Case Information
*1 Filed 2/26/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
In re DONALD WILLIAM
MCDOWELL
A157020 on Habeas Corpus. (Sonoma County
Super. Ct. No. SCR33484)
Donald McDowell and Tyson Hutchison planned and executed a burglary and an attempted armed robbery of a drug dealer. Hutchison shot and killed the drug dealer. Although he was not the actual killer, McDowell was sentenced to life imprisonment without the possibility of parole after a jury convicted him of, among other things, first degree murder (Pen. Code, § 187, subd. (a)) 1 and found true robbery-murder and burglary-murder special circumstances (§ 190.2, subds. (a)(17)(A), (G)).
After our high court decided
People v. Banks
(2015)
B ACKGROUND
A.
Under the first degree felony-murder rule as it existed at the time of
the shooting, a defendant who committed (or attempted to commit) robbery or
burglary could be convicted of murder for a killing committed during the
felony without further examination of his or her mental state. (Former § 189,
amended by Stats. 1999, ch. 694, § 1;
People v. Chun
(2009)
The “ reckless indifference ” and “ major participant ” requirements of
section 190.2, subdivision (d), codify the limits announced in
Tison v. Arizona
(1987)
B. 2
The decedent, James Meehan, was a methamphetamine dealer. On June 9, 2002, at about 3:00 a.m., Meehan was at his Santa Rosa residence with James L. and Micki A.
Micki responded to a knock on the door, and McDowell entered the house. McDowell was armed with a “palm knife” — he held the knife handle in his palm, and the blade protruded through his index and middle fingers. Hutchison entered the house shortly after McDowell. Hutchison carried a small black revolver, which he pointed at Meehan, Micki, and James, while standing behind McDowell.
One of the two men said, “ Give me your stuff .” McDowell looked straight ahead at Meehan and said, “ Where ’ s the shit? ” When Meehan said, “I don’t have none” or “ ‘ [t]here ’ s nothing here, ’ ” Hutchison fired a shot into the floor next to Meehan. In response, James said, “ ‘[p]lease don’t hurt him. ’ ” Meehan said, “ kill me if you ’ re going to kill me. ” Micki grabbed a hard plastic case containing a drill and struck McDowell in the chest with it, knocking McDowell down. Meehan tried to grab the gun from Hutchison. Hutchison then fired two shots at Meehan who, grabbing his chest and bleeding from the mouth, stumbled into his bedroom and collapsed.
2 The facts are primarily taken from this court’s unpublished opinion in McDowell’s direct appeal. ( People v. McDowell (June 2, 2009, A119754) [nonpub. opinion.].) We deny as unnecessary the Att orney General’s request for judicial notice of the appellate record. (See In re Reno (2012) 55 Cal.4th 428, 484 [“Petitioners need not separately or specifically request judicial notice of all documents connected with their past appeals”].) *4 McDowell and Hutchison fled. Micki called 911 and attempted first aid. Meehan died as a result of two gunshot wounds to his torso.
Meehan was shot only “a few seconds” or a brief “pause” after Hutchison’s first shot into the floor. The whole incident took “[m]aybe like a minute.”
Pamela S. testified that on the weekend of the murder, she allowed McDowell and Hutchison to house-sit. Before she left, she told Hutchison she kept a .22-caliber revolver in her bedroom nightstand. A firearms examiner identified the revolver as the murder weapon. McDowell later told Pamela ’s daughter that he had been at the scene of the murder, in June 2002, and that he had to leave town afterward.
Harry S., who lived near McDowell at the time of the crime, testified that two days after the murder, McDowell said he and Hutchison had gone to the victim’s home to “rip off a dealer” and “tak[e] [his] stuff. ” McDowell also said that a girl had hit him with a briefcase, he had not known that Hutchison had a gun, and he was “stunned” when Hutchison shot the victim.
K.F. recalled a conversation, before the murder, between McDowell and Joe Kampmann. Kampmann sa id “some guy” in Santa Rosa owed him money, and that “if he didn’t have money, then [he] had drugs.” Kampmann added, “If he didn’t want to pay up, . . . he would be easy to take.” Kampmann later shared a newspaper article about a homicide in Santa Rosa. K.F. discussed the article with McDowell, who told her that Hutchison shot the victim and that someone had hit him over the head.
Charles P., who briefly lived with McDowell, recalled hearing a conversation, in June 2002, between Kampmann, McDowell, and others, about a man who had “ a lot of money and drugs in [a] safe. ” Charles believed Kampmann was “angry” because the man had “burned” him in what Charles *5 inferred was “a dope deal gone bad.” McDowell asked Kampmann where the man lived. After the murder, McDowell tearfully told Charles that he had not intended to kill anyone and that he did not know Hutchison had a gun. McDowell stated he had only intended to “collect some money and dope” and to “[b]ully the guy.”
A couple of days before the murder, McDowell’s former neighbor (Sandy B.) gave him a ride to Santa Rosa. They drove around a residential neighborhood trying to find Meehan’s house, and McDowell made a phone call when he could not find it. At some point, McDowell left the car for about 15 minutes. On a later occasion, McDowell showed Sandy a newspaper article regarding a homicide. McDowell was upset and told Sandy that Hutchison had killed someone when the two men had “ gone back to the house. ”
C.
A jury convicted McDowell of first degree murder (§ 187, subd. (a), count one), attempted robbery (§§ 664, 211, count two), and burglary (§ 459, count three). The jury also found both the burglary-murder and robbery- murder special circumstance allegations (§ 190.2, subd. (a)(17)(A), (G)) true. The jury also found true allegations that a principal was armed during the commission of these offenses (§ 12022, subd. (a)(1)) and that McDowell personally used a deadly or dangerous weapon, a knife (§ 12022, subd. (b)(1)), in the commission of attempted robbery. McDowell was sentenced to a term of life imprisonment without the possibility of parole for special circumstance murder and a consecutive sentence of six years for his use of a deadly weapon and for a prior serious felony conviction (§§ 667, subd. (a)(1), 1170.12).
D.
McDowell filed a direct appeal. However, McDowell did not separately challenge the sufficiency of the evidence to support the special circumstance findings. This court affirmed the judgment in its entirety in an unpublished opinion, People v. McDowell (June 2, 2009, A119754) [nonpub. opinion].
Approximately six years later, our Supreme Court decided, in
Banks,
supra
,
More than two years later, McDowell filed a petition for a writ of
habeas corpus in the superior court, arguing that, under
Banks
, the evidence
against him was insufficient to support the special circumstance findings.
After the superior court denied the petition, McDowell, acting pro se,
petitioned for habeas corpus relief in this court. We ordered the Secretary of
the Department of Corrections to show cause why McDowell was not entitled
to relief and appointed counsel to represent him. We limited our order to
show cause to the
Banks/Clark
issue, and we do not address any other claims
raised in McDowell’s habeas petition. (
People v. Bloyd
(1987)
D ISCUSSION
McDowell contends he is statutorily ineligible for life imprisonment without the possibility of parole because substantial evidence does not support the special circumstance findings. We disagree.
A.
“The standard of review for a sufficiency of the evidence claim as to a
special circumstance is whether, when evidence that is reasonable, credible,
and of solid value is viewed ‘in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
allegation beyond a reasonable doubt.’ [Citations.] . . . We presume, in
support of the judgment, the existence of every fact the trier of fact could
reasonably deduce from the evidence, whether direct or circumstantial.”
(
Clark, supra
,
B.
The
Banks
court noted that felony-murder participants may be placed
on a culpability spectrum. (
Banks, supra
, 61 Cal.4th at pp. 794, 800, 802,
811.) At one end of the spectrum is the getaway driver who was “ ‘not on the
scene, who neither intended to kill nor was found to have had any culpable
mental state,’ ” and who is
not
eligible for the death penalty or life without
parole. (
Id
. at p. 800, citing
Tison, supra,
To aid the determination of where to place a particular defendant on that continuum, Banks provided a list of nonexclusive factors: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” ( Banks, supra , 61 Cal.4th at p. 803, fn. omitted.) “No one of these considerations is necessary, nor is any one of them necessarily s ufficient.” ( Ibid .)
Applying those factors, the
Banks
court concluded there was
insufficient evidence that the appealing defendant was a “major participant . ” (
Banks, supra
, 61 Cal.4th at pp. 805-807.) Like the defendant in
Enmund v.
Florida
,
supra
,
In
Clark, supra
,
The
Clark
court deemed it unnecessary to decide whether the
defendant was a “major participant” because the evidence was insufficient to
show the defendant had acted with reckless indifference to human life.
(
Clark, supra,
The Clark defendant did not carry a weapon, and the sole weapon involved was a gun carried by his accomplice, loaded with a single bullet. ( Clark, supra , 63 Cal.4th at pp. 537, 612-613, 618-619.) The defendant was also at the far end of the parking lot at the time of the shooting, near the store ’s loading doors , and thus had no chance to intervene or prevent the *10 shooting. ( Id. at pp. 537, 619-620.) There was no evidence the defendant knew the shooter had a propensity for violence or that the defendant could predict the use of lethal force by having an opportunity to observe his accomplice ’ s demeanor immediately before the shooting. ( Id . at p. 621.) Finally, the robbery had been planned for after closing time, and the defendant expected his accomplice would minimize employee contact by handcuffing employees in a bathroom. ( Id. at pp. 537, 612-613, 620-621.) The court concluded there was “nothing in the plan that . . . elevated the risk to human life beyond those risks inherent in any armed robbery.” ( Id. at p. 623.)
C.
We are not persuaded that McDowell’s “major participant” finding is unsupported. To be a major participant, “a defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” ( Banks, supra , 61 Cal.App.4th at p. 802.)
This case is different from McDowell’s cited cases in several key respects. First, unlike the defendants in Enmund and Banks, McDowell was instrumental in planning and directly perpetrating the burglary and attempted robbery that led to Meehan’s death. ( Enmund, supra , 458 U.S. at pp. 784, 795; Banks, supra , 61 Cal.4th at pp. 795-796, 804-805.) The evidence suggests McDowell helped plan the robbery after hearing Kampmann talk of being “burned” by a drug dealer who had money and drugs in a safe. In particular, McDowell asked where the dealer lived and then checked out Meehan ’s house before the b urglary. On the day of the crimes, McDowell knocked on Meehan’s door and entered first, brandish ing a knife to facilitate Hutchison’s entrance , and demanded , “ [W]here is the shit ?”
Although there is no evidence McDowell supplied the murder weapon, McDowell was himself armed with, and brandished, a deadly or dangerous weapon. Moreover, McDowell’s decision to arm himself with a palm knife should be viewed in combination with the particularly risky crime that he planned and led — a home invasion robbery of a methamphetamine dealer. This was not a garden-variety robbery. (See Clark , supra , 63 Cal.4th at p.617 & fn. 74.) The potential for it to turn deadly was obvious.
In further contrast with the authorities McDowell relies on, McDowell
was present at the scene of the shooting and had an opportunity to restrain
Hutchison, or otherwise intervene on Meehan’s behalf , either when he
entered Meehan’s house and realized they would be outnumbered or, at the
very least, after Hutchison fired the first shot. (Cf.
Banks, supra
, 61 Cal.4th
at p. 795;
Clark, supra
, 63 Cal.4th at pp. 619-620;
In re Ramirez, supra,
32
Cal.App.5th at p. 405 [ defendant was not “close enough to exercise a
restraining effect” ];
In re Bennett
(2018)
McDowell attempts to minimize his opportunity to intervene by pointing out that he was knocked to the ground during the seconds that passed between the first and second shots. We agree that the opportunity was brief, but we reject McDowell’s argument that he had no time to say or do something. After Hutchison fired the first round into the floor, there was *12 enough time for others to take action: James implored the intruders not to hurt Meehan, Meehan said , “kill me if you are going to kill me,” and both Micki and Meehan physically fought back.
Considering these circumstances in total, we conclude substantial evidence supports the finding McDowell was a major participant in the felony that led to Meehan’s death .
D.
Although McDowell presents a closer question on “reckless indifference to human life, ” we conclude substantial evidence also supports that finding.
1.
Reckless indifference requires a defendant to be “ ‘ “
subjectively
aware
that his or her participation in the felony involved a
grave risk
of death.” ’ ”
(
Banks, supra
,
2.
With respect to the first Clark factor (knowledge and use of weapons), e ven accepting McDowell’s self -serving statements after the crime that he did *13 not know Hutchison had a gun, it is nonetheless true that McDowell himself brought a knife to Meehan’s house (and brandished it) in an effort to rob Meehan. Indeed, if he truly did not know that Hutchison was armed, the inference is stronger that McDowell was prepared to use his knife. Furthermore, McDowell knew, by no later than the first shot, that Hutchison was both carrying and willing to fire a gun. Thus, the first Clark factor cuts against McDowell’s position.
Our Supreme Court has emphasized that the planning of or participation in a felony, even one in which the perpetrators will be armed, is not by itself sufficient to show reckless indifference. ( Clark, supra , 63 Cal.4th at pp. 613-623; Banks, supra , 61 Cal.4th at pp. 807-810.) Here, however, McDowell was not only armed with a deadly weapon, and (at some point) knew Hutchison was armed with and willing to fire a gun, but he also chose to plan and lead a crime with a particularly high risk of violence — a home invasion robbery of a drug dealer. In this scenario, it was foreseeable that customers or others could be present, even early in the morning, and that either the dealer himself or his customers might be armed or high and thus more likely to resist.
Moreover, when McDowell first entered the house, it was immediately
obvious that he and Hutchison were outnumbered, increasing the chances of
resistance. Yet McDowell chose to proceed. While competing inferences are
possible, a reasonable jury could infer that McDowell was aware that the
situation could quickly turn deadly. (See
People v. Gonzalez
(2016) 246
Cal.App.4th 1358, 1364, 1385, affd. on other grounds in
People v. Gonzalez
(2018)
As we discussed above, McDowell’s proximity to the crime and opportunity to restrain Hutchison also increase his culpability. In contrast to the defendant in Clark , McDowell was in a position “ to observe anything in [ the shooter’s ] actions just before the shooting that would have indicated that [the shooter] was likely to engage in lethal violence.” ( Clark, supra, 63 Cal.4th at p. 621.) Hutchison’s first shot certainly qualifie s. The standoff then grew more fraught when Meehan responded to the warning shot by saying, “kill me if you are going to kill me.” In this moment, there was a brief but critical opportunity for McDowell to say or do something to deescalate the situation. Instead, he remained silent as others (James, Meehan, and Micki) verbally and physically intervened. Thus, jurors could have reasonably inferred McDowell ignored chances to minimize the risks of lethal violence that were inherent in his plan and that materialized as he carried it out. (See Loza, supra, 10 Cal.App.5th at pp. 51, 53 [defendant had “time to observe and react before the murder” because he heard accomplice threaten to shoot and count to five].)
The duration factor weighs somewhat in McDowell’s favor , given the rapid chain of events after McDowell and Hutchison entered Meehan’s home. Nor was there any evidence that McDowell knew Hutchison had a violent past. With respect to aiding Meehan after the shooting, McDowell’s flight does not cut one way or the other given the possibility that James and Micki would summon aid, which in fact they did. (See Clark, supra , 63 Cal.4th at p. 620.)
On this record, substantial evidence supports the conclusion McDowell
acted with reckless indifference to human life. His culpability reflects the
fact that he was deeply involved in planning and carrying out a crime with
obvious risks of lethal violence. (See
Banks
,
supra
,
D ISPOSITION
The petition for writ of habeas corpus is denied. *16 _________________________ BURNS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
SIMONS, J.
A157020
Superior Court of Sonoma County, No. SCR33484, Hon. Rene A. Chouteau Donald McDowell, in pro. per. and Victor J. Morse, By Appointment of the First District Court of Appeal under the First District Appellate Project, for Petitioner.
Xavier Becerra, Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, and David H. Rose, Deputy Attorney General, for Respondent.