People v. Jordan CA2/2 ( 2023 )

Filed 10/5/23 P. v. Jordan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B313749
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A294099)
v.
CHARLES JORDAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Gary A. Lieberman, Deputy
Attorney General, for Plaintiff and Respondent.
******
Charles Jordan (defendant) appeals the trial court’s order
denying his petition for resentencing filed pursuant to Penal
Code section 1172.6.1 Concluding there was no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Underlying Crime
Just before midnight on a Monday in February of 1973,
defendant, George Monroe Clark (Clark), and Frederick Dwayne
Nelson (Nelson) were hanging out in the Belmont Bar in
downtown Los Angeles. Nelson had a knife. Clark was a pimp,
and JoAnn Fay (Fay) was one of his prostitutes.
Frank Zion (Zion) walked into the bar and had cash visibly
overflowing from his pockets. Zion was noticeably drunk. After
Zion told Fay he wanted a “date” with her and peeled off $130 to
give her from his wad of cash, Zion led Fay to the Rosslyn Hotel,
a then-seedy hotel across the street from the bar. Defendant,
Clark, and Nelson waited a few minutes, and then followed.
Before they left, however, one of them grabbed a beer bottle and
concealed it in a T-shirt.
Back in Zion’s room at the hotel, Zion and Fay had sex.
1 When defendant filed his petition, the relevant
resentencing statute was numbered section 1170.95. Effective
June 30, 2022, section 1170.95 was renumbered section 1172.6,
with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity,
we refer to the section by its new numbering.
All further statutory references are to the Penal Code
unless otherwise indicated.
2
Mere minutes after the sex ended and while Zion was still
laying on the bed, defendant, Clark, and Nelson barreled into
Zion’s hotel room with enough force to splinter the door jamb and
knock down Fay, who was near the door. Defendant was the first
of the three assailants through the door. They let Fay exit the
room and then, as Zion lay on the bed, all three men rushed him
and unleashed a hail of punches. One of the three men pulled out
the by-that-time broken beer bottle and plunged its jagged edge
into Zion’s neck, severing his jugular vein and causing his
lifeblood to rapidly flood the bedsheets. Zion had no defensive
wounds.
Defendant, Clark, and Nelson then ransacked the hotel
room, taking Zion’s wallet and the other wads of cash. They left
the room with Zion bleeding out on the bed, and returned to the
bar to “split” the loot.
II. Prosecution, Conviction, and Appeal
The People charged defendant, Clark, and Nelson with
robbery (§ 211) and murder (§ 187), and further alleged that each
defendant intentionally inflicted great bodily injury. The jury
convicted defendant of first degree robbery and first degree
murder, and found true the further allegation.
The trial court imposed a sentence of life for the murder
conviction, but stayed the sentence for the robbery conviction.
Defendant’s conviction and sentence were affirmed on
appeal.
III. Petition to Vacate Under Section 1172.6
In January 2019, defendant filed a petition for resentencing
under section 1172.6. After appointing counsel to represent
defendant, and after receiving a response from the People and a
further brief from defendant, the trial court in February 2021
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issued an order to show cause and set the matter for an
evidentiary hearing.
On May 14, 2021, the trial court held an evidentiary
hearing. At that hearing, the court stated that it had read the
transcripts from the original trial. The People also introduced a
2009 comprehensive risk assessment presented to the Board of
Parole Hearings. Defendant introduced no new evidence. A few
days after the hearing, defendant filed a supplemental brief
contesting the admissibility of the 2009 assessment.
On May 28, 2021, the trial court issued a 13-page order
denying defendant’s petition. The court reasoned that defendant
was not entitled to relief under section 1172.6 for two reasons—
namely, (1) defendant had admitted in the 2009 assessment to
being the “actual killer” (that is, the one who plunged the beer
bottle into Zion’s neck); and (2) the evidence from the original
trial supports an independent finding, beyond a reasonable
doubt, that defendant was a major participant in the robbery who
acted with reckless indifference to the value of human life.
IV. Appeal
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
petition for resentencing because the court erred in finding that
(1) he was the “actual killer” because the sole basis for that
finding was the 2009 assessment, which was improperly admitted
into evidence; and (2) he was a major participant who acted with
reckless indifference to human life because (a) there is
insufficient evidence that he acted with reckless indifference, and
(b) the court never considered his relative youth. As we explain
below, because the trial court’s independent finding that
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defendant was a major participant who acted with reckless
indifference is valid, we have no occasion to address his challenge
to the evidence underlying the “actual killer” finding.
I. Substantial Evidence Supports the Finding That
Defendant Was a Major Participant Who Acted with
Reckless Indifference
A. Pertinent law
In 2018, our Legislature amended the definition of
“murder” in our state to preclude a jury from “imput[ing]” the
“malice” element of that crime “based solely on [a defendant’s]
participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s
purpose was to ensure that “[a] person’s culpability for murder
[is] premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability for
murder is limited to persons (1) who are the actual killer; (2) who
aided and abetted the actual killer in the murder (that is, who
acted with the intent to kill); or (3) who were a major participant
in the underlying felony that resulted in the killing, but only if
they also acted with reckless indifference to human life. (§§ 188,
subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50
Cal.App.5th 46, 58-59.)
Section 1172.6 is the procedural vehicle by which persons
convicted in now-final judgments can seek to vacate convictions
that do not satisfy the now-current definition of “murder.”
Where, as here, a defendant files a facially sufficient petition and
the record does not otherwise foreclose relief as a matter of law,
the trial court must issue an order to show cause and convene an
evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, the
People have the burden of proving to the trial court, acting as an
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independent factfinder, that a defendant is guilty of murder on a
still-valid theory. (§ 1172.6, subd. (d)(3).)
As pertinent here, the trial court found beyond a
reasonable doubt that defendant was guilty under the still-valid
theory that he was a major participant in the robbery that
resulted in Zion’s death and that he acted with reckless
indifference to human life. Defendant concedes that the court’s
finding that he was a major participant is supported by the
record, but asserts that the finding that he acted with reckless
indifference to human life is not. As a threshold matter,
defendant argues that we must engage in de novo review of the
evidence presented at trial, including reevaluating the credibility
of witnesses and drawing whatever inferences we find
persuasive; for support, he cites People v. Vivar (2021) 11 Cal.5th
510. However, Vivar itself confined its rule of independent
review for testimony presented in transcripts (rather than
through in-person testimony) to petitions under section 1473.7
(id. at pp. 527-528 & fn. 7); not surprisingly, and contrary to
defendant’s proclamation that the law on this point is
“unsettled,” the courts have uniformly rejected the argument
defendant now advances (People v. Clements (2022) 75
Cal.App.5th 276, 301-302; People v. Sifuentes (2022) 83
Cal.App.5th 217, 232-233; People v. Mitchell (2022) 81
Cal.App.5th 575, 590-591). We join that chorus. As a result, our
task is simply to assess whether “substantial evidence”—that is,
“‘“evidence that is reasonable, credible, and of solid value”’”—
supports the trial court’s independent finding that defendant
acted with reckless indifference. (People v. Nieber (2022) 82
Cal.App.5th 458, 476.) In so doing, we view the evidence in the
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light most favorable to the court’s finding, drawing all reasonable
inferences in support of that finding. (Ibid.)
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court
spelled out that a defendant acts with reckless indifference to
human life when he “‘“knowingly engag[es] in criminal activities
known to carry a grave risk of death.”’” (Banks, at p. 801,
quoting People v. Estrada (1995) 11 Cal.4th 568, 577,
quoting Tison v. Arizona (1987) 481 U.S. 137, 157.) This
standard “has a subjective and an objective” component. (In re
Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) To satisfy the
subjective component, ‘“[t]he defendant must be aware of and
willingly involved in the violent manner in which the [underlying
felony] is committed,’ and . . . must consciously disregard ‘the
significant risk of death his or her actions create.’” (Ibid.,
quoting Banks, at p. 801.) The key is whether the defendant
evinces “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.”
(Clark, p. 617.) To satisfy the objective component, the 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 him . . . , its disregard involves a gross
deviation from the standard of conduct that a law-abiding person
would observe in the [defendant’s] situation.”’” (Scoggins, at p.
677, quoting Clark, at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
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sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at p.
677). The considerations are: (1) “Did the defendant use or know
that a gun would be used during the [underlying] felony,” and,
relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was
the defendant physically present at the crime,” such that he had
“the opportunity to restrain the crime or aid the victim?”; (3)
“What was the duration of the interaction between the
perpetrators of the [underlying] felony and the victims?”; (4)
“What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Ibid., citing Clark, supra, 63
Cal.4th at pp. 618-623.)
B. Analysis
Substantial evidence supports the trial court’s finding that
defendant acted with reckless indifference to human life.
The court’s finding of reckless indifference is supported by
substantial evidence when it is viewed in its totality. Defendant
and two other men went to a hotel room that they knew was
occupied by a drunk man who had just had sex and a prostitute
who worked for one of them. They brought weapons—a knife and
a broken beer bottle that could not be easily concealed. They
burst through the hotel room’s door in order to rob the man, and
all immediately moved to where he was on the bed in order to
beat him. This conduct is equivalent to a home invasion robbery,
a crime that carries with it a higher risk of violence. (People v.
Garcia (2020) 46 Cal.App.5th 123, 146-148.) What is more,
defendant concedes he was a major participant in this robbery;
this is further confirmed by his role as the first one to enter the
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hotel room after they busted the door. Defendant’s aggravated
role is further evidence of reckless indifference. (Id. at p. 147
[“the greater the defendant’s participation in the [underlying]
felony . . . , the more likely he or she acted with reckless
indifference to human life”].)
The court’s finding of reckless indifference is further
confirmed by examining the individual Banks and Clark
considerations.
First, and assuming for these purposes that defendant was
not the assailant who stabbed Zion with the beer bottle,
defendant or one of his cohorts brought the broken bottle into the
hotel room and, given the unusual size and shape of a broken
beer bottle, the trial court could reasonably infer that defendant
saw the bottle as the men walked over from the bar. Defendant
responds that there was no evidence that he or one of his cohorts
brought the bottle with them, no evidence which of them brought
it, and no evidence that defendant told anyone to stab Zion.
These arguments are incorrect or irrelevant: Fay testified that
there was no bottle in the room when she was with Zion, giving
rise to the reasonable inference that the assailants brought it
with them; for purposes of showing defendant’s knowledge that a
weapon would be used, it does not matter which one of them
brought the bottle; and in assessing recklessness, it does not
matter which defendant intended the murder.
Second, defendant was present in the hotel room; indeed,
he was one of the three men punching Zion at the time one of
them plunged the beer bottle into Zion’s neck. Defendant argues
that the crime unfolded so quickly he had no time to intervene to
stop the crime, but the record does not support this assertion
given that all three men were ostensibly within arm’s reach of
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one another while simultaneously beating Zion; it is reasonable
to infer defendant could have reached out to either cohort the
moment that cohort pulled out the broken beer bottle.
Third, defendant also could have aided Zion once he was
stabbed; instead, he fled and returned to the bar with the others
to count their loot. Admittedly, the attack on Zion happened
quickly once the three men barged into the room, so there was
not an extended period for reflection after that point in time, but
the fact that the men had planned to proceed to immediately beat
Zion only tends to exacerbate—not reduce—the danger to human
life.
Fourth, although there is no direct evidence that defendant
was aware of Nelson’s or Clark’s past propensity for violence,
these men were not strangers to defendant (as Nelson was
defendant’s roommate), and the charged crime evinces a
coordinated plan to follow a bar patron across the street to rob
and kill him. Defendant’s concession that the evidence supports
a finding that he was a major participant in the robbery further
supports his role in planning the crime—and hence his
foreknowledge of their violence-based plan. What is more,
defendant’s lack of surprise following the crime implies that he
knew that the attack would “go down” precisely as it did.
Lastly, defendant made no effort to minimize the risk of
violence; instead, he was the first to burst into the hotel room and
set upon Zion.
Defendant resists our conclusion with one further
argument—namely, that a person’s participation in an armed
robbery is not enough to establish that he was a major
participant who acted with reckless indifference to human life.
Relatedly, he argues that this was just a “‘garden-variety’ armed
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robbery.” Defendant is correct that mere participation in an
armed robbery is not enough to make every participant in the
robbery someone who acts with reckless indifference (In re
Bennett (2018) 26 Cal.App.5th 1002, 1026; Banks, supra, 61
Cal.4th at p. 810; Clark, supra, 63 Cal.4th at p. 616), but he
seems to leap from that proposition to the conclusion that no
level of participation is enough. But that is simply an incorrect
statement of the law because it would mean that armed robbers
are categorically immune from being major participants who act
with reckless indifference to human life. By the same token,
whether or not the robbery as a whole was a “garden-
variety armed robbery” is irrelevant because what matters
is defendant’s particular role in this particular armed robbery.
Defendant was not the getaway driver who waited around the
corner while his cohorts robbed a liquor store after
hours. Instead, defendant was one of the three robbers who
followed a mutually agreed-upon plan to follow a bar patron
across the street to his hotel room where they forced entry and
proceeded to beat, rob, and kill him. For the reasons explained
above, defendant’s particular role in this particular robbery
qualifies him as a major participant who was recklessly
indifferent to human life.
II. Consideration of Defendant’s Relative Youth
In a series of decisions starting with People v. Harris (2021)
60 Cal.App.5th 939, the California courts have noted that a
defendant’s relative youth—which various statutes refer to as
being under the age of 26 (§§ 3051, subd. (a)(1), 4801, subd. (c))—
is relevant in assessing whether a defendant has satisfied the
subjective component of the reckless indifference test. (Harris, at
p. 960 [defendant’s youth makes it “far from clear that [he] was
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actually aware ‘of [the] particular dangers posed by the nature of
the crime, weapons used, or past experience or conduct of the
other participants’”]; In re Moore (2021) 68 Cal.App.5th 434, 453-
454 [“a defendant’s youth is a relevant factor in determining
whether the defendant acted with reckless indifference to human
life”]; People v. Jones (2022) 86 Cal.App.5th 1076, 1092-1093
[same].) Harris—the first in this line—was decided on February
16, 2021, which is before the May 2021 evidentiary hearing in
this case. Because the parties cited defendant’s age of 19 to the
trial court, we may presume that the court was aware of Harris
and hence aware of its need to “consider [defendant’s] age and
maturity level” when assessing whether defendant acted with
reckless disregard. (Cf. Jones, at p. 1092 [concluding that
presumption did not apply to section 1172.6 hearings held prior
to Harris].)
Defendant resists this conclusion, urging that because his
evidentiary hearing was held before Moore and Jones, we cannot
presume the trial court was aware of the relevance of his relative
youth. But Jones is to the contrary. Defendant further urges
that the presumption that courts are aware of and apply the law
only applies in “simplistic situations,” but he cites no authority
for this proposition and Jones itself does not adopt it. We also
reject it. Our conclusion in this regard obviates the need to
consider defendant’s subsidiary argument that his counsel was
constitutionally ineffective for not explicitly asking the court to
consider his age.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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