They noted that after Brandy's anus had been cut open "the defendant inserted his penis inside her" and later "laughed when Francisco Martinez rammed a broom handle up her rectum...The child was screaming and begging to be allowed to go home. The defendant and other members of the Deuce-Seven disregarded her cries...Though the defendant's conduct cannot be measured by the acts of Francisco Martinez, the defendant did not intercede in any way to prevent or object to this brutal assault by Francisco Martinez, his lifelong friend and gang associate."
The judges further concluded that "the defendant handcuffed the naked, bleeding child and threw her into a corner with a hood over her head. Trapped in darkness, the child was forced to listen as the defendant conducted and directed the gang's discussions in her presence as to the manner in which she should be executed."
Then, during the ride into the mountains, "the defendant restrained the child as Francisco Martinez leaned from the front passenger seat of the vehicle and stabbed her repeatedly in the midsection." After that, Danny did not "interfere, object or attempt to dissuade" his friend from stabbing Brandy 28 times and heaving her body down the embankment onto the rocks below.
"The defendant never suggested that the child's life should be spared, or attempted in any way to provide physical or emotional support to the child in the last hours of her life."
The two judges found, however, that the state had not proved beyond a reasonable doubt that Danny had intentionally killed a kidnap victim. Their hangup was the word "intentionally." Although they agreed that Brandy had been kidnapped--she was taken against her will from Uncle Joe's to her execution--they concurred that Danny could not have "intended" to kill her because he did not inflict the fatal wounds.
Nor would the judges accept the aggravator that Danny intentionally killed Brandy "in the course of, or furtherance of, or immediate flight therefrom" committing a felony. Once again--although the judges noted the prosecution had proved that Danny committed first-degree assault, first-degree sexual assault and sexual assault on a child by use of force--they balked at the word "intentionally."
The two judges rejected most of the mitigators offered by the defense, including its argument that Danny's participation in the murder "committed by another" was "relatively minor." Nor could Danny blame his conduct on the influence of drugs and alcohol; no one made him drink that night, they said.
Under the catchall "any other evidence...that bears on the question of mitigation," the judges had sympathized that "the defendant endured a difficult and even tragic childhood without the support of a traditional family unit or paternal bonding. Almost from birth, he and his siblings had to adjust to changing environments that were largely unstable, underprivileged, non-nurturing, emotionally injurious and even dangerous." They had taken his childhood into account during their deliberations, along with his apology to the family of Brandy DuVall.
Taking the third step, the judges concluded that the aggravators outweighed the mitigators. This made Danny eligible to be considered for the death penalty.
At this fourth step, they noted that Danny's history and background included a long series of decisions to engage in criminal conduct. "The defendant and his brother, Antonio Martinez, established the Deuce-Seven Crenshaw Mafia Gangsters, a subset of the Bloods, in the middle of Crips gang territory," they noted--an act that "evinced an attitude of reckless indifference to the possibilities of violence and confrontation between gangs...The defendant grew up in a gang subculture of violence, and not only adopted its value system, but promoted and encouraged others to do the same."
Danny had his opportunities to avoid the path he was on, they determined. "Even on the night in question, defendant had a chance to leave his uncle's house with his brother, Antonio, but he chose instead to stay with his gang."
The judges recalled that in his statement to Brandy's family, Danny said he couldn't explain what happened in the early-morning hours of May 31, 1997. "But this is not a case about simply making a few wrong turns in life. Many people are raised in difficult circumstances similar to those which confronted the defendant in his formative years. These circumstances do not inevitably lead to a life of crime as chosen by the defendant."
Brandy was only fourteen and petite, the judges wrote, "unable to resist the assault and preparations for her death in any significant way. Her torture was systematic, complete, dehumanizing. The criminal acts committed against her were abhorrent, vicious and merciless."
The judges had not bought into the lawyers' attempts to deflect scrutiny of Danny's culpability by highlighting the criminal actions of his friend, Francisco. "His individual participation in her murder is not rendered marginal merely because he did not hold the murder weapon as it penetrated the victim's body...The fact that the defendant did not administer the lethal wounds is a circumstance which pales when measured against the series of brutal acts leading up to the killing of Brandy DuVall."