Opinion
A161197
10-18-2021
THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD LUCKETT, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 171185
Chou, J. [*]
In 2015, a jury convicted Charles Edward Luckett of first degree murder with a robbery-murder special circumstance and found he personally used a firearm in the commission of the offense (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A), 12022.5, subd. (a)). The trial court imposed a lengthy prison sentence and, among other things, ordered Luckett to pay a $250 probation investigation fee (former § 1203.1b) and other fines, fees, and assessments.
Undesignated statutory references are to the Penal Code. We incorporate by reference our unpublished opinion in Luckett's direct appeal, People v. Luckett (Apr. 10, 2017, A145856) (Luckett I).
In 2019, Luckett petitioned to vacate his murder conviction and for resentencing pursuant to section 1170.95. The trial court appointed counsel, issued an order to show cause, and denied the petition on the merits. It concluded the evidence established, beyond a reasonable doubt, that Luckett aided and abetted the attempted robbery with the intent to kill, and that he was a major participant who acted with reckless indifference to human life.
Luckett challenges the denial of his section 1170.95 petition. Luckett also urges us to strike the probation investigation fee as well as other fines, fees, and assessments imposed by the court. We affirm the denial of the section 1170.95 petition. We strike the portion of the judgment imposing the probation investigation fee pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess., Stats. 2020, ch. 92, § 2; Assembly Bill 1869) but decline to address the other fines, fees, and assessments.
BACKGROUND
The facts are taken from our unpublished opinion in Luckett I and from trial transcripts submitted in connection with the section 1170.95 petition.
A.
Trial and Direct Appeal
On a July 1993 evening, 39-year-old Luckett and another man came into an Oakland restaurant and ordered dinner. The waiter delivered the meals. An hour and a half later, one of the men complained about the food and demanded to see the manager. The manager came to the table; then one of the men called to the waiter. As the waiter approached, the man lifted his shirt and displayed a gun. The waiter ran from the restaurant and called 911.
At that point, Luckett stood up and yelled" 'This is a robbery. . . . Everybody get down.'" He brandished a gun. Luckett's cohort grabbed the manager by the neck and-at gunpoint-moved him toward the back of the restaurant where the safe was located. As the manager struggled to open the safe, the cohort said," 'Open the safe, open the safe.'" Luckett demanded:" 'Hurry it up.'" Then Luckett exhorted his companion to" 'just bust'" the manager and to" 'waste him.'" Customers interpreted Luckett's comments as a directive to kill the manager. Three shots were fired, all of which hit the manager. Luckett and his cohort ran from the restaurant. Later, police arrived and found the manager face down on the floor in front of the safe, dead.
Two decades later, following a match of his DNA and a cold case investigation, the prosecution charged Luckett with special circumstance first degree murder (§§ 187, subd. (a), 190.2, subd. (a)(17)(A)) and alleged Luckett personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). In 2015, a jury convicted Luckett of murder and found true the robbery-murder special circumstance and firearm enhancement allegations. The trial court sentenced Luckett to life without the possibility of parole (LWOP) on the murder conviction, plus an additional five-year term for the firearm enhancement. And as relevant here, the court imposed a $250 probation investigation fee under former section 1203.1b and other fines, fees, and assessments.
After Luckett was convicted, the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarify what "major participant" and "reckless indifference to human life" mean for purposes of the felony-murder special circumstance statute, section 190.2, subdivision (d). (See In re Moore (2021) 68 Cal.App.5th 434.)
Luckett appealed. He challenged the denial of a pretrial motion and raised claims of evidentiary and instructional error. We affirmed the judgment of conviction and remanded for correction of clerical errors in the abstract of judgment. (Luckett I, supra, A145856.) In 2017, the trial court issued an amended abstract of judgment.
B.
Section 1170.95 Proceeding
In 2019, Luckett petitioned to vacate his conviction and for resentencing pursuant to section 1170.95. The trial court appointed counsel, made a prima facie finding, and issued an order to show cause. At a hearing on the petition, the parties submitted on the pleadings and the existing record. The court issued a thorough order denying the petition on the merits. It noted that while the evidence tended to show Luckett was not the shooter, the evidence established beyond a reasonable doubt that Luckett aided and abetted the attempted robbery with the "direct intent to kill" and "that he was a major participant who acted with reckless indifference to human life."
The court summarized the trial testimony: Luckett and his cohort "came into the restaurant at a time where they would be able to stay until the restaurant closed. . . . [T]hey made some effort to have contact with the manager, enough to . . . learn who the manager was. They were both armed with guns. [¶] And when the moment of truth, so to speak, came, one man stood up after they lured the manager to the table, grabbed the manager by the neck and marched him to the office at gunpoint while [Luckett] stood up and held the entire crowd at bay ordering people to the floor, brandishing a weapon." The prosecution witnesses "were very clear that both men had guns and used the guns in the incident."
The court noted that two prosecution witnesses testified Luckett directed his cohort to" 'just bust'" the manager and another prosecution witness heard Luckett tell his cohort to" 'Go and waste him' or 'Buff him', or 'Do him, '" which that witness "understood to mean kill" the manager. A fourth witness heard Luckett say," 'Well, if you are going to do it, then do it.'" All told, the prosecution offered testimony from four witnesses that Luckett exhorted his cohort to shoot and kill the manager, rendering it "close to an uncontroverted fact that this is what [Luckett] was telling the shooter." When Luckett "was aware that the manager was not producing the cash quickly enough, he didn't intervene and discourage [his cohort] from killing the manger." Instead, Luckett "directed him to kill the manager." After the shooting, Luckett and his cohort ran out of the restaurant "rather than render aid." This evidence, the court observed, indicated "planning."
The court continued: "we have a finding that the jury made with the special circumstance that Mr. Luckett . . . aided and abetted with the intent to kill or was a major [participant] who acted with reckless indifference to human life or he was the actual shooter, and I understand the case law that . . . says in light of Banks and Clark, that that finding by the jury pre-Banks does not shut the door [to section 1170.95 relief], but those cases also don't say that I'm forbidden from considering that finding of the jury, and so I'm considering that. I am also considering the finding the jury made that Mr. Luckett personally used a firearm[.]"
DISCUSSION
I.
Luckett is Not Eligible for Section 1170.95 Relief
To place the issues in context, we provide a brief overview of the legal framework.
A.
Legal Overview
Section 190.2 lists the special circumstances under which murderers and accomplices can by punished by death or LWOP. One such circumstance is when a defendant is found guilty of first degree murder committed while the defendant was engaged in, or was an accomplice in, the commission or attempted commission of a robbery. (§ 190.2, subd. (a)(17)(A).) Such a defendant can be guilty of special circumstance felony-murder only if he or she aids in the murder with the "intent to kill" (id., subd. (c)) or aids in the felony "with reckless indifference to human life and as a major participant." (Id., subd. (d); see also In re Moore, supra, 68 Cal.App.5th 434.)
Senate Bill No. 1437 (2017-2018 Reg. Sess.; Senate Bill 1437) limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957.) That legislation amended" 'the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.' [Citation.] In addition to substantively amending sections 188 and 189 . . ., Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Id. at p. 959.)
The requirements for the felony-murder special circumstance did not change as a part of Senate Bill 1437 "and are identical to the new requirements for felony-murder following the enactment" of Senate Bill 1437. (People v. Galvan (2020) 52 Cal.App.5th 1134, 1140, review granted Oct. 14, 2020, S264284.) "In both instances, the defendant must have either actually killed the victim [citations]; acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the killing [citations]; or been a major participant in the underlying felony and acted with reckless indifference to human life." (Id., at pp. 1140-1141.)
On October 5, 2021, the Governor signed Senate Bill No. 775 (2021- 2022 Reg. Sess.), which amends section 1170.95. The amended statute, which takes effect on January 1, 2022, does not affect our decision here today. In denying Luckett's section 1170.95 petition, the trial court relied solely on evidence previously admitted at trial and expressly found beyond a reasonable doubt that Luckett had the intent to kill and was a major participant who acted with reckless disregard for human life. This fully comports with the amendments made by Senate Bill No. 775. (See § 1170.95, subd. (d)(3) as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
We review the order denying the section 1170.95 petition for substantial evidence. (People v. Williams (2020) 57 Cal.App.5th 652, 663 (Williams); People v. Douglas (2020) 56 Cal.App.5th 1, 8.) "The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] . . . We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610.)
B.
Luckett Acted with Reckless Indifference to Human Life
We do not consider Luckett to be the actual killer for purposes of the section 1170.95 petition. Luckett concedes he was a major participant in the attempted robbery, but argues the evidence is insufficient to support the trial court's finding that he acted with reckless indifference to human life. We disagree.
The Attorney General suggests that the jury's felony-murder special circumstance finding precludes relief under section 1170.95 and that the proper avenue for relief for defendants in Luckett's situation is to petition for a writ of habeas corpus. This issue is before the California Supreme Court. (People v. Secrease (2021) 63 Cal.App.5th 231, review granted June 30, 2021, S268862.) We need not address this assertion as the trial court gave no preclusive effect to the special circumstance finding and instead denied the petition on the merits after reviewing the trial court record for "the circumstances under which murderers and accomplices can be punished" by LWOP. (Williams, supra, 57 Cal.App.5th at p. 663; People v. Douglas, supra, 56 Cal.App.5th at p. 8.) Although Luckett does not persuasively argue that he lacked the intent to kill, we do not reach this issue because we conclude ample evidence supports the trial court's finding, beyond a reasonable doubt, that Luckett acted with reckless indifference to human life.
"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 (2020) 9 Cal.5th 667, 676-677.) Courts analyze the totality of the circumstances to determine whether a defendant acted with reckless indifference to human life. (Id. at p. 677; In re Moore, supra, 68 Cal.App.5th at p. 447.) "Relevant 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? [Citation.]' "[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient." '" (Scoggins, at p. 677.)
Applying these factors, there can be no reasonable doubt that Luckett acted with reckless indifference to human life. Luckett used a firearm during the attempted robbery: he announced" '[t]his is a robbery, '" brandished his gun, and told the restaurant's customers to" 'get down.'" (Clark, supra, 63 Cal.4th at p. 618 [defendant's use of firearm, even if defendant does not kill the victim, "can be significant to the analysis of reckless indifference to human life"].) Luckett undoubtedly knew his cohort had a gun, because he encouraged him to use it to kill the restaurant manager.
Luckett was also physically present at the crime scene and played a crucial role in the attempted robbery and murder. (Tison v. Arizona (1987) 481 U.S. 137, 153 ["the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life"].) Luckett did not"' "act as a restraining influence on [his] murderous cohort[, ]" '" nor make an effort to minimize the risk of violence during the attempted robbery. (In re Scoggins, supra, 9 Cal.5th at pp. 677, 678.) Instead, Luckett escalated the risk of violence by exhorting his accomplice to shoot the manager. (People v. Williams (2015) 61 Cal.4th 1244, 1282 [order to use lethal force supported robbery-murder special circumstance].) Finally, Luckett fled after the shooting rather than render aid. (Williams, supra, 57 Cal.App.5th at p. 664.) Considered together, this evidence amply supports the trial court's finding that Luckett is ineligible for section 1170.95 relief because he acted with reckless indifference to human life.
Several cases support our conclusion. In People v. Bradley (2021) 65 Cal.App.5th 1022, 1036, our colleagues in Division One held that the defendant acted with reckless indifference to human life when he "actively participated in a robbery, wielded a firearm during that robbery, and was present for the shooting." Another division of this court reached a similar conclusion in In re McDowell (2020) 55 Cal.App.5th 999, 1015, concluding sufficient evidence supported the jury's reckless indifference finding where the defendant "armed himself with a knife, planned and carried out a crime with obvious risks of lethal violence, and was present at the scene but took no steps to prevent the killing." Finally, in People v. Bascomb (2020) 55 Cal.App.5th 1077, 1089-1090, the appellate court held the defendant's participation in the robbery, use of a gun, and physical presence at the shooting supported a finding of reckless disregard for human life. Luckett makes no effort to distinguish these cases.
In fact, Luckett fails "to identify a single case in which a defendant actively participated in a robbery, wielded a firearm during that robbery, and was present for the shooting, but an appellate court found insufficient evidence to support a finding that the defendant acted with reckless indifference for human life. Nor are we aware of any." (People v. Bradley, supra, 65 Cal.App.5th at p. 1036.) Instead, Luckett attempts to undermine the reliability of the witnesses who testified at trial that he directed his cohort to shoot the victim. According to Luckett, these witnesses were stressed and distracted when they heard him issue the command to use lethal force and, as a result, their "statements are to be viewed with caution."
This strategy-which misapprehends the standard of review-is not persuasive. (Williams, supra, 57 Cal.App.5th at pp. 664-665.) We cannot reweigh the evidence or reevaluate witness credibility, nor are we permitted to substitute our judgment for the trier of fact. We must review the record in the light most favorable to the judgment. (People v. Brown (2014) 59 Cal.4th 86, 105-106.) Applying that deferential standard of review, we have no difficulty concluding the evidence supports the trial court's finding, beyond a reasonable doubt, that Luckett acted with reckless indifference to human life. (People v. Morales (2020) 10 Cal.5th 76, 88.)
II.
The Probation Investigation Fee Must be Stricken
At sentencing, the court imposed a $250 probation investigation fee under former section 1203.1b. Assembly Bill 1869, which became operative while this appeal was pending, repeals the authority to collect certain court-imposed costs and fees, including the probation investigation fee at issue. (Stats. 2020, ch. 92, §§ 11, 62; § 1465.9, subd. (a).) In addition to making the unpaid balance of these court-imposed costs and fees unenforceable and uncollectible, Assembly Bill 1869 requires that any portion of a judgment imposing such costs or fees be vacated. (§ 1465.9, subd. (a); People v. Clark (2021) 67 Cal.App.5th 248, 259.)
Accordingly, we strike the portion of the judgment imposing the probation investigation fee under former section 1203.1b. (§§ 1260 [appellate court may modify a judgment "as may be just under the circumstances"]; 1465.9, subd. (a) ["portion of judgment imposing those costs shall be vacated"]; People v. Clark, supra, 67 Cal.App.5th at p. 259 [appellate court "must" grant a defendant's request to vacate "the 'portion' of a judgment imposing an outstanding, uncollectible 'balance' of indebtedness"].)
Luckett also challenges the restitution fine, court security fee, and criminal conviction assessment imposed at sentencing based on his purported inability to pay. Luckett invites us to exercise our "discretion" to consider this claim. We decline the invitation as Luckett cites no authority demonstrating the claim is cognizable in this procedural context in the absence of an ameliorative change in the law. (Williams, supra, 57 Cal.App.5th at p. 662, fn. 6 [disregarding conclusory argument unsupported by legal authority]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1206, 1207 [trial court lacked jurisdiction to modify restitution fine where the defendant had begun serving sentence and where trial court did not recall the sentence under section 1170, subd. (d)].)
DISPOSITION
The order denying the section 1170.95 petition is affirmed. The judgment is modified to strike the $250 probation investigation fee imposed under former section 1203.1b. The superior court is directed to amend the abstract of judgment to reflect this modification and to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Fujisaki, Acting P. J., Petrou, J.
[*] Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.