People v. Nedd CA4/2

Filed 12/21/21 P. v. Nedd CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073575

v. (Super.Ct.Nos. 16CR020590 &
16CR020593)
RICHARD TOBIAS NEDD, et al.,
OPINION
Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. 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.

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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

1 Unspecified statutory references are to the Penal Code.

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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

2 Defendants’ indeterminate sentences include 25 years to life for the first degree
murder of Julian K. (count 1), plus seven years to life (life with a minimum parole
eligibility date of 7 years) for the attempted premeditated murder of Richard F. (count 2).
Defendants were also sentenced to consecutive six-year terms for the robbery of Richard
F. (count 4). The court imposed but stayed six-year terms on defendants’ convictions for
the robbery of Julian K. (count 3). Nedd was also sentenced to a consecutive 8-month
term (1/3 the middle term of 2 years) for his unlawful firearm possession conviction
(count 6).

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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 Brady3 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

3 Brady v. Maryland (1963) 373 U.S. 83 (Brady).

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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 Franklin4 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.

4 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

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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 marijuana to

Shoulders because the circumstances “seemed fishy.” He texted Shoulders, asking how

long it was going to take him to return and that he had to run errands.

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 Between 8:00 and 9:00 p.m., Shoulders telephoned his girlfriend and asked her to

delete or deactivate his social media page. The girlfriend “erased” the social media page,

preventing anyone from accessing it. Around 9:00 p.m., Shoulders returned to Richard

F.’s apartment, again, as a passenger in the Jeep Compass. Although there was a parking

space available next to Richard F.’s Tahoe, the Jeep again backed into the driveway and

again blocked the Tahoe.

Shoulders got out of the Jeep, and Richard F. let him into the apartment. As

Richard F. and Shoulders walked into the kitchen, Julian K. came out of one of the

bedrooms, walked to the front door, and stopped a man who was trying to get into the

apartment through the front door. Richard F. saw the man at the door and described him

(the cohort) as dark-skinned, with a bald head, and wearing a blue T-shirt.5 Julian K.

walked outside to talk to the cohort.

While Julian K. was outside, Shoulders told Richard F. that his friend, the cohort,

was “going half with him” on the marijuana purchase, and Shoulders asked Richard F. to

give Julian K. some of the marijuana to show the cohort. Richard F. gave Julian K. a

piece of marijuana from the bag on top of the refrigerator to show to the cohort. Julian K.

took the piece outside, came back in, and asked how much money he was supposed to

collect from the cohort. Shoulders told Julian K. to get $100, and Julian K. walked

outside again.

5 Information outside of the trial revealed that the cohort was Rayvon Tarpley,
but because Tarpley was never identified at trial as the cohort, at times we refer to him as
the cohort or the bald man rather than as Tarpley.

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 Julian K. then came back into the apartment, with his hands laced behind his head,

and with the cohort holding a black .40-caliber handgun, either to the back of his head or

to the back of his rib cage. Shoulders looked “shocked.” Fearing for his life and the lives

of everyone else inside the apartment, Richard F. retrieved a shotgun, which he kept

beneath the kitchen counter. The shotgun had one round in its chamber but was

otherwise unloaded. Shoulders tried to grab the shotgun from Richard F. and, as the two

of them struggled for the shotgun, the round discharged into the kitchen ceiling.

Richard F. fell to the floor; Shoulders gained control of the shotgun; and Shoulders

struck Richard F. several times with the shotgun as Richard F. lay on the floor. As soon

as Richard F. wielded the shotgun toward Shoulders, the cohort fired several shots and,

after a short break, the cohort fired several additional shots.

T.S. lived in a nearby apartment and was outside of her apartment when she

“noticed a car pull in backwards.” Several people (more than 1 but fewer than 5) were in

the car, and more than one person got out of the car. A short time later, T.S. “looked up”

and saw Julian K. standing in the doorway of Richard F.’s apartment, “and a person

standing right in front of [Julian K.,] facing toward [Julian K.]” with his right arm raised

up and across Julian K.’s shoulder.

Julian K. “made real quick eye contact” with T.S. T.S. described the man who was

standing in front of Julian K. (the cohort) as “shorter,” with either “a fade” or “bald.” It

looked as though the bald man was trying to move Julian K. “out of the way . . . to get

inside” the apartment. T.S. and another neighbor then heard two sets of gunshots,

separated by a pause, and T.S. called 911 after she heard the first set of gunshots.

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 According to Richard F., after the first set of gunshots was fired, Nedd ran into the

apartment, and Shoulders, while still holding the shotgun, yelled to Nedd to “grab the

money.” Nedd grabbed money that had fallen from Richard F.’s pocket onto the kitchen

floor. A second or two after Nedd grabbed the money, and while the cohort was firing

the second round of shots, a bullet struck Richard F. in the stomach. Richard F. did not

see whether Nedd had a firearm. Shoulders, Nedd, and the cohort left the apartment

through the front door. Richard F. did not see the Jeep leave, but he heard tires

screeching; and he later noticed that his shotgun and the marijuana were missing from his

apartment,6 along with the money that had fallen on the kitchen floor. Richard F. further

testified that Julian K. was inside the apartment, near the front door, when the first round

of shots was fired and was outside when the second round of shots was fired. Richard F.

was inside the apartment when all of the shots were fired and when a bullet struck

Richard F.

B. The Aftermath of the Shootings and Robberies

After Shoulders, Nedd, and the cohort left his apartment, Richard F. went outside,

sat on a bench, and dialed 911, while Julian K., who had been shot several times, sought

help from T.S. in her apartment. Richard F. was airlifted to a hospital and underwent

emergency surgery to repair his gunshot wound. Julian K. died at the hospital from

several gunshot wounds. Some of Julian K.’s gunshot wounds had soot or stippling but

others did not. This was consistent with Julian K. being in close proximity to the shooter

6 At some point, Richard F. placed the bag of marijuana that was on top of the
refrigerator with the bag of marijuana on the kitchen counter.

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when he was first shot, then running away from the shooter while being struck by

additional bullets. Julian K. told a sheriff’s deputy that he had been shot outside.

Law enforcement officers found eight .40-caliber bullet casings inside Richard F.’s

apartment and on the ground outside of the apartment. The parties stipulated that a

qualified criminalist had determined that all eight of the .40-caliber casings were fired

from the same weapon. A hat belonging to Shoulders was found on the kitchen counter.

Marijuana remnants were strewn on the apartment floor and outside of the apartment.

Around $110 in cash was found strewn on the floor near the kitchen. 7 An empty box for

a .12-gauge shotgun was also found in the apartment.

C. Richard F.’s Pretrial Statements

A detective interviewed Richard F. at the hospital on August 7, 2015, shortly after

Richard F. came out of surgery. Richard F. said he met Shoulders on a social media page

dealing with medical marijuana, and he planned to give marijuana to Shoulders in return

for a donation. He said there were only two people involved in the crimes. He described

Shoulders as a thin, “black” male with short hair or bald, in his mid-20’s, with a tattoo on

his face. He saw Shoulders get out of the passenger side of the Jeep. He described the

second man, whom he said he saw get out of the driver’s side of the Jeep, as stalky, bald,

and having a very dark complexion.

7 Police found approximately $110 in cash, mostly in $20 bills, strewn around on
the kitchen floor. Richard F. testified that he had around $100 in his pocket in several
denominations, and his girlfriend told him that she saw $30 on the floor when he was
taken to the hospital.

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 Richard F. also told the detective that the second man later walked into the

apartment with a gun to Julian K.’s head, and that, upon seeing this, Shoulders looked

surprised. Richard F. also said that, while the second man was shooting at Julian K.,

Shoulders pulled out a gun and shot Richard F. He did not say anything about being

struck with a shotgun. He said that Shoulders and the bald man both had handguns

similar to “Glock brand” handguns. The interviewing detective was familiar with such

handguns and had used both .40-caliber and nine-millimeter Glock handguns.

Richard F. showed the interviewing detective his social media messages from

Shoulders. When the detective clicked on Shoulders’s social media page, the page had

been deactivated. The detective had the impression, during the August 7, 2015 interview,

that Richard F. had already spoken to his neighbors about what had happened on

August 6. During a subsequent interview on August 19, Richard F. said for the first time

that there were three men involved in the crimes—one was shooting at Julian K., another

came into the apartment with a gun, and Richard F. wrestled with the third man,

Shoulders, over a shotgun. During a follow-up interview on June 8, 2016, Richard F.

said he did not see who took his marijuana. For the first time at trial, in August 2016,

Richard F. testified that Nedd came running into the apartment and picked up the money

that had fallen from his pocket and onto the kitchen floor.

D. Nedd’s August 7, 2015 Arrest

On August 7, 2015, a sheriff’s deputy stopped Nedd while Nedd was driving the

Jeep Compass used during the shooting. Nedd was the only person in the Jeep. Nedd

had a small amount of marijuana on his person. The deputy searched the Jeep and found

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a loaded, black, nine-millimeter semi-automatic Smith and Wesson handgun, hidden in

the center console beneath the glove box. The deputy called a homicide detective who

retrieved the gun and placed Nedd under arrest. 8 Two cell phones were also recovered

from the Jeep. In count 6, Nedd was charged with being a prohibited person in

possession of a firearm, based on his possession of the nine-millimeter Smith and

Wesson. (§ 29850.) Before Nedd’s jury, the parties stipulated that Nedd had a prior

conviction for a qualifying offense for purposes of count 6.

E. Nedd’s and Shoulders’s Pretrial Statements (Admitted Before Nedd’s Jury)

1. Nedd’s Interview Statements

Following his arrest on August 7, 2015, Nedd was taken to the Victorville City

Police station where a homicide detective interviewed him after he waived his Miranda9

rights. An audio recording of the interview was played for Nedd’s jury.

During the interview, Nedd told the detective that the Jeep Compass he was driving

belonged to his mother, and he had the car all day on August 6. He gave a detailed

account of his whereabouts on August 6. He said he went to a park at 5:45 p.m., where

he coached youth football, and stayed at the park, talking to the other coaches, until 8:45

p.m. He then went to a fast food restaurant with his girlfriend, went home, watched

television with his girlfriend, and stayed home for the rest of the evening.

8 It was determined that the nine-millimeter handgun found in the Jeep Compass
was not used in the August 6, 2015 shooting because a nine-millimeter handgun cannot
fire a .40 caliber cartridge.

9 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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 The detective then told Nedd that the Jeep Compass had been used in a homicide;

they had a video of the car and its license plate;10 and this was why Nedd was stopped

while driving the car. The detective urged Nedd to tell the truth. Nedd initially said he

had been truthful about his whereabouts on August 6. He later admitted he was at the

apartment but claimed he did not do anything, and he denied planning to kill anyone. He

said his friend was supposed to be buying marijuana, but his friend said, “The dude

upped the gauge on him and tried to shoot him.” He was outside of the apartment the

entire time, and he never left the Jeep Compass. He heard gunshots and thought his

friend “got shot.”

When asked for further details, Nedd said he drove his friend, Shoulders, to the

apartment around 7:00 p.m., and he identified a photo of Shoulders. They were supposed

to be buying four ounces of marijuana for $400. Shoulders was in the front passenger

seat. Nedd backed the Jeep Compass into the driveway because “the dude” who lived in

the apartment had told them to “back in.” Shoulders went inside the apartment, while

Nedd waited in the car. Shoulders came back to the car and told Nedd two things: (1)

they needed to pick up Shoulders’s friend, who had the rest of the money that was needed

to buy the marijuana, and (2) the dude in the apartment had a shotgun or “gauge” “on the

table.” Nedd told Shoulders that if Shoulders did not “ ‘feel comfortable’ ” buying the

10 The detective testified at trial that law enforcement had a video showing the
Jeep Compass at the apartment, but the video was of “grainy quality” and did not show
the car’s license plate.

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marijuana at that point, they would come back after they picked up one of Shoulders’s

friends from Shoulders’s “ ‘hood.’ ”

Nedd and Shoulders then went to pick up Shoulders’s friend (the cohort) who met

them at a liquor store. The three of them returned to the apartment, and Nedd again

backed into the driveway as “the dude” in the apartment had told Shoulders to do over the

telephone. Shoulders and the cohort got out of the car while Nedd waited in the car.

Shoulders went inside the apartment, but someone would not let the cohort inside, and the

cohort walked back by the car. Then someone came out of the apartment, showed some

marijuana, and said he wanted $100. This person and the cohort then went into the

apartment together. Nedd then heard gunshots and thought someone was shooting at

him.

Shoulders and the cohort came running out of the apartment and got into Nedd’s

Jeep Compass. The cohort was holding a shotgun and a silver, semi-automatic handgun,

while Shoulders was holding a large bag of marijuana. Shoulders did not have anything

else in his hands. Shoulders and the cohort said, “ ‘Go, go, go, go,’ ” and Nedd drove

away, asking what had happened and who got shot; but Shoulders and the cohort would

not tell Nedd what had happened or whether anyone was shot. Nedd told Shoulders and

the cohort to throw the shotgun out of his car window, and cohort did so near a

convenience store. But the cohort kept the handgun that he was holding when he came

out of the apartment. Nedd then dropped off the cohort where he had picked him up, took

Shoulders home, then drove himself home. The cohort took the bag of marijuana with

him.

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 Nedd did not know the cohort’s name; he only knew the cohort by his street name,

“Booneyard.” Nedd described the cohort as bald, chubby, and “black,” with a dark

complexion, and around 28 or 29 years old. The cohort was wearing a blue T-shirt and

dark navy blue jeans. Nedd had never met the cohort before. Nedd believed that

Shoulders and the cohort were only going into the apartment to buy marijuana. Nedd

understood that the man in the apartment was selling marijuana through social media and

that Shoulders had met the man through social media. The black and silver handgun that

Nedd had in the Jeep Compass when he was arrested on August 7 was his own gun that

he used for protection. This gun was never taken into the apartment, and the man in the

apartment would not be able to say that he had seen it.

2. Nedd’s and Shoulders’s Patrol Car Statements

Both Nedd and Shoulders were at the Victorville City Police station at the same

time on August 7, 2015. Around 6:00 p.m., after Nedd was interviewed, he was placed in

the back of a patrol car with Shoulders, and the two of them were transported to jail.11 A

digital recorder was placed near the back seat of the patrol car to record any conversation

between Nedd and Shoulders. The recording was played only for Nedd’s jury.

Nedd said to Shoulders, “I am being charged with a neener.[12] Try to switch it to

self-defense . . . .” Nedd continued: “Like you seen that . . . shotgun on a table.

Whoopty-woop, you know. Try to make it seem like he shot at you or something. [¶] . . .

11Shoulders was under arrest at the time he was placed in a patrol car with Nedd
on August 7, 2015, but the circumstances of Shoulders’s arrest are not in the record.

12 A “neener” is a nick name for a nine-millimeter handgun.

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[¶] . . . Switch it all around . . . .” Shoulders asked, “They got your phone, huh?” Nedd

responded, “Yeah, bro! I deleted everything though. I was going to go sell the pistol . . .

but the forty (40) gone, bro.” Shoulders said, “I ain’t going down . . . . I didn’t know the

shooter.” Nedd responded, “That’s what I said, ‘I didn’t know who . . . they were talking

about.’ ” Shoulders then told Nedd not to talk to him because there were speakers in the

patrol car, and “they’ll hear us talking.” Nedd said, “Yeah I know, that’s why I am not

tripping.”

F. The Marijuana Found at Nedd’s Residence

Around the time Nedd was interviewed on August 7, 2015, a search warrant was

executed at Nedd’s residence. Behind a refrigerator in the garage of the residence,

officers found a green canvass range bag containing a large plastic roasting bag, or turkey

bag, with around three ounces of marijuana in it, and a glass jar, with less than one ounce

of marijuana in it. The marijuana was “cush” marijuana, the same type of marijuana that

Richard F. had in his apartment. It is very uncommon to package marijuana in turkey

bags.

G. Defense Evidence

Defense counsel attempted to discredit Richard F.’s trial testimony by adducing

his prior inconsistent statements. Shortly after the shooting, Richard F. told a detective

who responded to the scene that an unknown vehicle had pulled into the driveway, there

were two people in the vehicle, and the two people tried to steal music equipment that

Richard F. used to produce songs. At that time, Richard F. did not say that he had been

selling marijuana from his apartment.

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 During the same conversation at the scene, Richard F. described the two occupants

of the vehicle as a “black” male, around five feet eight inches tall, with a tattoo on his

face, and a second “black” male, taller than five feet ten inches. He was unable to give

any further descriptions of the suspects. He said that one of the suspects shot Julian K., at

which point he retrieved a shotgun and fired one round before the shotgun was taken

from him. He was unsure which suspect took the shotgun. He appeared to be in a lot of

pain, was bleeding from his abdomen, and told the detective that he was in too much pain

to continue talking.

III. DEFENDANTS’ CLAIMS OF MULTIPLE PRETRIAL BRADY ERROR AND

RELATED DUE PROCESS CLAIMS LACK MERIT

We first address defendants claims that the court deprived them of their due process

right to a fair trial in refusing to dismiss the charges, with prejudice, based on (1) the

prosecution’s Brady errors in failing to turn over multiple items of discovery until shortly

before the trial was originally scheduled to begin on May 9, 2016 (Brady, supra, 373 U.S.

83), and (2) the prosecution’s related due process violation in failing to disclose Glenn

Blackman’s identity until shortly before the scheduled May 9 trial. Defendants claim

they were prejudiced by the prosecution’s failure to disclose, until May 6, 2016,

statements that the cohort—who was identified before trial as Rayvon Tarpley—made to

Blackman, in which Tarpley told Blackman that he, Tarpley, had “ ‘fucked up’ ” and “

‘had to shoot someone’ ” at Richard F.’s apartment on August 6, 2015 (the

Tarpley/Blackman information).

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 We conclude the court properly refused to dismiss the charges with prejudice as a

remedy for the prosecution’s failure to disclose the Tarpley/Blackman information and

Blackman’s identity until May 6, 2016. The court found, and substantial evidence shows,

that the prosecution’s alleged Brady errors, including its failure to earlier disclose the

Tarpley/Blackman information (1) were negligent but not intentional or “flagrant,”

(2) did not prejudice defendants, and (3) were remedied by the court’s dismissal of the

firearm allegations in counts 1 through 4, and the prosecution’s subsequent dismissal and

refiling of the substantive charges.

As we explain, the absence of the Tarpley/Blackman information at trial was not

prejudicial to defendants. Further, the dismissal of the first amended information and the

subsequent refiling of the charges vacated the May 9, 2016 trial date and gave the defense

ample additional time to locate Blackman and secure his testimony at trial. The defense’s

inability to secure Blackman’s trial testimony was not attributable to the prosecution’s

late disclosure of the Tarpley/Blackman information or Blackman’s contact information.

A. Proceedings Concerning the Prosecution’s Alleged Brady Violations

1. Background/ The February 2016 Preliminary Hearing Evidence

At the preliminary hearing on February 29, 2016, Richard F. testified that there

were three men involved in the shootings and robberies. Julian K. stopped a bald, “dark-

skinned dude” wearing a blue T-shirt (the cohort) from coming into apartment, after

Shoulders came in. After the shooting began, “a short dude,” whom Richard F. identified

as Nedd, ran into the apartment, and Shoulders said, “Get the money.” Richard F. said he

was shot after Nedd ran into the apartment, and he believed that the cohort and Julian K.

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were outside of the apartment when he was shot. But Richard F. did not see who shot

him, and he was unsure whether Nedd or Shoulders had any firearms in their hands, other

than the shotgun that Shoulders grabbed from him. Richard F. first told a detective that a

third man was involved during an August 19, 2015 interview.

San Bernardino County Sheriff’s Detective T.M. testified about his August 7, 2015

interview with Richard F. During the interview, Richard F. said that only two men were

in the apartment, namely, Shoulders and a dark-skinned man, and that both of them had

Glock-type handguns. Richard F. also said that Shoulders fired his handgun at Richard F.

before Shoulders grabbed Richard F.’s shotgun, and after Shoulders grabbed the shotgun,

he, Shoulders, fired his handgun at Richard F. again. Richard F. believed he was shot by

Shoulders the second time that Shoulders fired at him.

The lead investigator in this case, San Bernardino County Sheriff’s Detective A.S.,

testified that he interviewed Nedd on September 30, 2015. The detective wanted to talk

to Nedd about Tarpley’s death. No further evidence about Nedd’s September 30

interview or Tarpley’s death was adduced.

Detective T.M. also testified about his August 7, 2015 interview with Nedd, in

which Nedd said that he and Shoulders picked up “Booneyard,” and the three of them

returned to the apartment after Shoulders had seen that Richard F. had a shotgun. When

asked whether he had been able to determine Booneyard’s identity, the detective said he

had not, but other detectives on his team had discovered Booneyard’s identity. No

further evidence about Booneyard was adduced, and no evidence showed that Booneyard

was Tarpley. In a first amended information filed on March 7, 2016, the People alleged

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in counts 1 through 4 (the murder, attempted murder, and two robbery counts) that each

defendant personally used a firearm (§ 12022.53, subd. (c)), and that each defendant

personally discharged a firearm proximately causing great bodily injury or death

(§ 12022.53, subd. (d).)

2. Defendants’ First Brady Motion

On April 20, 2016, Shoulders filed a motion to dismiss the information or the

firearm allegations, based on section 995 and the prosecution’s alleged Brady violation in

failing to turn over a September 29, 2015 ballistics report until March 15, 2016. (Stanton

v. Superior Court (1987) 193 Cal.App.3d 265, 269-271 [Brady obligation to disclose

material evidence favorable to the defense applies to preliminary hearings; breach of

prosecution’s Brady obligation in connection with a preliminary hearing can be raised in

a nonstatutory motion to dismiss]; People v. Gutierrez (2013) 214 Cal.App.4th 343, 348-

349 [same].) Nedd joined the motion.

The ballistics report showed that all of the bullet casings found at the crime scene,

with exception of one shotgun shell, were fired from the same, unknown weapon.

Shoulders’s previous counsel had specifically asked the prosecution for the ballistics

report, but it was not provided to the defense until March 15, 2016, after the February 29,

2016 preliminary hearing. Shoulders’s counsel argued that the ballistics report was

material, both because it impeached Richard F.’s August 7, 2015 interview statements

and because it was exculpatory of Shoulders in that it indicated that Shoulders was not

armed with a handgun and did not shoot Richard F.

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 As stated, Richard F. testified at the preliminary hearing that the dark-skinned man

was armed and fired a handgun, but he was unsure whether Shoulders or Nedd were

armed, except for when Shoulders grabbed Richard F.’s shotgun. During his earlier,

August 7, 2015 interview, Richard F. said that both Shoulders and the cohort were armed

with Glock-type handguns, both of them fired their handguns, and Shoulders was the one

who shot him. Shoulders’s counsel argued that the ballistics report, together with

Richard F.’s preliminary hearing testimony, showed that the “unknown dark-skinned

African American male . . . fired [all of the] shots from the handgun.” Thus, Shoulders’s

counsel argued that Shoulders was deprived of his due process rights at the preliminary

hearing because he was unable to impeach Richard F.’s August 7 statements with the

ballistics report.

On May 4, 2016, the prosecution filed an opposition to the motion, including a

declaration from the preliminary hearing and trial prosecutor, J.W. J.W. explained that

the case was originally assigned to another prosecutor, T.H., around August 11, 2015,

and was reassigned to J.W. on January 26, 2016. J.W. received the case file on January

29, and he did not learn of the ballistics report until March 9, when Shoulders’s counsel

asked him whether it existed or had been completed. At that time, J.W. asked the case

agent and lead investigating officer, Detective A.S., to look into the ballistics report. On

March 15, J.W. received the ballistics report and provided it to the defense.

In its opposition, the prosecution argued that the ballistics report was not material,

at least for purposes of the preliminary hearing, because the handgun from which all of

the shell casings were fired was not found, and the ballistics report did not show that

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Shoulders was not the person who fired all of the shots from that unknown handgun.

Alternatively, the prosecution argued that Shoulders could have fired a revolver, which

would not have emitted shell casings, or he could have fired a second handgun and

picked up all of the shell casings emitted from that handgun. The number of recovered

shell casings also approximated the number of shots that Richard F. claimed were fired

during his August 7 interview. Thus, the prosecution argued, the ballistics report would

not have affected the outcome of the preliminary hearing.

At an assignment calendar conference on May 6, 2016, the parties announced they

were ready for trial, and the trial date was confirmed for May 9. On May 9, Shoulders’s

counsel filed a supplemental declaration in support of her motion to dismiss the

information or the firearm allegations. Shoulders’s counsel explained she had made

multiple requests to J.W. “for any information regarding the death of Rayvon Tarpley,

who some evidence indicates could be the unknown short, bald black male described by

[Richard F.] at the preliminary hearing as the shooter.” Tarpley died of a self-inflicted,

accidental gunshot wound on September 22, 2015. In December 2015, T.H. provided

defense counsel with discovery, but that discovery did not include any recordings or

police reports concerning any interviews with a witness named Glen Blackman.

Shoulders’s counsel further explained that J.W. had looked into the matter of the

Tarpley death investigation, law enforcement officers had indicated to J.W. that there

may be recordings of Blackman interviews, and counsel had asked J.W. for those

recordings. Shortly after the preliminary hearing, Shoulders’s counsel and J.W. met in

J.W.’s office and watched part of a video recording of a Nedd interview in which

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detectives told Nedd that Tarpley had “made statements about his culpability in the

charged offenses.” J.W. believed this information about Tarpley making inculpatory

statements about his involvement in the August 6, 2015 incident could have been a lie or

a ruse, but he texted a detective about the issue and said he believed that any interviews

regarding Tarpley were conducted by detectives who were not involved in the

investigation of the August 6 incident.

On May 5, 2016, J.W. went to “the homicide office” and asked for all of the

discovery law enforcement officers had on their computers concerning this case. On May

6, J.W. gave the defense “a large amount of discovery” that he had obtained from the

homicide office on May 5. “Most notably,” Shoulders’s counsel continued, the May 6

discovery included a folder of audio interviews conducted by Detective T.M., including a

never-before disclosed audio-recorded interview of Blackman. 13 In this Blackman

interview, Blackman said that Tarpley showed him a news article about the August 6,

2015 shootings in this case and, in reference to the article, said over and over again that

he had “ ‘fucked up’ ” and “ ‘had to shoot someone.’ ” The defense had not received any

contact information for Blackman. Shoulders counsel argued that Tarpley’s statements to

Blackman, together with the ballistics report, showed that Shoulders never used nor

discharged a firearm in this case.

13 Shoulders’s counsel also explained that, as she was continuing to review the
May 6 discovery on Sunday, May 8, 2016, she “came across another September
interview” of Blackman, conducted by Detective A.S. It was later shown that Detectives
A.S. and T.M. did not separately interview Blackman; they interviewed Blackman
together on September 23, 2015.

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 On Monday, May 9, 2016 the court (Hon. Lisa M. Rogan) found a Brady violation

in the prosecution’s failure to timely turn over the ballistics report and the Blackman

interview before the preliminary hearing, and it granted defendants’ dismissal motion in

part by dismissing the firearm allegations as a remedy for these Brady violations. The

court reasoned that no evidence adduced at the preliminary hearing showed that Nedd had

used or discharged a firearm in the commission of the robberies at Richard F.’s

apartment, and the subsequently produced ballistics report and Blackman interview

showed that Shoulders also did not use or discharge a firearm.

Pretrial proceedings continued on May 10, 2016. In discussing a motion in limine

to exclude Nedd’s September 30, 2015 interview statements, J.W. explained that Nedd

claimed in his August 7 interview that he did not know Booneyard, but during a second,

September 30 interview, Nedd admitted that Booneyard was Tarpley and that Tarpley

was Nedd’s brother-in-law. Shoulders’s counsel added that, according to Detective

A.S.’s recently disclosed police report about the Blackman interview, Tarpley told

Blackman that he, Tarpley, did not know Shoulders.

On May 10, 2016, the court (Hon. Victor R. Stull) found a second Brady violation

in the prosecution’s failure to timely turn over portions of the detectives’ August 7, 2015

interview with Shoulders, in which Shoulders denied he was at Richard F.’s apartment on

August 6. As a remedy for this Brady violation, the court ruled that the prosecution could

not use any of Shoulders’s August 7 interview statements, including for impeachment

purposes if Shoulders testified.

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 As a remedy for the late disclosure of the Blackman interview, J.W. offered to

stipulate to the admission of Tarpley’s statements to Blackman, through Detective A.S.’s

trial testimony about his September 23 interview with Blackman. The court pointed out

that this stipulation would “serve justice and that’s what I’m interested in.” But

Shoulders’s counsel argued that the charges should be dismissed based on the

prosecution’s Brady error in failing to timely disclose the Blackman interview. The court

expressly found that the prosecution committed a Brady violation in failing to timely

disclose the Blackman interview but directed the parties to brief whether a dismissal of

the charges, with prejudice, was an appropriate sanction for this Brady violation.

3. The Second Brady Motion

On May 11, 2016, Shoulders’s counsel filed a second or supplemental Brady

motion to dismiss the charges, with prejudice, based on the prosecution’s failure to

disclose the Blackman interview until May 6. Nedd joined the motion. In this motion,

Shoulders’s counsel explained that, as she was continuing to review the May 6 discovery

during the afternoon of May 9, she found a police report concerning Detective A.S.’s

September 23, 2015 interview with Blackman. The report indicated that Tarpley also

told Blackman that he, Tarpley, “hoped the guy who already had been arrested” did not

“tell on” Tarpley, and that “ ‘the male the police had to “catch” just ran.’ ” Tarpley also

told Blackman that he shot “ ‘the dude in the ribs.’ ” The May 6 discovery also revealed

that three detectives involved in investigating the August 6 incident, Detectives J.L., T.M.

and A.S., were involved in interviewing Blackman. Detective J.L. had investigated

Tarpley’s death. On May 9, Detective A.S. gave Nedd’s counsel two addresses and a

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phone number for Blackman, but Nedd’s defense investigator had since been unable to

locate Blackman.

On May 17, 2016, the prosecution filed an opposition to the May 11 Brady

dismissal motion. The opposition stated the People were “already humbled and regretful

for the two negligent Brady errors found so far”—for the late disclosures of the ballistics

report and portions of the August 7 Shoulders interview—and admitted a “third discovery

error—late disclosure of the Glenn Blackman interview.” The prosecution claimed that

the late disclosure of the Blackman interview was not a Brady violation and, even if it

was, California law did not permit a case to be dismissed with prejudice as a remedy for

the violation, under the circumstances.

With supporting declarations from J.W., T.H., and Detective A.S., the prosecution

explained why it failed to timely disclose the Blackman interviews: Different “DR” case

numbers and different investigating teams were assigned to the Tarpley death

investigation and the Julian K. murder investigation, and the reports for the two

investigations were not cross-referenced to each other. Detectives J.L and S.T. were

assigned to investigate Tarpley’ September 22, 2015 death. Detective J.L.’s September

29, 2015 report for the Tarpley death investigation did not include any written witness

statements and was not cross-referenced to the “DR” case number for Julian K.’ s

murder.

Detective J.L. interviewed Blackman on September 23, 2015, as part of the Tarpley

death investigation. Later the same day, Detectives T.M. and A.S., who were

investigating Julian K.’s murder, contacted Blackman and interviewed him together. In

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this interview, Blackman reiterated that Tarpley told Blackman that Tarpley had “

‘fucked up’ ” and “ ‘had to shoot someone’ ” during the August 6, 2015 incident at

Richard F.’s apartment. Detective A.S. wrote a supplemental report about his and

Detective T.M.’s September 23 Blackman interview for the Julian K. murder

investigation.

Detective A.S. forwarded his supplemental report to the original prosecutor, T.H.,

together with the detective’s September 23 Blackman interview, as attachments to a

December 8, 2015 e-mail to T.H. T.H. received the e-mail during her lunch break on

December 8, but she did not recall reading the attachments, she forgot about the e-mail,

and she did not “process” the e-mail “into discovery” in this case, print the e-mail, or

save the e-mail to her computer files related to this case. T.H. also did not provide any of

the Blackman-related discovery to J.W. when the Julian K. case was reassigned to J.W. in

January 2016.

When asked by Nedd’s counsel in April 2016 for further discovery concerning the

Tarpley death investigation, J.W. asked Detective A.S. for the “Tarpley death reports” or

“Tarpley death interviews,” and Detective A.S. gave J.W. a report from the Tarpley death

investigation. But this report did not contain any Blackman interviews. “Only when

[J.W.] obtained a thorough harvesting of [Detective A.S.’s] computer on May 5 and 6,

2016, did [J.W.] first obtain a report of [Detective A.S.’s] Blackman interview.” Because

Detective A.S. had provided this information to T.H. in December 2015, Detective A.S.

thought that J.W. had the Blackman interview and was asking for “Tarpley death

materials.”

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 Nedd’s defense investigator, S.S., spoke with Blackman by telephone on

May 9, 2016. S.S. drove to an address in Adelanto, which the prosecution had provided

as Blackman’s last known address. There, S.S. spoke with Blackman’s uncle, who

confirmed that Blackman had lived there but had moved away shortly after Tarpley’s

death. Later that evening, Blackman called S.S. by telephone, but S.S. did not record the

conversation.

During their May 9, 2016 conversation, Blackman told S.S. that he did not know

anything about the Julian K. case and claimed that Tarpley’s statements to him were

about something that Tarpley had done several months before the August 6, 2015

incident. Blackman agreed that S.S. could call him the next day and record the interview.

But when S.S. called and spoke to Blackman on May 12, Blackman was “evasive” and

continued to say that Tarpley had been talking about another incident. Blackman also

told S.S. that he did not want to testify in the Julian K. case because he did not know

anything about it. He also told S.S. that he was living in different places in Riverside and

was working at an auto parts store in Riverside. But the parties soon discovered that

Blackman had never worked at the auto parts store.

Based on Blackman’s reluctance to testify, the People argued in its opposition that

the charges should not be dismissed as a remedy for its untimely disclosure of the

Blackman interviews. The People argued that they had not “suppressed” the Blackman

interviews because they disclosed them before trial and, in any event, the late disclosure

did not prejudice defendants. Given Blackman’s unwillingness to testify, the People

argued there was “no guarantee or even likelihood” that, if Blackman were found, he

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would testify “beneficially, completely, or truthfully for either defendant.” And, even if

Blackman testified truthfully, defendants would still be liable for Julian K.’s murder

under a (then-applicable) felony-murder theory. The People further argued that the case

law did not support dismissing the charges, with prejudice, under these circumstances.

The People were still trying to locate Blackman in order to serve him with a subpoena to

testify.

On May 17, 2016, Shoulders’s counsel filed a supplemental declaration in support

of her second Brady motion. She stated that the investigating detectives had committed

intentional and flagrant Brady violations in this case. For example, Detective A.S. had

written and turned over a police report, stating there were three sets of latent fingerprints

on the exterior of Nedd’s vehicle, and that those prints belonged to Nedd, Shoulders, and

M.W. But the fingerprint examiner’s report, which was attached to the detective’s report,

stated that four sets of prints were found, and that the fourth set belonged to Tarpley. In

addition, some of Nedd’s September 30, 2015 interview statements to Detective M.F.

concerning Tarpley’s death were omitted from Detective M.F.’s October 1, 2015 report

of that interview. Other discovery omissions were also detailed. Shoulders’s counsel

argued that the investigating detectives’ discovery violations were “egregious and

flagrant” and had “irreparably tainted” Shoulders’s ability to receive a fair trial. Thus,

she asked the court to dismiss the charges.

On May 18, 2016, the court conducted further proceedings on the second Brady

motion. That morning, the prosecution gave the defense additional discovery concerning

the Tarpley death investigation, namely, 25 to 26 audio recordings of witness interviews,

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including approximately four hours of Blackman interviews. Shoulders’s counsel noted

that the prosecution had produced a lot of discovery since the parties announced ready for

trial on May 6, and that there had been “partial police reports, police reports that were

never written, [and] audios that cut off.” She argued that the People and the detectives

had been reckless in honoring their discovery obligation, and that dismissing the charges,

with prejudice, was the appropriate remedy for their third Brady violation in failing to

timely produce all discovery concerning the Blackman interviews. The People conceded

there had been “misunderstandings” and “a lack of coordination” between the prosecution

and the detectives but argued that none of the discovery violations were intentional and,

in any event, the case law did not allow a dismissal with prejudice as a remedy for a

pretrial Brady violation.

On May 18 and 19, 2016, the court heard extensive testimony from T.H., Detective

M.F., and Detective A.S. concerning the various items of late discovery, including the

Blackman interviews. All of this testimony showed that the detectives and the

prosecution did not intentionally withhold any discovery.

Regarding the Blackman interviews, Detective A.S. explained that he learned of the

Tarpley death investigation on September 23, 2015. He notified his sergeant that Tarpley

was a possible suspect in the Julian K. murder because Tarpley’s fingerprints had been

found on Nedd’s vehicle. He contacted the detectives involved in the Tarpley death

investigation and told them that Tarpley was a suspect in the Julian K. case. After these

detectives told him that Tarpley had made some incriminating statements to Blackman,

Detectives A.S. and T.M. interviewed Blackman, and Detective A.S. wrote a report about

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the interview for the Julian K. murder investigation. Detective A.S. sent his report and

the Blackman interview to T.H. on December 8, 2015.

Detective A.S. further testified that J.W. came to the detective’s office on

May 5, 2016 and asked for all discovery related to the Julian K. case. On May 5-6, the

detective gave J.W. several discs which included an audio of the detective’s September

23, 2015 Blackman interview. Around May 6-8, 2016, the detective and J.W. compared

the contents of their evidence binders in the Julian K. case, “page by page.” The

detective then realized that J.W. did not have a copy of the detective’s report of his

September 23 Blackman interview, or the Blackman interview, in J.W.’s evidence binder.

On May 9, J.W. made a copy of the detective’s report of the Blackman interview from the

copy in the detective’s evidence binder.

On May 19, 2016, after T.H. and Detectives M.F. and A.S. testified, the court heard

arguments from counsel. The court agreed that the Blackman interview was material, and

the focus turned to the appropriate remedy for its late disclosure. Shoulders’s counsel

argued that the only appropriate remedy was to dismiss the charges with prejudice

because defendants could no longer receive a fair trial given Blackman’s unavailability to

testify for the defense. But Shoulders’s counsel could not point to a case in which the

charges were dismissed, with prejudice, for a Brady violation that was discovered before

trial; the Brady cases generally dealt with material evidence that had not been disclosed

until during trial.

The prosecution argued that, although the case involved “a pile up of discovery

negligence,” none of the discovery violations had been malicious or flagrant; rather, they

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had all been inadvertent, and the prosecution and the detectives had tried to remedy them

as soon as they knew about them. The prosecution also emphasized that Tarpley’s

statements to Blackman were not exculpatory of defendants because they did not absolve

defendants of liability for Julian K.’s murder based on a felony-murder theory. The

prosecution also argued that any prejudice the defense would suffer due to Blackman’s

unavailability was not attributable to the prosecution’s late disclosure of the Blackman

interview. Blackman was “actively avoiding” the case; thus, it was not reasonably

probable that he would be cooperating with the defense even if the defense could locate

him.

The court ruled that it was inappropriate to dismiss the charges with prejudice

because, although the discovery violations had been negligent and “disturbing,” they

were not “flagrant” or “grossly shocking.” The court then granted the People’s motion to

dismiss the first amended information, without prejudice, and to immediately file a felony

complaint alleging the same charges. On May 19, 2016, the People dismissed the first

amended information, without prejudice, and filed a felony complaint alleging the same

charges. Following a second preliminary hearing, the People filed a new information on

June 21. A new trial date was confirmed for July 26.

4. The Third Brady Motion

On July 26, 2016, Shoulders’s counsel filed a third Brady motion to dismiss the

charges. In addition to the previously delayed discovery, counsel explained that she had

received several additional items of delayed discovery shortly after the case was refiled,

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and that her office had served Blackman with a subpoena, but he failed to show up in

court and had disappeared. Nedd joined the motion.

At a hearing on the motion, Shoulders’s counsel advised the court that she had

received all additional discovery by June 9, 2016. It included a supplemental report of an

interview of Richard F. conducted on June 7; a “We Tip” report in which someone called

the police on August 7, 2015, implicating two suspects other than defendants in the

August 6, 2015 shootings; and a report regarding the firearm Tarpley used to shoot

himself. Counsel’s main concern was that she still could not find Blackman. She argued

that, because Blackman was interviewed in September 2015 after Tarpley shot himself,

he may have been available to the defense had the defense known of him at that time.

Moreover, in February 2016, Blackman gave an address to the Department of Motor

Vehicles where a relative of his lived, and the defense may have been able to locate him

at that time but for the prosecution’s late disclosure of his identity.

The prosecutor responded that the People had already been sanctioned for their

discovery violations by the dismissal of the first amended information, without prejudice,

which had given the parties plenty of additional time to find Blackman. Further, on

July 1, 2016, a defense investigator spoke with Blackman over the telephone. Also, in

July 2016, the investigator tried to serve Blackman at an address in Adelanto with a

subpoena to appear a trial. When the investigator knocked on the door, he could hear

movement, but no one answered. Thus, the prosecutor argued, there was nothing to

indicate that Blackman would have been more cooperative had the defense tried to secure

his appearance at trial any sooner. The prosecutor added that his office had tried every

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possible means available to find Blackman. For several days, bureau of investigations

personnel had surveilled his last known address, and SWAT and homicide detectives had

also looked for him. The court continued the matter for further consideration.

When the discussion resumed, Shoulders’s counsel detailed several documents she

had received between May 19 and June 2, 2016: (1) additional interviews of Blackman,

(2) discovery related to the Tarpley death investigation, (3) the “We Tip” report, (4) a

new report regarding Shoulders’s interview, (5) additional audio of that interview, and

(6) a police report regarding an interview with one of Julian K.’s neighbors, T.S., in

which T.S. stated that she saw a bald man (the cohort) with his hand extended toward

Julian K. when Julian K. was shot. The prosecutor again explained the reasons for the

earlier delays, as set forth in his pleadings and at the evidentiary hearing.

Regarding the new discovery material, the prosecutor stated that after the case was

dismissed, he sent an e-mail to law enforcement, again asking them for all of the

discovery in the case and to contact other witnesses so the defense had full discovery.

When the prosecutor received the new evidence binders from law enforcement, they

contained 33 or more compact discs. The additional recordings regarding Blackman were

never on the sheriff’s department’s shared drive; they were only filed under the Tarpley

investigation. Shoulders’s interview was reconstructed based on a second set of

recordings that the interviewing detective acquired from another officer. The prosecutor

received those recordings after the May 19, 2016 dismissal of the information, and turned

them over to the defense. Additional reports were written and included with the new

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discovery because the detectives listened to every possible recording and wrote reports

regarding each of them.

The court denied the renewed Brady motion to dismiss the charges. The court

stated that any delayed disclosure was negligent but did not come “anywhere close to . . .

flagrant” misconduct nor did it constitute “outrageous government conduct.” Regarding

Blackman, the court noted it had already provided a remedy by dismissing the firearm

allegations against defendants. Although the recent efforts to locate Blackman were

unsuccessful, there was nothing to indicate that, had the defense learned of Blackman’s

existence earlier, he would have been found and cooperated with the defense. Because

there was no link between the delay in disclosing the Blackman interviews and

Blackman’s disappearance, the court concluded there was no basis for a dismissal with

prejudice for the alleged Brady violation in failing to earlier disclose Tarpley’s statements

to Blackman and Blackman’s identity.

5. The Motion to Dismiss Based on the Prosecution’s Alleged Sixth Amendment

Violation for Failing to Earlier Disclose Tarpley’s Statements to Blackman

Around one week later, Shoulders’s counsel filed a separate motion to dismiss the

charges on the ground Shoulders was denied his Sixth Amendment right to due process

and a fair trial based on the prosecution’s delay in disclosing the Blackman interviews.

The motion focused on the prosecution’s delayed disclosure of Tarpley’s statements to

Blackman. In a supporting declaration, Shoulders’s counsel reiterated the circumstances

surrounding the prosecution’s delay in disclosing the Tarpley/Blackman information and

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stated that neither the defense nor the prosecution had been able to locate Blackman to

secure his testimony for trial.

In a written opposition, the prosecutor recounted the procedural history regarding

the Blackman interview discovery error. The prosecutor added that after he refiled the

case, he again gave the defense records containing contact information for Blackman and,

on June 2, 2016, provided a supplemental copy of all discovery. Defense investigators

for both Shoulders and Nedd spoke with Blackman in May 2016, and Shoulders’s

defense investigator had another conversation with him on July 1. In that conversation,

Blackman asked the defense investigator why he was being subpoenaed and then hung up

on him. Thus, the defense had the benefit of statements Blackman made to investigators

in May. Moreover, during those interviews, Blackman was dishonest about his current

location, residence, and place of employment, and he refused to comply with a subpoena.

The prosecution made its own attempts to locate Blackman but was unsuccessful. Thus,

Blackman’s absence was not attributable to action on the part of the government but,

rather, to Blackman’s own unwillingness to cooperate.

At an evidentiary hearing on the motion, Detective A.S. recounted the details of the

interview he had with Blackman on September 23, 2015—the night after Tarpley shot

himself to death—and the fact that he provided the interview to T.H. in December 2015.

He also testified to the confusion surrounding the prosecutor’s many requests for the

“Tarpley death investigation,” and the discovery of that confusion when he and the

prosecutor were comparing their evidence binders before trial on May 6, 2016. He

further testified that, after the case was dismissed and refiled, he provided a new binder to

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the prosecutor. It included compact disks and an investigative report of the Blackman

interview, which contained a confidential witness address and information page. The

detective tried to find additional contact information for Blackman. He had members of

the specialized enforcement division conduct surveillance at locations Blackman was

known to frequent. After Blackman told a defense investigator that he worked at an auto

parts store in Riverside, the detective had the sheriff’s department attempt to locate

Blackman at the auto parts store, but sheriff’s deputies learned he had never worked

there. To the detective’s knowledge, no member of law enforcement had been able to

contact Blackman since his interview on September 23, 2015.

Detective J.L., who interviewed Blackman in connection with the Tarpley death

investigation, testified that there were two interviews of Blackman—one on

September 22, 2015 and another on September 23. It was during the September 23

interview that Blackman made the statements regarding his conversation with Tarpley.

Blackman was reluctant to talk to the detective but admitted he had been dishonest in

some respects, and Blackman asked the detective not to put the interview “on paper.”

The detective did not arrest Blackman and did not write a report because separate

interview reports are not prepared in death investigations when the death did not occur

under suspicious circumstances. At the time of the interview, the detective had an

address and cell phone number for Blackman. But the detective did not think he would

need to talk to Blackman again about Tarpley’s death.

After extensive argument by counsel, the court denied the renewed motion to

dismiss the newly filed, May 19, 2016 information. The court reasoned there was no

38
relationship between Blackman’s disappearance or unavailability for trial and law

enforcement’s discovery delays that would impose a duty upon law enforcement to

ensure that Blackman was available for trial. Further, although Blackman’s testimony

was important or material to the defense, it was doubtful that Blackman would have

appeared in court if he had been served with a subpoena earlier. Finally, the defense had

had Blackman’s contact information since May 6, 2016, which gave the parties ample

time to locate Blackman if that were possible. Thus, the court found there was no due

process violation warranting dismissal of the charges with prejudice.

B. Defendants’ Claims of Brady Error

1. Legal Principles and Standard of Review

“The Brady rule is based on the requirement of due process. Its purpose is . . . to

ensure that a miscarriage of justice does not occur.” (United States v. Bagley (1985)

473 U.S. 667, 675.) “Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution

has a [Fourteenth Amendment] constitutional duty to disclose to the defense material

exculpatory evidence, including potential impeaching evidence.” (People v. Superior

Court (Johnson) (2015) 61 Cal.4th 696, 709.) The prosecution’s duty of disclosure

extends to evidence “known only to police investigators” (Kyles v. Whitley (1995)

514 U.S. 419, 437-438) and is not contingent upon whether the defense requests the

evidence. (United Sates v. Agurs (1976) 427 U.S. 97, 107; In re Brown (1998) 17 Cal.4th

873, 879.) “[T]he suppression of evidence that is materially favorable to the accused

violates due process regardless of whether it was intentional, negligent, or inadvertent.”

(In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.)

39
 But “the prosecutor will not have violated his constitutional duty of disclosure

unless his omission is of sufficient significance to result in the denial of the defendant’s

right to a fair trial.” (United States v. Agurs, supra, 427 U.S. at p. 108.) “[A]lthough ‘the

term “Brady violation” is sometimes used to refer to any breach of the broad obligation to

disclose exculpatory evidence—that is, to any suppression of so-called “Brady

material” ’—‘strictly speaking, there is never a real “Brady violation” unless the

nondisclosure was so serious that there is a reasonable probability that the suppressed

evidence would have produced a different verdict.’ ” (People v. Superior Court (Meraz)

(2008) 163 Cal.App.4th 28, 51, quoting Strickler v. Greene (1999) 527 U.S. 263, 281-

282; accord, People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)

“There are three components of a true Brady violation: the evidence at issue must

be favorable to the accused, either because it is exculpatory, or because it is impeaching;

the evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.” (Strickler v. Greene, supra, 527 U.S. at p. 282; People

v. Salazar, supra, 35 Cal.4th at p. 1043.) Thus, there is no true Brady error unless there

is also resulting prejudice. (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7; see United

States v. Bagley, supra, 473 U.S. at p. 678.)

“Prejudice, in [the Brady] context, focuses on ‘the materiality of the evidence to the

issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a

showing that the suppressed evidence would have been admissible [citation], that the

absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using

the suppressed evidence to discredit a witness’s testimony ‘might have changed the

40
outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable

probability of a different result.” ’ ” (People v. Salazar, supra, 35 Cal.4th at p. 1043.)

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome of the proceedings.” (People v. Jenkins (2000) 22 Cal.4th 900, 954.)

We review claims of Brady error de novo. (People v. Salazar, supra, 35 Cal.4th at

p. 1042.) Our de novo review extends to conclusions of law and mixed questions of law

and fact related to the claim of Brady error, but the trial court’s findings of fact are

entitled to great weight if supported by substantial evidence. (Ibid.)

2. Analysis

Defendants claim that the prosecution committed Brady error in failing to timely

disclose “the Tarpley/Blackman information,” that is, Tarpley’s statements to Blackman

that Tarpley “fucked up” and “had to shoot someone” at Richard F.’s apartment on

August 6, 2015. We agree that the Tarpley/Blackman information was favorable to

defendants, but we also conclude that the prosecution’s failure to disclose the information

until May 6, 2016 was not prejudicial to defendants.

The information was favorable to the defense for two reasons: it tended to impeach

Richard F.’s pretrial statements and February 2016 preliminary hearing testimony, and it

was exculpatory of defendants’ intent to shoot and kill anyone. (Strickler v. Greene,

supra, 527 U.S. at pp. 281-282; Comstock v. Humphries (9th Cir. 2015) 786 F.3d 701,

708 [“[W]hether evidence is favorable is a question of substance, not degree, and

evidence that has any affirmative, evidentiary support for the defendant’s case or any

impeachment value is, by definition, favorable.”].) The information tended to impeach

41
Richard F.’s August 7, 2015 statement that only two people were involved in the

robberies and shootings because it showed that three people were involved. It was also

impeaching of Richard F.’s February 2016 preliminary hearing testimony that Shoulders

was the person who shot Richard F. because it indicated that Tarpley was the only

shooter.

The information was exculpatory because it tended to show that defendants and

Tarpley did not have a prearranged plan, or engage in any conspiracy, to shoot and kill

anyone at Richard F.’s apartment. Thus, the information tended to show that defendants

did not directly aid and abet Tarpley in committing the murder of Julian K. or the

attempted murder of Richard F. (Gentile, supra, 10 Cal.5th at p. 850 [A direct aiding and

abetting theory requires that the aider and abettor “know and share the murderous intent

of the actual perpetrator.”].)

Still, the information was not material to either defendant’s guilt of the charged

offenses, and its absence at trial did not prejudice either defendant. Defendants were

convicted of (1) the first degree residential robberies of Julian K. and Richard F. (counts

3 & 4); (2) the first degree murder of Julian K. (count 1), based on alternative theories of

felony murder (the murder occurred during the commission of a robbery), and that the

murder was a natural and probable consequence of either a robbery or a first degree

residential burglary; and (3) the attempted murder of Richard F. (count 2), based on the

theory that the attempted murder was a natural and probable consequence of a robbery.

At trial, the prosecution did not claim that either defendant shot Julian K. or

Richard F., or that either defendant personally used or personally discharged a firearm in

42
the commission of the robberies. Richard F. testified that he did not see a gun in Nedd’s

hand when Nedd ran into the apartment, and he also did not see that Shoulders had a gun

other than when Shoulders wrestled Richard F.’s shotgun from Richard F.’s hands. All

of the trial evidence showed that the cohort, Tarpley, who was referred to at trial as “the

bald man,” shot and killed Julian K. and shot and wounded Richard F. The Tarpley/

Blackman information was consistent with, but would have added nothing material to, the

trial evidence because it also showed that Tarpley was the only shooter.

Thus, if presented at trial, the Tarpley/Blackman information would not have “put

the whole case in such a different light as to undermine confidence in the verdict[s].”

(Kyles v. Whitley, supra, 514 U.S. at p. 434-435.) Defendants were properly convicted in

counts 1 through 4 based on the applicable law at the time of trial in 2016. Ample

evidence showed that defendants and Tarpley went to the apartment with the intention of

robbing its occupants of the marijuana, the shootings occurred during the commission of

the robberies, and the shootings were a natural and probable consequence of the

robberies. Indeed, after Shoulders left the apartment the first time and told Nedd that

Richard F. had a shotgun, defendants picked up Tarpley and returned to the apartment

with Tarpley, who was armed with a handgun. Neither defendant tried to stop Tarpley

when he walked into the apartment, holding a handgun to Julian K.’s ribs. Additionally,

Tarpley’s statement to Blackman that he “fucked up” and “had to shoot someone”

arguably supported the prosecution’s theory that defendants conspired with Tarpley to

rob the apartment’s occupants of the marijuana.

43
 Defendants maintain that the Tarpley/Blackman information was material and that

its late disclosure on May 6, 2016 was prejudicial to them. They argue it is reasonably

probable that the defense would have been able to “statementize” Blackman and secure

his testimony at trial, if the Tarpley/Blackman information had been provided to the

defense in October 2015, when other discovery was provided, or before the February

2016 preliminary hearing. They argue it is speculative to assume that Blackman would

not have cooperated with the defense, had the defense known about him and been able to

subpoena him before February 2016. They point out that materiality, in the Brady

context, “includes consideration of the effect of the nondisclosure on defense

investigations and trial strategies.” (People v. Maciel (2013) 57 Cal.4th 482, 551.)

Again, however, the Tarpley/Blackman information was neither material to either

defendant’s guilt of the charged offenses nor prejudicial to the juries’ verdicts. Thus,

there was no true Brady error or violation in the prosecution’s failure to earlier disclose

the Tarpley/Blackman information.

Lastly, defendants claim that United States v. Chapman (9th Cir. 2008) 524 F.3d

1073 (Chapman) requires reversal of their convictions. The Chapman court upheld the

district court’s dismissal of an indictment as the only appropriate remedy for the

prosecutor’s “flagrant” Brady violations during trial and as a proper exercise of the

district court’s discretionary supervisory powers. (Id. at pp. 1084-1088 & fn. 5.) The

prosecutor in Chapman failed to turn over material impeachment evidence to the defense

until after the government’s witnesses had testified at trial and were excused; then the

prosecutor lied to the district court that he had given the impeachment evidence to the

44
defense before trial when in fact he had not. (Id. at pp. 1078-1080.) The district court

found that the prosecutor acted “ ‘flagrantly, willfully, and in bad faith,’ ” that the

defendants would be prejudiced by a new trial, and that no lesser sanction than dismissal

could adequately remedy the harm done. (Id. at p. 1084.)

In upholding the dismissal order, the Chapman court noted that the defendants had

been prejudiced by the prosecutor’s conduct, and that the district court did not abuse its

discretion in concluding that dismissal was the only appropriate remedy. (Chapman,

supra, 524 F.3d at p. 1087.) The district court “considered and properly rejected” the

government’s argument that a mistrial was an adequate remedy for the prosecutor’s

discovery violations because a retrial of the charges would “advantage the government”

by allowing it to “salvage what the district court viewed as a poorly conducted

prosecution.” (Ibid.)

Defendants argue that the prosecution’s multiple Brady errors here, like the Brady

errors in Chapman, were “flagrant” and, as such, merit reversal and dismissal of

defendants’ cases. We disagree. The dismissal of charges as a sanction for prosecutorial

misconduct or Brady errors is a “ ‘drastic’ ” and “ ‘disfavored’ ” remedy in the federal

courts. (People v. Uribe (2011) 199 Cal.App.4th 836, 880-881; United States v. Jacobs

(9th Cir. 1988) 855 F.2d 652, 655.) The federal courts’ supervisory powers doctrine has

no application in our state courts (People v. Uribe, at p. 879); but, even if it did, the facts

of this case do not justify a dismissal.

The dismissal remedy is proper in the federal courts only if: (1) the Brady errors

were “ ‘flagrant,’ ” (2) the Brady errors resulted in substantial prejudice to the defendant,

45
and (3) no lesser sanction would cure the prejudice. (See United States v. Jacobs, supra,

855 F.2d at p. 655; People v. Uribe, supra, 199 Cal.App.4th at pp. 879-881.) These

factors were present in Chapman but are not present here. Here, the trial court found, and

substantial evidence shows, that the prosecution’s various Brady errors were negligent

but not “flagrant.” And, for the reasons explained, defendants were also not prejudiced

by the late disclosure of the Tarpley/Blackman information, the only late discovery that

defendants claim was material to their defense. Lastly, the dismissal of the firearm

allegations, before trial, remedied any prejudice that the late disclosure of the

Tarpley/Blackman information could have caused defendants.

C. Defendants’ Additional Due Process Claim

Defendants further claim that the trial court erroneously denied their separate

motion to dismiss the charges based on the prosecution’s alleged violation of their Sixth

Amendment rights to confront and cross-examine witnesses, and “to have compulsory

process of obtaining witnesses in [their] favor.” (U.S. Const., Amend. 6.) California case

law establishes that, independently of Brady and its progeny, when the prosecution has

wrongfully deprived a defendant of the opportunity to secure the presence of a “material”

witness whose testimony might prove the defendant’s innocence, the defendant is entitled

to a dismissal of the charges. (Bellizzi v. Superior Court of Stanislaus County (1974) 12

Cal.3d 33, 36 (Belizzi); People v. Kiihoa (1960) 53 Cal.2d 748, 754 (Kiihoa); Harris v.

Superior Court (1973) 35 Cal.App.3d 24, 26-27 (Harris).) This principle is based on the

rationale that the prosecution’s conduct in failing to timely disclose the identity of a

material witness, which results in the witness’s unavailability to testify, deprives the

46
defendant of his or her due process right to a fair trial. (Harris, supra, 35 Cal.App.3d at

pp. 26-27.) But this principle or doctrine is limited to situations in which the prosecution

is responsible for the witness’s unavailability. (See Id. at pp. 26-27 and cited cases;

People v. Rance (1980) 106 Cal.App.3d 245, 253-254 (Rance) and cited cases.) Here, the

prosecution is not responsible for Blackman’s unavailability to testify at trial.

Bellizzi illustrates this limitation on the prosecution’s responsibility to secure the

availability of evidence or witnesses material to the defense. The defendant in Bellizzi

was charged with selling heroin to a paid police informant. (Bellizzi, supra, 12 Cal.3d at

p. 35.) Before trial, the prosecution disclosed the name of the informant and made him

available to the defense for pretrial examination, but the prosecution did not disclose the

informant’s address due to a concern for his safety. (Id. at p. 36.) The court granted the

defendant’s motion to dismiss the charges in the interest of justice. (§ 1385; Bellizzi, at p.

36.) Two days later, the prosecution refiled the charges. (Id. at p. 36.)

At the preliminary hearing on the refiled charges, the informant testified that he had

purchased heroin from the defendant at the defendant’s home one evening, and that a

third person, Evans, was present in the home that evening but had temporarily left the

home during the heroin sale. (Bellizzi, supra, 12 Cal.3d at p. 36.) After Evans learned

that the charges against the defendant had been dismissed, Evans “left town” and could

not be located. (Ibid.) The defendant petitioned for a writ of prohibition directing the

trial court to dismiss the refiled charges, arguing that Evans’s unavailability to testify as a

witness at trial would deprive the defendant of his due process right to a fair trial. (Id. at

pp. 36, 38.)

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 The Bellizzi court denied the petition, reasoning that Evans’s unavailability was not

the “ ‘inevitable’ ” result of any action or omission on the part of the People, including

their act of refiling the charges. (Bellizzi, supra, 12 Cal. 3d. at p. 37.) Rather, Evans was

the defendant’s friend, and the defendant was the one who told Evans about the earlier

dismissal of the charges, which ostensibly caused Evans to leave town. (Ibid.) Bellizzi

reasoned that the defendant “had ample opportunity to ascertain Evans’s future plans so

that he [the defendant] could reach [Evans] in the event a trial ultimately were held.”

(Ibid.)

Bellizzi distinguished Kiihoa and Harris as involving the unavailability of police

informants. The informant in Kiihoa was “in contact with, and under the control of, the

prosecution” and in Harris the prosecution did not disclose the informant’s identity until

after the informant had “disappeared.” (Bellizzi, supra, 12 Cal.3d. at p. 37 & fn. 2.)

Bellizzi observed that “[t]he common sense rationale of Kiihoa and Harris, that the

People must bear the responsibility of producing their own agents and informants, is

inapplicable where, as in the instant case, the defendant has ample opportunity to assure

his witness’ presence at trial.” (Id. at p. 37, fn.2, italics added.)

Defendants claim that Kiihoa and Harris are on point and controlling. They argue it

is not determinative that Kiihoa and Harris involved informants who were under the

government’s “ ‘control.’ ” Rather, they argue, “what is determinative is whether the

government’s wrongful conduct, in the words of the Bellizzi court, deprived them of

“ample opportunity to assure” Blackman’s presence at trial. (Bellizzi, supra, 12 Cal.3d at

p. 37, fn. 2.) We agree. Put another way, in cases not involving police informants, “only

48
some impropriety on the People’s part which makes the witness unavailable may result in

dismissal if the defendant would otherwise be deprived of a fair trial.” (Rance, supra,

106 Cal.App.3d at p. 254.)

But under this standard, defendant’s due process claim fails. Defendants had ample

opportunity to secure Blackman’s presence at trial on the refiled information,

notwithstanding the prosecution’s earlier failure to disclose the Tarpley/Blackman

information and Blackman’s identity, last known address, and other contact information

until May 6, 2016. As discussed, the original information was dismissed on May 19 due

to the prosecution’s failure to earlier disclose the Tarpley/Blackman information. Trial

on the new, refiled information was to begin on July 26.

A defense investigator spoke with Blackman on May 12, 13, and July 1, 2016. But

Blackman made it clear to the defense investigator that he did not wish to testify at

defendants’ trial or cooperate with either the defense or the prosecution. Blackman lied

to the defense investigator about his place of employment, ostensibly to throw the

defense off his trail in serving him with a subpoena to testify. He also evaded the

prosecution’s extensive efforts to locate him. Thus, the prosecution’s earlier discovery

failures, including its late disclosure of the Tarpley/Blackman information, did not

deprive defendants of an “ample opportunity” to assure Blackman’s presence at trial.

(Bellizzi, supra, 12 Cal.3d p. 37, fn. 2.) Nor was Blackman’s disappearance the

“inevitable” result of the prosecution’s earlier failure to timely disclose the

Tarpley/Blackman information and Blackman’s identity and contact information. (Id. at

p. 37.) The prosecution’s impropriety in failing to timely turn over the Tarpley/Blackman

49
information did not result in Blackman’s unavailability. (Rance, supra, 106 Cal.App.3d

at p. 254.)

IV. DEFENDANTS’ OTHER CLAIMS OF ERROR

A. Defendants’ Murder and Attempted Murder Convictions in Counts 1 and 2 Must Be

Vacated and the Matter Remanded for a New Trial on Counts 1 and 2

Defendants claim that their convictions for the first degree murder of Julian K. in

count 1 and for the attempted premeditated murder of Richard F. in count 2 must be

reversed and the matter remanded for a new trial on the murder and attempted murder

charges, pursuant to Senate Bill 1437 (2017-2018 Reg. Sess.) and Senate Bill 775 (2020-

2021 Reg. Sess.). The People concede, and we agree, that this claim has merit.

1. Defendants’ Convictions Are Properly Challenged in this Direct Appeal

As we have noted, 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,

supra, 10 Cal.5th at p. 842.) Before Senate Bill 775 was enacted, the Court of Appeal

was split on whether Senate Bill 1437 applied to attempted murder as well as murder,

with some courts holding that Senate Bill 1437 did not apply to attempted murder at all,

others holding that it applied only prospectively to attempted murder, and still others

holding that it applied both prospectively and retroactively to nonfinal attempted murder

convictions. (People v. Harris (2021) 60 Cal.App.5th 557, 565-567, review granted

50
Apr. 21, 2021, S267529; People v. Love (2020) 55 Cal.App.5th 273, 278-279

[summarizing split of authority as of Oct. 1, 2020].)14

But Senate Bill 775 resolved this split of authority by clarifying that Senate Bill

1437 applies to attempted murder and manslaughter as well as murder. (Stats. 2021,

ch. 551, § 1, subd. (a).)15 Senate Bill 775 specifically “[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.” (Ibid.) Senate Bill 775 also amended

section 1170.95 to provide that defendants convicted of murder, attempted murder, or

manslaughter, “whose conviction[s] [are] not final may challenge on direct appeal the

validity of [those] conviction[s] 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.)

14 On November 13, 2019, our Supreme Court granted review in People v. Lopez
(2019) 38 Cal.App.5th 1087 on the question of whether Senate Bill 1437 applied to
attempted murder liability under the natural and probable consequences doctrine (People
v. Lopez (Nov. 13, 2019, S258175) 2019 Lexis 8414) but, following the October 5, 2021
enactment of Senate Bill 775 (Stats. 2021, ch. 551), the court transferred the matter back
to the Court of Appeal, Second Appellate District, Division Seven, with directions to
vacate its decision and reconsider the cause in light of Senate Bill 775 (People v. Lopez
(Nov. 10, 2021, S258175) 2021 Lexis 776).

15 Our Supreme Court held in Gentile that “[t]he ameliorative provisions of
Senate Bill 1437 do not apply on direct appeal to nonfinal convictions obtained before the
law became effective. Such convictions may be challenged on Senate Bill 1437 grounds
only through a petition filed in the sentencing court under section 1170.95.” (Gentile,
supra, 10 Cal.5th at pp. 851-852.) But by expressly authorizing defendants whose
judgments of conviction are nonfinal to seek relief under Senate Bill 1437 on direct
appeal (§ 1170.95, subd. (g), enacted by Stats. ch. 551, § 2), Senate Bill 775 has
abrogated Gentile.

51
 As a bill enacted during a regular legislative session, Senate Bill 775 does not

become effective until January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1).) But, as

the parties agree, Senate Bill 775 necessarily applies to this case because defendants will

not have exhausted their appeal rights from their judgments of conviction and sentence

before January 1, 2022. (In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence

of a contrary legislative intent, “[i]t is an inevitable inference” that the Legislature intends

ameliorative criminal statutes to apply to all cases not final when the statutes become

effective]; People v. Vieira (2005) 35 Cal.4th 264, 306 [For purposes of determining the

retroactive application of ameliorative amendments to a criminal statute, an appeal is not

final until the time has passed for petitioning the United Stated Supreme Court for a writ

of certiorari.]; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [same]; People v. Diaz

(2015) 238 Cal.App.4th 1323, 1336 [“For purposes of the Estrada rule, a judgment is ‘not

final so long as the courts may provide a remedy on direct review . . . .”].)

Thus, defendants may challenge the validity of their murder and attempted murder

convictions in this direct appeal from their nonfinal judgments of conviction and sentence

in counts 1 and 2, pursuant to Senate Bill 1437 as clarified by Senate Bill 775.

(Stats. 2021, ch. 551, § 2.) Defendants are not required to petition the trial court to vacate

their convictions pursuant to section 1170.95 because the legislative history of Senate Bill

775 plainly indicates that the Legislature intended a direct appeal challenge to the validity

of a nonfinal judgment of conviction and sentence for murder, attempted murder, and

manslaughter to be an alternative to filing a section 1170.95 petition. (Assem. Com. on

Public Safety on Sen. Bill No. 775 (2020-2021 Reg. Sess.) amended July 6, 2021 [“[T]his

52
bill: [¶] . . . [¶] (1) (j) [s]tates that a person convicted of murder, attempted murder, or

manslaughter, whose conviction is not final, may challenge the validity of that conviction

on direct appeal rather than via the petition.” (Italics added.)].)16

2. Prejudicial Instructional Error Requires the Vacatur of Defendants’ Murder and

Attempted Murder Convictions and a New Trial on Counts 1 and 2

Defendants were convicted of the first degree murder of Julian K. in count 1 based

on a felony murder theory that is no longer viable following the enactment of Senate Bill

1437. “[T]o amend the felony-murder rule, Senate Bill 1437 added section 189,

subdivision (e): ‘A participant in the perpetration or attempted perpetration of [robbery,

among other qualifying felonies] in which a death occurs is liable for murder only if one

of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person

was not the actual killer, but, with the intent to kill, aided, abetted, counseled,

commanded, induced, solicited, requested, or assisted the actual killer in the commission

of murder in the first degree. [¶] (3) The person was a major participant in the

16 Defendants claim the trial court erroneously denied their motions for a new
trial on counts 1 and 2 based on the changes Senate Bill 1437 made to sections 188 and
189, effective January 1, 2019. The court in People v. Thomas (2021) 64 Cal.App.5th
924, held that persons (like defendants here) who are convicted before but sentenced after
Senate Bill 1437 took effect on January 1, 2019 may challenge the validity of their
convictions in a motion for new trial and are not limited to the “postjudgment retroactive
remedy” of petitioning trial court to vacate their convictions pursuant to section 1170.95.
(Id. at pp. 945-947.) But because Senate Bill 775 allows defendants to challenge the
legal validity of their murder and attempted murder convictions in this direct appeal, it is
unnecessary to address defendants’ claim that the trial court erroneously denied their
motions for a new trial based on Senate Bill 1437. Even if defendants had not moved for
a new trial based on Senate Bill 1437, their challenges to the validity of their murder and
attempted murder convictions are cognizable in this direct appeal from their nonfinal,
August 23, 2019 judgments of conviction and sentence in counts 1 and 2.

53
underlying felony and acted with reckless indifference to human life, as described

in subdivision (d) of Section 190.2.’ ” (Gentile, supra, 10 Cal.5th at p. 842.)

Defendants were not prosecuted as the actual killers of Julian K. Rather, they

were prosecuted in 2018 based on the then-applicable felony murder theory that the

cohort shot and killed Julian K. during defendants’ and the cohorts’ commission of the

robberies of Julian K. and Richard F. and the burglary of Richard F.’s apartment.

(Former § 189.) Had the juries been instructed pursuant to the new felony murder rule,

which was amended effective January 1, 2019 pursuant to Senate Bill 1437 (§ 189, subd.

(e)), they would have been instructed that, in order to convict defendants of first degree

murder of Julian K. in count 1, they had to find that defendants were either 1) the actual

killers, 2) if not the actual killers, that defendants, with intent to kill, aided and abetted

the actual killer (the cohort) in the commission of the murder, or (3) defendants were

major participants in the uncharged burglary or in the robberies of Julian K. or Richard

F., and defendants acted with reckless indifference to human life in committing at least

one of these underlying felonies. (Gentile, supra, 10 Cal.5th at p. 842.)

But the juries were instructed pursuant to the former felony murder rule that they

could convict defendants of the first degree felony murder of Julian K. if they found that

defendants (1) committed or attempted to commit, or aided and abetted, or were members

of a conspiracy to commit robbery or first degree burglary; (2) they intended to commit,

or intended to aid and abet the perpetrator in committing, or intended that one or more

members of the conspiracy commit robbery or first degree burglary; (3) they personally,

or a perpetrator who they aided and abetted or conspired with, committed or attempted to

54
commit robbery or first degree burglary; and (4) while committing or attempting to

commit robbery or first degree burglary the perpetrator (the cohort) caused the death of

another person. (Former § 189; Former CALCRIM No. 540B (2018).) Former

CALCRIM No. 540B also told the juries that, “[a] person may be guilty of felony murder

even if the killing was unintentional, accidental, or negligent.” Thus, the felony murder

instructions allowed the juries to convict defendants of the first degree murder of Julian

K. without finding that defendants acted with reckless indifference to human life in

committing, aiding and abetting, or conspiring to commit the uncharged burglary or

either robbery. (§ 189, subds. (a), (e); 190.2, subd. (d).)17

In count 2, the attempted premeditated murder count, the juries were instructed on

two alternative legal theories: 1) direct aiding and abetting and 2) natural and probable

consequences theories. Regarding direct aiding and abetting, the juries were instructed

pursuant to the still-valid theory that they could convict defendants of the attempted

murder of Richard F. if they found that defendants aided and abetted the perpetrator (the

cohort) in his attempt to murder Richard F., in that defendants knew of the perpetrator’s

unlawful purpose and specifically intended to and did in fact facilitate, promote,

encourage, or instigate the perpetrator in his unlawful attempt to murder Richard F.

(CALCRIM Nos. 400, 401, 600 (2018).) But the juries were also instructed that they

could convict defendants in count 2 if they found that the perpetrator’s (the cohort’s)

17 Section 189 currently allows for felony murder liability only under the same
conditions that are required for a felony-murder special circumstance allegation to be
found true under section 190.2, subdivision (d). (People v. Superior Court (Ferraro)
(2020) 51 Cal.App.5th 896, 907; In re Taylor (2019) 34 Cal.App.5th 543, 561.)

55
attempted murder of Richard F. was a natural and probable consequences of the

uncharged burglary or either robbery. (Fmr. CALCRIM No. 402 (2018).)18

In light of Senate Bill 1437, as clarified by Senate Bill 775, the natural and

probable consequences theory is no longer a valid theory for murder or attempted murder.

“[T]o amend the natural and probable consequences doctrine, Senate Bill 1437

added section 188, subdivision (a)(3) . . . : “Except . . . as stated in subdivision (e) of

Section 189, in order to be convicted of murder [or attempted murder], a principal in a

crime shall act with malice aforethought. Malice shall not be imputed to a person based

solely on his or her participation in a crime.” (Gentile, supra, 10 Cal.5th at p. 842; Stats.

2021, ch. 551, § 1, subd. (a).) The instructions on the now-defunct natural and probable

consequences theory allowed the juries to convict defendants of the attempted murder of

Richard F. in count 2 based on defendants’ participation in the robberies or the uncharged

burglary, without finding that defendants acted with malice aforethought in aiding and

abetting the cohort’s commission of the attempted murder (§ 188, subd. (a)(3)), or with

reckless disregard for human life in committing the felonies (§ 189, subd. (e)).

As the parties agree, the People cannot show that the instructional errors in counts

1 and 2 were harmless beyond a reasonable doubt in that the errors did not contribute to

verdicts in counts 1 and 2. (Chapman v. Cal. (1967) 386 U.S. 18, 24.) The Chapman

standard is the correct standard for assessing the prejudicial effect of the instructional

18 The juries were also instructed that they could find the premeditation allegation
in count 2 true if they found defendants guilty of the attempted murder and that only the
perpetrator intended to kill Richard F. (Former CALCRIM No. 601 (2018).)

56
errors in counts 1 and 2. (People v. Aledamat (2019) 8 Cal.5th 1, 10-13 (Aledamat),

quoting People v. Chun (2009) 45 Cal.4th 1172, 1201 [“ ‘[i]nstructional error regarding

the elements of the offense requires reversal of the judgment unless the reviewing court

concludes beyond a reasonable doubt that the error did not contribute to the verdict’ ”].)

Here, “the record does not permit us to rule out a reasonable possibility” that the juries

relied on an invalid legal theory in convicting defendants in counts 1 and 2. (In re

Martinez (2017) 3 Cal.5th 1216, 1224, 1226.) Indeed, there is no basis in the record for

concluding that the verdicts in counts 1 and 2 were based on a valid legal ground.

(People v. Chiu (2014) 59 Cal.4th 155, 167.)

Nedd claims a new trial is warranted on counts 1 and 2 “without regard to

prejudice,” that is, without regard to whether the instructions errors contributed to the

verdicts in counts 1 and 2, because any other rule would violate his due process right to a

jury trial on necessary elements of the murder and attempted murder charges. Nedd

relies on People v. Ramos (2016) 244 Cal.App.4th 99 (Ramos), where Division Three of

this court declined to apply a harmless error analysis to instructional error that omitted an

element of the charged offense. (Id. at pp. 102-103.) The Ramos defendant was

convicted of transporting heroin in violation of Health & Safety Code former section

11352, but following her conviction the statute was retroactively amended to require that

the transportation be for purpose of sale rather than personal use. (Id. at pp. 102-103.)

Ramos reversed the conviction and remanded the matter for a new trial, but was

not persuaded that it was proper to assess the instructional error “under the harmless error

rubric.” (Ramos, supra, 244 Cal.App.4th at pp. 103-104.) The court reasoned that the

57
application of the retroactive amendment impermissibly deprived the defendant of her

“constitutional right to a jury on an element of the charged offense.” (Id. at p. 104.) But

the court also ruled that, even if it was proper to assess the error under the Chapman

standard, the error was not harmless beyond a reasonable doubt. (Ibid.)

The People argue and we respectfully agree that Ramos is not good law in light of

our Supreme Court’s more recent decision in People v. Merritt (2017) 2 Cal.5th 819

(Merritt).) Merritt held that the failure to instruct on one or more the elements of a

charged crime is “serious constitutional error” (id. at p. 824) that impacts a defendant’s

fundamental right to a jury trial, but such errors are amendable to harmless error analysis

“as long as the omissions do not vitiate all of the jury’s findings” (id. at p. 829). Here,

the instructional errors in counts 1 and 2 had nothing to do with, and thus did not vitiate,

the jury’s findings that defendants committed robbery as charged in counts 3 and 4. In

addition, the record overwhelmingly shows that the cohort shot and killed Julian K. and

shot and wounded Richard F. Thus here, as in both Merritt and Aledamat, supra, 8

Cal.5th at pp. 10 to 13, the instructional errors are amenable to a harmless error analysis.

And, as the parties agree, the errors are not harmless beyond a reasonable doubt.

Thus, defendants’ murder and attempted murder convictions must be reversed and

the matter remanded for a new trial on counts 1 and 2. (People v. Medrano (2019)

42 Cal.App.5th 1001, 1021, review granted Mar. 11, 2020, S259948.) Retrial is not

barred by double jeopardy principles. (In re D.N. (2018) 19 Cal.App.5th 898, 902

[“Double jeopardy forbids retrial after a reversal due to insufficient evidence to support

the verdict. [But] [w]here the prosecution makes its case under the law as it stood at trial,

58
double jeopardy is not implicated as it would otherwise be where there is evidentiary

insufficiency”].) And the People may elect to retry defendants on counts 1 and 2 based

on “any currently valid theory.” (Medrano, at p. 1021.)

B. Substantial Evidence Supports the Possession Element of Defendants’ Convictions for

the First Degree Residential Robbery of Julian K.

Defendants were convicted in count 3 of the first degree residential robbery of

Julian K. (§§ 211, 212.5.) Defendants claim insufficient evidence supports their

convictions in count 3 because there was no evidence that Julian K. had actual or

constructive possession of any of the items taken from Richard F.’s apartment, namely,

the shotgun, the several ounces of marijuana, or the money that fell from Richard F.’s

pocket as he struggled with Shoulders over the shotgun. Substantial evidence shows that

Julian K. was in constructive possession of the marijuana that was taken from the

apartment. Thus, we affirm defendants’ convictions in count 3.

“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.) “The standard of

review is the same in cases in which the prosecution relies mainly on circumstantial

evidence.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

“Robbery is the felonious taking of personal property in the possession of another,

from his person or immediate presence, and against his will, accomplished by means of

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force or fear.” (§ 211.) Thus, to be guilty of robbery, a defendant must take property

“from the possession of the victim by means of force or fear.” (People v. Nguyen (2000)

24 Cal.4th 756, 761.) “A person who owns property or who exercises direct physical

control over it has possession of it, but neither ownership nor physical possession is

required to establish the element of possession for the purposes of the robbery statute,”

and “constructive possession” is sufficient. (People v. Scott (2009) 45 Cal.4th 743, 749-

750.)

A person has constructive possession of property if the person has the right to

control the property. (People v. Scott, supra, 45 Cal.4th at p. 750.) In order to have the

right to control property, “the alleged victim . . . [must] have a ‘special relationship’ with

the owner of the property such that the victim had authority or responsibility to protect

the stolen property on behalf of the owner.” (Ibid.) As a result of this relationship, such

a victim has ‘the right to resist the taking,” in contrast to “those bystanders who have no

greater interest in the property than any other member of the general population.” (Id. at

pp. 757-758.) Special relationships are often employment related. (Id. at pp. 752-753.)

But a special relationship may also be present in other circumstances, including, for

example, when the victim is the property owner’s family member and lives with the

property owner. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1386) (Fiore) [citing

cases].) The crux of the special relationship is that the victim is responsible for

protecting and preserving the property taken. (People v. Gordon (1982) 136 Cal.App.3d

519, 529 (Gordon); People v. Weddles (2010) 184 Cal.App.4th 1365, 1370 (Weddles);

see also People v. Bekele (1995) 33 Cal.App.4th 1457, 1461-1462.)

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 Gordon illustrates this point. There, two men entered the home of a couple whose

son lived with them. At gunpoint, the men ordered the couple to lie on the floor, tied

them up, and told them that their son owed the men a lot of money. One of the men went

into the son’s bedroom and emerged carrying a shoulder bag, and nothing else was taken

from the home. The son testified that he lost $1,000; two pounds of marijuana; and a

shoulder bag from his bedroom. (Gordon, supra, 136 Cal.App.3d at pp. 523-524.)

Gordon held that the couple was in constructive possession of their son’s property,

even though the couple denied knowing about the marijuana and were not questioned

about the $1,000 or the shoulder bag. (Gordon, supra, 136 Cal.App.3d. at p. 529.) The

court acknowledged that “[t]he only evidence in the record to support a finding of

possession is the fact [the couple] owned and lived in the residence[,]” but reasoned that,

if business employees such as store clerks have a duty to protect and preserve property

entrusted to them, then parents have “at least the same responsibility to protect goods

belonging to their son who resides with them in their home.” (Ibid.)

Similarly here, substantial evidence shows Julian K. was responsible for protecting

and preserving Richard F.’s marijuana; thus, Julian K. had constructive possession of the

marijuana when it was taken from the apartment. Julian K. and his daughter lived in the

apartment with Richard F., and Julian K. was helping Richard F. make the marijuana sale

to Shoulders at the time the marijuana was taken. Most significantly, Julian K. initially

stopped the cohort from coming into the apartment. Then, at Richard F.’s direction,

Julian K. took a portion of the marijuana outside to show to the cohort and was supposed

to collect $100 from the cohort, as the cohort’s contribution toward purchasing the

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marijuana. This evidence is sufficient to support the possession element of defendants’

convictions in count 3 for the first degree residential robbery of Julian K.

Defendants rely on two factually distinguishable cases: People v. Ugalino (2009)

174 Cal.App.4th 1060 (Ugalino) and Fiore, supra, 227 Cal.App.4th 1362. In Ugalino,

the court reversed the attempted robbery conviction of a marijuana dealer’s roommate,

Jessie Rider. (Ugalino, at p. 1065.) The dealer, Joshua Johnson, was selling marijuana

from his apartment, and Rider lived in the apartment with Johnson. (Id. at p. 1062.) The

defendant and another man came to the apartment to buy marijuana from Johnson, who

kept his marijuana in a locked safe in his bedroom. (Ibid.) After Johnson retrieved the

marijuana from his safe, the defendant pointed a gun at Johnson and said, “ ‘You’re

getting jacked.’ ” (Id. at pp. 1062-1063.) The defendant’s cohort then pointed a gun at

Rider and told Rider to lie face down on the floor. (Id. at p. 1063.) Rider was in the front

room of the apartment and had done nothing to assist Johnson in making the marijuana

sale. (Id. at p. 1062.)

The Ugalino court distinguished Gordon and the employment cases, reasoning that

there was no parent-child or employment relationship between Johnson and Rider; rather,

the two “were simply roommates.” (Ugalino, supra, 174 Cal.App.4th at p. 1065.) Rider

“had no obligation to protect” Johnson’s belongings, Johnson “was present to protect his

own belongings” at the time of the robbery, and there was no evidence that Johnson

expected Rider to assist Johnson in protecting his marijuana or other belongings. (Ibid.)

In sum, because there was no evidence that Rider “owned, had access to, control over, or

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an obligation to protect” Johnson’s marijuana, the court reversed the defendant’s

conviction for attempting to rob Rider. (Ibid.)

Ugalino is distinguishable, in part because Julian K. actively assisted Richard F. in

effecting Richard F.’s attempted sale of the stolen marijuana to Shoulders. More

significantly, Julian K. initially prevented the cohort from entering the apartment, then

took a portion of the marijuana outside the show to the cohort and agreed to collect $100

from the cohort toward the purchase price for the marijuana. This evidence supports an

inference that there was an understanding between Richard F. and Julian K., such that

Julian K. had an obligation to protect Richard F.’s marijuana from being stolen and was

therefore in constructive possession of the marijuana at the time it was taken.

Fiore, supra, 227 Cal.App.4th 1362 is also distinguishable. The defendant, Fiore,

was convicted of robbing Chris Gault during a marijuana sale. Gault introduced Fiore’s

friend and cohort, David Fields, to the marijuana owner and seller, Anthony Young. (Id.

at p. 1368.) Fiore and Fields drove to Young’s house, where Fields was supposed to buy

20 pounds of marijuana from Young. (Ibid.) Fiore and Fields armed themselves, drove

to Young’s house, and Young and Gault came out to meet them. (Ibid.) Inside the

house, Fields and Fiore pointed guns at Young and Gault and left the house with the

marijuana. (Id. at pp. 1368-1369) Fiore, for his part, pointed a gun at Gault and

threatened to kill him. (Ibid.) In reversing Fiore’s conviction for robbing Gault, Fiore

relied on Ugalino and found insufficient evidence of a special relationship between

Young, the marijuana owner and seller, and Gault. (Id. at pp. 1385-1387.)

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 Significantly, Gault testified that Young was only an “ ‘acquaintance,’ ” whom

Gault knew only “ ‘[in] passing,’ ” that Gault had never been to Young’s house before,

and that Gault did not act as a broker and did not expect to earn any commission from the

marijuana sale. (Fiore, supra, 227 Cal.App.4th at p. 1386.) But when Young told Fields

to “ ‘[c]heck . . . out’ ” the marijuana, Gault handed Fields a bag of the marijuana and

rolled blunts for Fiore and Fields to smoke. (Ibid.) Although Fiore testified that he

understood Gault to be “brokering” the marijuana sale, and that Fields (but not Young)

had promised to pay Gault $100 for each pound of marijuana sold, there was “nothing in

the record to suggest that Gault was involved in negotiating the sale’s terms beyond the

fact that [Gault] was present while Fields and Young were talking.” (Ibid.) “Young’s

acquiescence to Gault’s momentary control over the property” for the “limited purpose”

of letting Fiore and Fields “sample it” “did not establish that Gault had any right or duty

to resist the property’s taking or that Young expected him to do so.” (Ibid., citing

Ugalino, supra, 174 Cal.App.4th at p. 1065.)

In contrast, the record here supports a reasonable inference that Julian K. and

Richard F. had an understanding and a special relationship, such that Julian K. had a duty

to resist the taking of Richard F.’s marijuana. As discussed, Julian K. played an active

role in protecting Richard F.’s marijuana during Richard F.’s attempt to sell the

marijuana to Shoulders. Most significantly, Julian K. stopped the cohort from entering

the apartment, where the marijuana sale was taking place, and where Julian K. and his

daughter lived with Richard F. This fact, coupled with Julian K.’s role in assisting

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Richard F. with the marijuana sale by showing the marijuana to the cohort and attempting

to collect $100 from the cohort, distinguishes this case from Ugalino and Fiore.

C. CALCRIM No. 315 Did Not Violate Defendants’ Due Process Rights

Each jury was instructed pursuant to CALCRIM No. 315 [Eyewitness

Identification], that it had heard eye witness testimony identifying the defendant; that, as

with any other witness, it “must decide whether an eyewitness gave truthful and accurate

testimony”; and, in evaluating identification testimony, it was to consider fifteen

questions, including “How certain was the witness when he or she made an

identification?”

Nedd claims the instruction violated his state and federal due process rights to a

fair trial because it instructed his jury to consider an eyewitness’s level of certainty when

evaluating the truthfulness and accuracy of the eyewitness’s identification. Nedd claims

that, by causing his jurors to falsely equate certainty with accuracy, CALCRIM No. 315

deprived him of a fair trial by lowering the prosecution’s burden of proof on the charges.

Nedd more specifically claims that the prosecution’s case against him “hinged on”

Richard F.’s positive identification of him as the “third suspect” who entered the

apartment after the initial shots were fired, and who took money and marijuana. At trial,

Richard F. testified he was “a hundred percent positive” that the third man was Nedd.

Shoulders joins Nedd’s due process challenge to CALCRIM No. 315, without additional

argument.

Our Supreme Court recently addressed a defendant’s due process claim concerning

the certainty factor of CALCRIM No. 315 in People v. Lemcke (2021) 11 Cal.5th 644,

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653-654 (Lemcke). As in Lemke, defendants’ due process claims are based on empirical

research showing that a witness’s confidence in his or her identification is generally not a

reliable indicator of accuracy. (Id. at p. 655 [citing cases discussing empirical research].)

Based on this research, defendants claim that CALCRIM No. 315 “reinforce[s] a

common misconception” that an eyewitness’s level of certainly in his or her identification

correlates to the level of accuracy of the identification.

Lemcke concluded that CALCRIM No. 315 did not render the defendant’s trial

fundamentally unfair, or otherwise violate the defendant’s due process rights, because the

instruction did not “ ‘[e]quate certainty with accuracy.’ ” (Lemcke, supra, 11 Cal.5th at

p. 657.) To the contrary, the instruction “leaves the jury to decide whether the witness

expressed a credible claim of certainty and what weight, if any, should be placed on that

certainty in relation to the numerous other factors listed in CALCRIM No. 315.” (Ibid.)

The instruction also states that the People have the burden of proving beyond a

reasonable doubt that the defendant committed the crime, and if the People do not meet

this burden, the jury has to find the defendant not guilty. (Id. at p. 658.)

For these reasons, and in light of the instructions as a whole, Lemcke concluded

that CALCRIM No. 315 did not lower the prosecution’s burden of proof and thus did not

deprive the defendant of his due process right to a fair trial. (Lemcke, supra, 11 Cal.5th at

pp. 657-659.) Lemcke’s analysis applies with equal force here to each defendant’s trial

and requires us to reject defendants’ due process claims based on CALCRIM No. 315.

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D. Remand for a Franklin19 Hearing for Nedd is Unwarranted

Nedd was born in 1994 and was 21 years old when he committed the charged

offenses on August 6, 2015. Because he was sentenced to 25 years to life for the murder

of Julian K. in count 1, Nedd will be eligible for release on parole at a youth offender

parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).) At that

hearing, the board of parole hearings will be required to “give great weight to the

diminished culpability of juveniles as compared to adults, the hallmark features of youth,

and any subsequent growth and increased maturity of the prisoner in accordance with

relevant case law.” (§ 4801, subd. (c).) The relevant youth-related factors will include

Nedd’s cognitive ability, his character, and his social and family background at the time

he committed the murder. (See Franklin, supra, 63 Cal.4th at p. 269.)

Nedd asks this court to remand the matter to the trial court so he may make a

record of mitigating youth-related evidence for the purpose of his eventual youth offender

parole hearing. This was the remedy afforded to the defendant in Franklin, a youth

offender who was convicted and sentenced before section 3051 was amended, effective

January 1, 2016, to require youth offender parole hearings for offenders who were 25

years of age or younger at the time they committed their controlling offense. (Stats.

2015, ch. 471, § 1; § 3051, subd. (a)(2)(B); see Franklin, supra, 63 Cal.4th at pp. 269-

272.) Nedd effectively claims that he is entitled to the same relief afforded to the

defendant in Franklin. He is not.

19 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

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 Nedd was sentenced in August 2019, more than three years after Franklin was

decided in May 2016. In People v. Medrano (2019) 40 Cal.App.5th 961, this court was

presented with an identical situation and found no basis to remand the matter to the trial

court to conduct a Franklin hearing for the defendant, who was sentenced in December

2017, more than 18 months after Franklin was decided. (Medrano, at p. 967.) Medrano

reasoned that the record contained “no indication that Medrano was not given an

adequate opportunity to make a record of mitigating youth-related evidence as

contemplated in Franklin. . . . Rather, it appear[ed] that he merely failed—whether by

choice or by inadvertence—to exercise [that opportunity].” (Ibid.)

As in Medrano, the record contains no indication that Nedd was not given an

adequate opportunity, at or before his sentencing hearing on August 23, 2019, to make a

record of youth-related mitigating evidence. On January 12, 2018, Shoulders filed a

“Franklin Statement in Mitigation,” including a report by a licensed clinical psychologist

who testified at length at Shoulders’s Franklin hearing on May 29, 2018. Shoulders’s

Franklin hearing was held immediately after the hearing on defendants’ original new trial

motions on May 29, 2018, 20 and Nedd was represented by counsel at the May 29 hearing.

But Nedd made no effort to present any youth-related mitigating evidence, at the May 29

hearing, at his August 23, 2019 sentencing hearing, or at any other time.

20 In 2019, defendants supplemented their new trial motions by challenging their
convictions in count 1 and 2 based on the amendments that Senate Bill 1437 (2017-2018
Reg. Sess.) made to sections 188 and 189.

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 Nedd also has a remedy for his previous failure to seek a Franklin hearing: He

may present youth-related mitigating evidence by way of a Penal Code section 1203.01

motion. A youth offender whose judgment of conviction and sentence is final may file a

motion pursuant to section 1203.01, and the court’s inherent authority under Code of

Civil Procedure section 187, to make a record of youth-related mitigating evidence.

(Medrano, supra, 40 Cal.App.5th at p. 968; In re Cook (2019) 7 Cal.5th 439, 446-447

(Cook).) As Cook observed, section 1203.01 “provides that, postjudgment, the trial court

may generate, collect, and transmit information about the defendant and the crime to the

Department of Corrections and Rehabilitation.” (Cook, at p. 447.)

In sum, because Nedd had an adequate opportunity to adduce youth-related

mitigating evidence before he was sentenced on August 23, 2019, and because he may yet

adduce such evidence after his judgment becomes final (§ 1203.01), we find no basis to

remand the matter with directions to the trial court to conduct a Franklin hearing for

Nedd. (Medrano, supra, 40 Cal.App5th at pp. 967-968) But we are not precluding the

trial court from allowing Nedd to make a Franklin record on remand.

E. No Cumulative Trial Error

Defendants claim that the cumulative effect of the trial errors deprived them of their

due process right to a fair trial and requires reversal of all of their convictions. We are

vacating defendants’ convictions in counts 1 and 2, and we have found no trial error

affecting defendants’ remaining convictions in counts 3 and 4, or affecting Nedd’s

conviction in count 6. Thus, neither defendant is entitled to reversal of their remaining

69
convictions based on cumulative error. (People v. Mireles (2018) 21 Cal.App.5th 237,

249.)

V. DISPOSITION

Defendants’ convictions for the first degree murder of Julian K. in count 1, and for

the attempted premeditated murder of Richard F. in count 2, are reversed. Defendants’

first degree residential robbery convictions in counts 3 and 4 and Nedd’s unlawful

firearm possession conviction in count 6 are affirmed. If the People elect to retry either

defendant on counts 1 and 2, the People must bring defendants to trial within 60 days

after the remittitur is filed. (§ 1382, subd. (a)(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

RAMIREZ
P. J.

McKINSTER
J.

70