People v. Jackson CA4/1 ( 2022 )

Filed 2/8/22 P. v. Jackson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078403
Plaintiff and Respondent,
v. (Super. Ct. No. CR135952)
ROY LEE JACKSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1993, Roy Lee Jackson pled guilty to second degree murder (Pen.
Code,1 § 187, subd. (a)). The court sentenced Jackson to 15 years to life.
Jackson appealed, and we affirmed the judgment in an unpublished
opinion, People v. Jackson, D020259 (Nov. 7, 1994) (Jackson I).
In 2019, he filed a petition for resentencing under section 1170.95,
which permits a defendant convicted of murder under a felony-murder theory
or the natural and probable consequences doctrine to petition for the
conviction to be vacated and to be resentenced. (§ 1170.95, subd. (a).) The
superior court assigned Jackson an attorney, concluded Jackson had met his
prima facie burden, issued an order to show cause (OSC), and ordered an
evidentiary hearing. Following the hearing, the court concluded the People
had proved beyond a reasonable doubt that Jackson was a major participant
in the underlying robbery who acted with reckless indifference to human life.
Accordingly, it found Jackson ineligible for relief and denied the petition.
Jackson appeals, contending the record lacks substantial evidence to
support the trial court’s conclusion. We conclude substantial evidence
supports the court’s decision, and we will accordingly affirm.
BACKGROUND AND PROCEDURAL FACTS
On July 2, 1991, gun store owner Gary Gottlieb was shot and killed at
his gun shop during a robbery in which the suspects took handguns. 2 The
following month, on August 5, 1991, police officers encountered Jackson
driving a Datsun that matched the description of the one from the robbery
and pulled over his vehicle in a “hot stop,” i.e., with weapons drawn. Police
1 Section references are to the Penal Code.
2 The facts of the underlying crime are taken from our unpublished
opinion in Jackson I, supra, D020259.
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arrested Jackson after secretly recording a conversation between Jackson and
his companion in which the two mentioned a gun and drugs were located in
the Datsun, evidence which police subsequently located during a search. The
handgun matched one taken during the robbery the previous month.
Jackson’s prints also matched some found on a display case in the gun shop.
Jackson filed a motion to suppress, which the court denied, and
Jackson then pled guilty to second degree murder (§ 187, subd. (a)). Jackson
stipulated to the use of the transcript of the preliminary hearing as the basis
for the plea. The court sentenced him to 15 years to life with the possibility
of parole.
Jackson appealed the court’s denial of the motion to suppress, and we
affirmed the court’s decision in Jackson I, supra, D020259.
On January 9, 2019, Jackson filed a petition for resentencing under
section 1170.95. The court appointed counsel, concluded Jackson had met his
prima facie burden showing he was not ineligible for resentencing, issued an
OSC, and held an evidentiary hearing following briefing.
The People argued Jackson had twice made judicial confessions to
being the actual killer and, in the alternative, Jackson was a major
participant in the underlying felony.
Jackson testified at the trial and retrial of a coconspirator in 1995 and
1996 that he shot and killed the victim. Also in 1996, Jackson acknowledged
shooting the victim to a forensic evaluator interviewing him for parole
eligibility and said his motive was robbery.
But Jackson’s testimony changed over time. In a parole eligibility
evaluation in January 2002, he denied being the actual shooter but admitted
to planning the robbery with three others. He said four individuals were
involved, and they drove two cars. When they drove to the store, the owner
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had gone to lunch, so they arranged to meet at the store later. When his
vehicle arrived, the two in the other vehicle motioned for them to leave. He
did not learn about the murder until he heard about it on the news.
At a parole hearing in April 2002, he testified it was his idea to rob the
store. He had been in the gun store previously to purchase some bullets, and
he suggested that location. He attempted to enter the store to case it, but the
store was closed for lunch, and he wanted to wait to commit the crime while
it was open. When he returned, codefendants in the other vehicle told them
to leave and later told Jackson they had already robbed the store and a
person had been shot. They gave Jackson a gun from the robbery. Jackson
also admitted he and his coconspirators were gang members.
In a January 2005 forensic evaluation to determine parole eligibility,
Jackson explained he was supposed to participate in the robbery, but the
others “jumped the gun,” so he did not shoot anyone, though he did get one of
the stolen guns.
In July 2007, Jackson testified at a parole hearing that he helped plan
the robbery, and that he was going to go in the store to “check[ ] it out” and
see “what the process was” and to assess “the number of employees, people
and things of that nature.” When he went into the store that day to “check[ ]
it out,” “the man was out to lunch,” so he was told to leave. He knew the
codefendants were armed and admitted they were all gang members.
In March 2016, Jackson told a parole evaluator that he participated in
planning the robbery out of loyalty to the others and to “fit in.” He said he
was not in the store at the time of the robbery, but he knew it could lead to
murder because they had guns and chose vulnerable victims they thought
they could overpower.
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In his June 2016 parole hearing, Jackson said the statements he had
made to the evaluator were accurate. He explained that he and the others
discussed committing the robbery the night before. He had a .22 caliber gun
with him, which he knew functioned because he had previously fired it, but a
codefendant in the second vehicle wanted a bigger gun, so they stopped on
the way to the gun store to get a larger weapon. Jackson had been a
customer at the store the day before, but he was tasked with casing it to
determine who was inside. But when he arrived, a sign on the door said the
victim was at lunch, so the group decided to wait for the owner to return.
Jackson left, and when he returned a few minutes later, coconspirators in a
second vehicle were already leaving the store and told Jackson to leave and
follow them, which he did. When the two vehicles arrived in Victorville,
Jackson learned the victim had been shot after a struggle. Jackson was
upset that they had “jumped the gun” and conducted the robbery without
him. Jackson received three guns that had been taken from the store. He
testified he had planned and participated as much as anybody, knew death
could occur, and was responsible for the murder. He also testified that
weapons and death were part of his lifestyle as a gang member.
In April 2019, Jackson participated in another forensic evaluation. He
told the evaluator he was personally armed; the store was closed when he
arrived, and when he returned later two others were leaving the store and
telling him to drive to Victorville, which he did. He said he had participated
for financial gain and for social acceptance.
Jackson testified at a parole hearing in July 2019 that he was involved
in the planning; he had been in the store earlier in the day to case it, and he
was there after the robbery. He explained he had testified to killing the
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victim earlier because he believed if he did not, the others would kill him or
somebody in his family.
Jackson argued there was not enough evidence to demonstrate he was
a major participant who acted with reckless indifference.
The trial court “evaluate[d] the evidence as an independent factfinder
to determine whether Petitioner is guilty of murder” beyond a reasonable
doubt. It concluded the People did not prove beyond a reasonable doubt that
Jackson was the actual killer, but after applying factors outline in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), it found beyond a reasonable doubt that Jackson was a major
participant, and also that he acted with a reckless indifference to human life.
Accordingly, the court denied Jackson’s petition. Jackson timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill No. 1437
(Stats. 2018, ch. 1015) (Senate Bill 1437). “The legislation, which became
effective on January 1, 2019, addresses certain aspects of California law
regarding felony murder and the natural and probable consequences doctrine
by amending Penal Code sections 188 and 189, as well as by adding Penal
Code section 1170.95, which provides a procedure by which those convicted of
murder can seek retroactive relief if the changes in law would affect their
previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th
719, 722 (Martinez).)
By amending sections 188 (defining malice) and 189 (defining the
degrees of murder), Senate Bill 1437 changed “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
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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.” (Stats.
2018, ch. 1015, § 1, subd. (f); see Martinez, supra, 31 Cal.App.5th at p. 723.)
Senate Bill 1437 also added section 1170.95. That section provides that
“[a] person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts.” (§ 1170.95, former
subd. (a).) A petition may be filed when the following three conditions are
met: “(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶]
(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, former subd. (a)(1)-(3); see Martinez, supra, 31 Cal.App.5th at
p. 723.)
If a petitioner files a facially sufficient petition, the trial court appoints
counsel and determines whether the petitioner has made a prima facie case
for relief under section 1170.95, former subdivision (c). (People v.
Lewis (2021) 11 Cal.5th 952, 961-962.) In making this decision, the court
“should not make credibility determinations or engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at
p. 974.)
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“If the petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause [(OSC)].”
(§ 1170.95, subd. (c).) The court then holds a hearing within 60 days to
determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).)
At this stage of the proceeding, the prosecution has the burden of proving
“beyond a reasonable doubt[ ] that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at
pp. 723-724.)
B. Standard of Review
We review challenges to the sufficiency of the evidence for substantial
evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 658 [“A judgment will
not be reversed so long as there is substantial evidence to support a rational
trier of fact’s conclusion . . . .”]; see People v. Gregerson (2011) 202
Cal.App.4th 306, 320; see, e.g., People v. Sledge (2017) 7 Cal.App.5th 1089,
1096 [orders denying resentencing under section 1170.18].) In so doing, we
examine the entire record in the light most favorable to the judgment below.
(People v. Becerrada (2017) 2 Cal.5th 1009, 1028.) We look for substantial
evidence, which is evidence that is “reasonable, credible and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt” (People v. Koontz (2002) 27 Cal.4th 1041, 1078; Banks,
supra, 61 Cal.4th at p. 804), and we do not substitute our own factual
determinations for the factfinder’s. (Koontz, at p. 1078.)
C. Major Participant
Jackson contends the record lacks substantial evidence to support the
court’s finding that he was a major participant. We consider the following
factors when determining whether a defendant was a major participant:
(1) the defendant’s role in planning the crime that lead to the victim’s death;
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(2) the defendant’s role in supplying lethal weapons; (3) the defendant’s
awareness of particular dangers posed by the crime, weapons, or past conduct
of the other participants; (4) the defendant’s presence at the scene of the
crime; (5) whether the defendant was in a position to facilitate or prevent the
killing; (6) whether the defendant’s actions or inactions played a particular
role in the defendant’s death; and (7) the defendant’s actions after the lethal
conduct. (Banks, supra, 61 Cal.4th at p. 803.) Courts weigh the factors to
determine whether the defendant’s participation in the crime carried a
“ ‘grave risk of death’ ” and was sufficiently significant to be considered
“ ‘major,’ ” but no single factor is necessary or sufficient. (Ibid.)
To argue he was not a major participant, Jackson compares his case to
In re Ramirez (2019) 32 Cal.App.5th 384 (Ramirez) and In re Bennett (2018)
26 Cal.App.5th 1002 (Bennett).
In Ramirez, the petitioner’s two friends were carrying weapons to
protect themselves from members of a rival street gang when they rode their
bicycles to a grocery store. (Ramirez, supra, 32 Cal.App.5th at p. 389.) They
ran into Candido, a mutual friend, who invited them to “go jacking,” to which
Ramirez replied either “Do whatever you guys want” or “whatever we want to
do.” (Id. at pp. 389-390.) The group went to Candido’s house so Candido
could get a shotgun, but Candido was unable to procure one from home, and
they left on their bicycles and went in search of someone to rob. (Id. at
p. 390.) Candido traded a stun gun he had for a .32 caliber weapon one of the
other friends had. (Ibid.) Then, when the group arrived outside a bar,
Candido told them that was the place and gave his bicycle to Ramirez to hold.
(Ibid.) Candido and one of the friends approached a truck, and the other
friend heard them say “Give me your money” before a series of gunshots.
(Ibid.) Candido and the other friend returned, and as the four road off on
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bikes, Candido saw someone lying on the ground. (Ibid.) The victim suffered
six gunshot wounds from two weapons and died in the parking lot. (Id. at
pp. 390-391.)
The court in Ramirez allowed for the following inferences: Ramirez
supplied the guns, though not in contemplation of committing a crime.
(Ramirez, supra, 32 Cal.App.5th at p. 404.) He agreed with the suggestion of
robbing someone and was aware it would be an armed robbery. (Ibid.) He
waited for a victim to appear and drove a getaway vehicle after the shooting.
(Ibid.) He heard what had occurred as it happened, though he was not in the
immediate location of the crime. (Ibid.)
The court emphasized that there was no evidence a killing was
contemplated; it appeared the shooting was in response to the victim
resisting and then hitting the perpetrator. (Ramirez, supra, 32 Cal.App.5th
at p. 404.) Further, there was no evidence of planning the robbery because
Ramirez simply went along with the group. Nor was there evidence Ramirez
was close enough to restrain the crime or the others. (Id. at p. 405.) And
although a jury could infer Ramirez was part of a gang, it was not sufficient
information to indicate whether he knew the history of any of his cohorts well
enough to know if they were violent. (Ibid.) It concluded Ramirez’s
contributions and participation were not substantial. (Ibid.)
In Bennett, supra, 26 Cal.App.5th at pages 1008-1009, four friends were
hanging out when one told the others he needed a “lick” (slang for committing
robbery) for money, and another told Bennett he needed drugs and asked
where he could get some. Bennett commented he could “make a killing” by
selling drugs, but another suggested they just steal the drugs. Bennett then
called someone he considered a reliable source of drugs and asked that person
for two ounces of cocaine. Bennett usually met the victim at a carwash across
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the street from the victim’s apartment complex. When Bennett arrived at the
carwash with his two companions, Bennett called the victim, who said he
would head over. Bennett stayed at the carwash and the other two walked
across the street. Resident witnesses reported that they saw the victim
running as Bennett’s friends chased after, shooting at the victim. Bennett’s
companions took the drugs from the victim and returned to the carwash.
When police arrived, the victim was unresponsive; he died in transit to the
hospital.
Bennett and his two friends called the fourth friend and told him they
“ ‘got the dope’ ” and said he should have joined them. Later, Bennett also
told his friends that they were not supposed to shoot the victim, just take the
drugs. (Bennett, supra, 26 Cal.App.5th at p. 1009.)
The Court of Appeal explained there was no evidence Bennett supplied
the guns, though it is reasonable to infer he knew about them. (Bennett,
supra, 26 Cal.App.5th at p. 1020.) It also noted it could infer Bennett was
walking across the street to join his friends when they came running back,
and there was nothing to indicate he did anything to mitigate the possibility
of violence and he helped the group escape. (Ibid.) The court summarized
the facts: “Bennett drove the group to Irvine from Oceanside and waited
across the street while Turner and Smith went to meet Gary. While Bennett
may have been aware his confederates were armed, there is no evidence the
robbery was predicated on shooting Gray. . . . Bennett’s plan fell apart when
Gray started running instead of complying, and his cohorts chased Gray
down and killed him to complete the robbery. But there was no evidence
Bennett or the others planned a murder. Indeed, Bennett’s statements to
police after the crime show it was the farthest thing from his mind.” (Ibid.)
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It concluded Bennett’s involvement was not substantial and so he was not a
major participant. (Id. at p. 1021.)
Like Ramirez and Bennett, Jackson did not supply weapons to his
companions, and Jackson did not initiate the idea of committing robbery.
However, unlike Ramirez, who simply went along with friends, Jackson
suggested the location. He had been in the store earlier, which is how his
prints had been identified. And while it is not entirely clear whether he
cased the store immediately before it closed for lunch as he had intended, we
can infer that he shared information about the store layout and employees
with his cohorts.
Further, unlike Bennett, whose comments indicated murder was the
farthest things from his mind when he set up the meeting between the dealer
and his friends (Bennett, supra, 26 Cal.App.5th at pp. 1009, 1020), Jackson
said he knew the robbery could lead to murder because they brought guns
and chose vulnerable victims. He repeatedly stated he knew death could
occur during the robbery, and he was present when the others stopped to get
a bigger gun to use during the robbery. Thus, unlike Bennett, Jackson was
not surprised a murder occurred during the robbery; he had planned for such
a possibility. Moreover, although he was not present when the murder
occurred, unlike Ramirez and Bennett, Jackson had an opportunity to
prevent the crime because the store was unoccupied when the group first
arrived, and instead of burglarizing the store when no victims were present,
Jackson and the others agreed to wait for the owner to return. The only
reason Jackson was not present at the robbery and murder was because the
other car arrived first and “jumped the gun,” about which he felt upset.
Jackson was heavily involved in planning the robbery: he suggested
the location; he had information from previously being in the store; he carried
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a weapon for use against vulnerable victims; he went with others to get an
even bigger gun; he planned to case the store immediately before the robbery;
he left and returned so that he could participate directly in the robbery; and
he felt upset the others “jumped the gun” to rob the store without him.
Accordingly, there is substantial evidence to support the court’s conclusion
that Jackson was a major participant whose participation carried a grave risk
of death. (See Banks, supra, 61 Cal.4th at p. 803.)
D. Reckless Indifference
To demonstrate a reckless indifference, a “defendant must be aware of
and willingly involved in the violent manner in which the particular offense
is committed” and also consciously disregard “the significant risk of death his
or her actions create.” (Banks, supra, 61 Cal.4th at p. 801; see Clark, supra,
63 Cal.4th at pp. 616-617.) We consider the following factors in determining
whether substantial evidence supports the trial court’s conclusion that
Jackson acted with reckless indifference to human life: (1) knowledge of
weapons and use and number of weapons, (2) physical presence at the crime
and opportunities to restrain the crime and/or aid the victim, (3) duration of
the felony, (4) the defendant’s knowledge of the other perpetrators’ likelihood
of killing, and (5) the defendant’s efforts to minimize the risk of violence
during the felony. (Clark, at pp. 618-623.) No single factor is necessary or
sufficient to determine a recklessly indifferent state of mind. (Id. at p. 619.)
Further, because of the overlap between the factors assessing whether a
defendant is a major participant and whether the defendant acted with
reckless indifference, the greater a defendant’s participation in the felony
murder, the more likely it is that he acted with reckless indifference. (Id. at
pp. 614-615.)
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Two of the factors did not weigh in the court’s conclusion: Jackson’s
presence at the scene and the duration of the felony. (See Clark, supra, 63
Cal.4th at pp. 619-623.) But substantial evidence supports the court’s
conclusion that other factors demonstrate Jackson was aware of and willingly
involved in the robbery and consciously disregarded the significant risk of
death his actions created.
Although Jackson contends there was no evidence the group planned to
kill the victim, there is no requirement that there be a plan to murder. And
the evidence is replete with admissions that Jackson was aware of and
willingly involved in the robbery and the manner in which the robbery
occurred. Jackson explained that he knew murder could happen because
they selected vulnerable victims they thought they could overpower, and they
brought guns with them for the purpose of robbing the store. While general
knowledge may not suffice to demonstrate reckless indifference (Clark, supra,
63 Cal.4th at pp. 619-623 [risk of death alone not sufficient to establish
reckless indifference]), Jackson’s knowledge went further.
He had specific knowledge of the number and types of weapons, stating
he knew his codefendants were all armed. The group even stopped on the
way to rob the store so that a codefendant could pick up a bigger gun,
indicating that the group needed “big” weapons to complete the robbery,
increasing the risk of harm to victims. He testified he knew weapons were
involved and death could occur, and he implied an awareness of the
dangerousness of his cohorts by admitting that the use of weapons and the
risk of death were part of his lifestyle as a gang member. Jackson himself
carried a .22 caliber gun, showing his willingness to be involved in the violent
manner of the crime. He undertook no efforts to minimize the risk of violence
during the robbery, including by waiting for the victim to return rather than
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burglarize a store without occupants. Instead, the group left and returned so
that they could rob the store when victims were present, increasing the risk
of death; ensured all the participants in the crime were armed; took time to
get a larger weapon; and selected victims they could overpower. Jackson’s
actions show both an objective and a subjective reckless indifference that
offer substantial evidence to support the trial court’s conclusions.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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