Opinion
A167166
07-23-2024
THE PEOPLE, Plaintiff and Respondent, v. DARRELL JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 68930C)
STEWART, P.J.
Darrell Jones appeals an order denying his petition to vacate his 1980 murder conviction on the ground that he was convicted of murder under a theory that is no longer valid under the amended murder statutes and is entitled to relief under Penal Code section 1170.95 (renumbered as section 1172.6). The murder was committed while Jones and three confederates, all armed, attempted to commit robbery at a weekly bingo game in a Catholic school cafeteria. It was unclear from the evidence whether Jones or one of the others shot the fatal bullet. Jones was convicted of first degree murder under a felony murder theory. Division Four of this Court affirmed Jones' and the other defendants' convictions on direct appeal.
Undesignated section references are to the Penal Code.
In 2019, Jones filed a petition under section 1172.6 asserting that under the amended murder statutes he could not be convicted of murder under a felony murder theory without a finding that he was a major participant in the robbery and acted with reckless indifference to human life. The trial court initially denied Jones's section 1172.6 petition at the prima facie stage, and on his appeal from that decision we reversed, directing the court to vacate its prior order, issue an order to show cause and conduct a hearing under section 1172.6, subdivision (d)(1).
On remand, after multiple rounds of briefing and the submission of new evidence, the trial court issued a 33-page opinion denying Jones's petition. Based on the record of the 1980 trial and the new evidence, the court concluded that the People proved beyond a reasonable doubt that Jones was a major participant in the robbery and acted with reckless indifference to human life and is therefore guilty of murder under the amended murder statutes.
On appeal, Jones raises two issues. First, he contends there was insufficient evidence to support the trial court's determination that he acted with reckless indifference to human life. Among other things, he faults the trial court for giving insufficient weight to the evidence indicating he was 22 years old when he participated in the crime and to his expert's declaration attesting to the incomplete neurological development of individuals until they reach the age of 25. Second, he argues the trial court prejudicially erred by admitting the new evidence submitted by the People consisting of a preliminary hearing transcript involving another contemporaneous murder case.
We conclude that substantial evidence supports the trial court's determination that Jones acted with reckless indifference to human life without consideration of the evidence proffered at the preliminary hearing in the other case against him. Because the court's consideration of the latter evidence was not prejudicial, we need not reach Jones's claim that it was error to admit that evidence.
BACKGROUND
I.
Procedural Background
In October 1979, Jones, Tommy Lee Powell and Clarence Brown were charged with murder (§ 187), assault with a deadly weapon (§ 245, subd. (a)), burglary (§ 459) and attempted robbery (§§ 664, 211). Each count included gun-related allegations (§ 12022, subd. (a) [commission of felony while armed]; §§ 1203.06, 12022.5 [personal use in commission of a felony]) and an allegation of infliction of great bodily injury (§ 12022.7). Jones pled not guilty to all the charges and denied all the additional allegations.
The case was tried from March 28, 1980, through May 27, 1980, when the jury returned verdicts finding Jones and the other defendants guilty of all charges and finding the firearm use and great bodily injury allegations true. The trial court sentenced each defendant to a prison term of 25 years to life.
Jones and the other defendants appealed, and this court affirmed the judgments.
II.
Summary of Trial Evidence
The trial lasted about 40 days, with testimony spanning about half that time. The People called 20 witnesses, including several eyewitnesses to the event, such as the nun who ran the bingo game and a man who sustained a gunshot wound in his leg. Several law enforcement officers involved in the investigation testified, as did a ballistics expert, the forensic medicine expert who examined the murder victim, and other witnesses. Powell testified and defendants called six additional witnesses.
Sister Diana Marie, the principal of St. Louis Bertrand Catholic School in Oakland, California, oversaw weekly bingo games held in the school cafeteria to raise money for the school. She was present and oversaw the game on February 6, 1979, when the shooting occurred. An "Early Bird" game, for those who came early to eat a meal served before the regular game, began at 7:15 p.m. The regular games began at 7:30 p.m. Sister Diana Marie served as the "caller" for the Early Bird game, and after the volunteer caller arrived and began calling the regular games, she came down and began clearing the tables of plates and cups. She was on her way to the kitchen when she heard a "loud bang" at the entrance door and observed four men who had entered the cafeteria and were standing near the entrance holding guns. Two had masks on. There were about 200 people in the room.
Powell was holding a semi-automatic rifle and in a loud voice said, "Freeze, this is a stick-up." Other witnesses heard the demand, "Give me the money. Who's got the money?" and "[s]omething about everybody hit the floor," shortly before the shooting began. The four men "took a stand in a shooting position as if they were in combat." They "jumped into a stand, all four at the same time." The rifle was "pointing toward the ceiling."
There was a short pause and "then all four guns [began] to shoot." One man had a revolver in his hand that was pointed "straight ahead from where [Sister Diana Marie] was standing." When she first saw him, he was also in a stand position holding his gun pointing upward. A third person was in a similar shooting position. A fourth, whom she identified as Darrell Jones, also had a handgun or revolver, and was standing in a position similar to the other two. Jones had a silk stocking over his face.
Powell was shooting his rifle. "[H]is gun was the biggest and shooting the fastest and shells were flying back." She "observed the gun moving in a down-up position, and as it was moving down and up his body was actually turning counter-clockwise." The rifle was not pointed towards the ceiling all the time. The other three men were firing so that "all four [guns were] being shot at the same time." Jones's handgun was pointed upward, as were those of the other two men with revolvers, when they were firing. She saw Jones fire his weapon. The weapons were going off for "two or three minutes. It seemed like forever, but it was a very short time."
Witnesses' testimony about the length of time during which the men were shooting varied, though most agreed that it seemed like a long time.
When the guns were being fired, she noticed the cement of the ceiling blocks was "pulverized, powdered," and the room was filled with dust that fell onto the people and the floor. A heater that was suspended from the ceiling had a bullet hole in it and there was a bullet hole in the far wall. Two beams were damaged.
Rose Marie Thomas testified that the shooting "echo[ed] in the cafeteria." It was noisy and dusty. "The plaster, everything was all flying, it was all, you know, the chips were hitting us." Thomas and her cousins, who were under a table, curled around her elderly aunt, trying to protect her. Then Thomas heard a thud. A middle-aged lady had fallen to the floor a couple of feet away from her. The lady was "heavy-set" and had fallen, facedown on the floor, "[h]ard, very hard." Before that, the lady had been standing and was about to sit down at her table. Thomas looked over at the lady, whose name was Mrs. Taylor, and Taylor said, "I've been hit, I've been hit." The bullets went off for what "seemed like forever," and "[i]t just seemed like it was never going to stop."
When the firing stopped, Jones left the group and approached Sister Diana Marie. He had the gun in his hand as he approached. He got close and was standing right in front of her. He had a nylon stocking on his face. He said, "Gimme the money." She responded, "I have none. It's been disbursed." And then he "turned and walked away." When he returned to the group, he "said something to [the others, and] they immediately turned and walked out the door."
Sister Diana Marie stayed in place for about a minute, frozen and "just trying to breathe." When she realized the men had left, she went to the doors and locked them from the inside. She went to the kitchen and asked someone to go call the police immediately. As she returned from the kitchen area, she saw most of the people had remained on the floor, laying or crouching under the tables.
Thomas testified that there was a good crowd in the room. After the shooting, she saw that people had flecks or scratches from the plaster. There was bullet damage in the overhead heater above where they had been sitting. The room was dusty from the plaster and everything flying, and the wall near the dais where the caller had been sitting had a big hole in it. Her cousin's bingo card had a "round hole," "a perfect hole right through a number." It had been sitting on a little wooden rack where you put your cards so you can see them.
Many of the people in the room were elderly and either had not been able to get on the floor or needed assistance to get up from the floor.
As Sister Diana Marie proceeded down the main aisle, she "had to stop because Dorothy Taylor was there on the floor in the aisle." She wasn't moving. Several women standing around Taylor said," 'Sister she's hurt.'" Sister Diana Marie told Taylor she would send help to her. But there was no movement, Taylor's eyes were open and it was unclear whether Taylor understood her. She left Taylor because there were people still on the floor and she didn't know who else was hurt. She went to the microphone and tried to calm the people, telling them she had sent someone to call the police and an ambulance and asked them to help her locate" 'all those who are injured.' "
Taylor, who was 47, died of shock and hemorrhage resulting from a gunshot wound to her upper back, just below the base of her neck. The bullet that killed her was a .38 caliber or .357 magnum and did not come from the rifle. It travelled from back to front at an upward angle of 45 percent, fractured her vertebra, cut her spinal cord in half, caused hemorrhage into both chest cavities and the sac surrounding the heart, perforated her right lung and heart and fractured a rib.
Harry Hutchinson attended the bingo games not to play but to help out with tasks like cleaning tables, serving coffee and food, calling numbers and distributing money. When the shooting started, he got on the floor. After he got up, he saw he had blood coming from his leg and a small hole in his clothing about an inch below the top of his leg. According to the surgeon who treated him, the wound was "about three finger lengths below the groin" in "the mid-part of the leg overlying the artery." He performed surgery, determined there was no damage to the blood vessel and left the bullet or fragment in Hutchinson's leg to avoid damage that could be caused by removing it.
The officer who examined the scene after the shooting collected 13 .30-caliber expended cartridges from a rifle, necklace fragments from floor sweepings, bullet fragments from the floor of the cafeteria, an expended bullet from one wall in the cafeteria at about 8 feet 9 inches above the floor, another expended bullet retrieved by a different officer, a copper jacketed bullet retrieved from a different wall at 5 feet 10 inches above the ground and various fragments of lead and metal and other material swept from the floor of the cafeteria.
A firearms examiner for the Oakland Police Department testified that the rifle was a military weapon, a carbine .30 caliber that is fed bullets by a magazine that fits into it. It is a semi-automatic weapon, meaning it automatically ejects the cartridge when it fires and is cocked and ready to fire again, but the trigger must be pulled to fire each time. The markings on all 13 of the cartridges matched those from the cartridges of the bullets he had test fired from the rifle, and among the bullet fragments with markings that were found on the floor, eight matched or were consistent with the test-fired rifle bullets. The bullet that killed Taylor was a .38 caliber or a .357 magnum and did not come from the rifle. Slugs retrieved from the east wall and the floor, were .38 caliber and came from guns other than the rifle. The bullet from the south wall was copper jacketed and .30 caliber and the markings on it were consistent with those on the bullets test fired from rifle.
Harvey Sewell, Jr. testified that Jones, Brown and Powell were with him at his uncle's house in Oakland on the afternoon of the St. Bertrand's shooting. Brown spoke about a tommy gun and a chopper and said Jones was going to carry one, Powell objected to Jones carrying the gun and said he would carry it, Brown and Powell argued and Jones said there was no sense for them to be arguing. The three left Sewell's uncle's house at about 6:30 or 7:00 p.m.
Later that evening, Powell, Jones and Brown returned. Powell said, "oh man, did you hear that sound? You know, I couldn't stop. I couldn't stop." Jones said, "something like, like that wasn't supposed to happen, something like that." A little later, Chris Hunt arrived. Sewell saw Powell change his clothes and clean a gun. Sewell also saw Jones wiping off the gun later that night.
There were discussions and testimony outside the presence of the jury about evidence, most but not all of which was excluded, indicating Hunt was or might have been the fourth gunman at the church.
III.
Petition for Relief Under Section 1172.6, Intervening Appeal and Subsequent Trial Court Decision
Jones filed his section 1172.6 petition in January 2019. (People v. Jones (Feb. 11, 2021, A159422) [nonpub.].) He alleged that, although he was convicted of first degree murder, he was not the actual killer, did not intentionally aid and abet the murder, was not a major participant in the underlying felony and did not act with reckless indifference to human life, and that the murder victim was not a peace officer engaged in his or her duties. (People v. Jones, supra, A159422.) After the trial court denied the petition, finding based on the trial record that Jones was a major participant and acted with reckless indifference to human life, we reversed and remanded for the trial court to issue an order to show cause, allow the parties to present new evidence, and hold an evidentiary hearing if requested. (Ibid.) We held that in enacting section 1170.95 (the predecessor to current section 1172.6), "[t]he Legislature contemplated that the trial judge would engage in factfinding, but only after an order to show cause is issued, an evidentiary hearing held, and an opportunity provided for either party, at that hearing, to present new evidence in addition to that contained in the record of conviction." (People v. Jones, supra, A159422.)
The trial court complied with our directive, issuing an order to show cause, allowing the parties to supplement the record with new evidence and holding a hearing and placing the burden of proof on the People to prove beyond a reasonable doubt that Jones was guilty of murder under California law as amended by changes to sections 188 and 189. As the trial court recognized, there was "no controversy that Petitioner was convicted of first degree murder under a felony murder theory," and whether he could still be convicted of murder under current law "hinges on whether [he] was a major participant in the underlying robbery and acted with reckless indifference to human life." (Fn. omitted.)
Shortly before the trial court issued its decision, our high court held a defendant convicted of murder before the enactment of section Senate Bill No. 1437 (2017-2018 Reg. Sess.) could seek relief under section 1172.6 based on the assertion that he did not meet the major participation and reckless indifference elements the Legislature incorporated into felony murder, placing the burden on the People to prove" 'beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill 1437." (People v. Strong (2022) 13 Cal.5th 698, 708709 (Strong).) Further, resolving a conflict among the Courts of Appeal, the court held that prior findings that those elements were met made before the decisions People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) do not preclude relief under section 1172.6. (Strong, at p. 720.) Thus, in determining whether the People have met their burden to establish the major participation and reckless disregard elements beyond a reasonable doubt, a court must evaluate the evidence in light of the current understanding of those elements as articulated in Banks and Clark. (See Strong, at p. 720.)
Applying the standards of Banks and Clark to the evidence in this case, the trial court found that the People had met their burden to prove both of the new felony murder elements and was therefore guilty of murder under current law. The court considered the declaration Jones proffered of Dr. Laeeq Evered, Psy.D., discussing the "science of adolescent brain development and how it affects judgment and behavior as it applies to the legal system." The court found this evidence, while providing "considerable insights into adolescent brain development in general," was "constrained to generalities." Dr. Evered did not meet or evaluate Jones, and there was "no evidence concerning [Jones's] individual brain development or any other factors that Dr. Evered repeatedly stressed were relevant" in assessing Jones's culpability under a Banks/Clark analysis. The court thus found the evidence "largely irrelevant" and afforded "little weight" to it.
The court also considered the additional evidence proffered by the People from a case involving Jones's armed robbery and murder the day before the bingo game robbery. Specifically, the People offered the transcript of a preliminary hearing in another criminal case against Jones (Alameda Superior Court No. 68289A) in which a witness described Jones shooting a store security guard at point blank range in the back of the neck during the robbery of a liquor store. The court rejected Jones's argument that the testimony was inadmissible and stated it was "exceptionally relevant" to whether Jones "was subjectively aware of and willingly involved in the violent manner in which the [attempted robbery and shooting at St. Bertrand's school was] committed, and whether he consciously disregarded the significant risk of death his actions created." The armed robbery in which Jones shot and killed a person the day before the bingo robbery confirmed the court's finding that 22-year-old Jones "would understand the dangers posed in that second robbery."
DISCUSSION
As we have indicated, Jones raises two challenges to the trial court's decision, first, that there was insufficient evidence to support the trial court's conclusion that he acted with reckless indifference to human life, and second, that the court erred in considering the evidence admitted against Jones in the preliminary hearing for the other robbery/murder case in which he was later convicted.
Jones does not challenge the trial court's finding that he was a major participant in the bingo robbery attempt.
A. Substantial Evidence Review
In reviewing a denial of a petition for relief under section 1172.6, we decide whether there is substantial evidence-that is, evidence of reasonable, credible and solid value-from which a reasonable trier of fact could find the relevant facts beyond a reasonable doubt. (Clark, supra, 63 Cal.4th at p. 618; People v. Nieber (2022) 82 Cal.App.5th 458, 476; People v. Mitchell (2022) 81 Cal.App.5th 575, 591 (Mitchell).) We view the facts in the light most favorable to the trial court's decision, presuming the existence of every fact that can reasonably be deduced from the evidence, whether direct or circumstantial. (Mitchell, at p. 591.) We do not make credibility determinations or resolve evidentiary conflicts. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
B. Reckless Indifference Standard
"Reckless indifference to human life has a subjective and an objective element. [Citation.] 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.' [Citations.] 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.)
In Clark, our high court provided guidance on the meaning of reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 616-623.) There, the court explained that reckless indifference to human life is not merely the intent to commit a dangerous felony; rather, it requires "a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Id. at pp. 616-617.) Regarding the interplay between the subjective and objective elements, the court explained, "If the only relevant aspect of recklessness were the defendant's subjective awareness of his or her disregard of risk to human life, one might argue that a defendant's good faith belief that he or she was not undertaking actions involving a substantial and unjustifiable risk to human life would be sufficient to negate a conclusion of reckless indifference to human life under Tison [v. Arizona (1987) 481 U.S. 137 (Tison)]. According to this view, evidence of any effort by defendant to minimize the risks of violence could possibly be sufficient to rebut a conclusion of defendant's subjective awareness of engaging in activities risky to human life. But under the Model Penal Code definition, although the presence of some degree of defendant's subjective awareness of taking a risk is required, it is the jury's objective determination that ultimately determines recklessness. Therefore, it would be possible for the defendant to have engaged in apparent efforts to minimize the risk of violence but still be determined by the jury to have been reckless, given all the circumstances known to defendant surrounding the crime. Therefore we conclude that a defendant's good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life under Tison." (Id. at p. 622.)
The court in Clark identified some "case-specific factors" courts have considered in upholding determinations that non-shooter defendants who aided and abetted commercial robberies acted with reckless indifference to human life. It prefaced the list of factors with the observation that" 'no one of these considerations is necessary, nor is any one of them necessarily sufficient.'" (Clark, supra, 63 Cal.4th at p. 618.)
C. Application of Clark Factors to Trial Evidence
We begin with the observation that the facts of this case are unusual compared to those of other cases addressing the felony murder special circumstances. In most of the cases that have discussed the major participant and reckless indifference elements, there was an intentional killing by one (or more) of the participants in the felony and the issue was whether the other defendants recklessly disregarded the potential for violent acts by their murderous cohorts. (See, e.g., Clark, supra, 63 Cal.4th at pp. 534-535; Banks, supra, 61 Cal.4th at pp. 794-796; In re Scoggins, supra, 9 Cal.5th at pp. 671-672; People v. Henley (2022) 85 Cal.App.5th 1003, 10081010; Mitchell, supra, 81 Cal.App.5th at p. 580.) Here, there was no evidence that any of the four robbers intentionally killed Taylor, and it is unclear which of the three participants who used handguns fired the fatal bullet. The recklessness issue is not whether Jones recklessly disregarded the risk that a cohort would intentionally kill; rather the question is whether Jones was reckless with regard to the risk of an unintentional killing by himself or any of his cohorts, posed by the way they committed the attempted robbery. We apply the Clark analysis and findings to the specific facts and circumstances in the case before us.
The first factor identified in Clark is "knowledge of weapons, and use and number of weapons." (Clark, supra, 63 Cal.4th at p. 618.) We quote our high court's discussion of this factor in pertinent part:
"The mere fact of a defendant's awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. (Banks, supra, 61 Cal.4th at p. 809.) At the same time, the high court in Tison found significant the fact that Ricky and Raymond Tison 'brought an arsenal of lethal weapons into the Arizona State Prison,' and Raymond 'guarded the victims at gunpoint while they considered what next to do.' (Tison, supra, 481 U.S. at p. 151.)
"A defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life. For example, the Texas Court of Criminal Appeals upheld a defendant's death sentence against a challenge based on Enmund [v. Florida (1982) 458 U.S. 782] in a case in which the defendant fired at individuals while attempting to flee from an armed robbery, even though no evidence showed whether it was defendant or one of his cohorts who had shot the victim. (Selvage v. State (Tex.App. 1984) 680 S.W.2d 17, 22.) The court concluded that '[a]ppellant's action indicates a reasonable expectation that the death of the deceased or another would result.'" (Clark, supra, 63 Cal.4th at pp. 618619.)
In this case, as the trial court observed, Jones "was certainly aware that a gun would be used in the felony. Actually, [he] was aware that four loaded firearms would be employed in the robbery, all of which, including [his] discharged simultaneously around the room for a seemingly interminable amount of time." Jones concedes he "knew that firearms would be used in the commission of the planned robbery," and that "each of his three co-defendants was armed, and that he personally used a gun during the attempted robbery." We agree with the trial court that "[t]his scenario is more than mere awareness that [a] gun will be used, and is definitely more than the situation in Clark, where evidence showed that the crime was to involve only one gun without any bullets in it, that this gun was carried by an accomplice and not defendant, and that the gun had ultimately been loaded with only one bullet."
We would add that Jones was well aware that one of the weapons was a semi-automatic rifle with a loaded magazine.
We also agree that Jones's "use of the firearm under such circumstances weighs heavily against him. Four gunmen wildly discharging their weapons in a room filled with 200 people is unquestionably reckless. While there is plenty of evidence indicating that the robbers were not attempting to actually shoot any of the bingo players and were rather generally aiming at the ceiling, they handled their weapons in such a manner that one patron was struck in the back, another in the leg, and other areas and items in the room that are decidedly not the ceiling were left with bullet holes. Whether intentional or merely negligent, these actions are clearly indicative of a reckless indifference to human life." The evidence fully supports the trial court's description.
Three of the other four factors identified by our high court in Clark also weigh in favor of the trial court's finding. Regarding the second factor, physical presence at the crime and opportunity to restrain the crime or aid the victim, as the trial court observed, Jones "was present during the entirety of the offense," at the planning phase at the house, at the shooting and in evading apprehension afterwards.
As our Supreme Court stated in Clark, "Proximity to the murder and the events leading up to it may be particularly significant where, as in Tison, the murder is a culmination or a foreseeable result of several intermediate steps ....In such cases, . . . 'the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.'" (Clark, supra, 63 Cal.4th at p. 619.) Further, the evidence indicates Taylor was shot, said she'd been hit, and immediately fell to the floor with a loud "thud." Whether Jones was aware of Taylor's situation is not entirely clear; even a loud thud might not be heard by an individual whose ears were ringing from shooting his own gun and being near others who were shooting as well. But the testimony indicated she was a large woman, had been standing until she was shot and then she fell face first onto the floor. One would expect that some of gunmen who were standing and shooting would have noticed the movement of her falling and hitting the floor, if not the sound. If he did see her fall, Jones could have urged the other shooters to stop, attempted to provide aid or at least inquired about Taylor's situation. Even if he was not aware Taylor had been shot, there is no evidence that after the shooting stopped, he made any effort to ascertain whether anyone had been injured. Far from concerning himself with whether anyone had been hurt or killed, Jones instead approached Sister Diana Marie and told her to give him the money, and when she said she had already disbursed it, turned around and retreated with the other gunmen, avoiding apprehension. This factor does not favor Jones; it demonstrates a lack of concern, or in other words, indifference, to the lives of the people attending the bingo game.
There was evidence that Jones or one or more of his cohorts saw or heard Taylor fall and understood she had been shot. When they arrived back at the home of Seward's uncle after the shooting, Seward overheard Jones say, "something like, like 'that wasn't supposed to happen.' "
The fifth Clark factor addresses "defendant's efforts to minimize the risks of violence." Here, because Jones was involved in the planning and the robbery itself, he had ample opportunity to urge his cohorts to bring fewer guns or no guns at all, or to use the guns merely as a threat. He could have suggested they display an unloaded gun or guns, or that no shots be fired or that at most one of them fire a single warning shot away from any of the people present. There is no evidence that Jones attempted to persuade his cohorts to reduce the violence in a manner that would present less risk. The fifth factor thus further supports finding reckless indifference.
Jones suggests otherwise, emphasizing that the gunmen were generally aiming at the ceiling, which he describes as "strong support for the inference that [they] had an affirmative plan not to hurt anyone." Further, disputing the trial court's description of the event as" 'four men wildly discharging their weapons in a room filled with 200 people,'" he contends the evidence showed Powell was "unable to control his weapon, not that he was actually firing into the crowd, either intentionally or accidentally." And as to the facts that" 'one patron was struck in the back, another in the leg, and other areas and items in the room that are decidedly not the ceiling were left with bullet holes,'" he contends "[t]he clear implication of this finding is that although the men were 'generally' aiming at the ceiling, some of the bullets hit parts of the room that were below the ceiling." Further, Jones contends the evidence does not show any of those bullets was a direct hit as opposed to having been "caused by a ricochet."
Jones's characterization of the evidence, which would have us draw inferences in his favor, such as that none of the many bullets fired directly hit anyone or anything other than the ceiling and (implicitly) that ricocheted bullets could not have been anticipated or did not pose much risk, is not supported by the evidence and reflects a misunderstanding of the substantial evidence standard. Substantial evidence review requires us to view the evidence in the light most favorable to the trial court decision and to draw all reasonable inferences in its favor, not in favor of the defendant. (People v. Nieber, supra 82 Cal.App.5th at p. 476.) Thus, we do not infer that all the bullets that hit below the ceiling were ricochets. Moreover, the evidence shows that not all such bullets were the product of Powell's failure to control the rifle and that ricochets were readily foreseeable and that they did pose a serious risk of death.
Contrary to Jones's assertion, the evidence does not support the inference that all the bullets that hit people and items in the room were ricochets or the result of Powell's inability to control the rifle. The evidence indicated the guns were generally, but not consistently, aimed upward or toward the ceiling. Witnesses testified that the rifle was moving up and down as Powell was shooting it. Moreover, there were bullets from the other guns that do not appear to have been ricochets. The bullet that killed Taylor does not appear to have been a ricochet since it entered her back just below the base of her neck and traveled through her body at a velocity sufficient to sever her spinal cord, pierce her lung and heart, fracture a rib and stop just short of exiting from the front of her body, which a witness described as "large," near her collar bone. Similarly, the bullet that lodged in the building's East wall entered at a height of 8 feet 9 inches and penetrated deep enough that it had to be removed from the other side of the wall and was difficult (requiring a hammer, a chisel and various other tools) to remove. We infer from this evidence that it was traveling at a high velocity more characteristic of a direct hit than a ricochet. Likewise, the bullet that made a round hole through a bingo card sitting in a rack on one of the tables seems more likely to have been a direct hit than a ricochet.
Further, even assuming most of the bullets that hit at below ceiling level, such as the one that lodged in Hutchinson's thigh above his femoral artery, were ricochets, the risk of death from ricocheted bullets in the circumstances here was itself very high, given the number of bullets fired, the number of people in the room, and the fact that many of them were on the floor and others, who were elderly and infirm, remained seated at the bingo tables. Bullets fired at the ceiling could ricochet and hit people on the floor or at the tables. Indeed, Mr. Hutchinson, who was on the floor and hit by a bullet that may well have been a ricochet, could easily have died had the bullet penetrated just a little deeper into his thigh and torn his femoral artery, something the treating physician was initially concerned about. It was luck, not planning, that he was not more seriously injured or killed.
Even accepting that the movements of the semi-automatic rifle used by Powell resulted from his inability to control that weapon, there was testimony that all four gunmen were firing at the same time and at least some of the bullets that hit below ceiling level, including the one that killed Taylor and the one that hit the east wall, were .38 caliber and thus were fired from the other guns, not the rifle.
Jones's suggestion that pointing the guns mostly toward the ceiling shows an effort to reduce the risk of violence does not undermine the trial court's finding that on balance this factor weighs against him. (Cf. Clark, supra, 63 Cal.4th at p. 622 [evidence that defendant made some effort to minimize risk of violence does not preclude finding of reckless disregard].) As the court noted in Clark, there was evidence in Tison that the brothers had made some effort to minimize risk by agreeing in advance with their father that no one would be hurt. (Clark, at p. 623.) But there was also evidence that they had "advance notice" of the possibility their father would kill because, "in response to one of the victim's plea not to be killed, the father stated that he 'was thinking about it,'" (id. at p. 621) and the court held that they could be found to have "exhibited reckless indifference to human life." (Id. at p. 623.)
Similarly, Jones contends that pointing the guns mostly toward the ceiling was an effort to reduce the risk, but when all the circumstances are considered the risk of killing someone remained intolerably high. At least three of the men, including Jones, spent time together planning the robbery. All four met in the parking lot. They entered the cafeteria near the beginning of the regular games when there were likely to be more people in attendance. The approximately 200 bingo participants who were present ranged from middle aged to elderly, such that not all of them would easily be able to get on the floor and under the tables (and even for those who did, as it turned out, they were not all safely out of harm's way). The four gunmen assumed military stances, announced a "stick-up," told people to get on the floor and then quickly began shooting all at once for a period that, while relatively short (seconds to minutes), was long enough for them to fire many rounds.
During the planning, Jones could have suggested alternatives to this scenario like using fewer guns, having them unloaded or shooting a single warning shot carefully directed away from any people. (See Clark, supra, 63 Cal.4th at pp. 621-622 [re efforts to minimize violence, including use of unloaded or minimally loaded firearms].)
Further, assuming, as Jones asserts and the evidence suggests, Powell was having a difficult time handling the rifle, Jones could have intervened and suggested that he stop shooting to minimize the wild and unpredictable movements of that gun. There is no evidence that he did any of these things. The fifth factor, too, supports the trial court's determination that Jones exhibited reckless indifference to human life.
Finally, the third Clark factor, the duration of the crime, or more particularly, "the duration of the interaction between perpetrators and victims" (Clark, supra, 63 Cal.4th at p. 620), was relatively short. But our application of this factor requires consideration of our Supreme Court's explanation, "Courts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant. The Tisons, the high court noted, 'guarded the victims at gunpoint while [the group of perpetrators] considered what next to do.' (Tison, supra, 481 U.S. at p. 151.) Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life." (Clark, at p. 620.)
In this case, noting that the robbery was intended to be "a quick in-and-out job," the trial court held this factor weighed in favor of Jones. But the Clark court's discussion suggests this analysis is too facile. It is true that the attempted robbery-from the four gunmen's entrance with a loud bang, assumption of a military stance, announcement of a stick up and directive to the bingo participants to get on the floor, through the two or more minutes of shooting, Jones's approach to Sister Diana Marie, his demand for the money, her statement that it had already been disbursed, and his retreat to the entryway, conversation with his cohorts and their collective departure-was probably 15 minutes or less altogether. But during that period, the 200 bingo participants were effectively held hostage, told to get on the floor, and felt compelled to remain there until minutes after the gunmen departed. While the restraint was not particularly long, it involved seemingly interminable minutes of shooting by four gunmen firing four weapons simultaneously into a room of 200 people, posing an extreme risk of death. While risk of being shot was most extreme during the minutes of shooting, it continued past the point when the shooting ended, up until the gunmen left the building with their weapons. In these circumstances, we cannot agree with the trial court's holding that this factor "weighs in Petitioner's favor" under the circumstance of this case. The degree to which it weighs against him is a matter we need not belabor because the totality of the circumstances strongly supports the trial court's determination that Jones exhibited reckless indifference to human life. (See, e.g., People v. Owens, supra, 78 Cal.App.5th at p. 1024 [robbery was "not prolonged" but nonetheless posed particularly high risk of violence because it involved multiple robbers with loaded firearms taking over bank during business hours when about 20 people were present].)
D. Additional Evidence
As the trial court noted, both parties urged it to consider additional evidence.
1. Dr. Evered's Declarations
In Jones's case, he proffered a stipulation that he was 22 years and 5 months old at the time of the offense and that his cohorts in the crime were then 25, 26 and 31 years old. He also submitted declarations from Dr. Laeeq Evered, a clinical and neuropsychologist, discussing the neurological development of young people.
Evered's report, attached to his first declaration, states in summary that based on hard science (brain imaging studies) and social science, full brain development generally does not occur before a person reaches the age of 25 or older and that the limits on brain development from age 10 until age 25 (which he refers to as "adolescence") generally correlate with lower executive function and higher emotional activation. "Thus, while an adolescent may have generally good control over motor, language, and basic attention functioning; they have significantly greater challenges in the areas of judgment, self-reflection, and, most critically, control over their emotional systems." "Adolescents are much more likely than individuals over the age of 25 to over-accentuate reward and undervalue risk." '[T]he reduced executive control results in the individual both underappreciating risks and not considering alternative actions." "[A]dolescents have much higher proclivity to not consider their actions with respect to risk or potential consequences," and they "tend to prioritize immediate reward and not consider risk." Individuals below the age of 25 tend to respond impulsively without understanding the consequences of their actions.
Females tend to have earlier brain development than males in these respects and thus to be better at impulse control and reduced risks. Besides gender, factors that may affect brain development in adolescents include socioeconomic status, attention deficit hyperactivity disorder, intellectual disability and post-traumatic stress disorder.
In a supplemental report produced in response to questions posed by the prosecuting attorney, Dr. Evered stated it is not the case that no individual under the age of 25 can appreciate or consciously disregard the grave risk of death his actions pose. "The ability to appreciate risk improves over time, with greater ability as the adolescent matures. However, it is individually based and dependent upon both biological and environmental factors ...." The ability of an "adolescent" to appreciate risk "depend[s] on the individual and the specific situation." "[T]here is a range of ability in inhibiting [one's behavior] for social reasoning across individuals, age ranges and situations[,]" and adolescents' abilities to do so are affected by environmental factors and drug use.
Dr. Evered did not meet with or evaluate Jones and was not provided information about his offense. It would not be possible for Dr. Evered to assess the timing and trajectory of Jones's brain development without a history of neurocognitive testing and neuroimaging throughout his development.
The trial court reviewed Dr. Evered's reports which, while they "provide considerable insights into adolescent brain development in general," he found "largely irrelevant in determining [Jones's] culpability under a Banks/Clark analysis." This was so because the insights the reports provided "are constrained to generalities" and "[t]here is no evidence concerning [Jones's] individual brain development or any other factors that Dr. Evered repeatedly stressed were relevant in determining that question." Thus, the court concluded, "[t]here is no evidence that [Jones's] individual development had any actual influence on any of the major participation/reckless indifference factors discussed above." The trial court criticized our Division Three colleagues' decision in In re Moore (2021) 68 Cal.App.5th 434 (Moore) as" 'hav[ing] suggested the defendant's youth, by itself, was the decisive factor in determining whether the defendant acted with reckless disregard for human life.' "
We cannot agree with the trial court's criticism of Moore, in which our colleagues carefully evaluated the Clark factors before concluding that those factors, coupled with the habeas petitioner's youth at the time of the offense, did not support a finding of reckless indifference to human life. (See Moore, supra, 68 Cal.App.5th at pp. 452-453.) Moreover, Moore addressed a petitioner who was 16 years old at the time of the offense, and the court relied on cases from the United States Supreme Court recognizing the immaturity of children and their lack of"' "experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them" '" and, accordingly, their reduced culpability. (Id. at p. 453, quoting J.D.B. v. North Carolina (2011) 564 U.S. 261, 272, as well as Miller v. Alabama (2012) 567 U.S. 460, 476 and Graham v. Florida (2010) 560 U.S. 48, 76.) We do not read Moore as establishing that even a juvenile is necessarily unable in all circumstances to appreciate the risk that his conduct poses to human life. Rather, the Moore court looked at the Clark factors, many of which did not support a finding of reckless disregard, and concluded that those factors, on balance, coupled with the petitioner's youth at the time of the offense, did not establish reckless disregard. In any event, we agree with Moore and the other cases Jones cites holding that, in addition to the Clark factors, courts should consider evidence of a petitioner's youth and immaturity at the time of the offense, if offered, in evaluating whether the mental state element now required for felony murder can be established.
Most of the cases Jones cites involved juveniles, whose immaturity and lack of judgment are likely to be more obvious and pronounced than with young adults such as Jones. Further, in those cases that decided the issue (as opposed to remanding for an evidentiary hearing), the petitioners presented evidence not only of their age at the time of the crime, but also of their immaturity, susceptibility to peer pressure or other factors such as childhood trauma that bear on cognitive and emotional maturity. (See People v. Ramirez, supra, 71 Cal.App.5th at pp. 990-991; People v. Keel, supra, 84 Cal.App.5th at p. 562; In re Harper, supra, 76 Cal.App.5th at pp. 471, 472.)
Moore, supra, 68 Cal.App.5th at p. 439 (16 year old); People v. Harris (2021) 60 Cal.App.5th 939, 944 (17 year old); People v. Ramirez (2021) 71 Cal.App.5th 970, 975 (15 year old); People v. Keel (2022) 84 Cal.App.5th 546, 550 (15 year old); In re Harper (2022) 76 Cal.App.5th 450, 453 (16 year old).
The same is true of the two cases Jones cites that involved young adults. In Mitchell, supra, 81 Cal.App.5th 575, the petitioner had been 18 at the time of the offense. (Id. at pp. 584, 586.) The court split, with the majority holding the Banks/Clark factors outweighed the defendant's youth and established reckless indifference (Mitchell, at p. 595) and the dissent concluding the underlying felony was "a garden variety armed robbery" (id. at p. 596, Stratton, J. dissenting) and the evidence, including defendant's age immaturity, did not support the finding of reckless indifference. (See id. at pp. 596-602.) The record showed appellant's older brother had suggested the robbery; that after a traumatic childhood with an abusive mother and placement in foster care appellant was homeless and staying with his brother, whom he viewed as the family member who took care of him; and that he had joined a gang because of his brother. (Id. at p. 601.) The majority viewed this evidence as "sympathetic" but found it was "not pertinent to whether Mitchell was recklessly indifferent at the time of his crime." (Id. at p. 595.) The dissenting justice appears to have considered the evidence of the defendant's youth into account in reaching the conclusion that the evidence did not support reckless indifference. (Id. at pp. 601-602.)
In People v. Jones (2022) 86 Cal.App.5th 1076, 1091, the defendant was 20 years old, the trial court had ruled on his petition before the appellate decisions holding youth is relevant in evaluating major participant and reckless indifference, and the evidence showed the defendant had a "traumatic and violent upbringing, had suffered from under-diagnosed mental health issues and drug abuse, witnessed his first murder at age 10, had become numb to violence, was vulnerable to increased aggression, and appeared to be impulsive rather than criminally sophisticated." (Id. at pp. 1091-1092.) The court remanded to allow the trial court to "consider Jones's youth as part of the totality of the circumstances germane to determining whether he was a major participant who acted with reckless indifference to human life." (Id. at p. 1093.)
In this case, the petitioner, as we have said, was between 22 and 23 at the time of the crime. He proffered evidence that the brain continues to develop, at least in males, until the age of 25 or older. But he provided no evidence about his own maturity or immaturity or what, if at all, his age and circumstances reflected about his mental state, specifically, whether he was unable to comprehend the grave risk of death posed by shooting four guns off repeatedly, if relatively briefly, in a room of 200 people.
As the expert stated in his supplemental declaration, his opinions related to adolescent brain development "in general" and not specifically to Jones, whom he did not interview and about whom he had been provided no information. He did not agree that "no one under the age of 25 can consciously disregard" the significant or grave risk his or her actions create. He explained that "[t]he ability to appreciate risk improves over time, with greater ability as the adolescent matures." Specifically, "as an individual ages from 10 to 25," functions concerning "risk or potential consequences," "[i]mpulse control," "[p]lanning," and "[p]roblem solving" "become more developed." However, the ability to appreciate risk is "individually based and dependent upon both biological and environmental factors" and "would depend on the individual and the specific situation." "Also, due to individual variability, some individuals may have greater abilities at a younger age than some older individuals." "[A] person without a fully developed brain" can "plan a crime" and can "lead a group in the commission of a crime, even if other participants are older."
The record contains little, if any, evidence that might have had a bearing on Jones's relative maturity or immaturity, as a 22-year-old male, or ability or inability to comprehend the risk posed by his and his cohorts' actions. Aside from his age, there is no evidence that he suffered from Attention Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder, drug addiction or any of the other factors Dr. Evered indicated could affect brain development. Nor is there any significant evidence of Jones's relationship with his cohorts or his susceptibility to peer pressure. The only sliver of evidence bearing on Jones's maturity is his statement during the planning, as relayed by Seward, that there was no point in arguing about who would use which gun, which if anything, suggests he was more mature than Brown and Powell.
In his reply brief, Jones argues, "the crime at hand bears some of the hallmarks of the adolescent brain-'immaturity, impetuosity, and failure to appreciate risks and consequences.'" Immaturity, maybe, but only in the sense that is true of most crimes. The trial court observed that "[w]hile the offense as a whole could be considered immature, the same could be said of criminality in general, and there is nothing specifically demonstrating that [Jones's] youth actually contributed to any particular aspect of the offense." People who rob and shoot and kill-whether aged 20 or 50-are not the kind of people whom most would describe as "mature." But that does not mean all such people lack the capacity to understand the risk their conduct creates.
The robbery in this case was no impetuous crime. It was planned, and Jones was involved in the planning along with Brown and Powell, as Seward's testimony reflects. The plan may not have been the most sophisticated, but it was not the simplest, either. It included arranging for the four men with four loaded guns to arrive at a location, time and place where a significant amount of cash was likely to be present, there were unlikely to be other people present with weapons, and the persons likely to be present would be older, vulnerable and unlikely to resist. It involved intimidating those people by entering with a bang, posing in an orchestrated military stance with guns pointed straight ahead, announcing a "stickup" and then shooting all four guns toward the ceiling to avoid deliberate killing but for a long enough time and in the presence of a large enough crowd to pose a serious risk of killing people. It involved, at least for two of the participants, wearing masks to avoid detection. This was not a garden variety robbery; it was a well-orchestrated, if unsuccessful, armed effort by four men to obtain a lot of cash from people who would not be able to resist. In short, the record does not show the robbery was planned without thought or effort and took no ingenuity to devise. The evidence does not show Jones or his fellow gunmen were so immature they could not evaluate the risks their plan posed.
We do not mean that Jones and his cohorts planned to go person to person and take money from each individual but rather that they intended to take money the victims had already paid to participate in the bingo games from the organizers of those games-a quicker and more efficient plan.
To conclude, like the trial court, we recognize that Jones's status as a youth offender is relevant to assessing whether he acted with reckless indifference to human life. But, as the Evered declarations indicate, for a young adult especially, age alone tells us little. If anything, Evered's second declaration supports the trial court's finding that, "[b]eing closer to the upper range of brain development tends to indicate that, while a person [Jones's] age might not be fully developed, [he] would be expected to possess greater faculties than a teenager."
To accept Jones's argument would require us to hold that any petitioner who, at the time of his offense, was younger than 25 years old (or at least younger than 23) necessarily lacks the brain development sufficient to enable him to be conscious of and to disregard the grave risk of death his actions pose. We are not prepared to so hold. We conclude that, at least for defendants who are at the age of majority, evidence of age alone is not dispositive. Rather, under our Supreme Court's precedents in Banks, Clark and Scoggins, we must apply the Clark factors, along with any other relevant factors the evidence supports, in determining whether substantial evidence supports a trial court finding that the individual acted with reckless disregard. Here, evaluating the record evidence bearing on the Clark factors, including Jones' age, we hold that substantial evidence supports the trial court's finding that Jones acted with reckless indifference to the grave risk of death his actions, and those of his cohorts, created.
2. The Preliminary Hearing in Jones's Other Case
Jones contends the trial court erred by considering a preliminary hearing transcripts in a separate case against him, Alameda Superior Court No. 68289A, in which an individual testified that shortly after midnight, the morning of February 5, 1979, Jones and a man named Ward robbed a liquor store of cash and Jones held a gun in the security guard's back and then shot him at the base of his head.
By way of background, the People requested that the court "take notice of the record of conviction in Alameda County docket 68289A." The People contended that in that case, "[P]etitioner Jones was found guilty of first-degree murder and sentenced to life in prison without the possibility of parole" for "kill[ing] a 68-year-old uniformed security guard by shooting him in the back of the head during the robbery of a liquor store" that took place "two days before Dorothy Taylor was shot and killed in this matter." The People contended this evidence showed "Jones's awareness of the danger of his crimes and the dangers posed by the weapons used."
At a hearing on August 31, 2022, the court discussed the People's proffer with counsel. Counsel for Jones argued that judicial notice of the record in the other case did not present the court with admissible evidence because judicially noticed records are not evidence of the truth of what is stated in them. The court inquired whether there were transcripts for that case, and counsel for the People stated he did not know because the case was so old. Indicating it was interested in whether the People could prove what they said about the case through admissible evidence, the court directed the parties to file memoranda addressing whether there was admissible evidence and whether the court could consider it in analyzing whether Jones was a major participant and acted with reckless indifference to human life. Counsel subsequently emailed the court addressing these issues and the People proffered the transcript of the preliminary hearing from the other case. Ultimately, the trial court agreed with the People's interpretation of section 1172.6, subdivision (d)(3) and held the testimony at the preliminary hearing in the other murder case against Jones was admissible, was relevant to whether Jones "was subjectively aware of and willingly involved in the violent manner in which the [offense in this case was] committed, and whether he consciously disregarded the significant risk of death his actions created," and "only reinforce[d] the court's findings" that Jones was a major participant and acted with reckless indifference to human life.
While the emails are not in the record, at the court's request the parties transferred the contents of those emails into post-hearing briefs.
On appeal, Jones reprises his argument in the trial court that the witness testimony at the preliminary hearing in the other murder case against him should not have been admitted or considered in determining whether he acted with reckless indifference. The argument turns on the meaning of subdivision (d)(3) of section 1172.6, which provides, "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 guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, 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. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception of the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3), italics added.) The parties' arguments focus on the italicized sentences.
Jones contends that the first italicized sentence and the two sentences following it only "deal with evidence from the record of conviction." These provisions set forth the exceptions to the general requirement that evidence presented at hearings must meet the standards of the Evidence Code. Jones further posits that the second italicized sentence is the provision that addresses "evidence that was not part of the record of conviction." Thus, according to Jones, the first italicized sentence above "exempts evidence previously admitted in petitioner's case-but not new or additional evidence-from compliance with the Evidence Code." He contends that testimony from a prior case must fall within an exception to the hearsay rule and that requires that the People show the witness is unavailable to testify.
Jones argues that the language of subdivision (d)(3), as amended by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2), is ambiguous, and that legislative history and other extrinsic indicia should be consulted to interpret it. He urges that the structure of the amendment, the rule disfavoring interpretations that render some words "surplusage," logic and legislative history all support his interpretation.
Without conceding error, the People make no argument on the merits. They counter Jones's argument only by arguing any error in the admission of the preliminary hearing testimony from the other case was not prejudicial under People v. Watson (1956) 46 Cal.2d 818 because it is not reasonably probable Jones would have obtained a more favorable result had the hearing transcript been excluded. (See People v. Henley, supra, 85 Cal.App.5th 1003, 1020 [applying Watson prejudice standard in reviewing denial of resentencing under § 1172.6].)
Neither Jones nor the People cite any caselaw addressing the meaning of section 1172.6, subdivision (d)(3). Rather than decide the merits on an issue that has not been briefed by both parties, we address whether any error was prejudicial because, if it was not, we need not reach the statutory interpretation argument.
We agree with the People that Jones has not established that if the trial court had declined to consider the other murder evidence, it is reasonably probable he would have obtained a more favorable result. The trial court's 33-page opinion denying relief reflects a careful consideration and weighing of the evidence in the trial record of this case before any consideration of additional evidence. The court began by summarizing the trial evidence and procedural history of this case and provided an overview of the changes to the murder statutes and the resentencing process. It then explained that "the determination of whether [Jones] could still be convicted of murder" under the amended murder statutes "hinges on whether [he] was a major participant in the underlying robbery and acted with reckless indifference to human life." (Fn. omitted.) Next it discussed our Supreme Court's Banks and Clark decisions explaining the major participation and reckless indifference to human life criteria before the Legislature incorporated those criteria into the felony murder doctrine. The opinion then analyzes the trial evidence and its bearing on each of the relevant factors. The court concludes from that evidence that Jones was a major participant, a finding Jones does not challenge.
Turning to whether Jones acted with reckless indifference to human life, the court analyzed the evidence bearing on the Clark factors. We have set forth much of its analysis above and will not repeat it here.
Only after finding Jones acted with reckless indifference to human life based on application of the Clark factors to the evidence in the trial record, did the court turn to the additional evidence. It then stated, for reasons we have described, that the brain science expert's declarations (which it described at length) shed little light on Jones's "individual brain development or any other factors" the expert stressed were relevant in determining his culpability. It held that "even when viewed through that prism of [Jones's youth and the considerations articulated by Dr. Evered], the ultimate conclusion remains that [Jones] was a major participant who acted with reckless indifference to human life." (Italics added.) It further explained, "there is nothing demonstrating that a 22-year-old person would not understand the risks of haphazardly firing a gun for an extended period of time along with three confederates in a room full of 200 people."
The court held Jones acted with "reckless indifference to human life" based on the trial evidence and the Evered declarations, before considering the evidence of Jones's other murder. It is true that the trial court described the "evidence that [Jones] was involved in a robbery where he shot and killed a person a day prior to participating in the armed robbery at issue" as "exceptionally relevant" to "whether he consciously disregarded the significant risk of death his actions created." Even so, the conclusion it reached was that this evidence "further demonstrates [Jones's] culpability." (Italics added.)
Jones argues, "the additional evidence considered by the court was other crimes evidence, which is inherently prejudicial, and inadmissible when offered to prove an individual's conduct on a specified occasion." But concerns about prejudice are less severe when the trier of fact is a judge. "A trial judge is much less likely than a jury to be prejudiced by allegedly inflammatory or improper evidence ...." (People v. Robillard (1960) 55 Cal.2d 88, 99, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649 and overruled on another ground in People v. Satchell (1971) 6 Cal.3d 28, 35-36.) "A trial judge is inevitably exposed to a plethora of inadmissible, even highly inflammatory, evidence during the course of trial. Yet, in the absence of contrary evidence, we may presume that such exposure played no role in the court's ultimate decisions." (People v. Taylor (2001) 26 Cal.4th 1155, 1175.)
Based on the trial court's thorough and carefully explained opinion, we conclude there is no reasonable probability that, sitting as trier of fact, it would have reached a different conclusion had it not considered the other murder evidence. For that reason, we need not reach the merits of Jones's argument that admission and consideration of that evidence was error.
DISPOSITION
The trial court's decision denying Jones's petition for resentencing under section 1172.6 is affirmed.
We concur. RICHMAN, J. DESAUTELS, J.