People v. Brewer

• Decision Date: 07 June 2021
• Docket Number: C089676
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Malcolm Nathan BREWER, Defendant and Appellant.

65 Cal.App.5th 199

279 Cal.Rptr.3d 546

The PEOPLE, Plaintiff and Respondent,

v.Malcolm Nathan BREWER, Defendant and Appellant.

C089676

Court of Appeal, Third District, California.

Filed June 7, 2021

Jyoti Malik, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.

Defendant Malcolm Nathan Brewer and codefendants Glen T. Conway and Shane Donta Williams participated in a string of armed robberies and attempted robberies, mostly of gas stations and convenience stores, in November and December 2017.¹ In many of the robberies and attempted robberies, defendant personally used a firearm by displaying it to or pointing it at the victims. Defendant and his codefendants were charged in a 20-count amended information with numerous counts of robbery and attempted robbery with firearm enhancement allegations as well as one count of felon in possession of a firearm. Williams entered into a plea agreement. Defendant and Conway proceeded to trial together before separate juries.

Defendant's jury found him guilty of 11 counts of second degree robbery, two counts of attempted second degree robbery, and one count of felon in possession of a firearm. The jury found true the allegations that defendant personally used a firearm in connection with eight counts, and that a principal was armed with a firearm in connection with two other counts. The trial court sentenced defendant, who had a strike prior, to an aggregate determinate term of 63 years.

On appeal, defendant contends his sentence, which he characterizes as the functional equivalent of a life sentence without parole imposed on a developmentally disabled person, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. We reject defendant's contention that such a sentence categorically violates those constitutional provisions in the same way as imposition of the death penalty as to developmentally disabled adults and imposition of life without the possibility of parole (LWOP) as to juvenile defendants. We further reject his argument that the sentence he received violated these constitutional prohibitions.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendant was charged, along with Conway and Williams, with 15 counts of robbery in the second degree ( Pen. Code, § 211 ;² counts three-five,³ seven-ten, twelve-nineteen), two counts of attempted second degree robbery ( §§ 664, 211 ; counts six & eleven) and one count of felon in possession of a firearm (§ 29800, subd. (a)(1); count twenty). In connection with counts three through five, seven, eight, and ten through seventeen, it was alleged defendant personally used a firearm. (§ 12022.53, subd. (b).) In connection with counts eighteen and nineteen, it was alleged that a principal was armed with a firearm. (§ 12022, subd. (a)(1).) It was further alleged that defendant suffered a conviction of a prior serious felony within the meaning of section 667, subdivision (a), that qualified as a prior strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).⁴

Prosecution Evidence⁵

Generally, the robbery victims did not identify the perpetrators. However, as the Attorney General notes, defendant was implicated in the robberies through the testimony of an informant, DNA evidence, his own admissions, and video surveillance recordings. On appeal, defendant does not dispute his participation in any of the robberies or attempted robberies of which he stands convicted.

Count Six - ampm on Marconi Avenue

On November 24 at approximately 6:15 p.m., J.K., the store manager at the ampm on Marconi Avenue, saw two men enter the store. The men each wore something covering their faces, which led J.K. to believe they intended to rob the store. The store had been robbed a couple of days earlier.⁶ J.K. could not tell if the men were armed. He tried to "run away from the register and save" himself, but the men were coming in too quickly. One man came in and held J.K., struggled with him, and pushed him against the register. The second man stood by. Although the men were attempting to rob the store, they were not able to take anything and they ran away. A surveillance video of the attempted robbery was played for the jury.

Count Seven – ampm on Watt Avenue

At 6:25 on the night of November 24, B.P., an employee at a Watt Avenue ampm, was working alone when two men robbed him.⁷ He was in the back when he heard the bell indicating someone had entered the store. He saw two men with their faces covered and he realized they were going to rob him. The larger of the two men, Williams, grabbed B.P. and told him to open the register. The other man, defendant, wearing a black hoodie with camouflage sleeves, had a gun and pointed it at B.P. B.P. opened both registers but only one of them contained money. B.P. estimated that the men took more than $500. Defendant also took five to 10 packs of cigarettes. Surveillance video of the incident was played for the jury.

Count Eight – Shell Gas Station

On November 25, E.C. was working as a cashier at Shell on Florin Road. At approximately 1:00 p.m., two men entered wearing masks.⁸ One man, Conway, came in the register area and handed E.C. a note that said, " ‘This is a robbery. Give it up.’ " E.C. opened one cash register. The other man, defendant, who had a gun, went to the counter in front of E.C. Defendant pointed the gun at E.C. and told him to open the other register, saying " ‘Open this up, this one right here.’ " E.C. responded that he did not have access to that cash register. In actuality, E.C. could open the other register, but he "didn't want to give him what was in there." E.C. testified: "The thing about it is, I don't know why, I must have been stupid ..., but the gun seemed like it was rusted out and it didn't seem like it's operational. And I had no fear at all for some reason." Meanwhile, B.N., the manager, was in her office when she observed the robbery. The men were wearing masks, but she could tell they were African-American. Defendant was holding E.C. at gunpoint. B.N. ran to the door, opened it, and told the men to leave, but she retreated to her office when defendant, wearing a black hoodie with camouflage sleeves, pointed a gun at her and told her to leave or he would shoot her. Surveillance video of the incident was played for the jury.

Count Nine – G.C. and G.R.

On November 25, G.C. went to GameStop with his friend G.R. They left GameStop and G.C. noticed they were being "scoped out a little bit" by "two dudes in a car." G.C. believed it was a Ford Taurus. There was "Raiders stuff all over the car, like the hood and both the doors, and flags out the ... back windows."⁹ G.C. and G.R. sat down on a bench and talked, and then noticed that the guys in the car drove around and parked near the bench. The guys approached them and asked them some questions. G.C. and G.R. tried to go back to the GameStop, but the guys from the car stopped them. One of the men walked very close to G.C., to the point of touching chests. He said something about a gun, although G.C. did not see a gun. The other man was standing to the side, but he was "saying ... the stuff that was scaring [G.C.]. Stuff like, ‘Don't lose your life over this.’ " The man standing next to G.C. then took the bag from him. At trial, G.C. identified defendant as one of the two men. He also identified the Ford Taurus pictured in a number of photographs as the car the two men were in, and a photograph of a Star Wars Battlefront II video game as the game taken from him that day, which was later found in a hallway closet where defendant resided.

Count Ten - Circle 6

On November 25, Deputy Calvin Penwell of the Sacramento County Sheriff's Office was dispatched to a Circle 6 convenience store on Ethan Way and Alta-Arden Expressway. There, he spoke with an employee, B.S. B.S. did not testify at trial. The surveillance video recorded in and outside of the store shows a robbery. As shown in the video, two men entered the store together, their faces covered, followed by a third moments later, also with his face covered. As they entered the store, a man in a black hoodie with camouflage sleeves pointed a gun.¹⁰ Defendant took B.S. behind the register, holding him at gunpoint. B.S. opened the register. Defendant then took money from the till. A second man in a hoodie with a graphic design assisted him with the till.

Meanwhile, a man in a peacoat and ski mask made B.S. give him items he had on his person. It also appeared that defendant took merchandise from behind the register. The man in the peacoat pushed B.S. out of the register area. All three men left shortly thereafter, again two together at first and the third following behind.

Count Eleven - Bell Market

On November 29, D.A. was at work at Bell Market. A man entered the store brandishing a gun and told D.A. to give him all his money.¹¹ D.A. responded, " ‘Fuck you. I have no money,’ " even though he did have money. D.A. also yelled for the owner, who was in the back, to come out. Defendant ran out. Surveillance video of the incident was played for the jury.

Counts Twelve and Thirteen – Subway

J.S. and J.M. were working at a Subway restaurant on Florin Road on November 29 when two men came in and robbed the store.¹² J.S. was standing near the cash register when the men entered. Their faces were covered with masks. J.S. testified that they appeared to be African-American. One of the men demanded J.S. give him the money from the cash register and then he pulled out a gun. The men also asked for the money in the safe, but J.S. and J.M. did not have access to the safe. The men stole...