People v. Cason CA2/6 ( 2020 )

Filed 12/15/20 P. v. Cason CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303938
(Super. Ct. No. NA057126)
Plaintiff and Respondent, (Los Angeles County)
v.
BRANDON LAMONT CASON,
Defendant and Appellant.
Brandon Lamont Cason appeals from the trial court’s
denial of his petition for resentencing. (Pen. Code,1 § 1170.95.)
He contends the court erred when it denied his petition because:
(1) it relied on hearsay, (2) it applied the wrong standard of proof,
and (3) there was insufficient evidence that he acted with
reckless indifference to human life. We affirm.
1 Further statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL HISTORY
The underlying crimes
In October 2000, Cason and four other members of a
Los Angeles criminal street gang were at a friend’s house.
(People v. Cason (Mar. 26, 2007, B187189) [nonpub. opn.] 2007
WL 891292 at p. *2 (Cason).) After talking about committing a
robbery, Cason and three others left, saying that they were going
to a nearby liquor store. (Ibid.) The fifth gang member briefly
followed, but then turned around and returned to the friend’s
house. (Ibid.)
Ten minutes later, one of the gang members shot and
killed the owner of a liquor store as the victim tried to drive away
in a van, ripping the victim’s wallet from his pants pocket in the
process. (Cason, supra, 2007 WL 891292 at pp. *1-2.) A witness
in a nearby car heard the gunshots and saw two men who had
been sitting at a bus stop outside the liquor store—Cason and
another gang member—run toward him. (Id. at p. *1.) Cason
yelled, “Get him!”2 (Ibid.) They shot at his car as he sped away,
hitting his left shoulder. (Ibid.) The witness survived the
shooting. (Ibid.)
Cason and the others ran back to their friend’s house
and tried to force their way inside. (Cason, supra, 2007 WL
891292 at p. *2.) She refused to let them in and called 911
instead. (Ibid.) During a subsequent interview, the friend told
police that Cason and four other gang members had been at her
house that night. (Ibid.) They ran down the street after
2 While our prior opinion did not make clear who yelled
this, Cason now concedes that he did. We accept the concession.
(Ponte v. County of Calaveras (2017) 14 Cal. App. 5th 551, 555.)
2
gunshots were fired. (Ibid.) She did not tell police that Cason
and the others had discussed a robbery. (Ibid.)
Several witnesses reported hearing the gunshots and
seeing young men flee from the liquor store. (Cason, supra, 2007
WL 891292 at p. *2.) Police detained Cason and two others, but
no witness was able to identify them that night. (Ibid.) The
witness who was shot as he drove away later identified Cason
from the clothes he was wearing. (Ibid.)
After he was arrested for robbery and murder, Cason
told a detective that he was a junior gang member who was
required to do “street level” crimes for the gang. (Cason, supra,
2007 WL 891292 at p. *2.) He initially denied that he was
involved in the murder of the liquor store owner, and claimed
that he and the other gang members were at their friend’s house
when the shooting occurred. (Ibid.)
Cason later admitted that he and three of his fellow
gang members were responsible for the shooting at the liquor
store. (Cason, supra, 2007 WL 891292 at p. *2.) The four had
planned the crime together, but one of the others was the
“mastermind.” (Ibid.) Cason said that he acted as the lookout
during the shooting, but refused to describe anyone else’s role.
(Ibid.) He later recanted his admission and said that he wanted
to stick with the first version of events he told the detective.
(Ibid.)
Trial and appeal
A jury convicted Cason of first degree murder (§§ 187,
subd. (a), 189, subd. (a)), second degree robbery (§ 211, 212.5,
subd. (c)), and attempted murder (§ 664/187, subd. (a)). (Cason,
supra, 2007 WL 891292 at p. *1.) The jury also found true a
robbery-murder special circumstance allegation (§ 190.2, subd.
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(a)(17)(A)), and allegations that Cason committed his crimes for
the benefit of a criminal street gang (§ 186.22, subd. (b)) and that
a principal personally and intentionally discharged a firearm
causing great bodily injury or death (§12022.53, subds. (d) & (e)).
(Cason, at p. *1.) The trial court sentenced him to life in state
prison without the possibility of parole on the murder, a
consecutive seven years on the attempted murder, and a
consecutive 25 years to life on the firearm enhancement. (Ibid.)
On appeal, we rejected Cason’s request to vacate the
jury’s true finding on the robbery-murder special circumstance
allegation due to insufficient evidence that he acted with reckless
indifference to human life. (Cason, supra, 2007 WL 891292 at p.
*8.) Cason admitted to the detective that he planned the robbery
of the liquor store with his fellow gang members. (Ibid.) And
that robbery was “committed while [the liquor store owner] was
driving away in his van, making it more likely that deadly force
would have to be used to effectuate the taking of any property.”
(Ibid.) Additionally, Cason either shot or aided and abetted the
shooting of the primary witness to the robbery-murder. (Ibid.)
From this evidence a reasonable jury could infer that Cason was
“at the very least recklessly indifferent to human life.” (Ibid.)
We nevertheless vacated the jury’s finding. (Cason,
supra, 2007 WL 891292 at p. *9.) To find the special
circumstance allegation true, the jury was required to conclude
that Cason either had the intent to kill or acted with reckless
indifference to human life. (Id. at p. *7.) But the trial court’s
instruction on the allegation omitted any reference to reckless
indifference. (Ibid.) The jury could thus have made a true
finding if it determined that Cason simply “aided and abetted a
robbery that resulted in the death of a human being.” (Id. at p.
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*8.) Such a finding was not permitted, and the error could not be
deemed harmless: Even though the jury could infer that Cason
acted with reckless indifference by helping to plan and carry out
the liquor store robbery, the evidence “was not so overwhelming”
that it conclusively showed that he did. (Ibid.)
Section 1170.95 proceedings
The trial court issued an order to show cause and
held a formal hearing on Cason’s petition for resentencing
pursuant to section 1170.95. After reviewing the parties’ moving
papers as well as this court’s opinion on direct appeal, and after
hearing arguments from counsel, the court concluded that Senate
Bill No. 1437 (S.B. 1437)—the legislation that added section
1170.95 to the Penal Code—was constitutional. It then found
that Cason acted with reckless indifference to human life and
denied his petition.
DISCUSSION
Section 1170.95 resentencing
In 2018, the Legislature enacted S.B. 1437 to “amend
the felony murder rule . . . to ensure that murder liability is not
imposed on a person who [was] 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).) To accomplish these
goals, S.B. 1437 redefined “malice” in section 188, and narrowed
the classes of persons liable for felony murder under section 189.
(Stats. 2018, ch. 1015, §§ 2-3.) It also added section 1170.95,
which permits those convicted of felony murder to petition to
have their murder convictions vacated and to be resentenced on
any remaining counts. (Stats., ch. 1015, § 4.)
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A convicted defendant may petition for resentencing
where the information allowed prosecutors to proceed under a
theory of felony murder, the defendant was convicted of first or
second degree murder, and the defendant could not now be
convicted of murder under the amendments to sections 188 and
189. (§ 1170.95, subd. (a).) If the defendant files a petition
declaring that they meet these requirements (id., subd. (b)(1)(A)),
the trial court must determine “whether [they have] made
a ‘prima facie showing [that they] “fall within the provisions” of
the statute.’ [Citation.]” (People v. Offley (2020) 48 Cal. App. 5th
588, 596-597, alterations omitted; see § 1170.95, subd. (c)). If the
defendant makes that showing, the court must appoint counsel, if
requested, and permit the prosecution to respond to the petition.
(Offley, at p. 597.) If the moving papers show that the defendant
may be eligible for relief, the court must “issue an order to show
cause and hold a hearing to determine whether to grant the
petition and resentence [them].” (Id. at p. 597.)
At that hearing, prosecutors must prove, beyond a
reasonable doubt, that the defendant is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).) In doing so, they “may
rely on the record of conviction or offer new or additional
evidence.” (Ibid.) If they do not meet the standard of proof, “the
prior conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the [defendant] shall be
resentenced on the remaining charges.” (Ibid.)
Hearsay statements
Cason first contends the trial court erroneously
denied his resentencing petition because it relied on hearsay
statements in our opinion on direct appeal. We disagree. Cason
did not object to the court’s reliance on our opinion during the
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proceedings below. His contention is therefore forfeited. (People
v. Stevens (2015) 62 Cal. 4th 325, 333.)
In any event, a trial court may look to a prior
appellate opinion when ruling on a section 1170.95 resentencing
petition. (See, e.g., People v. Gomez (2020) 52 Cal. App. 5th 1, 16,
review granted Oct. 14, 2020, S264033.) And if Cason believed
that that opinion misstated the facts, he could have raised that
issue in a petition for rehearing. (People v. Guilford (2014) 228
Cal. App. 4th 651, 660.) He did not do so. Thus, even if our
opinion were “hearsay,” it was sufficiently reliable to be
considered in the proceedings below. (Cf. id. at pp. 660-661
[proper to rely on prior appellate opinion when ruling on section
1170.126 resentencing petition].)
Standard of proof
Cason next contends the trial court applied the wrong
standard of proof when it determined that he acted with reckless
indifference to human life. But again, Cason forfeited his
contention by failing to raise it in the proceedings below. (In re
Riva M. (1991) 235 Cal. App. 3d 403, 411-412.)
And even if there were no forfeiture, we would reject
the contention. We presume the trial court was aware of and
applied the correct standard of proof when it ruled on Cason’s
resentencing petition. (Ross v. Superior Court (1977) 19 Cal. 3d
899, 913-915.) Cason does not attempt to rebut that
presumption, but instead claims that even if the court applied the
correct standard of proof it applied that standard to the facts set
forth in our prior appellate opinion—facts that were “ascertained
. . . under a sufficiency-of-the-evidence standard of review” rather
than proven beyond a reasonable doubt. But when ruling on
Cason’s petition, the court stated that it was sitting as a “trier of
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fact.” And all parties agreed—both in their moving papers and at
the hearing—that the court had to find that prosecutors proved
beyond a reasonable doubt that Cason could still be convicted of
murder under the amended versions of sections 188 and 189
before it could deny his resentencing petition. That the court
relied on our prior opinion when it made that finding does not
show that it applied the wrong standard of proof. (See People v.
Lopez (2020) 56 Cal. App. 5th 936, 951-952 [parties’ arguments
and trial court comments show court applied correct standard].)
Sufficiency of the evidence
Finally, Cason contends there was insufficient
evidence that he acted with reckless indifference to human life.
This contention lacks merit.
A defendant acts with reckless indifference to human
life if they are “‘“subjectively aware that [their] participation in
[a] felony involve[s] a grave risk of death.”’ [Citations.]” (People
v. Banks (2015) 61 Cal. 4th 788, 807, alterations omitted.) This
requires the defendant to be “aware of and willingly involved in
the violent manner in which [a] particular offense is committed.”
(Id. at p. 801.) To determine whether the trial court correctly
concluded Cason acted with such awareness and willingness, “we
look to whether the prosecution . . . introduced sufficient evidence
of ‘“‘reasonable, credible, and of solid value’”’ to ‘support a finding
beyond a reasonable doubt’” that he did. (People v. Clark (2016)
63 Cal. 4th 522, 618 (Clark).) In making our determination, we
consider factors such as: (1) how many firearms were used
during the robbery, whether Cason knew that they would be
used, and whether he personally used one; (2) whether Cason was
present during the robbery and, if so, whether he helped to
restrain the crime or aid the victim; (3) the duration of the
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robbery; (4) whether Cason knew that one of his fellow gang
members would likely kill; and (5) Cason’s efforts, if any, to
minimize the possibility of violence during the robbery. (Id. at
pp. 618-623.) “‘[N]o one of these considerations is necessary, nor
is any one of them necessarily sufficient.’ [Citation.]” (Id. at p.
618.)
Here, four of the five factors delineated in Clark
support a finding that Cason acted with reckless indifference to
human life. First, at least two firearms were used during the
robbery-murder: one to shoot the liquor store owner, and another
to shoot the witness in a nearby car. Cason may have used the
latter firearm to shoot the witness. (See Cason, supra, 2007 WL
891292 at p. *6.) But even if he didn’t, it is rationally inferred
that he knew that it would be used: An expert testified at
Cason’s trial that his gang “functioned by selling drugs and
committing shootings, burglaries, and robberies.” (Id. at p. *3,
emphasis added.)
Second, Cason was present during the robbery-
murder, but did not seek to restrain his accomplices’ crimes.
Instead, he furthered their ability to rob and shoot the liquor
store owner by acting as a lookout and working to eliminate a
potential witness. He then failed to render aid to the victim,
despite his ability to do so.
Third, it is rationally inferred that Cason knew of his
accomplices’ propensity to kill given his active role in planning
the robbery and the expert’s testimony that shootings were one of
his gang’s primary activities.
Finally, Cason did not make any efforts to minimize
the possibility of violence during the robbery-murder. To the
contrary, he increased the level of violence when he instructed his
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fellow lookout to “get” a nearby witness and then chased after the
man.
Considered together, these factors provide sufficient
evidence to support the trial court’s finding that Cason acted with
reckless indifference to human life. (See, e.g., People v.
Law (2020) 48 Cal. App. 5th 811, 825, review granted July 8, 2020,
S262490; In re Loza (2017) 10 Cal. App. 5th 38, 52-55.) Denial of
his resentencing petition was accordingly proper.
DISPOSITION
The trial court’s order denying Cason’s petition for
resentencing pursuant to section 1170.95, entered January 6,
2020, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Judith L. Meyer, Judge
Superior Court County of Los Angeles
______________________________
Mark D. Lenenberg, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Charles S. Lee and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.