Filed 5/11/16 P. v. Brown CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS BRADFORD BROWN,

Defendant and Appellant.

 B258677

 (Los Angeles County

 Super. Ct. No.LA062986)

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas 

Rubinson, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and 

Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant Nicholas Brown appeals from the judgment entered following his 

conviction by jury of robbery, attempted robbery, and assault with a deadly weapon, 

arising from incidents at two medical marijuana dispensaries. He contends there was 

insufficient evidence to sustain his conviction for attempted robbery because the 

employee fled as soon as defendant brandished a weapon. Defendant further contends 

the trial court failed to adequately consider mitigating factors when sentencing him to 

consecutive terms on the four counts of robbery. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

A. Procedural Background

The Los Angeles County District Attorney (the People) filed an amended 

information on April 21, 2014 charging defendant with second-degree robbery (Pen. 

Code, § 2111; counts 1-4 and 8-9), attempted second-degree robbery (§§ 664, 211; count 

5), attempted murder (§§ 664, 287, subd. (a); count 6), and assault with a semiautomatic 

firearm (§ 245, subd. (b); count 7). The information further alleged that defendant 

personally used a handgun (§ 12022.53, subd. (b); counts 1-4, 6, and 8-9), personally and 

intentionally discharged a handgun causing great bodily injury (§ 12022.53, subds. (c), 

(d); counts 5-6), and personally used a handgun and inflicted great bodily injury upon the 

victim (§ 12022.5, subd.(a), § 12022.7, subd. (a); count 7). As to counts 8 and 9, the 

information alleged that at the time of the commission of the offenses, defendant was 

released from custody on bail or own recognizance (§ 12022.1). 

At the conclusion of the jury trial, the court granted the defense motion for 

acquittal as to count 9. The jury found defendant guilty on counts 1 through 5 and 7. 

The jury further found true each of the special allegations as to those counts. The trial 

court found the jury hopelessly deadlocked on counts 6 and 8, declared a mistrial, and 

dismissed those counts. 

 

1All further statutory references are to the Penal Code unless otherwise indicated.
3

The court denied probation and sentenced defendant to 27 years to life in state 

prison on count 5, comprised of a base term of the mid-term of two years, plus 25 years 

to life for the enhancement pursuant to section 12022.53, subdivision (d). The court 

further imposed four years and four months on counts 1 through 4, comprised of one year 

for each count (one-third the mid-term), plus 40 months for the firearm enhancements 

pursuant to section 12022.53, subdivision (b), each to run consecutive to count 5. 

Finally, the court imposed a term of 13 years on count 7 but stayed that sentence pursuant 

to section 654. Defendant timely appealed. 

B. Evidence at Trial2

The prosecution presented evidence that defendant was involved in an armed 

robbery of a medical marijuana dispensary on May 23, 2009 and then in an attempted 

armed robbery of another dispensary on August 15, 2009, during which defendant shot an 

employee. Along with testimony at trial by employees from both dispensaries, the 

People played footage and showed photographic stills from surveillance videos taken 

during both incidents. Defendant does not contest his participation in either incident on 

appeal; thus, we have excluded from our discussion much of the evidence presented at 

trial regarding identification.

1. May 23, 2009 Robbery - Counts 1-4

In the afternoon on May 23, 2009, defendant and three other armed men robbed 

Topanga Caregivers, a medical marijuana dispensary. Ryan Salerno testified that he was 

working that day as a receptionist at the dispensary. He was responsible for letting 

patients in the front door and then “checking them in,” by entering a patient’s name into 

the dispensary computer to confirm that they had a valid medical marijuana 

recommendation from a physician. The dispensary kept electronic records of its patients, 

including copies of patients’ driver’s licenses and physician recommendations. Once a 

patient had been verified, he or she would be allowed into the locked medicine room 

where the marijuana was kept. Both the front entry and medicine room doors were kept 

 

2We omit the underlying facts of counts 8 and 9, as they were ultimately dismissed 

and are not the subject of this appeal.
4

locked; the front door had to be opened manually, while the medicine room door could be 

opened using a buzzer from the reception desk. 

On the day of the robbery, Salerno was working at the dispensary with Johnny 

Bona, Johnny’s brother Christopher Bona,3and Johnie MacDonald. At approximately 

1:30 p.m., Salerno was watching the dispensary surveillance cameras and saw a car drive 

up to the dispensary. He saw three individuals exit the vehicle and approach the 

dispensary, so he opened the front door to let them in. 

Salerno testified that he “immediately” recognized the first individual as someone 

who had come into the dispensary a few days prior. Salerno described this person as an 

African-American male, with a goatee, wearing a hat. He also had a white towel hanging 

from his pants.4Salerno described the second suspect as an African-American male with 

red sunglasses and a bald head, and the third suspect as a Hispanic male who was “really 

big.”

The three men stood in front of the desk as if they intended to check in. 

According to Salerno, Suspect 1 “looked like he was going to pull out his wallet to give 

me his I.D.” but instead “pulled out a gun,” walked around the desk behind Salerno, and 

put the gun in Salerno’s back. The other two suspects pointed guns at Salerno as well. 

Suspect 1 began swearing at Salerno and ordered him to buzz open the medicine room, 

and also slammed Salerno against the door.

Once the medicine room door was open, Suspect 1 pushed Salerno into the 

medicine room with the gun in his back, followed by the other two suspects. The three 

other employees were in the medicine room and were told to get on the floor. Suspect 1 

“dragged” Salerno into the office, where the dispensary safe was kept, and threatened to 

shoot him if he did not open the safe. Suspect 1 repeatedly counted down from ten to 

one, pointing the gun at different parts of Salerno’s body, yelling at him to open the safe. 

 

3Because they share a surname, we refer to Christopher and Johnny Bona by their 

first names for clarity.

4This individual was alternately referred to as “Suspect 1” and “towel guy” during 

trial. We refer to the suspects (other than defendant) herein as Suspects 1, 2, and 3. 

Defendant was identified as Suspect 4. 
5

When Salerno said he did not know the code, Suspect 1 hit him in the head with his gun. 

Suspect 1 then made Salerno open the cash register. Finally Suspect 1 took Salerno to 

join the other employees, and made him lie face down on the floor. Salerno was hit in the 

head four times by Suspect 1 over the course of the robbery. 

Once Salerno was lying on the floor, he was able to peek to the side to “see what 

was going on.” About five minutes into the robbery, he noticed a fourth suspect (later 

identified as defendant) enter the medicine room. Defendant was wearing “red shiny 

basketball shorts and basketball shoes” and a long, white t-shirt. At one point, Salerno 

saw defendant standing over him, filling up a bag, holding a gun. 

MacDonald, a manager at the dispensary, testified that he could hear Salerno 

“screaming and pleading for his life” as he tried to open the safe. MacDonald started 

telling the robbers that he could open the safe instead and that Salerno did not know the 

code. Suspect 1 grabbed MacDonald, put a gun to his head, and had him open the safe. 

MacDonald was loading marijuana into bags as directed by the robbers when he saw 

defendant enter. Defendant then hit MacDonald with a gun in the back of his head and 

MacDonald started bleeding. 

The suspects emptied the register and tip jar and cleared “out the rest of the 

dispensary.” Christopher, another manager, estimated that the robbers took a few 

hundred dollars cash from the register and 10-12 pounds of marijuana. Christopher 

observed defendant make several trips in and out of the dispensary as the suspects were 

loading their cars. Then “on his very last trip out he stepped over me, smashed me in the 

back of the head with the gun, and then ran out.”

Once the suspects left, the employees contacted the police and took MacDonald to 

the hospital because his head was bleeding. 

Several of the dispensary employees testified that they recognized Suspect 1 and 

defendant because both men had come into the dispensary on May 20, 2009, three days 

before the robbery. Salerno recalled that on that day, Suspect 1 (carrying a white towel 

over his shoulder) remained in the waiting room the entire time, chatting with Salerno 

and another patient. Defendant checked in with a valid recommendation and then went 
6

into the medicine room. Salerno said defendant “was acting really shady in the medicine 

room, trying to buy a bunch of product at once” and “fiddling with his pockets.”

Christopher was also present during the visit on May 20. He testified that 

defendant came into the dispensary that day, asked to see a manager, and then met with 

Christopher. Defendant pulled out a “giant” stack of money from a paper bag and said he 

wanted to buy all the marijuana in the dispensary. Christopher said he could only sell 

defendant a small amount. Christopher recalled feeling “extremely uncomfortable”

during this interaction and noted defendant’s behavior was unusual. MacDonald also 

testified that he recognized defendant as having come in a few days prior to the robbery; 

during that earlier occasion, MacDonald described defendant as “jumpy” and said 

defendant made him nervous. 

Salerno testified that within half an hour of the robbery on May 23, he looked 

through the driver’s license photos in the dispensary files in an attempt to identify 

Suspects 1 and 4, because he recognized them from their prior visit. Salerno pulled 

defendant’s file, identified defendant as Suspect 4, and gave that file to the police. 

2. August 15, 2009 Attempted Robbery - Counts 5-7

The second incident occurred on August 15, 2009 at West Valley Patient Group 

(West Valley) medical marijuana dispensary. James Tanis, one of the owners of the 

dispensary, testified that West Valley required new patients to provide a physician’s 

recommendation and a valid identification. For returning patients, Tanis would check 

their identification and confirm their patient status in the dispensary’s computer system. 

Footage from the dispensary’s surveillance cameras showed that shortly after 

10:00 a.m. on August 15, 2009, a red Mercedes pulled into the dispensary parking lot. 

Tanis testified that he saw two African-American men enter the dispensary, both wearing 

t-shirts and hats. The man wearing a red hat stayed back near the door, while the man 

wearing a black hat walked up to the check-in window where Tanis was sitting.5 Tanis 

 

5

The prosecution presented evidence that defendant was the man in the black hat 

who approached the check-in window, while the man in the red hat was the same 

individual as Suspect 1 from the Topanga Caregivers robbery. 
7

started to ask defendant for his patient information when defendant mumbled something 

and pulled out a gun.6Tanis recalled that he put up his hands and started to say 

something like “Listen, I don’t want any trouble,” but before he finished that statement, 

he “tried to spin out of the chair as quick as I could and get to the exit in the hallway.”

Tanis did not clearly see the person’s face who pulled the gun. As he ran he heard 

a pop and felt a sensation in his right arm. He yelled at his other employees to go into the 

back room, and then tried to close the door but realized he could not use his right arm. 

Once they reached the back room, Tanis looked at the security camera and saw the red 

Mercedes pulling out of the parking lot. 

Tanis was hospitalized for three days. The bullet entered his mid-back two inches 

to the left of his spine and lodged in his arm with no exit wound. The damage from the 

bullet required insertion of a metal rod into his arm, which limited his arm mobility and 

caused him pain. 

A fingerprint investigator from the Los Angeles Police Department (LAPD) lifted 

four latent prints from the customer counter at the check-in desk at West Valley. One of 

the partial palm prints matched defendant’s left palm print. 

3. Defendant’s Arrest and Interview

On September 2, 2009, LAPD officers pulled over a red Mercedes matching the 

description of the car involved in the incident at West Valley. Defendant, who was the 

registered owner of the car and was driving at the time, was arrested. Investigating 

LAPD detective Pam Pitcher searched the car the following day. She found a pair of red 

basketball shorts in the back seat that appeared to match those worn by Suspect 4 on May 

23, 2009. 

Detective Pitcher and her partner interviewed defendant on September 2, 2009 

after he waived his Miranda7rights. A partially-redacted video of the interview was 

 

6Tanis testified at the preliminary hearing and at trial that he heard mumbling. But 

he acknowledged he told the police on August 25, 2009 that he heard someone say 

something like “What’s up, mother fucker?” 

7Miranda v. Arizona (1966) 384 U.S. 436.
8

played at trial. Defendant agreed to review photos of other individuals but asked to call 

his mother before identifying anyone or providing further information about other 

suspects. After the detectives showed him a number of photos, defendant asked what he 

was being charged with. Detective Pitcher said she believed defendant was involved in 

three robberies of medical marijuana dispensaries. Defendant replied “Never. No way. I 

swear to God to you. No way.” Pitcher then showed defendant two photographic stills 

from surveillance video of Topanga Caregivers and West Valley. In response to each 

photo, defendant replied, “Okay. What else?” Detective Pitcher then showed a third 

photo from an uncharged robbery, stating she thought that one “was close.” Defendant 

responded, “That’s not me.”

DISCUSSION

A. Attempted Robbery

Defendant challenges only one aspect of his conviction on appeal. Specifically, he 

contends that there was insufficient evidence to support his conviction on count 5 for 

attempted robbery at the West Valley dispensary. We disagree.

1. Legal Principles

In reviewing a challenge to the sufficiency of the evidence, we “review the whole 

record to determine whether any rational trier of fact could have found the essential 

elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must 

disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, 

credible, and of solid value—such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the 

evidence in the light most favorable to the prosecution and presume in support of the 

judgment the existence of every fact the jury could reasonably have deduced from the 

evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, a 

“reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s 

verdict. [Citation.]” (Ibid.)
9

The same standard governs in cases where the prosecution relies primarily on 

circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 403.) Accordingly, 

we “must accept logical inferences that the jury might have drawn from the 

circumstantial evidence. [Citation.]” (Ibid.)

“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 

force or fear.” (§ 211.) “An attempted robbery requires a specific intent to commit 

robbery and a direct, ineffectual act (beyond mere preparation) toward its commission. 

[Citations.]” (People v. Medina (2007) 41 Cal.4th 685, 694; see also § 21a.) “The crime 

of attempted robbery requires neither the commission of an element of robbery nor the 

completion of a theft or assault.” (People v. Lindberg (2008) 45 Cal.4th 1, 28 [citing 

People v. Medina, supra, 41 Cal.4th at p. 694].)

2. Substantial Evidence Supports Jury’s Verdict

Defendant contends that “the facts underlying [his] conviction rest squarely on 

[his] drawing the gun” and pointing it at Tanis at the West Valley dispensary on August 

15, 2009. Thus, while he admits the evidence supports his conviction for assault with a 

firearm, he argues it does not establish beyond a reasonable doubt that he intended to 

commit a robbery at West Valley. 

Numerous cases have found sufficient evidence to support a reasonable inference 

that the defendant intended to commit a robbery even where there was no express 

demand for money or other direct statement of intent. In People v. Rodrigues (1994) 8 

Cal.4th 1060, 1128, for example, the defendant and his companion, armed with a knife 

and a tire iron, rushed into the victim’s apartment and began attacking the victim and his 

brother. During the course of the attack, defendant’s companion asked the victim, 

“where do you have it?”; the victim assumed “it” meant money or drugs and responded 

that “it” was in the closet. (Ibid.) The suspects fled when the telephone began ringing. 

(Id. at pp. 1128-1129.) The California Supreme Court rejected defendant’s challenge to 

the sufficiency of the evidence, finding that “[e]ven though the attackers were not 

specific in demanding money or drugs, the totality of circumstances . . . clearly justified 
10

the jury’s determination that an attempted robbery and burglary had taken place. (See, 

e.g., People v. Jackson (1963) 222 Cal.App.2d 296, 298 [attempted robbery conviction 

upheld where evidence established that defendant entered store, pointed a gun at store 

operator, and said only, ‘This is it.’]; People v. Gilbert (1963) 214 Cal.App.2d 566, 567-

568 [where two armed men appeared in market shortly after closing time and 

simultaneously displayed their weapons, one pointing at proprietor near cash drawer and 

the other herding remaining occupants to rear room, lack of phrase such as ‘this is a 

stickup’ or ‘hand over your money’ does not bar the reasonable inference that a forceful 

taking of property was intended].)” (People v. Rodrigues, supra, 8 Cal.4th at pp. 1129-

1130.) The court similarly upheld the conviction in People v. Banks (2014) 59 Cal.4th 

1113, 1156-1157, overruled in part on other grounds by People v. Scott (2015) 61 Cal.4th 

363, 391, fn. 3, based on evidence that defendant interacted with the victim at an ATM 

for approximately 25 seconds before raising his gun to fire, including touching the 

victim’s arm, brandishing his gun, and standing near the victim as he attempted to use the 

ATM. And in People v. Lindberg, supra, 45 Cal.4th at p. 29, the Supreme Court 

concluded that “the jury reasonably could have found that defendant harbored an intent to 

steal Ly’s property when he knocked Ly to the ground, demanded to know whether he 

had a car, and put his knife to his throat before asking him again whether he had a car.” 

Here, there was evidence at trial that defendant and his accomplices committed a 

robbery of Topanga Caregivers by approaching the dispensary appearing to be legitimate 

patients, then confronting the check-in employee with a gun. Four months later, 

defendant, again accompanied by Suspect 1, approached the West Valley dispensary in 

the same manner, pointed a gun at Tanis at the check-in window, and fired when Tanis 

attempted to flee. Given the totality of these circumstances, a jury could reasonably infer 

that defendant intended to rob West Valley, even absent an express verbal declaration of 

that intent at the time.

Moreover, the fact that defendant did not actually take any property from the 

dispensary and instead fled the scene does not defeat the jury’s finding that defendant 

attempted to commit the robbery. As noted above, it is well-settled that a completed theft 
11

is not required for attempted robbery. (People v. Lindberg, supra, 45 Cal.4th at p. 30; 

People v. Medina, supra, 41 Cal.4th at p. 694.) From the evidence presented, the jury 

could have reasonably inferred that defendant intended to commit a robbery at the 

dispensary but fled after shooting Tanis, knowing that Tanis or another employee would 

call the police. (See People v. Banks, supra, 59 Cal.4th at pp. 1156-1157; People v. 

Zapien (1993) 4 Cal.4th 929, 984 [affirming a jury’s reasonable inference that the 

defendant fled without completing the robbery because he knew someone had telephoned 

the police].) Finally, as the Attorney General points out, no evidence suggests defendant 

had any motive for pulling out a gun at the dispensary for any other purpose—for 

example, there was no evidence that defendant knew Tanis or had ever visited the 

dispensary before. As such, substantial evidence supports defendant’s conviction on 

count 5.

B. Imposition of Consecutive Sentences

Defendant also contends the trial court abused its discretion in imposing 

consecutive sentences on counts 1 through 4. He argues the court failed to adequately 

consider the mitigating factors in his case, including that counts 1 through 4 were based 

on a single incident at Topanga Caregivers and thus constituted “a single period of 

aberrant behavior,” as well as defendant’s youth (he was 19 years old at the time of the 

crimes) and minimal prior record, as balanced against the length of the entire sentence 

imposed. 

The decision to impose consecutive or concurrent sentences belongs to the 

sentencing court. (§ 669; People v. Gray (1986) 176 Cal.App.3d 520, 523-524.) In 

deciding to impose consecutive sentences, the court looks to the factors in California 

Rules of Court, rule 4.425 (rule 4.425), including, as relevant here, the fact that the 

crimes involved “separate acts of violence or threats of violence.” (Rule 4.425(a).) The 

court also may consider any other circumstances in mitigation or aggravation not relied 

upon to impose an upper term or otherwise enhance a sentence. (Rule 4.425(b).) “Only 

one criterion or factor in aggravation is necessary to support a consecutive sentence. 

[Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 552.) 
12

Defendant’s sole claim of sentencing error is that the trial court failed to “fairly 

consider” his mitigating factors under rule 4.425. This contention is not borne out by the 

record. At the sentencing hearing, the court heard statements by defendant’s family and 

argument by counsel. The court also inquired whether defendant wished to be heard, but 

he declined. The court expressly stated it considered defendant’s minimal prior record as 

a mitigating factor. In rendering consecutive terms on counts 1 through 4, the court 

explained its reasoning, concluding: “These crimes involve separate acts of violence and 

threats of violence within the meaning of Rule of Court 4.425, which justifies a 

consecutive sentence. It involved the threat of great bodily injury or great bodily harm. 

They involve a high degree of cruelty, viciousness and callousness. These victims were 

highly vulnerable, as well, as they were doing their jobs, trying to get through the day at 

the dispensary, and certainly were not looking for any trouble.” The court further noted 

that the crimes “were obviously planned out in advance, indicating a degree of 

sophistication and professionalism. And I do believe that Mr. Brown’s conduct clearly 

represents a significant danger to society.”

It is clear from the court’s statements that it found the offenses in counts 1 through 

4 involved separate acts of violence, on which it could reasonably base the imposition of 

consecutive sentences under rule 4.425. Moreover, the court identified several 

aggravating factors that further justified consecutive terms: the offenses involved the 

threat of great bodily injury, the victims were particularly vulnerable, the manner in 

which the robberies were carried out indicated “planning, sophistication, or 

professionalism,” and defendant’s violent conduct “indicates a serious danger to society.”

(Cal. Rules of Court, rule 421(a)(1), (3), & (8), 421(b)(1) [circumstances in 

aggravation].) Defendant does not dispute that these were appropriate factors for the 

court to consider. While he suggests the court should have weighed his mitigating factors 
13

more heavily, he has not demonstrated any abuse of discretion in the trial court’s 

determination.8

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

 

8Defendant’s citation to People v. Caballero (2012) 55 Cal.4th 262 is inapposite, 

as that case involves a juvenile defendant sentenced to 110 years to life (effectively life 

without the possibility of parole).