Opinion
C098454
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. CARMEL MURPHY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 05F01330
RENNER, J.
In 2008, a jury convicted defendant Carmel Murphy of first degree murder and found true the special circumstance that the murder was committed while she was engaged in the commission of a robbery. (Pen. Code, § 190.2, subd. (a)(17).) Defendant appeals from an order denying her petition for resentencing under section 1172.6 after an evidentiary hearing. Defendant argues we must reverse the trial court's order because the evidence was insufficient to support any theory of murder liability discussed by the court in denying her petition. We will affirm the order.
Undesignated statutory references are to the Penal Code.
"At the time [defendant] filed [her] petition for resentencing, section 1170.95 governed the resentencing of murder convictions. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). We will refer to the statute in its renumbered form." (People v. Keel (2022) 84 Cal.App.5th 546, 550, fn. 1.)
I. BACKGROUND
A. Factual Background
On the night of February 10, 2005, the victim and M.B. picked co-defendant Gerald Howard up in the victim's car. The victim eventually drove them to a park.
At the park, Howard got out of the car and stood next to a tree for five or 10 minutes. He spoke to someone on the phone. When he returned to the car, he asked the victim to get out. The victim and Howard went around a building and, after they had been gone less than five minutes, M.B. heard two gunshots.
About 10 minutes after M.B. heard the shots, Howard returned to the car with defendant. Howard asked M.B. to get out of the car. He said the victim wanted to talk to her. As M.B. walked around the building with Howard behind her, she heard a clicking noise and then the sound of something hitting the ground. She turned around and saw Howard, who was now wearing black gloves, pick up a gun from the ground. Howard put the gun under his arm and told her to go back to the car. By the time they returned to the car, defendant was sitting in the front passenger seat where M.B. had been.
Howard got into the driver's seat and drove a couple of blocks to where defendant's Jeep was parked. Defendant got into her Jeep and Howard drove M.B. home, with defendant following in her Jeep. After they dropped M.B. off, M.B. heard defendant say," 'Pop her too.' "
The victim was found dead at the park. He had been shot once in the back of the head and once in the abdomen. Two expended .380 cartridges were found near his body.
In her initial statements to law enforcement, defendant denied involvement in the shooting. She said she was at home and did not go to the park. She later admitted this was a lie. She said Howard asked her to meet him at the park and she agreed. Howard was supposed to take the victim's car, money, and weed, but the victim was not supposed to die. Howard told her to look through the victim's pockets and the gun went off; Howard shot the victim twice. Defendant agreed to follow Howard in her Jeep because he had a gun. She followed him to a restaurant and then a convenience store where he wiped all the handprints off his car.
Defendant explained that her Jeep was in Howard's name, and, at the end of January, the victim held Howard at gun point to make him steal it from her. She got the Jeep back and Howard apologized. Howard said he wanted to take the victim "off the map" and wanted the victim's head. Defendant understood this meant Howard wanted to kill the victim. Howard said the victim had been making him do things he did not want to do and had threatened his mother and sister.
Defendant gave officers more details about what happened at the park as the interview progressed. Defendant and Howard called each other multiple times that day. She said Howard threatened her if she did not meet him at the park. She said the purpose of going to the park was to take the victim's money and his car. Howard said he would not kill the victim. Defendant's job was to be a "witness" and go through the victim's pockets if asked. The victim was shocked to see her, and when he turned to look at her, Howard shot him in the back of the head. Then, Howard pointed the gun at defendant and ordered her to go through the victim's pockets. She took the money, and then Howard shot the victim in the chest. Howard threw the gloves in the bushes outside the restaurant. She held the door open for him and he washed his bloody hands inside the restaurant.
Officers placed defendant and Howard in a room together and recorded their conversation. Defendant asked Howard what happened to him taking the "rap" for the killing. Howard asked her what she wanted him to do. She explained law enforcement only knew what they had been told, and then described the evidence law enforcement did and did not have. Defendant indicated law enforcement would find the gloves but not the gun.
Later, outside of Howard's presence, defendant asked a detective what would happen if the gloves were found but not the gun. She said she did not see what Howard did with the gun. She said he had talked about getting a gun the day before, and then he got it.
B. Procedural Background
The jury found defendant guilty of first degree murder (count one) and robbery (count two). The jury found not true that defendant intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)), but found true that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)). The jury also found true that defendant was armed with a firearm in the commission of both offenses within the meaning of section 12022, subdivision (a)(1). The trial court sentenced defendant to life without the possibility of parole for count one plus one year for the firearm enhancement. The court imposed but stayed sentence for count two pursuant to section 654.
In November 2021, defendant filed a petition for resentencing requesting that her murder conviction be vacated pursuant to former section 1170.95.
In June 2022, the trial court issued an order to show cause and set an evidentiary hearing contingent on the outcome of People v. Strong (2022) 13 Cal.5th 698 (Strong), which was then under submission by our Supreme Court. Strong ultimately resolved a split of authority in the courts of appeal regarding whether a felony-murder specialcircumstance finding issued by a jury before People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) precludes a defendant from making a prima facie case for relief under section 1172.6. (Strong, supra, at pp. 709710.) After Strong decided it does not, the parties submitted additional briefing.
In October 2022, the court held an evidentiary hearing on whether defendant was still guilty of murder under recent changes in California law. Defendant testified. She said she met Howard when she was 11 years old and they "were pretty good friends." She was 20 at the time of the victim's killing. She said the plan was for Howard to have a gun as a "scare tactic" and that she had not known either Howard or the victim to do anything violent. She did know Howard sometimes had a gun and had been previously arrested for possession of a firearm, but she did not know him to have used a gun or been involved in any kind of robbery. She described Howard as muscular, 6 feet 5 inches tall, and almost 300 pounds. She described the victim as 5 feet 7 inches tall and smaller in stature. Howard initially said he would kill the victim and she told him he should not do that. Later, he assured her he would just take the car and the money and would not kill the victim. Defendant testified she did not remember saying, "Pop her, too;" "I don't know why I would have said that to [M.B]." She said her role in the robbery was to "[b]e present and take the money." She testified she lied when she told detectives that the victim had threatened to kill Howard's mother and sister. After the evidentiary hearing, the parties submitted additional briefing.
In April 2023, the court denied defendant's petition in a written order, finding beyond a reasonable doubt that defendant was "guilty of at least second degree murder under a theory of implied malice, as well as first degree felony murder following Senate Bill 14[37]."
II. DISCUSSION
A. Legal Background and Standard of Review
Effective January 1, 2019, "the Legislature enacted Senate Bill No. 1437 (20172018 Reg. Sess.) (Senate Bill 1437), which narrowed or eliminated certain forms of accomplice liability for murder. (See Stats. 2018, ch. 1015.)" (People v. Curiel (2023) 15 Cal.5th 433, 440.) Defendant's arguments pertain to the fact that "Senate Bill 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citations.] . . . [S]ection 189, as amended, now limits liability under a felony-murder theory principally to 'actual killer[s]' (. . . § 189, subd. (e)(1)) and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree' (id., subd. (e)(2)). Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of . . . Section 190.2'-that is, the statute defining the felony-murder special circumstance. (. . . § 189, subd. (e)(3).)" (Strong, supra, 13 Cal.5th at pp. 707-708.) After defendant's conviction became final, "Banks and Clark both substantially clarified the law governing findings under . . . section 190.2, subdivision (d): Banks elucidated what it means to be a major participant and, to a lesser extent, what it means to act with reckless indifference to human life, while Clark further refined the reckless indifference inquiry." (Id. at pp. 706-707.)
"Senate Bill 1437 also created a procedural mechanism for those convicted of murder under prior law to seek retroactive relief. [Citations.] Under section 1172.6, the process begins with the filing of a petition declaring that '[t]he petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189' made by Senate Bill 1437. (§ 1172.6, subd. (a)(3).) The trial court then reviews the petition to determine whether a prima facie showing has been made that the petitioner is entitled to relief. (Id., subd. (c).)" (People v. Wilson (2023) 14 Cal.5th 839, 869, fn. omitted.)
"Because [defendant]'s case was tried before both Banks and Clark, the special circumstance findings d[id] not preclude [her] from making out a prima facie case for resentencing under section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) Consequently, the court held an evidentiary hearing to determine whether to vacate the murder conviction and resentence defendant on any remaining counts. (§ 1172.6, subd. (d)(1).)
At the evidentiary hearing, the burden of proof is "on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) Not only may the court consider "evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony," but the prosecutor and petitioner may also offer new or additional evidence. (Ibid.)
On review of the trial court's denial of a section 1172.6 petition, "where there is an issue as to whether the trial court misunderstood the elements of the applicable offense, the case presents a question of law which we review independently." (People v. Reyes (2023) 14 Cal.5th 981, 988.) The trial court's determination that she was a major participant in the robbery who acted with reckless indifference to human life implicates the ordinary rule that "a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.] Under this standard, we review the record '" 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" '" (Ibid.) We may not reweigh the contradictory evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
B. Substantial Evidence Supports the Court's Determination that Defendant Is Guilty of First Degree Felony Murder
Defendant argues the evidence is insufficient under the Banks/Clark standards to establish her guilt under a felony murder theory because it does not establish she was a major participant who acted with reckless indifference to human life. We disagree.
In Banks, the Supreme Court listed the following as "[a]mong those factors" that may be considered in determining "whether the defendant's participation . . . was sufficiently significant to be considered 'major' ": "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
In concluding defendant was a major participant, the trial court explained "defendant acknowledges she helped Howard plan the robbery, assisted in isolating [the victim] in the deserted park, and distracted [the victim] by surprising him, thereby enabling . . . Howard to sho[o]t [the victim] in the back of the head. Moreover, defendant was aware Howard expressed a desire to kill [the victim] and would be armed with a firearm. [¶] After Howard shot [the victim], defendant took [the victim's] money and assisted Howard in disposing of his gun, clothes and incriminating evidence. The court finds this level of involvement establishes defendant was a major participant in the robbery." Defendant's opening brief offers no argument regarding the major participant requirements and has therefore failed to demonstrate the trial court's conclusion on this point was not supported by substantial evidence. Defendant's arguments instead focus on the court's determination that she acted with reckless indifference to human life.
"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." '" (In re Scoggins (2020) 9 Cal.5th 667, 677.) Reckless indifference "encompasses 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." (Clark, supra, 63 Cal.4th at p. 617; accord Strong, supra, 13 Cal.5th at p. 706.) The trial court found defendant's statement "urging Howard to also kill [M.B.], shows her intent to kill and reckless indifference to human life."
"We analyze the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life. Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony? [Citation.]' "[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient." '" (In re Scoggins, supra, 9 Cal.5th at p. 677.)
The requirements of being a major participant and having reckless indifference to human life overlap," 'for the greater the defendant's participation in the felony murder, the more likely that he [or she] acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615.) Thus, "the trial court's factual finding that [defendant] was a major participant in the underlying felony is-itself-supportive of the court's additional factual finding that [defendant] acted with reckless indifference to human life." (People v. Cody (2023) 92 Cal.App.5th 87, 113.)
Applying the relevant factors and viewing the totality of the circumstances, we conclude the record contains sufficient evidence to support the trial court's conclusion that defendant acted with reckless indifference to human life.
1. Knowledge of Weapons, and Use and Number of Weapons
Defendant asserts without citation to the record that the trial court's "focus on the fact that this was an armed robbery does not square with the repeated findings that armed robbery is not a felony 'as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life.[']" (Clark, supra, 63 Cal.4th p. 615.) While the fact that defendant knew Howard was armed is not sufficient by itself to establish reckless indifference to human life, it is still a factor to consider. (Id. at pp. 617-618.) The court properly considered it among other Banks/Clark factors. Significantly, the court explained, "defendant was aware Howard expressed a desire to kill [the victim] and would be armed with a firearm." (Italics added.) Importantly, the trial court did not find credible defendant's statements that she received reassurances from Howard that he would not kill the victim. The trial court had the opportunity to view defendant's testimony on this point in person. "Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (People v. Clements, supra, 75 Cal.App.5th at p. 298.) Here, there is substantial evidence to support a finding that defendant knew Howard was armed and that he planned to use his firearm.
2. Physical Presence at the Crime and Opportunities to Restrain the Crime and/or Aid the Victim
"Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state.... [Moreover,] 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.) Defendant admits she was present at the time of the shooting, but argues she had no meaningful opportunity to prevent or control Howard's actions because the encounter was not prolonged. Nonetheless, under Clark, defendant's presence and behavior at the scene bolsters the trial court's conclusion that defendant shared Howard's intent to kill.
3. Duration of the Felony
With respect to the duration of the felony, "[c]ourts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant.... 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." (Clark, supra, 63 Cal.4th at p. 620.) Defendant argues the victim and Howard were together behind the building for only a short amount of time. We accept this assertion, but it does not alter our view of the totality of the circumstances. Indeed, the short duration of the felony could be attributable to the fact that defendant and Howard planned to kill the victim.
4. Defendant's Knowledge of Cohort's Likelihood of Killing
With respect to her knowledge of Howard's likelihood of killing, defendant focuses on evidence pertaining to Howard's general propensity for violence rather than the evidence pertaining to her knowledge he wanted to kill the victim and was armed. She also ignores the evidence contradicting her assertion that "Howard and [the victim] were friends with no bad blood between them." Again, we may not revisit the court's credibility determinations or reweigh the conflicting evidence. It is significant that defendant knew Howard wanted to kill the victim and had the means to do so.
5. Efforts to Minimize the Risks of Violence During the Felony
With respect to efforts to minimize the risks of violence during the felony, defendant argues she discouraged Howard from violence, and he assured her he would not hurt the victim. Again, the trial court did not find this testimony credible. Further, the court found defendant's statement" '[p]op her too'" showed her intent to kill and reckless indifference to human life. This was significant circumstantial evidence that, despite what defendant has said subsequently, she was aware Howard planned to shoot the victim and shared that intent. Thus, there is substantial evidence to support the conclusion that violence was part of defendant's plan.
Defendant cites her youth at the time of the offense as a factor in her favor. Assuming a petitioner's youth is a relevant factor to consider in the totality of the circumstances, it is not dispositive. (In re Harper (2022) 76 Cal.App.5th 450, 470.) Further, because the evidence supports the trial court's determination that defendant was fully aware and supported Howard's intent to kill the victim, and took an authoritative role in their partnership, we cannot conclude the defendant's youth alters our conclusion that substantial evidence supports the determination she acted with reckless indifference to human life. (See People v. Oliver (2023) 90 Cal.App.5th 466, 489-490.)
Because we conclude substantial evidence supports the trial court's finding that defendant is still guilty of first degree felony murder following Senate Bill 1437, we need not address whether the court's additional determination that defendant was guilty of "at least" second degree murder under a theory of aiding and abetting implied malice murder complied with our Supreme Court's subsequent decision in People v. Reyes, supra, 14 Cal.5th 981. She was ineligible for resentencing under section 1172.6, and the petition was correctly denied.
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: EARL, P.J., ROBIE, J.