People v. Drummer CA6
H048576
| Cal. Ct. App. | Mar 9, 2022Background
- Defendant Marcellous Drummer was convicted by a Santa Clara County jury (2014) of murder and related offenses after a home-invasion robbery in which the victim died by asphyxia; the jury found the felony-murder special circumstance true.
- Trial theory and instructions included first-degree felony murder and CALCRIM 703 on aider-and- abettor liability for nonkillers (major participant + reckless indifference). Prosecutor conceded Drummer was not shown to be the actual killer.
- DNA and cell‑phone evidence tied Drummer to the scene; eyewitnesses and accomplice statements placed him at the robbery, and witnesses reported he “sat and watched.”
- Banks and Clark (California Supreme Court decisions clarifying the major‑participant and reckless‑indifference standards) issued while Drummer’s direct appeal was pending; Drummer did not raise those issues on direct appeal.
- In 2019 Drummer petitioned under Penal Code § 1170.95 (post–Senate Bill 1437) seeking resentencing; the trial court (in 2020) denied the petition, deeming the jury’s pre‑Banks/Clark special‑circumstance finding “binding” and relying in part on the judge’s recollection from a co‑defendant’s trial.
- The Court of Appeal reversed and remanded: because no court has evaluated whether the evidence supports the felony‑murder special circumstance under Banks and Clark, the trial court must perform the limited § 1170.95(c) prima facie sufficiency review (and explain its decision) rather than treat the prior finding as automatically preclusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pre‑Banks/Clark felony‑murder special‑circumstance finding precludes eligibility for relief under § 1170.95 | The jury already found the special circumstance true, so Drummer is ineligible and § 1170.95 relief is barred | Pre‑Banks/Clark findings are not dispositive because no court has applied Banks/Clark; petitioner may still make a prima facie showing | Reversed: prior special‑circumstance finding does not automatically preclude a § 1170.95 prima facie showing when no Banks/Clark sufficiency review has occurred; remand for § 1170.95(c) review |
| Whether the trial court properly relied on the jury finding as "binding" and a judge’s memory of a co‑defendant’s trial when denying the petition | The jury’s finding is part of the record of conviction and dispositive; court may consider trial evidence | The court erred by treating the jury finding as conclusively binding and by relying on memory of a separate trial not in Drummer’s record of conviction | Court erred: the court must perform the Banks/Clark sufficiency analysis under § 1170.95(c) and must not rely on facts from a trial at which Drummer was not present as part of his record of conviction |
| Scope of the § 1170.95(c) prima facie inquiry | Trial court may rely on the record of conviction to rebut the petition at the prima facie stage | Petitioner’s factual allegations must be accepted as true unless refuted by the record; the inquiry is limited and fact‑finding is inappropriate | The court must conduct the limited prima facie inquiry (accept alleged facts as true unless the record refutes them) and, if unresolved, issue an OSC and proceed to an evidentiary hearing under § 1170.95(d) |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (clarified major‑participant factors for felony‑murder special circumstance)
- People v. Clark, 63 Cal.4th 522 (clarified reckless‑indifference factors for felony‑murder special circumstance)
- People v. Lewis, 11 Cal.5th 952 (explained § 1170.95 procedure and limited prima facie inquiry)
- People v. Drayton, 47 Cal.App.5th 965 (discussed the low prima facie burden and limits on factfinding at § 1170.95(c))
- People v. Secrease, 63 Cal.App.5th 231 (held that where no Banks/Clark review occurred, court must assess sufficiency under Banks/Clark at § 1170.95(c))
- People v. Pineda, 66 Cal.App.5th 792 (remanded for Banks/Clark sufficiency review at the § 1170.95(c) stage)