Opinion
B314571
12-16-2022
THE PEOPLE, Plaintiff and Respondent v. REGINALD LEON MORRIS, Defendant and Appellant
Jonathan E. Demson, 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, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A711491, Ronald S. Coen, Judge. Affirmed.
Jonathan E. Demson, 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, Daniel C. Chang and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, ACTING P.J.
In 1990, a jury convicted petitioner Reginald Leon Morris of robbery and two counts of first degree murder. This is Morris's second appeal from the denial of his Penal Code section 1172.6 (formerly § 1170.95) resentencing petition. Section 1172.6 allows a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory involving imputed malice to petition to have his or her murder conviction vacated. (§ 1172.6, subd. (a).) This appeal follows a hearing at which the resentencing court concluded that Morris was not entitled to resentencing because he (1) was a direct aider and abettor who harbored express malice in committing the murders; and (2) was a major participant in the robbery who acted with reckless indifference to human life.
Undesignated statutory references are to the Penal Code. For the reader's ease, we refer to section 1172.6 instead of 1170.95 even though it postdates several events occurring in this case. The Legislature "renumbered the provision without substantive change, effective June 30, 2022." (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).)
Morris challenges the resentencing court's conclusion that he was a major participant in the underlying robbery who acted with reckless indifference to human life. Morris argues that the resentencing court misread the record and also relied on evidence necessarily rejected by the jury. The record does not support either argument. Even if arguendo the resentencing court relied on improper evidence in finding that Morris was a major participant in the underlying robbery who acted with reckless indifference to human life, we would still affirm the resentencing court's order because the court also found that Morris directly aided and abetted the murders with express malice.
We affirm the order denying Morris's petition for resentencing.
PROCEDURAL BACKGROUND
An information charged Morris with two counts of murder (for the killing of Sean Linn and Freddie Zuniga) and one count of robbery. The People alleged the following firearm allegations: (1) pursuant to section 12022, subdivision (a) a principal was armed with a firearm to wit a handgun, and (2) Morris personally used a firearm within the meaning of sections 12022.5 and 1203.06. The People also alleged Morris personally inflicted great bodily injury on victims Linn and Zuniga. Levon Davis, the shooter, testified against Morris at trial.
During trial, at the conclusion of the prosecution's case, the trial court granted a section 1118.1 motion in part by striking the allegations of personal use of a firearm within the meaning of sections 12022.5, subdivision (a) and 1203.06. The trial court also struck the great bodily injury allegation. The court explained its decision to strike the enhancements as follows: "What we have is based upon the totality of the evidence Levon Davis [Morris's confederate] was the shooter. And even if the defendant [Morris] arranged for Freddie Zuniga to be brought into the kitchen area for the specific purpose of being killed, and even if that was the agreed upon plan, it is such that I do not feel that it is sufficient evidence to uphold these enhancements on appeal."
The trial court did not strike the section 12022, subdivision (a) firearm allegation, which provides with exceptions not relevant here: "[A] person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . for one year, unless the arming is an element of that offense. This additional term shall apply to a person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." (§ 12022, subd. (a), italics added.) The jury verdict asked the jury to determine whether "a principal . . . was armed with a firearm, to wit, handgun, said arming not being an element of the above offense, within the meaning of Penal Code Section 12022(a). . . ." (Italics added.)
With respect to each offense, the jury found the following not true: "[I]n the commission and attempted commission of the above offense a principal in said offense was armed with a firearm, to wit, handgun, said arming not being an element of the above offense within the meaning of Penal Code Section 12022(a) . . . ." (Italics added.)
At the original sentencing hearing, Morris's counsel argued that "Levon Davis was the shooter and fired the fatal shots with regard to both victims." Counsel acknowledged that if Davis's trial testimony were credited, Morris would be "equally culpable . . . [to] Levon Davis, a vicious killer who cold bloodedly ordered the execution of two people."
The original sentencing court sentenced Morris to three years for the robbery and stayed the sentence pursuant to section 654. The original sentencing court sentenced Morris consecutively to 25 years to life for each murder. The court stated that "the planning, sophistication or professionalism with which the crime was carried out indicate premeditation." The court further stated, "[D]efendant [Morris] was an active leading participant in this crime."
In 2019, Morris filed a section 1172.6 resentencing petition. The resentencing court summarily denied it without a hearing, and this court reversed the order. The resentencing court then held a hearing at which no party presented evidence. After the hearing, the resentencing court denied Morris's petition. We describe the resentencing court's findings in the Discussion section. Morris timely appealed.
The trial court instructed the jury on the natural and probable consequences doctrine and on felony murder.
FACTUAL BACKGROUND
At Morris's 1990 jury trial, it was undisputed that Linn and Zuniga were shot and killed while they were working at a Dominos restaurant, where Levon Davis also worked. An autopsy of Linn revealed he died of multiple gunshot wounds. The deputy medical examiner recovered three bullets-one from the head, one from the lower back, and a third from the chest. An autopsy of Zuniga showed that he died of a gunshot wound to the head that injured his brain.
Davis testified that he and Morris decided to rob the Dominos. Morris asked Davis where the panic buttons and cameras in the Dominos restaurant were located. Davis and Morris stopped at Davis's house to retrieve Davis's father's gun. Morris held the gun after the pair retrieved it.
Davis further testified he and Morris discussed the fact that they did not want any witnesses to the robbery. Morris warned Davis that "if you don't kill them they'll find you . . . ." Davis worried that the bullets would be traceable, but Morris reassured him, explaining "there was too many .38's."
According to Davis, Morris and Davis planned to kill but had not decided which one would be the shooter. Both of them wanted to be the shooter. When they arrived at the Dominos, Morris carried the gun in his pants. Davis and Morris argued over who would take the money; both wanted to do so. They discussed who would "do it" for about three minutes. Morris handed Davis the gun. Davis and Morris agreed that Morris would close a door to prevent Zuniga from escaping outside.
Davis further testified that he went into a back room where Linn was located. Davis shot Linn in the back and took a bag containing between five and six hundred dollars.
According to Davis, Morris told Zuniga to "come in," and when Morris did so, Davis shot Zuniga. Davis explained that Morris "had closed the door" and when Zuniga started to walk towards Davis, Davis shot him twice. Davis shot him because he "[w]anted no witnesses."
Morris's testimony differed substantially from Davis's testimony. Morris testified he was friends with Davis. Morris further testified Davis had agreed to give him a ride home, and Davis had said he had to stop at Dominos. They stopped at Dominos where Morris sat in the lobby area; Davis went into the kitchen area. As Morris was speaking to Zuniga, Morris heard a gunshot. Then Morris saw Davis shoot Zuniga. Morris did not see the gun before Davis fired it. After seeing Davis shoot Zuniga, Morris ran away.
DISCUSSION
Prior to addressing Morris's specific arguments, we provide legal background on section 1172.6 and quote the resentencing court's order in its entirety because it is the basis for Morris's appellate arguments. We then turn to Morris's specific arguments and conclude none is well-founded.
A. Legal Background
"In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not 'a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.' [Citations.]" (Strong, supra, 13 Cal.5th at p. 703.) The Legislature also "eliminated second degree murder liability predicated on the natural and probable consequences doctrine." (Id. at p. 707, fn. 1.) Relief is unavailable if the defendant was the "actual killer, acted with intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life . . . .' [Citations.]" (Id. at p. 710.)
If a petitioner files a petition showing a prima facie case for resentencing relief, the trial court must issue an order to show cause and, "must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 960; § 1172.6, subd. (d)(1).) At the hearing stage, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, . . . that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3).)
This court reviews a finding that a petitioner is ineligible for resentencing for substantial evidence. (People v. Nieber (2022) 82 Cal.App.5th 458, 476 (Nieber).) "Under this standard,' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation]. We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.]" (Id. at p. 476.)
B. The Resentencing Court's Findings
At the hearing on Morris's petition for resentencing, neither party presented additional evidence.
The resentencing court found: "Based on the totality of the evidence . . . the People have proved beyond a reasonable doubt the following: that the defendant was a direct aider and abettor of a murder and acted with express malice.
"I also find beyond a reasonable doubt . . . that the defendant was a major participant in a robbery murder and acted with reckless indifference to human life. He supplied the gun. He had the ID list. He counseled the shooter. The idea is he counseled the shooter, if in fact Davis was the shooter, although there was evidence that the perpetrator himself may have been the shooter, that he had planned that people would die.
"And People vs. Bradley . . . at 65 Cal.App.5th 1022, it held that in a felony murder for an aider and abettor, needs to be sufficient evidence to show reckless indifference to human life where the perpetrator in that case actively participated in the underlying robbery wielded a firearm during the robbery, and was present for the shooting. Here, it is almost very similar, except the perpetrator I find beyond a reasonable doubt supplied the firearm for the robbery.
"In the case that is of eerie similarity, is People vs. William[s]. . . at 57 Cal.App.5th 652. In that case, it held that with [sic] sufficient evidence that the defendant was a major participant in an attempted robbery and acted with reckless indifference to human life where a defendant was an adult when the robbery was planned at his residence with a juvenile accomplice, whether the defendant was the actual shooter or held the gun shortly before or shortly after it was fired, defendant was present in sufficient proximity to observe his cohort. The defendant had the opportunity to act as a restraining influence and the defendant in that case admitted to fleeing the scene, supporting evidence that the defendant did not render aid to the victim in that case in Williams."
C. The Resentencing Court Did Not "Misread" the Record
As the resentencing court's above-quoted opinion reflects, in finding that Morris was a major participant who acted with reckless indifference to human life, the resentencing court relied on the fact that Morris supplied the gun to Davis. Morris argues that the resentencing court "misread" the record in finding that Morris "supplied, used, and possibly committed one of the murders with the sole gun used in this case." Morris also challenges the resentencing court's so-called "observation" that Morris "wield[ed]" the gun. As set forth below, the resentencing court properly relied on the fact that Morris supplied the gun, and the court did not rely on the other "facts" Morris identifies as inconsistent with the record.
The resentencing court's reliance on the fact that Morris "supplied" the gun is consistent with Morris's description in his statement of facts that he "handed the gun to Levon [Davis]." There is no meaningful difference between Morris handing the gun to Davis-which Morris admits-and Morris supplying the gun to Davis. The record supports the resentencing court's finding that Morris supplied the gun. Specifically, Davis testified that Morris carried the gun in his pants and then handed Davis the gun.
Morris's remaining arguments mischaracterize the resentencing court's findings. First, contrary to Morris's argument, the resentencing court did not observe that Morris wielded a gun, but instead referred to the appellant in Bradley as wielding a gun. The resentencing court did not find that Morris was the shooter, but instead stated that Morris "counseled the shooter." Had the resentencing court found that Morris was the actual killer, the court would not have had to decide whether Morris was a major participant who acted with reckless disregard to human life. Instead, as the actual killer, Morris would not be entitled to resentencing under section 1172.6 in the first place. (Strong, supra, 13 Cal.5th at p. 710.)
D. The Resentencing Court Did Not Rely on Facts Necessarily Rejected By the Jury
Relying on People v. Cooper (2022) 77 Cal.App.5th 393, Morris argues that the resentencing court could not rely on Morris's supplying a gun to Davis because the trial court struck the personal use firearm enhancements and the jury found the only remaining firearm enhancement not true. Cooper holds that a trial court, who stands as a trier of fact at a section 1172.6, subdivision (d) hearing, cannot deny relief based on a finding "inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented." (Cooper, at p. 398.) In Cooper, the jury acquitted Cooper of being a felon in possession of a firearm after the parties "stipulated" Cooper was a felon. (Id. at pp. 397, 399.) In finding that Cooper was a major participant who acted with reckless indifference to life, the resentencing court relied on the fact that Cooper possessed and fired a gun. (Id. at p. 398.) Thus, the trial court expressly relied on the fact that Cooper possessed a gun even though the jury necessarily found that fact was not true. The appellate court concluded that the trial court erred in relying on a fact that necessarily" 'turn[ed]'" a not-true enhancement finding" 'into [its] opposite.'" (Id. at p. 413; see also People v. Henley (Dec. 5, 2022, D079001) __Cal.App.5th__ [holding that in finding a petitioner ineligible for resentencing under section 1172.6, the trial court erred in relying on the fact that a defendant personally used a firearm when the jury found a personal use firearm enhancement not true].)
Cooper does not apply here because here the resentencing court did not turn a not-true enhancement into its opposite. In contrast to Cooper, where the jury verdict necessarily found Cooper did not possess a firearm (because the parties had stipulated he was a felon in a firearm possession case), here the jury not true verdict indicates either that (1) no principal was armed with a firearm, or (2) the jury believed arming was an element of the substantive offenses. It appears the jury relied on the latter. Not only was it undisputed that Davis was armed with a gun, used the gun to shoot Zuniga and Linn, and that both victims died of gunshot wounds, but also, during deliberations, the jury requested clarification on the meaning of "said arming not being an element of the above offense . . . ." In contrast to Cooper, where the verdict necessarily demonstrated that the jury had found the appellant did not possess a firearm, here the jury did not necessarily find a principal was not armed with a firearm.
Additionally, any claim that a principal (Davis) was not armed is inconsistent with Morris's own view of the facts. According to Morris's appellate brief, Davis shot Linn, grabbed the money bag, and then shot Zuniga. On appeal, Morris also refers to "the sole gun used in this case" acknowledging that a principal used a gun. In short, Morris's reliance on Cooper is misplaced because the jury verdict in this case does not necessarily show that no one used a gun.
E. The Resentencing Court's Conclusion That Morris Aided and Abetted the Murder With Express Malice Requires Denial of Morris's Resentencing Petition
All of Morris's appellate arguments challenge the resentencing court's finding that Morris was a major participant in the robbery who acted with reckless indifference to human life. The resentencing court also found that Morris acted with express malice, which by itself, supports the denial of Morris's resentencing petition. Under current law, if "the killing resulted from an intentional act with express or implied malice . . . no other mental state need be shown to establish the mental state of malice aforethought." (§ 188, subd. (b).) Also under current law, malice aforethought supports a conviction for murder. (Id., subd. (a)(3).)
Substantial evidence supported the resentencing court's finding that Morris acted with express malice. "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) At the 1990 trial, Davis testified that he and Morris planned to kill any witnesses to the robbery so that no one could identify Morris or Davis. Davis's testimony supports the conclusion that Morris acted with express malice, i.e., that he intended to kill Zuniga and Linn. Because Morris shows no error in the trial court's finding that he acted with express malice, the order denying Morris's petition for resentencing must be affirmed. (People v. Gentile (2020) 10 Cal.5th 830, 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought."]; see also Strong, supra, 13 Cal.5th at p. 710 [resentencing relief is unavailable if the defendant acted with intent to kill].)
Davis also testified that Morris had not planned to shoot anyone. In evaluating the sufficiency of the evidence, we must view the evidence in the light most favorable to the resentencing court's order. (Nieber, supra, 82 Cal.App.5th at p. 476; see also People v. Shamblin (2015) 236 Cal.App.4th 1, 15 [under substantial evidence standard of review "we must accept the reasonable inferences supporting the verdict over any inferences (even if reasonable) proffered by defendant"].)
Because we find no error, we need not address Morris's argument that the alleged errors were prejudicial. Because we affirm, we need not consider the additional grounds on which respondent argues the resentencing court's order must be affirmed.
DISPOSITION
The order denying Reginald Leon Morris's Penal Code section 1172.6 petition for resentencing is affirmed.
We concur: CHANEY, J., WEINGART, J.