Opinion
B322386
10-05-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMAR LAVELL MANARD, Defendant and Appellant.
Theresa Osterman Stevenson, 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, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. MA036204-01 Lisa Mangay Chung, Judge. Affirmed.
Theresa Osterman Stevenson, 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, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
Jamar Lavell Manard appeals from the trial court's order denying his petition to vacate his murder conviction under Penal Code section 1172.6. We conclude substantial evidence supports the court's finding, after an evidentiary hearing and beyond a reasonable doubt, that Manard was a major participant in the attempted robbery and he acted with reckless indifference to human life. We affirm.
References to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.).
FACTS AND PROCEDURAL BACKGROUND
1. Taxi driver Edward Sweatt is shot and killed
We take our statement of facts from the transcripts of the testimony at Manard's 2008 trial. We previously granted Manard's request for judicial notice of the record in his direct appeal (B211477) or to augment the record with those transcripts.
On April 15, 2006, Marvin Ramsey, Dukwan Adderley, and Manard went to a residence on Benald Street in Lancaster. Rochelle Newman was visiting her aunt there. Newman and Manard had been dating for almost five years. Newman didn't recall what time Manard and the others arrived but it was already dark.
Manard asked Newman if he could use her phone and Newman gave it to him. Ramsey heard Manard make a call "to the taxi place." Manard used the name "Tony." Manard and Adderley then "took off." Right before they left, Ramsey heard Manard and Adderley talking about robbing a taxi. At trial, Ramsey claimed not to remember "the specifics."
Around 9:00 p.m. on April 15, Jesse Pulido was parked on Fenhold Street at its intersection with Lightcap Street. He heard "like a pop, like a tire explosion or something," and "then right after that, a squeal and then just a big crash." The pop sounded similar to a gunshot "but muffled." Pulido saw a taxicab crash into a Volvo and a Honda. Before Pulido could get out of his car, the rear doors of the taxi flew open and two men ran southbound "around the corner of Lightcap."
Manard and Adderley returned to the Lancaster residence half an hour to an hour after they'd left. Manard told Ramsey, "We killed the taxi man." Adderley said, "We did it." Manard and Adderley told Ramsey "everything that happened."
When asked at trial what else Manard and Adderley had told him, Ramsey replied, "One [statement] that's popping up in my head right now is that Dukwan was scared to shoot. So I guess, I don't know how or what had happened, but I guess he had to-Jamar stated that he had to, I don't know if he pulled the trigger or not. I don't remember that part.... But I do remember that he said that Dukwan got scared and he had to shoot."
Adderley was 16 years old at the time of the crime. Manard was 23.
This exchange followed:
"Q: So Dukwan got scared and so he had to shoot, meaning Mr. Manard had to shoot?
"A: Yes, but not knowing if Dukwan was still holding the gun or what.
"Q: You don't know, by the statement that Mr. Manard made to you, you don't know whether Mr. Manard actually had the gun in his own hand or whether he put his hands on top of Mr. Adderley's hands to pull the trigger or anything like that. Is that what you're saying?
"A: Correct.
"Q: All you know is that Mr. Manard said that he, Mr. Manard, had to shoot; is that right?
"A: Yes."
Ramsey had never seen either Manard or Adderley with a gun.
On April 15, 2006, Los Angeles County Sheriff's Department Detective Eddie Brown went to a location near the intersection of Fenhold and Lightcap. He saw a taxi that had collided head-on with a Volvo, pushing the Volvo into a Honda. Brown saw Edward Sweatt's body. A single gunshot had entered Sweatt's right ear and exited near his left eye. To Brown, this meant Sweatt had turned his head to the right when he was shot. According to Brown, the shooter would have been sitting on the right side of the back seat, on the passenger side of the car.
Officers found a red bandana and a black bandana at the scene. DNA from the black bandana matched a swab taken from Manard. DNA from the red bandana matched Adderley's swab. Officers also lifted fingerprints from the rear doors of the taxi. Manard's prints were found on the outside of the rear passenger side door of the taxi.
Detective Brown interviewed Manard twice: on September 12 and then again on September 13, 2006. In the first interview, Manard told Brown that Adderley had wanted to rob a taxi. Manard admitted he'd used Newman's phone to call the taxi service, using the false name "Tony." The taxi was to come to Manard's old address, 44726 12th Street East. Manard told Brown that Adderley and someone named Tray K were in the taxi. Manard first said that-at some point before Sweatt was shot-Manard jumped out of the taxi and rolled onto the street. Manard then changed his story and said he'd been in the taxi when Sweatt was shot. Manard told Brown Adderley shot Sweatt in the head.
Brown believed Manard was lying, because witnesses had seen two people-not three-run from the taxi after it crashed. So Brown interviewed Manard again the next day.In the second interview, Manard admitted only he and Adderley were in the taxi. Manard again said Adderley had shot Sweatt. In contrast to the first interview, however, Manard told Brown that it was Adderley-not Manard-who had called the taxi service and given them the 12th Street East address.
There also had been a problem recording the first interview. Manard had asked Brown to turn off his recording device because he didn't want to be labeled a snitch. Brown agreed, believing an audio and video recording system for the interview room would continue to record the interview surreptitiously. But that equipment failed.
At some point, Brown had Ramsey-who had been arrested along with Manard-come into the interview room. During that interview with Manard present, Ramsey never said Manard had told him he (Manard) had done the shooting. About two weeks before the trial, however, in a telephone conversation, Ramsey told Brown-as he would later testify at trial-that Manard had told him he had pulled the trigger.
2. The charges, trial, verdicts, and sentence
The People charged Manard and Adderley with Sweatt's murder. The People alleged the murder was committed while the defendants were engaged in the commission of robbery within the meaning of section 190.2, subdivision (a)(17). The People also charged both defendants with attempted robbery. The People alleged Sweatt was a taxicab driver engaged in the performance of his duties within the meaning of section 190.25, the defendants committed the crimes for the benefit of or in association with a gang, and a principal used and discharged a firearm that caused death to Sweatt.
Although the information alleged attempted second degree robbery, the prosecution later amended the charge to attempted first degree robbery. The court instructed the jury that first degree robbery is a robbery "committed while the person robbed was performing his duties as the driver of a taxi."
The People also alleged a principal was armed with a firearm in the commission of the offense under section 12022, subdivision (a)(1).
Manard and Adderley were tried separately. Manard testified in his own defense. Manard said he'd met up with Newman around 5:00 or 6:00 p.m. on April 15, 2006. "[L]ater on," Adderley and Ramsey called Manard and he met up with them. The threesome had planned "to just drink and smoke for the rest of the night." "But somehow it came in the conversation about like how much money we had left because we wanted to get some money to get some extra stuff, but we didn't have the money." Manard and Ramsey "had [their] own weed" but Adderley wanted his "own weed." "So he said he wanted to hit something." Manard explained that "in street terms" that meant to "rob something."
Manard said," 'All right. What you want to rob?'" Manard suggested they rob a liquor store. Manard told Adderley," 'That's the only thing I would do with you, I ain't doing nothing stupid.'" Adderley rejected that proposal, stating," 'I'll rob the taxi driver.' "
Manard testified Adderley first suggested robbing a "pizza man" but Manard and Ramsey nixed that idea. Manard explained, "They always wanted to rob a pizza man," but he (Manard) just wanted the money, not the food.
Manard didn't have a gun with him. When asked if he knew whether Adderley was armed, he replied, "Not at that time. Not right at that point." Ramsey said he was not going to go with Adderley so Manard said," 'Okay.... I'll go with him, then.'" Defense counsel stated, "So you agreed to go along with Adderley to get into a taxi and do a robbery, right?" Manard replied, "Yes."
Manard "had to sweet-talk [Newman] to get the phone from her." He gave Adderley the phone to call the taxi company because the company "knew [Manard's] voice." As Manard and Adderley walked down the street toward the pick-up point, Manard told Adderley," 'I take a lot of taxis. If I know the taxi person, we ain't going to do the robbery. We going to play it off like something else. If I don't know the taxi person, we're going to do the robbery.' "
Adderley showed Manard he had a gun. Manard had thought they were "just [going to] strong-arm [the taxi driver]." Manard explained, "I was going to rob the driver from behind while [Adderley] go in his pockets and do whatever."
When the taxi pulled up, Manard walked around the front of the car to see the driver's face. Sweatt recognized Manard and said something like, "Hey, youngster, what are you doing over here?" As Adderley walked around the back of the taxi, he made eye contact with Manard. Manard "gave [Adderley] a sign" and whispered," 'I know who he is.'" Manard demonstrated this "signal" for the jury, using his right hand to make a horizontal movement across his chest. According to Manard, this "signal" meant "we weren't going to do it no more." Adderley "just shook his head." When asked why he got into the taxi if he knew the driver, Manard replied, "[W]e was going to take the taxi to [Maesha Lundy's house] and hop out without paying the taxi."
The record does not support Manard's assertion on appeal that this was "a nod of acknowledgement." Manard never said Adderley nodded or otherwise indicated agreement that the robbery was off.
Adderley got into the back seat on the passenger side and Manard sat behind the driver's seat. Manard said he was thinking, "I hope [Adderley] don't do nothing stupid." But, Manard continued, "[W]e already state what we willing to rob him like that.... So . . . I'm in the car already, so whatever he do, . . . I put myself already there with him."
When defense counsel asked Manard, "So when you get into the taxi, are you thinking you're going to commit a robbery?", Manard replied, "I know I'm not." Counsel continued, "And you expect that [Adderley] is not; right?" Manard answered, "Yeah."
Manard had told Sweatt to turn right but Adderley then told Sweatt to turn left. After Sweatt turned left, Adderley told Sweatt to" '[m]ake a quick right.'" Adderley said," 'Our homey's down this block, we trying to pick him up.'" Manard then repeated what Adderley had said "because [Sweatt] didn't hear [Adderley]." Manard told Sweatt," 'Oh, he's our friend down this block. We're going to pick him up.'" Sweatt slowed down and was moving three to five miles per hour.
When Adderley told Sweatt to turn left, Manard "knew right there what was going to happen." Nevertheless, Manard "didn't say nothing." After Sweatt slowed down, Adderley pulled out his gun and said," 'Give me the money.'" Sweatt turned around and said," 'You young motherfucker.'" Manard started laughing because Sweatt was "more aggressive" than Adderley.
Then Sweatt said," 'If you're going to rob me . . . then we all going to die in this, motherfucker.'" Sweatt "jerk[ed] the car" "back to the street" "in full speed." The taxi "hit like a bump" and "[t]he gun went off." Manard testified, "I can't say [Adderley] did it intentionally because I'm not in his . . . head."
Sweatt said, "Fuck." The taxi swerved then crashed. Manard jumped out. As he "was like about to take off," Adderley yelled, "Come back and get me." Adderley "was stuck in the car or something," so Manard pulled him out and the two "ran up the street." They "hopped the brick wall" of a woman Manard knew and ran to the houses of friends or acquaintances.
Manard stayed at the house of someone named Alisha Long for a time. He took off the clothes he'd been wearing. He heard a police helicopter, and "the lights that was coming around kept shining on her house." Eventually Manard returned to the house where Newman was staying. He testified he didn't tell Ramsey "exactly what's happening"-only that Adderley "did some stupid shit tonight."
When asked by defense counsel why he hadn't told Brown "everything that you've told us today," Manard replied, "I didn't want to put myself at that crime scene. Who want to put theyselves in a murder crime scene?" Later, Manard said, when Brown told him Adderley "just put it all on me like-like I just did the shooting and I did mayhem," Manard "just threw it back on [Adderley]."
On cross-examination Manard testified the plan was for him to grab the taxi driver from behind and Adderley to take the money. He admitted that, before he got into the taxi, he knew Adderley had a gun and he (Manard) was "going to commit a robbery where a gun was involved." Manard knew the gun was going to be pulled out "if we was going to rob the taxi driver." However, Manard "thought it was going to be a simple robbery." Manard and Adderley were going to divide the proceeds. Manard wanted to buy an Ecstasy pill and Adderley was going to buy some drugs or weed to share.
When asked why, when Adderley told Sweatt to take a left, he didn't tell Adderley, "[L]et's not do it," Manard replied, "I can't say that while we was in the taxicab. He's listening to what we saying." Manard admitted that, when Adderley told Sweatt to slow down because his homey "stay[ed] in one of these houses," he (Manard) "knew exactly what was going on." He admitted that, when he repeated Adderley's statement to Sweatt, he knew there was no such "homey" to be picked up.
On September 9, 2008, the jury convicted Manard of first degree murder and first degree attempted robbery. The jury found true the special circumstance as well as the gang and firearm enhancements. The trial court sentenced Manard to life without the possibility of parole plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court imposed the midterm of two years for the attempted robbery plus, again, 25 years to life for the firearm enhancement. We affirmed Manard's conviction.
The court also imposed and stayed two one-year terms for the alternative firearm enhancements under section 12022, subdivision (a)(1). On the attempted robbery count, the court imposed a consecutive 10 years for the gang enhancement. On appeal, we ordered that 10-year term vacated. (People v. Manard (May 17, 2010, B211477) [nonpub. opn.].).
A jury also convicted Adderley of first degree murder while engaged in the commission of attempted robbery. The jury found firearm allegations true. On appeal, a different panel of this court affirmed Adderley's conviction but remanded the case for resentencing given Adderley's age at the time of the crime and the United States Supreme Court's issuance of Miller v. Alabama (2012) 567 U.S. 460 (Miller) while his appeal was pending. (People v. Adderley (Sept. 26, 2014, B240941) [nonpub. opn.].).
3. Manard's petition
On February 19, 2019, Manard filed a petition on a preprinted form. Manard checked boxes stating the information had "allowed the prosecution to proceed under a theory of felony murder," he had been convicted at trial of "1st or 2nd degree murder [under] the felony murder rule," and he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019." Manard also checked box 5 and all of its subparts, stating he "could not now be convicted" under those changes to the Penal Code because he was "not the actual killer," he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree," and he "was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime or felony." Manard also checked the box asking the court to appoint counsel for him.
On February 25, 2019, the trial court appointed counsel for Manard-the same attorney who had represented him at trial. On May 6, 2019, counsel filed a "Brief Concerning SB 1437 Admissibility of Evidence for Determining SB1437 Eligibility and for the Actual Hearing," as well as a "Reply to the People's Motion that SB 1437 is Unconstitutional."
It appears the prosecution filed some sort of pleading between February 25 and May 6, 2019, but the record on appeal contains no such document. On April 8, 2019, the prosecution requested an extension of time to May 30 for its response and the court granted it. However, Manard's May 6 brief and "reply" addressed various contentions the prosecution apparently had made before that date, including an argument that Senate Bill No. 1437 was unconstitutional. The supplemental clerk's transcript also contains what appears to be a draft pleading by Manard's counsel dated only "May, 2019" and entitled, "Final Reply to People's Position that the Defendant Is Not Eligible for a 1437 Hearing."
The matter was continued a number of times, in part because of the pandemic. On May 16, 2020, Manard filed a "Supplemental Eligibility Brief." On July 29, 2020, the trial court found Manard had made a prima facie case. The matter again was continued a number of times.
On April 11, 2022, the prosecution filed an opposition to Manard's petition. The prosecution argued Manard was ineligible for resentencing because "[t]he evidence presented to the jury at trial established that at the very least, the defendant, if not the actual killer, was a major participant in the robbery of the victim and acted in reckless indifference to human life." The prosecution discussed the relevant factors under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
On May 9, 2022 Manard filed an "Evidentiary Hearing Brief." Manard summarized the evidence presented at trial; he also discussed the application of Banks and Clark-as well as In re Scoggins (2020) 9 Cal.5th 667 (Scoggins)-to that evidence.
The trial court held an evidentiary hearing on July 14, 2022. Manard was present on Webex. Manard's counsel told the court, "[W]e don't have live testimony. The testimony here . . . is based upon the trial transcript. Neither side is presenting any additional evidence. Mr. Manard presented his position at the trial by testifying." The court heard from both counsel.
The prosecutor argued Manard "not only planned the robbery"; he also "was actively involved by calling the victim and his taxicab over." The prosecutor said Manard knew Adderley had a gun when he got into the cab, and when Adderley pulled out that gun and demanded money, Manard did nothing "in an effort to mitigate the situation" but only laughed. The prosecutor added Manard "may have placed his hand on the gun that Mr. Adderley had, and either pulled the trigger or the trigger was pulled by Mr. Adderley."
Manard's counsel conceded Manard "certainly was involved in the planning . . . of the robbery." Counsel said Adderley "initiated the thinking" but "[i]t was Mr. Manard who decided to do it basically as a taxicab robbery." However, counsel noted, Manard told Adderley the robbery was not to take place if "it turn[ed] out that it was a driver that he knew."
Counsel said Manard got into the taxi with the "expectation" that there was not going to be a robbery. But "young master Adderley" decided to proceed. Even when Adderley pulled out the gun, counsel argued, Manard thought Adderley was "just going to back off" given that Sweatt was "becoming the strong one in this situation."
At that point, however-counsel continued-the taxicab "unexpectedly accelerates" and "either accidentally or intentionally, the firearm is discharged by Mr. Adderley." Counsel said Manard "was just sitting there" and "everything that happened within the taxicab" "came as a surprise" to him.
The court noted it had been the trial judge. The court referred to the Banks and Clark factors. The court stated Ramsey testified Manard used the name "Tony" to call the cab, and Manard knew Adderley had a gun. The court referred to Ramsey's testimony that Manard "ended up helping" Adderley with the gun, "which ended up in the gunshot wound to Mr. Sweatt's head." Once Manard "was aware of the gun and the robbery," he did nothing "to minimize it." He helped Adderley to get out of the taxi after it crashed, "[t]here was no attempt after the shooting to check on the taxicab driver," and "statements were given to the effect that we shot the taxicab driver." "[V]iewing all of the testimony," the court concluded, beyond a reasonable doubt, that Manard was a major participant who acted "in reckless disregard" of human life.
DISCUSSION
"In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not 'a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2' (Pen. Code, § 189, subd. (e); see id., § 1172.6; Stats. 2018, ch. 1015, §§ 3-4; Stats. 2022, ch. 58, § 10)." (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).)
Section 1172.6 provides a mechanism by which a person convicted of murder under the former law may be resentenced if he could no longer be convicted of murder because of the changes to section 188. (Strong, supra, 13 Cal.5th at p. 708. See generally People v. Gentile (2020) 10 Cal.5th 830, 843; People v. Lewis (2021) 11 Cal.5th 952, 959-960.) Once a petitioner establishes a prima facie case for relief and the superior court issues an order to show cause, the matter proceeds to an evidentiary hearing at which it is the prosecution's burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Strong, at pp. 708-709; People v. Vargas (2022) 84 Cal.App.5th 943, 951.) If the superior court finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6. (Strong, at pp. 708-709; Vargas, at p. 951.)
2. Our standard of review
While the superior court acts as an independent factfinder in determining whether the People have met their burden, on appeal the reviewing court applies the substantial evidence standard. (People v. Vargas, supra, 84 Cal.App.5th at p. 951; People v. Garrison (2021) 73 Cal.App.5th 735, 745, 747.) Under this familiar standard, we review 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-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Vargas, at p. 951; People v. Clements (2022) 75 Cal.App.5th 276, 298.)" 'In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence.... "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." '" (People v. Montanez (2023) 91 Cal.App.5th 245, 270 (Montanez). See also People v. Nieber (2022) 82 Cal.App.5th 458, 476; People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) Substantial evidence also includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57; Nieber, at p. 476.) Unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (Montanez, at p. 271; People v. Ghobrial (2018) 5 Cal.5th 250, 281.)
3. Substantial evidence supports the trial court's finding beyond a reasonable doubt that Manard is ineligible for relief under section 1172.6
In Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522, and again in Scoggins, supra, 9 Cal.5th 667, our Supreme Court identified the overlapping factors for assessing whether the defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3). These three cases charted a "spectrum of culpability" set forth in two opinions from the United States Supreme Court: Enmund v. Florida (1982) 458 U.S. 782, and Tison v. Arizona (1987) 481 U.S. 137 (Tison).
"[I]t is important to consider where the defendant's conduct falls on the 'spectrum of culpability' that Enmund and Tison established.... On one end of the spectrum is Enmund, 'the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.'" (Scoggins, supra, 9 Cal.5th at p. 675.) At the other end of the spectrum are the 19- and 20-year-old defendants in the Tison case, who were major participants who acted with reckless indifference to human life, even though neither of them shot any murder victim. (Tison, supra, 481 U.S. at pp. 139-142, 158.) The California Supreme Court has embraced these federal decisions as "instructive." (Scoggins, at p. 675.)
In Banks the Supreme Court listed the following factors to consider in determining whether the defendant was a major participant in one of the specified felonies: "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?" (Banks, supra, 61 Cal.4th at p. 803.)
Reckless indifference to human life has a subjective and an objective element. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he must consciously disregard the significant risk of death his actions create. As to the objective element, the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. (Scoggins, supra, 9 Cal.5th at p. 677.)
In Scoggins the Supreme Court listed the following factors to consider in determining whether the defendant acted with reckless indifference to human life: "Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (Scoggins, supra, 9 Cal.5th at p. 677; see Clark, supra, 63 Cal.4th at pp. 618-622.)
The requirements for finding major participation and reckless indifference to human life 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. (Clark, supra, 63 Cal.4th at p. 615; see People v. Owens, supra, 78 Cal.App.5th at p. 1023.) No one of these considerations is necessary, nor is any one of them necessarily sufficient. (Scoggins, supra, 9 Cal.5th at p. 677; see Banks, supra, 61 Cal.4th at p. 803.) "We analyze the totality of circumstances" (Scoggins, at p. 677; see People v. Mitchell (2022) 81 Cal.App.5th 575, 592) to determine whether Manard acted with reckless indifference to human life.
For this reason, we address the Banks factors-as does the Attorney General-even though on appeal Manard does not dispute the trial court's finding that he was a major participant in the attempted robbery.
We apply the Banks/Clark/Scoggins factors to the evidence here:
a. Major participant
Role in planning. Manard's counsel conceded at the evidentiary hearing that he "certainly was involved in the planning" of the robbery. The evidence supports this concession. Manard and Adderley discussed and negotiated what or whom they would "hit": a liquor store, or perhaps a "pizza man," finally settling on a taxi driver. Manard either called the taxi company-using the fake name "Tony"-or directed Adderley to do so. The twosome devised a plan that Manard would grab the victim from behind and Adderley would take his money. Manard used his mother's former address as the pick-up point, then walked there with Adderley and waited for Sweatt to arrive.
Manard's counsel argued at the hearing that-while Manard was involved in planning the robbery-he called it off once he saw Sweatt, whom he knew. As we discuss below, however, this claim does not persuade us that the trial court erred.
Supplying weapons. There is no indication Manard gave Adderley the gun. Before the taxi even arrived, however, Adderley showed Manard "he had a gun on him."
Awareness of danger posed by nature of the crime, weapons used, or past experience or conduct of other participants. The "mere fact" "that a robbery involves a gun," "on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life ...." (Clark, supra, 63 Cal.4th at p. 617.) Here, however, there is more than that "mere fact."
Manard himself seemed to present conflicting testimony about whether he knew Adderley to be dangerous. At one point Manard testified, "I never seen [Adderley] with a gun." Presumably Manard meant he had never seen Adderley with a gun before that day; Manard testified repeatedly he had seen Adderley's gun that day before the taxi arrived. Then, when asked on cross-examination why he didn't tell Adderley, "I'm not involved in this[;] [t]his is all on you" once he realized Adderley was going to go forward with the robbery, Manard replied, "He got a gun in his hand." The prosecutor asked, "Were you afraid he was going to use that gun to shoot you?" Manard responded, "He's known for it, so why would I say something to him during a robbery?"
Manard testified he'd known Adderley since 2002, and known him well since 2004. Manard was a Crip gang member with a moniker of C-Crazy or Crip Crazy. Manard testified Adderley was a gang member or "[h]e wanted to be." Manard wasn't sure whether Adderley was a Blood or a Crip. "One moment he would say Blood, and then the next moment he was saying Crip." But Manard "[knew] for sure [Adderley] turned into a Crip at one point."
Defendant's presence at the scene of killing, in a position to facilitate or prevent the actual murder; role of defendant's own actions or inaction in the death. Manard was at the scene from start to finish. Ramsey told the authorities, and later testified, that Manard told him he "had to shoot" because Adderley "got scared." If Ramsey was telling the truth, Manard personally and directly caused Sweatt's death. Even if one were not to credit Ramsey's testimony, substantial evidence supports the trial court's conclusions. Manard got into the taxi even after Adderley showed him his gun. Manard testified repeatedly that, once Adderley told Sweatt to turn left, Manard knew what was going to happen. Rather than trying to stop Adderley or warn Sweatt, Manard assisted Adderley further by repeating the lie about picking up their "homey" after Sweatt didn't hear what Adderley had said. (See In re McDowell (2020) 55 Cal.App.5th 999, 1012 (McDowell) [defendant "was present at the scene of the shooting and had an opportunity to restrain [shooter], or otherwise intervene on [victim's] behalf"]; Montanez, supra, 91 Cal.App.5th at p. 273 [defendant's "presence at the crime scene afforded him the opportunity to observe additional facts showing the crimes posed a serious risk of danger to" the victim].)
Actions after the use of lethal force. After Adderley shot Sweatt, Manard made no effort to check on Sweatt, aid him, or summon help-even anonymously. Manard testified he didn't know "Sweatt was dead until three days after we read the paper." Instead, Manard returned to the taxi to help Adderley get out, then ran away with him.
b. Reckless indifference to human life
Use of gun or knowledge a gun would be used. Again, Adderley displayed his gun to Manard before the taxi even arrived. Knowing Adderley had a gun, Manard got into the taxi anyway.
Number of weapons ultimately used. There was evidence of only one gun.
Physical presence at the scene and opportunity to restrain the crime. Again, Manard was present during the attempted robbery and shooting. He could have tried to stop Adderley or warned Sweatt. The United States Supreme Court has "stressed the importance of presence to culpability.... [W]here . . . the murder is a culmination or a foreseeable result of several intermediate steps . . ., '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.'" (Clark, supra, 63 Cal.4th at p. 619, citing Tison, supra, 481 U.S. at p. 158. See Montanez, supra, 91 Cal.App.5th at p. 282 [defendant "was physically present at the crime scene and had an opportunity to restrain his cohorts and aid the victims"]; People v. Nieber, supra, 82 Cal.App.5th at pp. 478-479 [defendant present at robbery; didn't intervene to prevent murder]; McDowell, supra, 55 Cal.App.5th at pp. 1013-1015 [defendant "was present when the violence ensued but took no steps to prevent it"].)
Manard cites People v. Ramirez (2021) 71 Cal.App.5th 970 (Ramirez). That case is distinguishable. There, the 15-year-old defendant was with two fellow gang members, Rios and Gallardo. Ramirez had been in the gang for about a year. (Id. at pp. 977980.) Rios planned a carjacking. When the victim arrived, Rios- who had a gun-approached the driver's side of the car. Gallardo ran to the passenger side, with Ramirez a couple of feet behind him. As the victim began to drive away, Rios fired several shots at the car. One shot hit the victim, killing him. Ramirez later told an officer that he didn't want to assist Rios in the carjacking but felt he had to or the gang would kill him. (Id. at pp. 976-979, 988.)
In concluding Ramirez did not act with reckless indifference to human life, the appellate court stated, "as a 15 year old he may well have lacked the experience and maturity to appreciate the risk that the attempted carjacking would escalate into a shooting and death, and he was more susceptible to pressure from his fellow gang members to participate in the carjacking." (Ramirez, supra, 71 Cal.App.5th at p. 975.) While Ramirez was present at the scene, the court noted he was on the passenger side of the car and so did not have "a meaningful opportunity to intervene when Rios-on the driver's side of the vehicle-'[went] crazy' and began to shoot." (Id. at p. 989.)
Here, by contrast, Manard was 23 when he and his 16-year-old companion made their plan to rob a taxi driver. Nothing in the record suggests Manard felt pressured by fellow gang members or feared physical harm if he declined to participate. Once Adderley falsely told Sweatt they needed to pick up their "homey," then pulled out his gun and demanded money, Manard was not some distance away. He was sitting right next to Adderley in the back seat of the taxi. Accordingly, he was" 'close enough to exercise a restraining effect on the crime' or [Adderley]." (Cf. Ramirez, supra, 71 Cal.App.5th at p. 989.)
Manard also cites People v. Guiffreda (2023) 87 Cal.App.5th 112. Guiffreda is distinguishable as well. There, the 19-year-old defendant agreed with her husband Oie and a man named Peace to rob a man at the motel where they'd been staying. The plan arose spontaneously when the victim arrived at the motel with a thick bank envelope in his pocket. Guiffreda was to lure him into a room" 'to have sex' "; Oie and Peace then were going to "assault" him and take his money. (Id. at pp. 117, 119.) Unbeknownst to Guiffreda, just before the planned "assault," Oie took a heavy flashlight from a truck in the parking lot. He beat the victim with it while Peace hit and kicked him. Guiffreda was in the motel room while the beating took place, but she didn't participate. She later told an officer that she'd yelled for Oie to stop but he didn't. (Id. at pp. 117-120.). In finding the evidence insufficient to establish reckless indifference, the appellate court noted there was no evidence Guiffreda knew the perpetrators would use a weapon of any kind; Oie "likely obtained the flashlight just before entering the room, outside of Guiffreda's presence." Although Guiffreda was in the room, she could not have "intervened to prevent the beating given that she was outnumbered by her codefendants." (People v. Guiffreda, supra, 87 Cal.App.5th at pp. 117, 126-127.). Here, again, Manard's and Adderley's plan to rob the taxi driver was not spontaneous but carefully planned. Manard saw Adderley's gun before he got into the taxi. Manard was not outnumbered. At trial, Manard described himself as "actually kind of like big then in size." This is a far cry from Guiffreda standing by helplessly while her husband and his cohort beat the victim in that case.
Duration of interaction between perpetrators and victim. The record does not reveal the precise amount of time that passed from the moment Manard and Adderley got into the taxi until they jumped out and ran after the taxi crashed. It was, however, sufficient for them to get into the back seat, give Sweatt directions, direct him to make turns so they could pick up their "homey," for Sweatt to slow the taxi and begin to pull over, then for Adderley to brandish the gun and demand money, for Sweatt to accelerate, for Adderley to shoot Sweatt in the head, and for the taxi to crash into the Volvo. The sequence of events that culminated in the shooting was not instantaneous or fleeting.
Defendant's knowledge of confederate's propensity for violence or likelihood of using lethal force. Again, the only evidence on this factor is Manard's own testimony which was somewhat in conflict.
Efforts, if any, to minimize risks of violence during the felony. Manard made no such efforts. When Adderley pulled out his gun and demanded money from the victim, Manard did nothing to intervene or dissuade Adderley. Instead, Manard repeated Adderley's lie about picking up a "homey" of theirs. (Cf. Scoggins, supra, 9 Cal.5th at p. 678 [defendant, who remained at nearby gas station during the course of the crime, "was not in a position to restrain" the shooter]; Banks, supra, 61 Cal.4th at p. 807 [defendant "did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop it"]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025-1026 [defendant was "across the street" and "did not see or know if anyone was shot or hurt"].) Manard had the opportunity to intervene. He just chose not to.
If lethal force is not part of the plan," 'absence from the scene may significantly diminish culpability for death.'" (McDowell, supra, 55 Cal.App.5th at p. 1012, quoting Banks, supra, 61 Cal.5th at p. 803, fn. 5.)" 'As a corollary, there may be significantly greater culpability for accomplices who are present.'" (McDowell, at p. 1012, quoting In re Loza (2017) 10 Cal.App.5th 38, 50; accord, Tison, supra, 481 U.S. at p. 158. Cf. In re Miller (2017) 14 Cal.App.5th 960, 964 [defendant was not "present at the scene when the shooting occurred"]; In re Bennett, supra, 26 Cal.App.5th at pp. 1008-1009 [defendant helped plan robbery of drug dealer and called victim to set up meeting, but was urinating in parking lot when two cohorts crossed the street, went into victim's apartment, and shot him; defendant didn't even know victim had been killed until later].) Considering the totality of the circumstances in the light most favorable to the trial court's ruling, we conclude substantial evidence supports its finding Manard could be convicted of murder under the new felony-murder standard because he was a major participant in the underlying felony and acted with reckless indifference to human life.
4. If the trial court failed to consider Manard's youth, any error was harmless
Finally, Manard contends the trial court should have considered his youth in deciding whether the prosecution proved the mens rea element of reckless indifference. The record does not reflect-one way or the other-whether the trial court considered Manard's age at the time of the crime. He was 23 and one-half.
As noted, the crime took place on April 15, 2006. Manard turned 24 on October 20, 2006.
On August 31, 2021, Division Three of the First District Court of Appeal issued In re Moore (2021) 68 Cal.App.5th 434. In that case, the defendant was 16 at the time of the shooting. The court," 'upon consideration of the factors identified in Clark[, supra, 63 Cal.4th 522,] together with Moore's youth at the time of his offenses,'" "found insufficient evidence that Moore acted with reckless disregard to human life." (People v. Oliver (2023) 90 Cal.App.5th 466, 487 (Oliver).)
Manard's counsel didn't cite Moore, nor did he mention Manard's age or ask the court to consider age. Counsel did refer to "young master Adderley," stating he was 18 or 19. (In fact, Adderley was 16.) In its ruling, the court noted Manard was older than Adderley.
Putting aside any issue of forfeiture from Manard's counsel's failure to cite Moore or to raise age as an issue, any failure by the trial court to consider Manard's age is harmless in any event. "Presumably, the presumption of immaturity weakens as a defendant approaches 26. More importantly, . . . the case law discussing the differences in brain development among youthful offenders (in contrast to their adult counterparts) stress[es] two areas of divergence: (1) their relative impulsivity; and (2) their vulnerability to peer pressure. (See, e.g., Miller, supra, 567 U.S. at p. 461.) There is no evidence in this case that [Manard's] criminal behavior was motivated by either of these two factors." (Oliver, supra, 90 Cal.App.5th at pp. 488-489 [any error in failure expressly to consider that defendant was 23 at the time of the shooting was harmless; appellate court need not articulate appropriate definition of" 'youthful'" nor determine whether it is incumbent on a trial court expressly to consider youth as part of its Banks/Clark analysis even when the defense doesn't raise it].)
As in Oliver, "we are not here presented with a situation where a youthful offender was swept up in circumstances beyond his or her control that led to an unintended death." (Oliver, supra, 90 Cal.App.5th at p. 489.) "As for peer pressure, [as in Oliver] there is no evidence that [Manard] felt compelled to assist in [Sweatt's] murder." (Ibid.) Rather, Manard and Adderley had a plan to rob a taxi driver and they carried out that plan. Manard's "actions during this crime did not show 'a transient rashness' or 'inability to assess consequences.' (Miller, supra, 567 U.S. at pp. 471-472.) Nor do we perceive any 'impetuosity' or 'failure to appreciate risks and consequences.' ([In re] Moore, supra, 68 Cal.App.5th at p. 454.)" (Oliver, at p. 490. Cf. People v. Keel (2022) 84 Cal.App.5th 546, 562 [15-year-old defendant who was given gang moniker at age six "would have felt pressure" to "go along with the robbery" instigated by older gang member]; Ramirez, supra, 71 Cal.App.5th at p. 991 [15-year-old defendant "influenced by peer pressure" and "afraid" of consequences if he didn't aid shooter].)
DISPOSITION
We affirm the trial court's order denying Jamar Lavell Manard's petition for resentencing.
We concur: LAVIN, Acting P. J., ADAMS, J.