People v. KeelPeople v. Keel
INTRODUCTION
In 2005, fifteen-year-old Davion Keel and eighteen-year-old Ariel Bolton held Barry Knight at gunpoint and robbed him of twenty dollars on the streets of San Bernardino. One of them shot and killed Knight when he resisted the robbery and tried to flee. Keel and Bolton were both prosecuted in adult criminal court and convicted of first degree murder in connection with Knight‘s death.
More than a decade later, Keel filed a petition to vacate his murder conviction and to be resentenced under
Keel appeals the order denying his petition for resentencing. He argues the evidence was insufficient to support the trial court‘s finding that he was a major participant in the underlying robbery who acted with rеckless indifference to human life. In the alternative, he contends the court applied an incorrect legal standard when it adjudicated his petition for resentencing.
We agree with Keel‘s first argument, which renders it unnecessary for us to reach his second argument. Because there was insufficient evidence to
Further, we conclude Proposition 57, the Public Safety and Rehabilitation Act of 2016 (
II
BACKGROUND
A. Procedural History
In 2008, a jury convicted Keel of the first degree murder of Knight (
In 2019, Keel filed a petition to vacate his murder conviction and to be resentenced based on legislative amendments that significantly curtailed the scope of our state‘s felony-murder rule. He alleged he could not be convicted of murder if he were tried for the crime today because: (1) he was not the actual killer; (2) he did not aid and abet the actual killer with the intent to kill; and (3) he was not a major participant in the underlying robbery and he did not act with reckless indifference to human life.
The trial court initially declared the resentencing statute,
B. Prosecution Evidence
The prosecution made three alternative claims why Keel could still be convicted of murder, notwithstanding the legislative changes to our state‘s felony-murder rule: (1) he was the actual killer; (2) he aided and abetted the actual killer with the intent to kill; or (3) he was a major participant in the robbery and he acted with reckless indifference to human life. To support these arguments, the prosecution submitted the information charging Keel with Knight‘s murder; reporter‘s transcripts from the murder trial showing the testimony of several percipient witnesses; the jury instructions and verdicts from the murder trial; and our opinion affirming Keel‘s conviction. The prosecution‘s evidence told the following story.
Early one morning, Barry Knight and Deantre Conner were walking the streets of downtown San Bernardino looking for drugs. They encountered fifteen-year-old Keel and eighteen-year-old Bolton, both of whom Conner believed were members of the East Side Crips street gang. Knight and Conner approached Keel and Bolton in the hope of buying drugs.
Knight said that he and Conner hаd twenty dollars to buy drugs. Bolton asked which one of them had the money and Knight said he had it. At some point, Keel and Bolton both produced firearms and held them at their sides. Keel was armed with a silver revolver and Bolton was armed with a black MAC-10 semiautomatic firearm.
Conner started to walk away when he overheard Keel and Bolton tell Knight to empty his pockets. Conner turned around and saw Bolton conduct a pat down search of Knight. He also saw Keel and Bolton point their guns at Knight. While this was going on, Knight said that all he had was twenty dollars. Conner continued walking and told Knight to give Keel and Bolton what they wanted—i.e., to give them the twenty dollars.
Before Conner reached the end of the city block, he heard four or five gunshots behind him. He did not see who fired the shots, but he saw Knight running away and heard him say, “Oh my God. Oh my God.” Keel and Bolton fled in a different direction.
A bystander about a block away saw Keel point his gun at Knight and identified him as the shooter, although his view of Bolton was obstructed and he did not see flashes from the muzzle of Keel‘s gun. A seсond bystander on a balcony about 100 feet from the shooting reported that he saw Keel push Knight during the encounter. However, he identified Bolton as the shooter.
Law enforcement later recovered several .9 millimeter shell casings from the crime scene. The shell casings came from the same firearm and the firing pin impressions were consistent with a MAC-10 firearm—the gun that Bolton was carrying.
About twelve hours after the shooting, police officers in a marked vehicle observed Keel and a few other persons loitering in a shopping center near the crime scene. They pulled into the shopping center and the loiterers fled. Keel ran into a nearby business and tried to hide his revolver in a trash can, but he was apprehended and the officers recovered the revolver. It was not loaded. Law enforcement later learned the revolver had been used by a gang member to commit a different murder a few weeks earlier.
C. Defense Evidence
Keel testified at the evidentiary hearing. He was 15 years old when he and Bolton robbed Knight at gunpoint. At the time, he was an associate—but not a member—of the East Side Crips street gang. As a young gang associate, he sold drugs and alerted older gang members when police were in the area.
Keel testified he met Bolton when he was six or seven years old. Keel lived with one of Bolton‘s family members and Bolton sometimes cаme to the house for a day or two at a time. Keel moved out of the home after a year or a year and a half, and Bolton moved away as well, so Keel did not see Bolton again until about two weeks before Knight‘s killing. He testified Bolton was in the same gang as him and Bolton‘s family members were “real killers,” but Bolton did not have a reputation as a menace or a killer.
Keel admitted he had a gun with him the morning of the shooting. He testified an older gang member gave him the gun and told him to throw it in a lake, but he kept it instead. According to Keel, the gun was not loaded.
When Keel and Bolton encountered Knight and Conner, Bolton asked who had the money and Knight said he had the money. Keel testified that Bolton and Knight stepped aside at that point while he and Conner remained where they were.
Keel testified he looked over and saw that Bolton had his gun pulled out, which “shocked” and “surprised” him. By then, he knew Bolton was robbing Knight. Keel pulled out his firearm, reminded Conner about an “incident” from a few weeks earlier, and told him to walk away. Meanwhile, Bolton searched Knight, tried to grab a money bag from him, and then shot him as he resisted. Keel said he was “shocked,” “scared,” and “surprised” when Bolton fired his gun. Keel testified he did not think Knight had even been shot because he was able to run away from the scene of the robbery.
The defense also submitted a transcript of the trial testimony from a witness who was incarcerated in the same cell block as Bolton. According to the witness, Bolton said he “shot a dude when he was running,” and he took twenty dollars from him. Bolton also asked the witness to kill both Conner and the bystander who had identified Bolton as the shooter.
D. The Denial of the Petition for Resentencing
At the conclusion of the evidentiary hearing, the court found there was “no credible evidence” that Keel shot Knight. Although one bystander identified Keel as the shooter, the court found the bystander‘s credibility on this issue was “dubious at best.” Therefore, the court rejected the
However, the court opined that it faced a far morе “difficult” decision with regard to whether Keel was a major participant in the robbery who acted with reckless indifference to human life. The court acknowledged, on the one hand, that Keel was “a mere 15 years old” at the time of the robbery, “the decision to rob was made quickly,” and the events culminating in the shooting “unfold[ed] rather quickly“—factors that would seem to indicate that Keel was not a major participant and/or did not act with reckless indifference to human life. The court noted, on the other hand, that Keel pulled out a firearm and pointed it at Knight during the robbery, which suggested he was a major participant who acted with the mental state of reckless indifference.
After articulating these competing factors, the court ultimately found Keel was a major participant in the underlying robbery and he acted with reckless indifference to human life. Based on these findings, the court denied Keel‘s petition for resentencing.
III
DISCUSSION
A. Senate Bill 1437
“In 2017, the Legislature adopted a concurrent resolution declaring a need to reform the state‘s homicide law ‘to more equitably sentence offenders in accordance with their involvement in the crime.’ [Citation.] The next year, the Legislature followed through with Senate Bill 1437, which made significant changes to the scope of murder liability for those who were neither the actual killers nor intended to kill anyone, including certain individuals formerly subject to punishment on a felony-murder theory.” (People v. Strong (2022) 13 Cal.5th 698, 707 (Strong).)
“Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. [Citations.] Under newly enacted
“When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition ‘to determine whether the petitioner has made a prima facie case for
Unless the parties stipulate that the defendant is eligible for resentencing, the court must “hold an evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state law as amended by Senate Bill 1437. (
B. Substantial Evidence Did Not Support the Trial Court‘s Finding That Keel Acted with Reckless Indifference to Human Life
The trial сourt found Keel was ineligible for resentencing because he remained “guilty of murder,” notwithstanding the Legislature‘s curtailing of our state‘s felony-murder rule. (
Keel argues there was insufficient evidence to support the court‘s major participation and reckless indifference findings. To assess whether sufficient evidence supported these findings, we apply the substantial evidence standard of review. (People v. Nieber (2022) 82 Cal.App.5th 458; People v. Garrison (2021) 73 Cal.App.5th 735, 747.) “Under this standard, ’ “we review the entire record in the light most favorable to the [challenged order] to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “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.” ’ ” (Nieber, at p. 476.)
To borrow a phrase from the trial court, the evidence in this case required the court to make a “difficult decision.” Some considerations pointed to one outcome, while other considerations arguably pointed to the opposite outcome. Further, we are mindful that the substantial evidence standard of review is a deferential one, which often results in an affirmance of the judgment or order rendered by the trial court. Nonetheless, on the record before us, we cannot discern sufficient evidence to support the trial court‘s determination that 15-year-old Davion Keel acted with the requisite mental
1. Reckless Indifference Standard
Under the current version of our state‘s murder laws, a non-killer may be convicted of first-degree felony murder if he or she: (1) was a major participant in a statutorily-enumerated felony in which a death occurs, and (2) acted with reckless indifference to human life. (
“Reckless indifference to human life 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.” ’ [Citation.] ‘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
In People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court provided important guidance on the meaning of reckless indifference to human life. According to Clark, reckless indifference to human life “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Id. at p. 617.) Clark set forth a non-exhaustive list of factors pertinent to decide whether a defendant acts with reckless indifference to human life, including the defendant‘s use of, or awareness of, the presence of a weapon or weapons; the defendant‘s physical presence at the crime scene and opportunity to restrain confederates or aid victims; the duration of the crime; the defendant‘s knowledge of any threat the confederates might represent; and efforts taken by the defendant to minimize risks. (Id. at pp. 618–623.) ” ‘[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.’ ”3 (Id. at p. 618.)
Since Clark, courts have discerned an additional factor that may be relevant to the reckless indifference analysis—the defendant‘s youth. “It is well recognized that ‘[c]hildren “generally are less mature and responsible than adults” ’ and ’ “often lack the experience, perspective, and judgment to
We agree youth can be a relevant consideration—potentially an important one, depending on the facts of the case—bearing on whether a juvenile defendant acted with reckless indifference to human life. (See People v. Ramirez (2021) 71 Cal.App.5th 970, 990–991 (Ramirez) [reversing order denying petition to resentence murder conviction, in part, because petitioner‘s “youth at the time of the shooting greatly diminishe[d] any inference he acted with reckless disregard for human life“]; Moore, supra, 68 Cal.App.5th at pp. 454, 455 [vacating robbery-murder special circumstance finding based, in part, оn petitioner‘s “youth at the time of his offenses“]; see also In re Harper (2022) 76 Cal.App.5th 450, 466, fn. 8 [“youth would appear to be an obvious consideration when determining whether a defendant acted with reckless indifference to human life“]; accord People v. Harris (2021) 60 Cal.App.5th 939, 960 [defendant‘s youth was relevant to whether he was a major participant in underlying felony].)
2. Application
Viewing the appellate record in the light most favorable to the order denying Keel‘s petition for resentencing, we conclude substantial evidence did not support the trial court‘s finding of reckless indifference to human life, as that statutory term has been interpreted in Clark and subsequent case law.
The first Clark factor—the defendant‘s use of, or awareness of, the presence of a weapon or weapons—only slightly supported the trial court‘s
On the other hand, there was no evidence that Keel provided Bolton with his firearm. There was no evidence that Keel instructed Bolton to fire his weapon either. (See Ramirez, supra, 71 Cal.App.5th at pp. 975, 988 [juvenile defendant did not act with reckless indifference to human life, in part, because he did not provide murder weapon or instruct his confederate to shoot].) For his part, Keel testified that he did not learn that Bolton had a firearm until after they had already left to “hit the block.” Keel also denied any prior knowledge that Bolton‘s gun had bullets in it. There was no evidence to the contrary, and the People do not argue on appeal that Keel knew Bolton‘s gun was loaded with ammunition.
Further, there was no direct evidence that Keel‘s revolver was loaded. Indeed, the evidence in the record suggests otherwise. When law enforcement recovered Keel‘s revolver the day of the shooting, there were no bullets in it. Keel‘s possession of a possibly-unloaded revolver, and his awareness that Bolton had a firearm, do not give rise to a particularly strong inference of culpability.4 (See Clark, supra, 63 Cal.4th at p. 618 [“The mere fact of a defendant‘s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life.“].)
However, as the trial court explained, “[t]he decision to rob was made quickly,” and Bolton‘s decision to shoot was apparently made even more quickly in response to Knight‘s unexpected resistance and efforts to flee. Given the spontaneity of the robbery in general, and of Bolton‘s conduct in particular, we are not persuaded Keel had a meaningful opportunity to restrain Bolton or intervene before he shot Knight. (See Scoggins, supra, 9 Cal.5th at p. 679 [petitioner lacked control over his confederates’ actions, “given how quickly the shooting occurred“]; Moore, supra, 68 Cal.App.5th at p. 452 [“The short duration of the robbery and the sudden and unprovoked nature of the shooting” reinforced the conclusion that petitioner could not restrain his confederate‘s actions].)
The third Clark factor—the duration of the crime—significantly reduces Keel‘s culpability. In Clark, the Supreme Court explained that “[w]here a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, ‘there is a greater window of opportunity for violence’ [citation], possibly culminating in murder.” (Clark, supra, 63 Cal.4th at p. 620.) Thus, in assessing a defendant‘s mental state, “[c]ourts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant.” (Ibid.)
Here, there was no evidence the rоbbery was prearranged. By all accounts, the encounter was unexpected and unplanned. In fact, Keel and Conner both testified that Knight initiated the encounter—not Keel or
Further, events unfurled in rapid succession once the encounter began. According to Conner, the two sides had a brief exchange during which Bolton asked who had the drug money and Keel told Conner to walk away. As Conner walked away, Bolton conducted a pat down and Knight resisted. According to Conner, he had not even walked to the end of the city block before shots erupted. This “evidence tended to show that the shooting was a ‘somewhat impulsive’ response to the victim‘s unexрected resistance, as opposed to the culmination of a prolonged interaction that increased the opportunity for violence.” (In re Taylor (2019) 34 Cal.App.5th 543, 558; see also Scoggins, supra, 9 Cal.5th at p. 681 [third Clark “factor [did] not weigh in favor of finding that [petitioner] exhibited reckless indifference to human life” because the confederate and the victim “had only a brief conversation before [the confederate] pulled out a gun and shot” the victim].)
The fourth Clark factor—the defendant‘s knowledge of any threat his confederate might represent—also reduces Keel‘s culpability. There was no evidence that Bolton exhibited any previous violent tendencies or had a reputation for violence. Nor was there any evidence that Keel had knowledge of any possible violent behaviors or tendencies on Bolton‘s part. Keel was the only witness who testified about his relationship with Bolton, and he stated he had not seen Keel for many years until just two weeks before the shooting. Further, he testified that Bolton did not have a reputation as a menace or a killer. The paucity of evidence that Bolton had a propensity to commit violent acts, as well as the lack of evidence that Keel was aware of any such propensity, undermines the notion that Keel acted with reckless indifference
Neither party addresses the fifth Clark factor—that is, the defendant‘s efforts to minimize risks—at any length. (Clark, supra, 63 Cal.4th at pp. 621–622.) Keel surely escalated the risk of violence when he pulled out his revolver. But he arguably minimized the risk of violence by telling Conner—a potential victim who could have been hurt during the encounter—to leave the scene.
In addition to the factors enumerated in Clark, Keel‘s youth bears significantly on his culpability. Keel was a mere 15 years old when Bolton shot Knight. “[T]he ’ “hallmark features” ’ of youth include ’ “immaturity, impetuosity, and failure to appreciate risks and consequences.” ’ [Citations.] ’ “[T]he background and mental and emotional development of a youthful defendant [must] be duly considered” in assessing his culpability.’ [Citation.] ‘[T]hey “are more vulnerable or susceptible to ... outside pressures” than
Further, there was evidence suggesting Keel‘s youth may have rendered him especially vulnerable to outside pressures. Keel associated with the East Side Crips street gang when he was just six or seven years old. He received a moniker (“Baby Ready“) at the tender age of six from a gang member that, in Keel‘s words, he considered to be a “father figure.” According to Keel, there was an expectation among gang members that younger gang associates would “instantly go do” their bidding. Given this expectation, it is reasonable to infer Keel would have felt pressure to “hit the block” and go alоng with the robbery instigated by Bolton—a fellow gang associate who was three years Keel‘s senior.
In sum, the evidence showed 15-year-old Davion Keel participated in a crime of opportunity in which a death occurred. The crime was unplanned, spontaneous, and short in duration. There was no direct evidence that Keel carried a loaded weapon during the crime. There was no evidence that he knew his confederate‘s weapon was loaded. There also was no evidence that Keel supplied his confederate with a weapon or instructed him to use one. There was no evidence that his confederate had a propensity or reputation for violence, let alone that Keel was aware of such violent tendencies. Further, when these tragic events unfurled, Keel was a 15-year-old minor—a member of a class of persons who, in general, ” ‘have a ” ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1375, quoting Miller v. Alabama (2012) 567 U.S. 460, 471.)
C. The Case Must Be Transferred to the Juvenile Court for Resentencing
Keel argues his case must be transfеrred on remand to the juvenile court pursuant to Proposition 57 and Senate Bill 1391. We agree.
Keel perpetrated the robbery at issue in 2005. At the time, “in specified circumstances, prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) Consistent with the laws that were in effect, Keel was tried for Knight‘s murder in adult criminal court.
In 2016, California voters approved Proposition 57, which “requires prosecutors to commence all cases involving a minor in juvenile court.” (O.G. v. Superior Court (2021) 11 Cal.5th 82, 87 (O.G.); see Lara, supra, 4 Cal.5th at p. 303 [Proposition 57 “prohibits prosecutors from charging juveniles with crimes directly in adult court“].) Although the measure required charges against minors to be filed in juvenile court, it still granted prosecutors some discretion to sеek transfers to adult criminal court for 14 and 15-year old defendants who were accused of specified serious or violent offenses. (O.G., at p. 89 [citing former
“The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment.” (Lara, supra, 4 Cal.5th at p. 303.) By giving a neutral judge the power to decide whether a cаse will be heard in juvenile court, rather than vesting such authority with a district attorney charged with the duty to act as a zealous advocate, Proposition 57 “ameliorated the possible punishment for a class of persons, namely juveniles.” (Id. at p. 308.) Because the measure was an ameliorative change to the criminal law, courts have inferred the voters intended it ” ‘to extend as broadly as possible.’ ” (Id. at p. 309.) Thus, Proposition 57 retroactively “applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Id. at pp. 303–304; see People v. Hwang (2021) 60 Cal.App.5th 358, 365 (Hwang) [“if defendant‘s judgment was not final when Proposition 57 was enacted, he is entitled to the retroactive application of that proposition“].)
“Senate Bill 1391 is likewise an ameliorative change to the criminal justice system that emphasizes rehabilitation over punishment and serves the broader purpose of decarceration.” (O.G., supra, 11 Cal.5th at p. 101.) “Like Proposition 57, Senate Bill 1391 focuses on rehabilitation by increasing the number of juveniles adjudicated in juvenile court and decreasing the
The question remains whether Proposition 57 and Senate Bill 1391 will apply retroactively to Keel, who was just 15 years old when the robbery occurred, but whose judgment became final in 2010 (before Proposition 57 or Senate Bill 1391 went into effect). Keel argues they will apply retroactively to him. The People do not contend otherwise—a telling silence. We agree with Keel the measures apply retroactively to him because his judgment will no longer be final once the trial court vacates his murder conviction.
Under
Those measures generally preclude the transfer of any individuals who were 15 years of age or younger when they committed a crime. Keel was 15 years of age when he perpetrated the robbery of Knight. Thus, on remand, the matter must be transferred to juvenile court, which “shall treat [Keel‘s] remaining conviction[] as [a] juvenile adjudication[] and impose an appropriate disposition.” (Ramirez, supra, 71 Cal.App.5th at p. 1000.)
DISPOSITION
The order denying Keel‘s petition for resentencing is reversed. The matter is remanded to the trial court with instructions to grant the petition for resentencing, vacate Keel‘s murder conviction, and transfer the matter to the juvenile court. The juvenile court is instructed to treat Keel‘s remaining conviction as a juvenile adjudication and to impose an appropriate disposition.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
DATO, J.