Opinion
B302630
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. GENE SANDERS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA224512) APPEAL from an order of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted appellant Gene Sanders of murder pursuant to the felony-murder rule and found true a multiple murder special circumstance allegation. (See People v. Sanders (Mar. 3, 2005, B171765) [nonpub. opn.] [2005 WL 488806 at pp. *1, 7, 9] (Sanders).)
On our own motion, we take judicial notice of this court's 2005 unpublished opinion following Sanders' trial. (Evid. Code, § 452, subd. (d).) We also granted Sanders' request that we take judicial notice of the reporter's transcript in his prior appeal.
Over a decade later, as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the Legislature revised the felony-murder rule to apply only to a person who was the actual killer; who with the intent to kill, aided and abetted the actual killer in first degree murder; or who was a major participant in the underlying felony and acted with reckless indifference to human life. (Pen. Code, § 189, subd. (e).) Senate Bill 1437 also enacted Penal Code section 1170.95, under which a person previously convicted of murder under the felony-murder rule could petition the trial court to vacate that conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (a).)
All unspecified statutory references are to the Penal Code.
Sanders petitioned the trial court for resentencing relief. The trial court found Sanders was a major participant in the underlying felony who acted with reckless indifference to human life and denied Sanders' petition. On appeal, Sanders argues the evidence was insufficient to support the trial court's findings. We affirm.
The trial court also found Sanders, with the intent to kill, aided and abetted the commission of a murder. Sanders' brief focuses on the trial court's "primar[y] finding" that Sanders was a major participant who acted with reckless indifference. Because we conclude substantial evidence supports the trial court's finding that he was a major participant who acted with reckless indifference, we need not address the trial court's other theory.
The People argue that because the jury found true a multiple murder special circumstance allegation, Sanders is ineligible for section 1170.95 relief as a matter of law. We conclude substantial evidence supports the trial court's findings. Therefore, we need not consider this argument.
BACKGROUND
A. The Murder of Lee Holman and Trial
Sanders was tried for and convicted of 10 counts including murder under the felony-murder rule (count 1), murder (count 2), six counts of attempted premeditated murder (counts 3-8) and robbery (counts 9-10). (Sanders, supra, B171765 [2005 WL 488806 at pp. *1, 5].) Sanders committed these crimes on three separate days over a period of a year. (Id. at p. *2.) This appeal concerns count 1, Sanders conviction under the felony-murder rule for the killing of Lee Holman.
"Sanders belonged to the Five Deuce Pueblo Bishops, an active criminal street gang involved in drug sales, robberies, and shootings. Other men implicated in counts 1-8 belonged to the same gang. In defense, Sanders admitted being an active member since he was 13 years old, including one incident where he fired 13 shots from a bicycle," using a recently-purchased nine-millimeter handgun, "to retaliate against men he claimed had beaten him up." (Sanders, supra, B171765 [2005 WL 488806 at p. *1].) Sanders testified he decided to leave the Pueblo Bishops because a fellow gang member shot him in the neck twice and shot his brother-in-law. "Sanders and his sister testified he left the gang in 1998 through a ritual where a group of gang members beat up their departing comrade. . . . Sanders admitted later telling police he was a gang member, but claimed he did so only to avoid retaliation." (Ibid.) The jury found all counts were committed to assist a criminal street gang. (Ibid.)
"On October 10, 2000, drug dealer Lee Holman received about two pounds of marijuana and six ounces of cocaine at his home . . . . About an hour later, three African-American men came to Holman's door. One of the men, later identified by Holman's wife as Jimmie Campbell, an associate of Sanders' gang, asked to buy marijuana or cocaine. Holman replied, ' "You know I don't sell nothing for no $20 or $10 like that, you know better than that, to ask me that. Go home and you come back when you got something better[.]" ' The men left. About five minutes later the three men returned. Holman answered the door. One of the men said, ' "You know what we came here for[.]" ' Holman replied, ' "You [n-----s] ain't getting in here." ' A struggle ensued. One of the men fired three shots, killing Holman. The three men fled. Police found three expended shell casings at the scene, all fired from the same gun." (Sanders, supra, B171765 [2005 WL 488806 at p. *2].) Three nine-millimeter caliber bullets were found lodged in Holman's body. The trajectory of the fatal gunshot wound was consistent with being shot while lying on the ground.
Jacqueline Malone, "[a] woman parking her car in front of Holman's house during the shooting" (Sanders, supra, B171765 [2005 WL 488806 at p. *2]), saw three African-American men in Holman's driveway. She then saw the men run towards Holman's porch, and five to 10 seconds later, heard three gunshots. The three men, two of whom were holding guns, then ran from Holman's porch. Ms. Malone followed the men in her car, and saw them get into a nearby getaway car, driven by a fourth man. When interviewed by police, Ms. Malone "identified a second assailant, who had a gun in his hand, as Mitchell Gibson, another member of Sanders' gang." (Sanders, supra, B171765 [2005 WL 488806 at p. *2].)
"Eleven-year old Francisco Peralta was playing across the street at the time of the shooting. Peralta identified Campbell as holding a gun out during the shooting. Peralta identified Sanders as the third assailant by selecting his photograph from a photographic lineup shortly after the shooting, and repeating the identification at Sanders' preliminary hearing. In defense, a deputy public defender who interviewed Peralta claimed Peralta could not positively identify Sanders despite being shown Sanders' photograph by itself and despite the detective's suggestion that Sanders was a suspect. In rebuttal, the detective who interviewed Peralta said he showed Peralta only multiple-photo lineups, not individual pictures, and Peralta positively identified Sanders without suggestion.
"Sanders told fellow gang member Alonzo Turner, ' "We tried to rob [Holman], but he played gangster, so we shot him[.]" ' Sanders told Turner that Holman refused to pay drug taxes to the gang, and they planned to rob him in retaliation. At trial, Turner admitted implicating Sanders to the police, but claimed he did so falsely because the police threatened to charge him with the murder unless he fingered Sanders. In rebuttal, the detective who interviewed Turner denied threatening, suggesting, or offering anything to Turner." (Sanders, supra, B171765 [2005 WL 488806 at p. *2].)
Prior to the Holman murder, "[o]n August 23, 2000, Sanders and another African-American man entered a Lakewood bank. The two men approached two different tellers. Each man handed the teller he had approached a note. The notes said: ' "You have five seconds. This is a robbery. I will kill starting with you. No die (sic) packs. Large bills only" ' . . . . Sanders left his note behind, and his fingerprints were found on it. The teller Sanders robbed said Sanders resembled the robber." (Sanders, supra, B171765 [2005 WL 488806 at p. *2].)
Approximately 11 months after the Holman murder, Sanders was involved in another murder (count 2). "[O]n August 5, 2001, 15-20 members of 38th Street, [a] Hispanic gang, had gathered in front of 1651 East 48th Place, an abandoned building the gang used as a hangout. Gang member Jose Velasquez . . . saw two African-American men approach the area and split up, one going to the south side of the street, one going to the north side. The man on the south side began firing a gun towards the group of 38th Street gang members. . . . The shooting awakened the Villalvazos. Maria [Villalvazo] went to a window to see what was happening. A bullet struck and killed Maria. . . . [¶] Meanwhile, the African-American man on the south side of the street collapsed. His companion ran across the street and helped him up. The two men fled around a corner." (Sanders, supra, B171765 [2005 WL 488806 at p. *3].) "[A]bout 45 minutes after the shootout, Sanders arrived at Martin Luther King Hospital with a left ankle gunshot wound." (Ibid.) Using DNA tests, the police matched the blood at the place where the first assailant collapsed to Sanders. (Ibid.) The shell casings found near the blood came from a nine-millimeter handgun. "Turner, Sanders' fellow gang member who heard Sanders admit to participating in the Holman murder, also told police that Sanders said Sanders and another Pueblo Bishop gang member planned and executed the attack on the 38th Street gang to retaliate for a 38th Street attack on some Pueblo Bishop members a few days before the August 5, 2001, shootout. At trial, Turner also claimed this part of his statement was a lie." (Id. at p.*4.)
At trial, the court instructed the jury as to the special circumstance allegation: "You cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubt that defendant, with intent to kill, induced any actor in the commission of the murder in the first degree or with reckless indifference to human life and as a major participant aided, abetted, counseled . . . or assisted in the commission of the crime of robbery which resulted in the death of a human being; namely, Lee Holman. A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a grave risk of death to an innocent human being. . . ." The trial court did not provide further instructions on the meaning of the phrases "major participant" or "reckless indifference to human life."
"Sanders received an aggregate 186 years-to-life term. On count 1 plus the multiple murder finding, Sanders received a life-without-parole term, plus a consecutive 25 years-to-life gun enhancement." (Sanders, supra, B171765 [2005 WL 488806 at p. *1].) In the prior appeal, Sanders raised several challenges to the judgment, including that the jury instructions incorrectly permitted the jury to find the multiple murder special circumstance true even if it found Sanders neither actually killed nor intended to kill in either of the multiple murders, as required under section 190.2, subdivision (a)(3). We concluded that contention lacked merit. (Id. at p. *8.) We struck the gun enhancement term imposed in count 1 and a restitution fine. In all other respects, we affirmed the judgment. (Id. at p. *14.)
B. Senate Bill 1437
The Legislature passed Senate Bill 1437, effective January 1, 2019, "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill 1437 enacted section 1170.95, which permits "[a] person convicted of felony murder . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when," among other things, "[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(3).)
Amended section 189, subdivision (e), provides that a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs, may be liable for murder "only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190 .2." (§ 189, subd. (e), italics added.)
Section 190.2, subdivision (d) in turn, states that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, . . . or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (§ 190.2, subd. (d).)
If a section 1170.95 petitioner demonstrates a prima facie showing of eligibility under section 1170.95 and, following appointment of counsel and briefing, a prima facie showing of an entitlement to resentencing relief, the trial court must issue an order to show cause why resentencing relief should not be granted. (§ 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, review granted Mar. 18, 2020, S260493 [concluding under subd. (c) of § 1170.95, petitioner must demonstrate two prima facie showings].) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. . . ." (§ 1170.95, subd. (d)(3).)
Sanders contends that recent appellate decisions People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 and People v. Verdugo, supra, 44 Cal.App.5th 320, review granted, have improperly interpreted section 1170.95 to permit a review of the record of conviction prior to the order to show cause hearing and to require a petitioner to demonstrate two prima facie showings under subdivision (c). We conclude that sufficient evidence established beyond a reasonable doubt that Sanders was a major participant who acted with reckless indifference. Thus, we need not address Sanders' contentions relating to the holdings of Lewis and Verdugo.
C. California Supreme Court Construes "Major Participant" and "Reckless Indifference to Human Life" Under Section 190.2, Subdivision (d)
In 2015, the California Supreme Court considered under what circumstances an accomplice who lacked the intent to kill could, under section 190.2, subdivision (d), qualify for the death penalty or life imprisonment without the possibility of parole because he or she was a major participant in a crime who acted with reckless indifference to human life. (People v. Banks (2015) 61 Cal.4th 788 (Banks).) In Banks, defendant Lovie Troy Matthews acted as the getaway driver for an armed robbery of a medical marijuana dispensary that was committed by three other individuals, including Leon Banks. During the robbery, Banks shot and killed a security guard. At trial, a gang expert testified that Matthews and two of the coparticipants were in the same gang, but Banks was not. (Id. at pp. 794, 796.) Notwithstanding that Matthews was not present during the robbery or killing, the jury found Matthews was guilty of first degree felony murder and found true a felony-murder special circumstance that Matthews was a major participant in the robbery and acted with reckless indifference to human life. (Id. at p. 794.) Matthews was sentenced to life imprisonment without parole. (Ibid.) On appeal, Matthews challenged the special circumstance finding. (Id. at p. 797.) The Court of Appeal affirmed the judgment, but the California Supreme Court reversed and remanded, finding the evidence was insufficient to show Matthews was a major participant or that he acted with reckless indifference to human life. (Id. at pp. 794, 797.)
The Banks court observed that in order to find true the special circumstance under section 109.2, subdivision (d), the defendant must have " ' "knowingly engag[ed] in criminal activities known to carry a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 801.) Further, "defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder . . . ." (Id. at p. 802.) A jury must consider the totality of the circumstances (ibid.), which may include the following factors: "[1] What role did the defendant have in planning the criminal enterprise that led to one or more deaths? [2] What role did the defendant have in supplying or using lethal weapons? [3] 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? [4] 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? [5] What did the defendant do after lethal force was used?" (Id. at p. 803, fn. omitted.)
The following year, the Supreme Court "built upon its discussion in Banks, with greater emphasis on the requirements of reckless indifference, when it decided [People v. Clark (2016)] 63 Cal.4th 522 [(Clark)]." (In re Miller (2017) 14 Cal.App.5th 960, 972.) In Clark, defendant Clark, Nokkuwa Ervin (Ervin), and their accomplices robbed a computer store. (Clark, supra, at p. 535.) Ervin entered the store after closing time and handcuffed its employees so that his accomplices, including Clark, could steal computers. (Id. at pp. 536, 613.) Kathy Lee, the mother of one of the employees, unexpectedly appeared at the store to pick up her son. (Id. at pp. 537, 539.) Taken by surprise, Ervin shot and killed her. (Id. at p. 539.)
Recognizing there was significant overlap with the Banks factors (Clark, supra, 63 Cal.4th at pp. 614-615), the Clark court considered a number of factors in determining whether Clark acted with reckless indifference to human life: the defendant's knowledge of weapons, and the use and number of weapons; the defendant's proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the offense conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant's awareness his or her confederate was likely to kill; and the defendant's efforts to minimize the possibility of violence during the crime. (Id. at pp. 618-623.)
Although Clark was the mastermind behind planning the robbery, the plan evinced an effort to minimize lethal risk, including that the robbery was to occur after store hours and the gun was supposed to be unloaded. (Clark, supra, 63 Cal.4th at pp. 620-622.) Instead, the gun had one bullet. (Id. at pp. 619, 622.) The gun was carried by Ervin, not Clark, and there was no evidence that Clark instructed Ervin to kill or that he knew Ervin had a predisposition towards violence. (Id. at p. 619.) Further, Clark was in a car in the parking lot and not physically present when Ervin killed Lee. Therefore, Clark was unable to intervene. (Id. at pp. 619-620.) In sum, the Clark court concluded there was "nothing in [Clark's] plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery." (Id. at p. 623.)
D. The Trial Court Denies Sanders Petition
On January 14, 2019, Sanders filed a petition for writ of habeas corpus pursuant to Banks and Senate Bill 1437. The trial court processed Sanders' habeas petition as a section 1170.95 petition, observing Sanders could have counsel appointed under section 1170.95, and if Sanders prevailed, the closely-related Banks issue may become moot. On February 21, 2019, the trial court issued a minute order appointing counsel for Sanders and notifying the district attorney's office to file a response to Sanders' petition. The trial court also requested, and was provided, the reporters' transcript from Sanders' trial.
At the hearing on the petition, Sanders emphasized that when the People tried the case, "the law was different; [the district attorney] . . . was able to really go on a much simpler presentation to get to felony murder." Therefore, the record does not contain the facts necessary to answer the inquiries under the Banks approach, and the parties and court are left to speculate. As a result, Sanders argued, the People cannot carry their burden under section 1170.95, subdivision (d) to prove beyond a reasonable doubt that Sanders was a major participant in the crime who acted with reckless indifference to human life.
The trial court denied Sanders' petition on the basis that because Sanders was a major participant in the underlying felony and acted with reckless indifference to human life, he was exempt from section 1170.95 relief. The trial court stated the basis for his findings at the hearing. First, the trial court found Sanders was involved in planning the robbery because he was engaged in tax collecting for his gang. Thus, the robbery was not spontaneous; it was to " 'deal with this guy who is supposed to pay taxes to our gang, . . . let's go collect the taxes.' " Further, the court observed Sanders and his coparticipants had at least five minutes to plan what they were going to do between the time Holman first told Campbell to leave and when the men returned. Thus, within seconds of rushing the house, one of the three men shot Holman, evidencing their plan that if h would not pay taxes, they would execute him to set an example.
Second, the trial court concluded that two participants had guns, and Sanders was one of them.
Third, Sanders was present at the shooting, unlike the defendant in Banks, who was a getaway driver. Fourth, because he was present, Sanders had an opportunity to assist Holman, but Sanders did not do anything to minimize the violence or aid Holman after the shooting.
Fifth, the trial court concluded Sanders knew lethal violence was likely because Sanders and his fellow gang members were there to punish Holman for not paying taxes. Further, Sanders knew his confederates were members of a violent gang, demonstrating his awareness that one of them might kill. Additionally, the trial court inferred a drug-dealer victim was likely to resist a robbery.
On November 13, 2019, the trial court issued a minute order denying Sanders' petition. Sanders appeals from this minute order.
DISCUSSION
A. Standard of Review
Sanders argues the evidence was insufficient to support the trial court's findings that he was a major participant who acted with reckless indifference beyond a reasonable doubt. "When a defendant challenges the sufficiency of the evidence to support a judgment, we apply the substantial evidence standard of review." (People v. Chavez (2018) 22 Cal.App.5th 663, 684.) Sanders contends a substantial evidence review is improper because the trial court failed to apply the correct burden of proof and instead drew "all possible (and some impermissible) . . . inferences . . . against appellant in finding that he acted with reckless indifference to human life." Instead, citing In re Taylor (2019) 34 Cal.App.5th 543, 562, Sanders suggests we summarily remand with instructions for the trial court to reconsider its decision under a proof beyond a reasonable doubt standard. We disagree.
Sanders contends, without any citation to authority, that the trial court should have applied a reasonable doubt standard "to the whole of the underlying trial, as would be required under [section 1170.95,] subdivision (d)." Subdivision (d) does not require the People to prove every element essential to a defendant's guilt. Rather, by its plain terms, subdivision (d) requires the People to prove beyond a reasonable doubt "that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).) Sanders has not stated why more would be required in his case.
First, In re Taylor is distinguishable. Taylor sought to have his section 1170.95 petition heard on direct appeal (In re Taylor, supra, 34 Cal.App.5th at p. 562), contrary to section 1170.95's petitioning procedure, which requires the petition be filed and processed in the trial court in the first instance (People v. Martinez (2019) 31 Cal.App.5th 719, 725-729). Accordingly, remand without consideration of the merits of Taylor's section 1170.95 petition was proper.
Second, here, the trial court was made well-aware of the burden of proof. Both parties articulated the burden in their briefs to the trial court, and Sanders' counsel stated it clearly at the hearing. Nor do we find that the trial court's references to In re Bennett (2018) 26 Cal.App.5th 1002 at the hearing demonstrate the trial court applied a lower standard, as Sanders contends. The court's references to In re Bennett concern not the burden of proof, but a discussion of what factors may demonstrate a defendant was a major participant who acted with reckless indifference. Indeed, in his reply brief to the trial court, Sanders relied extensively on In re Bennett for the same purpose.
Third, a substantial evidence review adequately addresses Sanders' concern that the trial court drew unreasonable inferences. While we must accept the trier of fact's findings if supported by substantial evidence, we need not accept " ' "fanciful theories and unreasonable inferences [or] . . . resort to imagination or suspicion." [Citation.]' [Citation.] 'Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.' [Citation.]" (People v. Anderson (1968) 70 Cal.2d 15, 24.) B. Sanders Is a Major Participant Who Acted with Reckless Indifference Under Banks/Clark
Turning to the Banks/Clark analysis, while Sanders may not have been the mastermind or involved in planning the initial effort to rob Holman, substantial evidence supports the trial court's finding that Sanders was involved in planning at least the second attempt to rob Holman. Approximately an hour after Holman received a shipment of drugs, Sanders, Campbell, Gibson, and an unidentified getaway driver who parked around the corner from Holman's house, were present in Holman's neighborhood. After Holman sent the men away, they had to decide what to do next. They congregated in Holman's driveway for approximately five minutes. Then, they engaged in a number of coordinated actions. They ran together towards Holman's house. Within five to 10 seconds of running towards the house, Holman was shot three times. The three men then left Holman's porch together, all running in the same direction, towards the getaway car, in which the driver was waiting. The trial court's inference that Sanders was involved in planning at least the second robbery attempt was reasonable.
Second, we do not find unreasonable the trial court's inference that Sanders knew lethal force was appreciably more likely than in a garden-variety armed robbery. In Banks, the appellate court found that although the defendant was a member of a gang, there was no evidence that the defendant or any member of the particular clique of the gang that he belonged to had ever participated in violence. (Banks, supra, 61 Cal.4th at pp. 810-811.) The instant case is different. Sanders admitted to being a member of the Five Deuce Pueblo Bishops since he was a teenager, at which time he purchased a gun and shot 13 times at people who he alleged beat him up. Thus, Sanders himself had a history of gun use and violence. Also, prior to the robbery, Sanders was acquainted with both Campbell and Gibson, who were also members of or associated with the Pueblo Bishops. The Pueblo Bishops were not strangers to violence. Indeed, Sanders himself was shot twice in the neck by a fellow gang member. Further, a couple months prior to the Holman murder, Sanders and another Pueblo Bishops member robbed a bank during which Sanders emphasized verbally to the teller that if she did not provide large bills, he would kill her, and Sanders' accomplice told the teller he had a gun. Then, although it was several months after the Holman murder, Sanders and another Pueblo Bishops member brazenly initiated a shoot-out with a rival gang, 38th Street, in 38th Street's territory. Thus, Sanders' pattern of being armed or with a Pueblo Bishops accomplice who was armed when committing crimes is well-established.
Moreover, a home invasion robbery of a drug dealer is a "particularly risky crime" where "[t]he potential for it to turn deadly was obvious." (In re McDowell (2020) 45 Cal.App.5th 921, 930, review granted May 13, 2020, S261450.) Additionally, Holman already evidenced his propensity to resist rather than accommodate when he told Campbell to go home five minutes prior to the shooting.
Third, "[p]resence at the scene of the murder is a particularly important aspect of the reckless indifference inquiry." (People v. Garcia (2020) 46 Cal.App.5th 123, 148; see Banks, supra, 61 Cal.4th at p. 803, fn. 5 ["In cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death"].) In the cases on which Sanders relies—Clark, Banks, In re Taylor, and In re Bennett—the defendant was not present at the scene at the time of the shooting. (Clark, supra, 63 Cal.4th at pp. 537, 614-615 [arrived in store parking lot after shooting]; Banks, supra, 61 Cal.4th at p. 805 [getaway driver]; In re Taylor, supra, 34 Cal.App.5th at p. 547 [getaway driver]; In re Bennett, supra, 26 Cal.App.5th at pp. 1008-1009 [driver who was relieving himself at gas station when shooting happened at apartment across street].) In contrast, here, Sanders was one of three men present and actively attempting to rob Holman. Fourth, Sanders did nothing to intervene to minimize the risk.
Fifth, Sanders did not aid Holman after he was shot. Rather, immediately after the three shots were fired, the three men fled the scene, running together towards the getaway car.
Based on these factors, we conclude substantial evidence supports the trial court's findings that Sanders was a major participant who acted with reckless indifference, and therefore, was not entitled to section 1170.95 relief.
The trial court determined Sanders was one of the two men who were armed during the Holman robbery. This inference is not unreasonable. Sanders purchased and used a nine-millimeter gun when he was a teenager. He again used a nine-millimeter during the shoot-out with the 38th street gang, less than a year after the Holman murder. Thus, Sanders had a gun both before and after the Holman robbery. However, the testimony of Peralta and Malone was inconclusive as to which two of the three men were armed. Because the inference that Campbell and Gibson were the two armed men is also reasonable, we do not rely on this factor in our decision.
DISPOSITION
The November 13, 2019 minute order denying Sanders' petition is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, Acting P. J.