Opinion
B312762
11-30-2021
In re ZECOREY LAMONT MARCUS, on Habeas Corpus.
Susan K. Shaler, under appointment by the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus, Los Angeles County Super. Ct. No. YA071844 Hector M. Guzman, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In 2011, a jury convicted defendant and appellant Zecorey Lamont Marcus of murder on the basis of his participation in a robbery in which a cohort shot and killed a victim. The jury also found true a felony-murder special circumstance. (Pen. Code, § 190.2, subd. (a)(17).) In this petition for a writ of habeas corpus, Marcus challenges the validity of the special circumstance, contending that substantial evidence does not support that he was a major participant in the robbery who acted with reckless indifference to human life. We disagree and deny the petition.
Subsequent unspecified statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
We described the facts of the case in our opinion in Marcus's direct appeal (People v. Galloway et al. (June 8, 2012, B232165) [nonpub. opn.] (Galloway et al.)).
A. The Robbery of Pedro Guerrero in May 2008
"Anna Sanchez, a friend of defendants Galloway and Marcus, testified that she drove defendants to a convenience store in Gardena and waited for them in her car while they went into the store to buy rolling papers for marijuana and orange juice. After a short time, Galloway came out of the store and told Sanchez to park her car across the street because he was going to rob a man he had seen in the store cashing a check. Moments after Sanchez moved her car, defendants came running toward her. Galloway was holding a black revolver. Defendants jumped into Sanchez's car and Galloway told Sanchez: 'Go, go, go.' Sanchez drove away as Galloway handed the gun to Marcus in the backseat. She asked them what happened 'and they said they robbed the man that was in the store cashing his check.' Sanchez identified defendants from a surveillance video shot from within the store.
"Pedro Guerrero testified that he went to a store in Gardena to cash a check for $450.00. As he sat in his car, putting away his money, two men walked up. One man pointed a black gun at Guerrero's head. 'They told me to give them the money or that they would kill me,' Guerrero testified. Guerrero gave the money to the man with the handgun. He did not report the robbery to police because he was afraid but he told the storekeeper about it. A week later the police located Guerrero and showed him photographic lineups and he identified a photograph of Galloway as the man who robbed him with a handgun." (Galloway et al, supra, B232165, at p. 2.)
B. The Murder of Hae Sook Roh in May 2008
"Five days after the Guerrero robbery, at approximately 6:45 p.m., Arthenia Thomas heard gunfire coming from the direction of a T-shirt shop in Gardena and saw two men running from the shop and down the street toward a restaurant where she lost sight of them. Her only description of the two men was that they were wearing black 'hoodies' and had bandanas over their faces. A few minutes later a silver four-door car drove 'really fast' out of the restaurant parking lot. Because the windows were tinted, Thomas could not tell how many people were in the car. Thomas testified that the car depicted in People's exhibit 4 looked like the car she saw leaving the parking lot.
"When the police responded to the shooting, they found the body of Hae Sook Roh, who had worked at the T-shirt shop, lying dead behind the counter near the cash register.
"The prosecution showed the jury an audio and video recording from a surveillance camera in the T-shirt shop. The video showed a black male with a gun in his left hand entering the area in front of the cash register. The man wore white pants, a long white T-shirt and an open waist-length jacket. He had a white cloth tied across his face below his eyes. The bottom left hand portion of the video showed the pant leg and shoe of a second person. The audio portion of the tape contained the voice of the man with the gun saying: 'Give it up. Give it up. Give me the money.' A second voice said[, ] 'Give him the money and then the gunman fired at Roh saying, 'Bitch. Give it up.' He repeated[, ] 'Give it up' and then shot Roh two more times, grabbed the money from the register and ran. The gun was not recovered. The take from the robbery-murder was approximately $35.
"Sanchez testified that she was at Galloway's house on the day of the murder. When it started to get dark, Galloway went to the trunk of his mother's car and changed into basketball shorts, a white T-shirt and waist-length jacket. He then began waiting in front of the house. A gray Chevrolet Impala with tinted windows pulled up in front of the house. Someone inside the car opened the back door, and as Galloway got in, Sanchez saw Marcus lean over. Sanchez identified the car shown in the People's exhibit 4 as the car she saw that evening. The same car returned to Galloway's house 20 to 30 minutes later and Galloway got out. Sanchez observed that Galloway was breathing heavily, his palms were sweating and he was acting 'like he was nervous and scared.' Galloway told her that 'he shot a lady at the T-shirt place.' He 'started laughing like it was funny' and said 'the bitch wouldn't die. So he just had to keep shooting her.' Sanchez asked Galloway why he shot the lady and Galloway replied that he was mad because he wanted to rob the store but 'right before he walked in, she dropped the money [in the floor safe] [a]nd so he shot her.'
"A few days later Galloway showed Sanchez a YouTube video of the murder and robbery at the T-shirt shop. He laughed again while he watched it. Sanchez recognized Galloway on the video because he was wearing the same clothes he wore when he left his mother's house the evening of the murder. She also recognized the gun in the video as the gun Galloway had used in the robbery of Pedro Guerrero." (Galloway et al, supra, B232165, at pp. 3-4.)
C. The Defendants' Custodial Statements
"After defendants were arrested, they were seated next to each other on a bench in a hall of the jail. The bench had a hidden recording device. The prosecution played the recording of the defendants' conversation to the jury. In that conversation Galloway told Marcus that the police showed him a picture of Marcus inside the store just before the Guerrero robbery. Marcus acknowledge[d] he [would] have to serve 15 years for the robbery but told Galloway that if he got bailed out' I 'm gone.' Galloway told Marcus not to worry because he admitted the robbery and told the police Marcus had nothing to do with it and that he didn't even know Marcus. Later in the conversation, Galloway admitted his involvement in the murder. Marcus also admitted being at the scene of the murder, noting that the video showed him wearing the same shoes that he was wearing when he was arrested." (Galloway et al, supra, B232165, at p. 4.)
D. The Credibility of Sanchez
"Sanchez admitted she played a role in the robbery of Guerrero, that she pleaded guilty to that crime, that she was in custody at the time of her trial testimony and that she was receiving lenient treatment in her sentencing in exchange for her testimony against defendants. She also admitted that she had previously been convicted of forgery and the unlawful taking of a motor vehicle.
"Sanchez further admitted that she had been a regular user of marijuana for six to nine months prior to the murder of Roh; that she 'smoke[d it] every day;' and that she had smoked marijuana just before the Guerrero robbery and was feeling 'mellow' at the time. Sanchez testified that she smoked a type of marijuana known as 'Chronic' which, she agreed, is a 'particularly potent' and 'intense' form of the drug. In addition to smoking marijuana, Sanchez stated that on weekends she used Ecstasy. ([This court took] judicial notice that the T-shirt robbery and murder were not committed on a weekend.) She testified that she stopped using any drugs after May 12, 2008, the date of the robbery-murder.
"The defense called a forensic toxicologist who testified that in his opinion someone who smoked Chronic every day over a six- to nine-month period would suffer from confusion, delusion and 'disoriented perception.'" (Galloway et al, supra, B232165, at p. 5.)
A jury convicted Marcus of one count of first degree murder (§ 187, subd. (a)), and found true a felony-murder special circumstance allegation (§ 190.2, subd. (a)(17)). The jury also convicted him of two counts of robbery (§ 211), and found true allegations of gang and firearm enhancements on all three counts. The court imposed a sentence of life without the possibility of parole for murder, plus an additional 25 years to life for the firearm enhancement. On appeal, we struck the gang enhancements for lack of substantial evidence, as well as the firearm enhancements, which were invalid without a gang enhancement (see § 12022.53, subd. (e)(1)(A)), but we otherwise affirmed the judgment. (See Galloway et al., supra, B232165, at p. 11.)
After Marcus's conviction was final, the Supreme Court issued its opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of "major participant" and "reckless indifference to human life" for purposes of the felony-murder special circumstance. (Banks, supra, 61 Cal.4th at p. 788.) In light of these opinions, the Supreme Court held in In re Scoggins (2020) 9 Cal.5th 667 (Scoggins) that defendants could challenge the sufficiency of the evidence of pre-Banks and Clark felony-murder special circumstance findings by means of a habeas petition, contrary to the ordinary rule that a defendant may not use a habeas petition to challenge the sufficiency of the evidence against him. (Id. at pp. 673-674; In re Miller (2017) 14 Cal.App.5th 960, 979.)
In September 2020, Marcus filed a petition for a writ of habeas corpus in this court, contending that there was insufficient evidence to support the special circumstance finding. We denied the petition without prejudice to Marcus's filing a new petition in the superior court. (In re Marcus (B307364, petn. for habeas corpus den. Oct. 2, 2020).) In February 2021, Marcus filed a habeas petition in the Supreme Court, which issued an order to show cause directing us to consider the petition.
DISCUSSION
Marcus contends that there was insufficient evidence that he was a major participant in the robbery who acted with reckless indifference to human life, and that we must therefore reverse the felony-murder special circumstance. We disagree, as we explain below.
A felony-murder special circumstance requires proof that the defendant either was the actual killer (§ 190.2, subd. (b)), that he acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the commission of the murder (§ 190.2, subd. (c)), or that he acted "with reckless indifference to human life and as a major participant" in the underlying felony (§ 190.2, subd. (d).) Because we conclude that there was substantial evidence to support the conclusion that Marcus was a major participant in the robbery and acted with reckless indifference to human life, we need not consider whether there was also sufficient evidence that he directly aided and abetted Galloway in killing Roh.
We review the sufficiency of the evidence of the jury's finding in the same way we would any other finding: "[W]e ask' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for' "substantial evidence-that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt." (Banks, supra, 61 Cal.4th at p. 804.) "There is no material dispute as to the facts relating to [Marcus]'s conviction. The question is whether on this record [Marcus]'s conduct is proscribed by the special circumstances statute, as construed in Banks and Clark. If it is not, then the trial court acted in excess of its jurisdiction when it sentenced [Marcus] to life imprisonment without the possibility of parole, and habeas corpus relief would be available." (Scoggins, supra, 9 Cal.5th at p. 674.)
A. Case Law on Major Participation and Reckless Indifference
The terms "major participation" and "reckless indifference to human life" in section 190.2, subdivision (d) are drawn from the United States Supreme Court's jurisprudence on the constitutionality of the death penalty in cases of felony murder. In Tison v. Arizona (1987) 481 U.S. 137 (Tison), the Court considered whether a defendant who did not personally kill the victim could be sentenced to death for felony murder. The Court held that if a defendant was a major participant in the underlying felony and acted with reckless indifference to human life, then the Eighth Amendment does not prohibit the imposition of the death penalty as disproportionate. (Tison, supra, at p. 158.) In 1990, the electorate enacted section 190.2 by initiative, adopting the Tison standard for felony murder in California. (See Scoggins, supra, 9 Cal.5th at p. 674.)
Because section 190.2 incorporates the standard established in Tison, California courts have looked to Tison for guidance in defining the concepts of major participation and reckless indifference to human life. (See Scoggins, supra, 9 Cal.5th at p. 675; Banks, supra, 61 Cal.4th at p. 798.) In particular, the California Supreme Court has viewed Tison and a prior case, Enmund v. Florida (1982) 458 U.S. 782 (Enmund), as "represent[ing] points on a continuum." (Banks, supra, at p. 802.) The defendants in Tison were sufficiently culpable to justify the application of the death penalty, but the defendant in Enmund was not. "Somewhere between them, at conduct less egregious than the Tisons' but more culpable than Earl Enmund's, lies the constitutional minimum for death eligibility." (Banks, supra, 61 Cal.4th at p. 802.)
The analysis is the same in cases like this one in which the death penalty is not at stake. Regardless of the punishment, the question is whether the defendant's conduct meets the relevant standard. (See Banks, supra, 61 Cal.4th at p. 804.)
In Enmund, the defendant and two confederates planned to rob an elderly couple at their home. When the couple resisted, one or both of Enmund's cohorts shot and killed the couple. Enmund, who was waiting in a car nearby, drove his cohorts away and helped them dispose of the murder weapons. (Enmund, supra, 458 U.S. at p. 784.) The Court held that the imposition of the death penalty was unconstitutionally disproportional as a punishment to Enmund, who had not intended for a killing to take place and was not at the scene at the time of the murders. (Id. at p. 788.)
By contrast, the Court did not reverse the imposition of the death penalty in Tison. The defendants in that case, three brothers, "assembled a large arsenal of weapons" to break their father and another inmate, both convicted murderers, out of prison. (Tison, supra, 481 U.S. at p. 139.) "The brothers armed the two prisoners, locked up the prison guards, and helped the prisoners escape. (Ibid.) A few days later, the group got a flat tire and flagged down a passing car for help. (Id. at pp. 139-140.) They kidnapped the family that was in the car and robbed them. (Id. at p. 140.) The two brothers then guarded the family while their father considered what to do next. (Ibid.) Eventually, the father shot all of the family members, and the group of perpetrators left the victims to die without rendering aid. (Id. at p. 141.)" (Scoggins, supra, 9 Cal.5th at p. 675.)
To assist in distinguishing points along the continuum between Enmund and Tison, the court in Banks set out a series of considerations relevant to determining whether a particular defendant was a major participant in the underlying felony. These factors are as follows: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
The defendant in Banks was a getaway driver in an armed robbery of a marijuana dispensary. (Banks, supra, 61 Cal.4th at pp. 804-805.) The court held that there was insufficient evidence that he was a major participant in the robbery, noting that he was not present at the scene when a cohort shot and killed a guard at the dispensary, and might not have been able even to see or hear the shooting. (Id. at p. 805.) In addition, there was no evidence that he procured the weapons or that his confederates had a history of committing murder or other violent crimes. (Ibid.)
In Clark, the court re-examined Tison, this time considering in particular the second requirement for the special circumstance, reckless indifference to human life. Once again, the court established a list of factors useful to determining whether a defendant met the standard for liability. Because the issue of reckless indifference to human life overlaps significantly with major participation in the underlying felony, the relevant factors are similar to those stated in Banks. (See Clark, supra, 63 Cal.4th at pp. 614-615.) The factors identified in Clark are: (1) The defendant's knowledge of weapons, the number of weapons used, and the defendant's own use of weapons; (2) the defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) the defendant's knowledge that his cohort was likely to kill; and (5) whether the defendant made efforts to minimize the risk of violence during the felony. (Id. at pp. 618-622.) Just as in Banks, the court in Clark clarified that these considerations are not exhaustive, sufficient, nor necessary to establishing whether the defendant's conduct met the standard for the special circumstance. (Id. at p. 618.)
The court in Clark applied these factors and concluded that there was insufficient evidence to show that the defendant acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 623.) The defendant was the principal planner of a robbery of a CompUSA store. The plan was to wait until the store was closed, and then to handcuff the staff in the store's bathroom and load store merchandise into a U-Haul van. (Id. at p. 620.) The mother of a store employee came into the store looking for her son, surprising one of the defendant's confederates, who shot and killed her. (Id. at p. 537.) Several factors contributed to the court's conclusion that the defendant did not act with reckless indifference to human life. Most notably, the defendant was not present at the time of the shooting, and he had planned the robbery in a way that would minimize the risk of violence. He scheduled the robbery after the store closed, when fewer people were likely to be present, and expected the group to use only one gun, which was loaded with only a single bullet. (Id. at pp. 621-622.)
B. Application to the Case
In applying this law to Marcus's case, we conclude that sufficient evidence supports the jury's special circumstance finding.
A key factor distinguishes Marcus from the defendants in Banks, Clark, Scoggins, and Miller, where courts found insufficient evidence to support a special circumstance finding. Unlike all of those defendants, Marcus was present at the scene of the shooting. (Cf. Miller, supra, 14 Cal.App.5th at p. 974; Scoggins, supra, 9 Cal.5th at p. 678; Banks, supra, 61 Cal.4th at p. 805; Clark, supra, 63 Cal.4th at p. 614.) We do not mean to imply that this single factor is dispositive in all cases, but we note that "[t]he defendants who have been able to get their special circumstance findings vacated under Banks and Clark are those who were not wielding guns themselves and also not present for the shooting." (People v. Law (2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490.) A defendant is less likely to have acted with reckless indifference to human life if "he was not 'close enough to exercise a restraining effect on the crime or'" his codefendant. (In re Moore (2021) 68 Cal.App.5th 434, 452, quoting In re Ramirez (2019) 32 Cal.App.5th 384, 405.)
Here, a jury could have reasonably concluded that Marcus had the opportunity to step in to prevent the shooting or restrain Galloway. Marcus was standing only a few feet away when Galloway fired the first shot. Several seconds elapsed during which Marcus could have attempted to intervene while Roh cried out in pain and Galloway continued to rifle through the cash register. But he did not do so, and Galloway fired two more shots at the helpless Roh. Roh did not die instantly from her wounds. She lay on the floor behind the counter of the store until a customer entered the store, discovered her, and called 911.
Marcus notes that it was not possible to determine the order of Roh's gunshot wounds. The first shot alone might have been fatal, and even if Marcus had attempted to intervene, it might not have saved Roh's life. But this is not the point. The key consideration in determining reckless indifference to human life is whether the defendant displays "a willingness to kill (or to assist another in killing) to achieve a distinct aim." (Clark, supra, 63 Cal.4th at p. 617.) Marcus's failure even to attempt to intervene is evidence of his reckless indifference to Roh's life.
The robbery of Guerrero, which occurred just five days before Roh's murder, also provides evidence of Marcus's mental state at the time of the shooting. The jury could reasonably have concluded that Marcus knew that Galloway planned to use a gun to rob Roh because he had seen Galloway do so in a similar robbery just a few days earlier. The jury could reasonably have concluded further that Marcus was aware of the risk that the next robbery could end in violence when he decided to assist Galloway in the robbery of the t-shirt shop.
Marcus correctly notes that several of the Banks and Clark factors are in his favor. For example, only one weapon was used in the robbery, which Marcus did not personally use (see Clark, supra, 63 Cal.4th at p. 618, Banks, supra, 61 Cal.4th at p. 803); the robbery took place quickly, with no prolonged risk to the victims (see Clark, supra, at pp. 620-621); and there was no evidence that Marcus knew of any past history indicating Galloway was likely to kill (see id. at p. 621; see also Banks, supra, at p. 803). But as the Supreme Court cautioned in both Banks and Clark, "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, supra, at p. 803; Clark, supra, at p. 618.) Considering all of the relevant factors together, we conclude that substantial evidence supports the finding that Marcus was a major participant in the robbery of Roh, and that he acted with reckless indifference to human life.
We also reject Marcus's argument that the jury instructions were inadequate because they failed to list the relevant factors under Banks and Clark. Even now, the pattern jury instructions for the felony-murder special circumstance include only optional language regarding the Banks and Clark factors (see CALCRIM No. 703), and their exclusion does not render instructions defective. (People v. Price (2017) 8 Cal.App.5th 409, 451.)
DISPOSITION
The petition for writ of habeas corpus is denied.
We concur: CHANEY, J. BENDIX, J.