Opinion
F085888
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. KAHLID RAMSEY, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Madera County No. MCR056744A. Ernest J. LiCalsi, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P. J.
Appellant Khalid Ramsey appeals following the denial of his petition for resentencing under Penal Code section 1172.6. Appellant contends the evidence submitted in this case cannot support the trial court's finding after an evidentiary hearing that appellant is ineligible for relief and the trial court applied the wrong standards when reaching its decision. For the reasons set forth below, we affirm.
Undesignated statutory references are to the Penal Code.
Appellant's January 2019 petition was filed under former section 1170.95. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's criminal case arose out of a 2017 robbery and murder primarily involving appellant, James Ridge, and Jorge Murrillo. Appellant and Murrillo were both charged with murder committed during the course of a felony. Appellant pleaded guilty to one count of first degree murder in 2018. Under the terms of the plea agreement, appellant agreed to testify truthfully in Ridge's trial in exchange for a stipulated sentence of 18 years in prison instead of a term of 25 years to life.
Although appellant testified at Ridge's trial, and Ridge was convicted, it appears the trial court found some portions of appellant's testimony to be materially false, resulting in the district attorney seeking to deny appellant's request for the 18-year sentence. Appellant was eventually sentenced to a term of 25 years to life.
In January 2019, appellant requested resentencing under former section 1170.95 (now § 1172.6). Through counsel, appellant alleged that he had been charged with murder in a manner that allowed the prosecution to proceed under a felony murder or natural and probable consequences theory, he had accepted a plea to first degree murder, and he could not be convicted of murder based on the changes to sections 188 and 189, as made retroactively effective on January 1, 2019. Appellant argued he was not the actual killer in the underlying murder, did not have an intent to kill, and was not a major participant acting with reckless indifference to human life.
The trial court ultimately held an evidentiary hearing on appellant's petition. At this hearing, both parties submitted based on their prior briefing, and the court took the matter under submission in order to review transcripts from appellant's preliminary hearing and his testimony in Ridge's trial, both of which were subject to an unopposed motion for judicial notice.
This court first recounts the evidence submitted before summarizing the trial court's ruling.
The Trial Evidence
The primary version of events presented to the trial court came from the court reporter's transcript of Ridge's murder trial. At that trial, appellant testified under a plea agreement that required he testify truthfully in exchange for a lesser sentence. Appellant was asked about his relationship to the other participants and about his recollection of the events leading to the murder of Latisha Logan.
Appellant stated that he and Ridge were cousins and that they, along with Murrillo, planned and executed a robbery that ended with Logan's murder. Appellant admitted to providing the firearm used in the murder after Ridge contacted him on Facebook and requested a gun. After the two talked by video, appellant went with a friend to pick up Ridge. At that time, appellant had possession of the gun, which only had two bullets in the magazine.
When appellant and Ridge met up, Ridge told appellant he was in some trouble. Around that time, Ridge received a call from Murrillo asking if Ridge would participate in a robbery. Appellant offered and eventually took Ridge to meet with Murrillo and Elisha Jones regarding the offer.
At that meeting, appellant handed the gun to Ridge. Appellant, Ridge, Murrillo, and Jones began discussing a potential robbery. Hearing the plan, appellant agreed to participate, stating he was "not going to let [Ridge] go alone" because appellant "felt for [Ridge's] safety." Around the same time, Jones identified the target of the robbery, explaining to the group there should only be one person at the home they would rob and that this person had a credit card. Murrillo noted another person, Logan, could also be present.
Appellant, Ridge, and Murrillo agreed to take the gun to the robbery. In this conversation, appellant told the group, "If you want[ ] to take the gun, you need more ammunition." Murrillo stated he had ammunition, and Ridge stated they should reload the gun. Ridge loaded the firearm, and appellant watched as Ridge racked the weapon, so it was ready to fire. At this point, Jones left, and appellant knew they were "gong to rob someone and get someone's credit card."
Appellant travelled with Ridge and Murrillo to the robbery site. During the drive, appellant agreed to be the lookout. Appellant was going to look for the police and honk the horn if he saw someone.
When they arrived at the location, appellant stayed in the car. From there he heard screaming and a gunshot before seeing Ridge and Murrillo running back to the car. The group fled the scene, and during that time, appellant learned that Ridge had shot someone. At one point, the group stopped the car, and appellant hid the gun under its hood before they continued driving. When the group reached a safe place, appellant unloaded the gun and placed it in a duffel bag. Appellant stated he heard Ridge claim the shooting was an accident.
Appellant eventually learned that the victim of the shooting was Jones's mother.
On cross-examination at the trial, appellant was asked repeatedly whether he had actually left the car that night. Appellant consistently claimed he had not left the car. Appellant also denied that his role as a lookout was to yell if there was trouble, as opposed to honking the car horn.
Preliminary Hearing Evidence
The preliminary hearing transcript provided a different and limited version of events. The transcript described an interview with the police that occurred before appellant reached his agreement to testify truthfully. In that interview, appellant admitted providing a gun to Ridge and Murrillo and doing so knowing that Jones had set up a robbery and the gun was needed for the crime. But appellant claimed he did not travel with Ridge and Murrillo to the site of the robbery and only heard about the events after Ridge returned the gun the next day.
The Trial Court's Ruling
The trial court reviewed the transcripts in the context of statements made by appellant and entered a ruling denying the request for resentencing. The court explained its ruling as follows:
"In this case, [appellant] was not the actual killer, so the issue is whether the People could prove beyond a reasonable doubt that [appellant] could be convicted of murder as a major participant, whether he acted with reckless indifference to human life. And with respect to determining whether he was a major participant, I considered the following factors: [Appellant] played a significant role in the planning of the crime that led to the victim's death. Although [appellant] was not involved in the original plan to commit the robbery, [appellant] was involved in the significant planning before the robbery. [Appellant] provided the gun. [Appellant] was involved in the conversations that took place between defendants Ridge and Murillo and Elijah Jones. [Appellant] transported defendant Ridge to defendant Murillo. The defendants, including [appellant], um, then went to the location of the crime.
"Now, because I cannot consider the hearsay, it is unclear whether [appellant] was actually at the exact location of the murder, but what is clear, he was extremelyclose to the actual scene of the murder. The-I believe that the-he was right there when it happened. Um, [appellant] says he wasn't but what the Court can gather is that he gave three statements. First he says he was the lookout-in all three he says he was the lookout. That's inconsistent with the whole purpose of why he said he was going to be there. He said he was going to be there to provide safety for his cousin, Mr. Ridge, because this robbery was dangerous, and he was worried about Mr. Ridge's safety. So why would he be the lookout? So that's inconsistent. The-he said he was supposed to: Number one, whistle; number two, then yell; and number three, then honk the horn. So he was very close-significantly close so that they could hear him. [Appellant] brought the gun. He transported the gun to the location. He had total control of the gun at all times until he handed the gun to Mr. Ridge at the location of the robbery. He had control of the gun after the killing. [Appellant] was well aware of the dangers posed by the firearm. He not only supplied the firearm, but he had fired that very firearm just days before the murder. He was well aware of its fire power. [Appellant] was well aware of the dangers posed by the robbery. In fact, he said he decided to go along because Mr. Ridge was the shooter and he was fearful for Mr. Ridge's safety. He was even-he even said at one time, this is very telling, he told Mr. Ridge that the gun only had two bullets in it, and since they were going to do a robbery, they needed more than two bullets to do a robbery. That, to me, is extremely significant. [Appellant] was in a position, um, to facilitate and prevent the death. It was his gun. He retrieved it from under the hood of the car, and he gave it to Ridge. He could have, at any time, refused-he could have called it off. He could have not given it to Ridge. He could have said, 'This is my gun. I'm not going to let you do it,' but he didn't. What he did say is, 'You need to put more bullets in the gun,' and then, 'here's the gun.' He was a major participant.
"As far as the reckless indifference to human life, the [appellant] knew that the firearm was going to be used. He supplied it. Did [appellant] know that a lethal weapon was likely to be used? Yes. He said, 'You need more than two bullets.' Did [appellant] know that a lethal weapon was used? Yes. In fact, he took control over the firearm afterwards, and he had the gun, and he was caught with the gun the next day. He knew that his firearm was the only firearm that was going to be used. As I had mentioned, he was either at the scene-the exact scene of the killing or he was very, very close to the scene of the killing. He traveled with the other co-conspirators to the location. He did have the opportunity to stop the killing. He could have said, 'This is my gun/ You can't use it.'
"While the actual robbery-or attempted robbery/killing did not last long, leading up to that, the-the actual planning of the robbery and transportation, the travel from where they traveled to and the robbery lasted at least ten minutes, and the planning lasted a significantly long time. During this time, they could have called it off; they did not. [Appellant] was completely involved during this time.
"I believe that [appellant]'s comments that you need more than two bullets to do a robbery escalated the situation. He was very much involved in the-his role was significant in the planning of this robbery in that he supplied the only firearm.
"And for the reasons I've stated as that he was a major participant, he also acted with reckless indifference to human life, and for those reasons, um, I find that the People have met their burden, and I find that the petition-[appellant]'s petition for resentencing is denied."
This appeal timely followed.
DISCUSSION
Appellant challenges the trial court's determination that he was ineligible for relief and further alleges the court applied an improper standard based on its discussion of appellant's alleged presence at the scene of the crime. Appellant challenges the conclusion he was a major participant in the underlying felony who acted with reckless indifference to human life. In addition, appellant contends the trial court applied an incorrect legal standard based on its comment that appellant was likely near or very near the scene of the crime. For the reasons set forth below, we conclude the trial court's comment does not demonstrate it applied an improper legal standard. We further find substantial evidence supports the trial court's determination appellant was a major participant acting with reckless indifference to human life.
Standard of Review and Applicable Law
Under the resentencing statute, a "person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime ... may file a petition with the court that sentenced the petitioner to have the petitioner's . . . conviction vacated and to be resentenced . . . when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime ....
"(2) The petitioner ... accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder ._
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
If the petitioner makes a prima facie showing of eligibility, as occurred here, the trial court is required to issue an order to show cause and to hold a hearing to determine whether to vacate the conviction and resentence the petitioner. (§ 1172.6, subds. (c), (d)(1).) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (d)(3).)
Upon an appeal following an evidentiary hearing denying relief, "[w]e review the trial judge's factfinding for substantial evidence. [Citation.] We" 'examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.'" [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (People v. Clements (2022) 75 Cal.App.5th 276, 298, third bracketed insertion in original.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." '" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
"Murder is the unlawful killing of a human being ... with malice aforethought." (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) "Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Id., subd. (a)(2).) "Malice shall not be imputed to a person based solely on his or her participation in a crime." (Id., subd. (a)(3).)
"All murder ... committed in the perpetration of ... robbery ... is murder of the first degree." (§ 189, subd. (a).) A participant in a robbery "in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (Id., subd. (e).)
The Trial Court Applied The Correct Standard
We begin with appellant's claim that the trial court applied the wrong standard in evaluating appellant's petition. Appellant focuses upon the trial court's statement that appellant "was extremely close to the actual scene of the murder." The trial court's conclusion came from a belief it was unclear given the testimony presented, where appellant actually was during the crime. Appellant contends the trial court reversibly erred in analyzing the case this way because there was no other evidence upon which the court could rely to determine where appellant was located. To appellant, this discussion shows the trial court applied an incorrect standard that relied on speculation rather than evidence to convict.
We do not agree. The full analysis provided by the court, which we quoted above, clearly follows the guidance provided in cases such as People v. Banks (2015) 61 Cal.4th 788 (Banks) and In re Scoggins (2020) 9 Cal.5th 667, both of which are discussed in detail below. Further, the court made no indication that it was lowering the burden of proof required to deny appellant's petition or otherwise applying an incorrect standard of law. (See People v. Davis (1996) 50 Cal.App.4th 168, 172 ["The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record."].)
Instead, the trial court weighed the evidence presented on a discrete point based upon the court's impression that the evidence presented included contradictory evidence on appellant's role in the crime and exact location during the robbery. It is the trial court's responsibility to weigh credibility and resolve factual disputes in the evidence. (See People v. Duchine (2021) 60 Cal.App.5th 798, 815 ["the time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage"].) Whether appellant agrees or disagrees with the trial court's analysis is unrelated to whether the court applied the correct standard. Rather, such disputes go to whether substantial evidence supports the trial court's conclusion. We therefore find the trial court did not apply an incorrect standard and proceed to review the court's ruling for substantial evidence.
Substantial Evidence Supports the Trial Court's Order
As the trial court recognized, appellant's eligibility for resentencing turns on whether or not the evidence shows he was a major participant in the underlying felony who acted with reckless indifference to human life. Although the analysis overlaps, we first consider whether substantial evidence supports the conclusion appellant was a major participant in the robbery before considering whether substantial evidence supports the conclusion appellant acted with reckless indifference to human life. We conclude such evidence exists.
Major Participant Finding
As noted above, under the current statutory scheme, "[d]efendants 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 ... Section 190.2'-that is, the statute defining the felony-murder special circumstance." (People v. Strong (2022) 13 Cal.5th 698, 708, first bracketed insertion added.)
To be a major participant in the underlying felony, "a defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.) "The ultimate question pertaining to being a major participant is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major" [citations]." '" (People v. Clark (2016) 63 Cal.4th 522, 611.) The following factors may be relevant to a determination of whether a defendant was a major participant in a felony murder: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, at p. 803, fn. omitted; accord, Clark, at p. 611.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, at p. 803.)
Citing primarily to Banks, appellant argues the evidence does not support a major participant finding for most of the relevant questions. Appellant also relies on In re Ramirez (2019) 32 Cal.App.5th 384 to support a claim that merely providing weapons for a general crime is not major participation with reckless indifference to human life. Upon review of the relevant testimony, we disagree.
In Banks, our Supreme Court recognized the evidence in that case supported a conclusion that the defendant was acting as a getaway driver, but expressly noted there was no evidence establishing the defendant's role in planning the underlying robbery, procuring weapons, or several other factors. (Banks, supra, 61 Cal.4th at p. 805.) In other words, the defendant could be said to be nothing more than a "getaway driver." (Ibid.) Such a limited role was insufficient to show the defendant was a major participant in the underlying felony.
In In re Ramirez, this court found the evidence in that case was insufficient to support a finding Ramirez acted with" 'reckless indifference to human life and as a major participant'" as was required to affirm Ramirez's felony murder conviction. (In re Ramirez, supra, 32 Cal.App.5th at p. 393.) Ramirez had provided weapons, although at a time no crime was committed, and agreed to a plan that involved "jack[ing]" some unknown victim during the evening. (Id. at p. 404.) However, there was no evidence that Ramirez participated in any meaningful planning of the event, that violence had been contemplated, or that Ramirez did anything other than acquiesce to the conduct of others when violence arose. (Ibid.)
Here, however, appellant's role was much greater. Appellant actively inserted himself into the robbery planning based on his connection with Ridge. He was present for all major discussions and activities and had a substantial role in getting all coconspirators together to meet and discuss the planning of the crime. In addition, appellant provided the weapon that would be used to commit the crime and encouraged his coconspirators to prepare the weapon for use in the crime by ensuring it was properly loaded. Indeed, appellant admitted to providing the gun because it was needed and told others that if they were going to use the weapon, it needed more bullets. Once the offence was committed, appellant fled with his coconspirators and aided in hiding the weapon used in the murder. Appellant's substantial conduct throughout the course of the robbery is sufficient evidence to support the trial court's conclusion that appellant was a major participant in the underlying felony and not just an unknowing provider of weapons.
Reckless Indifference to Human Life Finding
We next turn to whether appellant acted with reckless indifference to human life. Our Supreme Court summarized the relevant law as part of In re Scoggins, supra, 9 Cal.5th 667. The general analytical framework is well settled, but turns on a "factintensive, individualized inquiry" for the case. (Id. at p. 683.) We therefore provide a general review of the analytical framework before considering the facts of this case.
The reckless indifference analysis considers the totality of the circumstances surrounding the crime to determine whether the accused acted in a manner that created a grave risk of death. As explained by our Supreme Court, in general, reckless indifference to human life "is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.' [Citation.] Examples include 'the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property.' [Citation.] Reckless indifference '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.'" (In re Scoggins, supra, 9 Cal.5th at pp. 676-677.) However," '[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life; 'only knowingly creating a "grave risk of death"' satisfies the statutory requirement.
[Citation.] Notably, 'the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used' is not sufficient to establish reckless indifference to human life." (Id. at p. 677, first and third bracketed insertions added.)
The test considers the facts from both objective and subjective perspectives, considering both as relevant elements in the analysis. "As to the subjective element, '[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.' [Citations.] As to the objective element,' "[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." '" (In re Scoggins, supra, 9 Cal.5th at p. 677, second bracketed insertion added.)
When considering the evidence in its totality, from both objective and subjective perspectives, our Supreme Court has identified several questions that explore relevant factors in the analysis. No one of these questions is dispositive of the issue, nor is any necessarily sufficient to prove reckless indifference to human life existed. However, given their usefulness, we begin by reviewing them in the context of the evidence of this case.
The questions are: "Did the defendant use or know that a [weapon] 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?" (In re Scoggins, supra, 9 Cal.5th at p. 677.) We therefore consider the facts of this case in light of these guiding questions to determine whether the evidence supports a conclusion that appellant acted with reckless indifference to human life.
An additional potential factor identified in In re Moore (2021) 68 Cal.App.5th 434, 439, is a defendant's youth at the time of the offense. Neither side argues this factor is relevant.
As the trial court noted, there was evidence supporting a finding of reckless indifference attached to several of these questions. Concerning weapons and knowledge thereof, appellant not only provided the weapon used but ensured it was ready for use by encouraging the group get additional ammunition. Appellant was heavily involved in planning the crimes and thus had multiple opportunities to oppose the plan or limit the chances for violence. Instead, appellant aided in bringing all participants together, encouraged the use of a weapon in the crime, traveled to the site of the robbery at a minimum to act as a lookout, and sought to hide the weapon after it was used in the crime rather than cease participation and aid the victim.
Reviewing the facts presented, this court finds substantial evidence in support of the trial court's ruling. Appellant's role in the planning the robbery, his direct decision to provide the weapon and to ensure his coconspirators increased the ammunition available to ensure it could be used properly, his actions as a lookout, his conduct in assisting with the plan even after the shooting occurred, and his attempt to hide the weapon after it was used all support the conclusion appellant acted with reckless indifference to human life.
Like the trial court, we find particularly important the fact that appellant encouraged his coconspirators to obtain more bullets for the gun. As noted, reckless indifference" '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.'" (In re Scoggins, supra, 9 Cal.5th at pp. 676-677.) While appellant may not have desired or known a death would occur, his actions in ensuring the gun was not only present but prepared to be used to its full extent encompassed a willingness to assist another in killing, as opposed to a mere interest in conducting a robbery.
DISPOSITION
The order denying appellant's petition is affirmed.
WE CONCUR: SMITH, J. DE SANTOS, J.