Opinion
E073085
07-07-2020
In re ANTOINE DUPREE JACKSON, on Habeas Corpus.
Antoine Dupree Jackson, in pro. per; and Matthew A. Siroka, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Douglas P. Danzig and Christopher P. Beesley, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1902181) OPINION ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Stephen J. Gallon, Judge. Petition denied. Antoine Dupree Jackson, in pro. per; and Matthew A. Siroka, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Douglas P. Danzig and Christopher P. Beesley, Deputy Attorneys General, for Respondent.
Antoine Dupree Jackson filed a petition for a writ of habeas corpus seeking to vacate his sentence of life without the possibility of parole. Penal Code section 190.2, subdivision (d), authorizes such a sentence for "a major participant" in a felony murder who acts with "reckless indifference to human life." Jackson argues that the evidence was insufficient to establish the truth of the special circumstance required by section 190.2, subdivision (d). He relies on two recent California Supreme Court cases construing the special circumstance, People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Further undesignated statutory references are to the Penal Code.
We summarily denied his petition. Our Supreme Court granted review and directed us to vacate our denial and issue an order to show cause why Jackson was not entitled to relief. Having received the parties' subsequent filings, we conclude that Jackson's petition lacks merit and deny it.
BACKGROUND
In his petition, Jackson requests that we take judicial notice of the "trial transcripts." Respondent also requests that we take judicial notice of the record in Jackson's direct appeal. Jackson opposes respondent's request for judicial notice, but at the same time, he expressly recognizes that the record of the direct appeal is relevant, and he relies on the record throughout his traverse. We grant respondent's request for judicial notice of the record in the underlying appeal, People v. Jackson et al. (June 24, 2003, E031070) [nonpub. opn.].
I. Facts
On June 16, 1999, Jacquay Busby was shot and killed at an AM/PM store in Moreno Valley. At approximately 10:00 p.m. that night, Augustine Moreno heard two gunshots as he was leaving Burger King and driving through the parking lot of the neighboring AM/PM. A few seconds after the shots, Moreno rounded a corner of the AM/PM building and noticed a car parked near the air and water dispenser and a man approximately two feet from the car. The man ran away from the car towards an apartment complex east of the AM/PM. Moreno did not see anyone else around the car. The car backed up and exited the AM/PM parking lot.
Heather Knox lived at the apartment complex next to the AM/PM. Around 10:00 p.m. on June 16, Knox heard a loud bang and looked outside. She noticed an unfamiliar car with at least one occupant parked in the carport. Ten to 30 minutes later, she heard another loud bang. She looked outside again and saw three men jump over a block wall and run toward the apartments.
Busby worked at a Home Depot located approximately a quarter-mile from the AM/PM. At about 10:00 p.m. on June 16, he drove up to the front entrance of the store, opened the car door, and fell out. He was covered in blood and asked his coworkers to call an ambulance. He said that he had been shot but could not identify the shooter. Paramedics pronounced Busby dead at the scene.
Approximately one week after the shooting, a church pastor gave Detective Michael Lind an audio recording of Jackson in which Jackson explained the events of June 16. Jackson said that he and three people—codefendant Anthony Davis, Joseph Sargent, and an unidentified man—had gone to Burger King to commit a robbery. Jackson asserted that he was in the neighboring apartment complex when shots were fired.
Police eventually arrested and interviewed Jackson. During several interview sessions, Jackson relayed the following story. Around 7:00 p.m. on June 16, Sargent asked Jackson if he wanted to rob the Burger King, and Jackson agreed. Sargent, Jackson, and the unidentified man drove to the Burger King, where they parked for about five minutes. Jackson watched the Burger King and surrounding area while Sargent and the unidentified man either went into the AM/PM or used the phone. The three of them then drove to a friend's apartment complex in Perris, California, and encountered Davis. As Jackson described it: "[Davis] was like he was kicking it so he had a gun on him, I'm like you got a gun man . . . . I'm like 'I know you're down to do anything hey.' So he jumped in the car with us he like wanted to roll with us. I told him man you want to roll with us. He like I want to go with you." Instead of using Sargent's car, Jackson rented a car for the night from a friend. Jackson gave her $10 worth of cocaine for the use of the car.
Davis joined the group, and the four men stopped for gas before going to the Burger King. Sargent "ha[d] a problem with some Hispanic guy" at the gas station, and Davis jumped out of the car and shot at the Hispanic man. Jackson cursed at Davis and told him to get back in the car. Jackson thought Davis might have been "trigger-happy" that night because he shot at the Hispanic man.
Jackson had a BB gun, Davis had a loaded gun, Sargent had an unloaded gun, and the unidentified man had no weapon. There were too many people around the Burger King, so Jackson decided not to rob the restaurant. The unidentified man went into the AM/PM. Jackson and Sargent were walking behind the AM/PM and saw Busby, who was putting air in his tires. Davis was about 10 steps behind them. Jackson pulled the BB gun on Busby and told Busby, "[D]rop and break yourself," which was a command to empty his pockets. Busby ran away, and Davis chased after him. Jackson and Sargent fled in a different direction. They were jumping the wall of the neighboring apartments when Jackson heard shots. He did not see Davis fire the shots, but Davis had the gun, so he must have been the one who shot Busby.
Jackson and his confederates had parked their car at the neighboring apartment complex. The unidentified man exited the AM/PM and jumped the wall of the complex after Jackson and Sargent, and they drove off without Davis. According to Jackson, any witness who saw three people jumping the wall at the same time was wrong. Jackson did not see what happened to Busby after the shooting. He was "trying to be blind to that." II. Procedural History
In relevant part, the trial court instructed the jurors that if they found Jackson guilty of first degree murder, they had to determine whether a special circumstance was true—namely, whether "the murder was committed while [Jackson] was engaged in the attempt to commit a robbery." (Former CALJIC No. 8.80.1 (1997 rev.).) If they found that Jackson "was not the actual killer of a human being," or if they were unable to decide whether Jackson was the actual killer or an aider and abettor, the jurors could not find the special circumstance true unless (1) Jackson acted with the intent to kill when he aided and abetted the murder, or (2) Jackson acted "with reckless indifference to human life and as a major participant" in the commission of the attempted robbery.
The jury found Jackson guilty of first degree murder and returned a true finding on the special circumstance. For the special-circumstance robbery-murder, the court sentenced Jackson to life without the possibility of parole.
DISCUSSION
Murder committed in the perpetration of an attempted robbery is first degree murder. (§ 189, subd. (a).) Once convicted of first degree murder, an accomplice who was "not the actual killer" may be sentenced to life without the possibility of parole if a special circumstance is true. (§ 190.2, subds. (c), (d).) As relevant here, the accomplice must be "a major participant" in the attempted robbery who acted "with reckless indifference to human life." (§ 190.2, subds. (d), (a)(17)(A); Banks, supra, 61 Cal.4th at p. 798.) The law "thus imposes both a special actus reus requirement, major-participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Ibid.) The requirements significantly overlap, because the greater the accomplice's participation, the more likely that the accomplice acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 615.)
Jackson argues that the evidence was insufficient to support the special circumstance finding under Banks and Clark. In Banks, our Supreme Court identified factors for determining whether an accomplice was a major participant. (Banks, supra, 61 Cal.4th at pp. 794, 803.) In Clark, the court set forth factors for assessing whether the accomplice acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-623.)
We apply the substantial evidence standard of review to assess Jackson's claim. We ask "whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [special circumstance] beyond a reasonable doubt.'" (Clark, supra, 63 Cal.4th at p. 610.) "We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Ibid.)
We conclude that substantial evidence supported the special circumstance finding. I. Major Participant
A major participant in a robbery is someone whose "personal involvement" is "substantial" and "greater than the actions of an ordinary aider and abettor" (Banks, supra, 61 Cal.4th at p. 802), but he or she "need not be the ringleader" (People v. Williams (2015) 61 Cal.4th 1244, 1281). The Banks factors for evaluating the extent of participation include: (1) the participant's role in planning "the criminal enterprise that led to one or more deaths"; (2) the participant's role in "supplying or using lethal weapons"; (3) the participant's awareness of the "particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants"; (4) the participant's presence "at the scene of the killing" and thus whether he or she was "in a position to facilitate or prevent the actual murder"; (5) whether the participant's "own actions or inaction play[ed] a particular role in the death"; and (6) the participant's actions after the use of lethal force. (Banks, at p. 803.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Ibid.)
In view of these factors, there was substantial evidence that Jackson was a major participant in the attempted robbery of Busby. Jackson argues that he had no role in planning the robbery because it was a spur of the moment decision—the men had planned to rob the Burger King, not Busby, and they abandoned the Burger King robbery. But much of the planning that went into the Burger King robbery was still pertinent, even if Jackson changed the target at the last minute. And Jackson's role in planning the Burger King robbery was significant. He and his cohorts went to the Burger King earlier that day, and Jackson investigated the area, which included the neighboring AM/PM. When Jackson and the other men encountered Davis, Jackson noticed that Davis had a gun, and he asked Davis to join them. Jackson also secured the car for the robbery by giving his friend $10 worth of cocaine to rent it for the night. And Jackson was the one to abandon Burger King as the target and choose the new target. All of this evidence showed that he played a significant role in the planning.
With respect to the remaining factors, Jackson's BB gun was not lethal, but he bore some responsibility for supplying a lethal weapon. As discussed, he noticed that Davis had a gun, and he knew that Davis was "down to do anything," so he asked Davis "to roll with" them. Jackson may not have put the gun in the shooter's hand, but he knowingly enlisted the armed man. And he was aware of the particular danger Davis posed because of Davis's conduct before the attempted robbery: When they stopped to get gas, Davis shot at the Hispanic man with no apparent justification or necessity, merely because the man argued with Sargent. Jackson described Davis as "trigger-happy." As to the shooting of Busby, Jackson acknowledges that he was "near the scene of the shooting" and did nothing to mitigate the possibility of violence. And it was not just Jackson's inaction that played a role in the murder—it was his actions. He instigated the attempted robbery of Busby, which led in short order to Davis's shooting of Busby. Lastly, Jackson fled the scene after Davis's use of lethal force and did not attempt to aid Busby or at least call 911.
In sum, there was substantial evidence that Jackson was a major participant in the attempted robbery. II. Reckless Indifference to Human Life
A person acts with reckless indifference to human life when he or she "'knowingly engag[es] in criminal activities known to carry a grave risk of death.'" (Clark, supra, 63 Cal.4th at p. 616; Banks, supra, 61 Cal.4th at p. 801.) Participation in an armed robbery by itself is not sufficient to show a reckless indifference to human life. (In re Scoggins (June 25, 2020, S253155) ___ Cal.5th ___ [2020 Cal. Lexis 3976, at p. *26]; Clark, at pp. 615-616; Banks, at p. 810.) The Clark factors for evaluating this requirement overlap with the Banks factors and include: (1) the defendant's awareness that a lethal weapon would be used, whether the defendant personally used a lethal weapon, and the number of lethal weapons used; (2) the defendant's "[p]roximity to the murder and the events leading up to it"; (3) the length of time the victim was restrained by the defendant and his cohorts; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) whether the defendant made an effort to minimize the risk of violence. (Clark, supra, 63 Cal.4th at pp. 618-622.) Like the major participant factors, no single factor is necessary, nor is any one necessarily sufficient. (Id. at p. 618.)
Here, there was also substantial evidence that Jackson acted with reckless indifference to human life. Although "[t]he mere fact of a defendant's awareness that a gun will be used in the felony is not sufficient" (Clark, supra, 63 Cal.4th at p. 618), the record establishes more. The jury could have reasonably inferred that Jackson was in close proximity to the murder. Knox saw three men jumping the wall after a loud bang. Jackson insisted that she was wrong because there were only two—himself and Sargent—and the unidentified man followed them afterward. The jurors could have believed Knox and reasonably concluded that the third man was Davis, and that Jackson was not credible because he was trying to distance himself from the shooting. Jackson asserts that it was not reasonable to infer that he was present for the shooting because, within seconds of hearing shots, Moreno saw only one man by Busby's car. Moreno's testimony does not render the inference unreasonable. It was late at night, and in the few seconds it took Moreno to turn the corner, Jackson and Sargent could have easily run into the darkness.
Even if Jackson were not at Davis's side at the moment of the shooting, Jackson did not return to the AM/PM to try to render aid or call 911. In fact, Jackson was "trying to be blind" to whatever happened to Busby. Moreover, Davis's earlier shooting at the Hispanic man demonstrated a "propensity for violence" and gave Jackson knowledge of his "cohort's likelihood of killing." (Clark, supra, 63 Cal.4th at p. 621.) And while Jackson chose to use a nonlethal BB gun and decided against robbing the Burger King because too many people were around, he did not try to minimize the risk of violence by insisting that "trigger-happy" Davis abandon his gun. On the contrary, Jackson knowingly enlisted the armed Davis, and when he saw Davis chase after Busby, he did not try to stop Davis.
Our Supreme Court's most recent opinion on reckless indifference to human life, In re Scoggins, does not persuade us that Jackson is entitled to relief. In re Scoggins directs us to engage in "a fact-intensive, individualized inquiry," and Willie Scoggins's case is materially distinguishable on the facts. (In re Scoggins, supra, 2020 Cal. Lexis 3976, at p. *29.) Scoggins's plan for an unarmed assault and robbery specifically called for him not to be involved in the attack. (Id. at pp. *2-*3, *16.) He did not use a gun or know that his cohorts were going to use one (id. at p. *15); he did not know of their propensity or likelihood to use lethal force (id. at pp. *23-*25); he was not physically present at the crime scene and thus not in a position to stop his cohorts (id. at p. *17); and he went to the victim after the shooting, checked whether the victim was still breathing, and gave a statement to officers at the scene (id. at pp. *3-*4, *21). The facts of this case stand in stark contrast to those facts: Jackson knew that Davis would use a gun, and he enlisted Davis for that purpose; he knew of Davis's propensity for using lethal force; he was in close proximity to the scene of the murder; and he willingly turned a blind eye to Busby's fate when he saw Davis pursue Busby.
In sum, substantial evidence established that Jackson acted with reckless indifference to human life.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
MENETREZ
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.