Opinion
A164650
06-23-2023
THE PEOPLE, Plaintiff and Respondent, v. DARREN SEWELL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 84490B)
TUCHER, P.J.
In 1987, a jury convicted Darren Sewell of murder and robbery. Sewell was sentenced to an aggregate term of 25 years to life plus 16 months in prison. In 1989, the judgment was affirmed by a different panel of this court. (People v. Sewell (Dec. 14, 1989, A040701) [nonpub. opn.] (Sewell I).)
The present appeal is from an order denying Sewell's 2019 petition to vacate his murder conviction and resentence him for robbery. (Pen. Code, § 1172.6.) According to the petition, Sewell was convicted of murder pursuant to a theory of vicarious liability that is no longer viable and he could not presently be convicted of murder under California law as amended by changes to sections 188 and 189, made effective January 1, 2019. After issuing an order to show cause and conducting an evidentiary hearing, the trial court denied Sewell's petition. On appeal, Sewell contends the trial court made erroneous evidentiary rulings and challenges the sufficiency of the evidence to support the trial court's findings. We affirm.
Statutory references are to the Penal Code, unless another statute is cited. Sewell filed his resentencing petition under former section 1170.95, which was subsequently amended effective January 1, 2022, in order "to clarify certain aspects of the law." (People. v. Guiffreda (2023) 87 Cal.App.5th 112, 123 (Guiffreda); see Senate Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, § 1.) Effective June 30, 2022, former section 1170.95 was amended again and renumbered as section 1172.6 without any substantive change. (People v. Vargas (2022) 84 Cal.App.5th 943, 947, fn. 2 (Vargas); see Stats. 2022, ch. 58, § 10.)
BACKGROUND
I. The Murder and Robbery Convictions
On December 21, 1985, Earl McKeever was found dead in his home by fire department officers responding to a report of arson. Sewell and his acquaintance, Michael Pinkston, were arrested in connection with McKeever's death and subsequently charged with multiple offenses, including murder, robbery, and arson.
At an April 1986 preliminary hearing, the prosecution presented evidence regarding the crimes committed against McKeever, a 38-year-old man who had been severely disabled by cerebral palsy and was also hearing impaired. On December 21, 1985, at around 1:27 a.m., police were dispatched to McKeever's Berkeley residence in response to a report of a homicide. When they arrived, McKeever's dead body was outside on a stretcher. His throat was cut, and he had been stabbed multiple times. The inside of his home had sustained substantial fire damage and showed signs of a theft. Police found a bloody butcher knife with a broken tip on the floor near a pool of blood and a second smaller knife wrapped in a cloth. McKeever's father reported that many items were missing from his son's home, and that McKeever's van was also gone. Fire investigators determined that McKeever's residence was the target of arson. The results of an autopsy established that McKeever was stabbed more than 38 times and that he died from shock and hemorrhage due to multiple stab and incised wounds associated with a fracture of his larynx.
At the preliminary hearing, the prosecution also presented evidence that Sewell was McKeever's assailant. In December 1985, he was employed by McKeever to do light housekeeping, prepare evening meals, and help McKeever with nighttime routines. At around 3:00 a.m. on December 21, less than two hours after McKeever's body was found, Sewell and Pinkston showed up at the home of Sewell's friend, Travis Davis. Sewell wanted to talk to Davis's brother, Finnard Brown, but Brown was not home. Sewell told Davis that he and Pinkston had just killed someone, and if "anything was to go down" Davis was to say that they had been at Davis's house. Sewell also asked Davis if he knew where to sell "T.V. sets." Later that morning, Sewell called Brown and asked him to tell people that Sewell and Pinkston had been at Brown's home the previous night between 8:30 and 9:00 p.m. When Brown asked why, Sewell said he "killed somebody," and then hung up. A few days later, Sewell called Brown again and told Brown that he had "got over on some T.V.'s and things." Brown asked who Sewell had killed, to which Sewell responded that he had killed his "boss" because his boss "saw them taking his stuff." Subsequently, when Brown was interviewed by police, he reported that Sewell told him that Pinkston had shot Sewell's boss. While investigating McKeever's homicide, the police found McKeever's missing van parked a few blocks away from Sewell's home.
In October 1986, Sewell filed a motion to sever his case from Pinkston's case for purposes of trial on the ground that Pinkston had made extra-judicial statements identifying Sewell as the person who actually killed McKeever. Sewell argued that admitting Pinkston's statements into evidence at a joint trial would violate Sewell's rights. Months later, in May 1987, the trial court denied a motion to suppress Pinkston's confession to the police, and granted motions to sever the defendants' cases for trial.
Sewell's jury trial was held in June 1987. The trial transcript is by all accounts no longer available. According to a minute order from day six of trial, Pinkston invoked his Fifth Amendment right not to testify as a prosecution witness. On day ten, the jury reached a partial verdict. Sewell was found guilty of first degree murder and robbery, but the jury deadlocked as to the arson charge. The jury was also unable to reach a unanimous verdict as to an allegation that Sewell personally used a knife during commission of the murder, but it found that Sewell did not personally use a knife as a deadly weapon or personally inflict great bodily injury on McKeever during the robbery.
Sewell's sentencing hearing was held in November 1987. The court found, among other things, that the crime was brutal, the victim was vulnerable, Sewell suborned perjury, attempted to secure a false alibi, and attempted to dissuade witnesses from testifying against him. The one mitigating factor found by the court was Sewell's lack of a prior criminal record. The court also made a record of the fact that it had considered a report from the Youth Authority, which had completed an assessment of Sewell's case because he was a minor when the crimes were committed. The People "fully" concurred with the report, which found Sewell was not amenable to being housed at the Youth Authority. The prosecutor argued further that Sewell was not eligible for such a commitment. The defense disagreed and asked the court to defer the matter and allow the "adult authority" to decide where Sewell would be housed. The court denied this request, ordering Sewell to be sentenced to state prison for his offenses.
On appeal, Sewell points out that Proposition 57, approved by voters in 2016, now requires that criminal charges against minors be filed in juvenile court. (See People v. Keel (2022) 84 Cal.App.5th 546, 563.) Sewell contends he is entitled to the benefit of Proposition 57 if his petition is granted. We do not address the matter further, in light of our disposition.
In considering whether to impose consecutive sentences for the murder and robbery, the court observed that the trial evidence showed that an initial robbery occurred before the murder, and the killing was not inherently related to that original robbery but was committed in order to prevent McKeever from being a witness. Accordingly, the court sentenced Sewell to a principal term of 25 years to life for murder and a consecutive term of 16 months for the robbery.
In December 1989, the judgment was affirmed in Sewell I. According to the decision's summary of the procedural history of this case, the "prosecution's theory was that McKeever was killed in the course of a robbery perpetrated by Sewell and Pinkston and that Sewell was thus guilty of robbery and felony murder." Sewell I also reflects that the jury was instructed regarding the felony murder rule and the law pertaining to aider and abettor liability. The appellate court rejected claims that the trial court erred by failing to instruct the jury on theft as a lesser included offense of robbery and involuntary manslaughter as a lesser included offense of murder, finding insufficient evidence to support either instruction. The Sewell I court also found Sewell's consecutive sentence for robbery did not violate section 654 because the evidence showed that the killing of McKeever was not part of the robbery but a separate act based on the separate objective of covering up a robbery.
II. Sewell's Resentencing Petition
In his January 2019 petition for resentencing, Sewell alleged that he was charged and convicted of McKeever's murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of that murder because of changes to section 188 and 189 that went into effect on January 1, 2019. Sewell alleged further that he was not the actual killer; he did not, with intent to kill, aid, abet or assist the actual killer; and he either was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony. The trial court appointed counsel for Sewell and ordered briefing on the petition.
In a May 2019 response to the petition, the People argued Sewell was not eligible for resentencing. They acknowledged "this case was a felony murder," and that the verdict indicates the jury did not believe Sewell was the actual killer. Nevertheless, the People argued that assuming Sewell was not the actual killer, they could prove that he is guilty of McKeever's murder under current law, based on evidence establishing he was a major participant in the crime and acted with reckless indifference to human life. (Citing People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).)
In a July 2019 reply brief, Sewell argued that he had made a prima facie case for resentencing relief and that the People could not carry their burden of proving him guilty of murder as an aider and abettor because the record from his jury trial has been destroyed.
A hearing on Sewell's resentencing petition was continued multiple times. On January 26, 2022, the court found Sewell made a prima facie case in support of his request for resentencing, issued an order to show cause, and proceeded directly to the evidentiary phase of the proceeding pursuant to a stipulation with the parties. The evidentiary hearing was held over two court days, with significant time spent resolving disputes about what evidence the court could consider under the recently enacted amendment to former section 1170.95, subdivision (d)(3). This provision, now designated as section 1172.6, subdivision (d)(3) (section 1172.6(d)(3)), states, in part:
Apparently, several factors contributed to the delay: the COVID-19 pandemic accompanied by fact that Sewell was released on parole in March 2020; the failure to locate a trial transcript and related issues about what evidence could be considered; and the trial court's temporary unavailability relating to a medical procedure.
"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 to 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."
On the first day of the evidentiary hearing, the court made the following rulings about evidence that would be considered. First, the court would consider preliminary hearing testimony since this evidence was admitted at a hearing in the underlying case and would be admissible at a preliminary hearing today. In reaching this conclusion, the court rejected Sewell's contention that the preliminary hearing transcript was inadmissible under Evidence Code section 1291, because the People could not satisfy requirements for admitting former testimony of unavailable witnesses.
Second, the court would not consider the autopsy report, but would consider the preliminary hearing testimony of the doctor who conducted McKeever's autopsy. Neither party disputed that the report itself was inadmissible. Third, pursuant to the parties' stipulation, the court would consider evidence submitted by Sewell pertaining to how factors of youth are relevant to issues of criminal intent. Relatedly, also pursuant to a stipulation, the court would consider physical characteristics of Sewell and his co-defendant at the time of the murder. Specifically, Pinkston was 18 years old, 5'11", and weighed 152 pounds, while Sewell was 17 years old, 5'6", weighed 140 pounds, and had no criminal record.
Finally, the court sought further briefing regarding whether or how to consider the transcript from Sewell's sentencing hearing, and the appellate decision in Sewell I. The court was inclined to construe the section 654 analysis in these documents as findings by the trial court and appellate court respectively that the murder of which Sewell was convicted was not a felony murder, and it sought guidance as to whether it could consider these findings in ruling on Sewell's eligibility for resentencing.
At the continued hearing, the People elected not to rely on section 654 evidence, thus confining the inquiry to whether Sewell was guilty of felony murder as (1) a major participant in the underlying felony who (2) acted with reckless indifference to human life. To determine whether the People proved Sewell's guilt under this theory, the court applied factors outlined by our
Supreme Court in Clark, supra, 63 Cal.4th 522, 611 and Banks, supra, 61 Cal.4th at p. 803. Ultimately, the court concluded Sewell was a major participant in the robbery of his disabled boss, and his actions during and after the robbery established his reckless disregard for human life. Finding the People carried their burden of proving "beyond a reasonable doubt . . . that Mr. Sewell is guilty of this murder even if he's not the actual killer," the court denied Sewell's petition.
DISCUSSION
Sewell challenges the denial of his petition on multiple grounds, which we divide into two distinct categories. First, we address contentions that the trial court erred in its determinations about what evidence to consider, and then we turn to Sewell's sufficiency of the evidence arguments.
I. Evidence Considered at the Evidentiary Hearing
A. Preliminary Hearing Transcript
Sewell contends first that the trial court violated section 1172.6 by relying on the preliminary hearing transcript in order to determine whether Sewell could be guilty of murder under the current law. We disagree.
As Sewell acknowledges, a statute's language is the most reliable indicator of legislative intent, and such language should be given its usual and ordinary meaning. (See People v. Lawrence (2000) 24 Cal.4th 219, 230; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) Although section 1172.6(d)(3) does not contain express language stating that a preliminary hearing transcript is admissible at the evidentiary hearing, a plain reading of the statute compels this conclusion. First, the provision unambiguously provides that a trial court ruling on the merits of a resentencing petition "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony . . ." Second, section 1172.6(d)(3) expressly contemplates that preliminary hearing testimony in particular will be considered at the evidentiary hearing by adding a proviso that the trial court may not consider hearsay testimony that was admitted into evidence at a preliminary hearing under subdivision (b) of section 872, unless some other hearsay exception applies.
Section 872, subdivision (b), allows a qualified law enforcement officer to testify at a preliminary hearing as to hearsay statements, "[n]otwithstanding section 1200 of the Evidence Code."
In this case, the record shows that the People relied on evidence in the form of witness testimony that was previously admitted at Sewell's preliminary hearing in 1986. Sewell does not dispute this same evidence would be admissible at a preliminary hearing today. Nor does Sewell contend that the trial court based its decision on otherwise inadmissible hearsay that was previously admitted at the preliminary hearing under section 872. Thus, the trial court did not violate section 1172.6(d)(3) by considering the preliminary hearing transcript.
Sewell's argument to the contrary is based on an untenable interpretation of the statutory requirement that evidence admitted at the resentencing hearing must be "admissible under current law." (§ 1172.6(d)(3).) He posits that evidence that was admitted at a prior hearing must be analyzed as former testimony when determining if it is admissible under current law and, therefore, cannot be considered at a resentencing hearing unless the People comply with Evidence Code section 1291, by showing that witnesses who testified at the preliminary hearing are no longer available and that Sewell had the same motive for cross-examining those witnesses at the preliminary hearing as he would have were they to be examined for the first time at the resentencing hearing.
Sewell overlooks the fact that section 1172.6(d)(3) expressly authorizes consideration of prior testimony without conditioning such consideration on compliance with Evidence Code section 1291. By its nature, the inquiry at an evidentiary hearing in a resentencing proceeding will almost always turn on whether evidence previously admitted against the defendant establishes guilt under the current law. Section 1172.6(d)(3) requires that such evidence must be admissible under the current law in the sense that it would be admissible if the hearing or trial at which it was previously admitted was held today. The statute does not state or intimate that evidence must be admissible today as former testimony, or make any reference to Evidence Code section 1291. To the contrary, section 1172.6(d)(3) carves out an exception from compliance with the Evidence Code for "evidence previously admitted at any prior hearing or trial."
Sewell's construction of the statute also conflicts with published authority authorizing trial courts to consider preliminary hearing testimony when ruling on a resentencing petition. (See e.g. People v. Davenport (2021) 71 Cal.App.5th 476, 485, fn. 3; People v. Garrison (2021) 73 Cal.App.5th 735, 747-748.) Sewell argues these cases are inapposite as they address former section 1170.95 prior to its amendment in January 2022, when courts were authorized to consider the defendant's "record of conviction," and this statutory language has since been deleted. If Sewell is suggesting that the January 2022 amendment changed the law by providing that preliminary hearing testimony is no longer admissible at a resentencing hearing, we disagree. If anything, the amended language clarifies that preliminary hearing testimony is admissible, for the reasons we have discussed. Indeed, our conclusion is reinforced by cases decided since the January 2022 amendment went into effect, which continue to treat preliminary hearing testimony as admissible. (People v. Patton (2023) 89 Cal.App.5th 649, 652, fn. 2 [considering facts taken from witness testimony at preliminary hearing, while disregarding any testimony that was admitted under section 872, subd. (b)]; Guiffreda, supra, 87 Cal.App.5th at p. 120 [court and parties relied on preliminary hearing transcript at evidentiary hearing in section 1172.6 proceeding].)
By separate argument, Sewell contends a preliminary hearing transcript is inadmissible under current law because it constitutes testimonial hearsay, and the admission of testimonial hearsay against a criminal defendant violates the confrontation clause of the Sixth Amendment. (Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).) Sewell forfeited this claim by failing to raise it in the trial court. (People v. Redd (2010) 48 Cal.4th 691, 730-731 [criminal defendant did not preserve Sixth Amendment claim by objecting to evidence on hearsay ground]; People v. Dykes (2009) 46 Cal.4th 731, 756 ["failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"].) Even if this claim could be raised now, it fails.
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford, supra, 541 U.S. at p. 42.) A section 1172.6 evidentiary hearing is not a criminal prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) "The panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing." (People v. Duran (2022) 84 Cal.App.5th 920, 931, italics omitted.) Rather, the retroactive relief provided by this law" 'is a legislative "act of lenity" intended to give defendants serving otherwise final sentences the benefit of ameliorative changes to applicable criminal laws and does not result in a new trial or increased punishment.'" (Vargas, supra, 84 Cal.App.5th at p. 952.) Accordingly, the relief afforded by Senate Bill 1437 is" 'not subject to Sixth Amendment analysis.'" (People v. James (2021) 63 Cal.App.5th 604, 609 [collecting cases]; see e.g. People v. Schell (2022) 84 Cal.App.5th 437, 444 ["Courts have unanimously held that section 1172.6 is an act of lenity in which the petitioner has no Sixth Amendment right to a jury trial"].)
B. Evidence Pertaining to Sewell's Youth
As noted, Sewell was 17 when McKeever was murdered, and at his resentencing hearing he proffered expert testimony regarding "adolescent brain science within the context of the legal system." On appeal, Sewell contends that the trial court committed reversible error by failing to consider Sewell's youth at the time of the murder as a relevant factor when evaluating whether he acted with reckless disregard for human life.
Some courts, including this one, have found that a defendant's youth is a relevant factor in determining whether a criminal defendant acted with reckless disregard to human life. (In re Moore (2021) 68 Cal.App.5th 434, 454 (Moore); see e.g. People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 (Jones) [discussing issue in context of resentencing matter].) As our background summary reflects, the parties in this case stipulated that the trial court could consider evidence pertaining to Sewell's youth when the crimes were committed, including expert testimony regarding adolescent brain development. Moreover, the court stated expressly that it would consider age-related evidence submitted by the defendant. Thus, the record undermines Sewell's contention that this evidence was not considered.
Sewell intimates that the trial court did not actually consider evidence pertaining to Sewell's youth despite stating it would do so. Developing this theory in his reply brief, Sewell argues the court likely did not realize that a defendant's age and maturity level are extremely relevant when assessing criminal intent because case law to that effect was relatively new when the petition was decided. First, courts have long recognized that the mental and emotional maturity of a youthful defendant are relevant when assessing culpability. (Moore, supra, 68 Cal.App.5th at p. 453; see e.g. Miller v. Alabama (2012) 567 U.S.460, 476.) Second, the presumption on appeal is that the lower court knew and followed the applicable law. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) The presumption is strengthened here, where the issue was thoroughly briefed and argued below, the trial court stated it would consider evidence pertaining to factors of youth, and we find nothing in the record to indicate that the court did otherwise. To the extent Sewell contends that factors pertaining to his youth mandated a different outcome, we will consider his arguments in the context of our sufficiency of the evidence review.
II. Sufficiency of the Evidence
Sewell contends the evidence does not support the requisite findings for concluding that Sewell is guilty of McKeever's murder under the current law pertaining to felony murder. As noted, the People had to prove beyond a reasonable doubt that Sewell is guilty of murder under amended section 189. (§ 1172.6(d)(3).) The trial court acted as an independent factfinder in assessing the evidence. (People v. Ramirez (2021) 71 Cal.App.5th 970, 984 (Ramirez).)
A. Overview of Legal Principles and Standard of Review
"Senate Bill 1437 amended section 189 to limit the scope of the felonymurder rule, requiring the People to prove beyond a reasonable doubt that the defendant 'was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2,'" (Ramirez, supra, 71 Cal.App.5th at p. 985; see § 189, subd. (e)(3); People v. Montanez (2023) 91 Cal.App.5th 245, 265.) "The new law was designed '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.'" (People v. Sifuentes (2022) 83 Cal.App.5th 217, 228 (Sifuentes).)
Section 190.2, subdivision (d) (section 190.2(d)) addresses a special circumstance that warrants an enhanced penalty for a defendant convicted of first degree murder who was not the actual killer. By incorporating the requirements of section 190.2(d), amended section 189 "imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Banks, supra, 61 Cal.4th at p. 798.)" 'These requirements significantly overlap . . . for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615.) However, satisfying one of the two distinct elements does not automatically or necessarily satisfy the other. (Id. at p. 616.)
In the context of a resentencing proceeding, we review factual findings by the trial court for substantial evidence. (Ramirez, supra, 71 Cal.App.5th at p. 985; Vargas, supra, 84 Cal.App.5th at p. 952.) Sewell acknowledges this standard but argues this court should independently review the trial court's factual findings because they are based solely on documentary evidence, and thus are undeserving of deference. We join other courts that have rejected this argument. (Sifuentes, supra, 83 Cal.App.5th at p. 232; People v. Clements (2022) 75 Cal.App.5th 276, 302; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591.) As our Supreme Court held in a similar context, "even if the trial court is bound by and relies solely on the record of conviction to determine eligibility, [where] the question . . . remains a question of fact . . . we see no reason to withhold the deference generally afforded to such factual findings." (People v. Perez (2018) 4 Cal.5th 1055, 1066.)
Sewell relies on People v. Vivar (2021) 11 Cal.5th 510, which does not apply. Vivar adopts an independent review standard for a decision on a section 1473.7 motion to vacate a conviction due to a change in the law that affords relief to people who face adverse immigration consequences relating to their prior convictions. (Vivar, at p. 517.) The Vivar court based its holding on factors not applicable to a resentencing petition, including that section 1473.7 motions depend predominantly on questions of law. (Vivar, at pp. 524-527.) Moreover, the court expressly limited its holding to review under section 1473.7, and reaffirmed the "familiar postulate" that "when reviewing a ruling under the substantial evidence standard, 'an appellate court should defer to the factual determinations made by the trial court,' regardless of 'whether the trial court's ruling[s are based] on oral testimony or declarations.'" (Vivar, at p. 528, fn. 7.)
B. The Major Participant Requirement
To be a major participant in the underlying crime, a person must have substantial personal involvement beyond that of an ordinary aider and abettor. (Banks, supra, 61 Cal.4th at p. 802; Clark, supra, 63 Cal.4th at p. 619.) Banks delineates five non-inclusive factors to consider when evaluating the totality of the circumstances to determine if a defendant was a major participant in a crime that resulted in a death: (1) the defendant's role in planning the criminal enterprise; (2) the defendant's role in supplying or using lethal weapons; (3) the defendant's awareness of dangers posed by the crime; (4) the defendant's presence at the scene, and actions or inactions relating to the death; and (5) the defendant's conduct after lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.)
In this case, the trial court found that four out of the five Banks factors indicate Sewell was a major participant in the robbery that resulted in McKeever's death. To the extent the crimes were planned, Sewell was the person with primary access to the victim and he had knowledge about the victim that his co-defendant did not have. It did not appear that Sewell supplied the weapons, nor did the evidence establish that Sewell used a lethal weapon. However, the court found beyond a reasonable doubt that Sewell was aware of the danger posed by the nature of the crime, particularly to this victim, as the evidence showed that the killing was "a long, drawn-out, torture murder," and that Sewell had "intimate awareness of the victim's disability." Moreover, Sewell was present at the scene of the killing and in a position to facilitate or prevent the murder. Finally, Sewell's conduct after lethal force was used showed that he was indeed a major participant, as he took the victim's property, tried to set up an alibi, and made admissions that he killed his boss.
Each of these factual findings is supported by substantial evidence presented at the preliminary hearing in Sewell's murder case. As the trial court recognized, it was Sewell rather than his co-defendant who had a personal relationship with the victim because he was employed as McKeever's caregiver, which also shows that Sewell had access to McKeever's home and was aware of McKeever's vulnerabilities relating to his severe disabilities. This evidence supports a reasonable inference that Sewell planned, or at least participated in planning, the robbery. Sufficient evidence also supports the finding that Sewell was present during the crime and either did nothing to prevent McKeever's death or actively facilitated it, as he was the person who sought a false alibi for the time period when the crime was committed and admitted to his friends that he and/or Pinkston killed McKeever. Moreover, evidence pertaining to the manner of death shows that the killing was neither abrupt nor unstoppable, but a drawn-out brutal attack, which afforded ample opportunity to intervene. Finally, Sewell's conduct after McKeever was murdered is also strong evidence of his major participation in these crimes. In addition to seeking a false alibi, Sewell took McKeever's van and attempted to sell items that were stolen from McKeever's home. These actions demonstrate active, substantive involvement in the robbery that culminated in McKeever's murder.
Sewell contends in summary fashion that "there was not enough evidence to make findings as to many" of the Banks factors. For example, he claims there is no evidence of a criminal plan. We disagree. Evidence that a severely disabled man was stabbed multiple times and that his property was taken, his van stolen, and his apartment set afire is evidence that a criminal plan was made and implemented. That portions of the plan may have been devised on the spot does not mean there was no plan. Sewell also disputes the finding that he was physically present when the crime was committed, suggesting he could have been in a different room of McKeever's one-bedroom apartment when Pinkston killed McKeever. But even if we entertain this speculative theory, to have been in the next room during such a long, drawn-out attack was to have been physically present, in the sense that Sewell would have had to have heard the brutality occurring in such close proximity. And if, as Sewell also postulates, he was busy ferrying property to the van, the back and forth of that activity would have placed him in the apartment during at least part of the protracted violence. And when present, Sewell had ample opportunity to intervene, as only one other young man was involved in the robbery-murder. Moreover, Sewell's admissions and efforts to secure an alibi contribute to the substantial evidence that he was present during the robbery and murder.
Finally, Sewell appears to contend that the jury verdict from his prior trial precluded the court from making a finding in this proceeding that Sewell was a major participant in the underlying felony. According to this argument, (1) the court was bound by the jury finding that Sewell did not personally use a deadly weapon, and (2) this finding in turn precluded the court from concluding that Sewell was a major participant in the robbery. The first prong of Sewell's argument is irrelevant as the record clearly shows that the trial court did not disregard or contradict the jury verdicts. The second prong of this argument is simply wrong.
The presumed fact in this section 1172.6 proceeding-that Sewell was not the actual killer because he did not personally use a knife-does not preclude finding he was a major participant. The entire purpose of the trial court's inquiry was to determine whether a defendant who was not the actual killer is nevertheless guilty of felony murder because he was a major participant in the underlying felony and acted with reckless disregard for human life. In conducting that inquiry, the court concluded that Sewell may have actively facilitated the violence (without personally using a knife) or alternatively he may have "stood by and watched while his partner stabbed this disabled man that he was employed to take care of, 35 times, and cut his throat, and choked him, and set him on fire." We find no evidence that McKeever's body was set on fire, but aside from that statement, the court's findings are supported by substantial evidence.
C. The Reckless Indifference Requirement
As noted, participation in the underlying crime is insufficient by itself to show reckless indifference. (Clark, supra, 63 Cal.4th at p. 616.) However, "[r]eckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (In re Scoggins (2020) 9 Cal.5th 667, 676 (Scoggins).) Moreover, a willingness to kill or assist another in killing in order to achieve a distinct aim constitutes reckless indifference" 'even if the defendant does not specifically desire that death as the outcome of his actions.'" (Id. at pp. 676-677.)
The reckless indifference requirement has a subjective and objective component. (Clark, supra, 63 Cal.4th at p. 617; Banks, supra, 61 Cal.4th at p. 801.) "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." '" (Scoggins, supra, 9 Cal.5th at p. 677.)
Clark identifies the following factors as potentially relevant when considering if a defendant acted with reckless disregard for human life: whether the defendant knew a weapon would be used or himself used a weapon, and the number of weapons that were used; whether the defendant was physically present at the crime and had an opportunity to restrain the crime or aid the victim; the duration of the interaction between the victim and the perpetrators; whether factors bearing on the likelihood that a cohort would kill the victim were known to the defendant prior to or during the commission of the felony; whether the defendant attempted to minimize the risk of violence during commission of the felony. (Clark, supra, 63 Cal.4th at pp. 618-623; Scoggins, supra, 9 Cal.5th at p. 677.)
In the present case, the trial court considered the Clark factors in making its separate finding that Sewell acted with reckless disregard for human life. The court found that the evidence showed, "at the very least," that Sewell had knowledge of the weapons and the manner they were used, as the murder was committed in front of him even if he did not actively participate in the lethal violence. Sewell also had the opportunity to "restrain the crime" and to "aid the victim" during a crime that "went on for some period of time, perhaps . . . an hour or more." Regardless of whether Sewell had reason to believe Pinkston would commit murder, the court found it "very, very overwhelmingly clear here that Mr. Sewell did nothing to minimize the risk of violence during the felony."
The linchpin of this reckless indifference finding was Sewell's presence during the crime, which is a fact substantially supported by the evidence, as we have already explained. Regardless of whether Sewell had prior knowledge of knives in the home, he was present when those knives were used as weapons to kill McKeever. His physical presence during the crime afforded him the opportunity to" 'act as a restraining influence'" on his murderous cohort and to "render aid" to the victim. (Clark, supra, 63 Cal.4th at p. 619.) Failing to act under such circumstances supports an inference that the defendant shared the mental state of the actual killer. (Ibid.) Moreover, the court's finding that "this crime went on for some period of time" is also supported by evidence regarding the manner of death and the extensive injuries that McKeever sustained. So, whether or not Sewell had prior knowledge of the likelihood Pinkston would commit murder, he became aware of that fact during the period that the crime was being committed and he did nothing to minimize the risk of a lethal outcome.
Sewell contends that even if he was present during the crime, the trial court's assumption that he could have controlled Pinkston or restrained the crime is inconsistent with evidence establishing that he was younger and physically smaller than Pinkston. We disagree with Sewell that physical differences between these individuals were so significant as to undermine the trial court's findings. Both defendants were young, Pinkston only a year older than Sewell. And, although Pinkston was 12 pounds heavier than Sewell, he was almost half a foot taller, which tells us little about the relative strength of the two young men.
Sewell mistakenly relies on the absence of evidence that he knew of Pinkston's propensity for violence before they committed the robbery. Knowledge of factors bearing on a cohort's likelihood of killing "may be evident before the felony or may occur during the felony." (Clark, supra, 63 Cal.4th at p. 621.) In this case, evidence regarding the nature and manner of McKeever's death support the finding that the duration of the interaction between the victim and perpetrators was long, and during that period Sewell must have at least observed Pinkston's violent conduct, yet he disregarded the ongoing risk that Pinkston was likely to kill McKeever.
Finally, Sewell appears to contend that his youth at the time of the offense gives rise to a presumption that he lacked the mental state required to act with reckless disregard for human life. He relies on the testimony of his expert witness that the typical adolescent involved in an armed robbery would be unable to appreciate the graver risk of death and therefore would be unable to consciously disregard that risk. And he posits that there is no evidence that he was sufficiently mature at the age of 17 to appreciate the risks involved in participating in the robbery of McKeever.
The "defendant's youth is a relevant factor in determining whether the defendant acted with reckless indifference to human life." (Moore, supra, 68 Cal.App.5th at p. 454.) It is not necessarily dispositive, as Sewell appears to contend, but the defendant's age is part of the totality of the circumstances that courts will consider when applying the Banks/Clark factors for assessing whether the defendant acted with reckless indifference. (Moore, at pp. 454-455; Jones, supra, 86 Cal.App.5th at pp. 1091-1092; see also In re Harper (2022) 76 Cal.App.5th 450, 470 ["[a]ssuming without deciding that youth is a proper factor among many" that a court "may" consider].)
Moore involved a defendant who was 16 when he and his friends stole a car and drove to a mall where one friend got out of the car, committed an armed robbery, and then shot and killed one of the victims. (Moore, supra, 68 Cal.App.5th at pp. 440-442.) After the defendant was convicted of murder and robbery, he filed a petition for writ of habeas corpus challenging the sufficiency of the evidence to support the jury's felony-murder specialcircumstance finding under section 190.2(d). (Moore, at p. 439.) Another panel of this court granted the petition. Applying Clark and Banks, the Moore court found that the totality of the circumstances did not establish that the defendant acted with reckless indifference to human life. (Moore, at p. 451.) Dispositive factors included that the defendant did not use a gun himself and there was no evidence he supplied the gun used by his associate; the defendant was sitting in a car when the robbery and shooting occurred, leading the People to concede it was unlikely he could have prevented the shooting once his associate left the car; and there was no evidence that the defendant knew of past violent activity by his associate or instructed that person to use lethal force. (Id. at pp. 452-453.)
The Moore court rejected the People's contention that the jury's finding of reckless indifference was supported adequately by evidence that the defendant helped plan the robbery, failed to render aid to the victims, and laughed with his friends soon after the shooting. (Moore, supra, 68 Cal.App.5th at p. 453.) Declining to decide whether this evidence would support a finding of reckless indifference as to an adult, the court found it insufficient to establish that the defendant at 16 had the requisite mental state, given the" 'hallmark features' of youth-'among them, immaturity, impetuosity, and failure to appreciate risks and consequences.'" (Id. at p. 454.) When viewed through the lens of the defendant's youth, the evidence did not establish beyond a reasonable doubt that the defendant "was subjectively aware that his actions created a graver risk of death than any other armed robbery," the court found. (Ibid.)
Applying the reasoning of Moore, supra, 68 Cal.App.5th 434, to the facts of this case, we reach a different conclusion. Importantly, this was not an armed robbery during which a cohort suddenly and unexpectedly discharged a firearm. It was a prolonged stabbing attack committed against a disabled victim who was known to Sewell, and in contrast to Moore, our consideration of the Clark factors supports the finding that Sewell acted with reckless indifference to human life. We note some illustrative distinctions: The Moore defendant stayed in a car when his cohort jumped out to commit the armed robbery and then shot one of the victims for no apparent reason (Moore, at p. 452), whereas in this case Sewell was physically present and actively participated in the robbery during which McKeever was stabbed more than 38 times and suffered a fractured larynx. In Moore, evidence that the defendant fled the scene with his friends without attempting to render aid was tempered by evidence that other people in the crowded parking lot could have assisted the victims. (Ibid.) Here, by contrast, Sewell and his cohort targeted an isolated vulnerable victim whom Sewell knew personally, and after McKeever was killed, Sewell attempted to sell McKeever's property and to secure false alibis for himself and Pinkston. Viewing Sewell's conduct through the lens of his youth does not undermine the finding that Sewell acted with subjective and objective indifference to human life.
Sewell cites two resentencing cases involving defendants who were convicted of committing felony-murder when they were juveniles. (Ramirez, supra, 71 Cal.App.5th 970; People v. Harris (2021) 60 Cal.App.5th 939.) In Ramirez, the victim was shot during an attempted carjacking, the defendant had no opportunity to intervene in the sudden shooting, and "did nothing to elevate the risk of the underlying felony beyond those inherent in any armed carjacking." (Ramirez, at p. 988.) Moreover, the fact that the defendant was only 15 "greatly diminish[ed] any inference he acted with reckless disregard for human life" that might otherwise be drawn from the fact that he knew his cohort was armed. (Id. at pp. 990-991.) In Harris, an order denying the defendant's resentencing petition before an evidentiary hearing could be held was reversed for reasons unrelated to the fact that he was 17 when he participated in an arson-murder, although the court observed the defendant's youth was a relevant factor to be considered on remand. (Harris, at pp. 944, 960.) These cases, distinguishable on their facts, do not alter our conclusions here. Sewell's youth is a relevant factor but it does not override substantial evidence supporting the finding Sewell acted with reckless disregard for human life.
DISPOSITION
The order denying Sewell's petition for resentencing is affirmed.
WE CONCUR: FUJISAKI, J., RODRIGUEZ, J.