People v. Davis CA4/2 ( 2023 )

Filed 1/17/23 P. v. Davis CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074748
v. (Super.Ct.No. ICR22535)
JIM DALE DAVIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Tracy A. Rogers, 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, Charles C. Ragland and Julie L. Garland, Assistant Attorneys
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General, Eric A. Swenson, Alan L Amann, Felicity Senoski, Kristine A. Gutierrez and
Jennifer B. Troung, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1996, a jury convicted Jim Dale Davis, the petitioner herein, along with Theodis
Nathaniel Brown and Jerome Pellum Holland of three counts of first degree murder (Pen.
Code, § 187),1 during which a principal was armed with a handgun (§ 12022, subd.
(a)(1)) and all of which occurred during a robbery and burglary (§ 190.2, subd. (a)(17)).
The jury further found true the multiple murder special circumstance as to each
defendant. (§ 190.2, subd. (a)(3).) Each was sentenced to four concurrent terms of life
without the possibility of parole, plus one year.
In 2019, following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437) and the enactment of section 1170.95, defendant petitioned for
resentencing. The trial court denied the petition on the ground that defendant’s jury was
instructed pursuant to former CALJIC Instruction No. 8.80.1, that it could not make
findings on the special circumstance allegation without first finding that defendant was a
major participant and that he acted with reckless disregard, such that even following the
amendments to sections 188 and 189, the convictions were valid. Defendant appealed.
On appeal, we affirmed the order denying the petition, and, upon defendant’s
petition for review, the Supreme Court granted review pending its decision in the then
pending case of People v. Strong (2022) 13 Cal.5th 698 (Strong). After deciding the
1 All further statutory references are to the Penal Code, unless otherwise
indicated.
2
Strong case, the Supreme Court retransferred the case to us with directions to vacate our
opinion and reconsider it in light of its decision. We now reverse.
BACKGROUND
The facts are taken (with editing of some facts relating to the codefendants for
brevity and additional procedural history as needed) from the record and decision in
Davis’s direct appeal, People v. Brown et al., (Oct. 6, 1998, E018586) [nonpub. opn.].
Defendant requested that we augment the record with the jury instructions given in the
trial, which were part of the record on appeal and we granted it.
Events Leading Up to the Murders
In March 1993, petitioner Jim Davis lived with his wife, two children, and Charity
Zimmerle. He was selling methamphetamine from March through May of 1993 with
Zimmerle’s assistance.
Victim Robert Hogue was also selling methamphetamine in April of 1993. Davis
bought methamphetamine from Hogue a couple of times in the beginning of April, but
stopped doing business with him because he did not like Hogue’s dope. Hogue lived in
an upstairs apartment at the One Quail Place complex in Palm Desert. It was about 11
miles from Davis’s house.
Approximately two weeks before the killings, Hogue refused to “front” Davis
methamphetamine because Davis did not have any money. This upset Davis. Also, a
few weeks before the killings, Davis told Zimmerle he wanted to kill victim Jerry Burris.
Sometime after this, but before the killings, Davis told Zimmerle they would invite Burris
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to dinner and kill him because Burris knew too much. Zimmerle thought Davis was
joking about killing Burris on both occasions.
About April 17, 1993, Theodis Brown, Orlando “Bone” Watley, and Kerry “K.J.”
Parker2 discussed a robbery plan with an individual named Damion Johnson in Johnson’s
bedroom at his group home. Brown said they planned to rob a White male who had a
substantial amount of drugs, money and firearms and that he, Brown, could start a little
business with the proceeds from the robbery. Watley indicated the man lived upstairs
somewhere in Palm Springs or Palm Desert. Brown told Johnson that they needed a
fourth person for the robbery and asked him to be that person. Because Johnson had been
placed in juvenile hall for selling drugs in the past, he declined to take part in the robbery.
Brown, Watley and Parker were wearing long black trench coats during this discussion.
At one point, Brown and Watley showed Johnson the black ski masks they planned to use
in the robbery. Johnson’s foster mother walked into the room during this. When she did
so, Brown and Watley attempted to hide or stow the masks. At this point, Watley had no
injuries.
A few days later, Brown and Johnson continued the discussion of the robbery at
Indio High School, where Johnson was a student and Brown was a part-time security
guard. Brown repeatedly tried to convince Johnson to help with the robbery. Brown
explained he planned to have two people go inside and gather the money, drugs and guns
Parker was defendant Brown’s step-sibling’s cousin, and had lived with
2
Brown’s family before the crimes. Parker’s direct appeal was decided under a different
case number, People v. Parker, E021559 [opn. following retransfer from the California.
Supreme Court, filed February 19, 2002].
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while two others held whoever was in the apartment at gunpoint on their knees. Parker
joined the discussion at one point.
On April 19, 1993, Kandi Croudy told Davis that victim Jeremy Burris had
threatened her life during an earlier conversation about some property Burris had stolen
from her friends. Croudy had known Davis for about six or eight months at this time.
She was laughing about Burris’s threat when she told Davis about it. Davis assured
Croudy that, “he would be taken care of,” or “he would take care of it.” He told her,
“You don’t have to worry about a small little shit like that. It’s going to be taken care of
in a couple of days.” Davis had already helped retrieve some of the property Burris had
stolen. Burris had also robbed Davis and was not allowed around his house.
A couple of days before the killings, Burris told Davis, “Give me a line or I’m
going to nark on you.” Davis did not appear to regard this as a joke.
The Burglary, Robbery and Killings
On the afternoon of April 21, 1993, a 5-foot 10-inch, 200-pound African-
American man parked Holland’s truck across the street from Davis’s house and walked
over to Davis’s driveway. That evening, victim Burris, along with Watley, Parker,
Holland and Davis, was at Davis’s house. Around 9:00 p.m. Davis met with Brown for a
few minutes by the gate outside Davis’s home. By midnight, neither Watley, Parker,
Burris nor Holland were at the home. Davis was not in his bedroom at this time, and
although Zimmerle thought Davis was home, she did not know where he was. Watley’s
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medical card, and Parker’s and Watley’s black sock hats were in Davis’s bedroom. They
had never left things like this in Davis’s bedroom before.
Meanwhile, four teenagers, including Burris’s brother, were visiting victims
Hogue and Valerie Arnold at Hogue’s apartment. During their visit, the group ingested
methamphetamine which Hogue retrieved from a three-inch by five-inch brown wooden
box on the living room table. It was this box of drugs which the prosecution alleged later
became the object of the robbery and burglary. The group also smoked some marijuana.
The four teenagers left on bicycles about 12:30 the next morning. Victim Burris had not
been present during their visit.
About 1:30 a.m., the woman who lived across the hall from Hogue heard what
sounded like six gunshots, followed by an unfamiliar male voice saying, “No.” The
neighbor did not call 9-1-1 because she was not sure if the sounds she heard were
gunshots.
A woman and a man were at the bottom of the stairs by Hogue’s apartment when
the shots were fired. The man recalled that he heard about three or four gunshots. About
a minute later, the couple saw what appeared to be two men dressed in dark jackets with
bandannas on their heads and faces run past them. The couple could not see what race
the men were. One of the men appeared to be carrying a foot-long object under his
jacket. The two men ran to the parking lot and dove into the back of a slow-moving
small gray Mazda pickup truck, which looked similar to the one Holland owned.
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A security guard for the apartment complex saw a silver truck which looked
similar to Holland’s driving through the complex with its headlights turned off at this
time. It had Nevada plates that began with 85Z or B5Z. The truck exited the parking lot
and stopped at an intersection. The guard saw the arm of an African-American man slap
the back window of the truck and he heard him yell, “go.” The driver, a light complected
African-American male, then ran a red light, turned on the headlights and turned left on
Highway 111.
About 3:55 a.m. that day, Croudy arrived at Hogue’s apartment. Hogue’s front
door was open about eight inches, the television was blaring and the lights were on. She
called Hogue’s name; nobody responded. She looked inside the open door and saw a
body propped up against the couch and someone’s legs on the floor. Croudy opened the
door a little farther, looked inside the apartment and realized the people inside were hurt
or dead. Croudy went to Hogue’s neighbor’s apartment and called 9-1-1. She also called
Davis’s house, and a couple of other people and told them what she had seen. Croudy
also called victim Burris’s mother, looking for him. She had not recognized Burris’s
body in Hogue’s apartment. Burris’s mother had called Davis’s house around 3:00 a.m.,
looking for her son.
Riverside County Sheriff’s Department deputies arrived at Hogue’s apartment at
4:10 a.m. They found victim Burris lying with his back against the couch, victim Arnold
slumped against a love seat and victim Hogue lying in the living room with his head in
the hallway. The apartment did not appear to have been ransacked.
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A Riverside County Sheriff’s Department sergeant arrived at Hogue’s apartment
about 5:30 a.m. He found no signs of a forced entry or disturbances in the bedroom or
living room. He found a black box with a microphone inside of it on the coffee table; he
did not find the brown wooden box there or anywhere in the apartment. He found the
following items in Hogue’s bedroom: methamphetamine in a fanny pack; two baggies of
marijuana; a peanut butter jar which contained marijuana; smoking paraphernalia; a triple
beam scale; a funnel; a “pay-owe” book; baggies and a total of $3,000 in the pockets of
several garments which were hanging in the closet. He found $200 in Hogue’s right front
pocket and a quarter gram of rock-like methamphetamine in a fanny pack on Burris. He
did not find any firearms in the apartment. He opined methamphetamine and marijuana
had been sold or were being sold from Hogue’s apartment based on the items found.
Also around 4:00 or 5:00 a.m. on April 22, 1993, Watley and Parker arrived at
Lisa Smalling’s house in Indio. Smalling sold methamphetamine for Brown during the
months of April and May of 1993. Watley and Parker were dressed in long black coats
and khaki pants and Watley was wearing gloves and a black knit beanie. Brown arrived
at Smalling’s house about an hour later. He was not wearing a jacket. Brown looked
tired, but not sick. The four of them conversed and at one point Watley said, “I did it,” “I
killed them,” and “I killed the bitch.” Although Watley did not say who “the bitch” was,
he had referred to victim Arnold earlier that month as “the bitch.” Smalling recalled that
Brown had told her that Watley did not like Arnold and Arnold occasionally stayed at the
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One Quail Place apartments. Smalling said that Watley had a fresh cut on his hand that
morning, as well as dried blood near the cut.
Meanwhile, about 4:00 or 4:30 a.m. on the day of the killings, defendant Davis
went to his neighbor’s house to make a telephone call, even though the phone in his own
home was working. Davis made a couple of calls, conversed with the neighbor and then
told him, “Well, if anybody asked [sic] you I was home.” The neighbor recalled Davis
was sweating, which was unusual at that time of the morning. Davis also seemed
nervous, but this was not unusual for him. Davis stayed at the neighbor’s house for about
15 to 20 minutes and returned at around 6:00 a.m. to use the phone again. Davis again
told the neighbor, “If anybody asked [sic] you, I was home.”
About 6:00 a.m. that day, Davis woke Zimmerle and told her that Hogue had been
shot. Holland was present when Davis made this statement, having returned to Davis’s
by 6:00 a.m. that morning. Holland was also at Davis’s residence around noon that day.
Around 11:00 a.m., one of Davis’s acquaintances, Linda Earlywine, arrived at his home.
A stressed and tired Davis told her that his friend had been murdered the night before and
that he had been awake all night. Davis did not appear to be grieving. David told
Earlywine, “It shouldn’t have went [sic] that way.” Earlywine asked Davis what he
meant and he said, “last night just didn’t go the way it was supposed to.” Davis also told
Earlywine he had been at home all night and reminded her that she had seen him both the
previous night and that morning. Earlywine noticed the phone at the Davis house was
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ringing off the hook that morning during the three to four hours she was there. Before the
killings, Davis had told Earlywine that he had been to the One Quail Place apartment.
On April 24, 1993, Watley, Parker and Brown went to a party at Johnson’s group
home. Johnson’s foster mother bandaged a sizable cut on Watley’s left hand which
appeared to be getting red, ostensibly from infection. She asked Watley how he cut
himself. Brown answered that Watley was just messing around and got cut. Watley also
had quite a few other cuts on his hand.
On July 5, 1993, Autry Johnson had a conversation with Watley and Brown,
during which Watley discussed the incident at One Quail Place where he killed three
people.
The Riverside County Sheriff’s Department sergeant interviewed Davis on two
occasions. On May 3, 1993, Davis told the sergeant that victim Burris had been to his
house on the evening of April 21, 1993 and left by midnight. Davis said Burris’s mother
called him around 2:00 a.m. on April 22, 1993, and asked him if he had seen her children.
She called him a second time and told him about the killings. Davis said he had no idea
who committed them. Davis also told the sergeant he did not know “K. J.” but thought
he had heard of a “K.” On May 20, 1993, Davis admitted he knew K. J. Parker. He told
this sergeant that he had denied knowing him earlier because he thought the officer was
investigating an alleged fight between Parker and a neighbor.
Sometime after the killings, Davis told Zimmerle that the police were watching
and he was going to go to Canada if anything happened. In June of 1993, Davis told one
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of the teenagers, who had been at Hogue’s apartment shortly before the crimes,
“Motherfuckers are talking shit again. Time to take three more motherfuckers out of this
valley.” When she asked Davis what he was talking about, he said, “You know me.”
A forensic pathologist performed the autopsies on all three victims. Arnold had
two fatal gunshot wounds to the head. Burris had at least three penetrating incised
wounds on the front of his neck, which the pathologist indicated were some of the
deepest he had seen. The soft tissue structures between Burris’s skin and spine, including
his trachea, esophagus, left carotid artery and left jugular vein, were completely severed
and his spine had a crease on it from the sharp edge of a knife. Burris also had two
gunshot wounds to his head. The two rapidly fatal wounds which severed Burris’s
trachea appeared to have preceded the rapidly fatal and non-fatal gunshot wounds to his
head by “[l]ess than ten [minutes] probably. Ten or so.” Hogue had a fatal gunshot
wound to his head and a single stab wound to the back of his abdomen which was
potentially fatal. All three victims tested positive for methamphetamine or amphetamine.
The bullets recovered from the victims appeared to have BB’s on the end with the
exception of one of the bullets recovered from Arnold. The casings, although very
damaged, appeared to be .25 caliber and to have been fired from the same firearm.
Defendant was convicted of three counts of first degree murder, along with
findings that the murders were committed during the commission of a felony. The jury
also found the multiple murder special circumstances true, along with the allegation that a
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principle was armed with a handgun. He was sentenced to concurrent terms of life
without possibility of parole, plus one year for the weapon enhancement.
Defendant appealed, and his convictions were affirmed (save for corrections to the
abstract of judgment) on October 6, 1998 in an unpublished opinion. (People v. Brown et
al., supra, E018586, [nonpub. opn].) In that appeal, defendant argued there was
insufficient evidence to support the special circumstances finding because the record did
not support a conclusion he was a “major participant” within the meaning of Tison v.
Arizona (1987) 481 U.S. 137 (Tison). We disagreed, finding the evidence supported the
finding he was an active participant, within the meaning of Tison. We also noted that
Davis had expressed an intent to kill. The California Supreme Court denied review on
January 20, 1999, People v . Brown et al., supra, S074595.
In 2019, following the enactment of Senate Bill 1437 and section 1170.95,
defendant filed a petition for resentencing. The matter came up for hearing on February
14, 2020, at which time the court dismissed the petition. Defendant appealed that
decision and we affirmed that decision. Defendant petitioned for review, and the Supreme
Court granted and held the case pending decision in the case of People v. Strong, supra,
13 Cal.5th 698. Following the issuance of the Strong opinion, the case was retransferred
to this court with directions to vacate our opinion and to reconsider the matter in light of
the decision in Strong. We do so now.
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DISCUSSION
Under section 1172.6, the trial court must vacate a first-degree murder conviction
that was based on a felony-murder theory, unless the petitioner either (1) was the actual
killer, (2) had the intent to kill and aided and abetted the commission of first-degree
murder, or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)
A felony-murder special circumstance, however, requires that the defendant either
(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
first-degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).) Here,
defendant was not the actual shooter.
While this appeal was pending, the Supreme Court in Strong held that People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
“substantially clarified” the requirements of a felony murder special-circumstance
finding. (Strong, supra, 13 Cal.5th at p. 706.) Therefore, it concluded a felony murder
special-circumstance finding made before Banks and Clark were decided does not
conclusively establish ineligibility for relief under section 1172.8. (Strong, supra, at
pp. 710-720.)
The People concede that, because the felony-murder special-circumstance finding
in appellant’s case was made before Banks and Clark, that finding does not, in and of
itself, render him ineligible for resentencing. The People therefore agree that the superior
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court’s order summarily denying appellant’s petition for resentencing under Penal Code
section 1172.6 should be reversed and the matter remanded for further proceedings.
Because the trial court denied the petition based on the felony-murder special
circumstances, it has not yet ruled on whether the petition otherwise stated a prima facie
case. Therefore, the trial court’s order summarily denying appellant’s petition must be
reversed and this matter remanded for further proceedings consistent with the holding
Strong.
DISPOSITION
The order appealed from is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
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