Opinion
H048541
02-04-2022
THE PEOPLE, Plaintiff and Respondent, v. JOHN LEWIS DRAYTON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. CR16712D)
DANNER, J.
Appellant John Lewis Drayton was convicted by plea of first degree murder in 1992. In 2019, he filed a petition under Penal Code section 1170.95 to vacate his murder conviction and be resentenced. The trial court summarily denied the petition, and Drayton appealed to this court. This court reversed the trial court's order and remanded the matter to the trial court with directions to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d). (People v. Drayton (2020) 47 Cal.App.5th 965, 968 (Drayton I) , reversed on other grounds by People v. Lewis (2021) 11 Cal.5th 952, 963.)
Unspecified statutory references are to the Penal Code.
We take judicial notice of this court's opinion in the previous appeal in this matter. Some of the procedural history detailed below has been taken from that opinion.
On remand, the trial court issued an order to show cause, held a contested evidentiary hearing, and again denied Drayton's petition. Drayton now appeals the trial court's denial of his petition following the evidentiary hearing. He argues the trial court applied the wrong standard of proof, erred by failing to give preclusive effect to statements by the original sentencing judge, and erred in excluding opinion evidence from an investigating officer. Further, Drayton contends the trial court's finding that Drayton could be convicted of first degree murder on a felony-murder theory under the current state of the law lacks substantial evidence.
For the reasons explained below, we affirm the trial court's order.
I. FACTS AND PROCEDURAL BACKGROUND
On the evening of June 13, 1991, Drayton, who was leaving Salinas to go stay with his grandparents in Palo Alto, got a ride with three acquaintances from Salinas (Patrick Richardson, Eugene Ballance, and Annette Durr). Annette Durr was driving. Lester Polk was also inside the car, but Drayton had never met him before. Earlier that night, Drayton had been driving his own car, but it was old and he thought it might break down on the way to Palo Alto. At some point, Drayton got into the car with the others. He had a gun with him.
This factual summary is taken from the testimony at the evidentiary hearing, including Drayton's testimony about what transpired the evening of the murder. The facts presented at the hearing with respect to Drayton's actions were largely undisputed. Any relevant factual disputes are noted herein.
Drayton knew Patrick Richardson from North Salinas High School. Drayton knew Eugene Ballance from growing up in Salinas. Annette Durr was Richardson's girlfriend.
Shortly before events at issue here, Drayton had purchased the gun for self-defense in response to an unrelated incident. Although Drayton described getting a ride with the group, he also testified that his car was at Annette Durr's house after the robbery.
Once he was with the others, Drayton asked Richardson for a ride out of town. Richardson told Drayton that they were" 'going to do this first.'" Eventually, Drayton understood that" 'this'" was a robbery.
Drayton said he was not going to participate in the robbery, and he would stay in the car. Richardson told Drayton to give him Drayton's gun if he were not going to do the robbery. Drayton did not want to give up his gun, so he decided to" 'go along'" with the robbery. Drayton understood he would receive money from the robbery, but he was not involved in its planning.
Once the group arrived at the house where the robbery would take place, Drayton and Ballance unsuccessfully tried to prevent its commission by causing noise, hoping someone would be alerted to their presence. Polk pointed a shotgun at Drayton and said to him" 'Shut up. You know you're going to go.'" Drayton was afraid. Richardson, Ballance, Drayton, and Polk then entered the Wards' house.
Annette Durr remained outside the house with the car.
James and Cheryl Ward and their teenage daughter, Roxie Ward, were asleep at their residence in Salinas on the morning of June 14, 1991. They were woken around 2:15 a.m. by some noise. They discovered four men inside their house.
Because the victims share a last name, they are hereafter referred to by their first names when discussed individually.
Two men (identified at the hearing as Richardson and Polk) entered James and Cheryl's bedroom, one armed with a handgun and one with a shotgun. The men were screaming" 'This is a 211.'" The men put the Wards on the floor. Richardson beat James. The men stated they were looking for a safe, but the Wards did not have a safe.
One of the men (identified at the hearing as Patrick Richardson) brought Roxie from her bedroom to her parents' bedroom. He was holding a gun and asked her where the safe was. She replied that they did not have a safe.
Inside her parents' bedroom, Roxie saw her parents lying on the floor, surrounded by three men. Drayton was one of the men in the room. The men repeatedly asked where the safe was, and the Wards replied that they did not have a safe. They were kicking and hitting James, although Drayton did not kick Ward.
Roxie felt a large gun, similar to a shotgun, pointed at her back. The man holding the shotgun (identified at the hearing as Lester Polk) yelled at her," 'Do you want to fucking die? Where's the fucking safe?'" Polk ordered Roxie to get on the bed, and he put the shotgun in her mouth. At that time, Drayton was standing over Cheryl.
Drayton had his foot on Cheryl's back and was pointing a gun at her neck. In total, Drayton had his foot on Cheryl's back for 15 or 20 minutes. Drayton's gun was loaded, but he did not have his finger on the trigger.
Drayton testified that his gun was raised in the direction of Cheryl but not pointed at any particular part of her body. He asserted he raised it at her to give the appearance he was participating in the crime. Cheryl testified that Drayton's gun was pointing to the back of her neck and was touching it.
Polk ordered Roxie to take her off clothes. When she had taken off her clothes, Polk grabbed Roxie's left breast and said" 'This is how we came over on the boat to America.'" Polk put the shotgun in Roxie's mouth and said," 'Do you want to me to blow your head off? Where's the fucking safe?'" Drayton was in the Wards' bedroom at that time and was approximately three feet away from Roxie and Polk. Cheryl pleaded with Drayton and Polk to stop what they were doing. Drayton testified that he was trying not to participate in what the others were doing.
Drayton testified that he did not see the shotgun in Roxie's mouth because he was facing in a different direction.
Polk told Roxie to take off her underwear. Polk put the shotgun back in Roxie's mouth and turned to her mother and said," 'Do you want me to fucking rape your daughter? Where's the fucking safe?'" James told the men there was some money in the closet. They went into the closet and got some money. They asked where the rest of the money was.
Polk told Roxie to lay down on the bed. Polk put the shotgun inside Roxie's vagina. Drayton was at that time still standing over Cheryl about three feet away from Polk and Roxie, and there were no obstructions between them and Drayton. Polk said to Roxie" 'I think I'm going to fucking rape you'" and then turned to Drayton and asked him," 'Should I fucking rape her?'" Drayton replied" 'no.'" Cheryl testified that Drayton told her something to the effect of he would not let Polk sexually abuse her daughter.
Roxie's head was on the bed, and she heard scuffling and then two shots fired. When the shots were fired, Drayton was still standing over Cheryl with a gun pointed at her. After the shots, Drayton saw that James was bleeding from the mouth. Drayton did not attempt to help James or, once inside the house, tell any of the others to stop the violence against him.
Drayton neither shot James nor fired his gun during the robbery. He also testified he did not hit anyone. Cheryl testified that one of the men hit her with a gun. She does not know whether it was Drayton or Polk but thinks it was Polk.
Shortly after James had been shot, one of the men said that there were lights on the road. The men then ran out of the house. Drayton was the last to leave. Cheryl testified that he told her not to move for 15 minutes. In total, the men were inside the Wards' house for 30 or 45 minutes.
Drayton could not remember whether he made this statement.
After leaving the Wards' house, the group went to Annette Durr's home. Drayton tried to get rid of his gun there. Durr's father told them to leave. Drayton left the Durrs' house with Ballance. Richardson gave Drayton some of the money they had stolen from the Wards. Drayton started drinking alcohol around age 17, and he was intoxicated during the robbery.
Drayton then drove to his grandparents' house. As he was driving on the highway, Drayton threw the money out of his car window. Drayton, accompanied by his mother, turned himself into the police the next day. Drayton was then 20 years old.
In September 1991, Drayton, Richardson, Polk, and Ballance were charged by information with murder (§ 187; count 1), three counts of robbery (§ 212.5; counts 2-4), burglary (§459; count 5), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 6-7), penetration with a foreign object (§ 289, subd. (a); count 8), and conspiracy to commit robbery (§§ 182, 212.5; count 9). The information also alleged that Drayton personally used a firearm in the commission of the offenses (former §§1203.06, subd. (a)(1), 12022.5). In connection with the murder charge, the information alleged three special circumstances. (§ 190.2, subd. (17) (i), (vii), (xi).)
On March 3, 1992, Drayton pleaded guilty to first degree murder (§ 187) and admitted enhancements for personal use of a firearm (former §§ 1203.06, subd. (a)(1), 12022.5). In connection with his guilty plea, Drayton admitted that, on June 14, 1991, he "entered [the] Ward[s'] [r]esidence with intent to commit theft and a human being was killed," and he "had a 32 cal[iber] pistol in his possession." On March 26, 1992, Drayton was sentenced to 29 years to life imprisonment.
A. Proceedings on Section 1170.95 Petition
1. Petition and Summary Denial
In January 2019, Drayton filed on his own behalf a petition for resentencing pursuant to section 1170.95. In the petition, Drayton declared that 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." On May 17, 2019, the trial court held a hearing on Drayton's petition and denied it without hearing argument or taking evidence. Drayton appealed to this court, which reversed the trial court's order denying his section 1170.95 petition and ordered the trial court to issue an order to show cause and to hold an evidentiary hearing on the petition. (Drayton I, supra, 47 Cal.App.5th at p. 983.)
2. Evidentiary Hearing
On October 1 and 7, 2020, the trial court held a contested evidentiary hearing on the petition. Prior to the evidentiary hearing, Drayton filed a number of motions in limine. Both parties filed requests for judicial notice. We discuss below the trial court's rulings on those motions as relevant to the issues Drayton raises in this appeal.
a. Prosecution Evidence
The prosecution contended that Drayton was guilty of murder on a felony murder theory and was a major participant who acted with reckless indifference to human life.
The People introduced into evidence excerpts from Drayton's preliminary hearing, Drayton's testimony from codefendant Patrick Richardson's trial, and excerpts from Drayton's 2014 and 2017 parole hearings. Roxie testified on behalf of the prosecution.
Prior to the evidentiary hearing, the trial court granted Drayton's motion to exclude any hearsay evidence admitted at the preliminary hearing.
The parties stipulated to a number of facts, including that James was dead when the police arrived, no medical intervention could have saved him, and he died quickly after the fatal gunshot was fired.
b. Defense Evidence
The defense called a number of witnesses to testify at the evidentiary hearing, including Drayton and Cheryl.
Terry Kaiser was a deputy sheriff with the Monterey County Sheriff's Department, where he had worked for 48 years before his retirement. He was in charge of the investigation of the crimes against the Wards. Deputies working for him interviewed the defendants. At the time of the hearing, Kaiser had been married to Cheryl for 22 years. In 2009, Kaiser wrote a letter to the parole board on behalf of Drayton, which the trial court excluded from evidence. We discuss the trial court's evidentiary rulings with respect to Kaiser in more detail below.
A number of character witnesses including Drayton's mother, Drayton's cousin, and Drayton's mother's best friend, testified that Drayton was an honest person who was not violent. Charles Bardin was the lead investigator into the crimes against the Wards. He interviewed Polk twice about the crimes, and his report of the interview was admitted into evidence. Carolyn Murphy was a clinical psychologist who testified about adolescent brain development. She testified that the use of alcohol and cannabis can impede the development of coping skills. The defense also introduced into evidence a document Drayton wrote in preparation for his parole hearing.
c. Ruling on Section 1170.95 Petition
On October 13, 2020, the trial court denied Drayton's section 1170.95 petition. The court found that Drayton was a major participant in the felony who acted with reckless indifference to human life.
As supporting facts for that finding, the trial court observed that Drayton was armed during the course of the crime and at least two other codefendants were also armed. One of the codefendants was carrying a shotgun; the size of the weapon would have made it difficult to conceal from Drayton. Drayton knew that they were going to the home to commit a robbery, and he entered the Wards' residence with that knowledge. Drayton was given the opportunity to stay in the car if he gave one of the other men his gun; he did not want to hand over his gun and elected to participate in the robbery. Drayton was inside the room when the victims were present. He was in the room when Polk put the shotgun in Roxie's mouth and vagina and when James was shot and killed. Drayton kept his foot on Cheryl's back and his gun to her neck during the robbery. Drayton failed to prevent the shooting and did not render any aid to James after the shooting.
After making these findings, the trial court addressed Drayton directly. The court said, "I do believe that you, obviously, were not the mastermind behind this. I do believe that you were hesitant to participate. And I do believe that you both personally declined to violate Ms. Roxie Ward and attempted to discourage your codefendant from doing the same. [¶] It's a very different position to be in as a judge to see someone 30 years after a crime has been committed. [¶] As I watched you testify, I couldn't imagine you doing what clearly happened on that evening. I don't believe you're the same person you were then. I know you would take it back if you could. [¶] But that's a parole issue."
The trial court specifically found Drayton's testimony at the evidentiary hearing credible. It stated, "When I watched you testify, I believe you were trying to tell the truth as you remembered it. I believe that memories fade. And when you've talked about an event so long and so often, you're hearing from different sides, it's hard to know what you remember in your mind and what other people have said and then you're reading transcripts and everything. To me, those little discrepancies didn't have any impact on me. It was the gravamen of the offense, the highlights of the offense."
II. DISCUSSION
On appeal from the denial of his section 1170.95 petition, Drayton contends the trial court misunderstood the prosecution's burden of proof, erred when it refused to give preclusive effect to the original sentencing judge's characterization of Drayton as a minor participant, and abused its discretion when excluding opinion evidence from an investigating officer. In addition, Drayton argues the trial court's finding that he was a major participant in the robbery who showed reckless indifference to human life lacks substantial evidence.
A. Standard of Proof
1. Legal and Factual Background
On October 5, 2020, the People filed in the trial court a pleading entitled "Sentencing Authorities" which cited the then-recent opinion in People v. Duke (2020) 55 Cal.App.5th 113, cause transferred and opinion not citable (Nov. 23, 2021, S265309) (Duke). The pleading attached a copy of the Duke opinion and quoted a portion that equated the prosecution's burden of proof at the evidentiary hearing to the appellate standard of substantial evidence review. In the pleading, the People did not expressly advocate that the trial court use the standard articulated in Duke. At argument on the motion, the People stated they were aware of the language in the Duke opinion related to substantial evidence but asserted that their position was that they had proven "beyond a reasonable doubt that Mr. Drayton was a major participant and acted with reckless indifference to human life." They concluded, "the People have proven beyond a reasonable doubt the [People v. Banks (2015) 61 Cal.4th 788 (Banks)] and [People v. Clark (2016) 63 Cal.4th 522 (Clark)] factors, and we're going to ask the court to find beyond a reasonable doubt that that's been proven and deny the petition."
The opinion in Duke stated, "The primary requirement for eligibility for resentencing under section 1170.95 is that '[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).) To carry its burden, the prosecution must therefore prove beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law-in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder. This is essentially identical to the standard of substantial evidence, in which the reviewing court asks' "whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." '" (Duke, supra, 55 Cal.App.5th at p. 272, fn. omitted, cause transferred and opinion not citable (Nov. 23, 2021, S265309).)
Prior to the evidentiary hearing, Drayton filed a motion in limine that maintained the People were required to prove beyond a reasonable doubt that Drayton could be convicted of murder and argued against a "sufficiency of evidence standard." Drayton urged the trial court to reject the language in Duke suggesting the trial court need only find substantial evidence of murder.
At the beginning of the evidentiary hearing, the trial court "note[d] the burden is on the People," but did not specify the applicable burden of proof. At the end of the hearing, the trial court stated it would rule on the standard of proof in its final ruling, which it would deliver at a court appearance the following week. However, in its final ruling, the trial court did not identify the burden of proof. It stated, "Both sides mentioned the Duke case last week, which states that the primary requirement for eligibility for resentencing is that petitioner could not be convicted of either first or second degree murder under the current state of the law, which became effective January 1st, 2019." Other than this statement, the trial court did not refer to Duke. The trial court did not mention either the beyond a reasonable doubt or substantial evidence standard.
2. Analysis
Drayton contends the trial court implicitly relied upon the substantial evidence standard articulated in Duke in making its findings. Drayton observes that the only case the trial court cited in its ruling was Duke, and it "adopted exactly the legal framing employed by Duke." Drayton asserts that, "[a]t the very least, the court left the standard it employed decidedly ambiguous," which justifies reversal of the court's order.
The Attorney General does not advocate that this court apply the substantial evidence standard articulated in Duke. Indeed, since the Attorney General filed his brief in this case, the California Supreme Court has ordered the opinion not citable (People v. Duke (Nov. 23, 2021, S265309)) and new legislation has clarified the applicable standard is beyond a reasonable doubt. (See Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551.) Nevertheless, the Attorney General asserts that the trial court employed the correct standard and, after independently reviewing the evidence, "found, beyond a reasonable doubt, [Drayton] was a major participant in the underlying felony and acted in reckless indifference to human life."
With respect to Drayton's section 1170.95 petition, the prosecution's theory of Drayton's continuing liability for first degree murder (and, therefore, ineligibility for resentencing) was that he was a major participant in the underlying felony of robbery and acted with reckless indifference to human life. (See § 189, subd. (e)(3).) At Drayton's section 1170.95, subdivision (d) hearing, the prosecution was therefore required to prove beyond a reasonable doubt the elements of this crime. The only elements contested at the evidentiary hearing were major participation in the robbery and reckless indifference to human life.
We do not agree with Drayton that the trial court's reference to Duke in its final ruling was an implicit acknowledgement that it applied a substantial evidence standard to the prosecution's burden of proof on these elements. Although the People cited Duke to the trial court, their position was that they had proven the elements of murder beyond a reasonable doubt. Drayton, too, argued that the prosecution's burden was proof beyond a reasonable doubt.
In its ruling, the trial court did not reference the substantial evidence standard. It did not make any findings or use language suggesting that it viewed the prosecution's burden as anything less than proof beyond a reasonable doubt. Further, the facts themselves were not in dispute. Indeed, the trial court explicitly credited Drayton's testimony about what happened during the robbery. On this record, we are persuaded the trial court applied the proper standard to the prosecution's burden of proof.
B. Effect of Statement by Original Sentencing Judge that Drayton was a "Minor Participant"
1. Legal and Factual Background
Prior to the evidentiary hearing, Drayton filed a request for judicial notice of portions of his original sentencing hearing. Drayton sought judicial notice of a number of statements by the sentencing judge, including the following:" 'the manner in which the crime was carried out indicates planning, sophistication and professionalism. Once again, you were a minor participant in this, but you were right there in it with the other four, total of five people.' "
Drayton pleaded guilty to first degree murder, and the original sentencing judge had no discretion over the length of the sentence for that crime, which was 25 years to life. The trial court's statements for which Drayton sought judicial notice in connection with his section 1170.95 petition occurred in the context of the court's decision on the appropriate term for the gun enhancement. The People requested the upper term of five years; Drayton sought a "minimum or middle term sentence on the enhancement."
Under rules 4.421 and 4.423 of the California Rules of Court, the sentencing judge found a number of aggravating and mitigating factors. Pursuant to the aggravating factor set out in rule 4.421(a)(8), the court made the statement excerpted above. The sentencing judge ultimately imposed the middle term of four years on the enhancement.
Unspecified rule references are to the California Rules of Court.
Rule 4.421(a)(8) states that "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism" constitutes an aggravating circumstance. We note that, at the time of sentencing in 1992, rules 4.421 and 4.423 were numbered 421 and 423, respectively, but the text of subdivision (a)(8) has remained unchanged.
In a motion in limine filed prior to the evidentiary hearing, Drayton moved the trial court "for immediate resentencing" based on the sentencing judge's statement. In this motion, Drayton relied on section 1170.95, subdivision (d)(2) (hereafter section 1170.95(d)(2)), which provides, "If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." Drayton contended the sentencing judge's statement that Drayton was a "minor participant" triggers the mandatory resentence language of section 1170.95(d)(2).
The People opposed Drayton's motion and argued that the statement does not qualify as a finding of fact because Drayton had pleaded guilty to the murder charge prior to sentencing. The People contended that Drayton could be a minor participant when compared to his codefendants but remain a "major participant under the law."
The trial court denied the motion for immediate resentencing and disagreed with Drayton that it was bound by the sentencing judge's characterization of Drayton as a minor participant. The court stated that it would consider Drayton's original sentencing and the judge's comments but did not believe "the sentencing judge's determination of if someone was a major or minor participant has any preclusive effect on a judge ruling on a [section] 1170.95 motion in the future, as this law wasn't even in existence."
2. Analysis
Drayton maintains the trial court's conclusion that it was not precluded from independently reviewing whether Drayton was a major participant in the crime was error because, he asserts, "the original sentencing court's finding collaterally estopped the prosecution from relitigating the point to a different conclusion." Drayton contends that the original sentencing judge made this finding pursuant to rule 4.423, which states it is a mitigating factor if the defendant "played a minor role in the crime." (Rule 4.423(a)(1).) Drayton asserts "the party against whom this finding was made in 1992 was also the same party against whom it was being asserted in the resentencing hearing." Drayton states that the original sentencing judge was engaging in factfinding with this comment, because the court was articulating the basis for its sentencing choice on the gun enhancement.
Contrary to Drayton's assertion, the original sentencing judge did not characterize Drayton's minor role as a mitigating factor. The trial court referenced Drayton's role only in the context of its discussion of aggravating factors. For mitigating factors, the sentencing judge cited Drayton's minimal criminal record, his early acknowledgement of guilt, his "expression of discouragement to other participants" during the robbery, and his cooperation with the prosecution.
Relying on People v. Ramirez (2019) 41 Cal.App.5th 923 (Ramirez), Drayton contends that, even if the trial court were not bound by principles of collateral estoppel, the terms of section 1170.95(d)(2) required the court to resentence Drayton. He asserts the trial court's prior statement qualifies as a "prior finding by a court . . . that the petitioner . . . was not a major participant in the felony," which triggers the statutory directive that "the court shall vacate the petitioner's conviction and resentence the petitioner." (§ 1170.95(d)(2).) Drayton maintains that the provision is not limited to special circumstance findings, because such a limitation does not appear in the statutory text of section 1170.95.
The Attorney General responds that the sentencing judge's statement was "merely a comment" that does not meet the requirements for collateral estoppel. Moreover, the Attorney General asserts, because Drayton pleaded guilty, there was no" 'not true finding' of a special circumstances allegation or even a rejection [of] a theory of murder predicated on appellant having been a major participant who acted with reckless indifference to human life." Therefore, section 1170.95(d)(2) does not apply.
We turn first to Drayton's argument that principles of collateral estoppel prevent the trial court from independently determining whether Drayton was a major participant in the felony.
Collateral estoppel" 'precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.'" (People v. Gonzalez (2021) 65 Cal.App.5th 420, 433.)
The statement by the original sentencing judge that Drayton was a "minor participant" does not meet the threshold requirement that the precluded issue be identical to that decided in the former proceeding. The definition of "major participant" as used in the definition of first degree murder set out in section 189, subdivision (e)(3) derives from case law from the United States and California Supreme Courts. (See Banks, supra, 61 Cal.4th at pp. 800-801 [noting that" 'major participant'" does not have "a specialized or technical meaning" but consulting precedent to elucidate "the governing test" for the phrase].)
"Section 189, subdivision (e), which permits a felony-murder conviction only when specified facts relating to the defendant's individual culpability have been proved, incorporates in subdivision (e)(3) the same requirements for proving the defendant acted with reckless indifference to human life as a major participant in one of the identified serious felonies as necessary for a felony-murder special-circumstance finding under section 190.2, subdivision (d). The factors properly considered in assessing such a felony-murder special-circumstance finding were clarified in Banks . . . and Clark." (People v. Harris (2021) 60 Cal.App.5th 939, 954, fn. omitted, review granted Apr. 28, 2021, S267802 (Harris).)
"In Banks the Supreme Court identified factors courts should consider in determining whether a defendant was a 'major participant' under section 190.2, subdivision (d): '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?'" (Harris, supra, 60 Cal.App.5th at pp. 954-955, review granted.)
There is no indication in the record that the sentencing judge applied these factors (or ones like them, given that Banks postdates Drayton's sentencing) when justifying imposition of the middle term on the gun enhancement. Indeed, there would have been no need for him to have done so, since the relevant rule of court does not reference these or similar criteria. (See rule 4.421(a)(8).) Further, the sentencing judge never identified Drayton's role as a minor participant as a mitigating factor. The sentencing judge's observation that Drayton was a "minor participant" when articulating an aggravating factor with respect to the imposition of a firearm enhancement is not the identical issue as a determination of whether an individual constitutes a major participant, particularly as described in Banks and Clark. Thus, the trial court was not collaterally estopped from making this determination in its ruling on Drayton's section 1170.95 petition.
We also reject Drayton's reliance on section 1170.95(d)(2) and Ramirez, supra, 41 Cal.App.5th 923 for the proposition that the trial court was required to immediately resentence him based on the sentencing judge's characterization of him as a minor participant.
In Ramirez, the Court of Appeal had previously granted Ramirez's petition for writ of habeas corpus, agreeing with Ramirez that substantial evidence did not support the jury finding on a special circumstance that he was a major participant who acted with reckless indifference to human life under the California Supreme Court's decisions in Banks and Clark. (Ramirez, supra, 41 Cal.App.5th at pp. 926-927). When granting the petition for habeas corpus, the Court of Appeal had stated," '[a]s an unarmed lookout with little to no role in the planning of the crime or the use of firearms, and with no direct involvement in the unforeseen shooting, it cannot reasonably be said that petitioner was a major participant.'" (Id. at p. 930.) In other words, even before Ramirez had filed his section 1170.95 petition, the Court of Appeal had already struck the special circumstance finding, remanded the matter for resentencing, and the trial court had resentenced him. (Id. at p. 927.) Based on its own prior finding (contained in its order granting habeas corpus relief), the Court of Appeal concluded that Ramirez was entitled to immediate resentencing under the terms of section 1170.95(d)(2). It stated, "We thus construe the word 'shall' in section 1170.95, subdivision (d)(2) as imposing a mandatory duty on the court to vacate defendant's sentence and resentence him whenever there is a prior finding of this court that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life." (Ramirez, at p. 932.)
Ramirez does not support Drayton's position that he is entitled to immediate resentencing. In Ramirez's case, a court had already applied the Clark and Banks factors, and concluded that substantial evidence did not support the conclusion that Ramirez was a major participant in the felony who acted with reckless indifference to human life. In Drayton's case, the sentencing judge did not make such a finding after having applied the relevant factors. To the contrary, the sentencing judge's statement appeared in the context of explaining the imposition of an aggravating factor. On this record, we decide that the sentencing judge's prior characterization of Drayton as a minor participant does not trigger mandatory resentencing under section 1170.95(d)(2).
Because we decide that the sentencing judge's statement does not constitute a finding by a court that Drayton "was not a major participant in the felony" within the meaning of section 1170.95(d)(2), we need not reach the question whether section 1170.95(d)(2) is limited to special circumstance findings.
C. Exclusion of Statement of an Investigator from Evidence
1. Legal and Factual Background
Prior to the evidentiary hearing, Drayton sought to introduce into evidence a letter authored by Terry Kaiser, a retired homicide detective who had been the investigating sergeant into the crimes committed by Drayton and his codefendants. Drayton asserted that Kaiser was an expert in homicide investigations and his letter was relevant to whether Drayton had showed reckless indifference to human life during the robbery. Kaiser had married Cheryl, also a victim of the robbery and the surviving spouse of James.
The letter written by Kaiser, dated September 12, 2009, was intended for use at Drayton's parole hearing. In the letter, Kaiser stated he had "no problems" with Drayton being released. Kaiser recounted that, when he interviewed Drayton, Drayton "showed deep remorse and took responsibility for his behavior." Further, Kaiser asserted, "I also feel strongly that things would have been worse for [surviving victims] Cheryl and Roxie had [Drayton] not taken the actions he did to prevent it. Just based on my dealings with Richardson and Polk[, ] I know that given the chance to think things out after the shooting, they would have not left any witnesses behind. [Drayton] is to be commended for his actions and I think that should be taken strongly into consideration" (capitalization omitted).
During the evidentiary hearing, Drayton's attorney asked Kaiser how he reached the conclusion expressed in the letter to the parole board. Kaiser replied he had come to the conclusion based on what Kaiser had read in the reports. Drayton's attorney then said "And you-based on all of your training doing over 400 homicides, working on serial killers, and reviewing this case, if he didn't take the action he did, Cheryl and Roxie may not be with us."
The People objected on relevance grounds to admission of Kaiser's letter and to Kaiser's testimony. The People observed that Kaiser had not been declared an expert witness and objected to Drayton's attorney's question to Kaiser about whether Drayton had taken "some action that reduced the risk to []Cheryl Ward and Roxie Ward" on the night of the robbery.
Drayton's attorney replied to the objection that officers testify "all the time" that "one person's actions prevented something more serious."
On questioning by the trial court, Kaiser stated that he was not at the Wards' home on the night of the robbery and did not personally interview any of the people who were present during the robbery.
The trial court sustained the People's objection to Kaiser's testimony and to admission of the letter into evidence.
Drayton later filed a motion renewing his request that Kaiser be allowed to testify about his letter to the parole board. The trial court conducted an evidentiary hearing (at which Kaiser testified) on the admissibility of his testimony. The trial court asked Kaiser whether he had investigated any cases where a person or persons committed a home invasion robbery and the perpetrators killed the entire family. Kaiser replied that he had only investigated one such case. Kaiser agreed with the court that it is extremely rare for an entire family to be killed in a home invasion robbery. Kaiser stated that he wrote the letter to the parole board in response to the board's question whether he had any objections to Drayton being paroled. Kaiser testified he said in the letter, "I had no reservation about him being released should he qualify for it. That had nothing to do with the investigation 17 years earlier."
Drayton's counsel requested that the trial court qualify Kaiser as an expert "regarding the letter he wrote." The trial court replied that Kaiser had "actually testified contrary to what you want him to say" in that he testified that it is extremely rare for the entire family to be killed in a home invasion robbery. The trial court stated "I'm happy to let him testify to that and have it a part of the record, but I think it undermines the position the defense is trying to take." Drayton's counsel asked the trial court to "trail Mr. Kaiser for a while." Cheryl then testified, and the defense rested without renewing its request that Kaiser be qualified as an expert witness and testify about the letter.
The trial court addressed Drayton's motion in limine to admit Kaiser's letter to the parole board. The court stated, "That has been respectfully denied and that ruling remains."
2. Analysis
Drayton argues the trial court abused its discretion in excluding Kaiser's opinion evidence about Drayton's influence on the course of the crimes against the Wards. Drayton contends the evidence was relevant to whether Drayton acted with reckless indifference to human life. Drayton argues that "[a]n investigator who has handled hundreds of homicide cases has a unique insight into the dynamics of such crimes and can draw on that insight in assessing the role of the various participants." He maintains this topic is a proper subject of expert testimony. Drayton contends that Kaiser's letter could have "disabused" the court of its seeming conclusion that "since it was rare for all the members of a household to be killed in a home invasion robbery, Drayton's approach to the crime consequently did not make any difference." Drayton states it was unfair for the court to have suggested Kaiser's testimony would have been relevant if he testified that it is rare for all the occupants of a home to be killed in a home invasion robbery but irrelevant for Kaiser to testify that the crimes might have been" 'much worse'" if Drayton had not been involved.
The Attorney General responds that Kaiser's opinion, as expressed in the letter to the parole board, was not relevant to any of the Clark or Banks factors. He notes that the trial court was aware that Drayton did not participate in the sexual assault of Roxie and told Polk not to rape her. As the letter was not relevant, the trial court did not abuse its discretion in excluding it.
"Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is defined as 'evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.)" (People v. Miles (2020) 9 Cal.5th 513, 587.)" 'A trial court has "considerable discretion" in determining the relevance of evidence.'" (Ibid.) We review the trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Dworak (2021) 11 Cal.5th 881, 895.)
We decide the trial court did not abuse its discretion in excluding Kaiser's letter as irrelevant. It was undisputed that Drayton acted to prevent Polk from further sexually assaulting Roxie. Indeed, the trial court specifically found that he had done so when it denied Drayton's section 1170.95 petition. By contrast, there was no evidence that Drayton had taken any action to prevent the murder of James. Drayton himself testified that he did not say anything or do anything to prevent the other men from shooting any of the Wards.
Although Kaiser stated in the letter that "based on my dealing with Richardson and Polk[, ] I know that given the chance to think things out after the shooting, they would have not left any witnesses behind" (capitalization omitted), Kaiser had no personal knowledge of this subject. Kaiser testified that he did not interview Richardson or Polk. He agreed with the trial court that it was "extremely rare" for perpetrators in a home invasion robbery to kill everyone at the home. On these facts, Kaiser's opinion did not "have any tendency in reason to prove or disprove" whether Drayton showed reckless indifference to human life. (Evid. Code, § 210.) The trial court did not abuse its discretion in its evidentiary ruling.
D. Insufficiency of the Evidence
Drayton asserts that the evidence was insufficient to show that he acted with reckless indifference to human life. Drayton contends that his personal conduct did not create the risk of death (beyond the risk inherent in an armed robbery), but actually reduced the danger to the surviving victims.
Drayton does not challenge on appeal the trial court's conclusion that he was a major participant in the robbery.
1. Analysis
We review the trial court's fact finding for substantial evidence. (People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087.) We review the record in the light most favorable to the judgment and determine whether there is any substantial evidence to support a reasonable fact finder's findings beyond a reasonable doubt. (Ibid.)
As the California Supreme Court has recently summarized, "Reckless indifference to human life has a subjective and an objective element. (Clark, supra, 63 Cal.4th at p. 617.) As to the subjective element, '[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.' (Banks, supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) As to the objective element, ' "[t]he 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 [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."' [Citation.] 'Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life; 'only knowingly creating a "grave risk of death"' satisfies the statutory requirement. [Citation.] Notably, 'the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used' is not sufficient to establish reckless indifference to human life." (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).)
Determining whether a defendant acted with reckless indifference to human life requires an analysis of the totality of circumstances. "Relevant factors include: 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? [Citation.]' "[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient." '" (Scoggins, supra, 9 Cal.5th at p. 677.)
We conclude there is sufficient evidence from the hearing, including Drayton's own testimony, to support the trial court's finding that he acted with reckless indifference to human life. Drayton knowingly participated in the robbery and willingly brought a loaded gun into the Wards' bedroom in the middle of the night. Drayton was present in the Wards' house during the entire robbery, which lasted for at least 30 minutes. Drayton knew that Polk had a shotgun; indeed, Polk had pointed it at him earlier that evening. On that basis, Drayton also knew Polk might use the gun on another person. There was evidence presented from which the trial court could infer that Drayton pointed his gun at Cheryl's neck and held it there for at least 10 minutes. Substantial evidence supports the conclusion that Drayton thereby prevented Cheryl from providing aid to her husband before he was killed. Drayton was present while Polk and Richardson were kicking James. Drayton was also just a few feet from Polk when Polk made Roxie take off her clothes, threatened to rape her, and put a gun in her mouth and vagina. Drayton was in the bedroom when James was shot, and he saw him bleeding. Drayton did not attempt to summon help for James or the surviving victims, and Drayton told Cheryl not to move for 15 minutes after the group's departure.
It is true that Drayton did take steps to minimize the risks of violence to Roxie (and possibly to Cheryl) during the felony. There is no evidence that Drayton sought James's death or wished to physically harm any of the Wards. It is also true that substantial evidence supports the conclusion that Drayton's actions were far less egregious than those of several of his codefendants, and he was a reluctant participant in the robbery. The question before us, however, is not whether the trial court could have drawn a different factual conclusion as to whether the prosecution carried its burden of proving beyond a reasonable doubt that Drayton acted with reckless indifference to human life. (See § 189, subd. (e)(3).) Our review is limited to whether substantial evidence supports the conclusion the trial court did reach.
On these facts, we answer that question in the affirmative.
III. DISPOSITION
The order denying Drayton's Penal Code section 1170.95 petition is affirmed.
WE CONCUR: Greenwood, P.J., Lie, J.