People v. Isaac CA2/2 ( 2024 )

Filed 1/30/24 P. v. Isaac 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B326883
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA099542)
v.
ZOELEE ISAAC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Affirmed.
Brad Kaiserman, 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, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
This is defendant and appellant Zoelee Isaac’s second
appeal from a postjudgment order denying his petition for
resentencing under Penal Code1 section 1172.6.2
In the first of these postjudgment appeals, we affirmed the
trial court’s order denying defendant’s first resentencing petition
following an evidentiary hearing. (People v. Isaac (Aug. 12,
2021), B305378 [nonpub. opn.] (Isaac), rev. denied Oct. 20, 2021.)
Defendant subsequently filed a second resentencing petition,
which the trial court summarily denied. Defendant now appeals
from that ruling. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The 1996 Conviction and Direct Appeal
A. The Murder and Robberies
“On the morning of July 20, 1994, [Sonja] Key, [Timothy
Thomas] Williams, [defendant], and one other man entered Home
Bank.[3] They were all armed. Key was wearing a wig. Williams,
dressed in what appeared to be a brown United Parcel Service
uniform, approached the bank guard Juan Corona. An argument
and struggle for Corona’s gun ensued. Key walked over to the
two men. She began to struggle with Corona. She said, ‘Get him
off me or I’ll pop him.’ Key shot Corona in the neck, and he
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 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.
3 At the time, defendant was 22 years old.
2
subsequently bled to death. Key ordered everyone in the bank to
the floor. [Defendant] and the fourth robber brandished their
weapons and demanded money. They demanded that teller
Jumpee Sue Martinez and corporate officer Roy Foster give them
money from the teller drawers. They did so. The robbers took
$2,869 in all from unlocked teller stations and then fled in a
stolen hot-wired van. They abandoned the van and were driven
off in a Pontiac. The van contained wigs and a bucket of soapy
water.” (People v. Key (Aug. 5, 1998, B105415) [nonpub. opn.]
(Key) [counts 1–3].)
Six days later, “[Francis D.] Flowers, [defendant], Key and
Tianay Robinson, . . . all armed, entered the Gilmore Commercial
and Savings Bank. All four were wearing wigs. As an elderly
customer, Doris Ingber, was leaving the bank, Robinson threw
her down and pushed her head to the floor. Then the four
robbers announced that it was a holdup and demanded to know
where the vault was. [Defendant] put a gun to the head of
security guard Raymond Gomez, then threw him to the floor.
Robinson shot Gomez as he lay on the floor. Flowers threatened
the tellers at gunpoint and filled a grocery bag with $7,580 from
the tellers’ drawers. Flowers demanded that teller Esmirna
Lozano give him the money from her teller drawer. She did so.
Flowers later slapped Lozano for saying she had no keys to teller
Patsy Beene’s drawer. Flowers and [defendant] pointed their
guns at Patsy Beene, who at first refused to open her teller
drawer. She later did so, and Flowers took the cash in the
drawer. Flowers pointed his gun at Moses Aguilar, a teller, and
demanded that he give him money. After Aguilar turned over his
cash, Flowers ordered Aguilar to lie down on the floor.
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“Either Flowers or [defendant] kicked open the door to the
safe deposit area, where bookkeeper Ofelia Hovian was working.
The robber held a gun to her head and he and Key demanded
that Hovian show them where the money was. Hovian went
under a desk, and the man kicked her in the side. Hovian
showed the intruders where the safe deposit boxes were. The
robbers fled in a hot-wired stolen blue Oldsmobile, which they
later abandoned a few miles away. The Oldsmobile contained
three white wet trash bags, one of which contained a soaked $1
bill.” (Key, supra, B105415 [counts 4–10].)
One week after the second robbery, “Williams, Robinson,
and [defendant] were apprehended in a stolen hot-wired van
within 200 feet of a Wells Fargo Bank. [William] Blackwell,
Flowers, and Key were apprehended in a red Pontiac. Police,
who had been watching defendants’ activities, concluded that
they were about to rob the bank. Key, Flowers, and Robinson
had been wearing wigs when first seen, although they removed
them before exiting the vehicles. Robinson, [defendant], Key[,]
and Flowers were all wearing heavy makeup. The police found
loaded guns, a laundry basket with plastic trash bag liners filled
with water, wigs, a pillowcase, and a police scanner and manual
in the vehicles. They also found incriminating evidence in Key’s
apartment, from which the five had exited just before driving to
the Wells Fargo Bank, and in [defendant’s] residence.” (Key,
supra, B105415 [count 13].)
B. The 1996 Conviction and Appeal
In 1996, a jury convicted defendant of first degree murder
(§ 187, subd. (a); count 1) with a robbery-murder special
circumstance finding (§ 190.2, subd. (a)(17)), robbery (§ 211;
counts 2, 4 & 5), assault with a firearm (§ 245, subd. (a)(2);
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counts 3, 7–10), possession of a firearm by a felon (§ 12022, subd.
(a)(1); count 12), and conspiracy to commit robbery (§ 182, subd.
(a)(1); count 13).
As to counts 1 through 3, the jury found principal firearm
use allegations to be true. (§ 12022, subd. (a)(1).) It also found
both principal firearm and personal firearm use allegations to be
true as to counts 4, 5, and 7 through 10. (§ 12022.5, subd. (a).)
The trial court had earlier “granted [defendant’s] motion[] to
dismiss personal use allegations [(§ 12022.5, subd. (a))] in counts
1 and 2.” (Key, supra, B105415.)
The trial court sentenced defendant to 22 years eight
months in state prison, plus life without the possibility of parole.
On direct appeal, we modified defendant’s sentence to
strike an enhancement attached to count 3 and affirmed the
judgment as modified. (Key, supra, B105415.)
II. The First Resentencing Petition and Subsequent
Appeal
On January 2, 2019, defendant filed a petition for
resentencing. (Isaac, supra, B305378.) The trial court appointed
counsel. (Ibid.) After briefing from both parties, the trial court
issued an order to show cause and set the matter for an
evidentiary hearing pursuant to section 1172.6, subdivision (d).
(Isaac, supra, B305378.) “The parties submitted on their briefs
and whatever materials had been submitted by the parties to the
trial court.” (Ibid.)
In February 2020, “[a]fter entertaining oral argument, the
trial court denied defendant’s section [1172.6] petition.” (Isaac,
supra, B305378.) The trial court recited a long list of evidence
supporting its conclusion that “defendant was ‘a major
participant’ who acted with ‘reckless indifference of life[]’” and “a
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direct aider and abettor who acted with intent to kill.” (Isaac,
supra, B305378.) It noted that “‘this was an armed takedown
robbery of a bank’ [with] . . . [‘]no effort to minimize violence.
They robbed it in the middle of the day. They had to know there
was an armed security guard. . . . And, defendant had to have
been aware ‘of the dangers of robbing a bank during working
hours with an armed guard.’ [¶] Furthermore, defendant ‘was
there, and he was present, and he was not outside as the getaway
driver. . . . He was there in the bank. He was part of this well-
orchestrated and planned robbery.’ [¶] The trial court also
pointed to the evidence that the robbery was well planned: the
robbers stole a car in the morning and then, after they left the
bank, ‘within a short distance they switch[ed] cars.’ ‘Not only do
they do all those things, but they wear disguises. . . . [T]hey have
buckets of water in the van. That’s to deal with the dye that
might be on the packets of money that they steal. They have
wigs on. There are just all kinds of things that show that this
[was] highly sophisticated.’” (Ibid.)
On appeal, we affirmed, holding that “the trial court’s
findings that defendant acted either as a direct aider and abettor
with intent or a major participant with reckless indifference to
human life are supported by substantial evidence.” (Isaac, supra,
B305378.) Specifically, we agreed that defendant was an aider
and abettor based upon “[r]easonable inferences . . . that Key
intended to not just shoot, but kill Corona, and that defendant
knew that she intended to do so. Therefore, the trial court’s
finding that defendant was ineligible for resentencing because he
had the intent to kill was proper.” (Isaac, supra, B305378.)
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III. The Second Resentencing Petition
In July 2022, defendant filed a second resentencing petition
under section 1172.6. The trial court again appointed counsel.
The People opposed, arguing that the second petition
should be denied because it “[wa]s duplicative” of a petition that
the trial court “already denied . . . in 2020 and the Court of
Appeal affirmed[.]”
Defendant filed a response, contending that the enactment
of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775)
was a “significant change in the law” entitling him to a new
evidentiary hearing under section 1172.6. Defendant argued that
because the record is “extremely unclear” on the question of
“what SPECIFIC evidence the [c]ourt relied upon and what
standard the court used in denying defendant’s [first] petition[,]”
“[t]here is no way to ascertain if the court relied upon evidence
that would no longer be permissible under the changes in 1172.6
. . . procedures as they have been amended through Senate Bill
775[.]”
In December 2022, the matter proceeded to a hearing.
After hearing argument from both sides, the trial court said that
it had “painstakingly [gone] through the facts of this case” when
evaluating defendant’s first resentencing petition and “made a
ruling in which I indicated that . . . defendant . . . was a major
participant who acted with reckless indifference to life. . . . [¶]
. . . [A]nd I further stated that there may have been some
evidence to support that he aided and abetted the crime with
specific intent to kill. [¶] [I]n any case, I just don’t see a reason
to give him a second chance. He had his opportunity. He
appealed my decision. He lost that appeal.” The trial court thus
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summarily denied defendant’s second resentencing petition
“based on . . . ‘law of the case[.]’”
Defendant timely appealed.
DISCUSSION
I. Background Legal Principles
“Section 1172.6 provides a mechanism whereby people ‘who
believe they were convicted of murder for an act that no longer
qualifies as murder following the crime’s redefinition in 2019[ ]
may seek vacatur of their murder conviction and resentencing by
filing a petition in the trial court.’ [Citation.]” (People v. Arnold
(2023) 93 Cal.App.5th 376, 382 (Arnold).)
As is relevant here, in order to obtain resentencing relief,
the petitioner must allege that (1) an information had been filed
against him allowing the prosecution to proceed under a theory of
murder under the felony murder rule, the natural and probable
consequences doctrine, or any “other theory under which malice
is imputed to a person based solely on that person’s participation
in a crime” (§ 1172.6, subd. (a)(1)); (2) the petitioner was
convicted of murder (§ 1172.6, subd. (a)(2)); and (3) he could not
now be convicted of murder as presently defined. (§ 1172.6, subd.
(a)(3)).
If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause and hold an evidentiary hearing. (§ 1172.6,
subd. (c).) At the evidentiary hearing, the prosecution bears the
burden of proving, “beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
If the prosecution cannot meet its burden, the petitioner is
entitled to vacatur of the murder conviction and resentencing as
set forth in section 1172.6, subdivision (e).
8
Effective January 1, 2022, section 1172.6 was amended by
Senate Bill 775. Among other things, these amendments provide
that, at the evidentiary hearing stage, the trial court “may
consider evidence previously admitted at any prior hearing[]”
except for “hearsay evidence that was admitted in a preliminary
hearing pursuant to subdivision (b) of [s]ection 872[,]” which
“shall be excluded from the hearing as hearsay, unless the
evidence is admissible pursuant to another exception to the
hearsay rule.” (§ 1172.6, subd. (d)(3).)
The statute as amended also specifies that the trial court
may “‘consider the procedural history of the case recited in any
prior appellate opinion.’ ‘The specificity of this provision
‘indicates the Legislature has decided trial judges should not rely
on the factual summaries contained in prior appellate decisions
when a section [1172.6] petition reaches the stage of a full-
fledged evidentiary hearing.’” (Arnold, supra¸ 93 Cal.App.5th at
p. 392.)
II. Standard of Review
When, as here, the trial court denies a section 1172.6
petition at the prima facie stage based on a question of law, our
review is de novo. (People v. Drayton (2020) 47 Cal.App.5th 965,
981, overruled in part on another ground in People v. Lewis
(2021) 11 Cal.5th 952, 963.)
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III. Analysis
We conclude that the trial court properly applied the law of
the case doctrine to summarily deny defendant’s resentencing
petition.4
A. Additional Relevant Law
The law of the case doctrine provides “‘that when, in
deciding an appeal, an appellate court “states in its opinion a
principle or rule of law necessary to the decision, that principle or
rule becomes the law of the case and must be adhered to
throughout its subsequent progress, both in the lower court and
upon subsequent appeal[s.] [Citation.]’” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6.) “As its name
suggests, the doctrine applies only to an appellate court’s decision
on a question of law[.]” (People v. Barragan (2004) 32 Cal.4th
236, 246 (Barragan).)
“[H]owever, ‘the doctrine will not be adhered to where its
application will result in an unjust decision, e.g., where . . . the
controlling rules of law have been altered or clarified by a
decision intervening between the first and second appellate
determinations.’ [Citation.]” (People v. Lee (2023) 95 Cal.App.5th
1164, 1186 (Lee).)
4 At oral argument, defendant repeatedly argued that
collateral estoppel does not bar his second resentencing petition;
in his reply brief, defendant conflates the concepts of collateral
estoppel and law of the case. Assuming without deciding that he
is correct as to collateral estoppel, his argument does not alter
our analysis under the distinct law of the case doctrine.
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B. Application
The People argue that our prior opinion in Isaac, supra,
B305378 establishes as the law of the case that sufficient
evidence supports the conclusion that defendant is ineligible for
resentencing relief under section 1172.6.5 We agree. (Barragan,
supra, 32 Cal.4th at p. 246 [“[B]ecause an appellate court’s
determination ‘that the evidence is []sufficient to justify a finding
or a judgment is necessarily a decision upon a question of law[]’
. . . [s]uch a determination ‘establishe[s] as the law of the case
that all the evidence adduced at the previous [proceeding] was
[]sufficient as a matter of law to establish’ the finding or
judgment”].)
However, defendant contends that intervening changes in
law provide new grounds for him to establish his eligibility for
resentencing relief. To ensure that our application of the law of
the case doctrine does not yield an unjust result, consistent with
People v. Farfan (2021) 71 Cal.App.5th 942, 950, we must
determine whether our decision in Isaac has been “‘altered or
clarified’” by the new legal authorities cited by defendant. (Lee,
supra, 95 Cal.App.5th at p. 1186.) In so doing, we ask whether
these new authorities provide a basis for his second resentencing
petition to go forward, not (as defendant often argues) whether
the trial court erred at the evidentiary hearing on his first
resentencing petition.
5 In his briefs, defendant attacks the legitimacy of our
decision in Isaac, suggesting that we improperly conducted a
“sufficiency of the evidence analysis” instead of a “prejudice
analysis[.]” But that opinion (and the rulings therein) have long
since become final; the California Supreme Court denied
defendant’s petition for review in October 2021.
11
Defendant identifies three relevant changes in law. First,
he cites Senate Bill 775, which clarified that one narrow category
of evidence—“hearsay evidence . . . admitted in a preliminary
hearing pursuant to subdivision (b) of [s]ection 872”—is
inadmissible in a section 1172.6 evidentiary hearing.6 But, both
before the trial court and on appeal, defendant identifies no
evidence (material or otherwise) in the record of conviction that
could not now be admitted or considered under section 1172.6 as
amended by Senate Bill 775.7 (See People v. Davis (1996)
50 Cal.App.4th 168, 172 [“The very settled rule of appellate
review is a trial court’s order/judgment is presumed to be correct,
error is never presumed, and the appealing party must
affirmatively demonstrate error on the face of the record”].)
6 Defendant also cites the amended portion of section 1172.6
which provides that the trial court “may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed.” (§ 1172.6,
subd. (d)(3).) He does not argue that this provision affects any
evidence in the record of conviction, nor does he explain how it
could change our prior decision in Isaac.
7 Similarly, we reject defendant’s claim that the other major
amendment enacted by Senate Bill 775 (that the trial court
cannot rely on factual summaries from prior appellate opinions)
impacts our ability to rely on the law of the case as set forth in
Isaac. Defendant does not argue that removing the factual
summary from Isaac would alter our prior conclusion that
sufficient evidence supports the trial court’s order that defendant
is ineligible for resentencing relief.
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Second, defendant directs our attention to a new line of
cases clarifying the preclusive effects of prior jury findings at a
section 1172.6 evidentiary hearing.8 (See, e.g., People v. Cooper
(2022) 77 Cal.App.5th 393, 398 [“[A] trial court cannot deny relief
in a section [1172.6] proceeding based on findings that are
inconsistent with a previous acquittal when no evidence other
than that introduced at trial is presented”]; Arnold, supra,
93 Cal.App.5th at p. 383 [trial court could not find that defendant
was the actual killer in contravention of the jury’s prior finding
that he did not personally use the murder weapon].)
Theoretically, this line of cases could impact our decision in
Isaac. If evidence in the record of conviction directly contravened
a prior finding made at defendant’s 1996 trial, cases such as
Arnold would preclude the trial court from relying on that
evidence in any hearings held on subsequent petitions. (See
Arnold, supra, 93 Cal.App.5th at p. 391.) And as discussed
above, a new law that disqualifies material pieces of evidence in
the record of conviction could alter our prior ruling about that
record’s sufficiency.
But again, defendant does not make such claims here. He
argues that the trial court’s dismissal of the personal firearm use
allegation with respect to the murder charge functions as an
acquittal on the finding that defendant personally fired the
8 By not raising any new laws aside from Senate Bill 775
before the trial court, defendant arguably forfeited his arguments
as to other authorities. However, because defendant asserts that
his counsel provided ineffective assistance of counsel by failing to
invoke these other authorities, we will address his arguments on
appeal. (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [court
may exercise discretion to consider forfeited claims to forestall
ineffective assistance of counsel arguments].)
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murder weapon. Even if we agreed with that contention, a prior
finding that defendant did not personally use a firearm does not
preclude the trial court from finding that he is ineligible for
resentencing relief as a direct aider and abettor. (Contra, Arnold,
supra, 93 Cal.App.5th at pp. 390–391 [reversing the denial of a
section 1172.6 petition because the trial court’s finding that
defendant was the actual killer contradicted a prior jury finding
that he did not personally use the murder weapon].) Indeed, we
expressly noted in Isaac that the record of conviction contains
sufficient evidence to support a finding that defendant directly
aided and abetted first-degree murder regardless of “whether [he]
himself was armed.” (Isaac, supra, B305378.)
Third, defendant points to a new line of cases emphasizing
the need to consider a defendant’s youth when assessing his
capacity to be recklessly indifferent within the meaning of section
1172.6. (See, e.g., People v. Jones (2022) 86 Cal.App.5th 1076,
1093 [“[I]t is best for the trial court to have a meaningful
opportunity to consider [a defendant’s] youth as part of the
totality of the circumstances germane to determining whether he
was a major participant who acted with reckless indifference to
human life”].)
But, Isaac affirmed that defendant is ineligible for
resentencing relief as a direct aider and abettor, and we have
rejected all of defendant’s arguments targeting that finding.
Therefore, it is irrelevant whether defendant could now be found
ineligible on the alternate ground that he was a major
participant who acted with reckless indifference to human life.9
9 It follows that we do not reach defendant’s claims that he
received ineffective assistance of counsel in connection with this
argument.
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DISPOSITION
The trial court’s order denying defendant’s second section
1172.6 resentencing petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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