People v. Marcus CA2/1 ( 2022 )

Filed 12/1/22 P. v. Marcus CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B300883
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA071844)
v.
ZECOREY LAMONT MARCUS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Reversed.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri, Michael Katz,
David E. Madeo and Marc A. Kohm, Deputy Attorneys General,
for Plaintiff and Respondent.
In 2019, the trial court summarily denied defendant
and appellant Zecorey Lamont Marcus’s petition under former
Penal Code1 section 1170.95 for resentencing on his murder
conviction. In a previous opinion, we affirmed, reasoning
that the jury’s finding of a felony-murder special circumstance
(§ 190.2, subd. (a)(17)) made Marcus ineligible for resentencing
as a matter of law.
The Supreme Court subsequently vacated our decision
and ordered us to reconsider the case in light of its decision in
People v. Strong (2022) 13 Cal.5th 698 (Strong). Both Marcus
and the Attorney General agree, as do we, that we must reverse
the denial of Marcus’s petition and remand the case for further
proceedings in the trial court.
FACTS AND PROCEEDINGS BELOW
The facts of the case are discussed below as described in
our opinion in Marcus’s direct appeal (People v. Galloway (June 8,
2012, B232165) [nonpub. opn.] (Galloway)).
A. The Robbery of Pedro Guerrero in
May 2008
“Anna Sanchez, a friend of defendants Galloway
and Marcus, testified that she drove defendants to a convenience
store in Gardena and waited for them in her car while they went
into the store to buy rolling papers for marijuana and orange
juice. After a short time, Galloway came out of the store and told
Sanchez to park her car across the street because he was going
to rob a man he had seen in the store cashing a check. Moments
1 Subsequent statutory references are to the Penal Code.
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after Sanchez moved her car, defendants came running toward
her. Galloway was holding a black revolver. Defendants jumped
into Sanchez’s car and Galloway told Sanchez: ‘Go, go, go.’
Sanchez drove away as Galloway handed the gun to Marcus in
the backseat. She asked them what happened ‘and they said
they robbed the man that was in the store cashing his check.’
Sanchez identified defendants from a surveillance video shot
from within the store.
“Pedro Guerrero testified that he went to a store in
Gardena to cash a check for $450.00. As he sat in his car, putting
away his money, two men walked up. One man pointed a black
gun at Guerrero’s head. ‘They told me to give them the money
or that they would kill me,’ Guerrero testified. Guerrero gave
the money to the man with the handgun. He did not report
the robbery to police because he was afraid but he told the
storekeeper about it. A week later the police located Guerrero
and showed him photographic lineups and he identified a
photograph of Galloway as the man who robbed him with a
handgun.” (Galloway, supra, B232165.)
B. The Murder of Hae Sook Roh in May 2008
“Five days after the Guerrero robbery, at approximately
6:45 p.m., Arthenia Thomas heard gunfire coming from the
direction of a T-shirt shop in Gardena and saw two men running
from the shop and down the street toward a restaurant where she
lost sight of them. Her only description of the two men was that
they were wearing black ‘hoodies’ and had bandanas over their
faces. A few minutes later a silver four-door car drove ‘really fast’
out of the restaurant parking lot. Because the windows were
tinted, Thomas could not tell how many people were in the car.
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Thomas testified that the car depicted in People’s exhibit 4 looked
like the car she saw leaving the parking lot.
“When the police responded to the shooting, they found the
body of Hae Sook Roh, who had worked at the T-shirt shop, lying
dead behind the counter near the cash register.
“The prosecution showed the jury an audio and video
recording from a surveillance camera in the T-shirt shop. The
video showed a black male with a gun in his left hand entering
the area in front of the cash register. The man wore white pants,
a long white T-shirt and an open waist-length jacket. He had
a white cloth tied across his face below his eyes. The bottom
left hand portion of the video showed the pant leg and shoe of a
second person. The audio portion of the tape contained the voice
of the man with the gun saying: ‘Give it up. Give it up. Give
me the money.’ A second voice said[,] ‘Give him the money’
and then the gunman fired at Roh saying, ‘Bitch. Give it up.’
He repeated[,] ‘Give it up’ and then shot Roh two more times,
grabbed the money from the register and ran. The gun was not
recovered. The take from the robbery-murder was approximately
$35.
“Sanchez testified that she was at Galloway’s house on
the day of the murder. When it started to get dark, Galloway
went to the trunk of his mother’s car and changed into basketball
shorts, a white T-shirt and waist-length jacket. He then began
waiting in front of the house. A gray Chevrolet Impala with
tinted windows pulled up in front of the house. Someone inside
the car opened the back door, and as Galloway got in, Sanchez
saw Marcus lean over. Sanchez identified the car shown in
the People’s exhibit 4 as the car she saw that evening. The
same car returned to Galloway’s house 20 to 30 minutes later
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and Galloway got out. Sanchez observed that Galloway was
breathing heavily, his palms were sweating and he was acting
‘like he was nervous and scared.’ Galloway told her that ‘he
shot a lady at the T-shirt place.’ He ‘started laughing like it was
funny’ and said ‘the bitch wouldn’t die. So he just had to keep
shooting her.’ Sanchez asked Galloway why he shot the lady and
Galloway replied that he was mad because he wanted to rob the
store but ‘right before he walked in, she dropped the money [in
the floor safe] [a]nd so he shot her.’
“A few days later Galloway showed Sanchez a YouTube
video of the murder and robbery at the T-shirt shop. He laughed
again while he watched it. Sanchez recognized Galloway on the
video because he was wearing the same clothes he wore when
he left his mother’s house the evening of the murder. She also
recognized the gun in the video as the gun Galloway had used
in the robbery of Pedro Guerrero.” (Galloway, supra, B232165.)
C. The Defendants’ Custodial Statements
“After defendants were arrested, they were seated next
to each other on a bench in a hall of the jail. The bench had a
hidden recording device. The prosecution played the recording
of the defendants’ conversation to the jury. In that conversation
Galloway told Marcus that the police showed him a picture
of Marcus inside the store just before the Guerrero robbery.
Marcus acknowledge[d] he [would] have to serve 15 years for
the robbery but told Galloway that if he got bailed out ‘I’m gone.’
Galloway told Marcus not to worry because he admitted the
robbery and told the police Marcus had nothing to do with it
and that he didn’t even know Marcus. Later in the conversation,
Galloway admitted his involvement in the murder. Marcus also
admitted being at the scene of the murder, noting that the video
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showed him wearing the same shoes that he was wearing when
he was arrested.” (Galloway, supra, B232165.)
D. The Credibility of Sanchez
“Sanchez admitted she played a role in the robbery of
Guerrero, that she pleaded guilty to that crime, that she was
in custody at the time of her trial testimony and that she was
receiving lenient treatment in her sentencing in exchange for
her testimony against defendants. She also admitted that she
had previously been convicted of forgery and the unlawful taking
of a motor vehicle.
“Sanchez further admitted that she had been a regular
user of marijuana for six to nine months prior to the murder
of Roh; that she ‘smoke[d it] every day’; and that she had
smoked marijuana just before the Guerrero robbery and was
feeling ‘mellow’ at the time. Sanchez testified that she smoked
a type of marijuana known as ‘Chronic’ which, she agreed, is a
‘particularly potent’ and ‘intense’ form of the drug. In addition
to smoking marijuana, Sanchez stated that on weekends she used
Ecstasy. ([This court took] judicial notice that the T-shirt robbery
and murder were not committed on a weekend.) She testified
that she stopped using any drugs after May 12, 2008, the date of
the robbery-murder.
“The defense called a forensic toxicologist who testified
that in his opinion someone who smoked Chronic every day over
a six- to nine-month period would suffer from confusion, delusion
and ‘disoriented perception.’ ” (Galloway, supra, B232165.)
A jury convicted Marcus of one count of first degree
murder (§ 187, subd. (a)), and found true a felony-murder
special circumstance allegation (§ 190.2, subd. (a)(17)). The
jury also convicted him of two counts of robbery (§ 211), and
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found true allegations of gang and firearm enhancements on
all three counts. The court imposed a sentence of life without
the possibility of parole for murder, plus an additional 25 years
to life for the firearm enhancement. On appeal, we struck the
gang enhancements for lack of substantial evidence, as well as
the firearm enhancements, which were invalid without a gang
enhancement (see § 12022.53, subd. (e)(1)(A)), but we otherwise
affirmed the judgment. (See Galloway, supra, B232165.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases
of murder, and limited the application of the felony-murder
doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843.)
Under the new law, a conviction for felony murder requires proof
that the defendant was either the actual killer, acted with the
intent to kill, or “was a major participant in the underlying felony
and acted with reckless indifference to human life.” (§ 189, subd.
(e)(3).) The legislation also enacted former section 1170.95,
which established a procedure for vacating murder convictions for
defendants who could no longer be convicted of murder because
of the changes in the law and resentencing those who were so
convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.) In 2021,
the Legislature enacted Senate Bill No. 775 (2021−2022 Reg.
Sess.) (Stats. 2021, ch. 551), which clarified and amended certain
aspects of Senate Bill No. 1437. The Legislature subsequently
renumbered former section 1170.95 as section 1172.6 without
further substantive change. (See Stats. 2022, ch. 58, § 10.)
Marcus filed a petition for resentencing on February 26,
2019. The trial court appointed counsel to represent Marcus and
forwarded the petition to the district attorney. After obtaining
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briefing from both parties, the trial court denied the petition on
the ground that the record in the case showed as a matter of law
that Marcus was not entitled to relief. The court found that the
facts of the case, as described in our prior opinion, “establish[ ]
that [Marcus] was, at a minimum, a major participant in the
murder and acted with reckless indifference to human life during
the course of the murder.”
DISCUSSION
In our prior opinion in this case, we affirmed the denial
of Marcus’s resentencing petition on the ground that the record
showed as a matter of law that he was ineligible for relief. We
noted that a felony-murder special-circumstance finding requires
proof at a minimum that the defendant acted “with reckless
indifference to human life and as a major participant” (§ 190.2,
subd. (d)) in the underlying felony. This is identical to the
showing required for felony murder under the law as amended
by Senate Bill No. 1437. (See § 189, subd. (e)(3).) To be eligible
for resentencing, a defendant must first make a prima facie case
that he “could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective”
as a part of Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) Marcus
could not meet this requirement because the special-circumstance
finding meant that he remained guilty of murder despite the
change in the law.
The Supreme Court in Strong agreed with us that a
prior special-circumstance finding would ordinarily disqualify a
defendant from resentencing under section 1172.6. (See Strong,
supra, 13 Cal.5th at p. 715.) But the court held that an exception
applied to defendants like Marcus who were convicted of special-
circumstance felony murder before the court issued its opinions
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in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522, clarifying the meaning of “major
participant” and “reckless indifference to human life.” (Strong,
supra, at pp. 706–707.) The decisions in Banks and Clark
“represent the sort of significant change that has traditionally
been thought to warrant reexamination of an earlier-litigated
issue” that the principle of issue preclusion would otherwise
forbid. (Id. at p. 717.) For this reason, the court concluded that
a pre-Banks/Clark felony-murder special-circumstance finding
does not disqualify a defendant from resentencing relief under
section 1172.6. (Strong, supra, at p. 720.)
We agree with both Marcus and the Attorney General that,
under Strong, there is no basis for denying Marcus’s petition at
the prima facie stage. At this stage, the court “should not engage
in ‘factfinding involving the weighing of evidence or the exercise
of discretion.’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,]
980.) . . . [T]he ‘prima facie bar was intentionally and correctly
set very low.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 972.)
The court, in evaluating whether the defendant has made a
prima facie case, may not “independently examine[ ] the record
and determine[ ], applying the Banks and Clark standards, that
sufficient evidence supports the earlier findings.” (Strong, supra,
13 Cal.5th at p. 719.)
Because Marcus has made a prima facie case for
resentencing, the trial court must issue an order to show cause
and conduct further proceedings in the case. (See § 1172.6,
subd. (c).)
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DISPOSITION
The trial court’s order denying the petition for resentencing
is reversed. On remand, the trial court shall issue an order
to show cause and conduct further proceedings as specified in
section 1172.6.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
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