THE PEOPLE, Plaintiff and Respondent v. KIARRA PRICE, Defendant and Appellant.
A159439
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO
Filed 11/29/21
CERTIFIED FOR PUBLICATION; (Contra Costa County Super. Ct. No. 51103373)
In 2013, a jury found Price guilty of first degree murder and found true the felony-murder special-circumstance allegation that the murder was committed while Price was participating in a robbery and either (1) was the killer, (2) aided and abetted the murder with the intent to kill, or (3) acted with reckless
On appeal, we affirmed the conviction, holding the jury‘s special circumstance finding was supported by substantial evidence regarding the first alternative, that Price was the actual killer, and the second, that she intended for Merrill to be killed. (People v. Price (2017) 8 Cal.App.5th 409, 451-454 (Price I).) We did not determine whether substantial evidence supported a finding under the third alternative, i.e., that Price was a “major participant” in the felony murder acting with “reckless indifference” for human life.
In 2018, the Legislature adopted and the Governor signed into law Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended the statutory definition of murder in sections 188 and 189 to eliminate murder liability under the natural and probable consequences doctrine and to limit felony-murder liability to cases in which the felony-murder special circumstance was proven. The legislation provided a retroactive resentencing remedy under
In 2019, Price filed her
We affirm. It is not clear which of the three special circumstance alternatives were relied on by the jury. In this circumstance, we conclude—without deciding whether substantial evidence review of any one possible alternative basis for the special circumstance finding is enough to preclude relief under
BACKGROUND
I.
The Trial and Verdict
Our opinion in Price I describes in detail the evidence presented against Price at her trial. (Price I, supra, 8 Cal.App.5th at pp. 416-425.) We will summarize it only briefly here. In substance, it showed that in 2009, Price, then 20 years old, along with two friends, Kendra Fells and Teareney Brown, participated in a robbery of 22-year-old Benjamin Merrill during which one of them shot and killed him. Fells, the owner of the gun used in the killing, entered a plea agreement for a 15-year determinate sentence in exchange for testifying against Price. According to her testimony and other evidence at trial, Price and Brown stopped at the house where Fells stayed with her girlfriend in Pittsburg, California, and awakened Fells, who then showed Price a revolver Fells had recently purchased. Price and Brown then left in a car belonging to a friend and drove to San Francisco.
Sometime later2, they returned to Pittsburg with a very intoxicated Benjamin Merrill in tow and again stopped at Fells‘s girlfriend Felicia Edosa‘s house. Price went inside, sporting an iPhone Fells and her girlfriend had not seen her with before, awakened Fells, asked Fells to take a ride with her, and took Fells‘s gun from a drawer in the bedroom and put it in her jacket. Price and Fells got into the car with Brown, who drove them to a dimly lit park at about 3:00 a.m. A man Fells didn‘t recognize (but later learned was Merrill) was asleep in the backseat but awakened before they arrived at the park, and he got out of the car to urinate in the bushes. The three women also got out of the car. After Merrill finished urinating, Brown robbed him of his wallet. Price believed he had more to take and said so. Substantial evidence indicated that she pointed the gun at Merrill and, in circumstances that are not altogether clear,3 shot twice, hitting Merrill in the chest. The three women got back into the car and left in a hurry, leaving Merrill at the park. Neighbors
In the days following the robbery and shooting, Brown changed the service on Merrill‘s iPhone from one provider to another. The iPhone was used both by Price and by Brown, but Price began using it shortly after the robbery and it contained contact information for Brown and Fells but not for Price.
The morning after the incident, Fells received a call from Price asking if she was okay. (Price I, supra, 8 Cal.App.5th at p. 418.) Fells recognized the number as the one from which she and Edosa had received calls on the night of the murder and told Price not to call her on that phone anymore. (Ibid.) A week after that, Fells saw Price with the iPhone and told her to get rid of it. In the meantime, Price and Fells had texted each other, with Price still using Merrill‘s iPhone. (Ibid.) In a text exchange after Fells had read in the paper that Merrill died, Fells chastised Price for “do[ing] to [sic] [m]uch when it don‘t need to b did,” meaning Price had not needed to shoot Merrill. (Ibid. & fn. 4.) Price texted back that “it need it 2 b did regaurdless” and “Jus on how it was done n—a4 I been doin dis shit I kno wut I was doin.” (Id. at pp. 418, 419, fn. 4.) Price further texted, “bitch if I wasn‘t thinking yo dumb ass wild [sic] b in jail rite now or dead so beloved [sic] me n—a I was thinking.” (Id. at p. 419, fn. 4.)
In the first few days after the robbery and murder, Brown arranged for the iPhone to be assigned a new phone number and service provider. (Price I, supra, 8 Cal.App.5th at pp. 424-425.) Police nonetheless succeeded in tracking the iPhone, which ultimately led to the arrests of Price and Brown.
After police arrested Price and Brown and while they were housed in the same jail, a note or “kite” was intercepted and Price‘s cellmate reported seeing her writing a note like that one. The content, which included a
reference to Brown‘s daughter, suggested it had been intended for Brown. It outlined a story they needed to stick to and stated that “even if Barney snitch its gone b her word against ours,” and “[a]s long as we sayn the same thang we gud!!!” Because they had been “thru fast track so we was on camara,” Price was going to say she was “grindn” (selling drugs) in “the TLs” (San Francisco‘s Tenderloin neighborhood) when someone came to her with a phone and she bought it. “[T]he next morning,” they “went 2 go get the shit [phone] unlocked!!” Besides urging Brown to stick to this story, Price
At the conclusion of the trial, the judge instructed the jury on premeditated murder, felony murder, and aiding and abetting and conspiring to commit these offenses. (Price I, supra, 8 Cal.App.5th at p. 426.) It also instructed the jury on robbery, aiding and abetting robbery, conspiracy to commit robbery, attempted robbery, firearm enhancement allegations and the special circumstance of murder committed in the course of a robbery.
The jury convicted Price of robbery and first degree murder and found a robbery-murder special-circumstance allegation to be true, but it rejected three special allegations as to both robbery and murder: (a) that Price “personally used a firearm,” (b) that she “intentionally and personally discharged a firearm” and (c) that she “caused great bodily injury and death to [Merrill].” The court sentenced Price to life without parole as required by the special circumstance statute,
II.
The Direct Appeal in Price I
On direct appeal in Price I, we addressed, among others, Price‘s claim that the jury‘s robbery-murder special-circumstance finding was not supported by substantial evidence. She made an argument about the insufficiency of the evidence similar to those she raised in her
involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury‘s determination that evidence on another count was insufficient.” (People v. Lewis, at p. 656.) In Price I, we looked at “all of the evidence presented to the jury regarding Price‘s role in the murder, including evidence indicating Price was the actual shooter” (Price I, at pp. 452-453), “actually intended that Merrill would be killed” (id. at p. 453) and “played the most prominent role both in planning to rob Merrill and in robbing him and killing him.” (Ibid.) Given that substantial evidence supported the findings that Price was the actual killer and intended to kill Merrill, we concluded there were “more than sufficient [facts] to support the jury‘s true finding as to Price on the felony-murder special circumstance.” (Id. at pp. 452-454.) Because there was sufficient evidence that Price was the killer and that she aided and abetted the felony murder with the intent to kill, we concluded it was unnecessary to decide whether the evidence supported a finding that she acted with reckless indifference within the meaning of Banks and Clark.6 (Price I, at pp. 453-454 & fn. 22.)
As we will discuss further below, we now conclude that substantial evidence also supported a finding that Price was both a major participant in
the felony murder and acted with reckless indifference for human life, and thus the jury‘s special circumstance finding is supported under any of the three possible bases on which the jury could have relied.
The Section 1170.95 Proceedings
In March 2019, Price, representing herself, filed her
The court took judicial notice of its file in the case and of our opinion in Price I. As we have said, based on our holding in Price I, the trial court denied the petition because the record established “the clear viability of a prosecution for felony-murder with a special circumstance.”
Price timely appealed from the trial court‘s denial of her petition.
DISCUSSION
I.
Legal Background
A. The Felony-Murder Special Circumstance and the Banks and Clark Decisions Interpreting It
The special circumstances statutes that are at the heart of this appeal (and Price I)—sections 190.1, 190.2, 190.3 and 190.4—were amended by the voters through the initiative process in 1990 to, among other things, extend death penalty and life without parole sentences to major participants in felony murders who act with reckless indifference for human life. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 342, 344-345; see
the murder was committed while the defendant was engaged in, was an accomplice in, or was in immediate flight after, the commission or attempted commission of specified felonies, including robbery. (Id.,
In 2015 and 2016, our Supreme Court in Banks and Clark interpreted the “major participant” and “reckless indifference” language in
cellmate in an armed breakout from prison, smuggled guns into the prison, participated in the capture of a family at gunpoint and the theft of their car and stood by while the others debated whether to, and ultimately did, murder the family—were major participants in the felony and acting with a reckless indifference to human life, justifying imposition of the death sentence. (Banks, at pp. 799-800, 802-803.) “Somewhere between them, at conduct less egregious than the Tisons’ but more culpable than . . . Enmund‘s, lies the constitutional minimum” required for imposing a sentence of death and the statutory minimum for imposing either death or life without parole. (Id. at p. 802.)
In Banks and Clark, our high court derived from Tison, Enmund and subsequent cases a series of factors helpful in determining whether the “major participation” and “reckless indifference” components of the special circumstances statute,
The store was to be robbed after closing time when most employees would be gone, employees would be handcuffed in a bathroom away from the scene, and the gun that was to be used to move them to that location was to be unloaded. There was no evidence that defendant had past experience with the shooter, and he was not in the immediate area where his confederate shot the victim. (Id. at pp. 612-614, 620-621.) The court did not decide whether the defendant was a major participant, but found insufficient evidence that defendant, having planned the crime to minimize the risk of violence, was aware of an elevated risk to human life beyond that involved in any armed robbery. (Id. at pp. 614, 623.)
In the wake of Banks and Clark, individuals convicted of murder with a felony-murder special circumstance have petitioned the courts for a writ of habeas corpus, arguing the evidence was insufficient to support major participation or reckless indifference as Banks and Clark defined and limited those requirements. (See In re Moore (2021) 68 Cal.App.5th 434, 439 (Moore).) In Moore and cases it cites, our appellate courts have granted habeas relief, applying the Banks and Clark factors to vacate special circumstance findings on insufficient evidence grounds.7 Our high court
reversed a denial of habeas corpus relief in In re Scoggins (2020) 9 Cal.5th 667 (Scoggins) after concluding the evidence did not support a finding that Scoggins acted with reckless indifference to human life. (Id. at pp. 677-684.)8 The courts in these cases applied substantial evidence review but in doing so carefully analyzed the factors identified in Banks and Clark and compared the facts in the cases before them with Enmund and Tison to assess whether the evidence placed the habeas petitioner above the high level of culpability prescribed as the statutory and constitutional minimum for imposing a life without parole
In other cases, courts have denied habeas corpus petitions after concluding substantial evidence supported the challenged special circumstance finding consistent with the standards of Banks and Clark. (E.g., In re Loza (2021) 10 Cal.App.5th 38, 46-55 [petitioner heard confederate brag about having shot someone in the head, participated in planning convenience store robbery at which confederate killed two employees, held door open to facilitate confederate‘s escape, handed him gun for use in robbery, was present at scene of robbery and did nothing to prevent shooting or assist victims]; In re McDowell (2020) 55 Cal.App.5th 999, 1007-1015 [petitioner instrumental in planning and perpetrating burglary and attempted robbery of drug dealer by surveilling victim‘s house beforehand,
knocking on victim‘s door, entering first, brandishing knife to facilitate accomplice‘s entrance, demanding, ” ’ [W]here is the shit?,’ ” and failing to restrain accomplice or intervene after accomplice fired warning shot before shooting victim].)
B. The Revised Law of Murder Under Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Petition Proceedings Under Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate Bill 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).)” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) “To further that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [[] (1) The person was the actual killer. [1] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [1] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2. ’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
In
probable consequences murder liability altogether. (Gentile, supra, 10 Cal.5th at pp. 842-843.) And it “added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
As we explained in People v. Anthony (2019) 32 Cal.App.5th 1102, ” ‘An offender may file a petition under section 1170.95 where all three of the following conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [[] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [[] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” ’ ” (Id. at p. 1148;
“Where the petition complies with subdivision (b)‘s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ (
As we noted recently in People v. Duchine (2021) 60 Cal.App.5th 798, “Since [Senate Bill No.] 1437 [(2017-2018 Reg. Sess.)] was adopted and its mechanism for retroactive application has come into play through the filing of section 1170.95 petitions, many questions have arisen about that process and percolated up through appeals from resentencing decisions.” (Id. at p. 811, fns. omitted.) Many of the questions have now reached our high court. (See, e.g., Gentile, supra, 10 Cal.5th 830, 843-851, 853-859 [Sen. Bill No. 1437 (2017-2018 Reg. Sess.) bars
II.
The Parties’ Arguments on Appeal
Price contends her petition asserted an accusatory instrument was filed against her which allowed the prosecution to proceed under the theories of felony murder or murder under the natural and probable consequences doctrine, that she was convicted under one of those theories and that she could not now be convicted of murder because of changes made to the murder statutes in Senate Bill No. 1437 (2017-2018 Reg. Sess.). Having thus “complied with all of the statutory requirements,” she argues, she was entitled to have the trial court conduct an evidentiary hearing. Relatedly, she contends the trial court was required to assume her allegations as true in
determining whether she had established a prima facie case. In so arguing, Price implies we must ignore the elephant in the room, namely, the jury‘s special circumstance finding.
These arguments are foreclosed by Lewis, in which our Supreme Court held that “the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under [
Price‘s assertion in her petition that she “could not be convicted NOW of first-degree murder because of changes to Section[s] 188 or 189 made
Based on that finding, the People argued, “Not only could she be convicted as the law currently defines murder, she was.”
Under Lewis, the trial court was not required to accept as true Price‘s allegation that she could not be convicted of murder under the current statutes. It was entitled to consider the record of conviction in deciding whether she established a prima facie case and was not required to hold an evidentiary hearing before doing so. Thus, insofar as Price argues the trial court erred in not accepting her allegation that she could not be convicted under current law without considering the record of conviction, she is wrong.
That said, Lewis did not address whether a jury‘s special circumstance finding, with or without an affirmance of that finding on direct appeal, can be challenged under
The People likewise make a few assertions that are foreclosed by Lewis, such as that there is a two-step process for determining whether the plaintiff has made out a prima facie case and that counsel need not be appointed until the second step. (See Lewis, supra, 11 Cal.5th at pp. 962-963.) Those assertions are of little or no consequence here because the trial court
appointed counsel at the outset and allowed full briefing in this case before determining Price had not established a prima facie case. Price argues that the court denied her petition prematurely not because it engaged in a one-step or two-step process in evaluating whether she established a prima facie case, but because it considered the record of conviction in doing so and erred in concluding she had not met her burden.
Of greater significance is the People‘s argument that because we already held there was sufficient evidence to support the special circumstance finding on direct appeal, and did so after Banks and Clark had been decided, Price
In her reply, Price urges us, if we agree with the People‘s procedural argument that she must first challenge the special circumstance finding through a petition for habeas corpus, to treat her appeal as a petition for habeas corpus. She further argues, as she did on direct appeal, that the jury did not find she was the actual killer, as evidenced by its rejection of the firearm allegations. Price also argues that the People are wrong in suggesting the special circumstance finding bars relief under
People would have the burden to prove her ineligibility for sentencing beyond a reasonable doubt.
At bottom, the contest between Price and the People rises or falls less on matters of procedure and more on the merits of her petition. As we view it, Price‘s appeal turns on three questions: (1) Does
III.
Analysis
A. Senate Bill No. 1437 (2017-2018 Reg. Sess.) Did Not Alter the Standard of Review for Special Circumstance Findings.
Currently pending in the California Supreme Court is the question whether a felony-murder special-circumstance finding made before Banks and Clark
circumstance finding made before Banks and Clark does not categorically bar such relief, a related question is what type of review applies in
Some courts have held that a petitioner with a pre-Banks and Clark special circumstance finding is not categorically barred from seeking relief under construed the meanings of
(Smith, supra, 49 Cal.App.5th at p. 93, rev. gr.) According to these cases, major participant
and reckless indifference to human life
in a significantly different, and narrower manner than courts had previously.
the jury did not have the same questions before them
in cases decided prior to Banks and Clark as in cases decided after them. (Smith, at p. 93.) Price relies on this Smith line of cases and argues the trial court erred by failing to issue an order to show cause and provide her an evidentiary hearing, in effect, to relitigate the special circumstance issue.
Other courts have held that a special circumstance finding, including one made prior to Banks and Clark, categorically bars relief under Banks and Clark did not create a new rule of law, but rather
(Jones, supra, 56 Cal.App.5th at p. 482, rev. gr.; see also Nunez, supra, 57 Cal.App.5th at p. 92, rev. gr.) clarified
major participant
and reckless indifference to human life
for purposes of special circumstance allegations under section 190.2, subdivision (d).
(Jones, at p. 482, citing Scoggins, supra, 9 Cal.5th at p. 673.) In these courts’ view, an attack on a special circumstance finding after a conviction becomes final is a collateral attack on the judgment that must proceed by habeas corpus. Thus, only after successful challenge to the finding on direct appeal or by habeas petition may an individual seek relief under Where a decision clarifies the kind of conduct proscribed by a statute, a defendant whose conviction became final before that decision
is entitled to postconviction, habeas relief if the undisputed facts’ in the trial record demonstrate their conduct was not prohibited by the statute
as construed in the decision.
Galvan also reasoned that eligibility for relief under show he or she could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective’ as part of Senate Bill No. 1437 [(2017-2018 Reg. Sess.)].
(Galvan, supra, 52 Cal.App.5th at p. 1142, rev. gr.) The changes to the special circumstances standard occurred, the Galvan court opined, not because of changes’ made by Senate Bill No. 1437 [(2017-2018 Reg. Sess.)], but because of the clarification of the requirements for the special circumstance finding in Banks and Clark.
(Ibid.) Gomez construed a in effect a challenge to the sufficiency of the evidence,
and expressed concern that if such an issue could be raised in a due process right to challenge the sufficiency of the evidence,
i.e., a new trial, at which the prosecution would bear the burden of proving matters that may not have been seen as relevant at the original trial more than a decade earlier.
12 (Galvan, at p. 1142, citing Gomez, supra, 52 Cal.App.5th at pp. 15, 17, rev. gr.)
The People rely on this Gomez/Galvan line of cases and argue that the forum for addressing a challenge to a pre-Banks and Clark special circumstance finding is through an appeal or on habeas corpus, rather than a section
Since this court already rejected a challenge to the special circumstance finding against Price on direct appeal, the People contend she has already been provided the review that Banks and Clark prescribe.
Still other courts, including our colleagues in Division Four, have held that where a petitioner facing a felony-murder special-circumstance finding has never been afforded a Banks/Clark sufficiency-of-the-evidence review by any court, [either] at the trial or appellate level,
he or she may seek resentencing under at the prima facie entitlement-to-relief stage of a resentencing proceeding under subdivision (c) of [section 1170.95].
(E.g., People v. Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease), rev. granted June 30, 2021, S268862.)13 Only if the resentencing court first determines the record of conviction does not contain substantial evidence to support the finding under Banks and Clark is the petitioner entitled to an order to show cause and an evidentiary hearing. (Secrease, at p. 236; Pineda, supra, 66 Cal.App.5th at pp. 801-802, rev. gr.; Arias, supra, 66 Cal.App.5th at p. 1004, rev. gr.) If the resentencing court concludes sufficient evidence in the trial record meets the minimum threshold of personal culpability set by Banks and Clark,
the felony-murder special circumstance finding will foreclose resentencing as a matter of law.
(Secrease, at p. 261.)
The Secrease and Gomez lines of cases agree that
(Secrease, supra, 63 Cal.App.5th at pp. 254-255, rev. gr., citing Allison and Jones.) Both lines of cases hold that Banks and Clark require substantial evidence review of a previous special circumstance finding made under do-over
of factual issues that were necessarily resolved against a
Putting aside the question of the proper forum for raising and resolving such challenges,15 we believe the Secrease and Gomez lines of cases have the better argument regarding the nature of the review that applies to a challenged special circumstance finding made prior to Banks and Clark. As stated in Nunez, supra, 57 Cal.App.5th at p. 96, review granted, Senate Bill No. 1437 did not change any of the requirements for the special circumstance finding announced in Banks and Clark.
The remedy the Banks and Clark decisions provide for special circumstance findings is not an evidentiary hearing but a form of substantial evidence review.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) incorporated the special circumstance finding under
Nor do we construe the evidentiary hearing provision of
The evidentiary hearing does not mean the Legislature intended to allow the parties to reopen and retry matters of fact that the jury already resolved. Indeed, subdivision (d)(2) suggests the Legislature had no such intent. It provides in relevant part that, [i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner‘s conviction and resentence the petitioner.
Thus, the People do not get a This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner
].)
In short, the most plausible understanding of [t]he purpose of section 1170.95 is to give the defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.
(Jones, supra, 56 Cal.App.5th at pp. 490-491 [conc. opn. of Menetrez, J.], rev. gr.)18 As our Division Three colleagues stated in People v. Daniel (2020) 57 Cal.App.5th 666, 678, review granted February 24, 2021, S266336, in an analogous context, We cannot agree that section 1170.95 authorizes a defendant to present new evidence to undermine a jury‘s finding of guilt under a particular theory of murder, effectively retrying the case.
We disagree with cases like Smith that posit that relitigation of special circumstance findings should be permitted under the jury did not have the same questions before them
in cases decided prior to Banks and Clark as in cases decided after them. (Smith, supra, 49 Cal.App.5th at p. 93.) There is no indication the questions put to the jury have changed as a result of Banks and Clark. [O]ur Supreme Court has not required that juries be instructed on the clarifications, and in the wake of Banks and Clark, no mandatory language or material changes were made to the CALCRIM special circumstance instructions. [Citations.] Rather,
(Nunez, 57 Cal.App.5th at pp. 92-93, rev. gr.) In Price I, we held that neither Banks nor Clark [t]he bench notes to the instruction state that Banks
stopped short of holding that the court has a sua sponte duty to instruct on those factors,
and Clark did not hold that the court has a sua sponte duty to instruct on those factors.
compels a more explicit jury instruction on particular factors or facts that must be proven
to establish the high degree of culpability they require. (Price I, supra, 8 Cal.App.5th at p. 451; see also Secrease, supra, 63 Cal.App.5th at p. 256 [problem with pre-Banks and Clark special circumstance finding was not inadequate jury instruction but need for judicial review of finding under Banks and Clark standards.], rev. gr.)
We do not disagree with the cases observing that the clarifying interpretations of the special circumstance language contained in Banks and Clark are significant. Indeed, as we said in Price I, [t]he decisions in Banks and Clark indicate the felony-murder special circumstance may not lightly be applied to every participant in a felony murder and that the evidence required to meet the major participant and reckless indifference elements in the case of a nonkiller must reflect a high degree of culpability.
(Price I, supra, 8 Cal.App.5th at p. 451.) But in our view, Banks and Clark require that these clarifying interpretations be applied by the reviewing court rather than the factfinder. In other words, Banks and Clark require a substantial evidence standard of review, a legal determination requiring an appellate court to view the evidence in the light most favorable to the prosecution, to presume all facts that can reasonably be deduced from the evidence and to determine if a rational trier of fact could have found the elements (as interpreted in Banks and Clark) beyond a reasonable doubt. (Banks, supra, 61 Cal.4th at p. 804; Clark, supra, 63 Cal.4th at p. 610.)
Banks and Clark (and later cases applying them) also compared the role of the defendants in the cases before them to the roles of Enmund, and the Tison brothers, to determine whether the defendants fell sufficiently high on the culpability spectrum to merit sentences of life without parole or death. (Banks, supra, 61 Cal.4th at pp. 805-807; Clark, supra, 63 Cal.4th at pp. 618-620, 621, 623.) Banks, Clark and their progeny have engaged in a legal analysis review of the record to determine the sufficiency of the evidence and a determination whether the facts establish a legally prescribed minimum level of culpability; none has engaged in a new factual determination. (See Ramirez, supra, 32 Cal.App.5th at p. 408 [claim of Banks/Clark error does not involve retrying issues of fact, but rather the application of law to established facts
]; Miller, supra, 14 Cal.App.5th at p. 980 [claim of Banks/Clark error does not require resolution of disputed facts; the facts are a given, they are just legally insufficient under section 190.2 as elucidated in
].) To be sure, the inquiry regarding culpability is fact-specific. Nonetheless, the facts are fixed. They are defined by the evidence in the trial record and the inferences that reasonably can be drawn from them, construed in the light most favorable to the People. The reviewing court does not reweigh the evidence or determine credibility anew.
For all of these reasons, we conclude that
We need not decide whether Banks/Clark review must be accomplished by a direct appeal or a habeas petition or may instead be raised and decided at the prima facie stage of a [w]hether there is sufficient evidence that [an individual] was a major participant in [a] robbery who acted with reckless indifference to human life is a question we can decide on appeal.
B. Substantial Evidence Supports the Jury‘s Special Circumstance Findings, and Price Is Thus Ineligible for Resentencing.
As we have explained, on direct review of the judgment against Price, we rejected her claim that the evidence was insufficient to support the jury‘s special circumstance findings under
(Price I, supra, 8 Cal.App.5th at p. 452.)should be independent of the jury‘s determination that evidence on another count was insufficient.
Secrease implies that the view-each-charge-in-isolation rule does not apply in this context. There, the court observed that the not true finding on the weapons use allegations
against Secrease suggest[ed] the prosecution failed to prove that Secrease was the actual killer
and the court therefore was not confident his denial he was the actual killer or that he acted with intent to kill [was] irrefutably rebutted by the felony-murder special-circumstance finding.
(Secrease, supra, 63 Cal.App.5th at pp. 261, 262, rev. gr.) The court remanded the case to the trial court for resumption of the subdivision (c) entitlement-to-relief stage of the process,
to determine, without resolving conflicts in the evidence,
whether the evidence presented at trial was sufficient to support the felony-murder special-circumstance finding under Banks and Clark
and thus foreclose[d] [Secrease] from further litigating that issue
and render[ed] him ineligible for resentencing relief as a matter of law.
(Secrease, supra, 63 Cal.App.5th at p. 264.)
Also, in People v. Gonzalez (2018) 5 Cal.5th 186 (Gonzalez), our high court considered whether a special circumstance finding made under unreliable
because the jury had found untrue the allegations that a principal was armed and that the defendant personally and intentionally discharged a firearm, the court noted the rule that [w]here a jury‘s findings are irreconcilable, we normally attribute such tensions to compromise, lenity or mistake, and give effect to all of the jury‘s findings
but did not apply it. (Gonzalez, at pp. 207-208.) Instead, the court concluded the special circumstance and firearm findings in that case could be reconciled, positing that the jury could have concluded Gonzalez was not armed and still found defendants had knowledge of a
(Id. at p. 207.) The dissent found the grave risk of death.
reconciliation
But what are we to make of the jury‘s
].) The dissenters also found the majority‘s treatment of the special circumstance finding as confirmation of the validity of the felony-murder verdict, while not true
finding on the allegation that one of the principals was armed with a firearm in the commission of [the] crime? How is it possible that the jury believed both (1) that [the defendants] engaged in criminal activity that they knew involved a grave risk of death, and (2) that none of them was armed with a firearm in the commission of the crime?chalk[ing] [the jury‘s firearm-related findings] up to compromise, lenity or mistake,
inconsistent and would have held the firearm findings established a reasonable probability that a jury instructed on lesser included offenses and related defenses would have decided the case more favorably to the defense. (Ibid.)
The Gonzalez and Secrease opinions’ treatment of firearm findings in the context of special circumstance findings, coupled with the jury‘s rejection of similar firearm enhancements in this case, cause us to doubt that we should rely on the evidence showing Price was the actual killer in affirming the denial of her petition.19 Specifically, the jury rejected findings that she used or discharged a weapon or caused serious bodily injury or death to Merrill; if we do not ignore those findings they cast doubt that the jury found Price was the actual killer. We have less concern about the evidence of intent to kill, which is not in tension with any of the jury‘s findings. Even so, it is not clear which alternative the jury actually found true,20 and we are reluctant to rely on any one alternative to support the special circumstance finding when we can avoid any doubt as to the validity of the finding by completing the circle we began in Price I. We will determine whether, even assuming the jury did not find Price was the actual killer or that she intended that Merrill would be killed, its special circumstance finding is valid based on any of the three alternative bases on which the jury may have relied. We will thus review the third alternative basis for the jury‘s finding, the one we did not reach on direct appeal: that Price was a major participant in the felony murder and acted with reckless indifference of a grave risk to human life. If substantial evidence supports those findings and Price‘s conduct and mental state meet the minimum culpability requirements established in Banks and Clark, the special circumstance finding is valid and precludes any further challenge to that finding.
[s]he participated in the crime from beginning to end, including driving to San Francisco, picking [the victim] up, taking (and keeping) his iPhone, returning to Pittsburg with him inebriated and passed out in the backseat of the car, stopping at Fells‘s house to get Fells‘s gun, taking the gun and Merrill to the park, participating in a further effort to rob him there and, after he was shot, leaving him in the park alone to die.
(Price I, supra, 8 Cal.App.5th at pp. 453-454.)
While the evidence of planning is circumstantial, Price‘s role as the primary planner and decisionmaker in the crime was established by the evidence of the following facts. On the night of the robbery and shooting, she learned Fells had acquired a gun. After picking up the inebriated Merrill, she took possession of his iPhone and used it in the car on the way back to Pittsburg to place more than 20 calls to Fells‘s and Edosa‘s phone. The jury could infer from those calls that she was already planning to pick up Fells and take her gun while she and Brown were in the car driving back across the bridge with Merrill in tow. The inference is bolstered by the fact that she did just that. She and Brown, with Merrill passed out in the car, returned to Fells and Edosa‘s house where she entered the house, asked why Fells and Edosa had not picked up their phone, went to the room where Fells was sleeping, convinced Fells to accompany her on a ride,
retrieved Fells‘s loaded gun from the drawer in the bedroom, put it in her jacket and took it along with her to the dimly lit nearby park. It became clear to Fells at some point after they arrived at the park that a robbery was afoot. Price and Brown intended to rob Merrill. Price participated with Brown in that effort. Assuming Price did not herself shoot Merrill, she gave the loaded gun to Brown to do so. After the shooting, Price kept the phone and Brown took Merrill‘s wallet.
According to Edosa‘s testimony and the texts between Price and Fells after the crime, Fells was upset by the shooting and thought it had been unnecessary. Price texted Fells stating, it need it 2 b did,
she had done this shit
before and knew wut I was doin.
When Fells texted Price that she need to start thinkn b4 u do stupid shit,
Price texted that she was thinking
and if she hadn‘t been, Fells would be in jail rite now or dead.
In the kite intended for Brown, Price outlined the story she and Brown should tell to avoid a murder conviction.
All of this evidence suggests Price was the captain of the entire criminal enterprise. To be sure, it appears to have been a crime of opportunity
This evidence also makes plain that whether or not she shot Merrill, Price supplied the gun to be used in the robbery. As we have said, Price retrieved Fells‘s gun and brought it with her to the park. After the group arrived at the park, Brown took Merrill‘s wallet, saying I got it,
but Price insisted, He got more,
and, according to Fells, pointed the gun at Merrill‘s chest. Whether it was Price who ultimately pointed the gun at Merrill and pulled the trigger or Brown who did one or both of those things does not matter. The fact that Price returned to Fells‘s house to obtain the gun, brought it to the scene and either used it or gave it to Brown to use during the robbery (or both) objectively supports the inference that she was a major participant in the felony murder. So do Fells‘s text messages to her and hers to Fells shortly after the incident in which Fells blamed her for the shooting and she responded that she had done similar things before and knew what she was doing and that it needed to be done.
Further, the evidence strongly indicates that Price acted with reckless indifference to human life. As the court observed in Clark, supra, 63 Cal.4th at pp. 614-615, the requirements of being a major participant and having reckless indifference to human life are interrelated and
(Ibid., quoting Tison, supra, 481 U.S. at p. 153.) According to Clark, the United States Supreme Court‘s significantly overlap . . . , for the greater the defendant‘s participation in the felony murder, the more likely that he acted with reckless indifference to human life.
view of
is reckless indifference
that it 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.
(Clark, at p. 617.) Citing the Model Penal Code, the court in Clark observed that reckless indifference encompasses both subjective and objective elements.
(Clark, at p. 617.) The subjective element is the defendant‘s conscious disregard of risks known to him or her.
The objective component is measured by what
and whether the defendant‘s disregard of the risk a law-abiding person would observe in the actor‘s situation,
(Ibid.) The fact that a robbery involves gain is not enough; nor is the mere awareness that one‘s confederates are armed. (Id. at p. 618.)involved a gross deviation from the standard of conduct that a law-abiding person in the actor‘s situation would observe.
Knowledge of weapons and use and number of weapons is the first factor identified in Clark as bearing on reckless indifference. (Clark, supra, 63 Cal.4th at p. 618.) Here, there was a single gun at the scene of Merrill‘s
Physical presence at the scene and opportunity to prevent the crime or aid the victim is the second factor identified in Clark for reckless indifference. Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force.
(Clark, supra, 63 Cal.4th at p. 619.) In such cases,
(Ibid.) The high court in Tison and other appellate courts the defendant‘s presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state. . . . [Moreover,] the defendant‘s presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.
have considered relevant a defendant‘s failure to provide aid while present at the scene.
(Ibid.)
Price was present at the scene of Merrill‘s killing in the park, which was the culmination of several intermediate steps that we have already spelled out. She brought the loaded gun with her to the poorly lit park, where it became clear she and Brown intended to further rob Merrill of his wallet and
The third Clark factor for reckless indifference is the duration of the felony. (Clark, supra, 63 Cal.4th at p. 620.) Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods,
(Ibid.) Here, while the times at which different events occurred varied with the testimony, the most reliable evidence indicated that Brown and Price crossed the Bay Bridge heading to San Francisco at 1:21 a.m. and that the shots that killed Merrill were heard by nearby residents close to 3:00 a.m. Thus, it appears Merrill was in the car with Price and Brown for one to two hours between the time they picked him up in San Francisco and, after stopping at Fells‘s house, took him to the park, robbed and killed him. He was passed out when they left Fells‘s house and had a blood alcohol level of .24 at the time of his death, indicating he was in a state of high intoxication throughout, and there is no indication he consented to being taken out of San Francisco. This period of time, coupled with Merrill‘s intoxication, in fact provided a greater window of opportunity for violence because it enabled Price to obtain Fells‘s gun and to take Merrill to a dimly lit park where they could rob him without being seen.there is a greater window of opportunity for violence . . . .
The fourth Clark factor for reckless indifference is a defendant‘s knowledge of a cohort‘s likelihood of killing. (Clark, supra, 63 Cal.4th at p. 621.) There was no evidence that Brown or Fells had previously used guns in a robbery or otherwise, or that Price was aware of past conduct on their part that heightened the risk of a killing here. Thus, the fourth Clark factor does not weigh in favor of a finding of reckless indifference. Regardless, this factor is less significant where, as here, the defendant intentionally supplied a loaded gun to her confederate while the robbery attempts were ongoing. Further, other evidence indicates that even if Price was not intent on Merrill being killed, she was aware of a high risk that killing him would, in her view, be necessary. Merrill was not only extremely drunk, but he was a tall 22-year-old man. The likelihood that he would resist efforts by two women to rob him had to have been apparent, and Price‘s anticipation of this is evinced by her stopping to pick up Fells and bring Fells‘s gun to the scene. As she texted Fells later, she had done this before and knew what she was doing, and she decided it was necessary to shoot Merrill.
In short, the evidence here, evaluated in the context of the Clark and Banks factors, supports a finding that Price acted with reckless indifference to the grave risk her acts posed to Merrill‘s life. Contrary to Price‘s arguments, this case is not akin to one in which a getaway driver or other person involved in a limited way in an armed robbery has mere knowledge that his confederates would be armed. This is a case in which the individual who initiated the armed robbery actively acquired the gun, knew it was loaded, brought it to the scene, participated in the robbery, pointed the gun at the victim, and—if she did not shoot—gave the gun to the shooter, in effect encouraging the shooting. As her after-the-crime texts to Fells indicate, Price was more than willing to shoot, or aid Brown in shooting, Merrill; she was willing to kill Merrill if she deemed it necessary to accomplish the robbery and avoid detection, and she was completely indifferent to the grave risk she created that he would end up losing his life. In short, her words and acts reflected a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if [she did] not specifically desire that death as the outcome of [her] actions.
(Clark, supra, 63 Cal.4th at p. 617.)
While Price is not as high on the culpability spectrum as the Tison brothers, she is well beyond Enmund, Banks and Clark. We conclude the jury‘s special circumstance finding is supported by substantial evidence meeting the culpability standard of Banks and Clark. We also conclude that the finding bars Price‘s petition for resentencing under
The decision of the Superior Court is affirmed.
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Price (A159439)
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Charles B. Burch
Counsel:
Spolin Law, Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.
Notes
new trialto which Galvan was referring is the evidentiary hearing before a judge provided under
in the perpetration ofcertain felonies, including
robberyare murder of the first degree (former § 189, subd. (a).) Senate Bill No. 1437 (2017-2018 Reg. Sess.) added the proviso that
[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.(Stats. 2018, ch. 1015, § 3.) This addition incorporated the elements of the felony-murder special circumstance into the murder statute. (Compare ibid. with § 190.2, subds. (a)(17)(A) [felony-murder special circumstance], (b) [actual killer need not have had intent to kill], (c) [person not actual killer who, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted actor committing first degree murder] & (d) [person not actual killer who, with reckless indifference to human life and as major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in commission of felony that resulted in death].)
display[ing] the firearm in a menacing manner during the commission of the offenseconstituted personal use.
by finding the special circumstance true, the jury made the requisite findings necessary to sustain a felony-murder conviction under the amended law,
rendering him ineligible for resentencing as matter of law], rev. gr.; cf. Gonzalez, supra, 5 Cal.5th at p. 200 [error in failing to give instructions on lesser included offenses and related defenses was harmless where jury made special circumstance finding, which
necessarily demonstrates the jury‘s determination that the defendant committed felony murder rather than a lesser form of homicide]; People v. Lewis (2001) 25 Cal.4th 610, 646 [
Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions].)