Opinion
B327381
01-23-2024
THE PEOPLE, Plaintiff and Respondent, v. MARSHAWN D. JACKSON, Defendant and Appellant.
J. Kahn, 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, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA027330, Michael D. Carter, Judge. Affirmed.
J. Kahn, 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, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 2005, a jury found Marshawn Jackson guilty of four counts of attempted murder. In 2022, he petitioned for resentencing under Penal Code section 1172.6, which limits accomplice liability for attempted murder. After an evidentiary hearing, the trial court denied Jackson's petition based on evidence admitted at his underlying trial, including surveillance footage of the crime. Jackson appeals, contending the trial court improperly considered the surveillance footage because the prosecutor did not ask that it be admitted at the evidentiary hearing and that, in any event, there was insufficient evidence of his intent to kill. We disagree with these contentions and affirm the order.
All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
I. The underlying crimes
Our background is from the trial court's memorandum of decision, which Jackson agrees properly characterizes the evidence.
On September 13, 2003, John Tarry was at Snooky's, a bar he owned. Present that day were Jeff Collier, a customer; John Long, the doorman; and April Tapia, the bartender. Snooky's had a front public area with pool tables and a bar, and a back private office where Tarry kept a safe.
Soon after Snooky's opened that day, Jackson, Terrence Dunson, and Brian McDonald entered the bar together. Dunson was the tallest of the three men and he wore a floppy tan hat, while Jackson and McDonald wore black skull caps. The men drank and played pool, but when Tarry asked Dunson to return his drink because Dunson did not have identification, the three men left.
Seconds after leaving, the three men returned. Dunson immediately hit Tarry's head with a bar stool. Tapia began to run, but one of the men stopped her and asked if she wanted to die right there. Meanwhile, one of the men shot Long in the hip, requiring him to be airlifted to a hospital due to the seriousness of his condition. Tarry testified that the shooter shot with his left hand and wore a red shirt.
Dunson made Tarry go to the back office. En route to the office, another of the men hit Tarry, knocking out some teeth. In the office, Tarry was unable to open the safe, so Dunson repeatedly called for his accomplice to come and" 'kill this motherfucker.'" Another man pointed a gun at Tarry's head. And, at some point, someone shot Tarry's surveillance cameras.
Long, Collier, and Tapia were moved into the office with Tarry. Dunson told Tarry that if he didn't open the safe, he and the others would be killed. Tarry opened the safe, and the men took money from it and from Tarry. Tarry heard one man say,"' "[J]ust go back and kill them motherfuckers." '" Then, as Tapia lay on the floor in a fetal position, she was shot in her hip, and the bullet exited and grazed her breast. Collier was shot in his arm. A third gunshot aimed at Tarry's head missed and hit his computer.
The men escaped in a car driven by Dunson's sister, but law enforcement soon captured them. A red shirt and a handdrawn layout of Snooky's were among the items found in the car.
The layout had been drawn by Dunson's child's mother, who had worked at Snooky's and knew Tarry had a safe in the office.
A gunshot residue particle was found on Jackson's left hand. Jackson is left-handed.
At Jackson's, Dunson's, and McDonald's joint criminal trial, Dunson testified while reviewing surveillance footage. He identified himself as the tall man with a hat. During Dunson's testimony, McDonald interjected that he was the person in the white shirt. Dunson then said that the remaining robber who wore a red shirt had to be Jackson.
II. Jury verdict, sentence, and appeal
At the joint trial, the trial court instructed the jury on the natural and probable consequences doctrine. A jury found Jackson, Dunson, and McDonald guilty of four counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a)), three counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), and four counts of robbery (§ 211). As to Jackson, the jury found true personal gun use allegations (§ 12022.53, subds. (b), (c) &(d)). But as to Dunson and McDonald, the jury found true only principal gun use allegations.
As relevant here, the trial court in 2005 sentenced Jackson to four life terms, one for each of the attempted murder counts, plus three 25-years-to-life terms and one 20-years-to life term for the firearm enhancements.
This Division affirmed Jackson's judgment of conviction on direct appeal. (People v. Dunson (Oct. 13, 2006, B185018) [nonpub. opn.].)
III. Petition for resentencing
In 2022, Jackson petitioned for resentencing under section 1172.6. The trial court found that Jackson had made a prima facie showing of eligibility for relief, appointed counsel, issued an order to show cause, and, after briefing, held an evidentiary hearing.
The People's briefing did not reference the surveillance footage. That briefing is also confusing because it focused on Dunson and not Jackson.
The parties did not introduce new or additional evidence at the evidentiary hearing. Jackson's counsel argued that the trial court should consider only "aspects of the clerk's transcripts that were, for instance, like a transcript of a recording at trial," and should not consider any gang evidence because the jury had found gang allegations not true. Counsel also argued that the trial court could not consider surveillance footage, even though it had been admitted at trial, because the People had not submitted it at the evidentiary hearing and it had never been provided to counsel. Counsel did not contest that Jackson was at the robbery but instead argued that "who did what is not necessarily proven beyond a reasonable doubt." He also argued that there was insufficient evidence of Jackson's intent to kill.
After the evidentiary hearing, the trial court issued a memorandum of decision. In it, the trial court stated that it based its findings on the trial transcript and surveillance footage, which included a VHS tape and DVD. The trial court rejected Jackson's argument that it could not consider the surveillance footage because it had not been admitted at the evidentiary hearing. The trial court noted that section 1172.6, subdivision (d)(3), allows a court to consider evidence previously admitted at trial. As the surveillance footage had been admitted at the underlying trial, the trial court concluded that it was admissible under current law at the evidentiary hearing.
On the merits, the trial court found that Jackson was the shooter beyond a reasonable doubt. Describing the surveillance footage, the trial court said it showed three unmasked men enter Snooky's. Only one man wore a red shirt and held a gun. That man pointed his gun at Long at close range, and then, while in the back area, at Tarry as Tarry tried to open the safe. The trial court added, "Later, when Tarry, Long, Collier, and Tapia are on the floor in the back area, the video shows the man with the red shirt point his gun at close range towards" them. Also, Tarry testified that the shooter was left handed and wore a red shirt. Jackson admitted when he was being booked that he was left handed, and he had gunshot residue on his left hand.
The trial court then found beyond a reasonable doubt that Jackson was guilty of the attempted murders of Long, Collier, Tapia, and Tarry under current law. First, the trial court found that Jackson took direct steps to commit the attempted murders: he immediately shot Long on entering Snooky's, and he shot Collier and Tapia and shot at Tarry after Dunson told Jackson to kill them.
Second, the trial court found that Jackson manifested an intent to kill. Jackson had a motive to kill Long, whom he shot promptly on reentering Snooky's. This suggested he wanted to eliminate Long as an immediate threat and to set a tone for the rest of the robbery, that resistance would be met with deadly force. The trial court thus said, "Indeed, when Tapia attempted to run away, she was threatened with death. And when Tarry failed to quickly open the safe, he was threatened with death multiple times." Jackson also had a motive to kill Collier, Tapia, and Tarry, all of whom he shot or shot at after the robbery was completed, when they were not a threat. After someone told Jackson to" 'kill'" them, Jackson tried to follow that instruction. "Thus, the court can reasonably infer that by shooting at them, [Jackson's] only motive was to kill them" to eliminate witnesses. Finally, shooting all four victims at close range in a manner that could have inflicted mortal wounds demonstrated Jackson intended to kill them. Accordingly, the trial court denied Jackson's petition for resentencing.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that "to be convicted of murder, a principal in a crime shall act with malice aforethought" and malice "shall not be imputed to a person based solely on his or her participation in a crime"). As amended by Senate Bill No. 775, effective January 1, 2022, these ameliorative changes to the law now expressly apply to attempted murder and voluntary manslaughter.
Senate Bill No. 1437 also created a procedure, codified at section 1172.6, for a trial court to resentence a defendant convicted of murder, attempted murder, or voluntary manslaughter under the former law if the defendant could no longer be convicted of those crimes under current law. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under current law. (People v. Strong (2022) 13 Cal.5th 698, 708.)
At the prima facie stage, the trial court takes as true the defendant's factual allegations and assesses whether the defendant would be entitled to relief if those allegations were proved. (People v. Lewis, supra, 11 Cal.5th at p. 971.) In determining whether the defendant has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing at which the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder, attempted murder, or voluntary manslaughter under the law as amended by Senate Bill No. 1437. (§ 1172.6, subds. (b)(3), (c), &(d)(1).)
At the evidentiary hearing, the parties may offer new or additional evidence, and the trial court may consider evidence admitted at the trial of conviction, so long as it is admissible under current law. (§ 1172.6, subd. (d)(3).) The trial court sits as an independent factfinder to determine beyond a reasonable doubt whether the defendant is guilty of murder under a valid theory. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
On appeal, we review the trial court's findings at an evidentiary hearing for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review, we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
II. Evidence at an evidentiary hearing
Jackson contends that the trial court improperly considered the surveillance exhibits (a VHS tape and DVD) because although they were admitted at Jackson's underlying criminal trial, the prosecutor did not introduce them or ask that they be admitted at the evidentiary hearing. We disagree with this contention.
Section 1172.6, subdivision (d)(3), identifies what evidence may be considered at an evidentiary hearing. The Evidence Code governs admission of evidence at the evidentiary hearing, "except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) Further, the petitioner and prosecutor may offer "new or additional evidence" to meet their burdens. (Ibid.)
According to the rules of statutory interpretation, we must give the words in section 1172.6 their plain meaning. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) Also, we may consider whether a statute's plain meaning comports with its purpose and the statutory scheme as a whole. (Ibid.)
Applying these rules here, section 1172.6, subdivision (d)(3), is clear and unambiguous: At an evidentiary hearing under that section, the trial court may consider evidence admitted at the prior criminal trial. Unlike at the prior criminal trial at which evidence had to be admitted by the parties, section 1172.6 imposes no requirement on the prosecutor (or, for that matter, the defendant) to formally reintroduce previously admitted evidence. (Cf. People v. Letner and Tobin (2010) 50 Cal.4th 99, 152 [at trial, jury must base verdict solely on admitted evidence].) The only limitation on the use of previously admitted evidence is it must be admissible under current law. Jackson, however, makes no argument that the surveillance footage was inadmissible at his criminal trial or now, under current law. Therefore, the trial court properly considered the surveillance footage.
Jackson concedes that even if improper, the trial court's consideration of the surveillance footage would amount only to procedural error, the remedy for which would be remand for a new evidentiary hearing. Given that the remedy would be a new evidentiary hearing at which the surveillance footage would be admitted, it is certain the outcome would be the same: The trial court again would find Jackson ineligible for resentencing.
Moreover, allowing a trial court to consider previously admitted evidence at the evidentiary hearing comports with the statute's purpose of ensuring that a person's culpability for attempted murder is commensurate with that person's actions, while also ensuring that meritless petitions can be efficiently resolved. (People v. Lewis, supra, 11 Cal.5th at p. 971.) Where, as here, the events occurred decades ago, it often will not be possible or desirable for parties to introduce new or additional evidence. (§ 1172.6, subd. (d)(3).) Given the passage of time, the likelihood that new or additional evidence will be available-for example, that a new witness would come forward or a prior witness would have a different recollection-is slim. Thus, evidence admitted at the prior trial will often be the only evidence available. And given the ready availability of the evidence, reliance on it will lead to efficient resolution of petitions, either at the prima facie stage or at the evidentiary hearing.
III. Sufficiency of evidence of Jackson's intent to kill
Jackson next contends there was no "solid" evidence he intended to kill the four victims. We disagree with this contention because the evidence was both "solid" and sufficient to show that Jackson intended to kill the four victims.
Attempted murder requires the specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229.) Rarely is there direct evidence of intent to kill, so intent to kill (or express malice) may be inferred from the defendant's acts and circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 735 (Smith).) Motive for the crime also may be probative of intent to kill. (Id. at p. 741.)
As an initial matter, there was sufficient evidence Jackson was the lone shooter. The video shows that the shooter wore a red shirt and was left handed. Tarry testified that the shooter wore a red shirt and was left handed. Jackson was left handed, and he had gunshot residue on his left hand. Dunson and McDonald denied they were the shooter. Indeed, as the People point out, the jury found that Jackson was the shooter, as he was the only one of the three defendants against whom personal gun use allegations were found true.
Based on this finding, the People point out that the jury must have found Jackson guilty based on an express malice theory and not under the natural and probable consequences doctrine, as the instruction on that doctrine, CALJIC No. 3.02, applied only to aider and abettors and not to the direct perpetrator. Because Jackson was the only person against whom personal gun use allegations were found true, the jury must have found he was the direct perpetrator/shooter. Therefore, the trial court could have denied the petition at the prima facie stage, and the evidentiary hearing was unnecessary. As this matter nonetheless proceeded to an evidentiary hearing, we address the merits of Jackson's arguments about the hearing.
Next, there was more than sufficient evidence that Jackson intended to kill each victim. The evidence showed that the crimes were carefully planned and executed. Jackson's accomplice, Dunson, had someone who worked at Snooky's draw a layout of the establishment. On the day of the robbery, a getaway driver waited outside for the men to complete their crimes. The three men first entered Snooky's under the guise of being customers, there to drink and to play pool. This gave them the opportunity to observe who was in the bar. Then, when they reentered Snooky's, Jackson immediately shot Long, as the trial court found, to remove him as a threat and as a warning to the others. That Long survived his serious injury does not negate Jackson's intent to kill. Rather, firing a gun toward a victim at close range in a way that could have inflicted a mortal wound supports an inference of intent to kill. (Smith, supra, 37 Cal.4th at p. 736.)"' "The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind." '" (Id. at p. 741.)
There was also direct evidence Jackson intended to kill each victim. Throughout these events, one or more of the robbers threatened to kill the victims. When Tapia tried to escape, a robber asked if she wanted to die right there. When Tarry was unable to open the safe, Dunson repeatedly called for his accomplice-inferentially, Jackson-to come and" 'kill this motherfucker,'" and Jackson pointed a gun at Tarry's head. Dunson told Tarry that they would kill Long, Collier, and Tapia if Tarry didn't open the safe. And once the robbers had the money, Tarry heard one of them instruct Jackson to just"' "go back and kill them motherfuckers." '" Jackson tried to follow that instruction by shooting Tapia in the hip as she lay on the floor in a fetal position, shooting Collier in the arm, and shooting at but missing Tarry. As we have said, Jackson's poor marksmanship does not negate his intent to kill. (See, e.g., People v. Lashley (1991) 1 Cal.App.4th 938, 945; see also People v. Cardenas (2020) 53 Cal.App.5th 102, 120 [shooting victims' feet and ankles could show mere intent to frighten them or intent to kill with "poor aim"]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [firing six shots at truck's occupants from about 25 feet evidenced intent to kill].)
Other than to mischaracterize this evidence as raising a mere "suspicion" he intended to kill the victims, Jackson takes issue only with the trial court's reliance on Smith, supra, 37 Cal.4th 733. The trial court cited Smith to support the general proposition that motive and how a victim is shot are relevant to a defendant's intent to kill. Jackson appears to argue that Smith is not on point because the defendant in that case fired a single gunshot into a car containing two people, both in the line of fire. The Smith defendant was properly convicted of two attempted murder counts. However, our California Supreme Court later observed in People v. Perez, supra, 50 Cal.4th at page 231, that Smith does not "stand[ ] for the proposition that to the extent shooting a single bullet at a group of persons endangers them all, the shooter may be found guilty of attempted murder of every individual in the group on that basis alone."
It is unclear what Jackson's point is, given that, unlike the Smith defendant, Jackson did not fire one shot at multiple victims. He fired at least four times, one shot for each victim. He shot Long in the hip, shot Tapia in her hip, shot Collier in his arm, and shot at Tarry's head. Jackson thus made four direct but ineffectual acts of shooting to kill, one act for each of the four victims.
This evidence was more than sufficient to establish Jackson intended to kill Long, Collier, Tapia, and Tarry. Accordingly, he was ineligible for section 1172.6 relief.
DISPOSITION
The order denying Mershawn Jackson's Penal Code section 1172.6 petition is affirmed.
We concur: LAVIN, J. EGERTON, J.