People v. Smith CA4/1

Filed 1/6/23 P. v. Smith CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078320
Plaintiff and Respondent,
v. (Super. Ct. No. SCD137023)
MARQUELL DION SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed and remanded with instructions.
Randall Conner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland and Charles C. Ragland, Assistant
Attorneys General, Arlene A. Sevidal, Lynne McGinnis and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 1999, Marquell Smith was found guilty of the first degree murder of
19-year-old Adrian Garmo (Pen. Code, §§ 187, subd. (a), 189, subd. (a)) and
dozens of other robbery-related crimes.1 He was sentenced to life in state
prison without the possibility of parole, plus 206 years. On direct appeal, this
court struck a parole revocation fine, but in all other respects affirmed the
judgment of conviction. (People v. Smith (Mar. 5, 2004, D035500) [nonpub.
opn.] (Smith I).)
In 2019, Smith petitioned for vacatur of his murder conviction and
resentencing based on legislative changes to our state’s murder laws. Those
amendments significantly curtailed the scope of the felony murder rule,
abolished natural and probable consequences murder, and provided a
pathway for persons previously convicted of felony murder or natural and
probable consequences murder to be resentenced. (Stats. 2018, ch. 1015,
§§ 2–4.) A person convicted of murder under one of these theories of liability
may be resentenced if he or she was not the actual killer, did not aid and abet
the commission of murder with an intent to kill, and was not a major
participant in an underlying felony who acted with reckless indifference to
human life. (§§ 189, subd. (e), 1172.6, subds. (a)(3) & (d)(3).)
The trial court denied Smith’s petition for resentencing without issuing
an order to show cause. It reasoned he was ineligible for relief, as a matter of
law, because his jury made a true finding on a robbery-murder special-
circumstance allegation. The finding meant the jury determined Smith was
the actual killer; he aided and abetted the commission of the murder with an
intent to kill; or he aided and abetted the commission of a robbery as a major
1 Further undesignated statutory references are to the Penal Code.
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participant and while acting with reckless indifference to human life.
(§ 190.2, subds. (b)–(d).)
In a prior opinion, our court affirmed the order denying Smith’s
resentencing petition. (People v. Smith (Mar. 23, 2022, D078320) [nonpub.
opn.] (Smith II).) We concluded a true finding on a felony-murder special-
circumstance allegation does not categorically preclude resentencing where,
as here, the finding was made before the Supreme Court decided People v.
Banks (2015) 61 Cal.4th 788 (Banks), which clarified the meaning of the
statutory phrase “major participant,” or before it decided People v. Clark
(2016) 63 Cal.4th 522 (Clark), which gave important guidance on the phrase
“reckless indifference to human life.” However, we affirmed the summary
denial order because we concluded the evidence presented at Smith’s trial
was sufficient to support the jury’s robbery-murder special-circumstance
finding under the standards set forth in Banks and Clark. (Smith II, supra,
D078320.)
The Supreme Court granted review and deferred further action
pending the consideration and disposition of related issues in People v.
Strong, S266606. Thereafter, the Supreme Court issued People v. Strong
(2022) 13 Cal.5th 698 (Strong), which held that a true finding on a felony-
murder special circumstance allegation does not preclude a petitioner from
making a prima facie case for relief if the finding was rendered pre-Banks
and Clark. That is true, Strong holds, even if sufficient evidence was
presented at trial to support the felony-murder special-circumstance finding
under the Banks and Clark standards. (Id. at pp. 718–720.)
The Supreme Court transferred the matter back to our court with
directions to vacate our prior opinion and reconsider the cause in light of
Strong, supra, 13 Cal.5th 698. We have done so. With the benefit of the
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Supreme Court’s guidance, we conclude the jury’s pre-Banks and Clark
robbery-murder special-circumstance finding does not, as a matter of law,
preclude Smith from making a prima facie case for relief. Therefore, we
reverse the order denying Smith’s petition for resentencing and remand the
matter with instructions that the trial court issue an order to show cause and
conduct such further proceedings as are required by section 1172.6.
II
BACKGROUND
A
The following factual background is taken from this court’s opinion in
Smith I, supra, D035500.
Between November 7, 1997, and February 18, 1998, Smith and
codefendant Lazair Deterro Carter committed dozens of armed robberies of
commercial establishments in the San Diego area. (Smith I, supra,
D035500.) The robberies were known as the Tri-Cities robberies. (Ibid.)
They differed in their specifics, but typically entailed two or three African
American males wearing masks and gloves, carrying guns, taking money
from a cash register, demanding access to a safe, and taking money from
customers and employees. (Ibid.) The robbers frequently hit employees in
the head with a gun as well. (Ibid.) During one robbery of a liquor store
perpetrated on January 10, 1998, the store owner grabbed a revolver and
fired it several times, causing the robbers to return fire and flee. (Ibid.)
On February 18, 1998, Smith and Carter committed an armed robbery
of a liquor store during which the 19-year-old store clerk, Adrian Garmo, was
shot and killed. (Smith I, supra, D035500.) Surveillance videotape “showed
Carter wrestling with the clerk, who was trying to pull off Carter’s … mask.
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Smith reached over the counter and pointed a .38 caliber handgun at the
clerk. Garmo was shot and killed by a single gunshot to the chest.” (Ibid.)
On December 20, 1999, a jury found Smith and Carter guilty of the
first degree murder of Adrian Garmo, and, for both defendants, it returned
true findings on personal use of a firearm allegations and robbery-murder
special-circumstance allegations associated with the murder charge.
(Smith I, supra, D035500.) The jury found the defendants guilty of the
attempted murder of the liquor store owner on January 10, 1998, and, for
both defendants, it returned true findings on personal use of a firearm
allegations associated with the attempted murder charge. (Ibid.) The
defendants were found guilty of dozens of other crimes as well.2 (Ibid.) The
court sentenced Smith to prison for life without the possibility of parole, plus
206 years. (Ibid.) It sentenced Carter to prison for life without the
possibility of parole, plus 270 years 8 months. (Ibid.)
On direct appeal, this court struck a parole revocation fine, but in all
other respects affirmed the judgments. (Smith I, supra, D035500.)
B
“In 2017, the Legislature adopted a concurrent resolution declaring a
need to reform the state’s homicide law ‘to more equitably sentence offenders
in accordance with their involvement in the crime.’ [Citation.] The next
year, the Legislature followed through with Senate Bill [No.] 1437 [(2017–
2018 Reg. Sess.) (Senate Bill 1437)], which made significant changes to the
2 Smith was found guilty of 8 counts of attempted robbery, 39 counts of
robbery, 15 counts of assault with a firearm, and 12 counts of being a felon in
possession of a firearm, among other crimes. (Smith I, supra, D035500.)
Carter was found guilty of 11 counts of attempted robbery, 57 counts of
robbery, 18 counts of assault with a firearm, and 16 counts of being a felon in
possession of a firearm, among other crimes. (Ibid.)
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scope of murder liability for those who were neither the actual killers nor
intended to kill anyone, including certain individuals formerly subject to
punishment on a felony-murder theory” or on a natural and probable
consequences theory. (Strong, supra, 13 Cal.5th at p. 707 & id., fn. 1.)
Senate Bill 1437 limited the scope of the felony-murder rule and
abolished natural and probable consequences murder in order “to effectuate
the Legislature’s declared intent ‘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.’ ” (Strong, supra, 13 Cal.5th at pp. 707–
708; see People v. Gentile (2020) 10 Cal.5th 830, 846.) “Penal Code
section 189, as amended, now limits [murder] liability … principally to
‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who, ‘with the
intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the
first degree’ (id., subd. (e)(2)). Defendants who were neither actual killers
nor acted with the intent to kill can be held liable for murder only if they
were ‘major participant[s] in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of [Penal Code]
Section 190.2’—that is, the statute defining the felony-murder special
circumstance. (Id., § 189, subd. (e)(3).)” (Strong, at p. 708.)
“Senate Bill 1437 also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended. (See Pen. Code, § 1172.6 …; People v. Lewis (2021) 11 Cal.5th 952,
959–960; People v. Gentile, supra, 10 Cal.5th at p. 843.) Under newly enacted
section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met (id., subd. (b)(1)(A)),
including that ‘[t]he petitioner could not presently be convicted of murder or
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attempted murder because of changes to [Penal Code] Section 188 or 189
made effective January 1, 2019,’ the effective date of Senate Bill 1437
(§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition ‘to determine whether the petitioner has made a prima facie case for
relief.’ (§ 1172.6, subd. (c); see People v. Lewis, supra, 11 Cal.5th 952,
[interpreting the prima facie requirement as originally codified in former
§ 1170.95].) If the petition and record in the case establish conclusively that
the defendant is ineligible for relief, the trial court may dismiss the petition.
(See § 1172.6, subd. (c); Lewis, at pp. 970–972.) If, instead, the defendant has
made a prima facie showing of entitlement to relief, ‘the court shall issue an
order to show cause.’ (§ 1172.6, subd. (c).)” (Strong, supra, 13 Cal.5th at
p. 708.)
“If there has been ‘a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.’ ([§ 1172.6], subd. (d)(2).) Additionally, the parties
may stipulate that the petitioner is eligible for resentencing. (Ibid.)
Otherwise, the court must 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 state law as
amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) ‘A finding that there is
substantial evidence to support a conviction for murder, attempted murder,
or manslaughter is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.’ (Ibid.) ‘If the prosecution fails to
sustain its burden of proof, the prior conviction, and any allegations and
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enhancements attached to the conviction, shall be vacated and the petitioner
shall be resentenced on the remaining charges.’ (Ibid.)” (Strong, supra, 13
Cal.5th at pp. 708–709.)
C
After Senate Bill 1437 went into effect, Smith filed a petition to vacate
his murder conviction and to be resentenced. The trial court appointed legal
counsel to represent Smith during the resentencing proceeding.
The district attorney filed multiple responses contending the
resentencing petition should be denied because Smith failed to make a prima
facie showing of entitlement to relief. She argued resentencing was
unavailable, as a matter of law, because the jury’s finding on the robbery -
murder special-circumstance allegation meant it necessarily found that
Smith was the actual killer; he aided and abetted the commission of the
murder with an intent to kill; or he aided and abetted the commission of a
robbery while acting as a major participant and with reckless indifference to
human life.
The trial court accepted the district attorney’s argument and
summarily denied Smith’s petition for resentencing without issuing an order
to show cause.
III
DISCUSSION
A
In order to reach a true finding on the robbery-murder special-
circumstance allegation, the jury that convicted Smith necessarily found that
he was the actual killer; he aided and abetted the commission of the murder
with an intent to kill; or he aided and abetted an underlying robbery as a
major participant and with reckless indifference to human life. (§ 190.2,
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subds. (b)–(d).) A person convicted of murder is not entitled to resentencing if
he or she was the actual killer; aided and abetted murder with an intent to
kill; or acted with reckless indifference to human life as a major participant
in an underlying felony. (§§ 189, subd. (e), 1172.6, subd. (a)(3) & (d)(3).)
Nonetheless, Smith argues the robbery-murder special-circumstance
finding does not preclude him from making a prima facie case for relief. He
claims the special-circumstance finding does not foreclose relief because the
jury rendered its finding before the Supreme Court issued Banks, supra, 61
Cal.4th 788, and Clark, supra, 63 Cal.4th 522. Prior to Banks and Clark,
“neither the United States Supreme Court nor California courts [had] offered
much guidance about the major participant or reckless indifference
standards” set forth in section 190.2. (Strong, supra, 13 Cal.5th at p. 705.)
The Supreme Court provided this much-needed guidance in its Banks
and Clark decisions. The Banks court considered and applied both the major
participant and reckless indifference requirements, but it focused its
attention primarily on the major participant requirement, framing the issue
before it as follows: “The issue before us is under what circumstances an
accomplice who lacks the intent to kill may qualify as a major participant”
under section 190.2.3 (Banks, supra, 61 Cal.4th at p. 794.)
3 Banks and Clark clarified the meanings of the phrases “major
participant” and “reckless indifference to human life,” while interpreting
section 190.2, the special-circumstance statute. That statute makes a
defendant eligible for death or life in prison without the possibility of parole if
he or she is a “major participant” in an enumerated felony resulting in death,
and he or she acts “with reckless indifference to human life.” (§ 190.2,
subd. (d).) When the Legislature enacted Senate Bill 1437, it incorporated
these same elements into section 189. (Strong, supra, 13 Cal.5th at p. 710.)
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After surveying U.S. Supreme Court case law pertinent to this issue,
the Banks court identified a non-exhaustive list of factors relevant to whether
a defendant is a major participant in a crime. (Banks, supra, 61 Cal.4th at
pp. 799–803.) Such factors include: the role the defendant had in planning
the criminal enterprise that led to one or more deaths; the role the defendant
had in supplying or using lethal weapons; the awareness the defendant had
of particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants; and whether the defendant
was present at the scene of the killing, in a position to facilitate or prevent
the actual murder, or played a particular role in the death. (Ibid.)
A year later, the Supreme Court issued Clark, supra, 63 Cal.4th 522,
which elucidated the meaning of the phrase “reckless indifference to human
life.” According to Clark, 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.)
Clark identified the following non-exclusive considerations, many of which
overlap with the Banks factors, as relevant to whether a defendant acts with
reckless indifference to human life: the defendant’s knowledge that weapons
would be used and/or his personal use of weapons; the defendant’s physical
presence at the scene and his opportunity to restrain the killer or aid the
victim; the duration of the felony; the defendant’s knowledge of his
accomplice’s propensity to kill; and the defendant’s efforts to minimize the
risk of violence in the commission of the felony. (Id. at pp. 618–623.)
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B
When Smith initially appealed the summary denial of his petition for
resentencing, a split of authorities existed among the Courts of Appeal
concerning whether true felony-murder special-circumstance findings made
pre-Banks and Clark precluded petitioners from obtaining relief under the
resentencing mechanism established by Senate Bill 1437. One line of
authorities held that such findings “categorically preclude relief unless they
have been vacated or set aside on direct appeal or collateral review.
[Citation.] Other courts … concluded that pre-Banks and Clark findings do
not pose a categorical bar but may foreclose relief if a court determines that
sufficient evidence supports the findings under the Banks and Clark
standards. [Citation.] And still other courts … concluded that such findings
pose no bar because the decisions in Banks and Clark significantly changed
the prevailing understanding of the relevant elements.” (Strong, supra, 13
Cal.5th at pp. 709–710.)
The Supreme Court resolved this split of authority in Strong, supra,
13 Cal.5th 698. There, the Supreme Court observed that section 1172.6 does
not directly speak to the preclusive effect of a true felony-murder special-
circumstance finding rendered prior to Banks and Clark. (Id. at pp. 711–
715.) However, it turned to first principles of issue preclusion, or equitable
estoppel, which governs the conclusive effect of a prior finding in a later
proceeding. (Id. at pp. 715–718.) It noted that a “well-settled equitable
exception” to the preclusion doctrine “holds that preclusion does not apply
when there has been a significant change in the law since the factual findings
were rendered that warrants reexamination of the issue.” (Id. at p. 716.)
According to Strong, “Banks and Clark represent the sort of significant
change that has traditionally been thought to warrant reexamination of an
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earlier-litigated issue.” (Strong, supra, 13 Cal.5th at p. 717.) That is so
because “[t]here are many petitioners with pre-Banks and Clark felony-
murder special-circumstance findings who nevertheless could not be
convicted of murder today.” (Ibid.) Stated another way, “[a] pre-Banks and
Clark special circumstance finding does not negate [a resentencing
petitioner’s] showing because the finding alone does not establish that the
petitioner is in a class of defendants who would still be viewed as liable for
murder under the current understanding of the major participant and
reckless indifference requirements.” (Id. at pp. 718–719.) Thus, Strong
rejected the first line of precedent noted above, and concluded a pre-Banks
and Clark felony-murder special circumstance finding does not categorically
preclude relief under section 1172.6. (Id. at pp. 716–718.)
Strong also rejected the second line of precedent discussed above, which
had held “that pre-Banks and Clark findings do not pose a categorical bar to
resentencing,” yet still allowed a court to “reject a petition at the prima facie
stage if it independently examine[d] the record and determine[d], applying
the Banks and Clark standards, that sufficient evidence support[ed] the
earlier findings.” (Strong, supra, 13 Cal.5th at pp. 718–719.) As Strong
explained, this approach was untenable because the trial environment
changed after Banks and Clark were decided. (Id. at p. 719.) The arguments
available to counsel, the evidence counsel might have sought to introduce,
and overall trial strategies changed, or at least could have changed, post-
Banks and Clark. (Ibid.) Further, “after Banks and Clark, defense counsel
could have asked that optional additional instruction on the Banks and Clark
factors be given to guide the jury in its deliberations [citation], with the
possibility that different outcomes might have resulted.” (Id. at pp. 719–720.)
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According to Strong, “[a]n after-the-fact court review of a pre-Banks and
Clark record does not account for all these differences.” (Id. at p. 720.)
Therefore, Strong endorsed the third line of precedent noted above. It
concluded that “[f]indings issued by a jury before Banks and Clark do not
preclude a defendant from making out a prima facie case for relief under
Senate Bill 1437. This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.” (Strong, supra, 13
Cal.5th at p. 710; id. at p. 720 [“Neither the jury’s pre-Banks and Clark
findings nor a court’s later sufficiency of the evidence review amounts to the
determination section 1172.6 requires, and neither set of findings supplies a
basis to reject an otherwise adequate prima facie showing and deny issuance
of an order to show cause.”]; id. at p. 721 [“For reasons we have explained,
unless a defendant was tried after Banks was decided, a major participant
finding will not defeat an otherwise valid prima facie case. And unless a
defendant was tried after Clark was decided, a reckless indifference to
human life finding will not defeat an otherwise valid prima facie case.”].)
C
When we apply the legal principles articulated in Strong to the present
case, the outcome is clear. The jury returned its robbery-murder special-
circumstance finding in 1999, before the Supreme Court clarified the major
participant requirement in Banks, and before it elucidated the reckless
indifference requirement in Clark. “Because [Smith’s] case was tried before
both Banks and Clark, the special circumstance finding[] do[es] not preclude
him from making out a prima facie case for resentencing under
section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) Therefore, the order
summarily denying Smith’s petition for resentencing must be reversed, and
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the matter must be remanded for issuance of an order to show cause
pursuant to section 1172.6, subdivision (c). (See Strong, at p. 721.)
IV
DISPOSITION
The order summarily denying Marquell Smith’s petition for
resentencing is reversed. The matter is remanded with instructions that the
trial court issue an order to show cause and conduct such further proceedings
as are mandated by section 1172.6.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
BUCHANAN, J.
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