Opinion
B304808
03-02-2021
THE PEOPLE, Plaintiff and Respondent, v. KEITH ROSS, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Made and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA120316) APPEAL from an order of the Superior Court of Los Angeles County, Upinder S. Kalra, Judge. Affirmed. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Made and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
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Keith Ross challenges the trial court's denial of his petition for resentencing under Penal Code section 1170.95. To be eligible for relief under the statute, a defendant must make a prima facie case that he was convicted of murder under the natural and probable consequences doctrine, or of felony murder in a case in which he either was not a major participant in the felony or did not act with reckless indifference to human life. (See People v. Allison (2020) 55 Cal.App.5th 449, 460-462, review denied Dec. 23, 2020, S265450 (Allison); People v. Galvan (2020) 52 Cal.App.5th 1134, 1139-1140, review granted Oct. 14, 2020, S264284 (Galvan).)
Subsequent statutory references are to the Penal Code.
Ross contends the trial court erred in denying his petition because he established a prima facie case for relief by alleging he was not the actual killer and was prosecuted as an aider and abettor to felony murder. He also contends he is entitled to relief because the facts of the crime do not satisfy the standards announced in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
We disagree and conclude that Ross is ineligible for resentencing under section 1170.95 as a matter of law for two reasons. First, following a retrial on a special circumstance allegation, a jury found true the allegation that the murder was committed during a robbery under section 190.2, subdivision (a)(17), which required proof of the same elements that all felony murder charges must meet under current law. Second, on review of the trial court's application of the Banks and Clark factors in considering Ross's petition under section 1170.95, we conclude the record of conviction establishes as a matter of law that the special circumstance finding is valid even under Banks and Clark.
FACTUAL AND PROCEDURAL SUMMARY
A. Evidence Presented at First Trial
In an unpublished opinion involving Ross's direct appeal (People v. Norwood et al. (Apr. 9, 1997, B091925) (Ross I)), we described the facts of the case as follows.
"On September 14, 1992, Ross entered Mills Jewelers in Ventura. Sherman Kulick owned Mills Jewelers and several other jewelry stores. Kulick's headquarters and wholesale buying office was in Culver City. Ross spoke with employee Barbara Simpson for about 20 minutes. Employee Vickie Ward watched and overheard their conversation. Ross posed as a diamond dealer and asked where the main office was and if purchases were made there. Simpson and Ward did not believe Ross was a diamond dealer because he was shabbily dressed, was unfamiliar with common industry terms, and had no business card. They told Ross the store's headquarters was listed in a trade industry publication with which Ross was unfamiliar. Simpson told other workers to remember Ross because he was unusual. Ward followed Ross outside and saw him drive away.
"The next day, September 15, 1992, Murray Brown, a convicted drug dealer and longtime user, bought a used Cadillac from an auto dealership located at 5500 South Figueroa Street in Los Angeles. That evening, [codefendant Gregory] Norwood and Ross, who knew Brown, came to Brown's house. The three men drove together in Brown's newly-purchased Cadillac to buy cocaine. They returned to Brown's house and smoked the cocaine with two women friends. During the ensuing conversation, Norwood and Ross asked Brown if they could use the Cadillac as a getaway car for a 'job' involving Rolex watches. Defendants told Brown they would use the Cadillac only as a getaway car and would use another car to arrive. Ross said they already had 'cased' the jewelry mall where the Rolex watches were sold. Brown thought the 'job' would be in Culver City. Ross had a shotgun and an 'Uzi' into which defendants practiced loading and unloading ammunition clips. Defendants told Brown they would have to use a uniform to enter the store, which had bars and could not otherwise be entered without force, which they did not want to use for entry. Ross told Norwood to wear mail carrier's pants that Ross could acquire, although the legs would have to be cut off. Brown agreed to let defendants use the car in exchange for some of the loot from the 'job.' Defendants instructed Brown to report the Cadillac stolen if anything went wrong.
"The next day, September 16, 1992, secretary/bookkeeper Dolores Medina and Kulick were working at Kulick's main office at 8827 Exposition Boulevard in Culver City. The business was entered through double doors, the second of which was locked and controlled by an interior buzzer. No one could enter without being buzzed in from inside. Shortly after lunch, Medina heard the door buzzer go off. Medina looked up and saw Norwood, dressed as a mail carrier, enter the office. Norwood was wearing postal service shorts and cap, and carried a large canvas bag and a gun. Ross, wearing a sleeveless T-shirt, red shorts, and sneakers, and sporting a large, curly, 'very crazy hairdo,' entered behind Norwood.
"As Norwood entered, he said ' "okay, Sherman, give us everything you have." ' Medina said she had nothing, and Kulick told the men he had pressed the alarm button and they should leave. Ross, who had begun opening file cabinets, ordered Medina to show him where the alarm button was. Medina replied that she did not know. Ross tried to take Kulick's watch, but Kulick resisted. As Ross and Kulick struggled, Norwood said ' "this is serious" ' and shot Kulick once. Ross abandoned his attempt to take Kulick's watch and walked into the rear of the office. Ross took Kulick's briefcase and walked toward the door. Kulick again told the men to leave. As Ross approached the door, Norwood shot Kulick twice more and backed out the door. Medina saw the two men run down the street. She called emergency. Kulick died from his wounds." (Ross I, supra, B091925, pp. 3-5, fn. omitted.)
In relevant part, the opinion also found that " 'Wilma Foster, previously known as Wilma Ross, lived with Ross from 1986 through mid-1992. . . . Foster was a postal carrier. Foster told police that sometime after the couple's breakup, Foster discovered one of her mailbags and postal service caps were missing, and only Ross had access to them.' " (Ross I, supra, B091925, p. 6.)
Following a jury trial in 1994, Ross and codefendant Norwood were convicted of first degree murder (§§ 187, 189), and second degree robbery (§§ 211, 212.5). The jury found true the special circumstance allegation that the murder was committed during a robbery. (§ 190.2, subd. (a)(17)(A).) As to Ross, the jury found that a principal was armed with a firearm as to both counts. (§ 12022, subd. (a).)
On direct appeal in 1997, we reversed the felony murder special circumstance finding against Ross because the jury received an incomplete instruction on the elements required under section 190.2. We remanded the case for retrial of the special circumstance allegation.
B. Evidence Presented on Retrial of Special Circumstance Allegation
On retrial in 1998, the jury found true the allegation that the murder was committed during a robbery under section 190.2, subdivision (a)(17). Following the retrial, Ross was sentenced to serve a total of life without parole plus nine years in state prison.
Ross appealed, and we affirmed the jury's special circumstance finding in an unpublished opinion, finding the evidence was sufficient to support the verdict. (People v. Ross (Feb. 17, 2000, B121714) (Ross II).) In that opinion, we noted that at the retrial, the prosecution presented essentially the same evidence as at the first trial, and we adopted the factual summary set forth in Ross I, as supplemented by the following facts presented at the retrial.
"At the second trial, Medina said Norwood fired twice, with multiple shots being fired during each of the two bursts. However, she only stated that Kulick was hit during the second burst. Norwood's gun was a nine millimeter semi-automatic pistol modified to be fully automatic. At least eight shots were fired. Kulick was hit several times in the groin. Kulick's femoral arteries and veins were pierced and he slowly bled to death. Based on this evidence, the People ask us to infer, consistent with the first trial evidence, that Kulick was hit once during the first burst. However, there is no evidence to support such an inference from the retrial record." (Ross II, supra, B121714, at p. 5, fn. 4.)
"Although at the first trial neither defendant presented a defense, Ross testified at the retrial, presenting a false identification-complete innocence defense. Ross denied any participation in the planning or completion of the robbery. Ross denied ever being in Kulick's Ventura store. Ross likewise denied being present during the Culver City robbery and murder." (Ross II, supra, B121714, at pp. 7-8.)
C. Petition for Resentencing
On January 7, 2019, Ross filed a petition for resentencing under section 1170.95. The trial court appointed counsel and ordered briefing by the prosecution and defense counsel. The trial court issued a detailed written ruling applying the factors set forth in Banks and Clark. The court determined Ross was an active participant in the robbery and murder of Kulick and denied the petition.
Ross timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1170.95
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which eliminated the natural and probable consequences doctrine in cases of murder, and limited the application of the felony-murder doctrine. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493 (Verdugo).) The legislation also enacted section 1170.95, which provides a vehicle for persons who were convicted of murder pursuant to a now-invalidated theory to petition to have their conviction vacated and to be resentenced. (Ibid.; see § 1170.95, subd. (a).)
A person convicted of felony murder may petition the trial court for resentencing "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a), italics added.)
To obtain relief, a defendant must file a declaration affirming that he is eligible for resentencing under the new law. (See § 1170.95, subd. (b)(1).) The trial court considers the petition according to a three-step process. First, the court "review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) This is "a preliminary review of statutory eligibility for resentencing," akin to an initial review of a petition for resentencing under Propositions 36 and 47. (Verdugo, supra, 44 Cal.App.5th at p. 329.) "The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Ibid.)
If the petition survives this first stage of review, the court must appoint counsel if the petitioner has so requested. (§ 1170.95, subd. (c).) The prosecutor then files a response, and the petitioner may file a reply. The review at this stage "is equivalent to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings, which typically follows an informal response to the habeas corpus petition by the Attorney General and a reply to the informal response by the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 328.) Under this standard, "[i]f the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause" and conduct an evidentiary hearing. (§ 1170.95, subds. (c) and (d).)
B. The Special Circumstance Finding Renders Ross Ineligible for Resentencing Under Section 1170.95
Senate Bill No. 1437 amended section 189 to authorize a conviction for felony murder only if the defendant was the actual killer, aided and abetted in a first degree murder with the intent to kill, or was a major participant in the underlying crime who acted with reckless indifference to human life. (Verdugo, supra, 55 Cal.App.4th at p. 326; see § 189, subd. (e).) "These are identical to the requirements of a felony-murder special circumstance now" and in 1992 at the time of Ross's offense, as reflected in the instructions received by the jury in his retrial in 1998. (Allison, supra, 55 Cal.App.5th at p. 457.) Thus, as in Allison, the special circumstance finding shows as a matter of law that Ross still could be convicted of felony murder even under the newly amended version of section 189, and prevents Ross from making a prima facie case that he is eligible for resentencing. (Ibid.)
Ross argues that he is eligible for resentencing due to changes in the law regarding special circumstance allegations. In 2015 and 2016, the California Supreme Court clarified the circumstances under which a defendant could be deemed a major participant in an underlying felony who acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th 522; Banks, supra, 61 Cal.4th 788.) Relying upon People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835, and People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011, Ross contends that special circumstance findings which predate Banks and Clark are eligible for resentencing relief under section 1170.95.
We rejected this argument in Galvan and Allison, and decline to revisit those decisions here. The argument that pre-Banks/Clark special circumstance findings are not sufficient to preclude resentencing under section 1170.95 fails because it does not depend on Senate Bill No. 1437's changes to the felony-murder rule. Rather, as we concluded in Galvan and Allison, it depends on "the clarification of the requirements for the special circumstance finding in Banks and Clark," and not " 'because of changes' made by Senate Bill No. 1437." (Galvan, supra, 52 Cal.App.5th at p. 1142; see § 1170.95, subd. (a)(3); accord, Allison, supra, 55 Cal.App.5th at p. 458.)
Where, as here, "the prior [special circumstance] finding shows the petitioner meets the requirements for murder liability under amended sections 188 and 189, then it is not true that the petitioner could not be convicted of murder because of the changes to sections 188 and 189, and the petition must be denied." (Allison, supra, 55 Cal.App.5th at pp. 461-462, italics omitted.) C. Even if We Apply Banks and Clark Ross is Ineligible for Resentencing
In Galvan and Allison, we posited that a defendant who was sentenced under section 190.2 prior to the issuance of Banks and Clark could challenge the continuing validity of the special circumstance finding by filing a habeas corpus petition. (Allison, supra, 55 Cal.App.5th at p. 459, fn. 9; Galvan, supra, 52 Cal.App.5th at p. 1142.) In Ross's case, however, the trial court already has applied Banks and Clark to evaluate his eligibility for relief under section 1170.95, and the parties have briefed the application of the cases in this appeal.
In People v. Murillo (2020) 54 Cal.App.5th 160, 169, review granted Nov. 18, 2020, S264978 (Murillo), we applied Galvan to deny a petition for resentencing where the jury found a special circumstance allegation to be true, but we also affirmed the trial court's denial of relief on the independent ground that the petition failed as a matter of law even under the standards announced in Banks and Clark. Given the trial court's extensive written analysis of Banks and Clark, as well as the briefing by both parties, we adopt the approach followed in Murillo, and proceed to consider the application of Banks and Clark. As explained, we conclude that Banks and Clark do not alter the outcome of Ross's appeal.
In fact, the result here would be the same if the claim was asserted in a petition for habeas relief, because, as we explain, the undisputed material facts show that Ross was a major participant in the murder who acted with reckless indifference to human life. (See In re Scoggins (2020) 9 Cal.5th 667, 676 [to be entitled to habeas relief, a defendant must show " ' "there is no material dispute as to the facts relating to his conviction and . . . it appears that the statute under which he was convicted did not prohibit his conduct" ' "]; see also People v. Drayton (2020) 47 Cal.App.5th 965, 980 ["with respect to the trial court's assessment of whether the petitioner has made a prima facie showing of entitlement to relief under [§] 1170.95[, subd.] (c), we conclude habeas corpus procedures are sufficiently similar to provide a reasonable construction of the meaning of the relevant language in [subd.] (c)"].)
As explained in Murillo, our Supreme Court had occasion to clarify the legal standard to be applied under section 190.2 based on existing federal jurisprudence relative to felony murder culpability. (Murillo, supra, 54 Cal.App.5th at p. 169.) In Banks, the court "set out a series of considerations relevant to determining whether a particular defendant was a major participant in the underlying felony. These factors are as follows: '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?' " (Murillo, supra, at pp. 170-171, quoting Banks, supra, 61 Cal.4th at p. 803.)
In Clark, the court identified factors for determining whether a defendant acted with "reckless indifference to human life," as follows: "(1) The defendant's knowledge of weapons, the number of weapons used, and the defendant's own use of weapons; (2) the defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the felony; (4) the defendant's knowledge that his cohort was likely to kill; and (5) whether the defendant made efforts to minimize the risk of violence during the felony." (Murillo, supra, 54 Cal.App.5th at p. 171, quoting Clark, supra, 63 Cal.4th at pp. 618-622.)
In Ross II, we rejected Ross's sufficiency of the evidence challenge to the jury's special circumstance finding on retrial, summarizing the evidence of Ross's participation in the robbery-murder as follows:
"The evidence shows Ross masterminded the robbery, visiting Kulick's Ventura store to acquire information about the Culver City headquarters, thought of dressing Norwood as a postal worker to gain admittance; stole his ex-common-law wife's postal uniform to provide Norwood's disguise; supplied the fully-automatic (and thus far more lethal than usual) firearm that killed the victim; showed Norwood how to load the gun; and continued to look for additional loot after Norwood began spraying the business with gunfire, killing Kulick. This evidence demonstrates Ross was a major participant in robbing Kulick and acted with reckless indifference to human life." (Ross II, supra, B121714, at p. 11.)
Our prior assessment of the facts shows that even applying the Banks and Clark factors, Ross played a central role in planning the robbery; he was aware a firearm would be used to carry out the crime; he was present at the scene facilitating the actions of Norwood, opening file cabinets and ordering Medina to divulge the location of the alarm button; and he engaged in a physical struggle with Kulick while attempting to take his watch. Ross continued to participate in the robbery by taking Kulick's briefcase even after Norwood fired the first shot.
Ross challenges our conclusion in Ross II that he supplied the firearm that killed Kulick. Even if Ross did not supply the firearm, this does not undermine the facts showing that Ross was aware that a firearm would be used in the robbery, based on his preparations prior to the robbery, and Norwood's display of a gun on entering the office in a manner that was visible to Medina. These facts are sufficient to show Ross acted as a "major participant" as outlined in Banks. Similarly, the facts show that he acted with reckless indifference to human life as required by Clark, based on his knowledge that a firearm would be used, and his physical struggle with Kulick, which elevated the risk that Norwood could fire his weapon at any time.
As discussed above, in Ross I, we stated that "Ross had a shotgun and an 'Uzi,' " which the defendants practiced loading and unloading, whereas in Ross II, we stated that Norwood fired "a nine millimeter semi-automatic pistol modified to be fully automatic."
Ross argues that by examining the prior appellate opinions, the trial court engaged in unauthorized factfinding in determining whether he had made a prima facie case for section 1170.95 relief. This argument lacks merit. For purposes of review at the prima facie stage under section 1170.95, the trial court may review the "record of conviction," which includes the appellate decision on direct appeal. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, 331-333; People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598.)
Ross's contention that the trial court considered only Ross I in reaching its decision also is without merit. The record shows it was the trial court that initially alerted the parties to the second opinion in Ross II, and the court's written ruling denying Ross's section 1170.95 petition explicitly refers to both Ross I and Ross II.
Ross further argues that the trial court's analysis of the underlying facts failed to account for the "new relevant evidence" presented at the retrial. He maintains "that after Norwood start[ed] shooting, [Ross] turned to leave. Thus [Ross] did not exhibit 'reckless indifference,' but tried to avoid a grave risk of death by leaving before Norwood killed anyone." The facts presented at the retrial do not support this argument.
It is true that in Ross II, we concluded the evidence did not support an inference that Kulick was hit by the first burst of gunfire. However, there was no evidence presented during the retrial to undermine the finding in Ross I that "[a]s Ross and Kulick struggled," Norwood fired his weapon once. Then "Ross abandoned his attempt to take Kulick's watch and walked into the rear of the office," taking Kulick's briefcase before exiting the office. Ross claims that after the first shot, his "next act was to head to the door to leave and to abandon the robbery," but he points to no facts to support this conclusion. Certainly he did not present any such facts during his retrial testimony since he denied any participation in the robbery.
Moreover, whether Kulick was hit by gunfire by the first shot or by the subsequent shots fired as Norwood exited the office, Ross demonstrated reckless indifference to human life by entering the office with a cohort who he knew to be armed, engaging in a physical struggle with the victim while attempting to remove the victim's watch, and continuing his efforts to secure items of value by purloining Kulick's briefcase before leaving. The mere fact of exiting after Norwood fired the first shot does not equate to an "effort[ ] to minimize the risk of violence." (Clark, supra, 63 Cal.4th at p. 622). To the contrary, a more likely inference to be drawn from Ross's departure is that he saw his plan crumbling and decided to flee to avoid being caught. Indeed, Ross sought to capitalize on his escape by testifying at the retrial that he was never at the scene.
In sum, as we found in Murillo, even if we assume that a petition under section 1170.95 can be used to challenge a felony murder special circumstance finding, the record of conviction "establishes as a matter of law that [Ross] was a major participant who acted with reckless indifference to human life, as those terms were clarified in Banks and Clark, and [Ross] does not claim to have any new evidence on this issue. Therefore, even if his claim was cognizable under section 1170.95, he was not eligible for relief under that statute." (Murillo, supra, 54 Cal.App.5th at p. 173.)
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, Acting P. J.