Opinion
B318938
05-30-2023
THE PEOPLE, Plaintiff and Respondent, v. RONALD FORT, Defendant and Appellant.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. PA001143 Hayden A. Zacky, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Ronald Fort appeals from an order denying his petition to vacate his murder conviction and be resentenced under Penal Code section 1172.6. Because substantial evidence supports the court's finding that Fort was a major participant in a robbery during which his cohort shot and killed the victim and that Fort acted with reckless indifference to human life, we affirm the court's order.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL SUMMARY
A. Procedural Background
In September 1989, Fort and his accomplice Kent Parrish robbed Richard Davis of his car. During the robbery, Parrish shot Davis with a nine-millimeter semiautomatic handgun. Davis died as a result.
In November 1990, Fort and Parrish were tried together before separate juries. Each jury convicted them of the robbery and murder of Davis. Fort's jury further found that a principal was armed with a firearm during the commission of the crimes. The court sentenced Fort to 25 years to life in prison on the murder count plus one year on the firearm enhancement. The court further sentenced Fort to five years on the robbery count and stayed that sentence under section 654.
Parrish's jury found true the allegation that he personally used a firearm in committing the crimes. The court sentenced Parrish to prison for 27 years to life.
In February 1993, we affirmed Fort's conviction in an unpublished opinion. (People v. Parrish et al. (Feb. 25, 1993, B057183).)
We granted the People's unopposed request to take judicial notice of the appellate record in Fort's direct appeal from the judgment of his convictions (case No. B057183) and Fort's appeal from the order denying his resentencing petition (case No. B305286).
In January 2019, Fort filed a petition for resentencing under section 1170.95, the predecessor to section 1172.6. The court appointed counsel for Fort. After receiving briefing from the parties, the court denied the petition without holding an evidentiary hearing on the ground that Fort had failed to make a prima facie showing that he is entitled to relief. Fort appealed.
In August 2021, we reversed, and directed the trial court to issue an order to show cause (OSC) and hold an evidentiary hearing "to determine whether to vacate Fort's murder conviction and recall his sentence and resentence him." (People v. Fort (Aug. 4, 2021, B305286) [nonpub. opn.].)
After our remittitur issued, the trial court issued the OSC and held the required hearing. The prosecution introduced without objection the reporter's transcript of Fort's 1990 trial and the clerk's transcripts from Fort's direct appeal. No other evidence was introduced.
On February 15, 2022, the court issued an order denying Fort's petition based on its finding that the prosecution had "proved beyond a reasonable doubt that [Fort] could now be convicted of felony murder, because he was a major participant in the crime who acted with reckless disregard for human life."
Fort timely appealed.
B. Factual Summary
In September 1989, Davis advertised for sale his 1973 Datsun 240Z. Kent Parrish saw the advertisement and called Fort with a plan to steal the car. Under the plan, Fort would pose as the buyer of the car; he and the seller would take the car for a test drive, with the seller initially driving the car. Fort would then ask to drive the car and, when the seller got out of the car to move to the passenger seat, Fort would lock him out of the car and drive away. According to Fort, bringing or using a firearm was not part of the plan.
Parrish arranged to meet with the seller, Davis. On the evening of September 17, 1989, Parrish and Fort went to Davis's house, arriving about 9:00 p.m. Parrish brought a nine-millimeter gun with him.
While Parrish waited in his car, parked some distance from Davis's home, Fort met with Davis and asked Davis to take the car for a test drive. After Davis drove the car for a while, Fort asked to drive. When Davis got out of the car to get into the passenger seat, Fort tried unsuccessfully to lock the door. Davis got into the car and they returned to his home.
Fort asked Davis for a glass of water. When Davis went to get the water, Fort again tried to drive the car away, but without success.
While Fort was outside Davis's home, Parrish approached Fort and asked him, "What do you want to do about the car?" In a conversation apparently out of the hearing of Davis, Parrish asked Fort if he still wanted to get the car. Fort said he did not care and was scared. Parrish asked if he was getting cold feet. Fort said he was not, but that he was scared and did not know what to do. In describing this conversation with Parrish to the interviewing detectives, Fort stated that Parrish had asked him, "Do you want to shoot him?" Fort responded, "No, I don't want to do it," then added, "You do it. I'm not touching the gun. You do it." Parrish responded, "Well, let's just see." Later in the interview, when it appears he is describing the same conversation, Fort told the detectives: "When we discussed . . . what we should do, then [Parrish] gave me the gun. I told him I wasn't going to shoot him, and I gave him back the gun. So my handprints were on the gun." At an earlier point in the interview, Fort told the detectives that "the gun was in [Parrish's] hand, but I also touched it. I told him I didn't want to do it."
According to Fort, after this discussion regarding the gun, Fort "stopped" Parrish and told him, "Well, how about we get in the car-I get in the car where I can drive it." Parrish responded, "Yeah, I catch your meaning. And I [Parrish] get in the passenger side and lock the door, and then we just drive off, no problems, to our car."
Fort and Parrish returned to Davis's house. Fort asked Davis for the keys to the car and got in the driver's seat. Parrish got into the passenger seat, locked the doors, and said, "Let's go."
As Fort backed the car out of Davis's driveway and into the street "real slow," Davis opened the hatchback door and jumped into the back of the car.
Fort then "speeded up" and "burned a lot of rubber." As he drove away, Parrish fired four shots-two while in front of Davis's house, a third after Fort had "moved up about a good 10, 12 feet," and the fourth at the end of the block, about four houses away from Davis's house.
Parrish told Fort to make sure Davis was not moving. Fort replied that Davis was "still moving." He told Parrish that he was scared and did not know where to go.
At Parrish's direction, Fort drove the car two or three blocks, then pulled the car to the side of the street. Parrish tried to pull Davis out of the car and told Fort to help. The two of them then pulled Davis out of the car and left him in the street. When they returned to the car, Fort looked back and saw that Davis's head was "still moving."
Fort drove the stolen car to Parrish's parked car. Parrish left the gun on the front seat of Davis's car and told Fort to drive the car to Parrish's house. Parrish then left in his car. When Fort arrived at Parrish's house, he told Parrish he did not want anything to do with the car.
Meanwhile, a person returning to their home about three blocks away from Davis's residence found Davis's body on the street, and called 911. Paramedics responded to the call and pronounced Davis dead at the scene at 9:31 p.m.
According to a medical examiner, Davis had been shot twice in the back. Each bullet exited his body through his chest. One bullet pierced his heart. A third bullet grazed Davis's chest. The examiner could not determine the chronology of the wounds. Although the bullets that passed through Davis's body were fatal, the examiner could not be certain how long Davis lived after the wounds were inflicted.
The medical examiner also found abrasions on Davis's leg, which could have been "caused by the leg being dragged over a hard surface." The examiner determined that these and other injuries on Davis's body "occurred before [Davis's] death."
The day after Davis's death, Fort helped Parrish remove the seats and the tires from the car.
Apparently in response to a news story about the murder, the person who owned the gun Parrish used to shoot Davis confronted Fort about the shooting. Fort told him, "I didn't do it. I was just there, and I drove the car, but I did not do it."
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437, which substantially modified the law governing accomplice liability for murder. (Stats. 2018, ch. 1015, § 2, p. 6675.) Among other changes, the law narrowed the felony-murder doctrine. (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).) Now, to establish guilt under this doctrine, the prosecution must prove: the defendant was the actual killer (§ 189, subd. (e)(1)); the defendant acted with the intent to kill in aiding and abetting the actual killer (§ 189, subd. (e)(2)); or the defendant "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" (§ 189, subd. (e)(3); see Strong, supra, at p. 708; People v. Gentile (2020) 10 Cal.5th 830, 842).
Senate Bill No. 1437 also enacted former section 1170.95- the predecessor to section 1172.6-which authorizes an individual convicted of murder based on the natural and probable consequences doctrine or the felony-murder doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if the petitioner could not now be convicted of murder because of the changes made by the new law. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677; Stats. 2022, ch. 58, § 10; see Strong, supra, 13 Cal.5th at p. 708; People v. Lewis (2021) 11 Cal.5th 952, 959-960.)
Where, as here, the petitioner has made the requisite prima facie showing that he is entitled to relief under section 1172.6, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subd. (d)(1).) At that hearing the court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law," including witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may also offer new and additional evidence at the hearing. (Ibid.; People v. Duran (2022) 84 Cal.App.5th 920, 927.) The prosecution has the burden of proving "beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by [Senate Bill No. 1437]." (§ 1172.6, subd. (d)(3).)
Of the alternative means for proving guilt under the felony-murder doctrine under Senate Bill No. 1437, one is relevant here: Fort "was a major participant in the underlying felony and acted with reckless indifference to human life." Indeed, because Fort does not dispute that he was a major participant in the underlying felony-the robbery of Davis- the issue is whether he acted with reckless indifference to human life.
In People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court explained that reckless indifference to human life "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Id. at p. 617.) The court identified the following factors to consider in determining whether a "nonshooter" aider and abettor acted with such reckless indifference: (1) the defendant's knowledge of weapons, and the use and number of weapons; (2) the defendant's physical presence at the crime and opportunities to restrain the crime or aid the victim; (3) the duration of the felony; (4) the defendant's knowledge of his cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of violence during the felony. (Id. at pp. 618-622; accord, In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).)" '[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.'" (Clark, supra, 63 Cal.4th at p. 618.) Courts of Appeal have also held that a defendant's youth at the time of the crime is also a fact to be considered. (People v. Jones (2022) 86 Cal.App.5th 1076, 10911093 (Jones); In re Moore (2021) 68 Cal.App.5th 434, 451 (Moore); People v. Harris (2021) 60 Cal.App.5th 939, 960 (Harris).)
The Clark court also stated that, although the major participant requirement is separate from the reckless indifference to human life requirement, the two" 'significantly overlap,'" because" 'the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615, quoting Tison v. Arizona (1987) 481 U.S. 137, 153.)
On appeal from an order denying a petition under section 1172.6 after an evidentiary hearing, courts have consistently reviewed the trial court's factual findings to determine if they are supported by substantial evidence. (See, e.g., People v. Sifuentes (2022) 83 Cal.App.5th 217, 233 (Sifuentes); People v. Richardson (2022) 79 Cal.App.5th 1085, 1090 (Richardson); People v. Owens (2022) 78 Cal.App.5th 1015, 1022; People v. Clements (2022) 75 Cal.App.5th 276, 302 (Clements); People v. Ramirez (2021) 71 Cal.App.5th 970, 985 (Ramirez).) Fort acknowledges the unanimity of judicial opinion on this issue, but contends that we should apply an independent standard of review, not the substantial evidence standard.
Fort relies on People v. Vivar (2021) 11 Cal.5th 510 (Vivar), which addresses the standard of review on appeal from the denial of relief under section 1473.7. That statute allows a defendant to seek withdrawal of a guilty plea if they were not properly advised regarding the immigration consequences of the plea. The Vivar court held that courts should apply an independent standard of review in appeals under section 1473.7 where the factual findings are based "entirely from written declarations and other documents." (Vivar, supra, 11 Cal.5th at p. 528.)
The Vivar court expressly limited its holding to the review of rulings under section 1473.7. (Vivar, supra, 11 Cal.5th at p. 528, fn. 7.) Its application of an independent standard of review in the case before it, the court explained, is "a product of multiple factors with special relevance [in the case]: the history of section 1473.7, the interests at stake in a section 1473.7 motion, the type of evidence on which a section 1473.7 ruling is likely to be based, and the relative competence of trial courts and appellate courts to assess that evidence." (Vivar, supra, at p. 527.) As a recent Court of Appeal decision explained in rejecting the same argument Fort makes here, "the factors that persuaded the court in Vivar to apply independent review are not at play" in the review of an order denying relief under section 1172.6. (People v. Werntz (2023) 90 Cal.App.5th 1093, 1109.) Appellate decisions have uniformly rejected the argument and applied the substantial evidence standard to factual findings in support of the denial of a section 1172.6 petition. (See Sifuentes, supra, 83 Cal.App.5th at pp. 232-233; People v. Mitchell (2022) 81 Cal.App.5th 575, 591; Clements, supra, 75 Cal.App.5th at p. 301.) We agree with these cases.
Under the substantial evidence standard of review, we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, supra, 75 Cal.App.5th at p. 298; see Richardson, supra, 79 Cal.App.5th at p. 1090.)" 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'" (People v. Brooks (2017) 3 Cal.5th 1, 57.)
B. Analysis
In determining whether Fort acted with reckless indifference to human life, we "analyze the totality of the circumstances" and consider the relevant factors identified in Clark, discussed above. (Scoggins, supra, 9 Cal.5th at p. 677.) Here, Fort was aware that Parrish had brought a semiautomatic firearm to Davis's house and, viewing the evidence in a light favorable to the judgment, encouraged or directed Parrish to use it. Although Fort did not "want to do it" himself-i.e., shoot Davis-he handed the gun to Parrish and told him, "You do it."
Fort also had ample opportunities to prevent the crime, minimize the risk of violence, and aid the victim. After the first attempt to lock Davis out of the car failed, Parrish offered Fort the chance to terminate the plan when he asked Fort what he "want[ed] to do about the car" and whether Fort was getting "cold feet." Instead of using that opportunity to abort or withdraw from the crime, Fort proceeded to devise a new felonious plan to take the car. Although he could have kept the gun to prevent Parrish from using it, he increased the risk of violence by handing the gun to Parrish.
Even after Parrish shot Davis, Fort, as the driver of the car, had an opportunity to aid Davis or drive him to where he could receive medical attention. (See In re Harper (2022) 76 Cal.App.5th 450, 465 [finding of reckless indifference to human life supported by the fact that petitioner heard gunshot fired by accomplice but "did nothing to aid the [victim]"].) Although the wounds Davis suffered were ultimately fatal, Fort saw that Davis was "still moving" after Parrish had shot him. Not only did Fort fail to make any attempt to aid Davis, he assisted Parrish in pulling Davis out of the car and left him in the street even though he saw Davis move his head after he had returned to the car.
Fort's failure to prevent the robbery and shooting of Davis, despite clear opportunities to do so, and his failure to aid Davis after the shooting, support the court's finding that Fort acted with reckless indifference toward human life.
Fort was 20 years old when he committed his crimes against Davis. He asserts that his age "is relevant" and points to Courts of Appeal opinions holding that a defendant's youth at the time the crime was committed is a factor bearing on the reckless indifference requirement. (Jones, supra, 86 Cal.App.5th at pp. 1091-1093; Moore, supra, 68 Cal.App.5th at p. 451; Harris, supra, 60 Cal.App.5th at p. 960.) Fort, however, did not assert this argument below and has therefore forfeited the point on appeal. Even if the issue was preserved for appeal and if we further assume that his age qualifies Fort as a youthful offender for this purpose, any consideration of his age in our analysis would not alter our conclusion that there is substantial evidence in the record to support the court's finding.
The cases Fort relies on are distinguishable. In Ramirez, supra, 71 Cal.App.5th 970, the 15-year-old petitioner participated with others in a planned carjacking during which an accomplice shot and killed a victim. The Court of Appeal held that the evidence was insufficient to support the trial court's finding that the petitioner acted with reckless indifference to human life. The court explained that the petitioner did not possess or provide a gun to the killer, and he "had reason to expect violence was unlikely" because one accomplice announced that" 'no gun [was] needed'" to commit the crime. (Id. at p. 988.) The court further stated that the petitioner "did nothing to elevate the risk of the underlying felony" (ibid.), and "[did] not have . . . a meaningful opportunity to intervene" or"' "exercise a restraining effect on the crime" or [the perpetrator]'" (id. at p. 989). Nor was there any evidence the petitioner had an opportunity to help the victim after the shooting. (Ibid.) By contrast, Fort, by handing the gun back to Parrish and telling him to "do it," elevated the risk of violence and failed to take the opportunity to prevent Parrish from shooting Davis. He also, as explained above, had the opportunity to aid Davis after the shooting, but failed to do so.
In In re Bennett (2018) 26 Cal.App.5th 1002, the petitioner and three others planned to meet with and rob Brian Gray, a drug dealer. Petitioner drove to a carwash parking lot across the street from Gray's apartment while two of the petitioner's cohorts went to the apartment and shot Gray, killing him. (Id. at pp. 1008-1009.) The two shooters, the petitioner, and the fourth accomplice then returned to the car and left the scene. After they left, the petitioner learned that Gray had been shot. (Id. at p. 1009.) The petitioner stated that his accomplices" 'were not supposed to shoot [Gray], they were just supposed to get the dope.'" (Ibid.) The Court of Appeal held that the evidence did not support a finding that the petitioner acted with reckless indifference to human life. He "was across the street in the parking lot when the shooting took place" (id. at p. 1025)," 'did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop the shooting or render assistance'" (id. at p. 1023). Fort, by contrast, was present during the crime and, for the reasons discussed above, could have prevented the murder by holding Parrish's gun, and could have rendered assistance to Davis after the shooting. Bennett is thus easily distinguishable.
In Moore, supra, 68 Cal.App.5th 434, the 16-year-old petitioner stole a car with the aid of three accomplices. (Id. at p. 441.) The petitioner then drove the stolen car, with two of the accomplices-Athian Russell and Brian Winston-to a shopping center parking lot. Russell got out of the car and approached a man, a woman, and a child and robbed the adults at gunpoint. (Ibid.) After taking the woman's purse and the man's wallet, Russell shot the man twice. Russell returned to the car, which then drove away. (Ibid.) The petitioner "confessed" to stealing the car and driving it when" 'the robbery [and] shooting occurred.'" (Id. at p. 443.) The Court of Appeal concluded that the evidence was insufficient to support a finding that the petitioner acted with reckless indifference. (Id. at p. 451.) The court explained that the petitioner did not use a gun and "there was no evidence he supplied the gun to Russell." (Id. at p. 452.) Also, because Moore was in the car when the shooting occurred, "he was not 'close enough to exercise a restraining effect on the crime or' Russell." (Ibid.) Moreover, although the petitioner left the scene after the shooting, the victim was accompanied by two others and "there were other people in the parking lot at the time of the shooting," so the petitioner "could have reasonably assumed that help would arrive quickly." (Ibid.) Here, by contrast, not only did Fort fail to take the opportunity to have a restraining effect on the crime when he returned the gun to Parrish, he left the wounded victim in the street without any reason to assume that help would arrive quickly.
For all the foregoing reasons, substantial evidence supports the court's finding that Fort was a major participant in the robbery of Davis and that he acted with reckless indifference to human life. Because that finding supports the court's determination that Fort is guilty of murder under the law established under Senate Bill No. 1437, we affirm the court's order denying Fort's petition for resentencing.
Based on our review of the record, even if we evaluated the record under a de novo or independent standard of review, we would come to the same conclusion-that Fort was a major participant in the underlying felony and acted with reckless indifference to human life.
DISPOSITION
The order denying Fort's petition for resentencing is affirmed.
We concur: CHANEY, J. BENDIX, J.