In re DONALD WILLIAM MCDOWELL on Habeas Corpus.
A157020
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE
October 15, 2020
Filed 10/15/20; Opinion following transfer from Supreme Court. CERTIFIED FOR PUBLICATION. (Sonoma County Super. Ct. No. SCR33484)
After our high court decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), McDowell filed a petition for writ of habeas corpus, challenging the special circumstance findings. We
BACKGROUND
A.
Under the first degree felony-murder rule, a defendant who commits (or attempts to commit) robbery or burglary may be convicted of murder for a killing committed during the felony. (Former
The “reckless indifference” and “major participant” requirements of
The victim in this case, 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” — a knife designed to be held in the palm of a hand, with the blade protruding between the 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 warning 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. 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.
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.
Charles P., who briefly lived with McDowell, recalled hearing a conversation, before the murder, in which Kampmann, McDowell, and others, talked 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 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, when they had trouble finding it, McDowell made a phone call. At some point, McDowell left the car for about 15 minutes. Later, after the murder, 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 (
D.
McDowell filed a direct appeal. However, McDowell did not separately challenge the sufficiency of the evidence to support the special circumstance
Approximately six years later, our Supreme Court decided, in Banks, supra, 61 Cal.4th 788, “under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty” under
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 ultimately denied the petition, concluding the special circumstance findings were adequately supported. (In re McDowell, supra, 45 Cal.App.5th at pp. 924, 933, review granted May 13, 2020, S261450, judg. vacated and cause remanded Sept. 9, 2020.)
E.
The California Supreme Court granted review (May 13, 2020, S261450) and deferred further action pending consideration and disposition of a related issue in Scoggins, supra, 9 Cal.5th 667. After the court decided Scoggins, it transferred this case back to this court, directing us to vacate our decision and to reconsider the cause in light of Scoggins. McDowell and the Attorney General filed supplemental briefing.
DISCUSSION
McDowell contends he is statutorily ineligible for life imprisonment without the possibility of parole because the evidence does not support the special circumstance findings. We disagree.
A.
The Attorney General contends habeas relief is procedurally barred. A claim that could have been raised on direct appeal may generally
Accordingly, we consider whether the record demonstrates that McDowell‘s conduct is proscribed by the special circumstances statute (
Our review of the record is deferential. The question 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 [special circumstance] 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, 63 Cal.4th at p. 610.)
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.) One end of the spectrum is illustrated by Enmund v. Florida (1982) 458 U.S. 782: a 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. (Banks, supra, 61 Cal.4th at p. 800, citing Tison, supra, 481 U.S. at p. 149.) At the other extreme is the actual killer or an aider and abettor who intended to kill, who is eligible for such punishment. (Banks, supra, at p. 800, citing Tison at p. 150.) “Somewhere between them . . . lies the constitutional minimum for death eligibility.” (Banks, supra, at p. 802.)
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
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. 805-807Id. at p. 795.) Instead, like the defendant in Enmund v. Florida, supra, the defendant in Banks was “no more than a getaway driver.” (Banks, supra, at pp. 795-796, 804-805 robbery or in procuring weapons, and, although he and two accomplices were gang members, no evidence was presented that any of them had previously committed a violent crime. (Id. at pp. 795-796, 804-805.) Having dropped his accomplices off and waited a few blocks away (ibid.), the defendant was not present at the scene of the shooting and thus did not have “any immediate role” in instigating it. (Id. at p. 805.) The Banks court also overruled earlier authorities by holding that a defendant‘s knowledge that accomplices were armed in committing robbery is insufficient, by itself, to show he or she acted with reckless indifference to human life. (Id. at pp. 807-811, 809 & fns. 8-9.)
In Clark, supra, 63 Cal.4th 522, the defendant was more than just a getaway driver. He planned and orchestrated an after-hours burglary and attempted robbery of a computer store. But he was in a car in the store‘s parking lot when an accomplice shot the mother of an employee who unexpectedly arrived during the attempted robbery. (Id. at pp. 536-538, 612-614.)
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, 63 Cal.4th at p. 614Id. at p. 615Banks factors to assess mens rea, including (1) the defendant‘s knowledge that weapons would be used and/or his personal use of weapons; (2) the defendant‘s physical presence at the scene and his opportunity to restrain the killer or aid the victim; (3) the duration of the felony; (4) the defendant‘s knowledge of his accomplice‘s propensity to kill; and (5) the defendant‘s efforts to minimize the risk of violence in the commission of the felony. (Id. at pp. 618-622.)
The Clark defendant did not carry a weapon. An accomplice carried a gun that was supposed to be unloaded, but, unbeknownst to the defendant, the accomplice had loaded it with a single bullet. (Clark, supra, 63 Cal.4th at pp. 537, 612-613, 618-619, 621-622Id. at pp. 537, 619-620Id. at p. 621Id. at pp. 537, 612-613, 620-621Id. at p. 623.)
In Scoggins, supra, 9 Cal.5th 667, the defendant believed he had been swindled by the victim and sought revenge by planning an unarmed beating, to be committed by several of the defendant‘s friends — who would also get the defendant‘s money back. Once the plan was set in motion, however, one of the defendant‘s friends pulled out a gun and shot the victim. The defendant had not been present because he feared the victim would recognize him. Instead, the defendant waited at a nearby gas station, where his view of the crime scene was blocked. He arrived at the scene after the shooting, checked to see if the victim was breathing, and cooperated with police. (Scoggins, supra, 9 Cal.5th at pp. 671-672, 678-679.)
Scoggins held that the special circumstance finding must be reversed because the defendant did not act with reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 671id. at p. 683) and reiterated the Clark mens rea factors: “Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant‘s knowledge of his or her confederate‘s propensity
The court explained that the Scoggins defendant was less culpable than the defendant in Clark given, in particular, the defendant‘s absence from the crime scene, as well as his plan, which did not involve shooting the victim or the use of any weapons. (Scoggins, supra, 9 Cal.5th at pp. 677-678 defendant‘s minimization of the risk of injury — by planning an unarmed assault, during daylight, in a public place (where the presence of witnesses may discourage violence) — the evidence was insufficient to demonstrate reckless indifference to human life. (Id. at pp. 671, 680-681, 683.)
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 v. Florida, 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 burglary. On the day of the crimes, McDowell knocked on Meehan‘s door and entered first, brandishing 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 violent was obvious.
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 warning shot into the floor, there was 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 the record 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, 61 Cal.4th at p. 807, second italics added.) “Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a ‘grave risk of death’ satisfies the constitutional minimum.” (Id. at p. 808.) “[A]lthough the presence of some degree of defendant‘s subjective awareness of taking a risk is required,