People v. Casey CA2/2 ( 2021 )

Filed 3/19/21 P. v. Casey CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B303148
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA058967)
v.
JURRAY WILLIE CASEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Lauren Weis Birnstein, Judge. Affirmed.
Aaron Spolin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Michael Pulos, Lynne G. McGinnis, and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Jurray Casey appeals the denial of a petition for
resentencing under Penal Code1 section 1170.95 following an
evidentiary hearing on an order to show cause. Because
substantial evidence supports the trial court’s finding that
appellant was a direct aider and abettor who acted with malice,
he is ineligible for section 1170.95 relief and we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
On the night of January 7, 2006, Jamarea Wilson (Wilson),
Rashad Ali (Ali), Leon Collins (Collins), Tariq Anderson
(Anderson), and Rammon Lewis attended a dance competition at
the Debbie Allen Dance Studio in Culver City. During the event,
there was an altercation and shots were fired. After police told
everyone to leave, Wilson and his friends drove away in Wilson’s
customized Dodge Durango. (Casey I, supra, B201371.)
Ali, Collins, and Anderson sat in the backseat of the
Durango. As they drove along, Anderson noticed appellant
driving toward them in a Thunderbird from the opposite
direction. Anderson saw appellant give the Durango a hard stare
before making a U-turn to drive behind them. Both vehicles
came to a stop at a red light. The Durango was in the No. 1 lane,
another car was in the No. 2 lane, and the Thunderbird was in
1 Undesignated statutory references are to the Penal Code.
2 We draw these facts from our prior, unpublished
appellate opinion affirming defendant’s conviction on appeal.
(People v. Casey (Dec. 10, 2008, B201371) [nonpub. opn.]
(Casey I).)
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the “gutter lane.” Anderson told Wilson to take off as soon as the
light turned green. (Casey I, supra, B201371.)
When the light changed, Wilson accelerated. Appellant
also accelerated, passing and pulling in front of the car in the
middle lane before drawing alongside the Durango. No words or
gestures were exchanged between the occupants of the two cars.
Someone in the Thunderbird then put his arm out the driver’s
window and fired several shots into the Durango. Wilson
immediately made a U-turn and drove in the opposite direction
until he saw a police officer. The Thunderbird drove away.
(Casey I, supra, B201371.)
Ali suffered a gunshot wound to the abdomen and later
died in surgery. (Casey I, supra, B201371.)
B. Conviction, appeal, and subsequent proceedings
Appellant and a passenger in the Thunderbird3 were
charged with murder (§ 187, subd. (a)) and shooting at an
occupied motor vehicle (§ 246). The information further alleged a
gang enhancement (§ 186.22, subd. (b)(1)(C) & (b)(4)), and
contained an allegation that a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (b), (c), (d),
& (e)(1)).
At trial, Collins identified appellant as both the driver of
the Thunderbird and the shooter. He testified that he saw
appellant holding the gun as he put his arm halfway out the
window. He described appellant’s arm as “built” “like a football
player.” Anderson also identified appellant at the field showup.
3There were three passengers in the Thunderbird in
addition to appellant, who was driving. (Casey I, supra,
B201371.)
3
(Casey I, supra, B201371.) The prosecution presented evidence at
trial that appellant was a member of the Baby Insane Crips gang
and played football for his high school. (Casey I, supra,
B201371.)
For the defense, the head coach of appellant’s high school
football team (who was also a probation officer) testified that
appellant was one of the best players on his team, and he had no
reason to believe appellant was a gang member. A private
investigator examined the Durango and the Thunderbird for the
defense. Using dowels to determine the trajectory of the bullets
that hit the Durango, he opined that a person sitting behind the
driver’s seat of the Thunderbird could have been the shooter.
(Casey I, supra, B201371.)
The jury found appellant guilty of first degree murder and
shooting at an occupied vehicle. The jury also found true the
personal and intentional use of a firearm by a principal
allegation, but rejected the gang enhancement allegations. The
court sentenced appellant to a term of 50 years to life in prison.
(Casey I, supra, B201371.)
On direct appeal, this court affirmed the judgment of
conviction but modified the judgment to strike the sentence
enhancements under section 12022.53, subdivisions (d) and (e)(1).
(Casey I, supra, B201371.) In a subsequent habeas proceeding,
appellant’s first degree murder conviction was reduced to second
degree murder pursuant to People v. Chiu (2014) 59 Cal.4th 155.
II. Procedural Background
On February 5, 2019, appellant filed a petition for
resentencing under section 1170.95, alleging he was convicted of
second degree murder under the natural and probable
consequences doctrine, but could not be convicted of murder
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following the amendments to sections 188 and 189, effective
January 1, 2019. Acknowledging it had offered three theories of
murder liability at trial, including aiding and abetting under the
natural and probable consequences doctrine, the prosecution
opposed the section 1170.95 petition on the ground that the
evidence established appellant was the actual killer or was a
direct aider and abettor who acted with malice.
Following the hearing on the order to show cause, the
superior court denied the petition, finding beyond a reasonable
doubt that appellant acted with implied malice as a direct aider
and abettor of the shooting. The court emphasized that in
convicting appellant of shooting into an occupied vehicle in
violation of section 246, the jury necessarily found beyond a
reasonable doubt that appellant intended to shoot into the other
car or specifically intended to aid and abet someone else in his
car to carry out the shooting.
DISCUSSION
In People v. Chiu, supra, 59 Cal.4th at page 166 (Chiu), our
Supreme Court held that “natural and probable consequences
liability cannot extend to first degree premeditated murder
because punishing someone for first degree premeditated murder
when that person did not actually perpetrate or intend the killing
is inconsistent with ‘reasonable concepts of culpability.’ ” (People
v. Gentile (2020) 10 Cal.5th 830, 838 (Gentile).) In 2018, the
Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.,
eff. Jan. 1, 2019) (Senate Bill 1437) in order to “more equitably
sentence offenders in accordance with their involvement in
homicides.” (Stats. 2018, ch. 1015, § l, subd. (b); Gentile, at
p. 839.) “Among other things, Senate Bill 1437 amended Penal
Code section 188 to provide that ‘[e]xcept as stated in
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subdivision (e) of Section 189 [governing felony murder], in order
to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.’ ” (Gentile, at
p. 839, quoting § 188, subd. (a)(3).) The California Supreme
Court held in Gentile that Senate Bill 1437 “eliminate[d] natural
and probable consequences liability for murder regardless of
degree.” (Id. at pp. 847–848; see id. at pp. 839, 846, 851
[interpreting amendment to § 188 as barring second degree
murder conviction under natural and probable consequences
doctrine]; People v. Offley (2020) 48 Cal.App.5th 588, 595
(Offley).)
The amendment to section 188 did not, however, alter the
law regarding the criminal culpability of a direct aider and
abettor to murder because such an “accomplice aids the
commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ ” (Gentile, supra, 10 Cal.5th at
p. 843; People v. McCoy (2001) 25 Cal.4th 1111, 1118 [a direct
aider and abettor necessarily “know[s] and share[s] the
murderous intent of the actual perpetrator”]; see Chiu, supra, 59
Cal.4th at p. 167 [a direct aider and abettor “acts with the mens
rea required for first degree murder”].) “One who directly aids
and abets another who commits murder is thus liable for murder
under the new law just as he or she was liable under the old law.”
(Offley, supra, 48 Cal.App.5th at p. 596.)
Senate Bill 1437 also added section 1170.95, which
established a procedure whereby defendants previously convicted
of murder under the old law may seek resentencing in the trial
court if they could no longer be convicted of murder in light of
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Senate Bill 1437’s statutory changes. (Gentile, supra, 10 Cal.5th
at p. 847; People v. Martinez (2019) 31 Cal.App.5th 719, 722–723
(Martinez).) In order to obtain relief under section 1170.95, a
person convicted of felony murder or murder under a natural and
probable consequences theory must first file a petition affirming
eligibility for resentencing under the new law. (§ 1170.95, subd.
(b)(1).) If the trial court determines the petitioner has made the
requisite prima facie showing that he or she falls within the
provisions of the statute, the “court ‘shall issue an order to show
cause,’ ” and must then hold an evidentiary hearing. (Martinez,
at p. 723; § 1170.95, subds. (c) & (d).) At that hearing, the
petitioner and the prosecution may rely on the record of
conviction or offer new or additional evidence to demonstrate the
petitioner’s eligibility or ineligibility for resentencing. (§ 1170.95,
subd. (d)(3).) It is the prosecution’s burden to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing. (Ibid.; People v. Drayton (2020) 47 Cal.App.5th
965, 981 [following issuance of order to show cause, the burden of
proof shifts to prosecution to prove, beyond a reasonable doubt,
that petitioner is ineligible for resentencing].) “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” in accordance with section 1170.95, subdivision (e).
(§ 1170.95, subd. (d)(3); Martinez, at pp. 723–724.)
On appeal from a denial of relief following an evidentiary
hearing under section 1170.95, subdivision (d), we review the
trial court’s factual findings for substantial evidence. (People v.
Clements (2021) 60 Cal.App.5th 597, 618 (Clements); People v.
Johnson (2016) 1 Cal.App.5th 953, 960.) Under that familiar
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standard, “ ‘we review 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—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt’ ”
under section 188 as amended. (People v. Morales (2020) 10
Cal.5th 76, 88; Clements, at p. 618.) To that end, we presume the
existence of every fact the court as fact finder could reasonably
deduce from the evidence in support of the court’s order. (People
v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)
In conducting the evidentiary hearing on a section 1170.95
petition, the trial court does not hold a new trial on all the
elements of murder. Rather, the court determines whether the
evidence establishes beyond a reasonable doubt that the
petitioner acted with malice aforethought, and thus remains
guilty of murder under the amendments to section 188.
(Clements, supra, 60 Cal.App.5th at p. 618.) “Our job on review is
different from the trial judge’s job in deciding the petition. While
the trial judge must review all the relevant evidence, evaluate
and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard, our job is to
determine whether there is any substantial evidence,
contradicted or uncontradicted, to support a rational fact finder’s
findings beyond a reasonable doubt.” (Clements, at p. 618; People
v. San Nicolas (2004) 34 Cal.4th 614, 657–658.)
“Second degree murder is the unlawful killing of a human
being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder.” (People
v. Knoller (2007) 41 Cal.4th 139, 151; People v. Chun (2009) 45
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Cal.4th 1172, 1181.) Malice may be express or implied. (§ 188,
subd. (a).) Malice is express if the defendant intended to kill.
(§ 188, subd. (a)(1); People v. Gonzalez (2012) 54 Cal.4th 643,
653.) Implied malice requires no intent to kill, but “only an
‘intent to do an act dangerous to human life with conscious
disregard of its danger.’ ” (People v. Landry (2016) 2 Cal.5th 52,
96; Offley, supra, 48 Cal.App.5th at p. 598.) “Thus, implied
malice includes an objective component—an act that is dangerous
to life—and a subjective component—the defendant’s awareness
of and disregard for the danger.” (Clements, supra, 60
Cal.App.5th at p. 619; Knoller, at pp. 153–154, 157.)
Here, the trial court found beyond a reasonable doubt that
the evidence supported appellant’s second degree murder
conviction under the theory that appellant was a direct aider and
abettor who acted with express or implied malice. We conclude
substantial evidence supports the trial court’s finding. Even if it
could not be determined if appellant was the actual shooter, the
record in this case establishes that as the driver in the drive-by
shooting, appellant aided and abetted the killing with the intent
to kill or with knowledge of the danger to and a conscious
disregard for human life.
As the trial court recognized, appellant was convicted of the
separate offense of shooting at an occupied vehicle, which is
defined as the malicious and willful discharge of a firearm at an
occupied motor vehicle. (§ 246; People v. Rivera (2019) 7 Cal.5th
306, 333.) Appellant’s conviction for this offense thus establishes
that the jury found beyond a reasonable doubt that appellant was
the actual shooter who maliciously and willfully fired at Wilson’s
vehicle, or he was a direct aider and abettor of the crime who
knew of the shooter’s unlawful purpose and intended to commit
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or facilitate the shooting at the occupied vehicle. (People v.
Nguyen (2015) 61 Cal.4th 1015, 1054 [“ ‘A “person aids and abets
the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the
intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes,
encourages or instigates, the commission of the crime” ’ ”].)
Either way, appellant’s conviction on this count constitutes
substantial evidence in support of the trial court’s malice finding
and makes him ineligible for relief under section 1170.95.
Further, the evidence of appellant’s conduct as the driver
constituted substantial evidence to support the court’s finding,
beyond a reasonable doubt, that appellant acted with implied
malice. Appellant’s “hard stare” at the Durango’s occupants, the
sudden U-turn and active pursuit of Wilson’s vehicle, and
appellant’s maneuver to position the Thunderbird to enable the
shooter to fire into the occupied vehicle at close range supplied
the objective component of implied malice⎯an act that is
dangerous to life⎯as well as the subjective component⎯the
awareness of and disregard for that danger. (See Clements,
supra, 60 Cal.App.5th at p. 619; Knoller, supra, 41 Cal.4th at
pp. 153–154, 157.)
Based on the foregoing, we conclude substantial evidence
supports the trial court’s finding that, at a minimum, appellant
directly aided and abetted the killing with a conscious disregard
for human life. Accordingly, the court properly denied the
petition for relief under section 1170.95.
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DISPOSITION
The order denying the petition for resentencing under
Penal Code section 1170.95 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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