Filed 7/7/26 P. v. Browder CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B346030
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XCNBA481424-01)
v.
DAITREON THOMAS
BROWDER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Eric Larson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
This is an appeal pursuant to People v. Wende (1979)
25 Cal.3d 436. Finding no error, we affirm.
FACTUAL BACKGROUND
These facts are taken from our opinion on remand. (People
v. Browder (June 26, 2024, B321402 [nonpub. opn.].)
On September 4, 2019, about 1:10 p.m., Timothy Phillips
began backing his gray car out of the driveway of his house on
South Harvard Boulevard in Los Angeles. James Carter, a
passenger in the car, knocked Phillips’s cigarette out of his hand.
Phillips stopped his car near the curb and bent down to pick up
his cigarette.
Phillips heard several gunshots as glass began breaking all
over the car. Phillips noticed that Carter had been shot and
appeared to be unconscious. He drove to a friend’s house and put
Carter into her car. She drove Carter to the hospital. Carter
died from a gunshot wound.
Phillips returned to his home and spoke with police. He
told them he saw a four-door burgundy vehicle with tinted
windows, which looked like a Mitsubishi or a Mazda. It was the
only car on the street. Phillips believed there were two people
inside, and that the shots came from the passenger side of the
vehicle. He did not hear anything before the shooting began, and
nobody in the burgundy vehicle said anything to him.
Police recovered footage from about 20 locations. It shows
appellant Browder and Levon Tippit in a 2003 burgundy Toyota
and Phillips walking from his front door to his driveway. It then
shows Phillips’s gray car backing out of the driveway and
stopping along the curb. Browder’s burgundy Toyota appears
next to Phillips’s car, pauses for two to three seconds and then
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turns right onto 89th Street. Phillips’s car immediately goes
south on Harvard Boulevard.
PROCEDURAL BACKGROUND
On October 28, 2021, a jury found appellant Daitreon
Browder guilty of first degree premeditated murder,
premeditated attempted murder, shooting from a motor vehicle,
and shooting at an occupied motor vehicle. The jury also found
true as special circumstances that the murder was intentional
and perpetrated by means of discharging a firearm from a motor
vehicle and carried out to further the activities of a criminal
street gang. Also found true were the allegations as to each
offense that a principal used and discharged a firearm causing
great bodily injury and death and the offenses were committed
for the benefit of a criminal street gang.
The trial court sentenced Browder to life without the
possibility of parole plus 40 years to life: life without the
possibility of parole plus 25 years to life for the murder conviction
and true firearm allegation plus a consecutive term of 15 years to
life for the attempted murder conviction with the enhancement
stayed as to that count. The trial court imposed and stayed
sentences for the other two offenses pursuant to Penal Code
section 654.
Browder appealed the judgment of conviction. We affirmed
the convictions but reversed the true findings on the gang
enhancement allegations and gang-related special circumstance
allegations. We ordered resentencing as to the firearm
enhancements to permit the trial court to exercise its discretion
whether to strike the enhancements pursuant to newly amended
Penal Code section 1385. (People v. Browder (Feb. 7, 2024,
B321402 [nonpub. opn.].)
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The California Supreme Court granted the People’s petition
for review and directed us to vacate our prior decision and
reconsider the cause in light of People v. Clark (2024) 15 Cal.5th
743. Upon reconsideration, we affirmed the judgment of
conviction including the true findings on the gang enhancement
allegations and the gang-related special circumstance allegation.
However, we still determined it appropriate to remand to permit
the trial court to exercise its discretion concerning the firearm
enhancement. (People v. Browder, supra, B321402.)
On March 7, 2025, Browder filed a motion to strike
enhancements pursuant to Penal Code section 1385, subdivision
(c)(2)(B). The motion included no facts whatsoever about
Browder or the offenses and did not address the factors set out in
section 1385 that must be considered in deciding whether to
strike firearm enhancements.
On March 25, 2025, the trial court conducted a hearing on
our remand and declined to strike the firearm enhancements,
finding that to do so would endanger public safety. In so ruling,
the court considered each of the factors under 1385 and found:
“There was no evidence that the defendant suffered or acted
under a mental illness rather it was a cold calculated killing done
for the benefit of the gang, there was no evidence that the
defendant suffered from childhood trauma, the defendant was not
a juvenile, the firearm was not inoperable but rather was fired by
the defendant during the commission of the offense, the
enhancement was not based upon a prior conviction but rather
was based upon the evidence presented at the trial and the use of
a firearm during the commission of the offense, multiple
enhancements were not applied in this case, rather all other
enhancements were stayed. [¶] Most importantly, the crime is a
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violent felony and that weighs heavily in the court’s mind. A
person was killed. The crime was carried out in broad daylight
across from an elementary school. The crime as evidenced by the
video was calculated, planned, and sophisticated. The defendant
drove with another gang member from their territory to rival
gang territory looking for a rival gang member to kill or assault.
The killing was done by a barrage of bullets fired into a car that
was backing out of the driveway of a home on a residential street
across from a school in broad daylight. The victim of the
[attempted murder] was saved only by the lucky circumstance
that at the time of the shooting he had been reaching down to
retrieve a cigarette that he had dropped. [¶] The only factors from
1385 that might provide some benefit to the defendant is that the
application of the enhancement results in a sentence of over 20
years, however, the statutory penalty as prescribed by the
legislature creates that outcome. The court did not choose the
penalty. Furthermore, as to multiple enhancements being
imposed, all the other enhancements were stayed. [¶] Given the
violent nature of the offense, the court finds that a dismissal
would endanger public safety as defined in 1385 and the
appropriate penalty after considering the facts of this case and
the factors in 1385 is to impose the punishment required by the
enhancement.”
Browder timely appealed the court’s denial of resentencing
“on PC 12022.53 enhancement.”
We appointed counsel for Browder on appeal. On April 13,
2026, counsel filed an opening brief pursuant to People v. Wende,
supra, 25 Cal.3d 436, asking this court to independently review
the record for error.
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On April 14, 2026, we notified Browder a no-issue brief had
been filed on his behalf and he had 30 days to file a supplemental
brief stating any grounds for an appeal, or contentions, or
arguments he wishes us to consider. Browder did not file a
supplemental brief.
We have examined the record and are satisfied counsel on
appeal has fully complied with their responsibilities and no
arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106,
109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
VIRAMONTES, J .
SCHERB, J.
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