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Brandon v. Arnold
United States District Court, N.D. California
March 30, 2017
KAIAN BRANDON, Petitioner,
ERIC ARNOLD, Warden, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS
SAUNDRA BROWN ARMSTRONG Senior United States District Judge.
Kaian Brandon (“Petitioner”) brings the instant
pro se habeas action under 28 U.S.C. § 2254 to challenge
his conviction and sentence rendered in the Alameda County
Superior Court for second degree murder and assault on a
child causing death. Having read and considered the papers
filed in connection with this matter and being fully
informed, the Court hereby DENIES the Petition for the
reasons set forth below.
Statement of Facts
following facts are taken from the unpublished opinion of the
California Court of Appeal (“Court of Appeal” or
“state appellate court”):
A. Circumstances of Crime
On Tuesday, November 8, 2005, three-year-old Kiara
“Kiki” Irwine was ill with a fever and vomiting.
Her mother, Danell Johnson, usually worked a shift from
approximately 3:00 a.m. to 9:00 a.m., but she did not go to
work on Wednesday, November 9, 2005, opting to stay home and
care for her child. Kiara seemed better on Wednesday morning.
Her fever had gone down. By the end of the day, the child
seemed like herself again. Johnson went to work as usual on
Thursday, November 10, 2005. When she returned home about
10:00 a.m. that morning, Kiara seemed fine. Johnson gave the
child a shower and dried her off, seeing no bruises on her
body. Kiara did not wince or complain of any pain. She played
normally on Thursday and seemed to enjoy her dinner that
On Friday, November 11, 2005, Johnson left her San Leandro
apartment to begin her work shift. She left all four of her
children-Kiara, six-year-old T., five-year-old K.S. and baby
Ke.-in the care of the baby's father, appellant Kaian
Brandon. Brandon was employed but was off work that week.
Before leaving for her job, Johnson checked on her sleeping
children. She saw Kiara nestle down deeper under her cover.
Kiara was still being toilet-trained and she sometimes had
accidents. In the morning, Brandon discovered that Kiara had
soiled herself and her bed with feces. About 9:00 a.m., while
Johnson was still at work, she received an emergency call
from Brandon, telling her that Kiara was
“lifeless.” She told him to call 911 and left
immediately for home. When Brandon called 911, the dispatcher
advised him how to perform CPR while the paramedics were en
route to the home.
Paramedics arrived, finding Kiara lying on her back on the
living room floor. Brandon told the paramedics that he found
her unconscious on the couch. She was clad only in a shirt.
Kiara's skin was warm but she was not breathing. CPR was
performed without success; Kiara's heart had stopped. She
was transported by ambulance to Eden Medical Center.
By this time, Johnson had arrived at home. As she helped the
other children into their coats in Kiara's bedroom, she
stepped in feces lying on the floor. Johnson, Brandon and the
other children went to the hospital. After 40 minutes of CPR,
Kiara still had no heartbeat. She was pronounced dead at the
hospital. The doctors told Brandon and Johnson that they
suspected that Kiara had suffered a ruptured appendix.
Meanwhile, Alameda County Sheriff Sergeant Richard Carter
went to the hospital and observed multiple bruises on
Kiara's body. He met with Johnson and Brandon at the
hospital. At that point, he conducted an interview, not an
interrogation. He particularly wanted to talk with Brandon,
the last adult who had been with Kiara.
Brandon told Sergeant Carter that when he went in to check on
Kiara, she had defecated on herself in bed. He gave her a
bath and returned her to bed. Five minutes later, when he
went to check on her, the child was not moving. Kiara was
lifeless. He called Johnson, who urged him to call 911, which
he did. Brandon told the sheriff that the dispatcher
instructed him to do CPR, but that he pushed on her stomach,
not her chest. [FN 2] During the interview, Brandon kept
saying “I can't believe she's dead.” [FN
2:] The transcript of the 911 call did not suggest that
Brandon performed CPR in an incorrect manner.
Sergeant Carter also went to the apartment where Brandon and
Johnson lived. He found urine and feces on Kiara's bed
sheets. That struck the sheriff as odd when he recalled that
Brandon had reported that he took Kiara back to bed after
Alameda County Sheriff Deputy Duane Fisher also interviewed
Brandon later that day. Brandon told Deputy Fisher that when
he went into the bedroom that morning, he discovered that
Kiara had defecated on herself. Brandon said that he put her
in a bath and then returned her to her room. Five minutes
later, when Brandon went back into the bedroom to check on
Kiara, she was slumped over and unresponsive on the bedroom
On November 14, 2005, a forensic pathologist conducted an
autopsy of Kiara's body. Her head, neck, torso, legs and
left arm showed bruising-the result of blunt force trauma.
The body also showed evidence of internal bleeding, organ
damage-most significantly, to the liver, pancreas and small
intestine-and rib fractures [FN 3] consistent with blunt
force trauma. Later, the pathologist opined that the cause of
Kiara's death was multiple blunt injuries. He explained
that these injuries were the result of repeated applications
of force by someone other than a child. They could not have
been caused by a fall or by the performance of CPR. Instead,
they were consistent with severe child battering. Most of
these injuries were recent-likely suffered within three days
of death. [FN 4] The child would likely have lost
consciousness a few minutes after injury.
[FN 3:] One rib fracture was older and already healing. The
two recent ones were highly uncommon in small children,
according to an expert on child abuse.
[FN 4:] At trial, a sheriff's detective who witnessed the
autopsy testified that the pathologist told him that
Kiara's injuries were “very fresh” and had
probably occurred within 12 hours of her death. The
pathologist did not believe that the child would have lived
any longer than 12 hours with these injuries.
B. Pretrial Matters
On the same day that the autopsy was conducted, Brandon was
arrested. Two days later, he was formally charged with murder
and assault on a child causing death. (§ 187, subd. (a);
former § 273ab.) He was arraigned that day and referred
to the public defender. Brandon was soon represented by
Deputy Public Defender Bonnie Narby. In May 2006, Brandon
pled not guilty to the charges.
On June 8, 2007, Brandon made a Marsden motion
challenging Narby. (See People v. Marsden (1970) 2
Cal.3d 118, 122-126 (Marsden).) The motion was heard
in camera on June 15, 2007, before Judge Julia Spain. Brandon
expressed his dissatisfaction with Narby's
representation; she responded to these concerns. Finding that
there had been a complete breakdown in the attorney-client
relationship, Judge Spain granted the Marsden motion
and referred the matter for the appointment of new counsel.
She ordered that a transcript of the hearing be filed under
On July 9, 2007, [FN 5] the public defender petitioned for
writ of mandate in this matter, seeking to overturn Judge
Spain's order. The public defender filed a memorandum of
points and authorities in support of that petition. It also
requested that the transcript of the June 15, 2007
Marsden hearing and its memorandum of points and
authorities in support of its petition for writ of mandate be
[FN 5:] On August 6, 2007, an identical petition was filed.
The record contains no explanation why a second petition was
On August 2, 2007, Judge Larry J. Goodman ordered that the
Marsden transcript, part of the petition for writ of
mandate, and the memorandum of points and authorities in
support of that petition be sealed. The next day, Judge
Goodman issued an alternative writ of mandate. It appears
that no hearing was conducted at this stage-neither Brandon,
the prosecutor nor defense counsel were present at the time
of the ruling. The alternative writ gave Judge Spain the
option of vacating her June 15, 2007 order and reinstating
Narby as counsel, or showing why Judge Goodman should not do
so. The notice stated that if Judge Spain vacated her earlier
order, the alternative writ would be discharged and the
petition for writ of mandate denied as moot. The alternative
writ was served on Judge Spain three days after issuance. On
August 9, 2007, Judge Spain vacated her earlier order,
reinstated Narby as Brandon's counsel, and denied the
Marsden motion. Deputy Public Defender Charles
Denton appeared at this hearing with Brandon. [FN 6] On
August 20, 2007, Judge Goodman dismissed the petition for
writ of mandate as moot. [FN 7]
[FN 6:] Denton was the same attorney who filed the petition
for writ of mandate. To the extent that Brandon argues that
this constituted a conflict of interest, even if we assume
that this was pretrial error, he has not demonstrated any
trial prejudice resulting from it. (See pt. II.B.2.,
[FN 7:] Our records offer no evidence that Brandon sought
extraordinary writ review of Judge Goodman's order.
A new public defender-someone other than Narby-now
represented Brandon. An amended complaint was filed in April
2008, adding two counts of child abuse against Kiara and K.S.
committed before Kiara's death, one of them enhanced by
the infliction of great bodily injury on a child.
(§§ 187, subd. (a), 273a, subd. (a); former
§§ 273ab, 12022.7, subd. (d) [Stats. 2002, ch. 126,
§ 6, pp. 696-697].) Brandon pled not guilty to all four
charges and denied the enhancement allegation.
A two-day preliminary examination was conducted at which
Brandon was represented by Deputy Public Defender Barbara
Dickinson. On September 18, 2008, he was held over for trial
on all four charges and the great bodily injury enhancement.
(§§ 187, subd. (a), 273a, subd. (a); former
§§ 273ab, 12022.7, subd. (d).) On September 26,
2008, he was charged by information with the same four
charges, one enhanced by an allegation of infliction of great
bodily injury. (§§ 187, subd. (a), 273a, subd. (a);
former §§ 273ab, 12022.7, subd. (d).)
In October 2008, Brandon pled not guilty to these charges. He
also moved to dismiss the information. (§ 995.) That
motion was denied on the murder and assault charges, but the
two child abuse counts were stricken in March 2009. (§
273a, subd. (a).)
C. Prosecution Case-in-chief
Brandon was tried on the remaining two charges in March 2010,
represented by Dickinson. Johnson testified for the
prosecution. She told the jury what she knew about the
circumstances of Kiara's death, which had occurred on
Brandon's birthday. She testified that when a detective
asked Brandon at the hospital what had happened, he reported
that Kiara had soiled herself. He made her clean up, then
sent her to her room after she appeared in the kitchen
without any pants on. She did not come back to the breakfast
table, so he went to her room, where he found her lying on
the bedroom floor.
Initially, Johnson believed that Kiara had died as the result
of a ruptured appendix. On Monday, November 14, 2005,
sheriff's deputies came to the apartment and told Johnson
and Brandon that Kiara had not died of natural causes.
Brandon went with the police to talk with them. Johnson also
went to the police station. While she was gone, Child
Protective Services removed T., K.S. and Ke. from the home.
At trial, Johnson admitted that she disciplined her children
with a slap or a belt. She admitted that she sometimes wore a
ring. She denied killing Kiara.
Brandon's 911 call to police was played for the jury.
Brandon had been the only adult with the four children at the
time that Kiara was injured. K.S.-who was nine years old at
the time of trial-testified that after Kiara defecated on the
floor, Brandon punched her sister in the stomach with a
A neighbor testified that she heard a man in the next
apartment-the one occupied by Johnson and Brandon-say
“I don't care if you die.” [FN 8] She thought
this happened on the morning of November 11-the same day that
the little girl who lived next door died. She told the jury
that the police had interviewed her the same day. She told
the police that a man and woman had been arguing. After she
learned that the woman was at work, the neighbor changed her
statement, saying that she had guessed that the man and woman
were arguing. An audiotape of the statement that the neighbor
gave to police was played for the jury. The neighbor admitted
that she did not tell the police about the man's
statement until a week or so after the child died.
[FN 8:] When he testified, Brandon denied making this
statement and noted that Johnson was not at the apartment the
morning that Kiara died.
A child abuse expert reviewed Kiara's autopsy records. He
opined that she sustained multiple blows to various parts of
her body that caused great injury, ultimately causing her
death. He estimated that 30 percent of her body's blood
was found in her abdomen. Her pancreas was torn in half, an
uncommon occurrence. He thought it likely that an extremely
powerful traumatic blow to the abdomen pushed Kiara's
pancreas against her bones, breaking it. In his experience, a
young child defecating can trigger an adult to anger and
child abuse. The expert opined that if Kiara was behaving
normally the day before she died, then her injuries were
inflicted after that time.
D. Challenge to Proposed Impeachment Evidence
After the prosecution rested, Brandon challenged the
admissibility of evidence of incidents of violence he
committed against his mother and sister. He argued that the
prosecution had failed to disclose the 24 police reports
during pretrial discovery, noted that the evidence from 1998
through 2000 was older, and urged the trial court to find
that the evidence did not constitute evidence of moral
turpitude. The trial court found that the disclosure was
timely, as the reports were sent to defense counsel as soon
as the prosecution received them. It agreed to review the
admissibility of specific reports on a case-by-case basis,
depending on what Brandon said when he testified. His motion
for acquittal was denied. (See § 1118.1.)
E. Defense Testimony
Brandon testified in his own defense. He told the jury that
although he and Johnson argued sometimes, he had been happy
living with her and the children. He recalled that Kiara was
still sick-still throwing up-the day before she died. That
Thursday night, Kiara did not eat much dinner. He did not put
the children to bed that night; he assumed that Johnson must
have done it. Brandon was asleep, but he woke up when Johnson
was getting ready to go to work. She told him not to get up,
which was unusual. Normally, he walked her out to her car
when she left for work. He did not do so that night, but went
back to sleep after Johnson left.
November 11 was a school holiday, so it was a relaxed
morning. The older siblings came running in for breakfast,
but Kiara was moving slowly. She was wearing training pants,
and Brandon saw that she had defecated on herself. Some of
the feces were smeared on her bottom; most of the solid feces
had fallen out on the bedroom floor. He spoke to her in a
loud voice about this, but he did not yell at her. He removed
Kiara's clothes and gave her a quick bath [FN 9] so she
could eat breakfast with the other children. He dried her off
and told her to go get dressed, which she could do for
herself. [FN 10] He went to get breakfast ready. Within five
minutes, Brandon noticed that Kiara had not come out to the
kitchen, so he went to the bedroom. He found her lying on the
[FN 9:] Brandon did not see any bruises on Kiara's body
when he took her out of the bath.
[FN 10:] Johnson testified that Kiara needed help getting
Kiara was not breathing. Brandon panicked, unsure what to do.
Everything was moving so fast. There was nothing in her
mouth. He hit Kiara on the back, hoping to dislodge anything
blocking her breathing. He called Johnson and then called
911. The 911 dispatcher walked him through how to do CPR. He
moved Kiara to the living room floor to do CPR.
The paramedics arrived quickly. Brandon told the jury that he
told one paramedic that he found Kiara in her room and moved
her to the living room. Johnson arrived, the family dressed
and they drove over to the hospital. A doctor told Johnson
and Brandon that Kiara was not going to live and that she
probably had a ruptured appendix.
Brandon kept the police advised of his whereabouts, knowing
that they would want to talk with him. He had been the only
adult in the house on the morning that Kiara died. He feared
that he performed CPR incorrectly, pushing on her stomach
rather than her chest. Brandon told the jury that Kiara's
injuries were awful, but that he did not know how the child
came to be so injured. He suggested that Johnson must have
On cross-examination, Brandon denied being angry with Kiara
that morning or having an anger problem. He denied holding a
gun to his mother's head and threatening to kill her. He
told the jury that he was not the kind of man who hit his
mother. He admitted having been arrested, but only for an
outstanding warrant based on a gun incident.
A sidebar conference was conducted. When the prosecution
inquired about Brandon's arrest history, defense counsel
objected to the admission of the proffered evidence. She
argued that the evidence was irrelevant, pertaining only to a
collateral matter. She asked that the prosecutor be found to
have committed misconduct and moved for a mistrial. The
motion was denied. ...
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