instructions on self-defense in each only underscores the lack of such evidence in the case before us. In People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178, the prosecution‘s chief witness testified that the murder victim was choking the wheelchair-bound defendant when the defendant shot him. Brown has no such evidence that Jones‘s conduct caused him fear. People v. Viramontes (2001) 93 Cal.App.4th 1256, 1263, involved a chaotic shooting at a party with significant evidence that the defendant endured some threat to his safety: there was a bullet hole in his jacket and two witnesses testified that someone shot at the defendant before he returned fire. Brown points to the strange parallel that one of the victims in Viramontes sustained a gunshot wound to the hand, but this similarity is merely superficial. (Ibid.)
In short, there was insufficient evidence to support a theory that Brown shot Jones with the subjective belief—reasonable or unreasonable—that he needed to defend himself. And even if one could marshal minimally sufficient evidence to warrant an instruction on voluntary manslaughter, the compelling evidence that Jones‘s death was a planned and premeditated killing would make any instructional error demonstrably harmless.
2. Presentence Credits
A week after Jones was killed, Brown was stopped and searched, yielding a loaded gun and cocaine on his person. He was charged with several counts and pled guilty to possession of cocaine with a loaded firearm. (
Brown challenges the application of
a. Conduct Credits
It is helpful at the outset to review the credit system in general and two statutes that limit a defendant‘s accrual of credits in certain situations. Presentence and postsentence credit are distinct from one another and governed by “independent . . . schemes.” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This case involves the presentence credit system. In addition to actual credit, which accumulates from time
The scheme may seem straightforward enough, but these credit-limiting statutes have not always proven easy to apply to defendants with multiple convictions that do not all trigger the same limitation. Here, Brown argues the court erred by applying
Before we address the specifics of Brown‘s argument, we must provide some relevant decisional history starting with People v. Ramos (1996) 50 Cal.App.4th 810 (Ramos), which supplied the rationale for the Baker decision. Ramos addressed whether
Ramos created a roadmap for resolution of similar cases and was widely relied on for the nearly 10-year period between its publication and the Supreme Court‘s Reeves decision. (See Reeves, supra, 35 Cal.4th at p. 774 [“All other published decisions addressing the same issue about presentence credits have followed Ramos.“].) Its rationale that
In Baker, the defendant spent several months in presentence custody on a nonviolent offense before being charged with a violent felony. He was eventually sentenced (or resentenced, as to his earlier convictions) on three convictions at the same hearing. In calculating his presentence conduct credits, the trial court applied the 15 percent limitation to the five months of time Baker spent in jail due to his first felony. (144 Cal.App.4th at pp. 1325–1326.) Although during this period Baker was not being held for a violent offense, the appellate court approved of applying
People v. Marichalar (2003) 144 Cal.App.4th 1331 (Marichalar) followed Baker‘s lead on similar facts. It applied Ramos to resolve the appeal of a defendant who was initially held for drug possession (a nonqualifying offense) and subsequently charged with kidnapping (a qualifying offense). He argued that the earlier custody period attributable only to his drug case was distinct, and the 15 percent presentence credit limitation of
In late 2002 and early 2003, the California Supreme Court indicated it would take up the general issue of limitations on conduct credits when it granted review in a series of cases addressing the scope of
First, the court rejected outright an interpretation of “is convicted” that would bar an offender for life from earning more than 15 percent conduct credits after a conviction for a violent offense. Taking the present tense as determinative, the court explained that “the Legislature typically uses different language when it intends to impose a continuing disability based on criminal history. Credit restrictions, enhancements and alternative sentencing schemes based on criminal history usually employ the past perfect tense (‘has been convicted’ or ‘previously has been convicted‘) rather than the present tense (‘is convicted‘).” (Reeves, supra, 35 Cal.4th at pp. 771–772.)
Second, the court considered the People‘s position based on Ramos that the clause “applies to offenders rather than to offenses” such that it limits credits for an offender‘s “entire period of confinement” so long as he serves some time for a violent felony. (Reeves, supra, 35 Cal.4th at p. 772.) The opinion likewise rejected this logic, at least as applied to concurrent terms, because no principle of law dictates multiple “overlapping terms necessarily constitute a single, unified term of confinement for purposes of worktime credit.” (Id. at p. 773.) But the court indicated it agreed with the People‘s reasoning as applied to consecutive determinate terms, since they merge “into a single, ‘aggregate term of imprisonment’ ” under the determinate sentencing law. This merger renders any attempt to distinguish the component parts of the sentence a “meaningless abstraction” (id. at p. 773), and the indivisibility of the sentence means the phrase “is convicted” logically applies to the offender‘s entire time in prison. (Id. at pp. 772–733.)
Instead, the court adopted a fourth option, applying the statute‘s 15 percent limitation to Reeves‘s first five years, when he was serving his violent felony sentence, but not to his subsequent prison term because after the shorter sentence ended, he was no longer presently convicted of a violent felony. (Reeves, supra, 35 Cal.4th at pp. 780–781.) In sum, the court‘s solution effectuated the legislative intent of
Reeves went on to discuss presentence credits and endorse Ramos‘s reasoning—that
Reeves became the only express statement from the Supreme Court on this issue for several years.6 But other contemporaneous actions by the high court also inform our interpretation of the Reeves decision. That is because, as previously noted, while review was pending in Reeves the court also granted review in Baker and Marichalar. After Reeves became final, the Supreme
republished.9 The effect of the republication orders was to restore the precedential effect of both opinions. While we would not go so far as to treat these orders as an express approval of the results and rationales in Baker and Marichalar, the affirmative action by the Supreme Court holds significance.
With this background in mind, we return to Brown‘s arguments. At the outset, we are unpersuaded by his contention that Baker is distinguishable because it dealt only with determinate terms whereas his sentence includes both determinate and indeterminate sentences. He believes this distinction is significant because his terms did not merge into a singular whole. Although Baker did explain that concurrent determinate sentences necessarily merge under California law, its holding does not therefore dictate that Brown‘s indeterminate terms fall outside the scope of
mixed (and thus disaggregated) terms. But in doing so, he ignores the opinion that speaks most clearly to the issue.
People v. McNamee, (2002) 96 Cal.App.4th 66, 73–74, another opinion that relies on Ramos, supra, 50 Cal.App.4th 810, confronted the application of
Brown‘s more compelling argument is not about the purported merger or separation of the components of his sentence, but rather the timing of each of his charges in light of the statutory language. He points out that
While there is some support in the statutory language for Brown‘s position that
Respecting our role as an intermediate appellate court, we believe the appropriate course is to follow existing precedent as reflected in Baker, supra, 144 Cal.App.4th 1320 and Marichalar, supra, 144 Cal.App.4th 1331, leaving it to the Supreme Court to reexamine those decisions if it now believes they were in error. We thus affirm the trial court‘s application of
b. Actual Credits
Brown‘s assertion that his actual custody credits were calculated incorrectly is a far simpler issue to address. The probation department initially calculated 890 days of actual credit based on a December date for his sentencing hearing. When the hearing was pushed forward to January, the Department‘s updated calculation reflected 923 days in actual custody. Relying on this calculation, the court awarded Brown 923 days of actual custody credits, but the abstract of judgment and the minute order both reflect the earlier (outdated) figure of 890 days. Where these parts of the record conflict, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) But fixing this clerical error does not entirely resolve the issue, because the probation department‘s calculation was based on an incorrect date of arrest. It lists Brown‘s arrest as July 8, 2016,, but Brown was taken into custody on July 7, 2016. He is thus entitled to one additional day of actual credit, bringing his total up to 924 days.
3. Enhancement Issues
According to Brown, some of the trial court‘s comments at sentencing indicate it was unaware of its discretion to strike his firearm enhancements. Brown claims he is therefore entitled to a new hearing on remand. Our review of the record suggests no such confusion on the part of the trial judge. In fact, we find affirmative indications the court was fully aware of its discretion. But Brown‘s other enhancement-related challenge is meritorious. The gang enhancements added to his sentence were unauthorized under clearly established law and must be stricken.
Brown was found guilty in count 1 of attempted murder (
On count 1, Brown received an indeterminate term of 60 years to life: 15 to life for attempted murder, doubled due to his strike prior (
On count 2, the court imposed and stayed a determinate 9-year upper term for assault with a firearm (
On count 4, Brown received an indeterminate term of 80 years to life: 25 to life for murder, doubled due to his strike prior (
a. Firearm enhancements
Relatively recent amendments to
In an effort to make this showing, the defendant points to two comments by the trial judge at his sentencing hearing. Immediately before it imposed sentence on the murder conviction, the court stated, “I have to do what we have to do.” Later, when the court was advised by the prosecutor of its new discretion to strike the serious felony, it struck the enhancement on count 1 but imposed it on count 4, remarking: “The five-year prior on Count 1 is going to be stricken, PC 1385(c),[11] because I think that‘s just piling on. Okay. You got all the gang allegations, the gun allegations, that‘s just too much, it‘s excessive. . . .”
Brown asserts these comments suggest the court was unaware of its discretion to strike his firearm enhancements. To reach this conclusion, we would need to accept the proposition that the court‘s exercise of discretion in one area shows it was ignorant of its discretion in another. The conclusion simply does not follow from the premise. Moreover, even if we were to entertain the idea, a contextual read of the sentencing transcript provides affirmative evidence that the court was generally aware of its discretion and usually imposed harsher terms on Brown based on his conduct.
At sentencing, the court heard and considered defense counsel‘s motion to strike Brown‘s prior robbery conviction pursuant to its discretionary powers under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and
On count 2, the court also exercised its discretion to impose harsher terms. It gave Brown the upper terms of nine years for his assault conviction and 10 years for the firearm enhancement, both “based on the callousness” of his actions. Although these terms were stayed, the court‘s decision indicates it was aware of its discretion and thought Brown‘s conduct merited the most punitive result. The court also declined to accept defense counsel‘s suggestion to run Brown‘s life sentences concurrently, noting that the attempted murder was particularly callous.
Considered as a whole, the record paints a clear picture that the court knew of and exercised its discretion. The comments Brown points to do not change our analysis—in fact, taken in context, they further support our conclusion. The first comment was made after the court opined about the defendant‘s personal decisions and the environment he grew up in, saying “it creates a hostile situation where the gang influence becomes too great, and it may have just become too great. But this has been going on for just too many years. And I have to do what we have to do.” Given that this discussion came on the heels of the court‘s decision to deny the Romero motion, we do not read it as an indicator that the court was unaware of its discretionary power to strike the enhancements. Rather, it expressed its reticence to impose a long prison sentence, but did so because gang influences and allegiance had become an intractable part of Brown‘s life. The sentencing transcript is peppered with other candid statements along these lines.
The second set of comments also indicates the court was aware of and in fact exercised its discretion. It only used the terms “too much” and “excessive” after it decided to strike the serious felony enhancement as to count 1: “[T]he five-year prior on Count 1 is going to be stricken, PC 1385(c), because I think that‘s just piling on. Okay. You got all the gang allegations, the gun allegations, that‘s just too much, it‘s excessive.” Here, the court did not mean the sentence was excessive, but rather that it would have become excessive without removal of the serious felony enhancement. That the court only struck the enhancement on count 1 and not on count 4 further shows it considered the overall sentence well balanced after removal of one enhancement.
In addition to reading the sentencing transcript in context, there is further affirmative evidence that the court understood its discretion. Not only had the amended statute for firearm enhancements been operative for a year, but both the People and the defense called the court‘s attention to this change in their respective sentencing memoranda. We assume, expect, and believe that the court fully considered both memoranda.
b. Gang enhancements
Brown challenges the 10-year gang enhancements that were added to his murder and attempted murder convictions pursuant to
DISPOSITION
The judgment is modified to reflect that Brown accumulated 924 days of actual credits under
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.