Filed 9/29/20 P. v. Brokken CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072112
v. (Super.Ct.No. INF1200295)
JASON WILLIAM BROKKEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Russell L. Moore, Judge.
Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jason William Brokken of second degree murder and found that
he personally used a dangerous or deadly weapon in the commission of the offense.
1 (Pen. Code, §§ 187, subd. (a), 12022, subd. (b); unlabeled statutory references are to this
code.) In a bifurcated proceeding, the trial court found that Brokken suffered one prior
strike conviction and served three prior prison terms. (§§ 667, subds. (c) & (e), former
667.5, subd. (b), 1170.12, subd. (c)(1).) The trial court struck the three prior prison term
enhancements but not the prior strike. Brokken was sentenced to 31 years to life in state
prison.
On appeal, Brokken argues that (1) the trial court prejudicially erred by giving the
jury an instruction on involuntary intoxication that purportedly lessened the prosecutor’s
burden of proof, (2) the trial court abused its discretion by refusing to strike his prior
strike conviction, and (3) his prior prison term enhancements should be reversed. We
vacate the true findings on the prior prison term enhancements but otherwise affirm.
BACKGROUND
A. Discovery of the Body
On January 22, 2012, a horseback rider discovered a dead body in the desert off a
dirt road near her home. Law enforcement responded to the scene. The body was
identified as belonging to 74-year-old Kenneth M.1 Two plastic bags covered most of the
body. Numerous personal belongings were strewn around the body, including bedding,
computer towers, and a phone bill with Kenneth’s residential address.
1 We refer to the victim and witness by their first names, with or without last initials, to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.
2 B. Forensic Pathologist
Kenneth suffered eight incised wounds on his head with associated fractures to his
skull. A couple of those wounds were located on the back of Kenneth’s head. Something
with an edge, such as an axe or a hatchet, caused the incised wounds. In addition to those
injuries, Kenneth suffered one laceration on the top of his skull, which was caused by
blunt impact. He also had three abrasions on his face. Kenneth did not have any
defensive wounds. The sharp and blunt injuries to the head caused Kenneth’s death.
C. Investigation
Detectives from the Riverside County Sheriff’s Department went to Kenneth’s
residence on the night that the body was discovered. No one answered the front door, so
the detectives entered the mobile home through an open bedroom door. One of the
detectives noticed bloodstains, that the bed did not have a comforter, and an odor from a
cleaning agent. The detectives verbally announced their presence. Brokken and another
person, Cari J., emerged from another part of the residence, and the detectives informed
them that they were investigating a homicide.
Brokken and Cari were then interviewed separately. Brokken did not appear to be
under the influence. Brokken told a detective that he owned a vehicle but that it was
located in another city. Cari said that Brokken’s vehicle was parked at a nearby mobile
home. Brokken and Cari were then taken to the sheriff’s station.
During an interview of Brokken at the sheriff’s station that day, Brokken
explained that he had recently met Kenneth. Brokken thought that Kenneth had gone to
Laughlin, Nevada. The investigator explained to Brokken that Brokken was a suspect in
3 Kenneth’s murder, to which Brokken responded, ‘“I had no problem with [Kenneth].”’
Brokken did not respond when told that there was evidence implicating him in the killing.
In 2014, Brokken voluntarily made a statement to the prosecutor’s office and denied
killing Kenneth. Brokken identified someone else as possibly being the killer.
Deputies searched Kenneth’s mobile home. There was blood in the master
bedroom on, around, and underneath a desk and an accompanying chair. There was also
a piece of human bone on the chair. There were no signs of a physical altercation
occurring in Kenneth’s bathroom. No weapons, illegal narcotics, or ketamine were found
at the residence.
D. Testimony of Kenneth’s Live-in Guest
In January 2012, Cari was living in the laundry room of Kenneth’s mobile home.
She became acquainted with Kenneth through a friendship with his roommate.
Kenneth’s roommate also introduced Cari to Brokken.
On January 21, 2012, Brokken came to Kenneth’s mobile home at approximately
8:00 a.m. and asked Cari if he could shower there because there was no hot water where
he was staying. Kenneth told Brokken that he could use the shower in Kenneth’s
bathroom. Brokken went into Kenneth’s bedroom, where Kenneth was already located,
and shut the door behind him. Cari did not see Brokken exit Kenneth’s bedroom. She
was in her room. Kenneth had another roommate who was not home, having been
arrested the night before.
That afternoon, at approximately 1:00 p.m., Cari saw Brokken enter Kenneth’s
residence again. Brokken was heading toward Kenneth’s room and was holding one arm
4 behind his back. Cari could see that Brokken was holding a hatchet or an axe behind his
back. She thought that it was “odd” but did not ask Brokken what he was doing with the
hatchet. Cari entered the laundry room and did not see Brokken go into Kenneth’s room.
At some point in the day (Cari could not recall whether it was before or after she saw
Brokken with the hatchet), Brokken asked her for towels, which Cari thought was an odd
request because there were a lot of towels in Kenneth’s room. Cari could not recall
whether she saw Brokken in Kenneth’s house again that afternoon.
Later that afternoon at approximately 3:00 p.m., Brokken picked Cari up in his van
to give her a ride. She noticed a strong chemical smell in the van that nearly caused her
to fall out of the vehicle “because [her] eyes burned so bad.”
E. Brokken’s Defense
Brokken testified on his own behalf and admitted to killing Kenneth. He claimed
to be in fear for his own life. Brokken admitted that he had a history of issues with
alcohol and drugs (mainly methamphetamine) but claimed to have been sober since 2010.
Brokken first met Kenneth on January 11, 2012, when Brokken was visiting Cari.
Brokken had recently started temporarily living with another friend who lived in the same
mobile home park as Kenneth. For the following week and one-half, Brokken assisted
Kenneth with various chores and errands.
On January 20, 2012, Brokken stayed overnight with Cari at Kenneth’s home and
stayed there for part of the next day. Sometime around 4:00 p.m. that following day,
Kenneth asked if he could speak with Brokken. Brokken followed Kenneth into his
bedroom. When Brokken entered the bedroom, Kenneth handed Brokken a cup of
5 coffee, which Brokken drank. Kenneth asked Brokken to move in and made unspecified
verbal advances toward Brokken. Brokken estimated that he and Kenneth spoke for less
than 10 minutes.
Brokken’s next memory was “[coming] to” naked in a shower, at which point he
had a brief “moment of consciousness and awareness.” Brokken felt lethargic and weak.
Kenneth was present with him and was also naked. Kenneth entered the shower and
attempted to turn Brokken around, but Brokken could not recall what happened next.
Brokken recalled exiting the shower, but he could not recall when he or Kenneth exited.
Brokken’s next memory was of himself standing naked in Kenneth’s bedroom,
searching for clothes. Brokken wanted to leave. Kenneth was naked and standing next to
Brokken and made some reference to “‘Special K.’” Brokken then noticed that Kenneth
was approaching Brokken with “some kind of cylindrical tube,” which Brokken later
learned was a “penis pump.” At that point, Brokken realized Kenneth had a “black
leather strap around his genitals.” Brokken did not recall what happened in Kenneth’s
home after that.
Brokken’s next memory was of “coming to” on the couch of the person with
whom Brokken was staying, who lived two mobile homes away from Kenneth. Brokken
was confused and having a difficult time “processing what was going on” and was “in
and out of awareness.” Brokken did not know how much time had passed since he
entered Kenneth’s room at approximately 4:00 p.m., but it was not dark outside when
Brokken awoke. The only memories Brokken had were of searching for his clothes and
being in the shower with Kenneth. Brokken immediately went to Kenneth’s to “find out
6 what happened.” On the way, Brokken picked up a small wooden hatchet from his
friend’s yard and placed the hatchet in his waistband so that his shirt concealed it.
Brokken grabbed the hatchet in case he needed to defend himself.
Brokken could not recall whether Cari answered the door at Kenneth’s residence,
nor could he recall exactly what happened before he entered Kenneth’s bedroom. In the
bedroom, Brokken confronted Kenneth, explained that he knew something had happened
but could not recall the specific details, and asked Kenneth, “‘What did you do to me?’”
Kenneth did not answer Brokken’s question and instead informed Brokken that he could
move into Kenneth’s residence.
Brokken threatened to call the police because he knew that Kenneth had drugged
him. Kenneth said the police would not believe Brokken and threatened to expose a
video recording Kenneth had made of the two men earlier that night. Brokken demanded
that Kenneth give him the recording. After Brokken threatened to call the police again,
Kenneth acquiesced and went into the bathroom to retrieve the video. Brokken could not
see Kenneth while he was in the bathroom but could hear Kenneth opening and closing
drawers.
When Kenneth exited the bathroom, he was holding a knife in his right hand.
Kenneth suddenly approached Brokken, screaming “‘You’ll never get the video.’”
Brokken reacted without thinking and “pulled out the hatchet and swung as hard as [he]
could.” Brokken struck Kenneth “several more times.” The only other strike he
distinctly remembered was one that occurred while Kenneth was falling.
7 Brokken explained that he had lied to law enforcement and denied killing Kenneth
because he did not want anyone in his family or the rest of the world to know what
transpired between himself and Kenneth.
A biochemist testified on Brokken’s behalf about the anesthetic, dissociative, and
hallucinogenic properties of the drug ketamine. Ketamine is among the class of drugs
that is “considered a date rape drug.”
DISCUSSION
A. Alleged Instructional Error
On the defense of involuntary intoxication, the trial court instructed the jury with a
modified version of CALCRIM No. 625. As given, the instruction provided: “You may
consider evidence, if any, of the defendant’s involuntary intoxication in reaching your
verdict. You may consider that evidence in deciding whether the defendant acted with
express or implied malice, or the defendant acted with deliberation and premeditation, or
the defendant acted in lawful self-defense, or the defendant acted in imperfect self-
defense, or the defendant acted in the heat of passion. [¶] A person is involuntarily
intoxicated if he unknowingly ingested some intoxicating liquor, drug or other substance,
or if his intoxication is caused by t[h]e force, duress, fraud, trickery of someone else, for
whatever purpose, without any fault on the part of the intoxicated person.” The
paragraph defining involuntary intoxication was taken from CALCRIM No. 3427.
Brokken did not object to the instruction or request any modification of the language.
The court instructed the jury on first and second degree murder and voluntary and
involuntary manslaughter.
8 Brokken claims that the involuntary intoxication instruction lightened the
prosecutor’s burden of proof and consequently denied him the right “to present relevant
evidence, to present a defense, and to a jury determination on all issues.” He argues that
the instruction’s use of the permissive word “may” suggested to the jury that it could
ignore the intoxication evidence altogether. He maintains that the jury instead should
have been instructed that it was mandatory to consider all of the evidence regarding
involuntary intoxication, as he purports the standard involuntary intoxication instruction,
CALCRIM No. 3427 does.2 The argument lacks merit.
In analyzing whether a jury instruction is ambiguous, “the test is whether there is a
reasonable likelihood that the jury misunderstood and misapplied the instruction.”
(People v. Mayfield (1997) 14 Cal.4th 668, 777 (Mayfield), abrogated on other grounds
by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) “When considering a challenge to a
jury instruction, we do not view the instruction in artificial isolation but rather in the
context of the overall charge.” (Mayfield, supra, at p. 777.)
There is no reasonable likelihood that the jurors understood the involuntary
intoxication instruction as permitting them to ignore the evidence of involuntary
intoxication. Nothing in the language of the instruction itself suggests that the jury could
disregard evidence of involuntary intoxication. (People v. Lucas (2014) 60 Cal.4th 153,
291 (Lucas), overruled on another ground in People v. Romero And Self (2015) 62
2 In addition to defining involuntary intoxication, CALCRIM No. 3427 provides: “Consider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or] mental state) when (he/she) acted.”
9 Cal.4th 1, 53, fn. 19.) Rather, the instruction detailed how the jury could consider
evidence of Brokken’s involuntary intoxication, if it concluded that such evidence
existed. (Lucas, supra, at p. 291.) Thus, the instruction clarified how the involuntary
intoxication evidence could be relevant to determining whether Brokken formed the
required intent. “It is pure speculation to believe the jury ignored certain evidence simply
because an instruction advised the jury that it ‘should’ or ‘may’ consider that evidence,
instead of commanding the jury to consider that evidence.” (Ibid.)
Moreover, in addition to receiving the challenged instruction, the jury also was
instructed that “[i]n deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial.” (Italics added.) (CALCRIM No. 220.) Other
instructions repeated the admonition that the jury must review and consider “all the
evidence.” (CALCRIM Nos. 223 [“You must decide whether a fact in issue has been
proved based on all the evidence”], 301 [“Before you conclude that the testimony of one
witness proves a fact, you should carefully review all the evidence”].) We presume the
jury followed those instructions. (People v. Daveggio And Michaud (2018) 4 Cal.5th
790, 821.)
Taken as a whole, the instructions made clear that the jury should consider the
involuntary intoxication evidence but only for those specified purposes set forth in the
involuntary intoxication instruction. There consequently was no reasonable likelihood
that the jurors were misled by the modified instruction on involuntary intoxication into
10 understanding that it was free to ignore the evidence of involuntary intoxication.3 We
therefore conclude that the trial court did not err by instructing the jury as it did on
involuntary intoxication.
B. Denial of Brokken’s Romero Motion
Brokken contends that the trial court abused its discretion by denying his motion
to strike his prior strike conviction under section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero). We do not agree.
A trial court may, “in furtherance of justice,” strike a prior conviction under the
Three Strikes law. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In
considering whether to strike a prior strike conviction, the trial court “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the [Three Strikes law’s] spirit, in whole
or in part, and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148,
161.) We review the trial court’s decision for an abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
3 Brokken relies on People v. Stevenson (1978) 79 Cal.App.3d 976, 987 (Stevenson) for the proposition that the trial court was required to instruct jurors that it “must” consider all the evidence of involuntary intoxication. Stevenson did not purport to state a general rule about the inadequacy of an intoxication instruction using permissive language.
11 “‘“[T]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.”’” (Carmony, supra, 33 Cal.4th at pp. 376-377.) In addition, “a
‘“decision will not be reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’”’” (Id. at p. 377.) “Taken together, these precepts establish
that a trial court does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.” (Ibid.)
Before and after the trial, Brokken moved to strike his prior strike, which was a
1986 burglary conviction. The trial court denied both requests.
We cannot say that the trial court’s decision was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) It is
apparent from the trial judge’s comments in denying the Romero motion that the trial
court considered all the relevant factors, including the nature and circumstances of
Brokken’s past and present offenses and his background, character, and prospects. The
trial judge “tried to find a substantial reason to strike the strike” based on the strike’s
remoteness and the factors favorable to Brokken, including Brokken’s family support,
Brokken’s behaving as a “consummate gentleman in the court,” and his future prospects
in life. The trial court also acknowledged the quality of Brokken’s upbringing.
12 Nevertheless, the court refused to strike the prior strike because of Brokken’s
postoffense conduct in attempting to avoid detection and lying to the police, and
Brokken’s extensive (though nonviolent) criminal history. Brokken’s first conviction
was the burglary conviction in 1986. Brokken thereafter violated probation numerous
times and consequently spent time in jail and prison. After being released from prison in
1989, Brokken was not convicted again until 1997. From 1997 through 2011, however,
Brokken suffered nine additional convictions in state court, mostly for drug offenses and
property offenses, and one federal conviction for aiding and abetting illegal entry into the
United States. Brokken was sentenced to prison two additional times, once in 2004 and
once in 2006. Commenting on that criminal history, the court explained that after the
strike conviction Brokken suffered “one conviction after another with some periods
without convictions, understood, and I appreciate that they are not convictions of
violence, but they are convictions that have been accompanied by prison sentences and
parole violations.”
Brokken attacks the trial court’s decision on two grounds—the trial court’s
purported failure to consider his drug addiction as it related to his criminal history and the
remoteness of his prior strike conviction. Neither challenge has merit.
Brokken first argues that the trial court abused its discretion by failing to consider
the role of drug addiction in the current and past offenses committed by Brokken. As to
the purported role of drug addiction in the present offense, Brokken does not point to any
specific facts about how Brokken’s drug addiction played any role in his killing of
Kenneth. At sentencing, Brokken did not argue that his drug addiction was a factor in the
13 killing. On the contrary, in his Romero motion, Brokken asked the trial court to consider
as a mitigating factor in his favor that many years before the present offense he had
“voluntarily sought and received treatment” for his drug addiction. Moreover, the
argument concerning drug addiction contradicts Brokken’s theory of the case. Brokken
claims that he involuntarily ingested a drug before killing Kenneth. Thus, because there
is no evidence that Brokken’s drug addiction played a role in the present offense, it
follows that the trial court did not abuse its discretion by failing to consider such
nonexistent evidence.
In any event, in denying the Romero motion, the trial court indicated that it was
aware that Brokken had “struggled with substance abuse.” The trial court therefore
considered Brokken’s drug addiction but was not persuaded that it should mitigate any of
Brokken’s past criminal conduct or should warrant striking the prior conviction. We
cannot say that refusing to strike the prior conviction on that basis was irrational or
arbitrary, so the trial court’s conclusion consequently did not amount to an abuse of
discretion.
Brokken’s second argument, that the trial court abused its discretion by failing to
consider the remoteness of the strike, fares no better. The trial court noted that the
burglary conviction was “extremely old” but determined that the remoteness of the
conviction did not warrant striking it, given the number of intervening convictions
between the strike and the present offense. The remoteness in time of a prior strike is a
proper consideration in deciding whether it should be stricken. (People v. Humphrey
(1997) 58 Cal.App.4th 809, 813.) But it was not an abuse of discretion to refuse to strike
14 the prior strike on that basis here given that Brokken “led a continuous life of crime after
the prior.”4 (Ibid.)
For all of these reasons, we conclude that the trial court did not abuse its discretion
by denying Brokken’s Romero motion.
C. Prison Prior Allegations
Effective January 1, 2020, while this appeal was pending, Senate Bill No. 136
(2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) amended section 667.5, subdivision
(b), to restrict the circumstances under which a one-year sentence enhancement may be
imposed for a prior prison term. Section 667.5, subdivision (b), now allows for the
imposition of a one-year prior prison term enhancement only if the prior prison term was
served for a sexually violent offense. Here, the trial court found true the allegations of
three one-year prior prison term enhancements, but the underlying convictions were not
sexually violent offenses. The trial court struck those convictions for purposes of
sentencing. The parties agree and this court has already held that Senate Bill No. 136
applies retroactively to those like Brokken whose sentences were not final at the time that
Senate Bill No. 136 became effective. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-
14.) We therefore vacate the true findings on the three prior prison term enhancement
allegations.
4 Given the trial court’s thorough analysis of whether to strike the burglary conviction, we reject Brokken’s suggestion that his due process rights were violated by the “trial court’s refusal to exercise its discretion and adoption of a mechanized sentencing process.” The trial court’s decision was based on an individualized analysis of the facts and evidence presented.
15 DISPOSITION
The true findings on the three one-year prior prison term enhancement allegations
under section 667.5, subdivision (b), are vacated. The trial court is directed to amend the
abstract of judgment accordingly and to forward a copy of the amended abstract of
judgment to the California Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
CODRINGTON Acting P. J. RAPHAEL J.