In re DEANDRE LAMAR MOORE on Habeas Corpus.
A154032
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 8/31/21
CERTIFIED FOR PUBLICATION
(San Mateo County Super. Ct. No. SC-31458-B)
Since Banks and Clark were decided, many defendants have filed habeas corpus petitions, challenging the sufficiency of the evidence supporting their felony-murder special-circumstance findings. In a number of those cases, the Courts of Appeal have summarily denied the petition only to have our high court issue an order to show cause requiring them to reconsider their summary denials under Banks and Clark.
That is what happened here. A jury convicted petitioner Deandre Moore of, among other things, murder (
We now conclude that a defendant‘s youth at the time of the offense should be a factor in determining whether that defendant acted with reckless indifference to human life under
A. Facts2
On the evening of December 3, 1991, codefendants Athain Russell and Moore (collectively, defendants),3 together with an accomplice, Brian Winston, stole a car from the parking lot of the Fashion Fair mall in Fresno. The trio drove through the mall parking lot until they spotted Robert Luecke, who was getting out of a parked car with his fiancee and younger sister. One of the defendants—presumably Russell—got out of the stolen car and robbed Luecke and his fiancee at gunpoint. After Luecke and his fiancee handed over their valuables, Russell, without provocation, fired two shots at Luecke at close range. One shot from the .22-caliber handgun hit Luecke‘s chest and passed through his heart, killing him.
1. The Shooting
Lonnie Packard testified in exchange for the prosecution‘s promise to dismiss burglary charges that were pending against him. According to Packard, on the late afternoon or early evening of December 3, 1991, he was driving on Geneva Street in Fresno, looking to purchase “rock cocaine.” While he was there, Russell, whom Packard knew, approached his vehicle and told Packard he would pay for a ride across town. Packard agreed to give him a ride. Russell and his companion, Winston, then got into Packard‘s station wagon. At Russell‘s request, Packard drove to several locations in an attempt to find Moore. Eventually, they found him standing in front of a residence on Geneva. Russell invited Moore to go with them across town to steal a vehicle. Moore agreed and got into Packard‘s car.
On the way across town, Packard stopped at an auto parts store to allow Moore, Russell, and Winston to purchase a “dent puller” and a pair of gloves to use in the auto theft.4 Packard then drove them directly to the Fresno Fashion Fair mall. Packard stopped in the parking lot while Russell, Moore, and Winston discussed what kind of car they wanted to steal. They also discussed carjacking a vehicle, but Packard said they were crazy and he would have no part of that. However, the three others agreed it would be a good idea to try a carjacking.
About the same time Moore, Russell, and Winston were stealing the Mazda, Luecke, his 13-year-old sister K.L., and his fiancee Mari G. were finishing up dinner at a restaurant in the Fashion Fair mall (6:30-7:00 p.m.). They walked out to Mari G.‘s car, and Luecke drove them around the other side of the mall to go shopping at Macy‘s. They drove down a driveway that ran directly in front of Macy‘s and turned right down a parking aisle where the parking spaces angled away from Macy‘s. As they drove down the aisle, Mari G. noticed a car behind them. Although that car was going slowly, it did not pull into an empty parking space near the one where Luecke parked.
A few moments later, as the victims were getting ready to leave their car, Mari G. noticed the car that had been following them parked a few car lengths away. The car was facing the wrong direction in the one-way aisle. Mari G. mentioned to Luecke there were people in the car looking at them and said she thought they might be intending to steal a car. As a precaution, Luecke put a “club” type antitheft device on the steering wheel and took the car‘s portable CD player with him.
Luecke and his companions then left their car. As they did so, the suspicious car pulled up and a young, tall Black man got out of the passenger side. He approached Mari G., pointed a handgun at her, and demanded her wallet. Mari G. handed her entire purse to the gunman. The gunman then moved on to Luecke and demanded his wallet. Luecke handed over his wallet, as well as the bag containing the CD player he was carrying.
After surrendering his wallet, Luecke slowly backed away from the gunman with his hands up. When he stopped, the gunman fired a single shot at Luecke‘s chest. The gunman started to move backward but then took a step forward and shot at Luecke a second time, this time aiming downward. After he fired the second shot, the gunman returned to his car and got into the back seat. The car drove away.
Mari G. immediately ran into Macy‘s for help, while K.L. stayed with Luecke. An ambulance took Luecke to a local hospital. Doctors pronounced
At trial, Mari G. identified Moore as the triggerman. However, other witnesses who were in the parking lot and had observed the shooting described the assailant as a “tall” Black man. Moore was only 5’ 6” tall, while Russell was 6’ 1” tall at the time of the shooting. Several of the witnesses agreed the gunman was wearing a long, black parka inscribed with a sports insignia.
Shortly after the shooting, a witness observed a blue car stopped behind her car at a red light. The car had almost rear-ended her before stopping. Looking into her rear-view mirror, the witness saw three young Black men laughing. The witness identified Moore and Russell as two of the young Black men in the blue car.
The day after the shooting, Packard saw Russell on Geneva Street. He asked him if they had “done” the shooting at the Fashion Fair mall. Russell said they had. According to Packard, Russell seemed “happy” about it.
2. Investigation
A witness who observed the shooting tried to memorize the license plate number of the assailant‘s car. That number was communicated to the police. In the meantime, the owner of the stolen blue Mazda—Mary H.—called the police to report that her car had been stolen from the Fashion Fair parking lot. An officer who responded to the scene of the shooting noticed that the license plate number of the gunman‘s vehicle was similar to the license plate number of Mary H.‘s stolen vehicle. This information was broadcast over police channels. The broadcast specified that Mary H.‘s car was a suspect vehicle in the Fashion Fair murder.
About 9:20 p.m., Fresno police officers spotted Mary H.‘s stolen car. The car was parked on the side of a road about seven miles from the Fashion Fair mall. When the police found the car, its engine was still running. The passenger side door lock and the ignition had been “punched“; that is, they had been forcibly removed with a tool. Inside the car, the police found a dent puller, .22-caliber shell casings, live .22 bullets, a compact disc carrier, a paycheck stub and deposit slip in the name of Mari G., a receipt in the name of Luecke, and a program for a play that Mary H. had left in the car.
The police lifted a latent palmprint from the play program they found in the car and determined that Winston had left the print. A week after the
A few days later, Packard, who was in custody for a commercial burglary, had his attorney contact the police to let them know he had information concerning the Fashion Fair shooting. The prosecutor agreed to dismiss the burglary charge in exchange for Packard‘s “truthful testimony” concerning the homicide. The prosecutor did not provide Packard with immunity for the robbery-homicide and indicated that if the evidence showed Packard “was involved in the actual robbery/homicide” then the “deal . . . would be off.” Packard told the police about his involvement in the theft of Mary H.‘s Mazda and gave the police information which allowed them to find the gun used in the homicide. Specifically, Packard said Russell gave the gun to Packard‘s son; Packard in turn pawned it to the owner of a wrecking yard. The police located the gun—a .22-caliber semiautomatic—and determined that the bullet retrieved from Luecke‘s body had been fired from that weapon.
Armed with this new information, the police arrested Moore and Russell. They questioned Moore first. He initially denied any involvement in the shooting. Eventually, however, the police showed Moore the murder weapon, and shortly thereafter, Moore confessed. He stated that a “dude” in a station wagon gave him a ride to the Fashion Fair mall. There, Moore stole a blue car. He admitted that while he was driving the vehicle “the robbery [and] shooting occurred,” but he claimed he was only responsible for stealing the car.
The police also interviewed Russell. Russell waived his Miranda rights and initially told the police he was not involved in the robbery or shooting. However, after the police showed Russell the murder weapon, he eventually confessed. Russell said he had gotten a ride to the Fashion Fair mall with a “dude” whose name he did not know. Russell admitted he stole a car at the mall. While he was driving in the Fashion Fair parking lot, he saw a man get out of a car with some girls. Russell got out of the stolen car and robbed the man and the girls at gunpoint. According to Russell, the victims threw the purse, wallet, and CD player onto the ground. As Russell was picking these items up, the male victim appeared to reach into his rear pocket. Russell panicked and started shooting. He believed he fired three or four times but was not sure. Russell then got into the back seat of the stolen car, and the car drove away.
The police searched Russell‘s room and seized a “three-quarter length” Los Angeles Kings jacket. The police also found a .22-caliber shell casing inside Winston‘s house.
On December 18, 1991, the Fresno police conducted two live lineups. One contained Moore and one contained Russell. Of the seven people who viewed the lineups, only Mari G. picked Russell out of a lineup. She stated he was the shooter. She was only certain to a level of seven out of ten because the person she picked had a mustache which he did not have on the night of the crime. Neither Mari G. nor any other witness picked Moore out of his lineup. At the preliminary hearing, Mari G. again identified Russell as the shooter. However, at trial, she identified Moore as the person with the gun.
B. Procedural History
A jury convicted Moore and Russell of first degree murder (
This division affirmed the judgment in an unpublished opinion. (People v. Moore (Sept. 24, 1996, A064703) p. 51.) In finding sufficient evidence to support the robbery-murder special-circumstance finding against Moore, we initially concluded that “[t]he jury could reasonably infer Moore knew Russell was armed with a handgun before they committed the car theft and robbery” and “anticipated
After Banks was decided, Moore filed a petition for writ of habeas corpus with the trial court, challenging the sufficiency of the evidence for the robbery-murder special-circumstance finding. The trial court denied the petition, and Moore appealed. At Moore‘s request, this court dismissed the appeal.
Moore then filed the instant petition. After this court summarily denied the petition, our high court issued an order to show cause “why [Moore] is not entitled to relief based on his claim that there was insufficient evidence to support the robbery-murder special circumstance finding and whether [Moore‘s] youth at the time of the offense should be one of the factors considered under” Clark and Banks.
DISCUSSION
Because Moore was not the “actual killer,”6 the robbery-murder special-circumstance finding may be upheld only if there is substantial evidence that Moore was a “major participant” in the criminal activities and that he acted with “reckless indifference to human life . . . .” (
A. Banks, Clark, and Their Progeny
In Banks, supra, 61 Cal.4th at page 794, the California Supreme Court examined “under what circumstances an accomplice who lacks the intent to kill may qualify” for the death penalty or life without the possibility of parole under
According to our high court, the U.S. Supreme Court in Tison “addressed the gray area in between, the proportionality of capital punishment for felony-murder participants, who . . . fell ‘into neither of these neat categories.’ ” (Banks, supra, 61 Cal.4th at p. 800.) The defendants in Tison “helped
To determine where on the spectrum between Enmund and Tison the conduct of a defendant guilty of felony murder falls, Banks identified various factors that “may play a role . . . .” (Banks, supra, 61 Cal.4th at p. 803.) Those factors include: “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?” (Ibid., fn. omitted.) “No one of these considerations is necessary, nor is any one of them necessarily sufficient” to establish that a defendant is a major participant under
Banks also discussed the evidence necessary to establish reckless indifference to human life, the mental state required under
Applying these principles, our high court found insufficient evidence to support the felony-murder special-circumstance finding in Banks. Although the evidence established that the defendant was “the getaway driver for an
Less than a year later, the California Supreme Court elaborated on the mental state required under
In defining reckless indifference to human life, Clark adopted the Model Penal Code definition. (Clark, supra, 63 Cal.4th at p. 617, fn. 73.) Thus, reckless indifference “has a subjective and an objective element. [Citation.] As to the subjective element, ‘[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’ [Citations.] As to the objective element, ’ “[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor‘s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor‘s situation.” ’ [Citations.] ‘Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating a “grave risk of death” ’ satisfies the statutory requirement. [Citation.] Notably, ‘the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used’ is not sufficient to establish reckless indifference to human life.” (Scoggins, supra, 9 Cal.5th at p. 677, quoting Clark, supra, 63 Cal.4th at pp. 617, 623, and Banks, supra, 61 Cal.4th at pp. 801, 808.)
Clark also identified various factors that may play a role in determining whether a defendant acted with reckless indifference to human life. Those “factors include: 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
Considering these factors, our high court vacated the felony-murder special-circumstance finding in Clark. Although the defendant “was the principal planner and instigator of the robbery” (Clark, supra, 63 Cal.4th at p. 622) and was aware that his confederate had a gun (id. at p. 613), he did not instruct his confederate “to use lethal force” (ibid.) and had no opportunity “to intervene to prevent [the victim‘s] killing” (ibid.). There was also no evidence that the shooter “was known to have a propensity for violence, let alone evidence indicating that [the] defendant was aware of such a propensity.” (Id. at p. 621.) Finally, the defendant made some effort to minimize the risk of violence by planning the robbery “for after closing time, when most of the store employees were gone.” (Id. at p. 620.) Based on these considerations, our high court concluded “that there is insufficient evidence to support the inference that [the] defendant was recklessly indifferent to human life.” (Id. at p. 623.)
More recently, the California Supreme Court discussed the mental state required by
Scoggins also clarified some of the Clark factors. For example, our high court observed that “in light of emerging technologies, a defendant who plans and directs a murder from afar may be just as culpable as a defendant who is physically present at the scene of the crime.” (Scoggins, supra, 9 Cal.5th at p. 679Ibid.)
Our high court also explained that “when different inferences may be drawn from the circumstances, the defendant‘s actions after the shooting
As in Banks and Clark, our high court in Scoggins found the evidence insufficient to support the robbery-murder special-circumstance finding. Although the defendant planned the robbery (Scoggins, supra, 9 Cal.5th at p. 679), knew about his confederates’ violent tendencies (id. at p. 681), and instructed them “to ‘beat the shit out of’ ” the victim (id. at p. 683), he did not “know that a gun would be used” (id. at p. 677), “was not physically present at the crime scene” (id. at p. 678), and never instructed his confederates to kill the victim (id. at p. 679). Given these mitigating circumstances, the “limited” duration of the interaction between the shooter and the victim (id. at p. 680), and the location of the robbery “in a public parking lot during the daytime” (id. at p. 683), our high court held that “the evidence in this case ‘does not suggest an elevated risk to human life beyond those risks inherent in any unarmed beating and robbery’ ” (id. at p. 682).
Relying on Banks and Clark, numerous defendants have filed habeas corpus petitions challenging the sufficiency of the evidence supporting their felony-murder special-circumstance findings. In many cases, the Courts of Appeal and superior courts initially denied the writs. (See, e.g., In re Parrish (2020) 58 Cal.App.5th 539, 542 (Parrish) [Court of Appeal and superior court]; In re Taylor (2019) 34 Cal.App.5th 543, 549 (Taylor) [Court of Appeal and superior court]; In re Ramirez (2019) 32 Cal.App.5th 384, 392 (Ramirez) [Court of Appeal and superior court]; In re Miller (2017) 14 Cal.App.5th 960, 966 [superior court].) But in a number of those and other cases, our high court has issued orders to show cause why the defendant is not entitled to relief under Banks and Clark. (See, e.g., Taylor, at pp. 549-550; Ramirez, at p. 392; In re Bennett (2018) 26 Cal.App.5th 1002, 1007 (Bennett); In re Loza (2017) 10 Cal.App.5th 38, 41-42 (Loza).)
In response to these orders to show cause, several Courts of Appeal have recently vacated felony-murder special-circumstance findings. (See, e.g., Taylor, supra, 34 Cal.App.5th at pp. 546-547; Ramirez, supra, 32 Cal.App.5th at p. 388; Bennett, supra, 26 Cal.App.5th at p. 1007; see also In re Miller, supra, 14 Cal.App.5th at p. 964.) At least two Courts of Appeal have, however, denied the habeas corpus petition even after our high court issued an order to show cause or transferred the case for reconsideration in light of Banks and Clark. (See Parrish, supra, 58 Cal.App.5th at p. 542; Loza, supra, 10 Cal.App.5th at p. 42.) In both of those cases, the defendant supplied the gun used to kill the victim, was physically present during the shooting, and knew about the shooter‘s propensity for violence. (See Parrish, at p. 544; Loza, at pp. 53-54.)7
B. Moore‘s Habeas Corpus Claim
Considering the totality of the circumstances in the light most favorable to the prosecution under Banks, Clark, and their progeny, we find insufficient evidence that Moore acted with reckless indifference to human life. We therefore vacate the robbery-murder special-circumstance finding.
“When reviewing a challenge to the sufficiency of the evidence, we ask ’ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ’ “substantial evidence—that is, evidence which is reasonable, credible, and of solid value” ’ that would support a finding beyond a reasonable doubt. [Citation.] These same standards apply to challenges to the evidence underlying a true finding on a special circumstance.” (Banks, supra, 61 Cal.4th at p. 804.)
Here, the evidence is not sufficient to establish that Moore had the mental state needed for the robbery-murder special-circumstance finding. This is clear upon consideration of the factors identified in Clark together with Moore‘s youth at the time of his offenses.
Moore‘s presence during the robbery also does not support a finding of reckless indifference. Although Moore likely saw Russell rob and shoot Luecke while he sat in the stolen Mazda, he never left the car. Thus, he was not “close enough to exercise a restraining effect on the crime or” Russell. (Ramirez, supra, 32 Cal.App.5th at p. 405; see Taylor, supra, 34 Cal.App.5th at p. 559 [finding fact that the defendant “never got out of the car and had no opportunity to prevent the shooting” “weighs in his favor“].)
The short duration of the robbery and the sudden and unprovoked nature of the shooting reinforce this conclusion. (See Scoggins, supra, 9 Cal.5th at p. 679 [finding “how quickly the shooting occurred” suggested that the defendant “lacked control over” the actions of his confederates].) Indeed, the People acknowledge that “it is unlikely [Moore] could have aborted the shooting” once Russell left the car. There is also no evidence that Moore instructed Russell “to use lethal force.” (Clark, supra, 63 Cal.4th at p. 619.)
Likewise, Moore‘s decision to drive away with Russell and Winston immediately after the shooting is not sufficient to establish reckless indifference. Because Luecke was accompanied by Mari G. and his younger sister and because there were other people in the parking lot at the time of the shooting, Moore could have reasonably assumed that help would arrive quickly. (See Clark, supra, 63 Cal.4th at p. 620 [finding circumstances behind defendant‘s flight “ambiguous” because he “would have known that help in the form of police intervention was arriving“]; see also Taylor, supra, 34 Cal.App.5th at p. 559 [“it appears [defendant] knew help was arriving“].)
Nonetheless, the People contend there is ample evidence that Moore acted with reckless indifference to human life. According to the People, Moore “understood the probability that Russell would have to use the gun” when he chose “to take on three victims single-handedly, relying on [the] gun to ensure the success of the robbery.” The People also argue that the risk of lethal force was exacerbated because “the victims included an adult male, who could be expected to resist a robbery attempt, and perhaps to feel compelled to protect the females in his company“—which included a 13-year-old. Finally, the People cite Moore‘s role in planning the robbery, his failure to aid the victims, and his laughter with his confederates soon after the shooting.
Even if this evidence supports a finding of reckless indifference for an adult, it is not sufficient to establish that Moore, who was 16 at the time of the shooting, had the requisite mental state. It is well recognized that “[c]hildren ‘generally are less mature and responsible than adults’ ” and ” ‘often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them’ . . . .” (J. D. B. v. North Carolina (2011) 564 U.S. 261, 272 (J. D. B.).) As a result, “[t]he law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.” (Id. at p. 273.) This is so “even where a ‘reasonable person’ standard otherwise applies . . . .” (Id. at p. 274.) Thus, ” ‘the background and mental and emotional development of a youthful defendant [must] be duly considered’ in assessing his culpability.” (Miller v. Alabama (2012) 567 U.S. 460, 476 (Miller).) And “criminal procedure laws that fail to take defendants’ youthfulness into
Consistent with these principles, at least one Court of Appeal has considered a defendant‘s youth when determining whether the defendant was a major participant under
In this case, Moore, as a 16-year-old, lacked ” ‘the experience, perspective, and judgment’ ” to adequately appreciate the risk of death posed by his criminal activities. (J. D. B., supra, 564 U.S. at p. 272; see Miller, supra, 567 U.S. at p. 477.) To the extent the Clark factors discussed ante support a finding of reckless indifference for an adult—an issue we do not decide today—those factors undoubtedly preclude such a finding when viewed from the lens of Moore‘s youth. In particular, we cannot conclude beyond a reasonable doubt that Moore was subjectively aware that his actions created a graver risk of death than any other armed robbery.10 (Scoggins, supra, 9 Cal.5th at p. 677.)
The People do not dispute that Moore‘s age is relevant when determining whether he acted with reckless indifference to human life. They, however, contend Moore‘s youth bears on his “subjective mental state” only to the extent that it affects his awareness of the dangers posed by his conduct. As a result, they argue, “Unless [Moore‘s] youth conclusively ruled out any reasonable inference on a subjective factor, such as that he acted with reckless indifference, the factor is analytically inapplicable.”
The People‘s attempt to downplay Moore‘s youth, however, ignores our high court‘s guidance in Banks, Clark, and Scoggins. As those cases explain, in determining whether a defendant acted with reckless indifference to human life, we must “consider the totality of the circumstances.” (Banks, supra, 61 Cal.4th at p. 802Banks and Clark are “nonexclusive” (Taylor, supra, 34 Cal.App.5th at p. 552)—with ” ‘no one’ ” factor being ” ‘necessary’ ” or ” ‘necessarily sufficient’ ” (Clark, supra, 63 Cal.4th at p. 618). Considering the totality of the circumstances, including Moore‘s youth at the time of his offenses, we conclude that no rational trier of fact could find that Moore acted with reckless indifference to human life.11
DISPOSITION
Moore‘s petition for writ of habeas corpus is granted. The true finding on the robbery-murder special-circumstance allegation under
Chou, J.*
WE CONCUR:
Petrou, Acting P. J.
Jackson, J.†
A154032/In re Deandre Lamar Moore
* Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
† Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A154032/In re Deandre Lamar Moore
Trial Court: Superior Court of San Mateo County
Trial Judge: Mark R. Forcum
Counsel: Michael J. Brennan and Heidi L. Rummel for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano and David H. Rose, Deputy Attorneys General, for Respondent.