People v. Denem CA2/3 ( 2023 )

Filed 2/21/23 P. v. Denem CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B318106
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA240172-05)
v.
ROLLIN DENEM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Charles S. Lee and David E. Madeo, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Years ago, Rollin Denem participated in an armed robbery
during which his accomplice shot and killed a security guard. A
jury convicted Denem of felony murder. Thereafter, Denem
petitioned for resentencing under recently-enacted Penal Code1
section 1172.6,2 which limited accomplice liability for murder.
After an evidentiary hearing under that section, the trial court
denied Denem’s petition, finding that he was a major participant
in the felony who acted with reckless indifference to human life.
Denem now appeals the trial court’s order denying his petition.
Finding sufficient evidence to support that order, we affirm.
BACKGROUND
I. The robbery and murder3
Denem was jointly tried with Thomas Bridges, Claudell
Hatter, and Wardell Joe. The evidence at their trial showed that
in 1998, the men, assisted by Reginald Howard, Jesse Singleton,
Amar Mobley, and Tiasha Croslin, committed an armed robbery
at a market during store hours, when employees and customers
were present. The robbers were all members of 69 East Coast
Crips, except Bridges, who was a member of a related gang, and
Croslin, Bridges’s girlfriend, who had been a member of a San
Diego gang. In the course of the robbery, Howard shot and killed
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 We derive the background from our opinion affirming
Denem’s judgment of conviction. (People v. Bridges (Jan. 30,
2006, B176263 [nonpub. opn.].) We have granted Denem’s
request for judicial notice of the record in that appeal. (Evid.
Code, § 452, subd. (d).)
2
the security guard, Juan Hernandez. The robbers also took
Hernandez’s gun. Bridges robbed a cashier at gunpoint,
obtaining money and food stamps. Leonard Jackson, a gang
associate of the robbers, arrived at Hatter’s home just as the
robbers returned from the crime scene.
Eyewitness Gilbert Davis lived down the street from the
market. He became suspicious when he saw a Buick Regal, an
Oldsmobile Cutlass, and a Pontiac Trans Am in front of his home.
Davis saw four men enter the market. Davis and his friends
walked toward the market. The Cutlass’s driver, who was alone
in the car, looked straight ahead. Someone then got into the
Cutlass, and they took off.
A market employee saw three men looking around the
store. One man, identified as Denem, wore a hat and had long
curly hair.4 Denem ordered everyone to get down, pointed a gun
at the ceiling, and fired one shot. Thirty seconds later, the
employee heard another shot.
The market’s cashier saw the security guard struggling
with two men. The cashier heard a gunshot and saw one of the
men run from the market. The cashier ran to the manager’s
office, but the manager locked the door before she could enter.
An armed man took her at gunpoint to the cash registers and
forced her to empty their contents into a bag.
The crime went unsolved for two years until Jackson
offered to assist law enforcement in the hope of obtaining a
reduction of a prison term he was serving. In 2001, Jackson
identified six of the robbers and offered the name of the seventh,
Denem. The detective then showed photographic lineups to the
4 There is no dispute that Denem had disguised himself with
a hat and wig.
3
market employees. One identified Singleton and Bridges; a
second identified Howard; and two others identified Singleton.
The cashier could not identify anyone, although, at trial she
thought that Bridges looked similar to the man who forced her at
gunpoint to empty the cash registers.
The neighbor who lived down the street, Davis, identified
Hatter and Croslin as the individuals he had seen in the Regal
outside the market and identified Joe as the driver of the
Cutlass.
Croslin, who was now incarcerated in connection with an
unrelated bank robbery, admitted her role in the robbery and
identified the participants.5 She and Jackson testified against
Denem and his codefendants. At trial, Croslin testified that at
the time of the crimes she lived with Bridges, and Jackson lived
in the house in front of them. Through Bridges, Croslin met
Hatter and Denem, both of whom were members of the 69th
Street Crips. Hatter’s nickname was Doughboy and Denem’s
nickname was Baby Doughboy, indicating the two had a close
relationship.
On the morning of the robbery, Bridges and Croslin went to
Hatter’s home where Denem, Hatter, Joe, Bridges, Singleton,
Howard, and Mobley discussed a robbery. Hatter said he needed
money to get a car out of impound. When the conversation
ended, Bridges told Croslin to get into a Regal with Hatter, who
then drove them to the market. After Hatter and Croslin entered
5 Croslin initially faced a term of life without the possibility
of parole for her involvement in the robbery. However, Croslin
pleaded no contest to one count of voluntary manslaughter and
two counts of robbery in exchange for a prison term of 12 years
and her truthful testimony in this case.
4
the market, Hatter said, “This is where we’re going to hit.”
Hatter and Croslin made a purchase, then left the store. They
drove past a Cutlass driven by Joe and a parked Trans Am driven
by Mobley. Shortly thereafter, Hatter and Croslin drove past the
market and saw individuals running from it.
After the robbery, the entire crime team returned to
Hatter’s home. Howard was pacing and repeatedly said, in a
scared manner, “I killed him, I killed him.” They divided the
money and food stamps obtained in the robbery.
When Croslin later learned that the security guard had
been killed, Bridges told her, “Howard was tussling with the
security guard and shot him.” Bridges indicated his role was to
get the money from the safe in the office with Denem or
Singleton, and Howard was supposed to distract the security
guard. Bridges said Denem wore a disguise of a hat and a curly
wig.
Jackson testified that he was at Hatter’s home when the
robbers returned from robbing the market. Denem had a hat and
a wig. Once inside, they argued. Hatter asked where the money
was, and Bridges said they only got food stamps and complained
that they would have gotten more if Howard had not been “so
trigger happy.” They divided the food stamps among themselves
and gave Jackson some. When they saw a news reports of the
robbery, Bridges and Denem said police sketches of the suspects
did not look like them, and Denem laughed because the sketches
depicted him as having long hair.
Two days after the robbery, Jackson was arrested for
violating parole. Approximately five months after telling a
detective what he knew about the robbery, Bridges and Jackson
were incarcerated together. Bridges related details of the crime
5
to Jackson, saying that Hatter and Croslin entered the store first
to “check the move out[.]” Bridges said he and Denem intended
to force the manager to open the safe at the back of the store, but
the manager locked himself in a room. When Bridges heard a
shot, he ran with Denem to the front of the market and saw that
Howard and Singleton already had fled. Bridges then took food
stamps from the cash register. Bridges said Howard had a .45
caliber handgun.
II. Verdict and sentence
In 2004, a jury convicted Denem of special circumstance
murder (§§ 187, subd. (a), 190.2, subd. (a)(17); count 1) and of
robbery (§ 211; counts 2 & 3) with true findings on principal gun
use (§ 12022.53, subds. (c), (d) & (e)(1)) and gang (§ 186.22, subd.
(b)(1)) allegations.6 That same year, the trial court sentenced
Denem on count 1 to life without the possibility of parole plus 25
years to life for the gun enhancement. The trial court imposed
but stayed the sentence on count 2 and imposed a concurrent
sentence on count 3.
A different panel of this Division affirmed Denem’s
judgment of conviction. (People v. Bridges, supra, B176263.)
III. Postconviction proceedings
Thereafter, our legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), which limited
accomplice liability for murder and allowed eligible defendants
convicted of murder to petition for resentencing. In 2021, Denem
petitioned for vacation of his murder conviction and resentencing
6 The jury found true the gang allegations only as to counts 1
and 3.
6
under that new law. The trial court appointed counsel to
represent Denem, issued an order to show cause, accepted
briefing, and held an evidentiary hearing at which Denem was
present. At the evidentiary hearing, the parties did not offer any
new or additional evidence. The trial court considered the trial
evidence and the appellate opinion for the purposes of procedural
history.
The trial court found that Denem was at a meeting to plan
the robbery, was the person wearing a hat and wig, ordered
everyone to get down, and fired a shot at the ceiling. The trial
court further noted that Denem was an adult when the robbery
was planned “and whether he was the active shooter or not, he
did hold a gun shortly before or shortly after it was fired and was
in sufficient proximity to observe his cohorts.” Further, he fled
the scene, which supported an inference he did not help the
victim. Citing various cases, the trial court found that Denem
was a major participant who acted with reckless indifference to
human life and accordingly denied his petition.
DISCUSSION
I. Senate Bill 1437 and standard of review
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to the end of ensuring that a person’s sentence
is commensurate with the person’s individual criminal
culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–
843.) As relevant here, Senate Bill 1437 amended the felony-
murder rule by adding section 189, subdivision (e), which
provides that a participant in the perpetration of qualifying
7
felonies is liable for felony murder only if the person: (1) was the
actual killer; (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor; or (3) the person was a
major participant in the underlying felony and acted with
reckless indifference to human life, as described in section 190.2,
subdivision (d). (Gentile, at p. 842.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid theory of murder may petition for vacation of their
convictions and resentencing. A defendant is eligible for relief
under section 1172.6 if the defendant meets three conditions: the
defendant (1) must have been charged with murder under a
theory of felony murder, (2) must have been convicted of first or
second degree murder, and (3) could no longer be convicted of first
or second degree murder due to changes to sections 188 and 189
effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a
petitioner makes a prima facie showing of entitlement to relief,
the trial court shall issue an order to show cause (§ 1172.6,
subd. (c)) and hold an evidentiary hearing at which the
prosecution bears the burden of proving “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (§ 1172.6,
subd. (d)(3)). The parties may offer new or additional evidence at
the evidentiary hearing. (Ibid.) A “finding that there is
substantial evidence to support a conviction for murder” is
insufficient to meet this required showing. (Ibid.) The trial court
sits as an independent factfinder to determine beyond a
reasonable doubt whether the defendant is guilty of murder
under a valid theory of murder. (People v. Garrison (2021) 73
Cal.App.5th 735, 745.)
8
On appeal, we review the trial court’s findings for
substantial evidence. (People v. Clements (2022) 75 Cal.App.5th
276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575,
591.) Under that standard of review we “ ‘ “examine the entire
record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in
support of the judgment the existence of every fact that can be
reasonably deduced from the evidence. (People v. Owens (2022)
78 Cal.App.5th 1015, 1022.)
II. Sufficiency of the evidence Denem was a major participant
in the felony who acted with reckless indifference to human
life
Denem contends that the trial court erred by denying his
section 1172.6 petition because there was insufficient evidence to
support its conclusion that he acted with reckless indifference to
human life. We disagree.
A. What it means to be a major participant who acts with
reckless indifference to human life
This area of law regarding what it means to be a major
participant in a crime who acts with reckless indifference to
human life has its genesis in two United States Supreme Court
cases: Enmund v. Florida (1982) 458 U.S. 782 and Tison v.
Arizona (1987) 481 U.S. 137. Enmund held that the death
penalty could not constitutionally be imposed on an armed
robbery getaway driver who was a minor participant in the crime,
9
was not present when the murder was committed, and had no
intent to kill. (Enmund, at pp. 798, 801.)
In contrast, Tison v. Arizona, supra, 481 U.S. at page 139,
did not preclude imposing the death penalty for two defendants,
brothers, who had helped their father and his cellmate—both
convicted murderers—escape from prison. The defendants gave
them guns, and the group later kidnapped a family of four. The
defendants then stood by while their father debated whether to
kill the family and proceeded to shoot the family, including a
toddler and a teenager. (Id. at pp. 139–141.) The court held that
the Eighth Amendment does not prohibit imposing the death
penalty on a nonkiller who lacked the intent to kill, but whose
“participation [in the crime] is major and whose mental state is
one of reckless indifference to the value of human life.” (Id. at
p. 152; see also id. at pp. 157–158.)
Years later, in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), our
Supreme Court addressed Enmund and Tison and substantially
clarified the “major participant” and “reckless indifference to
human life” requirements. Banks, at page 794, considered “under
what circumstances an accomplice who lacks the intent to kill
may qualify as a major participant.” The court listed various
factors that should be considered in making that determination:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
10
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.)
The court then turned its attention to “reckless indifference
to human life” in Clark. Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to
carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.)
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 his actions.”
(Id. at p. 617.) Recklessness has both a subjective and an
objective component. (Ibid.) Subjectively, the defendant must
consciously disregard risks known to him. Objectively,
recklessness is determined by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” that is, whether defendant’s
conduct “ ‘involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would
observe.’ ” (Ibid.)
Clark listed factors to consider when determining whether
reckless indifference existed: “Did the defendant use or know
that a gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present at
the crime? Did he or she have the opportunity to restrain the
crime or aid the victim? What was the duration of the interaction
between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s
propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence
during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677
[summarizing Clark factors].)
11
On appeal, Denem concedes he was a major participant.
We therefore focus on whether he acted with reckless indifference
to human life.
B. Reckless indifference to human life
Cognizant that the Banks/Clark factors overlap, we begin
with Denem’s use of and knowledge that guns would be used
during the robbery. The evidence shows that four men entered
the market and at least Denem and Howard were armed with
guns. Although Denem’s mere knowledge that he and at least
one of his accomplices were armed is insufficient by itself to
establish reckless indifference to human life (see, e.g., Clark,
supra, 63 Cal.4th at p. 617), Denem actively used his gun to
threaten the victims: he shot it at the ceiling as he ordered his
victims to get down. Although Denem characterizes this act as
an attempt to minimize violence by corralling the victims to
prevent resistance, the trial court was entitled to draw another
conclusion, that such use of his gun enabled the murder and
exhibited reckless indifference to human life. (See, e.g., People v.
Bradley (2021) 65 Cal.App.5th 1022, 1033 [wielding gun during
robbery reflects reckless indifference to human life]; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1089.) In Bascomb, the
defendant used his gun to threaten and keep victims at bay
during a bank robbery, thereby actively enabling the murder.
The Bascomb defendant did not discharge his gun and yet was
found to have exhibited reckless indifference to human life by
merely displaying it threateningly. Here, Denem went much
further than the Bascomb defendant by discharging his gun. And
that Denem fired a shot into the air does not diminish the
reckless indifference to human life of his act. To the contrary,
12
setting aside that a person could have been injured by a stray
bullet, the mere discharge of the gun escalated the violence.
As for Denem’s presence at the crime scene, he was clearly
in the market. It is unclear, however, whether he was next to or
near Howard when Howard shot the security guard, and thus in
a position to restrain Howard. (Compare In re Loza (2017) 10
Cal.App.5th 38, 51, 53 [petitioner had time to observe and react
before murder because he heard killer threaten to shoot clerk and
count to five before doing so]; with In re Scoggins, supra, 9
Cal.5th at p. 679 [quickness of shooting suggested defendant
lacked control over accomplices’ actions]; People v. Ramirez
(2021) 71 Cal.App.5th 970, 989 [defendant lacked meaningful
opportunity to intervene when he and shooter were on opposite
sides of victim’s car, and attempted carjacking was quickly
executed]; In re Moore (2021) 68 Cal.App.5th 434, 452 [defendant
present during robbery but not “ ‘close enough’ ” to restrain
shooter].) Some evidence suggests that Denem was at the back of
the store near the manager’s office when Howard shot the
security guard closer to the front of the store. Thus, there was
evidence that Denem was not in Howard’s immediate proximity
when Howard killed the security guard and did not have an
immediate opportunity to restrain him. Still, it is unclear where
all the robbers were at any specific time during the event, so, as
the trial court said, Denem may have been in sufficient proximity
to his accomplices to restrain them at various times during the
robbery. This factor therefore could weigh for or against a
finding of reckless indifference to human life.
Even so, there is no evidence that Denem did anything to
minimize the risk of violence. Instead, the evidence is he
heightened the risk of violence. His accomplices Hatter and
13
Croslin cased the market by entering it and buying something,
which suggests that they could have seen the security guard and
noted that he was armed.7 Yet, the robbers still targeted the
market, deciding to rob it in the morning when numerous
employees and customers, including children, were present.
Denem and three of his accomplices entered the market armed,
perhaps anticipating armed resistance and prepared to meet it.
(Compare In re Scoggins, supra, 9 Cal.5th at p. 677 [defendant’s
plan to beat victim and steal his money did not involve use of
weapons].) Denem then told the victims to get down and shot his
gun to make them comply, an act that would have greatly
increased the fear and tension. Indeed, that is apparently the
effect it had. The manager locked himself into the office, and the
cashier attempted to escape to that office. A market employee
told a family to run away. Moreover, Denem’s use of his gun may
have prompted the security guard to respond, resulting in the
tussle with Howard. Thus, instead of preventing resistance and
the risk of death, the evidence supports a finding that Denem’s
conduct contributed to the security guard’s death.
The next factor we examine is the crime’s duration, because
there is generally a greater opportunity for violence when victims
are held at gunpoint or restrained for prolonged periods. (Clark,
supra, 63 Cal.4th at p. 620.) It is unclear how long the event here
lasted. But it was long enough for Denem to try to restrain
multiple victims by firing a shot, for the cashier to run to the
back office, for Howard to shoot the security guard, and for the
robbers to take food stamps and the security guard’s gun. The
events were also long enough to rouse a witness’s suspicions.
7 At trial, Croslin testified that she could not remember
seeing a security guard.
14
That is, a nearby neighbor, Davis, noticed the getaway cars, so he
walked toward the market. The evidence thus suggests that the
events were of some duration. Moreover, as we have noted,
victims were held at gunpoint, increasing the chance of violence.
(See, e.g., People v. Owens, supra, 78 Cal.App.5th at p. 1024
[bank robbery posed high risk of violence because it occurred
during business hours with 20 people present and robbers were
armed].)
As for what Denem knew about any propensity for violence
Howard might have had, there is no evidence on this factor, other
than that Denem, Howard, and the others were gang members.
But mere co-membership in a gang is not necessarily enough to
establish knowledge of a propensity for violence. (See, e.g., In re
Miller (2017) 14 Cal.App.5th 960, 976 [although defendant and
killer belonged to same gang and had committed follow-home
robberies together, no evidence they had participated in
shootings, murder, or attempted murder].) This factor is
therefore neutral.
However, Denem’s failure to aid the wounded security
guard shows reckless indifference to human life. (See, e.g., Clark,
supra, 63 Cal.4th at p. 619; In re Parrish (2020) 58 Cal.App.5th
539, 544 [reckless indifference shown by failure to pause to aid or
comfort victim]; People v. Douglas (2020) 56 Cal.App.5th 1, 10
[petitioner “displayed no interest in moderating violence or in
aiding his bloody and suffering victim,” and instead picked his
pocket].) Although this factor alone would be insufficient to
establish reckless indifference to human life, it weighs in favor of
that finding when considered with other factors.
Finally, although youth was not a factor that Clark cited as
relevant to whether a defendant acted with reckless indifference
15
to human life, courts have considered it to be so. (See, e.g., In re
Moore, supra, 68 Cal.App.5th at p. 454 [hallmarks of youth—
immaturity, impetuosity, and failure to appreciate risks and
consequences—germane to mental state]; People v. Harris (2021)
60 Cal.App.5th 939, 960.) Here, the trial court noted that Denem
was not a juvenile when he committed his crimes. Accordingly,
youth was not a factor weighing against a finding he acted with
reckless indifference to human life.
Reviewing the totality of this evidence, particularly
Denem’s discharge of his gun which heightened the risk of
violence, it was sufficient to support the trial court’s conclusion
that Denem was a major participant in the robbery who acted
with reckless indifference to human life.
16
DISPOSITION
The order denying Rollin Denem’s Penal Code section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
NGUYEN (KIM), J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17