People v. Brigham

• Decision Date: 20 December 1989
• Docket Number: Nos. A039402,A043283,s. A039402
• Citation: 265 Cal.Rptr. 486,216 Cal.App.3d 1039
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff/Respondent, v. Leslie BRIGHAM, Defendant/Appellant. In re Leslie BRIGHAM, on Habeas Corpus.

Page 486

265 Cal.Rptr. 486

216 Cal.App.3d 1039

The PEOPLE, Plaintiff/Respondent, v. Leslie BRIGHAM, Defendant/Appellant In re Leslie BRIGHAM, on Habeas Corpus.

Nos. A039402, A043283.

Court of Appeal, First District, Division 2, California.

Dec. 20, 1989.

Certified for Partial Publication ^*.

Review Denied April 4, 1990.

Paula Rudman, Staff Atty., First District Appellate Project, San Francisco, for defendant/appellant Leslie Brigham.

John K. Van de Kamp, Cal. Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Supervising Deputy Atty. Gen., Morris Beatus, Deputy Atty. Gen., San Francisco, for plaintiff/respondent People.

PETERSON, Associate Justice.

Appellant, who was convicted of first degree murder as an aider and abettor, argues that the instructions given the jury did not explain either his defense theory or the proper scope of vicarious liability. He also contests the court's ruling on his motion to exclude prejudicial evidence, as well as its determination that he suffered a serious felony conviction in New Mexico. Together with the appeal is a petition for a writ of habeas corpus which asserts that newly discovered evidence requires a new trial. We will modify the judgment by striking the five-year enhancement, affirm the judgment as modified, and deny the request for a writ of habeas corpus.

I. STATEMENT OF THE CASE

An information charged Leslie Brigham (appellant) with the first degree murder of Hosea Barfield. (Pen. Code, § 187.) It additionally set forth two enhancement allegations: that appellant personally used a firearm and inflicted great bodily injury on the victim, and that appellant had been convicted of a serious felony for which he received probation in New Mexico. (Pen.Code, §§ 12022.5, 667.) Appellant pleaded not guilty and denied both enhancement allegations.

A jury convicted appellant of first degree murder, but found that he did not personally use a firearm or inflict great bodily injury. Appellant waived a jury trial on the enhancement allegation of prior serious felony conviction, and the court found it true. The court sentenced appellant to prison for 25 years to life on the murder conviction, with a consecutive five-year term for the prior.

Appellant filed a timely notice of appeal. He also filed a petition for a writ of habeas corpus which is being considered together with his appeal.

II. STATEMENT OF FACTS

On the evening of January 21, 1986, Barbara Dawson and her cousin Catherine Barfield experienced car trouble while parked on East 14th Street, near 61st Avenue. Mrs. Barfield, who lived in the nearby 65th Village, telephoned her husband and 14-year-old son Hosea Barfield (Barfield), who both agreed to come help. As the two women walked back to the disabled car after making the phone call, they saw Barfield across the street walking along East 14th to meet them. Barfield was playfully calling out and hiding behind telephone poles.

After the two women crossed the street and reached the car, Ms. Dawson started to unlock the door. She saw a man wearing dark clothes and a ski mask pulled down over his face come around the corner. The man lifted a rifle-type gun and shot it several times. Ms. Dawson ducked down, then flagged a passing car. She did not see the man when she got up. She identified an AR-15 military rifle as being most like the gun she saw, choosing it over an HK-93 assault rifle.

As Ms. Dawson approached the driver's side, Mrs. Barfield went to join her son at the passenger side. She noticed a clicking noise, turned, and saw a man with a dark ski mask covering his face and a rifle-type gun in his hands standing by the corner barbershop. Barfield told her to run, and she saw the gun fire as she fled. After calling the police from a store, Mrs. Barfield returned to find her son dead on the sidewalk.

The driver of the car Ms. Dawson flagged down testified that, as he was driving down East 14th on the night of the killing, he heard shots as he approached 61st. He looked to his left and saw a man crouched down and running. The man seemed to be wearing a drab-colored army jacket with a fur collar. He could not see the man's face or hands.

A pathologist testified that Barfield had at least three, possibly more, gun shot wounds to his neck, back, arm, and chest. He had extensive internal injuries in his chest and brain. The police recovered three spent .223 caliber casings at the scene. A ballistics expert said they could have been fired by either an AR-15 or an HK-93. In his opinion, the bullets had not been fired from an HK-93.

Nearly nine months after the murder, when the police investigation had reached a dead end, appellant approached an Oakland police officer and asked to talk to a homicide investigator regarding a "mistaken identity murder" on East 14th Street. Appellant voluntarily spoke with the head of the Barfield homicide investigation, Officer Harris. After a preliminary interview, he was admonished about his rights and made two taped statements. The jury heard both tapes and received transcripts of them.

Appellant recounted the events surrounding the murder. That night, he and a number of men had gathered at a recreation center. Norbert Bluitt (Bluitt) and Dual Moore (Moore) were part of the group; another member was someone appellant refused to identify and referred to throughout the interview as "The Man." Also present were appellant's nephew, Daryl Reed, and Ricky Jester. Appellant described Jester as "da man that's sittin' on all the cocaine[ ] [o]n Ninety Fourth." (Officer Harris was sure "The Man" was appellant's nephew, a cocaine dealer.) Someone came to the recreation center to give "The Man" information about an enemy named "Chuckie," a former associate of Felix Mitchell (Mitchell) who was a notorious Oakland drug dealer. "The Man" had held a grudge against Chuckie for some time. Appellant considered Chuckie an enemy of his group, and stated his belief that "The Man" thought "[Mitchell] [then alive in prison] was gonna have [someone] do it to 'The Man,' " and that "they was out to kill me."

Appellant was an experienced hit man. He described his modus operandi as it concerned the ski mask he wore on such "missions" in these terms: "[O]nly time I will put the ski mask on my face, when I'm tryin' ta hit, kill somebody." Appellant knew Bluitt because they had "worked together before[ ] [w]ith [Mitchell]" and knew Bluitt was "just hardheaded."

"The Man" arranged to have automatic weapons, referred to as "choppers," delivered to appellant and Bluitt, and ordered them to kill Chuckie. Appellant referred to his fully automatic weapon as an HK-9; ¹ Bluitt had a similar gun; Moore possessed a handgun. All were provided with gloves so as to leave no fingerprints. The three left to find Chuckie, with Moore driving. Appellant was wearing dark clothes and a rolled-up ski mask. Bluitt wore a baseball cap marked with an "N," which he pulled down low over his face. Officer Harris testified that Moore told him Bluitt was wearing some sort of dark gray hood. Both Ms. Dawson and Mrs. Barfield testified that the killer was not wearing a baseball cap.

Appellant described the venture as a mission. When they reached the 65th Village where Chuckie was supposed to be, it was quite dark. This hit team's vehicle was parked, and they went on foot "in the back way" to where a group of men was present on a porch; the group on the porch started to scatter, presumably having been warned that "some[thing] is gonna go down."

The hit team started following one of the departing group, ran back to get in their car, went in the car toward East 14th on 64th Avenue and by a place known as Plucky's, and "[t]here was a young guy right there." When appellant first saw Barfield from the hit team's car, "I say yeah, he is Chuckie. That is Chuckie." Bluitt "just said [']we're gonna get him. [']" Appellant, when the car got close to Chuckie, then said, "man, that is not Chuckie, man." Bluitt responded, "we're gonna get him." Bluitt directed the driver to make a right turn and stop. Although appellant contended he told Bluitt that Barfield was not Chuckie, after the vehicle stopped, appellant, like Bluitt, exited the vehicle carrying his automatic weapon, remained out of the vehicle with that weapon for about 15 seconds, took the weapon with him to the street corner near where the shooting occurred, and saw an officer in a police car. He returned his gun to the car and told Bluitt, before the shots were fired by Bluitt: "[P]olice right there, man. Don't do it. It ain't cool. That's not the dude, man. Come on. And he [Bluitt] say, ['M]an, fuck dat. We's gonna waste it up. We's gonna let dese niggers know we serious. [']" Although appellant said he attempted to grab his arm, Bluitt then fired more than twice, hitting Barfield in the face.

At the end of the interview, appellant identified photographs of Bluitt, Moore, and the AR-15 rifle which Bluitt carried and which Ms. Dawson identified as the murder weapon.

III. DISCUSSION

The major issue we must decide here is this: Where the proof offered to support a criminal charge, prosecuted on the theory the defendant knowingly and intentionally aided and abetted a criminal act of a perpetrator, contains evidence of an uncharged criminal conspiracy between aider and abettor and his principal/perpetrator, is the aider and abettor relieved of derivative criminal liability as a matter of law if that criminal act of the perpetrator is an "independent product" of his mind, and is outside and not in furtherance of the criminal offense the aider and abettor originally agreed to aid or facilitate?

We will hold that in such circumstances the aider and abettor is not relieved of liability as a matter of law, because his derivative criminal liability continues to be factually determined by the test of whether the criminal act committed by the principal was a natural and probable (or...