People v. Geise CA2/6

Filed 6/3/22 P. v. Geise CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B312016
(Super. Ct. No. 2001019839)
Plaintiff and Respondent, (Ventura County)
v.
RICHARD JOHN GEISE, JR.,
Defendant and Appellant.
Richard John Geise, Jr., appeals from the trial court’s
order denying his petition for Penal Code1 section 1170.95
resentencing. He contends the court erred when it: (1)
determined that prosecutors proved he is ineligible for
resentencing, and (2) considered the trial judge’s comments about
the evidence when making that determination. We affirm.
1 Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
The Central Market shooting
Toni Manzetti had a job repossessing cars in
Ventura. Geise sometimes took the repossessed cars to auction
for her. Sam Patterson was a friend of Manzetti. Alfonso
Delgado, Geise’s cousin, was a friend of Patterson.
On April 4, 2001, Manzetti repossessed a white
Toyota Corolla and a gray Chrysler LeBaron. She lent Geise the
Corolla to drive until he could take it to the next auction. She
was going to lend the LeBaron to another friend, but the car was
not where she had parked it when the friend arrived to borrow it
on April 6.
At around noon on April 6, Geise left a Ventura motel
carrying a blue duffle bag with a camouflage vest inside. He told
his girlfriend, Jeanette Barsch, that he was going to make some
money. His cousin Delgado was with him. The two drove away
in the white Corolla.
Around 12:45 p.m., one of Manzetti’s neighbors
noticed a white car parked outside on the street. A gray LeBaron
pulled up, and the driver of the white car got into its passenger
seat. The LeBaron then started to drive off, but quickly stopped.
Its driver got out, opened one of the white car’s doors, and took
out a blue duffle bag. The man then got back into the LeBaron
and drove away.
Fifteen minutes later, two masked men wearing
camouflage vests entered Central Market, located a few blocks
down the street from Manzetti’s apartment. They demanded
money. When a clerk reached for a bag, both of the masked men
started shooting. Two clerks were injured, and a third was killed.
2
The masked men fled the market, got into the gray
LeBaron, and drove away. When police responded, they found
four expended shell casings from a .45-caliber Winchester, and a
fifth from a .40-caliber Smith & Wesson.
A few minutes after the shooting, Manzetti heard
tires screeching and saw a car drive into the parking area behind
her apartment. Delgado then came inside. He seemed upset, and
Patterson spoke with him privately. Manzetti looked outside and
saw that the LeBaron was parked outside her apartment again.
The next day, police arrived at Geise’s motel room
with a search warrant and found a black leather jacket with a
.40-caliber bullet in the pocket, camouflage bulletproof vest, and
mask. They also found two boxes of .40-caliber ammunition and
a loaded .40-caliber Smith & Wesson. A tool mark expert
determined that the .40-caliber casing found at Central Market
had been fired from that gun.
Police arrested Geise. While in custody, Geise wrote
a note to Barsch: “Baby . . . try and remember everything we did
yesterday. We didn’t go anywhere, except I went to In-N-Out for
food. They said I was in the east with [Delgado, but] . . . that’s
not true. I have been in my room all day.” When questioned on
his whereabouts during the Central Market shooting, Geise told
police that he had gone to Magic Mountain with his ex-wife and
son. He later changed his story and said that he met his ex-wife
and son around 12:30 p.m. on April 6 and visited with them for
about 45 minutes.
Barsch told police that she had seen Geise with a gun
several times. She thought that the gun found in their motel
room was the same gun she had seen him with previously. She
3
also thought that the jacket, vest, and mask police found in the
room belonged to Geise.
Barsch said that on the morning of April 7 she asked
Geise why anyone would want to rob Central Market. He replied
that the market had cash on hand on Fridays to cash paychecks.
April 6 was a Friday.
A few weeks after the shooting, Patterson told his
father that he was “going to prison for murder.” He denied that it
was in connection with the Central Market shooting. He later
told a friend’s sister that he had committed that shooting, but
then told her not to believe everything she heard.
Police shot and killed Delgado in May. Patterson
died of a drug overdose in August.
Trial proceedings
The prosecution charged Geise with murder (§ 187,
subd. (a)), two counts of attempted murder (§§ 664/187, subd. (a)),
attempted robbery (§§ 664/211), commercial burglary (then-
§ 459), felon in possession of a firearm (then-§ 12021, subd.
(a)(1)), and conspiracy to commit robbery (§ 182, subd. (a)(1)).2 It
also alleged the felony-murder special circumstance that Geise
committed murder during a robbery or burglary (§ 190.2, subd.
(a)(17)(A) & (G)), and that he personally used and discharged a
firearm when he committed his crimes (§ 12022.5, subd. (a),
12022.53, subds. (b), (c) & (d)).
At trial, Geise testified that he was staying at a
Ventura motel with Barsch on the day of the Central Market
shooting. He slept until about 11:00 a.m. Shortly thereafter, Jill
2 Geise was also charged with additional offenses, but those
are not relevant to this appeal. (See Geise I, supra, 2004 WL
530727 at p. *3, fn. 2.)
4
Benny called and asked to purchase some heroin. Geise met
Benny in the parking lot and sold her the drugs.
Around 12:30 or 12:45 p.m., Geise met his ex-wife in
a restaurant parking lot. They visited for 30 to 45 minutes, then
Geise returned to his motel room.
Around 2:30 p.m., Delgado and Patterson arrived at
Geise’s motel room and asked if he would make some false
identification documents for them. While they were there,
Patterson said that he and Delgado had committed the Central
Market shooting.
Benny testified that she bought drugs from Geise in a
motel parking lot on the day of the Central Market shooting.
Benny’s father later discovered a letter that appeared to outline
how she was supposed to testify in Geise’s trial. He gave the
letter to defense counsel, who turned it over to the trial court.
The court declared a mistrial. Prosecutors then amended the
information to add a charge of suborning perjury (§ 127).
During his second trial, Geise’s defense was that
Delgado and Patterson were the Central Market gunmen and
that his only involvement was to help them obtain false
identification documents after the shooting. Geise did not testify
in this trial, but the testimony from his first trial was read to the
jury. Benny testified that her previous testimony about buying
heroin from Geise on the day of the shooting was false.
The trial court instructed the jury on felony murder
(CALJIC No. 8.21), felony murder in pursuance of a conspiracy
(CALJIC No. 8.26), felony murder by an aider and abettor
(CALJIC No. 8.27), and special-circumstance felony murder
during the commission of a robbery or burglary (CALJIC No.
8.81.17). The court also instructed jurors that a person who aids
5
and abets a crime need not be present at the scene of the crime
(CALJIC No. 3.01) and that a conspirator is liable for any offense
committed by a coconspirator in furtherance of the conspiracy if
that offense is a natural and probable consequence of the
objective of the conspiracy, even if the conspirator was not
present when the offense was committed (CALJIC No. 6.11). It
did not instruct jurors on the mental state required for a true
finding on the felony-murder special-circumstance allegation
(CALJIC No. 8.80.1).
During deliberations, jurors asked whether Geise
could be guilty of murder if he was not at Central Market during
the shooting. The trial court directed jurors to CALJIC No. 3.01.
The jury thereafter could not reach a verdict on the attempted
murder charges or make a finding on the firearm allegations, but
convicted Geise of all other charges in the amended information
and found true the special-circumstance allegation that he
committed murder during a robbery. The court sentenced him to
life in state prison without the possibility of parole plus seven
years four months.
First appeal
On appeal, Geise argued his murder conviction
should be reversed because the instructions allowed jurors to
convict him based on the theory that he participated in the
robbery but was not present at the scene. The prosecution’s
theory at trial was that Geise was one of the Central Market
gunmen, and was thus guilty of felony murder. During
deliberations, however, the jury asked whether Geise could be
“engaged” in the crime of robbery if he was not present at the
scene. This question, along with the jury’s failure to reach a
verdict on the attempted murder charges and its rejection of the
6
firearm allegations, showed that at least some jurors believed he
was not at the scene of the shooting.
We agreed that it was reasonably probable that one
or more jurors voted to convict Geise believing he was not present
at the market. We nevertheless affirmed his murder conviction
because jurors may rely on different theories of guilt in reaching
their conclusions.
We reversed the true finding on the felony-murder
special circumstance, however, because the trial court failed to
instruct the jury on the mental state required to prove that
allegation. None of the court’s other instructions conveyed the
requisite mental state to the jury, and at least one juror appeared
unconvinced that Geise was the actual killer. Moreover, “the
evidence of mental state [was] not so overwhelming that the
juror(s) who convicted [Geise] as a non-killer would have
necessarily found that he acted with the requisite intent to kill or
reckless indifference to human life if [CALJIC No. 8.80.1] had
been given.” We vacated the sentence on Geise’s murder
conviction and remanded the matter to permit prosecutors to
either retry the special-circumstance allegation or accept a
sentence of 25 years to life in prison. Prosecutors opted for the
latter.
Initial section 1170.95 proceedings
In January 2019, Geise filed a section 1170.95
petition alleging that he: (1) was convicted of felony murder, (2)
could not be convicted of murder under the current versions of
sections 188 and 189, and (3) was not the actual killer, did not aid
and abet the actual killer, and was not a major participant in the
Central Market shooting who acted with reckless indifference to
human life. Prosecutors moved to dismiss the petition based on
7
the alleged unconstitutionality of section 1170.95. Alternatively,
they argued that Geise was a major participant in the Central
Market shooting who acted with reckless indifference to human
life.
The trial court appointed counsel for Geise and held a
hearing. At the hearing the court found beyond a reasonable
doubt that Geise was a major participant in the attempted
robbery since he was one of two gunmen inside the market. He
thus failed to make a prima facie showing that he was entitled
to section 1170.95 relief. No evidentiary hearing was conducted.
Second appeal
Geise appealed again, arguing that the trial court
erred when it determined that he did not make a prima facie case
for section 1170.95 relief. We agreed. The record showed that
Geise could have been convicted under the felony-murder rule.
But we could not say, as a matter of law, that the evidence
showed that he could be convicted of murder under the current
versions of sections 188 and 189.
As we stated in Geise’s first appeal, while some jurors
believed that Geise was one of the gunmen in Central Market, at
least one concluded he was not present. And those who voted to
convict Geise as a non-killer did not necessarily find that he acted
with either the intent to kill or reckless indifference to human
life. The trial court disregarded our observations, however, and
instead found that Geise was one of the gunmen in the market.
Engaging in such factfinding without conducting an evidentiary
hearing was error. We remanded with directions to hold the
required hearing.
8
Section 1170.95 evidentiary hearing
On remand, the court conducted an evidentiary
hearing. The parties did not submit new or additional evidence,
but instead relied on their briefs, the transcripts from both
trials,3 and the clerk’s transcripts. Based on that evidence,
prosecutors argued that Geise was one of the two gunmen in
Central Market and that he acted with both the intent to kill and
reckless indifference to human life.
Geise countered that the trial court could not
conclusively determine that he was one of the gunmen because at
least one of the jurors did not think he was present at Central
Market.
After hearing the parties’ arguments, the trial court
said that it understood its role at the hearing was to review the
evidence and make “an independent determination” whether
Geise could still be convicted of murder, a determination that was
“outside” the original trial judge’s findings. The court also said
that it was “not bound by any comments or any findings [made]
by [the trial judge].”
The court concluded that prosecutors proved beyond
a reasonable doubt that Geise was the actual killer, was an aider
and abettor who possessed intent to kill, and/or was a major
participant in the Central Market shooting who acted with
reckless indifference to human life. “[T]he only reasonable
interpretation” of the evidence was that Geise was one of the two
gunmen at Central Market. He had access to the vehicle used in
the shooting. He possessed a gun used during the shooting and
3 The parties also provided the transcript from Geise’s
preliminary hearing, but the trial court said that it was not
relevant to its decision.
9
ammunition “a mere 18 hours after the incident.” And he told a
string of lies to law enforcement, which showed a consciousness of
guilt. “The evidence [was] overwhelming.”
DISCUSSION
Substantial evidence supports the trial court’s denial of Geise’s
section 1170.95 petition
Geise contends the trial court erred when it
concluded that he is ineligible for section 1170.95 relief. We
disagree.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) “to amend the felony-murder rule . . . to
ensure that murder liability is not imposed on a person who is
not the actual 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 § 189, subd. (e).) “Now, to be convicted of murder, a
principal must act with malice aforethought; malice can no longer
‘be imputed to a person based solely on [their] participation in a
crime.’ [Citation.]” (In re R.G. (2019) 35 Cal.App.5th 141, 144
(R.G.); see § 188, subd. (a)(3).)
Senate Bill No. 1437 “also added section 1170.95 [to
the Penal Code], which permits those convicted of [felony murder]
. . . to file a petition with the sentencing court to vacate [their]
conviction and be resentenced.” (R.G., supra, 35 Cal.App.5th at
p. 144.) When a trial court receives a properly pleaded petition, it
must conduct a prima facie analysis to determine whether the
petitioner is eligible for resentencing. (People v. Lewis (2021) 11
Cal.5th 952, 961-970.) If the petitioner makes a prima facie
showing of eligibility, the court must issue an order to show
cause. (§ 1170.95, subd. (c).) The court must then hold an
10
evidentiary hearing to determine whether to vacate the
petitioner’s murder conviction and resentence them on any
remaining counts. (Id., subd. (d)(1).)
At that hearing, prosecutors bear the burden of
proving, beyond a reasonable doubt, that the petitioner can still
be convicted of murder under the current versions of sections 188
and 189. (§ 1170.95, subd. (d)(3).) They may do so by offering
into evidence “evidence previously admitted at any prior hearing
or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.”
(Ibid.) “The [trial] court may also consider the procedural history
of the case recited in any prior appellate opinion,” as well as any
additional evidence the petitioner or prosecutors wish to submit.
(Ibid.) But it may not consider hearsay evidence admitted at a
preliminary hearing “unless the evidence is admissible pursuant
to another exception to the hearsay rule.” (Ibid.)
We review the trial court’s denial of Geise’s section
1170.95 petition for substantial evidence. (People v. Garrison
(2021) 73 Cal.App.5th 735, 747.) When undertaking this review,
our duty is not to determine whether prosecutors proved “beyond
a reasonable doubt that [Geise is] ineligible for resentencing, but
rather [to determine] ‘whether any rational trier of fact could
have’” reached that conclusion. (People v. Williams (2020) 57
Cal.App.5th 652, 663 (Williams).) While we must ensure that the
evidence supporting Geise’s ineligibility is reasonable, credible,
and of solid value, we will not reweigh evidence, resolve conflicts
therein, or reappraise witness credibility. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) Instead, we view the evidence “in the light
most favorable to [prosecutors] and presume . . . the existence of
every fact the [trial court] could reasonably have deduced from
11
the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Reversal is permitted only if “it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
finding that Geise is ineligible for section 1170.95 resentencing.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
Relying on People v. Vivar (2021) 11 Cal.5th 510(Vivar), Geise invites us to eschew substantial evidence review
and instead independently determine whether he is eligible for
section 1170.95 relief. We decline this invitation. In Vivar, the
Supreme Court considered which standard of review applies to a
ruling on a motion to withdraw a plea based on adverse
immigration consequences. (Vivar, at pp. 523-527; see § 1473.7.)
Such a motion primarily involves questions of law. (Vivar, at pp.
524-525.) And it can be filed only by a person who has completed
their sentence, often many years after they entered their plea.
(Id. at p. 524-526.) The court ruling on the motion thus “may
never have participated in any of the underlying proceedings
and must rely . . . on a cold record” (id. at pp. 526-527) that
“consists entirely of written documents” (id. at p. 533). Given
“the interests at stake in a section 1473.7 motion, the type of
evidence on which a . . . ruling is likely to be based, and the
relative competence of trial courts and appellate courts to assess
that evidence,” independent review is appropriate. (Id. at p. 527.)
Geise’s section 1170.95 petition shares some
similarities with the section 1473.7 motion at issue in Vivar: It
was filed many years after his conviction, and the court that
ruled on it was not the one that presided over his murder trial.
Additionally, during the proceedings on Geise’s petition, the
parties presented no new testimony or evidence, requiring the
12
court to make its findings based on a cold record consisting
entirely of written documents.
But unlike a section 1473.7 motion, Geise’s petition
primarily involves questions of fact. (People v. Clements (2022)
75 Cal.App.5th 276, 294.) And the Vivar court expressly noted
that its opinion did not “disturb[] [the] familiar postulate” that
“‘an appellate court should defer to the factual determinations
made by the trial court’ regardless of ‘whether [its] rulings [were]
based on oral testimony or declarations.’ [Citations.]” (Vivar,
supra, 11 Cal.5th at p. 528, fn. 7, italics added.) Appellate courts
have routinely followed this command when reviewing other
postjudgment rulings involving questions of fact, applying
substantial evidence standards to petitions for resentencing
pursuant to Proposition 36 (People v. Perez (2018) 4 Cal.5th 1055,
1066) and Proposition 47 (People v. Sledge (2017) 7 Cal.App.5th
1089, 1095-1096), as well as to petitions to extend state hospital
commitments (People v. Crosswhite (2002) 101 Cal.App.4th 494,
507-508). “[W]e see no reason to withhold the deference generally
afforded to [the analogous] factual findings” made in a section
1170.95 proceeding, even where the court makes those findings
on a cold record. (Perez, at p. 1066.) Substantial evidence review
applies here. (Clements, at p. 301.)
And it supports the trial court’s determination that
Geise is ineligible for section 1170.95 resentencing. First, the
evidence supports the court’s finding that Geise was one of the
shooters at Central Market: About an hour before the shooting,
Geise told Barsch that he was leaving so he could make some
money. He left his motel room carrying a blue duffle bag with a
camouflage vest inside, and drove away in the white Corolla
Manzetti had lent him. Around 12:45 p.m., a neighbor saw a
13
similar white car park on the street in front of Manzetti’s
apartment complex. The driver of that car got into the passenger
seat of the gray LeBaron Manzetti had repossessed—a car that
had not been outside when Manzetti’s friend tried to borrow it 45
minutes earlier. The LeBaron’s driver then got out and retrieved
a blue duffle bag from the white car before driving away.
The Central Market shooting occurred a few minutes
later. The shooters wore camouflage vests, similar to those found
in Geise’s motel room and in his duffle bag. They had on masks
and jackets that were also similar to those found in the motel
room. They left behind bullet casings, one of which had been
fired from a gun in Geise’s possession. They then fled in the
LeBaron. Considered together, this physical and circumstantial
evidence supports the trial court’s determination that Geise was
one of the Central Market shooters.
The evidence also supports the court’s determination
that Geise was either the actual killer or an aider and abettor
who acted with the intent to kill. Geise arrived at the market
knowing that it would likely have substantial cash on hand. He
was armed and wearing a bulletproof vest. He acted in concert
with his accomplice, both of them opening fire when one of the
clerks reached for a bag. He did not try to thwart his fellow
shooter’s actions, but instead joined in them. He also declined to
render aid to any of the victims post-shooting. Such actions
suggest that Geise intended to use lethal force to rob Central
Market. (See, e.g., People v. Doolin (2009) 45 Cal.4th 390, 433
[possession of gun and bulletproof vest probative of intent to kill];
People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082 [shooting
from close range and failing to render aid probative of intent to
kill].)
14
The lies Geise told police or had others tell on his
behalf demonstrate a consciousness of guilt that reinforces this
determination. He provided various accounts of his whereabouts
during and after the shooting, alternately telling police that he
was at Magic Mountain, visiting with his ex-wife and son, or
having his cell phone repaired. He asked Barsch to provide him
with an alibi, asking her to tell police that they were together at
the motel during the shooting. He also asked Benny to provide
him with an alibi, an act that led to a conviction for suborning
perjury. It is reasonably inferred that Geise would have not
taken such deceitful actions were he not one of the Central
Market shooters. (See, e.g., People v. Carrington (2009) 47
Cal.4th 145, 188 [deceit can be indicative of intent to kill]; People
v. Hughes (2002) 27 Cal.4th 287, 335 [deceit can show
consciousness of guilt].)
Geise challenges this conclusion by noting that at
least one of the jurors at his murder trial believed that he was
not present during the shooting. But whether one or more jurors
doubted that Geise was at Central Market during the shooting is
not relevant here. During the section 1170.95 evidentiary
hearing, prosecutors were required to prove to the trial court that
Geise is guilty of murder under the current versions of sections
188 and 189. And on appeal, our task is to determine “‘whether
any rational trier of fact could have’” reached that same
conclusion. (Williams, supra, 57 Cal.App.5th at p. 663.) That the
circumstances might also be reconciled with a contrary conclusion
does not warrant reversal. (People v. Westerfield (2019) 6 Cal.5th
632, 713.) Substantial evidence supports the trial court’s
15
determination that Geise was either the actual killer or a direct
aider and abettor who acted with the intent to kill.4
The trial court made an independent determination of Geise’s
ineligibility for resentencing
Geise contends the trial court erred when it
considered the trial judge’s previous comments about the
evidence of his guilt. There was no error.
While the court said that it agreed with some of the
trial judge’s views of the evidence, it also said that it was making
“an independent determination” whether Geise could be convicted
of murder under the current versions of sections 188 and 189.
The court further noted that it was “not bound by any comments
or any findings [made] by [the trial judge].” It then summarized
the evidence and detailed how it showed, beyond a reasonable
doubt, that Geise was the actual killer, an aider and abettor who
acted with the intent to kill, or a major participant in the Central
Market robbery who acted with reckless indifference to human
life. The record thus shows that the trial court reached its
conclusions independently of the trial judge, as required by
section 1170.95, subdivision (d)(3). (People v. Bush (2016) 245
Cal.App.4th 992, 1002 [absent evidence to the contrary, appellate
court presumes trial court understood and followed the law].)
4 Given our conclusion, we do not consider the parties’
arguments as to whether the evidence shows that Geise was a
major participant who acted with reckless indifference to human
life.
16
DISPOSITION
The trial court’s order denying Geise’s Penal Code
section 1170.95 petition for resentencing, entered April 22, 2021,
is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
17
Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Theresa Osterman Stevenson, 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, Daniel C. Chang and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.