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People v. Bryant

California Court of Appeals, First District, First Division

September 27, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
GARY TIMOTHY BRYANT, JR., et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          Contra Costa County Super. Ct. No. 05-152003-0 Hon. Clare Maier Trial Judge

          Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Gary Timothy Bryant, Jr.

          J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant Diallo Ray Jackson.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Moona Nandi, Deputy Attorneys General for Plaintiff and Respondent.

          Margulies, J.

         Defendants Gary Timothy Bryant, Jr., and Diallo Ray Jackson appeal their convictions for first degree murder, shooting at an occupied vehicle, being felons in possession of firearms, and, as to Bryant, assault with a semiautomatic firearm. Bryant seeks reversal of his murder conviction under Senate Bill No. 1437 (2017–2018 Reg. Sess.), which amended the felony murder rule and the natural and probable consequences doctrine as it relates to murder. Defendants also argue the verdicts must be overturned based on alleged errors in jury selection, their sentences for firearm enhancements must be modified in accordance with the pleadings and findings of the jury, and remand is required to allow the trial court to exercise its discretion whether to strike their firearm enhancements under Senate Bill No. 620 (2017–2018 Reg. Sess.). We agree defendants’ current 25-year-to-life sentences for the firearm enhancements are unauthorized and the case must be remanded to allow the trial court to exercise its discretion whether to strike the firearm enhancements. The judgments are otherwise affirmed as to both defendants.

         I. BACKGROUND

         A. Facts

         We provide only a brief summary of the facts underlying defendants’ convictions, because they are generally not necessary to our decision. We provide further background on relevant proceedings in the trial court in our discussion of defendants’ legal arguments.

         William B. testified as a prosecution witness to the following facts: On July 8, 2014, Kenneth Cooper drove his car into the parking lot at Delta View Apartments in Antioch, California. F.H. got in the front passenger seat of Cooper’s car, and William B., F.H.’s brother, and G.P. all got in the backseat of Cooper’s car. About a minute later, two people approached Cooper’s car, one on the driver’s side and one on the passenger’s side. William B. had seen both men about an hour earlier by the laundry room of the Delta View complex. William B. recognized one of the men, who approached the driver’s side of Cooper’s car, from having seen him twice before at the Delta View Apartments. William B. had trouble recognizing that person as Jackson in court, saying he looked “like his son, ” but had identified him previously from a photo lineup, telling police, “ ‘That’s a face I can’t really forget about.’ ” William B. identified Bryant as the man who approached on the passenger’s side where F.H. sat. As Bryant walked up, Cooper grabbed a nine-millimeter gun from the driver’s door, cocked it so it was ready to fire, and stowed it under his shirt.

         F.H. stepped out of the car. William B. saw Bryant hit F.H. and saw F.H. fall. As soon as F.H. was on the ground, Bryant asked Cooper, “ ‘What [are] you reaching for?’ ” Cooper pulled out his gun and both he and Bryant started shooting. William B. saw the second person who had approached Cooper’s car point a gun, but did not see him shoot. William B. heard about eight shots. The driver-side and passenger-side windows shattered and glass flew into the car. Cooper drove off with the car door open, made a U-turn, and tried to drive away. Seeing they were about to crash, William B. reached over from the backseat to the driver’s seat in an attempt to steer the vehicle, but it crashed into another car. After they crashed, William B. got out of the vehicle and checked on Cooper who was shaking and nonresponsive. Cooper died from one of his gunshot wounds.

         An expert in forensic pathology testified at trial that the direction of the fatal injury to Cooper’s abdomen was consistent with a gun having been fired from the left side of his body.

         B. Procedural Background

         The Contra Costa County District Attorney charged defendants with murder (Pen. Code, [1] § 187, subd. (a); count 1), discharging a firearm at an occupied vehicle (§ 246; count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4 [Bryant], count 5 [Jackson]). Bryant was charged with assault with a semiautomatic firearm. (§ 245, subd. (b); count 2.) The information further alleged counts 1 through 3 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), a principal personally used a firearm in counts 1 and 3 (§ 12022.53, subds. (b) & (e)(1)), and Bryant had previously served a prison term (§ 667.5). During trial, the trial court granted the prosecutor’s motion to amend the information to add a firearm-use allegation under section 12022.53, subdivision (c) to count 1.

         The jury found defendants guilty on all counts and found all special allegations true. The jury found the murder was first degree murder.

         The trial court sentenced Bryant to 53 years to life in prison, and Jackson to 50 years to life in prison. Both defendants filed timely notices of appeal.

         II. DISCUSSION

         A. Relief Under Senate Bill 1437

         At trial, the prosecution argued Bryant was guilty of murder under an aiding and abetting theory. Though the trial court provided instructions on aiding and abetting murder directly with the intent to kill and on aiding and abetting an underlying felony (attempted robbery) where a codefendant inflicts a fatal wound, the prosecution’s closing argument focused on the theory of aiding and abetting a felony which resulted in death. The jury’s verdict found Bryant guilty “of the crime of first degree murder, a violation of Penal Code section 187(a) (FELONY MURDER)....” The jurors did not make any finding that Bryant acted with the intent to kill or reckless indifference to human life. Bryant now argues his murder conviction must be reversed because it was based on a theory of felony murder culpability that no longer exists under state law.

         Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, the bill redefined “malice” for the crime of murder by amending section 188, which now provides: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) It also amended section 189, defining the degrees of murder, to provide that a participant in an enumerated felony in which a death occurs is only liable for murder where the participant was the actual killer, acted with intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subd. (e).) Further, the bill added section 1170.95, which permits those convicted of felony murder (or murder under a natural and probable consequences theory) to file a petition with the sentencing court to vacate the conviction and be resentenced. (§ 1170.95, subd. (a); see People v. Anthony (2019) 32 Cal.App.5th 1102, 1147 (Anthony); People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)

         Bryant contends that because Senate Bill 1437 went into effect before his appeal was final, he is entitled to reversal of his murder conviction based on the retroactive application of the changes to the law under In re Estrada (1965) 63 Cal.2d 740 (Estrada). The Attorney General does not dispute Senate Bill 1437 applies retroactively, but argues Bryant must seek relief through section 1170.95’s petition process in the trial court, and not through this direct appeal.

         We conclude the enactment of Senate Bill 1437 does not empower us to vacate Bryant’s murder conviction; rather, Senate Bill 1437 mandates a remand to the trial court to allow defendants to file a petition for relief under section 1170.95, subdivision (a)(3). Where, as here, our Legislature has created a special statutory remedy for defendants to use in availing themselves of a retroactive change in the law, that procedure must be followed, and-notwithstanding Estrada-relief will not be granted on direct appeal of a conviction that is valid under the prior law. (People v. DeHoyos (2018) 4 Cal.5th 594, 603 (DeHoyos); People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).) Our appellate courts have consistently applied this principle to Senate Bill 1437. (Martinez, supra, 31 Cal.App.5th at pp. 727–729; Anthony, supra, 32 Cal.App.5th at pp. 1153–1158.)

         Bryant argues Conley and DeHoyos are distinguishable because in those cases, the new statutory remedies imposed additional substantive criteria for relief, requiring the trial courts in those cases to find the defendants would not “ ‘pose an unreasonable risk of danger to public safety’ ” if released. But as the Martinez court explained, “While defendant is correct that section 1170.95 does not require a dangerousness inquiry, neither Conley nor DeHoyos holds that inquiry was the indispensable statutory feature on which the result in those cases turned.... [W]e look not for specific procedural conditions, but for indicia of the Legislature’s intent. Here, ... the other indications the Legislature intended to restrict individuals who have already been convicted to the petitioning procedure outlined in section 1170.95 are considerable.” (Martinez, supra, 31 Cal.App.5th at p. 728.) Moreover, Senate Bill 1437 creates a petition procedure that provides an opportunity for the parties to present new and additional evidence, and requires a trial court to determine whether Bryant qualifies for relief. (§ 1170.95, subd. (d)(1), (3).) Thus, like the statutes at issue in Conley and DeHoyos, section 1170.95 calls for the development of further facts, a task to which trial courts are suited and appellate courts are not.

         We likewise reject Bryant’s argument that a determination the petition procedure is his exclusive remedy violates his constitutional right to a jury trial under the Sixth Amendment by denying him the right to have factual determinations about his liability made by a jury rather than a sentencing court. The legislative changes afforded by Senate Bill 1437 “constitute[] an act of lenity that does not implicate [Bryant’s] Sixth Amendment rights.” (Anthony, supra, 32 Cal.App.5th at pp. 1156–1157, citing People v. Perez (2018) 4 Cal.5th 1055, 1063–1064.) Bryant’s attempt to distinguish Perez on the ground that Senate Bill 1437 redefines the elements of “murder” is unpersuasive. Because Senate Bill 1437, like Proposition 36 at issue in Perez, operates as a retroactively ameliorative statute as to defendants like Bryant, it does not implicate his constitutional right to a jury trial.

         We affirm Bryant’s murder conviction, but do so without prejudice to his filing a section 1170.95 petition in the trial court once his appeal is final. It is for the trial court to determine in the first instance whether Bryant qualifies for relief, and we express no opinion on the merits of such a petition.

         B. Jury Selection

         Defendants both contend reversal of their convictions is required because the trial court erred in denying three defense motions challenging the prosecution’s use of peremptory strikes to remove four African-American jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).[2] It is undisputed both defendants are African-American, as were all four of the challenged jurors.[3]

         Although a prosecutor may exercise a peremptory challenge to strike a prospective juror “ ‘for any reason, or no reason at all’ ” (People v. Scott (2015) 61 Cal.4th 363, 387 (Scott)), he or she may not use a peremptory challenge to “ ‘strike prospective jurors on the basis of group bias-that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds....” ’ ” (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell), disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13). Doing so violates a defendant’s federal right to equal protection set forth in Batson, supra, 476 U.S. at pages 88 to 89 and his or her state right to a trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution set forth in Wheeler, supra, 22 Cal.3d at pages 276 to 277. (Accord, People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.) As our Supreme Court explained in Scott, “The Batson/Wheeler framework is designed to enforce the constitutional prohibition on exclusion of persons from jury service on account of their membership in a cognizable group. It is also designed to otherwise preserve the historical privilege of peremptory challenges free of judicial control, which ‘traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury.’ ” (Scott, at p. 387.)

         A defendant bears the ultimate burden of showing a constitutional violation (People v. Lenix (2008) 44 Cal.4th 602, 612–613 (Lenix)), but courts employ a three-step, burden-shifting mechanism in assessing whether a Batson/Wheeler violation has occurred. The defendant must first “make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges.” (Scott, supra, 61 Cal.4th at p. 383.) If the trial court finds the defendant has established this prima facie case, the prosecutor must then “explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications.” (Ibid.) Lastly, the court must make a “ ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications’ ” (People v. Williams (2013) 56 Cal.4th 630, 650) and “decide whether” the prosecutor’s proffered reasons are subjectively genuine or instead a pretext for discrimination (Scott, at p. 383; People v. Duff (2014) 58 Cal.4th 527, 548).

         1. Background Facts

         Prospective Jurors O.H. and T.M.-Motion No. 1

         Before voir dire, prospective jurors filled out questionnaires that included basic demographic information and asked about a number of issues, including experience with crime and attitudes towards guns, gangs, and police witnesses. Jurors were asked about their experiences with police and whether they, a family member, or anyone close to them, had ever been convicted of a crime.

         During voir dire, Prospective Juror O.H. was asked about her comment that she had a nephew who had an interaction with police about two years before that she felt was unfair. O.H. stated her nephew spent the night in jail but was released and did ...


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