People v. MacCaskie CA1/1

Filed 7/15/21 P. v. MacCaskie CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159875
v.
EDWIN JAMES MACCASKIE, (Contra Costa County
Super. Ct. No. 5-971561-6)
Defendant and Appellant.
Defendant Edwin James MacCaskie was convicted of felony murder for
a death that occurred during a “debt collection” effort he planned and
committed with cohorts to recover $25 purportedly owed for a drug deal.
Defendant appeals from the denial of his Penal Code section 1170.95 petition
following an evidentiary hearing.1
At the hearing, over defendant’s objection, the trial court admitted into
evidence the transcript of a parole suitability hearing, at which defendant
discussed his participation in the crime. Defendant maintains the trial court
violated his Fifth Amendment right against self-incrimination in admitting
his statements at the suitability hearing and his Sixth Amendment rights in
sitting as the finder of fact during the section 1170.95 hearing. He further
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
contends that, even taking into account his statements at the parole
suitability hearing, the evidence is not sufficient to support the trial court’s
finding that during the crime he acted with reckless indifference to human
life. Because we conclude defendant’s latter argument has merit, we shall
reverse the order and remand for resentencing, and we therefore need not,
and do not, reach defendant’s constitutional challenges.
BACKGROUND
The trial court had before it defendant’s record of conviction, including
our prior opinion affirming his felony-murder conviction (People v. MacCaskie
(Nov. 30, 1998) No. A081484 [nonpub. opn.]), of which we, as did the trial
court, take judicial notice.2 (Evid. Code, §§ 452, 453.) The opinion states in
pertinent part as follows:
“Appellant and his friend Leandro Torres were in business selling
methamphetamine on Frisbie Court in Concord. They considered
themselves, respectively, as ‘uncle’ and ‘nephew.’ Their drug business
had an account receivable of $25 from Duane Bracken, for
methamphetamine received but not paid for. One evening in April
1997, at approximately 11 p.m., appellant and Torres drove to a Frisbie
Court apartment, found Bracken, and demanded their money. Bracken
was ‘nervous’ and ‘tense.’ Torres put his arm around Bracken’s
shoulders and said, ‘Let’s go outside.’ As appellant, Torres and
Bracken left the apartment, a witness heard a sound like someone
being hit.
“The three walked to Torres’ parked car, in which Jason Trujillo waited
in the back seat. Appellant slapped Bracken ‘pretty hard.’ Bracken
took off running, and appellant gave chase. After Bracken had run
about 60 feet, appellant shouted ‘Get back here.’ In Trujillo’s words, ‘I
guess he [Bracken] was intimidated, and he came back.’ Appellant did
not touch Bracken as he walked back to the car, but stayed two and a
half to four feet behind him.
2 Defendant made no objection to the court’s consideration of our prior
opinion.
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“Bracken got into the front seat of the car, between appellant in the
driver’s seat and Torres in the passenger seat. Trujillo remained in the
back. Bracken was not pushed or pulled into the car, and did not try to
get out. However, Trujillo testified that Torres ‘motioned’ Bracken into
the front seat of the car ‘because no normal person’s going to get in the
front seat with two guys.’ As he drove, appellant slapped Bracken
twice with the back of his hand and told Bracken he should have paid
appellant and Torres their money. Appellant and Torres dropped
Trujillo off. Trujillo once again heard appellant asking Bracken for his
money, saying something about ‘going to take a ride.’
“Bracken’s body was discovered by police around 3:45 the following
morning, in a field in nearby Pittsburg. He had been shot in the head
at fairly close range. Several witnesses heard a gunshot in the field
sometime between 10:30 and 11:30 the previous evening—about the
time appellant and Torres were ‘going to take a ride’ with Bracken.
Two of these witnesses heard three men arguing at approximately 11
p.m., then a shot, and then only two voices. Both appellant and Torres
had been known to carry handguns. A tire track found at the field
could have been made by Torres’ car. About two hours after he drove
off with Bracken, appellant encountered a Frisbie Court resident and
told him that Torres ‘got carried away’ and shot Bracken in the head in
Pittsburg.”
Defendant was sentenced to 25 years to life.
At a parole suitability hearing (defendant’s second such hearing)
approximately three months prior to the section 1170.95 evidentiary hearing,
defendant discussed the crime as follows:
He caused Bracken’s murder by the influence he had on Torres and
choices he made the night of the crime. Torres would not have killed Bracken
if defendant had not given Torres the gun and had not taught him not to let
anyone disrespect him. Defendant instigated the crime by finding Bracken at
the apartment. He told “Sam Bot” to get Torres from the car, and defendant
was the first person to hit Bracken. Defendant chased Bracken when he fled,
would not let him go, and yelled at him to stop. Bracken stopped because
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defendant intimidated him. When they were in the car, defendant escalated
the violence by slapping Bracken twice. They were going to go to Pittsburg to
buy drugs and to drop off Bracken. Defendant told Torres they would take
care of the debt with Bracken some other time. Torres wanted to take
Bracken with them and “smash” on him, meaning to beat him more.
Defendant responded that it was Torres’ issue and to take care of it.
Defendant recounted that he had given Torres the gun a couple of
months before the crime for the same reason defendant had a gun, to
intimidate and exert power—the “reality is, it was to kill eventually.” Torres
was then 17 years old, and defendant was 25 years old.
Torres took Bracken out of the car and began beating him. Defendant
watched with approval, not caring what was going to happen to Bracken.
Defendant finally told Torres Bracken had had enough, as defendant was
eager to pick up some drugs in another deal.
When they returned to the car, defendant planned to drive Bracken to
his apartment and drop him off. Torres then pulled out a .45-caliber
automatic handgun and yelled at Bracken, “shut the F up or I’m gonna blow
your effin head off.” Defendant hit the brakes, put the car in park, and got
out. Torres then got into the driver’s seat and took off. As defendant walked
away, he thought, “what the hell just happened?” and said to himself, “man, I
hope he doesn’t do what I think he’s going to do” because Torres had
threatened to blow Bracken’s head off.
In hindsight, defendant realized if he had told Torres to put the gun
away or to give it to him, that would have implied to Torres that he did not
want him to murder Bracken. But by saying nothing, defendant had
communicated it was okay for Torres to jump into the driver’s seat, drive
away, and kill Bracken.
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When Torres returned, defendant asked about Bracken. Torres replied,
“He’s gone. He ain’t coming back. I shot him in the head.” Defendant
thought he was lying, and Torres showed him where the body was located.
Defendant then took the gun and got rid of it, and went on to Frisbie Court to
complete another drug deal. He was approached by “Sam Bot” and told him
Torres had gotten “caried away” and murdered Bracken.
Defendant was found eligible for parole.
DISCUSSION3
In People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court
focused on the strength of the showing required to establish reckless
indifference to human life. As Clark reiterates, that the Legislature included
within the predicate crimes of felony murder only those crimes it viewed as
“ ‘ “inherently dangerous,” ’ ” but “did not collapse the differences between an
analysis involving felony murder, on the one hand, and an analysis of
reckless indifference to human life, on the other.” (Id. at p. 616, quoting
3 “In evaluating a claim regarding the sufficiency of the evidence, we
review the record ‘in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 712.) “ ‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime . . . beyond a reasonable
doubt.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
“ ‘The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in
support of the judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also be reasonably reconciled with a
contrary finding.’ ” (People v. Westerfield, supra, 6 Cal.5th at p. 713.)
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People v. Banks (2015) 61 Cal.4th 788, 810 (Banks).) “Whether a category of
crimes is sufficiently dangerous to warrant felony-murder treatment, and
whether an individual participant has acted with reckless indifference to
human life, are different inquiries.” (Ibid.)
“Because Tison[4] is the source of the” reckless indifference to human
life requirement, the court pointed out that “Tison observed that both the
common law and Model Penal Code recognized this reckless indifference to
the value of human life can be ‘every bit as shocking in the moral sense as an
“intent to kill” ’ ” and can therefore subject the defendant to the death
penalty. (Clark, supra, 63 Cal.4th at p. 616, quoting Tison, supra, 481 U.S.
at p. 157.) “ ‘ In the common law, intentional killing is not the only basis for
establishing the most egregious form of criminal homicide. . . . For example,
the Model Penal Code treats reckless killing, “manifesting extreme
indifference to the value of human life,” as equivalent to purposeful and
knowing killing.’ ” (Ibid.) Thus, reckless indifference embraces conduct so
appallingly beyond the norm, even in the context of inherently dangerous
felonies, that it tips the balance to permit imposition of the ultimate sanction
our law allows—death.
With this understanding of the import of the reckless indifference to
human life element, we turn to the five factors Clark identified as relevant to
evaluating whether the evidence is sufficient to support a reckless
indifference finding.
Knowledge of weapons, and use and number
Clark, as had Banks, emphasized that the “mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to establish
4 Tison v. Arizona (1987) 481 U.S. 137 (Tison).
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reckless indifference to human life.” (Clark, supra, 63 Cal.4th at p. 618.) In
contrast, Clark noted “the high court in Tison found significant the fact” that
the defendants “ ‘brought an arsenal of lethal weapons into the Arizona State
Prison,’ ” and one of them “ ‘guarded the victims at gunpoint while they
considered what next to do.’ ” (Ibid., quoting Tison, supra, 481 U.S. at
p. 151.)
Here, the evidence is sufficient to establish that both defendant and
Torres were armed at the time of the collection effort and kidnapping. It
further establishes that defendant supplied Torres’ gun and was aware
Torres was likely to brandish the weapon, and even use it during beatings. It
does not establish, however, that defendant expected that, in the course of
the instant crime, Torres would actually fire the gun, let alone use it to
murder the victim.
Physical Presence at the Crime and Opportunities to Prevent the Killing
and/or Aid the Victim
Clark observed that “[i]n Tison, the high court stressed the importance
of presence to culpability. Each Tison brother was physically present during
the entire sequence of events culminating in the murders. [Citation.]
Proximity to the murder and the events leading up to it may be particularly
significant where, as in Tison, the murder is a culmination or a foreseeable
result of several intermediate steps, or where the participant who personally
commits the murder exhibits behavior tending to suggest a willingness to use
lethal force. In such cases, ‘the defendant’s presence allows him to observe
his cohorts so that it is fair to conclude that he shared in their actions and
mental state. . . . [Moreover,] the defendant’s presence gives him an
opportunity to act as a restraining influence on murderous cohorts. If the
defendant fails to act as a restraining influence, then the defendant is
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arguably more at fault for the resulting murders.’ ” (Clark, supra, 63 Cal.4th
at p. 619, quoting McCord, State Death Sentencing for Felony Murder
Accomplices under the Emnund and Tison Standards (2000) 32 Ariz. St. L.J.
843, 873.) “At the same time, physical presence is not invariably a
prerequisite to demonstrating reckless indifference to human life. Where, for
example, a defendant instructs other members of a criminal gang carrying
out carjackings at his behest to shoot any resisting victims, he need not be
present when his subordinates carry out the instruction in order to be found
to be recklessly indifferent to the lives of the victims.” (Clark, at p. 619.)
Here, there is substantial evidence defendant was involved in nearly all
of the events leading up to the murder. And there is no doubt defendant,
himself, allowed Torres to beat up the victim and defendant, himself, struck
the victim after he and Torres hauled the victim into the car. However,
throughout this period of time, defendant did not allow the conduct to go
beyond a serious beating.
There is also no doubt defendant was fully aware Torres pulled out his
gun and yelled at the victim, “shut the F up or I’m gonna blow your effin head
off,” and that instead of trying to calm Torres down, defendant pulled to a
stop and got out of the car. This effectively turned the car and the victim
over to Torres’ control, and defendant acknowledged thinking, “man, I hope
he doesn’t do what I think he’s going to do,” namely kill the victim.
Defendant also admittedly did nothing at that point to try to stop Torres or to
aid the victim. Instead, defendant proceeded on to his next drug deal.
Accordingly, at this point, defendant did exhibit extreme callousness toward
the victim.
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Duration of the Felony
Clark further explained that “[c]ourts have looked to whether a murder
came at the end of a prolonged period of restraint of the victims by defendant.
The Tisons, the high court noted, ‘guarded the victims at gunpoint while [the
group of perpetrators] considered what next to do.’ [Citation.] Where a
victim is held at gunpoint, kidnapped, or otherwise restrained in the presence
of perpetrators for prolonged periods, ‘there is a greater window of
opportunity for violence’ [citation], possibly culminating in murder. The
duration of the interaction between victims and perpetrators is therefore one
consideration in assessing whether a defendant was recklessly indifferent to
human life.” (Clark, supra, 63 Cal.4th at p. 620, fn. omitted.)
In Clark, the “defendant planned the robbery for after closing time,
when most of the store employees were gone. Defendant anticipated some
employees would be present, but the plan was to handcuff them in a
bathroom, while the robbery itself was conducted outside of their presence.
Thus, although the planned robbery was to be of substantial duration,
involving multiple individuals loading computers into a U–Haul van, the
period of interaction between perpetrators and victims was designed to be
limited. Because the robbery was planned for a public space and involved the
prolonged detention of employees, the crime did involve the risk of
interlopers, such as Lee, happening upon the scene. But overall, the evidence
was insufficient to show that the duration of the felony under these
circumstances supported the conclusion that defendant exhibited reckless
indifference to human life.” (Clark, supra, 63 Cal.4th at pp. 620-621.)
Here, as in Clark, defendant did not plan the crime to be of long
duration. The crime involved a single victim, who defendant did, indeed,
plan or anticipate would be intimidated through physical coercion. But the
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evidence also established that after the beating, defendant hauled the victim
into the car and proceeded to drive the victim to an apartment where he
would be released. There is no evidence defendant planned that the crime
would entail any conduct beyond that, albeit the intimidation and beating
might be aided by a display of firearms. But the latter action is not, as our
high court has explained, sufficient to establish reckless indifference to
human life. (See Clark, supra, 63 Cal.4th at p. 618.)
Knowledge of Cohort’s Likelihood of Killing
Clark also explains that “[a] defendant’s knowledge of factors bearing
on a cohort’s likelihood of killing are significant to the analysis of reckless
indifference to human life. Defendant’s knowledge of such factors may be
evident before the felony or may occur during the felony. Tison, for example,
emphasized the fact that the Tison brothers brought an arsenal of lethal
weapons into the prison which they then handed over to two convicted
murders, one of whom the brothers knew had killed a prison guard in the
course of a previous escape attempt. . . . [¶] [In fact,] [t]he facts in Tison also
indicate that the Tison brothers had advance notice of the possibility that
their father would shoot the family because, in response to one of the victim’s
plea not to be killed, the father stated that he ‘was “thinking about it.” ’
[Citation.] A defendant’s willingness to engage in an armed robbery with
individuals known to him to use lethal force may give rise to the inference
that the defendant disregarded a ‘grave risk of death.’ ” (Clark, supra,
63 Cal.4th at p. 621.)
In Clark, there was no evidence the killer “was known to have a
propensity for violence, let alone evidence indicating that defendant was
aware of such a propensity.” Moreover, because the “defendant was across
the parking lot while [the killer] carried out the first phase of the robbery,
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defendant had no opportunity to observe anything in [the killer’s] actions just
before the shooting that would have indicated [he] was likely to engage in
lethal violence.” (Clark, supra, 63 Cal.4th at p. 621.)
Here, the evidence establishes that defendant gave Torres the firearm
used in the crime and did so to enable Torres to intimidate individuals with
whom the two interacted while plying their drug trade. Defendant was also
aware Torres was willing and able to supply the intimidation and muscle to
ensure their “respect.” So, to this extent, defendant was aware of Torres’
“propensity for violence.” But there is no evidence Torres had a propensity
for killing. While defendant commented that in carrying a weapon himself
and supplying one to Torres, he was aware this meant at some point there
would probably be a killing, the same can be said of any defendant who is
aware their cohorts are packing a firearm while committing the crime. But,
again, as Clark reiterated, the “mere fact of a defendant’s awareness that a
gun will be used in the felony” is not enough to establish deliberate
indifference to human life. (Clark, supra, 63 Cal.4th at p. 618.)
Efforts to Minimize Risks of Violence
Clark addressed this factor because the “defendant was the principal
planner and instigator of the robbery.” (Clark, supra, 63 Cal.4th at p. 622.)
The court concluded “a defendant’s apparent efforts to minimize the risk of
violence can be relevant to the reckless indifference to human life analysis. If
the evidence supports an argument that defendant engaged in efforts to
minimize the risk of violence in the felony, defendant may raise that
argument and the appellate court shall consider it as being part of all the
relevant circumstances that considered together go towards supporting or
failing to support the jury’s finding of reckless indifference to human life.”
(Ibid.) However, “the existence of evidence that defendant made some effort
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to minimize the risk of violence does not, in itself, necessarily foreclose a
finding that defendant acted with reckless indifference to human life.” (Ibid.)
“Therefore . . . a defendant’s good faith but unreasonable belief that he or she
was not posing a risk to human life in pursuing the felony does not suffice to
foreclose a determination of reckless indifference to human life under Tison.”
(Ibid.)
As we have discussed, defendant had not planned the “debt collection”
effort and kidnapping to end in a killing. While there is abundant evidence
he intended to traumatize the victim into paying the money purportedly owed
to him, the evidence also establishes defendant stopped the physical abuse
well short of Torres killing the victim, and thereafter started to drive the
victim to the locale where he would be dropped off. It was not until Torres
yelled at the victim in the car “shut the F up or I’m gonna blow your effin
head off,” that the possibility of lethal force entered the picture. At that
point, defendant did, indeed, leave the victim to the mercy of Torres, with
trepidation as to what Torres might do. On balance, then, the best that can
be said about this factor is that it does not weigh in the balance either way.
In sum, this is unquestionably a close case. But bearing in mind that
the reckless indifference to human life element, at its core, is meant to
identify that inherently dangerous felonious conduct that is so heinous it may
be punishable by death, we conclude the evidence here, even taking into
account defendant’s statements at the parole eligibility hearing, does not
clear that formidable hurdle. Accordingly, the order denying defendant’s
petition for resentencing must be reversed and the matter remanded for
resentencing. We therefore need not, and do not, reach defendant’s Fifth and
Sixth Amendment challenges.
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DISPOSITION
The order denying defendant’s petition for resentencing is reversed,
and the matter is remanded for resentencing in accordance with section
1170.95.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Sanchez, J.
A159875, People v. MacCaskie
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