People v. Nedd

• Decision Date: 21 December 2021
• Docket Number: E073575
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RICHARD TOBIAS NEDD, et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD TOBIAS NEDD, et al., Defendants and Appellants.

E073575

California Court of Appeals, Fourth District, Second Division

December 21, 2021

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. 16CR020590, 16CR020593. Victor R. Stull and Cara D. Hutson, Judges. Affirmed in part; reversed in part with directions.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Richard Tobias Nedd. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant Arieon Shoulders.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS J.

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I. INTRODUCTION

In 2016, defendants Richard Nedd and Arieon Shoulders were tried together before separate juries and found guilty as charged of the first degree murder of Julian K. (Pen. Code, § 187, subd. (a), ^[1] count 1); the attempted premeditated murder of Richard F. (§§ 664, subd. (a), 187, subd. (a), count 2), and the first degree residential robberies of Richard F. and Julian K. (§§ 211, 212.5, count 3 [Julian K.] & count 4 [Richard F.].)

Shoulders's jury found that the attempted murder of Richard F. was willful, deliberate, and premeditated. (§ 664, subd. (a)) But Nedd's jury found the same premeditation allegation in count 2 not true. Nonetheless, the guilty verdict form in count 2 states that Nedd is guilty of the willful, deliberate, and premeditated attempted murder of Richard F.

Nedd was separately charged and convicted of being a prohibited person in possession of a firearm. (§ 29805, subd. (a), count 6). Shoulders was separately charged and acquitted of assaulting Richard F. with a firearm, namely, Richard F.'s shotgun. (§ 245, subd. (a)(2), count 5.) Nedd was sentenced to six years eight months plus 32 years to life in state prison. Shoulders was sentenced to six years plus 32 years to life in

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state prison.^[2]

Defendants were sentenced in August 2019-after the trial court denied motions for a new trial on counts 1 and 2 based on the amendments that Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) made to sections 188 and 189, effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).) Senate Bill 1437 "amend[ed] 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); People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)

In count 1, the juries were solely instructed on a felony murder theory-that they could convict defendants of first degree murder of Julian K. if they found that the murder of Julian K. occurred during the commission of the first degree residential robbery of Julian K. and that another person, defendants' cohort, identified before trial as Richard Tarpley but referred to during trial as the "bald man," shot and killed Julian K. (CALCRIM No. 540B (2018).) In count 2, the juries were alternatively instructed that they could convict defendants of the attempted premeditated murder of Richard F. based

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on a natural and probable consequences theory-that the attempted premeditated murder of Richard F. was a natural and probable consequence of the first degree residential robbery of Richard F.-or as direct aiders and abettors to the attempted premeditated murder of Richard F. by defendants' cohort. (CALCRIM Nos. 401, 402, 601 (2018).)

In this appeal, defendants claim their motions for a new trial in counts 1 and 2 were erroneously denied to the extent the motions were based on Senate Bill 1437. In supplemental briefing, they also claim that Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill 775), effective January 1, 2022 (Cal. Const., art. IV, § 8, subd. (c)), requires this court to reverse their convictions in counts 1 and 2 and remand the matter for a new trial on these counts. Senate Bill 775 "[c]larifies that persons who were convicted of attempted murder, or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1, subd. (a).) Senate Bill 775 also amended section 1170.95 to provide that persons with nonfinal convictions for murder, attempted murder or manslaughter may challenge the validity of those convictions on direct appeal "based on the changes made to Sections 188 and 189 by Senate Bill 1437 . . . ." (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (g), eff. Jan 1. 2022.)

The People concede and we agree that defendants' Senate Bill 1437 claims have merit and are cognizable in this direct appeal from defendants' nonfinal murder and attempted murder convictions. The trial record does not show beyond a reasonable doubt that either defendant acted with intent to kill or with reckless disregard for human life, either in aiding and abetting the cohort's felony murder of Julian K. or in aiding and

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abetting the cohort's attempted murder of Richard F. Thus, we reverse defendants' murder and attempted murder convictions in counts 1 and 2 and remand the matter for a new trial on counts 1 and 2.

Our reversal of defendants' convictions and sentences in counts 1 and 2 makes it unnecessary to address three other claims raised in this appeal: (1) Nedd's claim that his attempted premeditated murder conviction in count 2 must be reduced to attempted murder based on the jury's not true finding on the premeditation allegation in count 2; (2) defendants' claim that their juries were erroneously instructed that they could convict defendants of the attempted premeditated murder of Richard F. in count 2 based on a natural and probable consequences theory; and (3) defendants' claims that their six-year, unstayed terms, for the first degree residential robbery of Richard F. in count 4, must be stayed in light of their greater, indeterminate terms on counts 1 and 2.

We find no merit to defendants' other claims, namely, that (1) all of their convictions must be reversed and all of the charges dismissed, with prejudice, due to the prosecution's multiple pretrial Brady^[3] errors and the prosecution's additional due process violation in failing to disclose the identity of a material witness, Glenn Blackman, until shortly before trial; (2) insufficient evidence supports the possession element of their convictions in count 3 for the first degree residential robbery of Julian K.; (3) CALCRIM No. 315 violated their due process rights; (4) cumulative trial error requires reversal of

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their remaining convictions in counts 3, 4, and 6; and (5) Nedd's claim that the matter must be remanded for a Franklin^[4] hearing.

Thus, we affirm defendants' first degree residential robbery convictions in counts 3, 4, and Nedd's unlawful firearm possession conviction in count 6, but we reverse defendants' felony murder and attempted premeditated murder convictions in counts 1 and 2, and we remand the matter for a new trial on counts 1 and 2.

II. TRIAL EVIDENCE

A. The August 6, 2015 Shootings and Robberies

In August 2015, Richard F. was living in a ground-floor apartment in Apple Valley with his girlfriend, his friend Julian K., and Julian K.'s three-year-old daughter. Richard F. was selling marijuana from the apartment and advertising the marijuana on social media. The marijuana was kept in two clear, plastic turkey bags in the kitchen. One bag containing three to four ounces of marijuana was on the kitchen counter, and a second bag containing two to three ounces was on top of the refrigerator.

During the morning of August 6, 2015, Richard F. took photos of the marijuana and posted the photos on his social media page. Within a couple of hours, Shoulders sent a private message to Richard F. through Shoulders's social media account, saying he wanted to buy the marijuana. Throughout the afternoon, Richard F. and Shoulders continued to message or text each other about Shoulders coming to the apartment and buying the marijuana.

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At 4:32 p.m., Shoulders asked Richard F. by text message how much the marijuana would cost. At 4:34 p.m., Richard F. responded by text that a quarter pound would cost $650, and the rest of the marijuana, or one ounce, would cost $175, for a total cost of $825. Richard F. gave Shoulders the address of his apartment and asked Shoulders to park in the driveway, next to Richard F.'s Chevy Tahoe, and to watch out for children.

Between 5:00 and 6:00 p.m., Richard F. was looking out of his apartment's living room window when he saw a Jeep Compass back into the driveway and block his Tahoe. Shoulders got out of the Jeep Compass while the driver stayed inside. Richard F. did not see a third person in the Jeep. Shoulders texted Richard F. and asked him to come outside, but Richard F. told Shoulders he wanted the marijuana transaction to take place inside the apartment.

Richard F. let Shoulders into the apartment through the front door and showed him the bag of marijuana on the kitchen counter. Shoulders said he already had some marijuana like that and asked Richard F. whether he had anything better. Richard F. said, "yes," and told Shoulders that the higher-grade marijuana would cost $800 to $900. Shoulders told Richard F. that he did not have that much money; he would have to leave, get the money, and come back.

Shoulders left the apartment, and he and Richard F. continued to exchange text messages. Richard F. became suspicious and no longer wanted to sell the...