Opinion
B332904
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. RICKY SIMUEL, Defendant and Appellant.
Randy Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General Plaintiff and Respondent, Nicholas J. Webster and Rama R. Maline, Deputy Attorneys General.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PA007417 Daniel B. Feldstern, Judge. Affirmed.
Randy Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General Plaintiff and Respondent, Nicholas J. Webster and Rama R. Maline, Deputy Attorneys General.
DAVIS, J. [*]
A jury convicted Ricky Simuel (defendant) of murder and robbery in 1992, after he and his accomplice robbed a jewelry store, and the accomplice shot and killed the store's owner. In 2021, defendant petitioned for resentencing under Penal Code section 1172.6. Following an evidentiary hearing, the trial court denied the petition, finding defendant was a major participant in the underlying robbery and acted with reckless indifference to human life. Sufficient evidence supports the trial court's findings. Accordingly, we affirm.
Subsequent statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
I. Evidence at Trial
According to the evidence presented at trial, on the afternoon of June 14, 1991, defendant and Thomas Prince entered a jewelry store located within a shopping center in the San Fernando Valley. Defendant carried a hammer and wore gloves, both of which he and Prince purchased earlier that day. Prince carried a gun. Both men wore long coats, notwithstanding that it was a warm June day. The store was open for business, and customers, employees, and the store's owner, Norman Schumow, were present.
Upon entering, Prince brandished the gun and demanded everyone "get down," threatening, "anyone moves, I am going to cap you." When Becky Barabos, a female customer (who later testified that she did not immediately drop to the floor because she was "frozen" by fear) remained standing, defendant yelled to her, "bitch, he means it." Ultimately Barabos dropped to the ground and her then-fiance lay on top of her.
Defendant then smashed one of the jewelry cases with a hammer and took several rings. Everyone in the store followed the demands to lie on the ground, except for the store owner, Norman Schumow, who "step[ped] forward." Prince shot Schumow twice in the chest, after which Schumow collapsed on top of Barabos and her fiance. Schumow died of gunshot wounds shortly thereafter. Defendant and Prince fled from the store in an Oldsmobile that was discovered abandoned soon after the robbery. Police recovered from the car a three-in-one bar tool, two pairs of gloves, and a hammer.
II. Prosecution, Conviction, and Appeal
The People charged defendant with murder (§ 187, subd. (a)) and robbery (§ 211), and alleged that a principal was armed in connection with both counts (§ 12022, subd. (a)(1)). A jury convicted defendant on both counts and found true the armed principal enhancement. The trial court sentenced defendant to 26 years to life in prison on the first count, including one year for the enhancement, and stayed the sentence on the second count.
The judgment of conviction was affirmed on direct appeal. (People v. Simuel (Dec. 20, 1993, B070924) [nonpub. opn.].)
III. Section 1172.6 Petition
In August 2021, defendant filed a petition for resentencing under section 1172.6. The trial court convened an evidentiary hearing, where both parties submitted on the trial transcripts. The trial court observed that this was a "carefully planned robbery" in a "confined space." The trial court further noted that Prince made, and defendant reinforced, verbal threats to "cap" those who refused to cooperate; defendant knew Prince was armed; and defendant "was near the person who was killed" such that he could have rendered aid. Based on these factors, the trial court found that defendant was a major participant in the underlying robbery who acted with reckless indifference to human life.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that insufficient evidence supports the trial court's finding, beyond a reasonable doubt, that defendant was a major participant in the underlying robbery who acted with reckless indifference to human life.
I. Standard of Review
We review the trial court's denial of a section 1172.6 petition after an evidentiary hearing for substantial evidence. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.) In so doing," 'we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier] of fact could reasonably have deduced from the evidence.'" (People v. Sifuentes (2022) 83 Cal.App.5th 217, 233.)
II. Senate Bill No. 1437 and Section 1172.6, Generally
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which substantially limited the scope of the felony-murder rule by eliminating the "natural and probable consequences" doctrine as a basis for a first degree murder conviction. (People v. Ramirez (2021) 71 Cal.App.5th 970, 983 (Ramirez); People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842843, 847-848.) Section 189, subdivision (e)(3), narrows the felony-murder rule to circumstances in which the defendant was both a "major participant" in the underlying felony and "acted with reckless indifference to human life," as described in subdivision (d) of section 190.2.
Section 190.2, subdivision (d), "by its text, imposes an actus reus requirement, major participation in the enumerated felony, and a mens rea requirement, reckless indifference to human life." (Ramirez, supra, 71 Cal.App.5th at p. 985; In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins); accord, People v. Clark (2016) 63 Cal.4th 522, 615 (Clark); People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) The statutory revision codifies the holding of Tison v. Arizona (1987) 481 U.S. 137, "which articulates the constitutional limits on executing felony murderers who did not personally kill." (Ramirez, at p. 985.)
Senate Bill 1437 also establishes a procedure for an individual convicted of felony murder under a no longer viable theory of murder liability to petition the court to vacate the murder conviction. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, including that he "could not presently be convicted of murder or attempted murder" because of the changes to sections 188 or 189, (§ 1172.6, subd. (a)(3)), the trial court must conduct an evidentiary hearing "to determine whether to vacate the murder conviction and . . . resentence the petitioner on any remaining counts." (Ramirez, supra, 71 Cal.App.5th at p. 984.)
At such an evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 and 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) At such a resentencing hearing, the trial court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law." (Ibid.)
III. "Major Participant" and "Reckless Indifference" Under Banks , Clark , and Scoggins
The overlapping factors for assessing whether a defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3), were identified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and reiterated in Scoggins, supra, 9 Cal.5th 667. (See generally Strong, supra, 13 Cal.5th at pp. 705, 707.)
To determine whether a defendant was a major participant, the Banks court has identified the following considerations: "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 the 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, at p. 803, fn. omitted.)
The Supreme Court has also clarified that "reckless indifference to human life" under the revised statute requires a greater showing than "the foreseeable risk of death inherent in any [violent felony]." (Scoggins, supra, 9 Cal.5th at pp. 676-677.) Rather, the standard requires proof beyond a reasonable doubt that the defendant "knowingly creat[ed] a 'grave risk of death.'" (Id. at p. 676.)
A defendant's involvement in an armed or violent felony is not, by itself, proof of reckless indifference to human life;" '[p]articipation in a 'garden variety armed robbery'" where "death might be possible but not probable" is insufficient. (Banks, supra, 61 Cal.4th at p. 802.) The "use of a gun in the commission of the underlying felony standing alone is not sufficient to support a finding of reckless indifference." (Ramirez, supra, 71 Cal.App.5th at p. 785.) Nor is" 'the fact a participant in an armed robbery could anticipate lethal force might be used'" sufficient to establish reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 677, quoting Clark, supra, 63 Cal.4th at pp. 617, 623, and Banks, supra, 61 Cal.4th at pp. 801, 808.) Rather, "reckless indifference" encompasses "a willingness to kill or to assist another in killing." (Clark, at pp. 616-617.)
The Supreme Court has enumerated nonexclusive factors relevant to the determination of "reckless indifference": 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? (Scoggins, supra, 9 Cal.5th at p. 677.)" 'No one of these considerations is necessary, nor is any one of them sufficient.'" (Ibid.)
"Courts must view the totality of the circumstances to determine whether the defendant acted with reckless indifference to human life." (Scoggins, supra, 9 Cal.5th at p. 677.) Youth is an additional factor bearing on whether a defendant acted with reckless indifference to human life. (E.g., People v. Keel (2022) 84 Cal.App.5th 546, 558-559 (Keel); Ramirez, supra, 71 Cal.App.5th at pp. 990-991; In re Moore (2021) 68 Cal.App.5th 434, 454-455.)
There is a "significant[ ] overlap" in the showing required to demonstrate acting as a major participant in a dangerous felony and acting with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-615.)" '[T]he greater the [defendant's] participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Id. at p. 615.)
IV. Sufficient Evidence Supported the Trial Court's Ruling
The evidence fully supported the trial court's finding that defendant was a "major participant" in the underlying felony. All of the evidence indicates that defendant and his accomplice acted in unison: They arrived at the crime scene simultaneously, they together purchased the gloves and hammer, they both wore long coats despite the warm June weather, and they acted in concert at the crime scene. While his accomplice held the gun, defendant destroyed the glass display cases and reinforced the accomplice's threat that anyone who moved would be shot. All of these facts support the trial court's conclusion that he was a "major participant."
The evidence also supported the trial court's finding that defendant acted with the requisite indifference to human life. Indeed, the evidence showed a prototypical "overlap" between defendant's role in the offense and his reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-615.) Although it was defendant's accomplice who held and fired the gun, defendant demonstrated an awareness of the shooter's propensity toward violence, and defendant amplified the shooter's threats, saying "bitch he means it" after the shooter threatened to "cap" anyone who moved. The entire crime involved two people: one who held the gun and the other who pocketed the valuables and reiterated the gunman's threats.
The evidence also supports the trial court's observations that the setting of the crime showed reckless indifference to human life. The shooting occurred during business hours when customers, the store owner, and employees were present. Although photographs and schematics from the 1992 trial are no longer available, sufficient surviving evidence supported the trial court's observation that the shooting occurred in a "confined space." Witnesses were in close enough proximity to observe the dilated pupils and facial expressions of defendant and his accomplice. The store was housed in a shopping center and was within a small enough space that a witness located at a retail establishment "two stores down" from the jewelry store was able to see defendant and his accomplice running from the crime scene. The store had only one entrance and was laid out in such a way that the length of the store could be captured in one photograph. When defendant's accomplice fired the gun, the people inside the jewelry store were in such close proximity that the victim collapsed and fell on top of a customer who had been restrained at gunpoint.
Defendant made no effort to dissuade his accomplice made no effort to assist the victim. After defendant's accomplice shot Schumow in the chest, defendant ran out of the store, with the stolen jewelry in his possession, and drove off with the shooter in the same car. Although the crime was executed quickly, defendant's actions were the culmination of a plan that spanned several hours, and included the purchase of tools and gloves and the coordination between the two accomplices.
Nor does defendant's youth (he was 22 at the time of the offense) negate his mental state. We note preliminarily that although neither the trial court nor counsel mentioned defendant's youth at the hearing on the petition, we "presume the trial court followed the law in exercising its duties and duly considered the evidence presented to it." (People v. Jones (2022) 86 Cal.App.5th 1076, 1092.) In any event, particularly given defendant's role as an equal and major participant, there is no evidence that defendant was influenced by peer pressure like the youthful defendant in Ramirez, supra, 71 Cal.App.5th at p. 991, or that he was subject to a youthful "recklessness, immaturity, and heedless risk taking" like the 15-year-old defendant in Keel, supra, 84 Cal.App.5th at page 562. To the contrary, defendant "made an intentional and volitional choice to take a calculated risk" such that "we see no reasonable likelihood that the trial court would have reached a different conclusion had it focused on [defendant's] age." (People v. Oliver (2023) 90 Cal.App.5th 466, 490.) For all of these reasons, we decline defendant's invitation to remand this matter for the trial court to consider defendant's youth to the extent it might not have previously.
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: BAKER, Acting P. J., KIM, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6 of the California Constitution.