People v. Bradley

Filed 6/24/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A159105, A159107
v.
WILLIE EUGENE BRADLEY, IV, et (Solano County
al., Super. Ct. Nos. VCR224655,
VCR224656)
Defendants and Appellants.

Defendants Willie Eugene Bradley, IV, and Melvin Delarence Mason
participated in an attempted robbery, during which one of the robbery
victims was shot and killed. A jury convicted defendants of first degree
felony murder. On appeal, defendants contend the evidence was insufficient
to establish they acted with the “reckless indifference to human life” required
for felony murder pursuant to Penal Code section 189, subdivision (e)(3).
They further assert the trial court erred by failing to instruct on robbery as a
lesser included offense to felony murder. We disagree and affirm the
judgment.
I. BACKGROUND
Defendants and at least one other individual, Daniel Glass, attempted
to rob L.V. and her cousin, Robby Poblete, while they were waiting in their
vehicle to purchase marijuana. During the course of that robbery, Poblete
was shot and killed.
 Defendants were initially charged by information with murder (Pen.
Code, 1 § 187, subd. (a); count 1) and attempted second degree robbery (§§ 664,
211; count 2). Defendant Mason also was charged by information with
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4);
count 3). The information alleged felony-murder special circumstance
allegations (§ 190.2, subd. (a)(17)) and personal gun use allegations
(§§ 12022.5, subd. (a); 12022.53, subd. (b)). While Glass was charged in the
initial felony complaint, he reached a plea deal with the prosecution and was
not charged in the information. 2
During defendants’ initial trial, the California Legislature passed
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which
amended the felony-murder rule and the natural and probable consequences
doctrine, as it relates to murder. (People v. Cooper (2020) 54 Cal.App.5th 106,
113, review granted Nov. 10, 2020, S264684.) The bill, in relevant part,
amended section 189 to provide that a defendant who was not the actual
killer and did not have an intent to kill is not liable for felony murder unless
he or she “was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e)(3).)
In part due to anticipation of Senate Bill 1437, the district attorney
filed an amended information recharging defendants with murder, but
removing all reference to the attempted robbery. After passage of Senate Bill
1437, defendants moved for mistrial because “the trial related proceedings to

1 All statutory references are to the Penal Code.
2The information also charged a third person, James Anthony Gover,
with the murder. He is not a party to this appeal.

2
date have proceeded on the basis of a ‘felony-murder’ rule that is no longer
valid.” The court granted defendants’ motion for mistrial.
Glass testified at trial against defendants. On the day of the shooting,
Glass testified, he saw defendants while stopped at a gas station. Glass and
defendants were on friendly terms and would “chill” together. Glass asked
defendants if they wanted to ride with him, and they agreed. While driving,
Glass received a call on his cell phone from Gover. Gover asked Glass if he
was interested in robbing someone for money. Glass put his phone on
speaker and asked for more details. Gover informed them a man and woman
would be in a truck at a Howard Johnson Inn, and they may be able to steal
approximately $18,000. Both defendants indicated to Glass they wanted to
proceed with the robbery, and Glass drove toward the Howard Johnson Inn.
He parked in the Grocery Outlet parking lot, which is adjacent to the Howard
Johnson Inn. All three individuals had firearms.
Defendants and Glass did not discuss the robbery until they arrived at
the hotel. Upon arriving, Glass testified, defendant Bradley told him to go to
the passenger side door, and defendants would go to the driver’s side door.
As Glass and defendants walked through the hotel, Glass separated from
defendants. Glass testified he walked past the truck, lingered by an open
conference room door, and then walked to the passenger side of the truck.
Glass stated he saw defendants walking toward the truck, and he asked L.V.,
who was sitting in the passenger seat of the truck, for a lighter. Glass
testified he then pulled out his gun and pointed it at L.V.’s chest and face.
She screamed, and he told her to be quiet and not look at him.
Glass testified defendants had, by then, approached the driver’s side
door with their guns drawn. They repeatedly instructed Poblete to raise his
hands, but he only raised one hand. Glass observed Poblete moving his right

3
hand around by his lap. Glass then saw Poblete standing outside the truck
with the door open and heard subsequent gunshots. After hearing the
gunshots, Glass testified he crouched down and ran back to his vehicle. He
saw defendants running in front of him. When a man attempted to stop
them, defendant Mason shoved the man out of the way, and they continued to
Glass’s vehicle and left the scene. When Glass asked defendants what had
happened, defendant Bradley replied that Poblete “had a gun.”
L.V. also testified regarding the attempted robbery. She stated Poblete
encouraged her to purchase marijuana from his “really good friend” because
the friend could offer a better price than a dispensary. L.V. agreed, and they
drove to and parked in the Howard Johnson Inn parking lot facing the
swimming pool. After they parked, Poblete removed his gun from the center
console of his vehicle and placed it under his thigh. Approximately 20
minutes later, L.V. noticed a group of young men in the parking lot. She
believed it was either four or five individuals. 3 One of the men approached
her side of the vehicle and asked if she had a lighter. She testified that when
she responded affirmatively, he called over the other men. L.V. stated the
first individual then put a gun to her chest and stated, “Don’t fucking move.”
She testified she looked down and did not move apart from glancing slightly
toward Poblete. She also believed another individual approached her side of
the vehicle from behind, outside of her line of vision, and pointed a gun at her
head.
L.V. testified she saw Poblete attempting to grab his gun. At that same
time, at least two men approached the driver’s side of the vehicle. Because

Surveillance video from the hotel only shows defendants with Glass.
3

Police were unable to locate any video evidence indicating there were
additional accomplices.

4
she did not move after the gun was pointed at her, L.V. was unsure of how
the individuals approached the driver’s side but believed they went around
the back of the truck. She testified those individuals then opened the driver’s
side door while yelling at Poblete and holding guns. She stated they started
dragging Poblete out of the truck, someone yelled “[s]top, stop,” and shortly
thereafter she heard three gunshots. The men then fled from the scene. She
called 911.
Officers responded to L.V.’s 911 call and found Poblete on the ground
suffering gunshot wounds. To the left of Poblete’s left hand, officers located a
small handgun. Police were able to identify Glass and defendants from
surveillance video from the hotel. However, no surveillance video captured
the actual shooting.
A jury convicted defendants of felony murder and found defendant
Mason guilty of assault by means likely to produce great bodily injury. The
court sentenced defendants to 25 years to life. It also imposed an additional
eight years on defendant Mason for his assault conviction and the great
bodily injury enhancement. Defendants timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence for Felony-murder Conviction
The prosecution did not attempt to prove either defendant was the
actual killer. Accordingly, defendants first argue the prosecution was
required to show they acted with reckless indifference to human life to
support a felony-murder conviction. 4 They contend insufficient evidence
supports such a finding. We disagree.

Defendants do not dispute they were major participants in the
4

attempted robbery.

5
 1. Standard of Review
“In evaluating a claim regarding the sufficiency of the evidence, we
review the record ‘in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 712.) “ ‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime . . . beyond a reasonable
doubt.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
“ ‘The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in
support of the judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also be reasonably reconciled with a
contrary finding.’ ” (People v. Westerfield, supra, 6 Cal.5th at pp. 712–713.)

2. The Tison-Enmund 5 Continuum
The law governing liability for felony murder is crafted by both U.S.
Supreme Court and California Supreme Court precedent. This court recently
summarized the contours of the relevant law in In re Taylor (2019)
34 Cal.App.5th 543 (Taylor): “Beginning with the principle that ‘in capital
cases above all, punishment must accord with individual culpability,’ [People
v.] Banks explained that the death penalty cannot be imposed based solely on
a defendant’s ‘vicarious responsibility for the underlying crime.’ ([People v.]

5Tison v. Arizona (1987) 481 U.S. 137 (Tison); Enmund v. Florida
(1982) 458 U.S. 782 (Enmund).

6
Banks [(2015)] 61 Cal.4th [788,] 801.) Rather, to be sentenced to death, a
defendant must, compared to ‘an ordinary aider and abettor to an ordinary
felony murder,’ have both a more culpable mind state—reckless indifference
to the risk of death—and more substantial involvement—as a major
participant. (Id. at pp. 801–802.) Because the United States Supreme Court
had ‘found it unnecessary to “precisely delineate the particular types of
conduct and states of mind warranting imposition of the death penalty,” ’
Banks concluded that ‘a jury presented with this question must consider the
totality of the circumstances.’ (Banks, at p. 802, quoting Tison v. Arizona,
supra, 481 U.S. at p. 158 (Tison).) Accordingly, Banks closely examined the
facts in Enmund and Tison ‘[t]o gain a deeper understanding of the governing
test and offer further guidance.’ (Banks, at p. 801.)
“In Enmund, the defendant learned that a man ‘was in the habit of
carrying large sums of cash on his person. A few weeks later, [the defendant]
drove two armed confederates to [the man’s] house and waited nearby while
they entered. When [the man’s] wife appeared with a gun, the confederates
shot and killed [the couple]. [The defendant] thereafter drove his
confederates away from the scene and helped dispose of the murder weapons,
which were never found.’ ([People v.] Banks, supra, 61 Cal.4th at p. 799.)
The United States Supreme Court reversed the death sentence, concluding
that the Eighth Amendment barred such punishment ‘for any felony-murder
aider and abettor “who does not himself [or herself] kill, attempt to kill, or
intend that a killing take place or that lethal force will be employed.” ’
(Banks, at p. 799.)
“In Tison, the defendants ‘helped plan and carry out the escape of two
convicted murderers from prison,’ one of whom had killed a guard during a
previous escape. ([People v.] Banks, supra, 61 Cal.4th at p. 802.) ‘This

7
entailed [the defendants’] bringing a cache of weapons to prison, arming both
murderers, and holding at gunpoint guards and visitors alike’ (Ibid.) During
the escape, the defendants robbed and held at gunpoint an innocent family
‘while the two murderers deliberated whether the family should live or die’
and the defendants ‘then stood by’ while the murderers shot all four family
members. (Ibid.) The United States Supreme Court affirmed the death
sentences, holding that ‘ “major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement.” ’ (Id. at p. 800.)
“Comparing the facts in Enmund with those in Tison, [People v.] Banks
derived a nonexclusive list of factors bearing on whether an aider and abettor
of felony murder was a ‘major participant’ under section 190.2[, subdivision]
(d):[6] ‘ “What role did the defendant have in planning the criminal enterprise
that led to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the defendant have
of particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the defendant present
at the scene of the killing, in a position to facilitate or prevent the actual
murder, and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was used?” ’ ([People
v.] Clark[ (2016)] 63 Cal.4th [522,] 611, quoting [People v.] Banks, supra,
61 Cal.4th at p. 803.)
“Applying these factors, Banks held there was insufficient evidence
that the defendant in the case before it was a major participant in the

6 Senate Bill 1437, which amended the definition of felony murder,
incorporated the definitions of “a major participant” and “reckless
indifference to human life” from section 190.2, subdivision (d). (See § 189,
subd. (e); People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.)

8
underlying robbery. ([People v.] Banks, supra, 61 Cal.4th at p. 805.) The
evidence showed that the defendant had ‘dropped his confederates off near [a
marijuana] dispensary’ and ‘waited three blocks away for approximately 45
minutes.’ (Id. at pp. 795, 805.) After a security guard attempted to stop the
robbers, all of whom were armed, one of them shot and killed him. (Id. at
p. 795.) The defendant then headed toward the dispensary, picked up the
other two nonshooters, and drove them away. (Id. at pp. 795–796, 805.) Our
state Supreme Court concluded that the defendant was ‘at the Enmund pole
of the Tison-Enmund spectrum,’ as there was no evidence that he planned
the robbery or procured weapons, knew the shooter had previously committed
a violent crime, or was present at the scene or even aware that a shooting
had occurred. (Id. at p. 805.) The court also concluded that the defendant
had not exhibited reckless indifference to human life, emphasizing that a
defendant’s knowing participation in an armed robbery and subjective
awareness of ‘the risk of death inherent in [that crime]’ does not suffice. (Id.
at pp. 807–808.) Rather, a defendant must appreciate that his or her ‘own
actions would involve a grave risk of death.’ (Id. at p. 807.)
“Clark expounded on the meaning of the ‘reckless indifference to
human life’ element of a special circumstance under section
190.2[, subdivision] (d), which ‘ “significantly overlap[s]” ’ with the ‘major
participant’ element. ([People v.] Clark, supra, 63 Cal.4th at pp. 614–615; see
[In re] Bennett [(2018)] 26 Cal.App.5th [1002,] 1015.) Clark explained that
the mind state ‘encompasses a willingness to kill (or to assist another in
killing) to achieve a distinct aim, even if the defendant does not specifically
desire that death as the outcome of his [or her] actions.’ (Clark, at pp. 616–
617.) The required intent has ‘both subjective and objective elements. The
subjective element is the defendant’s conscious disregard of risks known to

9
him or her. But recklessness is not determined merely by reference to a
defendant’s subjective feeling that he or she is engaging in risky activities.
Rather, recklessness is also determined by . . . what “a law-abiding person
would observe in the actor’s situation.” ’ (Id. at p. 617.) As [People v.] Banks
did as to the ‘major participant’ element, Clark provided a nonexclusive list of
factors bearing on the ‘reckless indifference to human life’ element. (Clark, at
p. 618.) These factors are the ‘defendant’s knowledge of weapons used in the
crime, and their actual use and number; [the] defendant’s proximity to the
crime and opportunity to stop the killing or aid [the victim or victims]; the
duration of the crime; [the] defendant’s knowledge of [the actual killer’s]
propensity to kill; and [the] defendant’s efforts to minimize the possibility of
violence during the crime.’ ([In re] Miller[ (2017)] 14 Cal.App.5th [960,] 975;
see Clark, at pp. 618–621.)
“Applying these factors to the facts, Clark concluded there was
insufficient evidence that the defendant had acted with reckless indifference
to human life. ([People v.] Clark, supra, 63 Cal.4th at p. 623.) As
summarized by a later decision, the Clark defendant ‘ “was the mastermind
who planned and organized [an] attempted robbery [of a computer store] and
who was orchestrating the events at the scene of the crime.” [Citation.]
During the robbery, one of [the defendant’s] accomplices . . . shot and killed
the mother of a store employee who arrived at the store to pick up her son.
At the time of the shooting, [the defendant] was not at the store, but he drove
to the location shortly thereafter and fled when he saw a woman lying on the
ground, the police approaching, and [the shooter] fleeing the scene.’ ([In re]
Bennett, supra, 26 Cal.App.5th at pp. 1014–1015, quoting Clark, at p. 612.)
Despite the evidence of the defendant’s significant involvement in planning
the robbery, there was also evidence that he ‘planned the crime with an eye

10
to minimizing the possibilities for violence,’ because it was timed for after the
store closed and there were not supposed to be bullets in the gun. (Clark, at
pp. 621–623.) The court concluded that the special circumstance had to be
vacated since ‘nothing in the plan . . . elevated the risk to human life beyond
those risks inherent in any armed robbery.’ (Id. at p. 622.)” (Taylor, supra,
34 Cal.App.5th at pp. 551–554.)
In In re Scoggins (2020) 9 Cal.5th 667 (Scoggins), the California
Supreme Court again reiterated the Clark 7 factors. As recently summarized
by Division Five, in Scoggins, “the defendant believed he had been swindled
by the victim and sought revenge by planning an unarmed beating, to be
committed by several of the defendant’s friends—who would also get the
defendant’s money back. Once the plan was set in motion, however, one of
the defendant’s friends pulled out a gun and shot the victim. The defendant
had not been present because he feared the victim would recognize him.
Instead, the defendant waited at a nearby gas station, where his view of the
crime scene was blocked. He arrived at the scene after the shooting, checked
to see if the victim was breathing, and cooperated with police.” (In re
McDowell (2020) 55 Cal.App.5th 999, 1010, citing Scoggins, at pp. 671–672,
678–679.) In assessing whether the defendant acted with reckless
indifference, the Scoggins court reaffirmed the Clark factors and explained
determining culpability “requires a fact-intensive, individualized inquiry.”
(Scoggins, at pp. 677, 683.) The court concluded the defendant had not acted
with reckless indifference, noting the defendant was not present during the
incident, his plan did not involve the use of weapons, the duration of the
interaction was brief, the record was devoid of evidence suggesting the
defendant knew his friends were likely to use lethal force, and the defendant

7 People v. Clark, supra, 63 Cal.4th 522 (Clark).

11
took steps to minimize the risk of injury by planning a public unarmed
assault. (Id. at pp. 671, 680–681, 683.)
3. Analysis
Defendants argue insufficient evidence demonstrates they acted with
reckless indifference to human life during the attempted robbery. In
assessing the Clark factors, certain considerations weigh for and against a
finding that defendants acted with reckless indifference to human life.
However, “ ‘ “[n]o one of these considerations is necessary, nor is any one of
them necessarily sufficient.” ’ ” (Scoggins, supra, 9 Cal.5th at p. 677.)
To begin, we note “[t]he intent to commit an armed robbery” or “[t]he
mere fact of a defendant’s awareness that a gun will be used in the felony is
not sufficient to establish reckless indifference to human life.” (People v.
Banks, supra, 61 Cal.4th at p. 799 (Banks); Clark, supra, 63 Cal.4th at
p. 618.) However, Clark acknowledged the presence of a gun is a factor to be
considered, and “[a] defendant’s use of a firearm, even if the defendant does
not kill the victim . . . , can be significant to the analysis of reckless
indifference to human life.” (Clark, at p. 618.) Here, defendants were not
merely aware an accomplice was carrying a gun or that a gun would be
involved in the robbery. (See, e.g., id. at pp. 619–622 [the defendant did not
use a gun and did not know any loaded guns would be used in the robbery].)
Rather, defendants themselves possessed and used firearms during the
robbery. Both Glass and L.V. testified all of the individuals involved in the
robbery were wielding firearms.
Defendant Bradley argues the evidence does not indicate he actually
expected to use his firearm. 8 But that is not a component of the first inquiry.

8 Defendant Mason does not argue this factor and concedes “that all the
participants had guns.”

12
Rather, the factor assesses “defendant’s knowledge of weapons used in the
crime, and their actual use and number.” (In re Miller, supra, 14 Cal.App.5th
at p. 975.) Here, it is undisputed that defendants were aware they all had
firearms and used them during the attempted robbery.
Other factors supporting a finding of a reckless indifference to human
life include defendants’ physical presence at the scene and the opportunity to
prevent the crime. (Clark, supra, 63 Cal.4th at p. 619.) According to Clark,
“[i]n Tison, the high court stressed the importance of presence to culpability.”
(Ibid.) Presence at the location of the killing provides an opportunity to act
as a restraining influence. (Ibid.) Here, the surveillance video clearly places
defendants at the scene, and they do not dispute that they were present
during the robbery. They thus were “aware of and willingly involved in the
violent manner in which the particular offense [was] committed . . . .” (See
Banks, supra, 61 Cal.4th at pp. 801, 803, fn. 5.) In response, defendants
argue the shooting was an unforeseeable surprise and did not allow
defendants to act as restraining influences on the shooter. But in so arguing,
defendants focus on an extremely narrow moment in time immediately prior
to the shooting. While approaching the vehicle, defendants and Glass
observed the public nature of the vehicle—i.e., near the hotel swimming pool
where various potential witnesses were present. But they continued with
their planned robbery. More importantly, Poblete failed to fully comply when
defendants ordered him to raise his hands. 9 Instead, Poblete only raised one
hand, indicating to defendants that he may have been hiding something in
his other hand. And he was: a gun. But despite his refusal to raise both

9 Defendants question Glass’s testimony that they approached the
driver’s side. However, L.V. testified at least two individuals approached the
driver’s side door while one or two individuals accosted her. Accordingly, the
jury reasonably could have concluded defendants were on the driver’s side.

13
hands, defendants continued with the planned robbery. And defendants
either physically engaged with Poblete by pulling him out of the vehicle or
Poblete unilaterally decided to exit the vehicle—both of which suggest the
robbery was not progressing as anticipated. But defendants did not flee or
alter their plans until after the shooting occurred.
Nor did defendants make any effort to assist the victim following the
shooting. (See Tison, supra, 481 U.S. at p. 141 [noting the Tison brothers’
failure to make an effort to help the victims].) While defendants raise a host
of reasons to justify their immediate flight, it is undisputed neither Mason
nor Bradley attempted to render any degree of aid following the shooting.
Moreover, Mason committed an assault on an individual who attempted to
halt his flight, evidencing an ongoing lack of concern for the welfare of others.
The record also does not reflect any effort by defendants to minimize
the risk of the robbery. (See Clark, supra, 63 Cal.4th at p. 622 [“a
defendant’s apparent efforts to minimize the risk of violence can be relevant
to the reckless indifference to human life analysis”].) Glass testified he and
defendants never discussed whether they should bring firearms, whether to
keep those firearms unloaded, or how to minimize the likelihood of violence.
Furthermore, as noted above, Poblete’s truck was parked near a swimming
pool where other individuals were present. The jury could reasonably have
concluded the public nature of the robbery and presence of others increased
the risk of someone being injured. (See Clark, at p. 621 [defendant made
effort to mitigate risk because “attempted robbery was undertaken after
closing time, when most of the employees had left the building”]; Taylor,
supra, 34 Cal.App.5th at p. 558 [“The evidence showed that Taylor and the
other men planned for Davis to quickly grab the money from a lone employee
late at night after the liquor store had closed, reducing the risk of violence.”];

14
but see Scoggins, supra, 9 Cal.5th at p. 683 [mitigated risk of violence by
having confrontation “in a public parking lot during the daytime, when the
possible presence of witnesses might reasonably be thought to keep his
accomplices within the bounds of the plan”].)
Undoubtedly, there are some factors that do not evidence a reckless
indifference to human life. For example, “[t]he duration of the interaction
between victims and perpetrators is . . . one consideration in assessing
whether a defendant was recklessly indifferent to human life.” (Clark, supra,
63 Cal.4th at p. 620.) The evidence reflects defendants were on the hotel
property, and engaged with the victims, for a short period of time. Thus, the
duration of the robbery does not suggest defendants acted with reckless
indifference. Similarly, nothing in the record indicates defendants were
aware of an accomplice’s likelihood of killing. (Id. at p. 621.)
We find this case analogous to People v. Bascomb, supra,
55 Cal.App.5th 1077. There, Bascomb and his cohort forced their way into an
apartment at gunpoint. (Id. at p. 1081.) Bascomb held one individual at
gunpoint for a few minutes while the cohort entered a bedroom, briefly
struggled with the occupant, and shot him. (Ibid.) They then fled following
the shooting. (Ibid.) In assessing whether Bascomb acted with reckless
indifference, the court noted: “Bascomb was willingly involved in the violent
manner in which the robbery took place. . . . Bascomb didn’t just watch
without intervening as his accomplice accosted the murder victim in his
bedroom, he used his weapon to keep the other victims at bay and thereby
actively enabled the murder. Nor did he help the victim once he had been
shot, but instead fled. We agree with the People that this sort of conduct
easily meets our state’s standard for what constitutes being a major

15
participant who acted with reckless indifference to human life.” (Id. at
p. 1089.)
The court also emphasized the importance of a defendant being an
active participant who wielded a firearm: “As we said in People v. Law, ‘we
are not aware of a single case that concludes a defendant who personally
committed a robbery, used a gun, and was present for the shooting did not
meet the standard’ of culpability required to support a felony murder
conviction. (People v. Law (2020) 48 Cal.App.5th 811, 825, review granted
July 8, 2020, S262490.) The defendants who have shown their culpability
was too slight under Banks and Clark ‘are those who were not wielding guns
themselves and also not present for the shooting (either because they were
acting as getaway drivers or because they were involved in the planning of
the crime only).’ ([Law, at p. 825]; see also, e.g., In re Miller[, supra,]
14 Cal.App.5th [at p.] 965 [defendant played the role of ‘spotter’ who would
select the robbery target and was not at the scene of the robbery/murder]; In
re Bennett, supra, 26 Cal.App.5th at p. 1019 [defendant was involved in
planning the robbery but was not at the scene of the murder]; [Taylor, supra,]
34 Cal.App.5th [at p.] 559 [the defendant acted as getaway driver and was
not at the scene of the murder].)” (People v. Bascomb, supra, 55 Cal.App.5th
at p. 1090; accord In re Ramirez (2019) 32 Cal.App.5th 384, 390 (Ramirez)
[petitioner was waiting across the street with an accomplice’s bicycle and was
not at the scene of the murder].)
Defendants fail to identify a single case in which a defendant actively
participated in a robbery, wielded a firearm during that robbery, and was
present for the shooting, but an appellate court found insufficient evidence to
support a finding that the defendant acted with reckless indifference for
human life. Nor are we aware of any. In considering the Clark factors,

16
defendants’ culpability is greater than that set forth in those cases on which
they rely, namely Banks, Clark, Scoggins, Taylor, In re Bennett, and Ramirez.
We conclude the evidence relevant to the Clark factors, when considered in
total, sufficiently supports the judgment.
B. Lesser Included Offenses
Defendants assert the trial court erred by failing to instruct on robbery
as a lesser included offense to felony murder. We disagree. 10
1. Relevant Background
Prior to trial, defendant Bradley filed a motion in limine requesting the
jury be instructed on robbery and attempted robbery as lesser included
offenses of felony murder. Bradley argued the jury may plausibly find that
he committed robbery but not find him liable for Poblete’s death. The
prosecutor objected to the instruction.
The court ultimately declined to give the lesser included instruction.
The court explained, historically, attempted robbery was not a lesser included
offense to murder, and it was unaware of any authority altering that
analysis. While it questioned the fairness of the situation, the court
ultimately concluded the district attorney is “the charging body” and
“consciously chose to withdraw those charges,” and it would “honor [the
prosecutor’s] objection.”
2. Analysis
Senate Bill 1437 modified the prior rule that “ ‘a defendant who
intended to commit a specified felony could be convicted of murder for a
killing during the felony, or attempted felony, without further examination of
his or her mental state.’ ” (People v. Cooper, supra, 54 Cal.App.5th at p. 113,

10 We independently review whether the trial court failed to instruct on
a lesser included offense. (People v. Verdugo (2010) 50 Cal.4th 263, 293.)

17
rev. granted.) The statutory scheme was amended such that “ ‘ “[m]alice
shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)’ ” (Ibid.) Rather, the defendant must have been
“the actual killer,” “have an intent to kill,” or “ ‘was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.’ (§ 189, subd. (e)(3).)” (Ibid.)
Based on these statutory changes, defendants argue their guilt in an
attempted robbery and resulting killing does not automatically make them
guilty of felony murder. Rather, the prosecution must also establish, in this
instance, the defendants were “major participant[s] in the underlying felony
and acted with reckless indifference to human life.” (§ 189, subd. (e)(3).)
Because the attempted robbery and death alone cannot support a felony-
murder conviction, defendants argue attempted robbery must be a lesser
included offense.
Two tests are used to determine “whether a crime is a lesser included
offense of a greater offense: the elements test and the accusatory pleading
test. [Citation.] Either of these tests triggers the trial court’s duty to instruct
on lesser included offenses.” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
“Under California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the
lesser offense, such that the greater cannot be committed without also
committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) We
address each test in turn. 11

11Defendant Mason argues the court has a duty to instruct on relevant
principles of law if supported by the evidence. But this position misstates the
law. “A trial court has a sua sponte duty to ‘instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence
18
 We are unaware of any authority suggesting the elements test would
trigger a duty to instruct on robbery based on a felony-murder charge. First
degree felony murder, as set forth in section 189, identifies various predicate
offenses including “arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under Section 206, 286,
287, 288, or 289, or former Section 288a, or murder that is perpetrated by
means of discharging a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict death . . . .” (§ 189,
subd. (a).) Because robbery is only one of multiple predicate offenses, it does
not satisfy the requirement “that the greater”—i.e., felony murder—“cannot
be committed without also committing the lesser”—i.e., robbery. (See People
v. Birks, supra, 19 Cal.4th at p. 117.) Felony murder could be committed, for
example, based on arson or kidnapping.
Nor does the accusatory pleading test, in this instance, trigger the duty
to instruct. The amended information alleges defendants “did commit a
felony namely: MURDER, a violation of Section 187[, subdivision] (a) of the
Penal Code . . . in that said defendants did unlawfully, and with malice
aforethought murder ROBBY POBLETE, a human being.” Nowhere in the
information is robbery mentioned. While robbery undoubtedly constituted
the predicate offense for the felony-murder charge, the California Supreme
Court has repeatedly held that courts should not look beyond the actual
pleading and its allegations regarding the purported greater offense when
applying the accusatory pleading test to determine whether one offense is

the defendant is guilty only of the lesser.’ ” (People v. Shockley (2013)
58 Cal.4th 400, 403.) But we need not address the evidence if the lesser
offense is not “necessarily included” in the charged offense. And, to make
that assessment, we look to the elements test and the accusatory pleading
test. (See People v. Gonzalez, supra, 5 Cal.5th at p. 197.)

19
necessarily included in another. (See, e.g., People v. Banks (2014) 59 Cal.4th
1113, 1160 [“When applying the accusatory pleading test, ‘[t]he trial court
need only examine the accusatory pleading.’ ”], overruled in part by People v.
Scott (2015) 61 Cal.4th 363, 391; People v. Smith (2013) 57 Cal.4th 232, 244;
People v. Montoya (2004) 33 Cal.4th 1031, 1036 [“Consistent with the primary
function of the accusatory pleading test—to determine whether a defendant
is entitled to instruction on a lesser uncharged offense—we consider only the
pleading for the greater offense.”].)
Defendants contend following the accusatory pleading test, without
more, would allow the district attorney to artfully plead around what would
otherwise constitute lesser included offenses for felony murder. We agree
that is a possibility. However, the California Supreme Court recognized the
right of prosecutors to craft pleadings to avoid lesser included offenses, albeit
in another context. In People v. Smith, supra, 57 Cal.4th 232 (Smith), the
court addressed in part whether resisting a public officer under section 148,
subdivision (a)(1) was a lesser included offense to resisting an executive
officer in the performance of his duties under section 69. (Smith, at p. 236.)
The court first concluded the section 148 violation was not a lesser included
offense under the statutory elements test because section 69 could be violated
in two ways, only one of which overlapped with section 148. (Smith, at
p. 241.)
In addressing the accusatory pleading test, the Supreme Court
explained: “If the accusatory pleading in the present case had charged only
the first way of violating section 69 . . . [,] section 148[, subdivision] (a)(1)
would not have been a necessarily included offense. But the amended
information charged defendant with both ways of violating section 69.”
(Smith, supra, 57 Cal.4th at p. 242.) In concluding section 148 was a lesser

20
included offense based on the information as drafted, the court acknowledged
the ability of prosecutors to draft pleadings in a manner that would exclude
certain lesser offenses: “The prosecution may, of course, choose to file an
accusatory pleading that does not allege the commission of a greater offense
in a way that necessarily subsumes a lesser offense.” (Smith, at p. 244.)
Similarly, in People v. Munoz (2019) 31 Cal.App.5th 143 (Munoz), the
defendant argued gross vehicular manslaughter while intoxicated should be
considered a lesser included offense of murder under the accusatory pleading
test. (Id. at p. 155.) Although the pleading merely repeated the statutory
definition of murder and did not set forth the additional requirement for
gross vehicular manslaughter while intoxicated, the defendant asserted
driving under the influence of alcohol was indisputably the basis for the
murder charge. (Ibid.) The court agreed driving while intoxicated was a
necessary component of the murder charge, but rejected the defendant’s
argument: “We do not disagree that, based on the preliminary hearing and
jury instructions, the prosecution could not secure a murder conviction under
the circumstances of this case without proving beyond a reasonable doubt
that Munoz drove while intoxicated. The Supreme Court has indicated
repeatedly, however, that when applying the accusatory pleading test to
determine whether one offense is necessarily included in another, courts do
not look to evidence beyond the actual pleading and its allegations regarding
the purported greater offense.” (Id. at pp. 155–156.)
Munoz further emphasized the need to restrict the accusatory pleading
test to only those allegations in the relevant pleading: “The Supreme Court
has explained the importance of limiting analysis of lesser included offenses
to the statutory elements and language of the accusatory pleading to
‘promote[ ] consistency in application’ and ‘ease[ ] the burden on both the trial

21
courts and the reviewing courts.’ ” (Munoz, supra, 31 Cal.App.5th at p. 156.)
Munoz rejected application of an “expanded” accusatory pleading test as
contrary to Supreme Court precedent. (Id. at p. 158.)
Here, there are multiple predicate offenses that can form the basis for
felony murder, and “[a]n information or indictment need not specify the
theory of murder on which the prosecution will rely.” (People v. Gurule (2002)
28 Cal.4th 557, 629; accord Smith, supra, 57 Cal.4th at p. 244 [district
attorney may “file an accusatory pleading that does not allege the
commission of a greater offense in a way that necessarily subsumes a lesser
offense”].) Accordingly, robbery is not a lesser included offense under the
accusatory pleading test when the information does not set forth the
predicate offense for the felony-murder allegation. The trial court did not err
in declining to give the requested instruction on robbery as a lesser included
offense. 12
III. DISPOSITION
The judgment is affirmed.

Because we conclude the trial court did not err in declining to
12

instruct on robbery as a lesser included offense, we need not address
defendants’ arguments that the error was prejudicial.

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 MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A159105, A159107
People v. Bradley & Mason

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Trial Court: Superior Court of Solano County

Trial Judge: Robert Bowers, Judge

Counsel:

J. Courtney Shevelson, under appointment by the Court of Appeal, for
Defendant and Appellant Willie Eugene Bradley, IV.

Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant
and Appellant Melvin Delarence Mason.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Catherine A. Rivlin and Basil R. Williams, Deputy Attorneys
General for Plaintiff and Respondent.

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