THE PEOPLE, Plaintiff and Respondent, v. BRIAN TERRELL HILL et al., Defendants and Appellants.
B322561
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 3/25/24
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BA050222)
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and Appellant Brian Terrell Hill.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Clifford Jenkins.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
Brian Terrell Hill and Clifford Jenkins appeal the denial of their petitions for resentencing under
FACTUAL AND PROCEDURAL BACKGROUND
A. The murder of Randy Burge and attempted murder of Kevin Thomas4
On February 22, 1990, approximately 2:00 in the afternoon, Kevin Thomas was stopped in traffic in his car on 67th Street between Kansas Street and
Putting his gun to the back of Thomas‘s head, Jenkins forced Thomas through the kitchen into the living room of the house, where he made Thomas lie down on the floor. While Simms stood over Thomas with his gun trained on his head, Jenkins put his knee in Thomas‘s back, handcuffed him, and placed duct tape over his mouth. As he restrained Thomas, Jenkins said, ” ‘This is for when I seen you the other day and you pointed your finger at me.’ ”
Jenkins then left the house and returned with Randy Burge. Burge held his hands up as Jenkins forced him into the living room with his gun pressed into Burge‘s back. Simms said to Burge, who had been standing on the street corner when Thomas was abducted, ” ‘[Y]ou at the wrong place at the wrong time.’ ” Burge was forced to the floor, and as Jenkins stood over Burge pointing his gun at him, Simms put Burge in handcuffs,
tied his ankles, and stuffed a white T-shirt or cloth into Burge‘s mouth. The T-shirt was replaced with duct tape, but the T-shirt was later put back in Burge‘s mouth.
After Burge had been brought into the house, Freddie Doss entered, followed shortly thereafter by appellant Hill. Hill was armed with a .25- or .32-caliber revolver, and Doss had a slightly larger gun—a .38-caliber revolver. When Hill saw Thomas on the couch in handcuffs, he said to Thomas, ” ‘Yeah, we got you.’ ” Pointing his gun at Thomas and Burge, Hill repeatedly told them “to keep the noise down.”
Burge kept making noise and asking why they were doing this to him. Simms responded, ” ‘Shut up, man, I‘m not playing.’ ” When Burge persisted, Simms shot him in the foot.
At some point, Simms demanded $10,000 from Thomas. With their guns on Thomas‘s head, Simms and Jenkins put the phone to Thomas‘s ear and made him call his mother for the money. They told Thomas to say “a girl” would come over to pick up the money. Jenkins wrote down Ms. Thomas‘s address. Later Jenkins took Thomas‘s keys, $30 in cash, and a ring from Thomas‘s finger. Thomas‘s handcuffs and the tape had been removed to allow Thomas to call his mother. After the call, Jenkins replaced both.
About an hour and a half to two hours into the kidnapping, and about 10 to 15 minutes after the ransom call, Jenkins and Simms left the house. Hill and
Around 5:00 p.m., Lucille Thomas received a phone call from her son. He said, ” ‘A girl named Donna is coming by to pick
up $10,000. Give it, give it to her.’ ” Then the line went dead. Ms. Thomas was able to pull together the $10,000, and about 45 minutes after the phone call, a woman calling herself Donna came to the door demanding the money. Ms. Thomas gave Donna the money and saw her walk across the street toward a purple van Ms. Thomas had never seen before.
Jenkins and Simms returned to the house about an hour and a half to two hours after they had left. Thomas asked if they had collected the money from his mother. Simms told Thomas his mother was not home and said, ” ‘No, we didn‘t get [the money] and your mama don‘t care about you.’ ” Apparently looking for a specific key, Jenkins took Thomas‘s sock off. Then Jenkins and Simms left the house again, leaving Hill and Doss to stand guard with guns pointed at the captives.
After being held for about five hours, Thomas came to believe that he had to escape or he would be killed. Still handcuffed, he bolted from the couch and threw himself through a closed glass window, landing on his back in the driveway about five feet below the window. The handcuffs broke apart on impact. He got up and began running as Hill and Doss came out of the house. Hill and Doss pursued Thomas, firing five to six shots at Thomas. Thomas first sought safety in nearby apartments, but no one would let him in. Finally, approximately 8:00 p.m. he ran into a liquor store at 67th and Vermont, and one of the employees called the police.
When the police arrived, Thomas told them what had happened, and the officers took Thomas back to the location where he had been held. Around 9:50 p.m., as the police car turned the corner just past the house, the officers and Thomas saw a burgundy or purple van. Thomas spotted Jenkins and
Simms in the van and alerted the police. As the police siren was activated, the van sped away and pulled into a driveway. Jenkins and Simms exited the vehicle and fled on foot. Simms was apprehended a short time later, and Jenkins was found hiding in the residence of Simms‘s mother. Police recovered two handcuff keys from a toilet bowl where Jenkins was apprehended.
Hill, Doss, and Burge were gone when Thomas and police officers entered the house where the victims had been held.
The autopsy revealed that Burge had died from a single gunshot wound to the head, fired from a .38-caliber revolver in contact with the skin. Time of death was estimated between 8:00 and 9:00 p.m. on February 22, 1990. The gunshot wound to the foot had come from a .22-caliber handgun.
B. Conviction and sentencing
On November 17, 1992, a jury convicted appellants as charged of the first degree murder of Burge (
count 1), and the attempted willful, deliberate, and premeditated murder of Thomas (
At sentencing, the trial court struck the special circumstance findings as to appellant Hill, and sentenced both appellants to a term of 25 years to life for the first degree murder of Burge (count 1), plus a consecutive term of four years for the personal gun use enhancement on count 1. The court further imposed a subordinate consecutive term of life with parole for the attempted murder of Thomas (count 6).6
C. The Section 1172.6 Proceedings
In March and August 2019, respectively, appellants Hill and Jenkins filed petitions for resentencing pursuant to
Following remand, orders to show cause issued, and appellants’
1. The evidentiary hearing on appellant Hill‘s petition7
At the start of the evidentiary hearing, the superior court announced it had reviewed the abstract of judgment, the charging documents, the trial transcripts, jury instructions, verdict forms, and the procedural portions of the Court of Appeal opinion. The parties did not present any additional evidence, but relied on the trial record.
Following argument by the parties, the superior court found appellant Hill guilty beyond a reasonable doubt of the
attempted murder of Thomas. Declaring that malice “was very easily found,” the court explained that “[f]iring a weapon directly at an individual, even if you miss him, clearly shows [the intent] to kill that person.” The court further noted that Hill and Doss were attempting to kill Thomas because he was a potential witness.
Next, the superior court found Hill guilty beyond a reasonable doubt of the murder of Burge on two theories. First, the court determined that Hill was a direct aider and abettor in the killing who acted with malice. The court found that Hill assisted Doss in transporting Burge to the park and killing him. The court explained, “[T]he idea that Doss on his own, bound and gagged this
The superior court also found Hill guilty of murder beyond a reasonable doubt on a theory of felony murder based on the
kidnapping. It specifically found Hill was a major participant in the kidnapping who acted with reckless indifference to human life. The court explained that “Hill was an active participant in the kidnapping of the victims and involved in the planning and was present when the ransom call was made. Doss and Hill held the two kidnapped individuals for more than five hours, and again was actively involved with his gun and in controlling the two individuals.” The court reiterated its finding that Hill had fired his gun at Thomas as Thomas tried to escape.
2. The evidentiary hearing on appellant Jenkins‘s petition
At the hearing on appellant Jenkins‘s petition, the parties submitted on the record of conviction, including the clerk‘s and reporter‘s transcripts, procedural portions of the prior appellate opinions, and all prior submissions by the parties. No additional evidence or arguments were presented, and the superior court took the matter under submission.
On July 13, 2022, the superior court issued a memorandum of decision denying the petition. In it, the court noted it had previously taken judicial notice of the trial court‘s file and the appellate record in the case. The court ruled Jenkins ineligible for
ring and $30
Based on these facts, the superior court found Jenkins‘s “actions during the incident” satisfied the requirements of both People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Jenkins was a ” ‘major participant in the incident who acted with reckless indifference to human life,’ ” and thus guilty of first degree murder and ineligible for resentencing.
DISCUSSION
I. Appellants Are Ineligible for Section 1172.6 Relief Based on a Kidnapping-Felony-Murder Theory that Is Valid Under Current Law
A. Section 1172.6
Enacted in 2018 and effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 ” ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added section [1172.6], which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Effective January 1, 2022, Senate Bill No. 775 amended
natural and probable consequences doctrine.” (
Upon the filing of a facially sufficient resentencing petition under
On appeal from the denial of a
disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt.” (People v. Vargas (2020) 9 Cal.5th 793, 820.) And based on this whole record review, we “determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt.” (People v. Montanez (2023) 91 Cal.App.5th 245, 270.) Finally, our Supreme Court has held that whether the prosecutor relied upon direct or circumstantial evidence, if the trier of fact‘s determination is supported, reversal is not warranted, even where ” ‘the circumstances might also reasonably be reconciled with a contrary finding.’ ” (Vargas, at p. 820, quoting Rivera, at p. 331.)
B. The application of a kidnapping-felony-murder theory to appellants’ section 1172.6 petitions did not violate ex post facto principles
At the time of the kidnappings and murder on February 22, 1990, in this case, kidnapping was not an underlying felony for first degree felony murder liability. That changed in June 1990, when the voters approved Proposition 115, which amended
among the offenses upon which a felony-murder conviction may be based.
Appellants contend that the denial of their
whether a defendant could be convicted under current law despite the elimination of certain theories of murder that were available to the prosecution when the defendant was convicted before the enactment of Senate Bill No. 1437. Accordingly, the denial of a
Moreover, courts have uniformly held the sentence modification procedure under
Resentencing under
petitioner under
In People v. Schell (2022) 84 Cal.App.5th 437, the court held that “[i]nterpreting section 1172.6 to allow the prosecution to present different theories of guilt at the evidentiary hearing does not implicate constitutional concerns.”8 (Id. at p. 444.) The court explained, “As the People aptly put it, ‘[B]ecause a section [1172.6] evidentiary hearing does not subject a defendant to the risk of additional punishment, is not a trial, permits both parties to present new evidence, and merely considers whether the defendant‘s request for leniency meets the necessary criteria, there is no constitutional problem in allowing new theories of murder liability at that hearing.’ ” (Id. at pp. 444–445; see also
People v. Gonzales, supra, 65 Cal.App.5th at p. 1174 [“when a murder conviction is vacated under section
In Hernandez, the defendant was charged and convicted by jury of felony murder based on the 1988 killing of a police officer during a commercial burglary. (Hernandez, supra, 60 Cal.App.5th at pp. 100, 101–102.) Although the trial court had instructed only on a theory of first degree felony murder, the court did not require the jury to make a finding on the degree of the murder. (Id. at pp. 101–102.) The trial court sentenced defendant to 25 years to life on the first degree felony-murder conviction. (Id. at p. 102.) But because the verdict form did not specify the degree of felony murder, on appeal from the judgment the appellate court modified the sentence to second degree murder under section 1157, and defendant was resentenced to a term of 15 years to life for the second degree murder. (Ibid.)
Following an evidentiary hearing on Hernandez‘s
tried or convicted of first degree murder. (Hernandez, supra, 60 Cal.App.5th at p. 109.)
(2) Because second degree felony murder has been eliminated, and
The court rejected Hernandez‘s arguments,9 explaining, “an inmate‘s petition under section [1172.6] ‘express[es] the hypothetical situation’ of ‘what would happen today if he or she were tried under the new provisions of the Penal Code?’ [Citation.] Once a petitioner establishes a prima facie case of eligibility, the prosecutor must prove under amended sections 188 and 189 the petitioner is ineligible for resentencing ’under current law.’ ” (Hernandez, supra, 60 Cal.App.5th at p. 110, italics added.) Thus, the court concluded,
The same reasoning applies to the instant case. Resentencing under
must prove beyond a reasonable doubt the petitioner is guilty of murder under current law notwithstanding the amendments to sections 188 and 189. (People v. Vargas (2022) 84 Cal.App.5th 943, 952.) The trial court thus does not determine guilt, but rather, the petitioner‘s eligibility for relief under a retroactive sentencing law based on a reasonable doubt standard. (Njoku, supra, 95 Cal.App.5th at p. 45.)
Finally, appellants’ ex post facto argument amounts to nothing more than a “heads I win, tails you lose” proposition. There is no dispute that appellants were validly convicted in 1992 under the law as it stood in 1992. There is also no question they can be validly convicted under current law in 2024. But appellants claim they are entitled to acquittals by applying current law to invalidate the 1992 theory of conviction, while reserving the right to apply 1992 law to avoid upholding their convictions under current law. There is nothing in the text, legislative history, or stated intent of Senate Bill No. 1437 to support application of
In short, ex post facto principles have no application here. The superior court properly could and did deny appellants’ resentencing petitions on the ground that they could be convicted under current law on a theory of first degree felony murder based on the kidnappings.
II. Substantial Evidence Supports the Superior Courts’ Findings
A. Substantial evidence supports the superior court‘s determination that appellant Hill intended to kill Thomas and is therefore guilty of attempted murder
Attempted murder consists of two elements: the specific intent to kill coupled with a direct but ineffectual act to
accomplish the intended killing. (People v. Covarrubias (2016) 1 Cal.5th 838, 890; People v. Gaines (2023) 93 Cal.App.5th 91, 131.) Although evidence of motive is not required to establish intent to kill, such evidence is often probative of intent. (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) And ” [b]ecause direct evidence of a defendant‘s intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant‘s acts.” (People v. Sanchez (2016) 63 Cal.4th 411, 457.)
Here, substantial evidence supports the superior court‘s determination that appellant Hill fired at Thomas with the intent to kill him. The evidence established that Hill was a key player in an elaborate plan to obtain $10,000 in ransom money from Thomas‘s mother without getting caught. Burge, who might have witnessed Thomas‘s abduction, was also kidnapped for being ” ‘at the wrong place at the wrong time.’ ” After Thomas had been taken to the house and handcuffed, Hill came in carrying a gun and said to Thomas, ” ‘Yeah, we got you.’ ” Apparently wanting to avoid detection, Hill pointed his gun at both Thomas and Burge, repeatedly telling them to be quiet and warning Burge to “[s]hut up. We‘re not playing. Keep the noise down.”
After the ransom call to Thomas‘s mother, when Simms and appellant Jenkins left the house, appellant Hill and Doss guarded Thomas and Burge at gunpoint to prevent their escape. Thomas was handcuffed with tape over his mouth. When Simms and Jenkins returned, they falsely told Thomas his mother was not home and the ransom money had not been collected. Still, Hill and his cohorts did not release their captives, and showed no inclination to do so. Indeed, when Simms and Jenkins again left the house, Hill and Doss continued to guard Thomas and Burge at gunpoint.
After being held captive at gunpoint for about five hours and believing that he would be killed if he did not escape, Thomas threw himself out a closed window. Immediately after Thomas jumped out the window, appellant Hill came out of the house with Doss, firing five or six shots at Thomas as they chased him down the street.
All of these circumstances surrounding the kidnappings, which culminated in Hill‘s act of firing multiple shots at Thomas while actively pursuing him to stop his escape, constitute substantial evidence of Hill‘s intent to kill Thomas. Indeed, ” ‘[t]he act of firing toward a victim at a close, but not point-blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill.” ’ ” (Smith, supra, 37 Cal.4th at p. 741.) The fact that Hill gave up the chase and stopped shooting at Thomas without succeeding in killing him does not establish that he lacked the intent to kill. As our Supreme Court has observed, ” ’ “The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim
B. Substantial evidence supports the superior courts’ findings that appellants Hill and Jenkins are guilty of felony murder as major participants in the kidnapping who acted with reckless indifference to human life
1. Applying the factors identified in Banks, supra, 61 Cal.4th 788, substantial evidence supports the superior courts’ findings that both appellants Hill and Jenkins were major participants in the kidnappings
In Banks, our Supreme Court identified a number of factors to be considered “in determining the ultimate question, whether the defendant‘s participation ‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently significant to be considered ‘major.’ ” (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.) The court emphasized, however, that while all of these factors may be weighed in determining the extent of a defendant‘s participation in the criminal enterprise that resulted in death, “[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.)
Nearly all of the Banks factors support the superior courts’ findings that Hill and Jenkins were both major participants in the kidnappings.
There was substantial evidence that both Hill and Jenkins played major roles in planning the kidnapping of Thomas, which led directly to Burge‘s kidnapping and death. (Banks, supra, 61 Cal.4th at p. 803 [“What role did the defendant have in planning the criminal enterprise that led to one or more deaths?“].) The kidnapping required significant planning and coordination: handcuffs and duct tape were at the ready to restrain the victims, the timing of Thomas‘s abduction had been set, all of the perpetrators had guns, and the cooperation of “Donna” had been arranged to collect the ransom money from Ms. Thomas.
Jenkins was waiting at the back door as Simms walked up to the house holding Thomas at gunpoint. Jenkins then put his gun to Thomas‘s head as he
Although Hill did not arrive at the house until shortly after Thomas and Burge had been taken captive, he showed no surprise at finding the two men bound and gagged in the living room. Rather, he said to Thomas, “Yeah, we got you.”
Hill and Jenkins used lethal weapons throughout the kidnapping, and both men repeatedly threatened Thomas and Burge with their guns. (Banks, supra, 61 Cal.4th at p. 803 [“What role did the defendant have in supplying or using lethal
weapons?“].) Jenkins used his gun to force both victims to enter the house against their will. He held his gun against Thomas‘s head to make him call his mother for the $10,000 ransom. Hill also repeatedly pointed his gun at Thomas and Burge, telling them to “keep the noise down.” When Jenkins and Simms left the house, Hill stayed behind to guard the captives at gunpoint, and Hill actually fired his weapon at Thomas after Thomas had thrown himself through a closed window to escape.
The evidence also showed Hill and Jenkins were aware of the dangers posed by the nature of the crime. (Banks, supra, 61 Cal.4th at p. 803 [“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?“].) Not only were Hill, Jenkins, and the rest of the cohorts armed, but neither Hill nor Jenkins gave any indication that the circumstances surrounding the kidnappings, the restraint of Thomas and Burge, or the close watch over the captives to prevent escape were outside of the scope of their plan. There was no evidence of any reaction by Hill or Jenkins when Simms shot Burge in the foot for complaining and making too much noise. (See People v. Douglas (2020) 56 Cal.App.5th 1, 11 [“Missing from Douglas‘s description of the robbery and murder and its aftermath are signs the shooting surprised him“].) By pressing his gun into Burge‘s back as he forced him into the house, Jenkins showed a clear awareness of the risk, indeed the likelihood, that this witness to the Thomas kidnapping and robbery would be killed. For his part, Hill did not hesitate to fire on Thomas when he tried to escape.
Evidence that both Jenkins and Hill were in a position to prevent Burge‘s murder and that their actions played an
important role in Burge‘s death establishes both as major participants. (Banks, supra, 61 Cal.4th at p. 803
Finally, Hill did not call for help after lethal force was used. For his part, Jenkins offered Thomas $5,000 to say that he had lied in his preliminary hearing testimony. (Banks, supra, 61 Cal.4th at p. 803 [“What did the defendant do after lethal force was used?“].)
2. Applying the factors identified in Clark, supra, 63 Cal.4th 522, substantial evidence supports the superior courts’ findings that appellants Hill and Jenkins both acted with reckless indifference to human life
Our Supreme Court has explained that “[r]eckless indifference to human life has a subjective and an objective element. (Clark, supra, 63 Cal.4th at p. 617.) 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.’ (Banks, supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) 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.” ’ (Clark, at p. 617, quoting Model Pen. Code, § 2.02, subd. (2)(c).)” (In re Scoggins (2020) 9 Cal.5th 667, 677.)
In Clark, our Supreme Court handed down a list of factors to consider in determining whether a defendant acted with reckless indifference to human life: (1) The defendant‘s use of, or awareness of the presence of a weapon or weapons; (2) The defendant‘s physical presence at the crime, and the opportunities to limit it and/or to aid the victim(s); (3) The duration of the felony and restraint of the victim(s); (4) The defendant‘s awareness that an
Applying those factors to the case at bar, we conclude substantial evidence supports the superior courts’ findings that Hill and Jenkins both acted with reckless indifference to human life in carrying out the kidnappings.
Both Hill and Jenkins were present at the scene of the kidnappings, both were armed, and both used their guns repeatedly to intimidate and threaten Thomas and Burge. It is also apparent from the circumstances of the kidnappings that all four perpetrators were involved in the planning of the crime, and neither Hill nor Jenkins attempted to restrain their compatriots or aid the victims in any way. The kidnapping extended over five hours, during which time Thomas and Burge were held at gunpoint, handcuffed, tied up, and had duct tape placed over their mouths. In addition, a T-shirt was stuffed into Burge‘s mouth, and Simms shot Burge in the foot. Jenkins had numerous opportunities to restrain the other gunmen and/or aid the victims; instead, he robbed Thomas, while Hill stood by. And even when Jenkins left the house, he left armed guards to prevent the captives’ escape. After Hill fired his gun at Thomas to stop him from fleeing, he did not help Burge to escape, nor did he call for help at any time before or after Burge‘s murder.
There was also substantial evidence that Jenkins knew his cohorts might kill Burge. Jenkins personally kidnapped Burge at gunpoint because he happened to be “in the wrong place at the wrong time.” When Jenkins left two armed associates to guard Thomas and Burge, Simms had already fired his gun and shot Burge in the foot—providing evidence that Jenkins had contemplated that Hill and Doss might use deadly force.
Jenkins argues that the robbery of Thomas was completed by the time Burge was killed, and there was no evidence Jenkins
was present at the scene of the murder. Our Supreme Court has rejected this argument, “holding that felony murder applies when the killing and the felony are part of one continuous transaction, including a defendant‘s flight after the felony to a place of temporary safety.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1146, citing People v. Cavitt (2004) 33 Cal.4th 187, 207.) As the Cavitt court explained, “Our reliance on the continuous-transaction doctrine is consistent with the purpose of the felony-murder statute, which ‘was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker, and this court has viewed it as obviating the necessity for, rather than requiring, any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] before the homicide was completed.’ ” (Cavitt, at p. 207.)
Here, there is no separating the kidnappings from the robbery or the murder: The robbery of Thomas occurred as part of the kidnapping for ransom, which led to the kidnapping of the witness, Burge, to avoid detection. It was reasonable to infer that the murder of Burge was motivated by the same impulse: To eliminate a witness to the original crimes. And by the time Burge was killed, none of the perpetrators had reached a place of temporary safety following the robbery or the kidnappings. Thus, even if the robbery could be said to have been completed before the murder, the kidnapping continued, for “[a] kidnapping ‘continues until . . . the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety.’ ” (People v. Ramirez (2022) 13 Cal.5th 997, 1121, quoting People v. Barnett (1998) 17 Cal.4th 1044, 1159.)
In sum, applying the factors identified in Banks and Clark to determine if a defendant was a major participant in the felony who acted with reckless indifference to human life, we conclude substantial evidence supports the superior courts’ findings that appellants Hill and Jenkins are guilty of felony murder based on kidnapping. Accordingly, they are therefore ineligible for relief under
DISPOSITION
The orders denying appellant Hill‘s and appellant Jenkins‘s petitions for resentencing under
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.