People v. Wright CA2/2

Filed 8/2/23 P. v. Wright CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B318839
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A383951)
v.
EDWARD JUDSON WRIGHT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Edward J. Haggerty, 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, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Edward Judson Wright appeals
from the order denying his petition for resentencing pursuant to
Penal Code section 1172.6, entered after an evidentiary hearing
held pursuant to subdivision (d) of that statute.1 Defendant, who
requests de novo review of the issues, sets forth as grounds for
reversal that substantial evidence did not support a finding that
he directly aided and abetted the killing with intent to kill and
that the trial court erred as a matter of law in concluding he was
a major participant who acted with reckless indifference to
human life. Defendant also contends the order denying his
resentencing petition cannot be affirmed under a theory of aiding
and abetting second degree implied malice murder.
We conclude substantial evidence supports the trial court’s
finding that defendant was a major participant who acted with
reckless indifference to human life, and he was thus guilty of
felony murder under current law. As we affirm the trial court’s
ruling on that ground, we do not reach defendant’s other
contentions.
BACKGROUND
1983 conviction
In 1982, defendant and his brother Curtis Duane Wright
(Curtis)2 were charged with the murder of Donald Houts and
robbery and burglary of the victim’s home, as well as three
additional robbery counts against separate victims. The
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
2 As defendant and his brother share their last name, we
refer to Curtis by his first name to avoid confusion.
2
information also alleged that Curtis had been armed with a
firearm. After defendant’s and Curtis’s trials were severed,
defendant waived a jury trial and agreed to the admission into
evidence of a portion of the preliminary hearing testimony in
addition to live testimony. Following a court trial defendant was
convicted of first degree murder (§ 187, subd. (a)), three counts of
robbery (§ 211), and one count of burglary (§ 459), along with true
findings that a principal was armed in the commission of the
offenses. On May 17, 1983, defendant was sentenced to a total
term of life in prison plus seven years. The judgment was
affirmed on direct appeal. (People v. Wright (1987) 43 Cal.3d 487,
499; People v. Wright (Dec. 13, 1985, B044607) [nonpub. opn.].)
Section 1172.6 petitions
Prior to 2019, when an accomplice killed another during an
inherently dangerous felony such as robbery, an aider and
abettor of the robbery could be convicted of murder without a
showing of intent to kill or implied malice. (People v. Strong
(2022) 13 Cal.5th 698, 704, 707.) Effective 2019, the Legislature
amended section 189, subdivision (e) to limit felony murder
liability to actual killers, aiders and abettors with the intent to
kill, or major participants in the underlying felony who acted
with reckless indifference to human life as described in section
190.2, the statute defining the felony-murder special
circumstance. (People v. Strong, at pp. 707-708; Stats. 2018, ch.
1015, § 1, subd. (f).) The Legislature also added section 1172.6,
which provides a procedure for persons convicted of murder to
seek retroactive relief if they could not be convicted under
sections 188 and 189 as amended effective January 1, 2019.
(People v. Lewis (2021) 11 Cal.5th 952, 957.)
3
In May 2019, defendant filed a petition for resentencing
under section 1172.6, and the trial court summarily denied the
petition. We reversed the denial of the petition and remanded
the matter for further proceedings pursuant to section 1172.6,
subdivision (c). Following remand, the trial court entertained
briefing from both sides and held an evidentiary hearing
pursuant to section 1172.6, subdivision (d), in which the
prosecutor was required to prove beyond a reasonable doubt that
defendant remained guilty of murder under section 188 or 189, as
amended effective January 1, 2019. (See § 1172.6, subd. (d).)
The parties stipulated the court could consider the
following evidence: the three prior appellate opinions in the
matter; the preliminary hearing transcript; the reporter’s
transcript of the 1983 trial; the transcript of a recorded interview
of defendant by detectives on October 20, 1982; and the autopsy
report. After reviewing the evidence and analyzing it under the
factors outlined in People v. Banks (2015) 61 Cal.4th 788 (Banks),
People v. Clark (2016) 63 Cal.4th 522 (Clark) and related
authority, the trial court found the evidence established
defendant was a major participant in the robbery and burglary
against Houts and acted with reckless indifference to human life.
The court also found defendant was a direct aider and abettor in
the murder and acted with intent to kill. On February 25, 2022,
the court denied the petition.
Defendant filed a timely notice of appeal from the order of
denial.
Relevant prosecution evidence
Owens robbery
Percy Owens testified that at the time of the incident he
was 70 years old with a heart condition and back problems, living
4
in a trailer on his Lancaster farm when defendant, who was
referred by the unemployment department, went to work for him.
Defendant worked for Owens for approximately three weeks as a
handyman until Owens fired him. Thereafter, on December 13,
1978, Owens drove onto his property around 11:30 a.m., got out of
his car holding a loaf of bread, his keys, and a newspaper, and
was confronted by defendant pointing Owens’s own .12-gauge
shotgun at Owens. The gun was kept inside Owen’s trailer, and
he had seen it that morning before he left for an errand. No one
else was around. Owens walked up to defendant, repeatedly
pushed the gun away after defendant repointed it. Defendant hit
Owens two or three times on the back near the shoulder with the
stock of the shotgun, breaking it and causing Owens to fall.
Defendant ordered Owens into the trailer, where Owens saw a
window had been broken since he left that morning, and the front
door was open.
Inside, defendant shoved Owens into a chair, causing glass
in a display case to break. Defendant tied up Owens, threw the
shotgun on the couch and returned outside. Defendant locked
himself out, and Owens was able to get loose and call law
enforcement to report having been beaten and held up with a
shotgun. Defendant came back in through the window, again
tied up Owens and pulled the phone off the wall. Defendant took
a small antique pistol from the broken display case, Owens’s
credit cards and driver’s license from the wallet in his pants, and
demanded that Owen sign some checks. Owens, afraid because
he knew defendant carried a knife, signed three checks.
Defendant took the keys Owens had dropped on the ground
outside and drove off in Owens’s car.
5
Owens had never met Curtis, and did not know defendant
had a brother.
Events before, during and after the Houts murder
In 1982 Houts was a 56-year-old pheasant farmer, who
lived alone on a ranch in rural Lancaster. Defendant worked for
Houts for about three weeks in late August and September,
feeding birds and building cages, while living with his mother,
sister, Curtis, and another younger brother in Lancaster.
Eventually defendant and his girlfriend, Roberta Fahey, rented
an apartment in a town 11 miles outside of Lancaster. Curtis
lived with them the last two weeks they were there. Fahey
worked cleaning house for Houts approximately four days.
Defendant left his job with Houts around September 22 or
23, 1982, and about that time, defendant told Fahey Houts had
shown defendant his guns. On September 28, Fahey
accompanied defendant to a Palmdale pawn shop where he
purchased an unmodified shotgun, which he gave to Curtis two or
three days later. The barrel was then sawed off.
During the following days, Curtis used the shotgun to
commit robberies in Palmdale, Quartz Hill and Lancaster, aided
by defendant, who provided the transportation. An employee of
the Lancaster drive-in movie theater testified while working in
the box office, at 8:30 p.m. on October 2, 1982, he was robbed at
gunpoint by Curtis with a sawed-off shotgun. A cashier at the
Quartz Hill Circle K market, about five miles from Lancaster,
testified she was robbed just after midnight on October 4, 1982,
by a man who pointed a saw-off shotgun at her. In court she
identified defendant as the robber. Fahey testified that Curtis
told her he committed the robbery of the Circle K with the sawed-
off shotgun. An employee of a 7-Eleven store in Palmdale
6
testified she was robbed on October 5 at 11:15 p.m. by a person
with a single barrel sawed-off shotgun. As he left the store, he
put the shotgun up his right sleeve, asked if she would wait two
or three minutes before calling the police, and walked eastward
down the street. She did not see a car and was unable to identify
the robber.
Fahey testified that on Sunday, October 10, 1982,
defendant came home between 2:30 and 3:30 p.m., upset and
angry with Curtis. Defendant said he did not want Curtis to live
there anymore because Curtis was going to cause trouble in
which defendant did not want to be involved. Curtis came home
about an hour and a half later with the sawed-off shotgun, which
had a broken butt, two other guns, some tools, a television set,
and a vacuum cleaner. Fahey recognized the vacuum cleaner and
television set as belonging to Houts. They put the tools and
vacuum in the car, and all went to Shorty’s swap meet together.
The owner of the swap meet, Irving Dwosh, testified he
purchased the items from Curtis for $36.
Brian Curran, a recently hired employee of Houts,
identified the items in a locked storeroom at the swap meet as
belonging to Houts. Curran also testified Houts owned a red
truck and an AMC Pacer. When Curran went to work Monday,
October 11, the truck was there, but the Pacer was not. He did
not see Houts that entire day.
Later, defendant told Fahey that he and Curtis went to
Houts’s ranch that day for Curtis to inquire about a job.
Defendant parked away from the house and waited in the car
while Curtis walked to Houts’s house. Later, when defendant
approached the house, he discovered Curtis had killed Houts and
became angry.
7
After relatives reported Houts missing, law enforcement
went to Houts’s property on October 13. They found bloodstains
and a portion of a shotgun shell in the living room, but did not
find Houts’s body until October 16, when a sheriff’s posse found it
about a quarter mile behind the house in a four-foot square duck
blind.
The same day defendant and Fahey were arrested in
Hagerstown, West Virginia by local law enforcement, who
notified Los Angeles County Sheriff’s Detective Raffa, who was in
charge of the Houts investigation. He and Sergeant Parra then
went to West Virginia to interview defendant and Fahey.
Postarrest interview
Defendant said, after telling Curtis about Houts’s guns, on
October 10, 1982, they went to the ranch sometime after noon
with the sawed-off shotgun. Defendant had also told Curtis
about the tools and color TV and suggested they wait until Houts
left, go there, and burglarize the place
Defendant said he waited in the car where Houts would not
see him, and eventually heard Houts shouting at Curtis about
something. Defendant then saw Curtis run back into the house.
Defendant heard a couple of thumps, as though Curtis were
kicking or hitting Houts. Later, defendant determined Curtis
had hit Houts with the sawed-off shotgun, which broke parts of
the gun. After defendant heard a gunshot, Curtis came to the
door saying, “[W]hatta I do now, what do I do now[?] He’s still
alive.” Defendant threw up his hands and started to walk away,
when Curtis came out of the house and said something again
about the gun being broken. Defendant replied, “[H]ey you did it,
you’re gonna have to deal with it . . . .”
8
Defendant said that “there was a bunch of hollering and
stuff back and forth and then the next thing I know [Curtis]
picked up [Houts’s gun] and . . . shot him again and then . . . once
he did that, I couldn’t do nothing but . . . help . . . try to clear the
place up. [¶] . . . [¶] . . . So we scrubbed the carpets in the
room.” Defendant explained that Curtis “wasn't even suppose to
stay there if [Houts] was home. I could see burglarizing the guy.
Once he was dead . . . I’m already there and I’m involved in
it . . . .” Defendant and Curtis dragged Houts to his pickup truck,
took him out to a duck blind behind the property, put him in a
hole there, covered him up, and went back to clean the mess.
The brothers took checks, the television, rifle and shotgun,
and then the drill, skill saw, and chain saw. They put everything
into Houts’s Pacer, and Curtis drove defendant in the Pacer to
defendant’s car. Defendant drove home and when Curtis arrived
about an hour later, they went to Shorty’s to sell everything
except the guns and TV, which they kept. They went out for a
drink, and defendant later told Fahey what happened. The
brothers threw the sawed-off shotgun out into the desert.
The next day, defendant filled out the two checks taken
from Houts, claiming that Curtis forced Houts to sign them
before defendant arrived at the house. Curtis then cashed the
checks, and defendant, Curtis and Fahey went shopping, mostly
for clothes. Curtis rented a U-Haul tow bar and hooked
defendant’s car to the Pacer. They placed all their things in
defendant’s car and drove to Martinsburg, West Virginia. Not
finding an apartment to rent there, defendant and Fahey rented
one in Hagerstown, moving in that night. Curtis stayed in
Martinsburg to look up an old friend.
9
Defense evidence
Testimony of defendant’s mother and sisters
Defendant’s mother, Lynn Jordan, testified defendant was
28 years old, and Curtis was 20. She divorced their father in
1963. Defendant lived off and on with his father then came to
live with her when he was about 14 or 15. She gained custody of
Curtis when he was 12. She described Curtis as both a loner and
a leader. When she told him what to do, he would close up like a
clam and go away. Curtis associated with people three or four
years younger, such as the friends of his younger brother Ricky,
who was 15. Curtis entertained them and they looked up to him.
Jordan had been afraid of Curtis since he was very young. When
she got custody of him, he was so uncontrollable she turned him
into the county to be sent back to his father. Curtis had two
sides, one very friendly and sweet and one as cold as ice. He
killed two of her kittens, strangled one and hit the other against
the back of a bus bench.
Jordan described her relationship with defendant as good
most of the time, and she thought defendant as less likely to lead
than Curtis. Defendant and Curtis lived with her until about
three weeks before they and Fahey went to West Virginia.
Jordan claimed defendant and Curtis did not get along very well,
perhaps because Curtis could not dominate defendant. She did
not think defendant was violent, although she was aware he had
been to prison twice. He stole a car when he was 15 or 16 and he
went to prison in the Owens case. She, Curtis and the rest of the
family knew about the Owens case and had read the preliminary
hearing transcript.
Defendant’s 26-year-old sister, Coralyn Berry, testified
when she lived with Curtis, he did not listen to her or anyone,
10
and did whatever he wanted to do. She thought Curtis looked up
to defendant, who got more attention than Curtis. Like Jordan,
Berry claimed defendant was not violent, but Curtis knew about
the Owens incident and that defendant went to prison. Berry
recounted an incident that occurred when Curtis was living in a
foster home and was given a hamster. When the hamster would
not use his wheel, he took it outside, threw it on the ground, and
it died.
Defendant’s 22-year-old sister, Lisa Wright, testified she
lived with her father and Curtis until she was 18 years old. She
also considered Curtis to be a leader who played with younger
people so he could lead. If he could not lead, he would just sit and
sulk. All his life he wanted to be like defendant and wanted to do
exactly what defendant did. She confirmed Curtis knew about
the Owens case as did everyone in the family. She also thought
that defendant was not violent. It was Curtis who often got in
trouble. He went to jail in Chicago for a couple months and spent
time in juvenile hall before that. Curtis mistreated the family
cat. He would also find snakes and throw them onto the electric
fence on their property to watch them fry.
Defendant’s testimony
Defendant testified that on October 10, 1982, he thought of
a plan to burglarize Houts’s house. Curtis would go to the house
to see whether Houts was home. Defendant was aware of Houts’s
habit of going to his mother’s house for dinner on Sundays.
Houts would leave in the afternoon to shop before dinner, so the
plan was to go the house around 2:00 p.m. Since Houts had
never met Curtis, he would first go up alone to see whether Houts
was home. If Houts was home, Curtis would ask for work, have a
little conversation, then return to defendant, waiting out of sight.
11
They would then wait until they saw Houts’s car go by, and then
burglarize the house and surrounding property.
When they arrived, defendant could not see whether
Houts’s Pacer was there, as his view was blocked. Curtis went to
the house, taking the sawed-off shotgun with him. Defendant
waited about 20 minutes to a half hour before deciding to walk
toward the house. When he was about a third of the way there,
Curtis stepped out, waved defendant to come, and went back in.
Defendant claimed it was then he heard a muffled shot and
started jogging up to the house. Curtis came running out and
yelled, “I shot him. He’s still alive. What do I do?” Defendant
replied, “You’ve done it, I’m getting out of here. I’m out of it.”
Defendant claimed he turned around and started walking
back toward his car, and Curtis went back into the house but
came running back out right after defendant heard another
gunshot. Curtis yelled for defendant to help him. Defendant
figured Curtis had killed Houts and said, “Well, I’ve got to help
you.” They went into the house, where defendant helped Curtis
drag Houts out and put him in the back of the red truck, which
they drove to the back of the property, where they placed Houts
in a hole and covered him. The brothers returned to the house to
steal things. The next day defendant cashed some checks taken
but denied he told Curtis to make Houts sign them. Defendant
admitted he made Owens do that in 1978.
Defendant claimed they had planned only a burglary, not a
robbery, and when he found out Curtis had hurt Houts, he was
shocked. He claimed he had no way of knowing Curtis could do
something like that, especially that he would shoot somebody,
although Curtis had always been “shaky.” At the time defendant
just wanted to leave the area and later got angry.
12
On cross-examination, defendant testified he quit his job
with Houts around September 22 or 23 and claimed he gave
Curtis the shotgun as an early birthday present about three days
after he got it, which was two weeks before Sunday, October 10.
It was Curtis who sawed off the barrel, and it was the same
sawed-off shotgun they used in the other robberies. Defendant
claimed on October 10 they left his apartment between 11:00 a.m.
and noon, intending to go to a swap meet in Four Points, about 15
miles north of Houts’s house. They took the shotgun to hunt
quail, as well as pheasants that had strayed from Houts’s ranch.
Defendant admitted after the barrel was sawed off, the gun was
no longer good for hunting.
They found no quail. Curtis shot off rounds while
defendant listened to the radio in the car. Curtis got bored with
shooting and they began talking about guns. Defendant told
Curtis about Houts’s guns and his habit of going out on Sunday
afternoons. Defendant proposed they could wait until he was
gone, go up to the house, which Houts did not lock, and take the
guns and whatever else they found. Since defendant did not
know what time Houts usually left, the plan was for Curtis to go
to the house and if Houts was not home, Curtis would signal
defendant to come in. If Houts was home, Curtis would inquire
about employment and return to the car where they would wait
1/2 mile away until they saw Houts’s car pass.
Curtis began walking to Houts’s house from a quarter mile
away at 1:00 p.m. Defendant assumed the shotgun Curtis took
with him was loaded. Curtis assured defendant he would keep it
tucked under his jacket. Defendant made no objection. When
asked whether he thought that Curtis would be hostile if
defendant told him not to take it with him, defendant replied,
13
“That’s hard to say. Curtis is hard to figure, sometimes. He
might sometimes and he might not.” Defendant claimed when
they committed the other robberies that month, he had not let
Curtis load the shotgun. Defendant kept the shells from Curtis.
Defendant waited in the car for 20 to 30 minutes, became
worried, so he started walking up the driveway. Defendant
described the ensuing events as he had before, and testified after
he heard the second shot and turned back toward the house,
Curtis came out yelling for help. As defendant walked toward
the house, Curtis said, “He’s dead,” and something to the effect
of, “He broke my shotgun,” and “What do you think we should do
now?” Defendant replied, “We’ll have to get rid of the body or
hide it somehow.” After taking the body out they tried to clean
up inside the house. They put the stolen property in the Pacer
and drove it to defendant’s car.
DISCUSSION
I. Standard of review
Relying primarily on People v. Vivar (2021) 11 Cal.5th 510,
524-528 (Vivar), defendant urges a de novo standard of review,
which unlike a substantial evidence review, would give no
deference to the trial court’s findings. He contends a de novo
review is appropriate because the trial court’s factual
determinations were based solely on the “cold record.” Vivar is
an inapt comparison as it involved whether there had been a
sufficient showing of prejudice to vacate a conviction by those
facing negative immigration consequences—a ruling that was
predominantly a question of law. (Id. at pp. 517, 524.) Here, the
issue is whether defendant harbored the mental state required
for a murder conviction under section 188 or 189 as amended,
14
which is predominantly a question of fact. (See § 1172.6, subd.
(d); People v. Clements (2022) 75 Cal.App.5th 276, 296-301.)
Moreover, the holding in Vivar was expressly limited to
proceedings pursuant to section 1473.7. (Vivar, supra, at p. 528,
fn. 7.)
Defendant acknowledges but disagrees with the decisions of
the Courts of Appeal that have distinguished Vivar and held on
appeal the trial court’s ruling under section 1172.6 is to be
reviewed for substantial evidence. (See People v. Sifuentes (2022)
83 Cal.App.5th 217, 232-233; People v. Mitchell (2022) 81
Cal.App.5th 575, 590-591; People v. Clements, supra, 75
Cal.App.5th at pp. 296-301.) We agree with the reasoning of the
foregoing cases and decline to apply a de novo review.
Defendant argues the evidence shows only a burglary was
planned but was transformed on Curtis’s whim into a violent
armed robbery and an unexpected shooting. Essentially
defendant argues the evidence favored a findings that he did not
intend to kill and was not a major participant who acted with
reckless indifference to human life. Defendant’s analysis is
limited to the evidence and inferences that support that view.
However, since we review the trial court’s ruling for substantial
evidence, our task is to determine whether such evidence
supports the trier of fact’s finding, not whether substantial
evidence supports a contrary finding. (See People v. Saterfield
(1967) 65 Cal.2d 752, 759.)
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
15
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the [trier of fact] might have
drawn from the circumstantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 396.) “[B]ecause ‘we must begin with the
presumption that the evidence . . . was sufficient,’ it is defendant,
as the appellant, who ‘bears the burden of convincing us
otherwise.’” (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1430.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conclusion of the trier of fact].’” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
II. Major participant with reckless indifference
A. Banks and Clark factors
We first address defendant’s contention the trial court
erred in finding he was a major participant who acted with
reckless indifference to human life.
After the Legislature amended sections 188 and 189, the
California Supreme Court held its decision in Banks
“substantially clarified the law surrounding major participant
findings,” and its decision in Clark “then substantially clarified
the relevant considerations for determining whether a defendant
has acted with reckless indifference to human life.” (People v.
Strong, supra, 13 Cal.5th at p. 721.) Thus, the court concluded
that “[s]ection 1172.6 offers resentencing for petitioners who have
not been determined beyond a reasonable doubt to have the
16
degree of culpability now required for a murder . . . conviction.”
(Id. at p. 720.)
In Banks and Clark, the California Supreme Court was
guided by the reckless indifference requirement first articulated
in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida
(1982) 458 U.S. 782 in relation to the imposition of the death
penalty. In clarifying the definitions of major participant and
reckless indifference to human life in Banks and Clark, the court
suggested relevant considerations for the factfinder in making
that determination. (Clark, supra, 63 Cal.4th at p. 611; Banks,
supra, 61 Cal.4th at p. 803.) The two requirements significantly
overlap, as the greater the defendant’s participation in the
underlying felony, the more likely it is that he acted with reckless
indifference to human life. (Clark, supra, 63 Cal.4th at p. 615.)
“No one of these considerations is necessary, nor is any one of
them necessarily sufficient” (Banks, supra, 61 Cal.4th at p. 803);
what matters is the totality of the considerations (In re Scoggins
(2020) 9 Cal.5th 667, 677 (Scoggins)).
B. Major participant
Factors used to determine whether a defendant was a
major participant include the role played by the defendant in
planning the underlying crime; in supplying or using a lethal
weapon; the awareness of the defendant of the particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants; the defendant’s
presence at the scene of the killing; and the defendant’s action
after lethal force was used. (See Clark, supra, 63 Cal.4th at
p. 611; Banks, supra, 61 Cal.4th at p. 803.)
Here defendant’s own admissions provide considerable
substantial evidence to support a finding of all factors suggested
17
by Banks and Clark. Defendant admitted he thought of a plan
and suggested it to Curtis, and the evidence of the remaining
factors indicate he intended both burglary and robbery.
Defendant admitted he supplied the lethal weapon; he was aware
of the particular dangers posed, since the weapon was a sawed-off
shotgun; and he knew Curtis took the presumably loaded shotgun
to Houts’s house. If the plan was a burglary and Curtis was to
return to the car if Houts were home, there would be no need for
a lethal weapon. In addition, we note striking similarities to the
Owens robbery: Houts and Owens were both tied up, and both
forced to sign checks. Also Curtis claimed to have hit Houts with
the butt of the gun, just as defendant had done to Owens,
suggesting defendant shared his methods with Curtis.
Defendant’s awareness of the danger may be reasonably
inferred from defendant’s refusal to let Curtis have ammunition
for the shotgun during the recent prior robberies involving
defendant, combined with the knowledge Curtis had always been
“shaky” and might become hostile if told what to do, for example,
commit a robbery with an unloaded gun.
In addition defendant admitted after lethal force was used,
he helped hide the body, clean up the blood, steal Houts’s
property and load it into Houts’s car, dispose of the sawed-off
shotgun, and fill out and cash the checks. In sum, defendant’s
participation was a significant or major part of the planned
burglary and robbery. He was not simply the getaway driver, as
he suggests.
C. Reckless indifference to human life
Regarding reckless indifference to human life, Banks
explained it as engaging in a felony known to carry a grave risk
of death while “‘“subjectively aware that his or her participation
18
in the felony involved a grave risk of death.”’” (Banks, supra, 61
Cal.4th at pp. 801, 807.) “[O]nly knowingly creating a ‘grave risk
of death’ satisfies the constitutional minimum” articulated by the
United States Supreme Court in Tison v. Arizona, supra, 481
U.S. at page 158 and Enmund v. Florida, supra, 458 U.S. at page
798. (Banks, supra, at p. 808.) Thus, those charged with felony
murder “who simply had awareness their confederates were
armed and armed robberies carried a risk of death, lack the
requisite reckless indifference to human life.” (Id. at p. 809.)
In Scoggins, our Supreme Court gleaned factors from
Banks and Clark to guide the determination whether the
defendant was subjectively aware that his participation involved
a grave risk of death. (Scoggins, supra, 9 Cal.5th at p. 677.)
Factors include: “Did the defendant use or know that a gun would
be used during the felony? How many weapons were ultimately
used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the
victim? What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Ibid., citing Clark, supra, 63 Cal.4th at pp. 618-623.)
Here defendant was not simply aware Curtis was armed
and that armed robberies carried a risk of death. Rather
defendant knew Curtis took a loaded sawed-off shotgun with him
to Houts’s house, and defendant accepted Curtis’s assurance that
he would hide the gun in his clothing. Given the gun was so
easily hidden, it is probable the shotgun barrel was sawed off to a
length banned by California law since 1961. Such a modification
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creates a weapon “normally used only for criminal purposes” and
known to be dangerous “because these guns combine lethality at
the short distances characteristic of the typical criminal attack
with a concealability and ease of handling . . . .” (People v. Brown
(2014) 227 Cal.App.4th 451, 464; see former § 12020, now
§ 33215.) Defendant admitted he knew this was not a gun
designed for sport hunting, and he also knew Curtis had access to
Houts’s guns.
Defendant may not have been inside the house when the
fatal shot was fired, but he was sufficiently close to the crime
scene to have had the opportunity to restrain the crime or at least
aid the victim. When defendant spoke to detectives a few days
after the murder, he said as he approached the house, Curtis was
outside waving him in, and he heard Houts shouting. Curtis ran
back into the house, and defendant heard a couple of thumps, as
though Curtis were kicking or hitting Houts, and then the first
gunshot. Defendant’s response when Curtis came to the door and
said, “[W]hatta I do now, what do I do now[?] He’s still alive,”
was to throw up his hands and start to walk away. When Curtis
said something again about the gun being broken, defendant
replied, “[H]ey you did it, you’re gonna have to deal with it . . . .”
Under defendant’s own scenario, the killing of Houts was not
sudden or unanticipated.
Defendant complains the trial court interpreted his
statement as directing Curtis to go back and kill Houts himself.
As Curtis did go right back in to finish the job, the court’s
interpretation was not unreasonable. Regardless, defendant’s
own statements show the killing of Houts was not sudden or
unanticipated, as he asserts. Defendant had time to at least try
to prevent the killing, but instead walked away. Furthermore,
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defendant has never claimed to have attempted to aid Houts
before or after his death.
The murder was not unforeseeable. Defendant was 28
years old, and Curtis was 20. Curtis looked up to defendant,
wanted to be like him, and although Curtis would not do what
others told him to do, he committed three robberies with
defendant without ammunition in his weapon, as defendant had
insisted. It is reasonable to infer that on the day Curtis
murdered Houts defendant could have insisted Curtis leave the
shotgun behind, and thereby reduce the risks of violence. Curtis
had a propensity for violence. He violently killed a pet hamster
because the creature would not do what Curtis wanted. He
tortured snakes to death by throwing them onto an electric fence.
He mistreated the family cat and killed two kittens, one by
strangulation and one by smashing it against a bus bench. Given
defendant’s mother and two sisters knowledge of Curtis’s
propensity for violence, it is unlikely defendant was not aware of
it.
Considering the totality of the circumstances, we conclude
substantial evidence supports the trial court’s finding defendant
was a major participant in the burglary and robbery and that he
acted with reckless disregard for human life, such that a rational
trier of fact could find beyond a reasonable doubt that defendant
remains guilty of felony murder under section 189, as amended
effective January 1, 2019. As we have found sufficient evidence
to support this finding, we need not reach defendant’s contention
that there was insufficient evidence to support the trial court’s
finding that defendant was a direct aider and abettor who had
acted with the intent to kill, or defendant’s contention that the
court’s order cannot be affirmed on the basis of the prosecutor’s
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theory of implied malice murder. (See People v. Lopez (2018) 5
Cal.5th 339, 354.)
DISPOSITION
The order of February 25, 2022 denying defendant’s section
1172.6 petition is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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