People v. Pickett CA1/1 ( 2022 )

Filed 12/12/22 P. v. Pickett CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A164945
v.
ERICC PICKETT, (Solano County
Super. Ct. No. VC42909)
Defendant and Appellant.
Defendant Ericc Pickett was charged with murder, robbery, and
carjacking for his participation with a juvenile in the 1996 killing of David
Iano.1 The special circumstance that the murder happened during a robbery
was also alleged. Pickett ultimately pleaded guilty to one count of first
degree murder, and the remaining counts and enhancements were dismissed.
He was sentenced to 25 years to life in prison.
In 2019, Pickett filed a petition for relief under Penal Code former
section 1170.95 (now § 1172.6).2 That statute was enacted as part of Senate
Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which altered
It appears that Pickett actually spells his first name “Erricc,” but it is
1
spelled as “Ericc” in official documents throughout the record.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered
2
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) All further
statutory references are to the Penal Code unless otherwise noted.
1
liability for felony murder. Under section 1172.6, eligible defendants may
petition to have their murder convictions vacated and be resentenced.
After appointing counsel for Pickett, the trial court concluded that he
had made a prima facie showing of entitlement to relief and issued an order
to show cause. The court then held an evidentiary hearing at which the
primary evidence was the preliminary hearing transcript, to which Pickett
stipulated as the factual basis for his plea, and the testimony of a new
witness. Based on this evidence, the court concluded beyond a reasonable
doubt that Pickett, who the prosecution conceded was not the actual killer,
was “a major participant” in the underlying felony and “acted with reckless
indifference to human life” under section 189, subdivision (e)(3). Accordingly,
the court denied his petition for relief.
On appeal, Pickett does not challenge the trial court’s finding that he
was a major participant in the underlying felony but claims that insufficient
evidence supports the finding that he acted with reckless indifference to
human life. We agree.3 Thus, we reverse and remand with directions to
grant the petition for resentencing.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Proceedings Leading to Pickett’s Conviction for Murder
Iano was murdered in Vallejo in September 1996. As we discuss in
more detail below, evidence was presented at the preliminary hearing that
Pickett, who was 21 years old at the time of the murder, wished to steal a
3 As a result, we need not address Pickett’s claim that the trial court’s
acceptance of his plea constituted an implied finding that he did not act with
reckless indifference to human life, based on law governing the ability to
dismiss special circumstances as a part of a plea bargain.
2
truck that Iano offered for sale. Iano took Pickett and Pickett’s acquaintance,
17-year-old Shannon Secrease, for a test drive in the truck. An argument
ensued, and Secrease shot Iano in the head while Iano was driving the
vehicle. Pickett and Secrease dumped Iano, who was still breathing, on the
side of the road, and Pickett was apprehended with Iano’s truck two weeks
later.
Based on this evidence, Pickett was charged with murder, second
degree robbery, and carjacking. The information alleged a special
circumstance rendering Pickett eligible for the death penalty, that the
murder was committed during a robbery. It was also alleged that Pickett was
armed with a firearm while committing all three crimes.4
In September 1997, Pickett pleaded guilty to one count of first degree
murder, and the remaining counts and enhancements were dismissed. He
stipulated to the preliminary hearing transcript as the factual basis for his
plea. The following month, Pickett was sentenced to 25 years to life in prison
and did not appeal from the judgment.5
The charges were brought under sections 187, subdivision (a)
4
(murder), 211 (robbery), and 215, subdivision (a) (carjacking). The special
circumstance was alleged under section 190.2, subdivision (a)(17), and the
firearm enhancements were alleged under section 12022, subdivision (a).
Secrease was tried as an adult and sentenced to life without the
5
possibility of parole after a jury convicted him of first degree murder and
carjacking and found true the special circumstance that the murder was
committed during a carjacking. (People v. Secrease (2021) 63 Cal.App.5th
231, 235, judg. vacated and cause remanded for further consideration in light
of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021)
11 Cal.5th 952 (Lewis).) Division Four of this court, which affirmed his
convictions in 2001 (Secrease, at p. 235), recently reaffirmed its reversal of
the trial court’s denial of his petition under former section 1170.95. (People v.
Secrease (Oct. 17, 2022, A158342) [nonpub. opn.].) The prosecution here did
not seek to introduce any material from Secrease’s case. Therefore, we do not
consider evidence presented in that proceeding.
3
B. The Evidence Presented at the Preliminary Hearing
Around 3:00 p.m. on September 15, 1996, Iano was found bleeding on
the side of the road near the General Mills plant in Vallejo. He was still
breathing when help arrived but soon passed away. The forensic pathologist
who performed his autopsy testified that Iano died from a single gunshot
wound, which was caused by a bullet that entered his right temple and exited
the left side of his head. The shot was fired from “an intermediate range,”
meaning “the muzzle of the firearm was close enough” to result in “powder
stippling” around the entry point.
A woman who was dating Secrease at the time testified that on the
afternoon of September 15 she drove with him and Pickett to Vallejo. On the
way, Secrease told her that he and Pickett “were going to get a truck.”
Secrease also stated, “I’m about to pull a lick,” but his girlfriend testified that
he was merely repeating a lyric from a song then playing on the radio.
When the group arrived in Vallejo, Secrease, who was driving his own
car, parked in a Raley’s parking lot across the street from Iano’s house.
Pickett and Secrease left on foot, and Secrease’s girlfriend stayed in the car.
The girlfriend testified that half an hour to 45 minutes later, Secrease
returned alone, got in the car with her, “and just sped off.” She did not see
blood on Secrease when he returned to the parking lot, but she later noticed
blood on his jacket’s lining.
After leaving Vallejo, Secrease and his girlfriend went to her San Pablo
home. The girlfriend testified that Secrease “called around to see where
[Pickett] was,” and Pickett showed up at her house within a few hours.
Pickett and Secrease spoke to each other, but Secrease’s girlfriend was on the
phone and did not pay attention to what they said. Eventually, the two left,
4
and she saw them again only once before they were arrested. She never
heard Pickett say anything about what had happened in Vallejo.
Two weeks later, on September 29, 1996, a San Pablo police officer
located Iano’s truck, which was reported stolen after his death. Pickett, who
lived across the street from where the truck was parked, approached the
officer and asked “if there was a problem with the truck because it was his.”
The officer told Pickett the truck was stolen and detained him. Pickett gave
the officer the truck’s keys and stated “that he and a friend had purchased
[the] truck from a white male adult who had come by his residence . . . a few
weeks earlier.”
Vallejo police officers arrived and Pickett was transported to the Vallejo
police department. During his initial interview, Pickett stated that on the
day of the murder he was in front of his San Pablo home playing football with
friends, and “a guy was driving back and forth in his truck and they struck
up a conversation.” According to Pickett, the man wanted to sell his truck,
and “a day or two later” he returned and sold it to Pickett and “a partner.”
When Pickett was interviewed again, he changed his story. He
reported that on the day of the murder, he drove to Vallejo with Secrease and
Secrease’s girlfriend. On the way, Pickett “had [the] thought” that he and
Secrease should carjack Iano, and he told Secrease, “[M]aybe we should get
him for it.” Pickett claimed he made the statement “jokingly,” however, and
he and Secrease “laughed about it.”
Pickett told police that after he and Secrease left the car at the Raley’s
parking lot, the two went to Iano’s residence and spoke to Iano about buying
the truck. The three “took a short ride in the truck around the block” and
returned to Iano’s residence, at which point Iano said he had to take care of
something and Pickett and Secrease “would have to return a little later.”
5
According to Pickett, he and Secrease then went back to the Raley’s
parking lot, got something to eat nearby, and “returned a second time” to
Iano’s residence. They and Iano took “a second test drive” in Iano’s truck.
Pickett stated that Iano was driving, Pickett was in the middle, and Secrease
was to Pickett’s right.
Pickett reported that “the test drive was going fine” until they drove to
“a remote area with some train tracks . . . in the General Mills area.” Iano
and Secrease “had some kind of a verbal argument” during which Iano used a
racial slur (the n-word). To Pickett’s surprise, Secrease “extended his arm
across [Pickett’s] body, . . . pointed a handgun at [Iano,] and shot him in the
head.” The “truck was still driving,” so Pickett “climbed over [Iano] to take
control of [it],” pulled to a stop, and “helped [Secrease] push the body out of
the [truck].” He and Secrease then drove back to the Raley’s parking lot.
Pickett dropped Secrease off and drove Iano’s truck back to San Pablo.
The truck had “some trouble” while Pickett was driving it, so he had to
park it “somewhere short of reaching his residence.” He told police that later
that day, “he met back up with [Secrease], and they retrieved the truck” and
brought it back to Pickett’s residence. Then, the two “washed the truck to
remove the blood.”
C. The Proceedings on Pickett’s Resentencing Petition
Pickett filed a petition for relief under former section 1170.95 in
January 2019, shortly after Senate Bill 1437 took effect. In support of the
petition, Pickett alleged that he was convicted of felony murder and could no
longer be convicted of that crime under amended section 189.
Later that month, the trial court appointed counsel for Pickett and
directed the prosecution to file a responsive brief. The prosecution filed a
brief in which it argued that Pickett was not entitled to relief because the
6
underlying facts showed he was a major participant in the underlying felony
and acted with reckless indifference to human life. After Pickett submitted a
reply brief, the court concluded he had made a prima facie showing of
entitlement to relief and issued an order to show cause.
In November 2020, the trial court held an evidentiary hearing at which
the primary evidence was the preliminary hearing transcript and a new
witness’s testimony. The new witness, a friend of Pickett’s, testified that she
was driving in Vallejo with Pickett the month before the murder when they
saw a truck with a “For Sale” sign. Pickett told her “[t]hat he was going to
inquire about it.”
Within a week or so, Pickett and the woman spoke about the truck
again. Pickett told her he wanted to steal the truck so he could remove the
engine and put it in his own car. He also told her that “he needed someone
dumb enough to give him a ride” to go get it and intended to take Secrease
with him. Finally, the woman indicated that Pickett also said something like
“he didn’t want to kill the guy, however if he had to, he would.” According to
her, Pickett had a gun during the time period in question, although she
denied “know[ing] him to carry that firearm on his person.”
After Iano was murdered, the woman visited Pickett in jail. She
testified that Pickett told her “that [Secrease] had panicked and reached over
him and just shot the man for no reason.” Pickett also said that after Iano
was shot, “he was slumped over on [Pickett] and [Pickett] pushed him away,
off of him.” Pickett confirmed to her that he took Iano’s truck and transferred
its engine to his own vehicle as he had planned. Pickett also told the woman
that he and Secrease subsequently gave another man Pickett’s gun, but
Pickett did not specify that his gun was the weapon used to kill Iano.
7
Based on the preliminary hearing transcript and the new testimony,
the trial court concluded beyond a reasonable doubt that Pickett was “a major
participant” in the underlying robbery and “acted with reckless indifference
to human life” under amended section 189, subdivision (e)(3), meaning that
he was not entitled to resentencing. The court found that the record failed to
establish that Pickett’s gun was used to kill Iano, that Pickett himself had or
used a gun, or that he “directed [Secrease] to use the gun.”6 Nonetheless, the
court determined that there was “substantial, credible evidence that at the
time . . . [Pickett] initiated the plan to do the robbery, . . . he knew or should
have known that it was going to result in the death [of] or injury to Mr. Iano.”
Particularly convincing to the trial court was Pickett’s “handling of
Mr. Iano’s body” after the shooting, which it found “dispositive.” The court
explained, “[T]he dumping of a dying man on the side of the road goes beyond
reckless. It’s obscene.” Though “it would have been difficult for [Iano] to
survive[,] . . . that opportunity to try to survive was totally denied in an
insanely callous and inhumane way.” Questioning whether the murder really
“was a major surprise to Mr. Pickett,” the court stated that “any doubt
disappears in the moments thereafter in the manner in which he handles the
body.” It concluded that, combined with “the recklessness of getting the
juvenile to assist in the crime” and “the manner in which the crime occurred,”
Pickett’s post-murder behavior established reckless indifference to human
life.
Pickett appealed the denial of his resentencing petition to this court.
(People v. Pickett, A161446.)7 In October 2021, shortly after the appeal
The trial court stated some of these findings after making its original
6
ruling denying Pickett’s resentencing petition.
We grant Pickett’s request for judicial notice of the record in the prior
7
appeal. (See Evid. Code, § 452, subd. (d).)
8
became fully briefed, Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate
Bill 775), which amended former section 1170.95, was signed into law. In
response, this court remanded the matter to the trial court for it to consider
whether the amendments, which took effect on January 1, 2022, altered the
court’s conclusion that Pickett was not entitled to relief.
On remand, the parties submitted additional briefing, but no further
evidence was presented. In March 2022, after hearing argument from the
parties, the trial court again denied Pickett’s resentencing petition. This
appeal followed.8
II.
DISCUSSION
A. General Legal Standards
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, 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.’ [Citation.] In addition to substantively
amending sections 188 and 189 . . . , Senate Bill 1437 added section 1170.95,
which provides a procedure for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.” (Lewis,
supra, 11 Cal.5th at p. 959.)
8 When this court remanded for the trial court to reconsider its ruling
in light of Senate Bill 775, we stayed the original appeal. In doing so, we
contemplated that if Pickett’s petition was denied again, we would dissolve
the stay and consider the later ruling in the original appeal. Pickett filed a
new notice of appeal from the trial court’s March 2022 ruling, however, so we
dismissed the original appeal and allowed this appeal to be briefed. Neither
party objected to this procedure.
9
It is uncontested that Pickett was convicted of felony murder. Murder
“committed in the perpetration of, or attempt to perpetrate, . . . carjacking . . .
[or] robbery . . . is murder of the first degree.” (Former § 189, now § 189,
subd. (a).)9 At the time of Iano’s murder, “a defendant could be found guilty
of felony murder under this statute as an aider and abettor so long as [the
defendant] had ‘the specific intent to commit the underlying felony’ and, in
furtherance of that intent, committed acts from which death resulted.
[Citation.] In other words, an aider and abettor of the underlying felony was
held ‘ “strictly responsible for any killing committed by a cofelon, whether
intentional, negligent, or accidental, during the perpetration or attempted
perpetration of the felony.” ’ ” (In re Taylor (2019) 34 Cal.App.5th 543, 550
(Taylor).)
As we explained in Taylor, “[u]ntil 1990, ‘state law made only those
felony-murder aiders and abettors who intended to kill eligible for a death
sentence.’ [Citation.] That year, the voters passed Proposition 115, which
made eligible for death ‘every person, not the actual killer, who, with reckless
indifference to human life and as a major participant,’ aids and abets a
specified felony, including robbery, that ‘results in the death of some person
or persons, and who is found guilty of murder in the first degree therefor, . . .
if a[n enumerated] special circumstance . . . has been found to be true.’ ”
9 It is unclear from the record whether the trial court concluded the
underlying felony was robbery, carjacking, or both. The distinction between
these crimes does not matter for purposes of this appeal, and we will refer to
the underlying felony as a robbery. In doing so, however, we express no
opinion as to how the court should resentence Pickett on remand. (See
§ 1172.6, subd. (e) [if a petitioner is entitled to relief, “murder was charged
generically, and the target offense was not charged,” “[t]he petitioner’s
conviction shall be redesignated as the target offense or underlying felony for
resentencing purposes”].)
10
(Taylor, supra, 34 Cal.App.5th at p. 550, quoting § 190.2, subdivision (d); see
§ 190.2, subd. (a)(17).) “Among those special circumstances is participation in
a robbery murder.” (Taylor, at pp. 550–551, citing § 190.2, subd. (a)(17)(A).)
“That a murder was committed during another felony under section 189,
however, is ‘insufficient of itself to establish a felony-murder special
circumstance’ under section 190.2[, subdivision ](d) [Citation.] Rather, a
defendant who . . . ‘aided and abetted the underlying felony but was not the
actual killer’ and did not have an intent to kill ‘must aid and abet the
commission of the felony “with reckless indifference to human life and as a
major participant” ’ for the special circumstance to be imposed.” (Taylor, at
p. 551; § 190.2, subd. (d).)
Section 190.2, subdivision (d), “was designed to codify 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. Tison and a
prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782,
collectively place conduct on a spectrum, with felony-murder participants
eligible for death only when their involvement is substantial and they
demonstrate a reckless indifference to the grave risk of death created by their
actions.” (People v. Banks (2015) 61 Cal.4th 788, 794 (Banks).) Banks and a
follow-up decision, People v. Clark (2016) 63 Cal.4th 522 (Clark), “explain[ed]
what it means for an aiding and abetting defendant to be a ‘major
participant’ who acted with a ‘reckless indifference to human life.’ ” (In re
Miller (2017) 14 Cal.App.5th 960, 964.) Based on the conclusion that
section 190, subdivision (d), “ ‘must be accorded the same meaning’ as the
principle discussed in Tison and Enmund and ‘must be given the same
interpretation irrespective of whether the defendant is subsequently
sentenced to death or life imprisonment without parole,’ ” Banks and Clark
11
elucidated a number of factors to be considered in determining whether,
under the totality of the circumstances, a defendant was a major participant
in the underlying felony who acted with reckless indifference to human life.
(Taylor, supra, 34 Cal.App.5th at pp. 551–553.)
Senate Bill 1437 amended section 189 to provide that a defendant who
was not the actual killer or did not have an intent to kill is not liable for
felony murder unless 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.” (§ 189, subd. (e); Strong, supra,
13 Cal.5th at p. 703.) Thus, amended section 189 uses the same standard for
finding a special circumstance under section 190.2, subdivision (d), to define
when such a defendant is liable for felony murder. (Strong, at p. 703.) In
other words, only defendants who are also death eligible under section 190.2
may now be convicted of felony murder in the first place.
To pursue relief under section 1172.6, a petitioner “file[s] a petition
with the court that sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be resentenced
on any remaining counts.” (§ 1172.6, subd. (a).) If, as here, the trial court
concludes that the petition states a prima facie case for relief and issues an
order to show cause, the court must then “hold a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter
conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not previously
been sentenced, provided that the new sentence, if any, is not greater than
the initial sentence.” (§ 1172.6, subd. (d)(1).) “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty
12
of murder or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).) “If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to the conviction,
shall be vacated and the petitioner shall be resentenced on the remaining
charges.” (Ibid.)
Originally, former section 1170.95 provided that at the hearing to
determine the petitioner’s entitlement to relief, the parties could “rely on the
record of conviction or offer new or additional evidence to meet their
respective burdens.” (Former § 1170.95, subd. (d)(3).) Senate Bill 775
amended this provision to elaborate on the evidence that may be admitted at
the hearing. Now, section 1172.6, subdivision (d)(3), provides, “The
admission of evidence in the hearing shall be governed by the Evidence Code,
except that the [trial] 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.”
“While the superior court acts as an independent fact finder in
determining whether the People have met their burden” to establish a
defendant is not entitled to resentencing under section 1172.6, “on appeal,
the reviewing court applies the substantial evidence standard to the superior
court’s findings.” (People v. Vargas (2022) 84 Cal.App.5th 943, 951.) Under
this familiar standard, we ask whether the record contains “substantial
13
evidence . . . —i.e., evidence that is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in
the light most favorable to the prosecution and presume in support of the
[ruling] the existence of every fact the [court] could have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the [fact finder] . . . to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.’ ” (People v. Zamudio (2008)
43 Cal.4th 327, 357.)
B. Insufficient Evidence Supports the Finding that Pickett Acted
with Reckless Indifference to Human Life by Knowingly Creating
a Serious Risk of Death.
Pickett claims that the prosecution failed to carry its burden to prove
beyond a reasonable doubt that he acted with reckless indifference to human
life by knowingly creating a serious risk of death. We agree.
In Banks, the Supreme Court was primarily focused on the “major
participant” element, but the decision established “the general proposition
that ‘felony murderers . . . who simply had awareness their confederates were
armed and armed robberies carried a risk of death . . . lack the requisite
reckless indifference to human life’ because ‘only knowingly creating a “grave
risk of death” satisfies the constitutional minimum.’ ” (Taylor, supra,
34 Cal.App.5th at p. 557, quoting Banks, supra, 61 Cal.4th at pp. 809, 808;
Strong, supra, 13 Cal.5th at p. 706.) In other words, “simple participation in
. . . a ‘garden-variety armed robbery’ [is] not sufficient, without more,” to
establish the required mental state. (Strong, at p. 719; Taylor, at p. 559.)
14
Clark discussed the “reckless indifference to human life” element in
more detail, explaining that it “encompasses a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of [the defendant’s] actions.”
(Clark, supra, 63 Cal.4th at pp. 616–617.) “Reckless indifference to human
life has a subjective and an objective element. [Citation.] As to the
subjective element, ‘[t]he defendant must be aware of and willingly involved
in the violent manner in which the particular offense is committed,’ and [the
defendant] must consciously disregard ‘the significant risk of death [the
defendant’s] 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 [defendant’s] conduct and the circumstances
known to [the defendant], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in [the
defendant’s] situation.” ’ . . . Notably, ‘the fact a participant [in or planner of]
an armed robbery could anticipate lethal force might be used’ is not sufficient
to establish reckless indifference to human life.” (In re Scoggins (2020)
9 Cal.5th 667, 677 (Scoggins).)
As Banks did for the “major participant” element, Clark “set out a
nonexhaustive list of considerations relevant to [the reckless-indifference
element], including use of or awareness of the presence of a weapon or
weapons, physical presence at the scene and opportunity to restrain
confederates or aid victims, the duration of the crime, knowledge of any
threat the confederates might represent, and efforts taken to minimize risks.
[Citation.] Because the major participant and reckless indifference elements
often ‘ “significantly overlap” ’ [citation], this list of factors also overlap[s]
with those . . . identified in connection with the major participation inquiry in
15
Banks.” (Strong, supra, 13 Cal.5th at p. 706.) Ultimately, a court must
“analyze the totality of the circumstances to determine whether [a defendant]
acted with reckless indifference to human life,” and “ ‘ “[n]o one of these
[factors] is necessary, nor is any one of them necessarily sufficient.” ’ ”
(Scoggins, supra, 9 Cal.5th at p. 677.)
We begin by addressing the testimony of Pickett’s female friend that
Pickett said, referring to Iano, that “he didn’t want to kill the guy, however if
he had to, he would.” Pickett’s statement echoes Clark’s description of
reckless indifference to human life as “encompass[ing] a willingness to kill (or
to assist another in killing) . . . even if the defendant does not specifically
desire that death as the outcome of [the defendant’s] actions.” (Clark, supra,
63 Cal.4th at pp. 616–617.) But the statement, standing alone, is not
substantial evidence that Pickett had the requisite mens rea, and the
Attorney General does not so argue. Crucially, the prosecution conceded that
Pickett was not the one to kill Iano, and as we discuss further below, there
was no evidence that Pickett brought a weapon with him or knew Secrease
had one. Thus, while Pickett’s statement might constitute substantial
evidence of reckless indifference under different circumstances, the robbery
and murder that transpired do not reflect that he created a serious risk of
death by taking the necessary actions to put himself or Secrease in a position
to kill if they “had to.” (See Banks, supra, 61 Cal.4th at p. 808.)
We turn to discuss the relevant Clark factors, beginning with the
weapons used and the defendant’s knowledge of them. (Clark, supra,
63 Cal.4th at p. 618.) The trial court specifically found there was no evidence
that the gun used to kill Iano was Pickett’s, that Pickett told Secrease to use
the gun, or that Pickett had or used a gun that day. Nor was there evidence
that Pickett supplied Secrease with the gun, that Pickett saw Secrease’s gun
16
before Secrease shot it, that the two “talked beforehand about the use of a
gun,” or that Secrease was known to have access to guns. (Taylor, supra,
34 Cal.App.5th at p. 557.) In short, there was no evidence that Pickett was
armed or knew that Secrease was. Thus, unlike in most cases addressing
whether a major participant in an underlying felony acted with reckless
indifference, here it is not even apparent that Pickett knowingly participated
in an armed robbery. (See Scoggins, supra, 9 Cal.5th at pp. 677–678.)
The Attorney General argues that “the trial court could reasonably
infer [Pickett] knew a gun was going to be used” based on the totality of the
evidence. We cannot agree. Although the evidence the Attorney General
identifies supports the inference that Pickett planned to steal Iano’s truck, it
does not support the inference that he planned an armed robbery. Secrease’s
singing “a song about ‘doing a lick in Vallejo,’ ” and Pickett’s statement to
police that he joked with Secrease about carjacking Iano both tend to prove
that a felony was planned, but they do not tend to prove an armed felony was
planned. Neither do the facts that Pickett “possessed a gun during late
summer 1996, and told his [female friend] that he wanted to steal Mr. Iano’s
truck.” And nor does the evidence that Pickett never intended to pay for the
truck, which the trial court relied upon in concluding that Pickett “knew or
should have known that [the robbery] was going to result in [Iano’s] death or
injury.”
We also disagree with the Attorney General that Pickett’s statement to
his female friend about his willingness to kill evinces his knowledge that
Secrease was armed. Given the lack of evidence that Pickett knew Secrease
had a gun, it is speculative to infer that because Pickett stated he was willing
to kill to steal the truck, he planned for Secrease to bring a weapon to the test
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drive. Again, our evaluation of Pickett’s statement would be different if he
had brought a gun to the test drive.
In addition to the lack of evidence that Pickett knew Secrease had a
weapon, the record lacks other evidence supporting a conclusion that Pickett
knowingly created a serious risk of death. Similar to Banks and Taylor,
“nothing in the record reflects that [Pickett] knew there would be a likelihood
of resistance [by Iano] and the need to meet that resistance with lethal force.”
(Banks, supra, 61 Cal.4th at p. 811; Taylor, supra, 34 Cal.App.5th at p. 558.)
Nor was there evidence of previous criminal behavior by Secrease suggesting
he was apt to act with deadly violence, another factor weighing in Pickett’s
favor. (See Clark, supra, 63 Cal.4th at p. 621; Banks, at pp. 810–811;
People v. Keel (2022) 84 Cal.App.5th 546, 561.)
Other personal characteristics of Secrease likewise do not support the
conclusion that Pickett knowingly created a serious risk of death by choosing
him to participate in the robbery. Unlike the trial court and the Attorney
General, we find it of little significance that Secrease was a juvenile and
Pickett perceived him as “dumb enough to give [Pickett] a ride.” On the day
of the murder, Secrease was three days shy of his eighteenth birthday, and
Pickett was only three years older. Certainly, Pickett’s comment about
Secrease’s intelligence suggests Pickett took advantage of Secrease. But
given the small age gap and Pickett’s own youth, this is not a clear case of, in
the trial court’s words, “the elder enabler and the younger person being
recruited for ill.” Under these circumstances, it is not reasonable to infer that
Pickett acted with reckless indifference to human life because he decided to
involve Secrease instead of another adult in the robbery. (See In re Ramirez
(2019) 32 Cal.App.5th 384, 404 [rejecting as speculative the conclusion that
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defendant played significant role in planning robbery merely because he “was
older than his confederates”].)
It is even more of a stretch to infer, as the Attorney General urges, that
Pickett chose Secrease because he “wanted a partner who, like himself, would
‘kill’ Mr. Iano if he ‘had to.’ ” While we accept that Secrease’s youth and
alleged low intelligence tend to show he was more likely to act impulsively or
unpredictably, they do not support the conclusion that the robbery was more
likely to turn deadly given the lack of evidence that Pickett knew or had
reason to know Secrease might have a weapon or turn violent. (See Scoggins,
supra, 9 Cal.5th at pp. 681–682 [where defendant planned unarmed robbery,
his belief that accomplice was a “ ‘hot head’ ” did not demonstrate defendant
knew lethal force was likely].)
The lack of evidence that Pickett knew Secrease had a gun influences
the analysis of other Clark factors as well. For example, the duration of the
felony is less significant because as far as Pickett knew, the danger to Iano
was not heightened the longer it took to steal the truck. “Where a victim is
held at gunpoint, kidnapped, or otherwise restrained in the presence of
perpetrators for prolonged periods, ‘there is a greater window of opportunity
for violence’ [citation], possibly culminating in murder.” (Clark, supra,
63 Cal.4th at p. 620.) Here, in contrast, Iano was not subject to “a prolonged
period of restraint” during which Pickett was aware he might be shot. (Ibid.)
There is no dispute that Pickett was physically present throughout the
events leading to the murder, a key Clark factor. (See Clark, supra,
63 Cal.4th at p. 619.) But a defendant’s presence at the scene is significant to
the extent it demonstrates culpability for knowingly creating a serious risk of
death, not in and of itself. (See ibid.; Banks, supra, 61 Cal.4th at p. 808.) For
example, if “the murder is a culmination or a foreseeable result of several
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intermediate steps, or . . . the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal force[,] . . . ‘it
is fair to conclude that [the defendant] shared in [the] actions and mental
state’ ” of the defendant’s coparticipants. (Clark, at p. 619.) Here, Pickett’s
presence does not suggest a culpability for knowingly creating a serious risk
of death. According to Pickett, Secrease shot Iano without warning after Iano
used a racial epithet. Under this account, the shooting was an impulsive
reaction to an argument, not “the culmination of a prolonged interaction that
increased the opportunity for violence.” (Taylor, supra, 34 Cal.App.5th at
p. 558.)
Of course, the trial court was free to, and did, discount Pickett’s claim
that the shooting came as “a major surprise.” But if Pickett’s statements are
set aside, there is no evidence whatsoever about the interactions in the truck
leading up to the murder. Thus, there is no basis on which to infer that
Pickett was aware that deadly violence might transpire based on what he
observed before Secrease shot Iano.
For similar reasons, we reject the Attorney General’s claim that
because Pickett “was in the immediate presence of the shooter and the
victim,” he “had the opportunity to prevent or at least minimize the risk of
violence but failed to do so.” If Pickett’s story is accepted, then as he sat
between Iano and Secrease, Secrease extended his arm across Pickett and
shot Iano once in the head. The Attorney General claims that this put
Pickett “in a position where he could have tried to prevent Secrease from
shooting Mr. Iano.” It is speculative to conclude that, without any warning
about what Secrease was about to do, Pickett nevertheless could have reacted
quickly enough to deflect Secrease or otherwise protect Iano. And if Pickett’s
claim to have been taken by surprise is rejected, there is again no evidence
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from which to infer that he had a plausible opportunity to prevent the
shooting.
Finally, we turn to Pickett’s actions after the shooting, the primary
evidence on which the trial court relied to conclude that Pickett acted with
reckless indifference to human life. In Taylor, we also addressed a court’s
finding of reckless indifference that focused on the non-shooter defendant’s
actions after the murder. (Taylor, supra, 34 Cal.App.5th at p. 559.) The
Taylor defendant was the getaway driver for a robbery during which a store
employee was killed, but he did not have a weapon himself and there was
little evidence he knew one of his confederates had or planned to use one.
(Id. at pp. 547, 557–558.) There was also little evidence that the defendant
had any other reason to anticipate a heightened risk of violence or had an
opportunity to avert the killing. (Id. at pp. 558–559.) Rather, “[t]he evidence
most unfavorable to [him] was of his actions after the shooting,” as he did not
attempt to help the employee after she was shot and later stated, “ ‘Fuck that
old bitch.’ ” (Id. at pp. 559–560.)
We concluded that the Taylor defendant was entitled to relief, holding
that although a defendant’s “behavior after the murder may be relevant to
whether [the defendant] acted with the requisite mind state, under Banks
and Clark it is insufficient, standing alone, to constitute substantial evidence
that [the defendant] acted with reckless indifference to human life.” (Taylor,
supra, 34 Cal.App.5th at p. 560.) We explained that “the governing standard
as explained in Banks and Clark is not satisfied with evidence of a general
indifference to human life, but instead with evidence of a reckless
indifference, which is shown when the defendant knowingly creates a serious
risk of death.” (Ibid.) Thus, although callous behavior after a planned felony
that results in death is relevant to establish the defendant’s mind state,
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“there must also be evidence that the defendant’s participation in planning or
carrying out the crime contributed to a heightened risk to human life.” (Ibid.)
Given the dearth of evidence that Pickett knowingly participated in an
armed robbery, his behavior after Iano was shot is insufficient to support the
finding of reckless indifference to human life. We agree with the trial court
that Pickett’s dumping of Iano on the side of the road was morally abhorrent.
We also acknowledge that Pickett’s behavior after the shooting was worse
than the Taylor defendant’s, in that Pickett must have realized that Iano was
grievously injured and nevertheless abandoned him, whereas the Taylor
defendant was not in the victim’s immediate presence and did not leave until
it was clear that “help was arriving.” (Taylor, supra, 34 Cal.App.5th at
p. 559.) But even though Pickett exhibited indifference to human life by
leaving Iano to die, that behavior does not support a reasonable inference
that Pickett took any action beforehand that enhanced the risk the robbery
would turn deadly.
In short, there is no basis from which to infer that Pickett planned or
knowingly participated in an armed robbery, and the record lacks evidence
suggesting he otherwise knowingly created a serious risk of death. Since
there is insufficient evidence that he acted with reckless indifference to
human life, he is entitled to relief under section 1172.6.
III.
DISPOSITION
The order denying Pickett’s petition for resentencing under former
section 1170.95 is reversed. The matter is remanded to the trial court with
instructions to grant the petition and resentence Pickett accordingly.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Devine, J. *
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Pickett A164945
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