Opinion
B326072
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCEL MACKABEE, Defendant and Appellant.
Barbara A. Smith, 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, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. NA089655, James D. Otto, Judge.
Barbara A. Smith, 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, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
MORI, J.
In 2013, a jury convicted defendant and appellant Marcel Mackabee of first degree murder and found true a special circumstance allegation that the murder was committed during the commission of a robbery. Mackabee appeals from the denial of his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6) following an evidentiary hearing. The trial court found the prosecution met its burden of showing beyond a reasonable doubt that Mackabee was liable under a still-valid theory of murder, as he was a major participant in the robbery who acted with reckless indifference to human life. We affirm.
All subsequent statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence and Conviction
Our summary of the facts is taken from the opinion of Mackabee's direct appeal following his conviction, People v. Mackabee (June 20, 2014, B250143 [nonpub. opn.]), which affirmed the judgment. We do not rely on the facts in resolving this appeal.
In March 2011, Philip Victor Williamson was found in an alley in Long Beach, gasping for breath and bleeding from a gunshot wound to the back of his head. He was not wearing pants and had no identification or keys. He was rushed to the hospital but soon died. A police investigation revealed Williamson trafficked in marijuana, and a few days before his murder, he had large quantities of cash and marijuana in his home.
A police detective went to Williamson's apartment in Beverly Hills. The apartment was locked, and there were no signs of forced entry. The detective found small amounts of marijuana and about $144 in cash. The detective also found a 7-Eleven receipt with a timestamp of around noon from the day of the murder. The items listed in the receipt were in the home. The detective obtained surveillance video from the 7-Eleven and saw a man who looked like Mackabee purchase the items and leave in a dark sports utility vehicle (SUV). Cellphone records later revealed Mackabee's phone was used in Beverly Hills around noon the day of the murder and in Long Beach that evening.
The detective learned Mackabee's wife had a black Toyota 4Runner registered under her name. Twelve minutes before police were dispatched to the alley where Williamson was found, the 4Runner was recorded nearby. The police froze Mackabee's wife's bank accounts, believing they might hold the missing money. Soon thereafter, they observed her passing tens of thousands of dollars in cash to a woman in a parking lot. After impounding the 4Runner as part of the investigation, the detective noticed that its entire interior had been changed.
At trial, the prosecution presented evidence that Mackabee admitted his involvement in Williamson's murder. First, the prosecution relied on the preliminary hearing testimony of Mackabee's uncle Ronnie Turner, who died before trial. Mackabee admitted to his uncle that he made a plan to rob Williamson of his money and marijuana with two accomplices. During the robbery, one of Mackabee's companions shot Williamson while they were in the 4Runner, and Williamson's body was dumped in the alley in Long Beach. Mackabee then returned to Williamson's apartment and took marijuana, money, and a safe. Ronnie Turner's credibility was challenged on multiple grounds. On cross-examination, he admitted contacting the police after his son, Chevez Turner, had been detained for failing to speak with the police about Williamson's murder. He also admitted he had been convicted of a felony and acknowledged some inconsistencies in his account of what Mackabee told him.
As evidence of Mackabee's admissions, the prosecution also relied on two recorded police interviews of Chevez, who asserted his right against self-incrimination at trial and declined to answer certain questions. Mackabee allegedly told Chevez that he and two other men met Williamson to rob him of 10 pounds of marijuana. However, one of the accomplices "'"wowed" out'" and shot Williamson. Mackabee also told Chevez that his companions loaded Williamson's body into the 4Runner and Mackabee drove to an alley in Long Beach where they dumped the body. In another interview, Chevez stated that Mackabee told him a body had been in the 4Runner and there might be blood left in the vehicle. According to Chevez, a few days after leaving the 4Runner in Chevez's garage, Mackabee returned and removed the entire interior of the 4Runner and replaced it with new parts.
Because Ronnie and Chevez share the same last name, we will refer to them by their first names for clarity.
Michelle Morris, Chevez's wife, was also interviewed by police. She told them she overheard Mackabee tell Chevez the incident started in Williamson's house. According to Morris, Mackabee said he and his two companions planned to buy marijuana but the deal went bad and one of the accomplices shot Williamson. Mackabee stated the men then put Williamson's body into the 4Runner and drove it elsewhere.
A friend and co-worker of Chevez's, Jerome Webster, contacted the police, informed them Chevez told him about the murder, and asked about a reward. Chevez allegedly told Webster that Mackabee said Williamson was showing off $300,000 in cash and Mackabee came back with two other people to rob him. Mackabee further stated Williamson was killed in Long Beach and dumped in an alley.
Testifying in his defense, Mackabee admitted he was the only person that drove the 4Runner on the day of the murder. He further admitted he and Williamson were friends, smoked marijuana, and spent hours playing video games in Williamson's apartment together that day. He denied any involvement in the murder and claimed he left by himself to his aunt's house in Long Beach.
Mackabee was found guilty of murder. The jury found true the special circumstance allegation the murder was committed while Mackabee was engaged in the commission of a robbery (§§ 211, 212.5), and further found true the murder was committed with a firearm (§ 12022, subd. (a)(1)). Mackabee was sentenced to life imprisonment without the possibility of parole. His conviction was affirmed on direct appeal. (People v. Mackabee, supra, (June 20, 2014, B250143 [nonpub. opn.].)
The procedural history from the post-conviction proceedings is taken in part from this Court's prior opinion in People v. Mackabee (April 12, 2022, B306125 [nonpub. opn.]).
In April 2018, Mackabee filed a habeas petition in the trial court, contending the jury's robbery-murder special circumstance finding was invalid because the trial record did not have substantial evidence showing he acted with reckless indifference to human life. The court denied the petition.
In April 2019, Mackabee filed a habeas petition in this court, again contending the special circumstance finding was invalid because the trial record lacked substantial evidence showing he acted with reckless indifference to human life. The petition was summarily denied for failure to state a prima facie case for relief.
C. Initial Section 1172.6 Petition and Prior Appeal
In November 2019, Mackabee filed a petition for resentencing under section 1172.6, asserting he could not be convicted of felony murder after Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) made changes to the law because he was not a major participant in the robbery and did not act with reckless difference to human life. The trial court denied the petition, finding Mackabee was "a major participant based on the conviction and acted with reckless indifference to human life."
Mackabee appealed the order, and we reversed. We concluded the trial court erred by evaluating the trial evidence at the prima facie stage. We further disagreed with the Attorney General's argument that the court's ruling was proper in light of the orders denying Mackabee's habeas petitions because the issues differed. The matter was remanded to the trial court with directions to issue an order to show cause.
D. Evidentiary Hearing and Present Appeal
The trial court held an evidentiary hearing in October 2022. The prosecution relied on the evidence in the trial record. Neither side presented any live testimony.
After taking the matter under submission, the trial court issued an order denying Mackabee's petition. The court determined he was the ringleader responsible for planning the robbery, he drove his wife's 4Runner to the place where Williamson's body was dumped, he knew the robbery involved a grave risk of death, and accordingly, he employed two accomplices to assist him. The court found beyond a reasonable doubt that Mackabee was a major participant who acted with reckless indifference to human life.
Mackabee timely appealed.
DISCUSSION
The Legislature enacted SB 1437 to clarify the felonymurder rule and eliminate the natural and probable consequences doctrine "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." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957, 959.) SB 1437 also added what is now section 1172.6, providing a procedure for individuals convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief by petitioning the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).)
If a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold a hearing, where "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." (§ 1172.6, subd. (d)(3).) The court may consider evidence admitted at any prior hearing or trial that is admissible under current law, or any new or additional evidence submitted by the parties. (§ 1172.6, subd. (d)(3).) The trial court acts as an independent factfinder and determines whether the prosecution has met its burden. (People v. Ramirez (2021) 71 Cal.App.5th 970, 984.)
B. Sufficiency of Evidence
Mackabee contends there was insufficient evidence to support the trial court's denial of his section 1172.6 petition regarding Willamson's murder. We disagree.
As with the prior appeal from the order denying Mackabee's 1172.6 petition at the prima facie stage, the People assert this court has already considered the claim that the trial record contained insufficient evidence to support a finding that Mackabee was a major participant in the robbery who acted with reckless indifference for human life in denying his habeas petition. The People cite People v. Ramos (1997) 15 Cal.4th 1133, 1160-1161, for its general discussion of the doctrine of law of the case, but despite our prior opinion rejecting the People's argument that the doctrine applied to Mackabee's 1172.6 petition (People v. Mackabee, supra, (April 12, 2022, B306125 [nonpub.
1. Standard of Review
On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court's factual findings for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; People v. Williams (2020) 57 Cal.App.5th 652, 663.) "[W]e 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, 713.)
2. The Banks and Clarks Factors
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), the California Supreme Court set forth factors relevant to determining whether a defendant is a major participant in a felony who acted with reckless indifference to human life.
The Banks factors are relevant to deciding "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant." (Banks, supra, 61 Cal.4th at p. 794.) The factors include: "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 opn.]), the People do not offer any analysis or argument to show the doctrine applies in this matter. (See People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [failure to present "reasoned argument and analysis" forfeits issue on appeal]; see also Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6 ["the summary denial of a habeas corpus petition does not establish law of the case and does not have a res judicata effect in future proceedings"].) 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?" (Id. at p. 803, fn. omitted.)
The Clark factors are relevant to determining whether a defendant acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 618-623.) 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?" (In re Scoggins (2020) 9 Cal.5th 667, 677, citing Clark, at pp. 618-623.) At its core, "[r]eckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death'" (In re Scoggins, at p. 676, quoting Tison v. Arizona (1987) 481 U.S. 137, 157 (Tison), and "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the [appellant] does not specifically desire that death as the outcome of his actions." (Clark, at p. 617.)
No single Banks or Clark factor is determinative-or even necessary. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp. 618, 621-623.) Instead, courts are to assess the totality of a defendant's culpability within a "spectrum" established by two United States Supreme Court cases. On one end is Enmund v. Florida (1982) 458 U.S. 782, in which the defendant was the classic getaway driver who was a "'minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.'" (Banks, at p. 800.) On the other end of the spectrum is Tison, supra, 481 U.S. 137, in which the defendants helped convicted murderers escape from prison, provided weapons, and stood by as their confederates debated killing, then killed, an innocent family of four. (Banks, at pp. 801-803; People v. Strong (2022) 13 Cal.5th 698, 705 [discussing the Tison-Edmund spectrum of culpability].)
3. Substantial Evidence Supports the Trial Court's Finding that Mackabee was a Major Participant in the Robbery Who Acted with Reckless Indifference for Human Life a. Major Participant There is substantial evidence indicating Mackabee was the mastermind behind the criminal enterprise that resulted in Williamson's death. Mackabee befriended Williamson, and after Williamson showed Mackabee a large amount of cash, Mackabee set in motion the plan to rob Williamson. (See People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385 [defendant's act of luring the victim to the scene of the crime was "'critical to the robbery's success'"].) Mackabee himself played a direct role in Williamson's death, as after lethal force was used, Mackabee drove the 4Runner with Willaimson inside and together with his accomplices dumped him in the alley without pants or identification while still alive. (See Banks, supra, 61 Cal.4th at p. 803.) Mackabee then continued to perpetrate the crime; he returned to Williamson's apartment to steal money, marijuana, and a safe. He later attempted to cover up and destroy evidence of the robbery and murder by changing the interior of his wife's SUV. His conduct following the shooting does not reflect disapproval or disavowal of the shooter's actions.
Mackabee primarily contends the trial court's finding was unsupported by substantial evidence "because there was too little known about the most central events of where and what happened" to analyze the relevant factors. However, a defendant "does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Substantial evidence supports the trial court's finding that Mackabee was a major participant in the robbery.
b. Reckless Indifference to Human Life
Applying the Clark factors, and considering the totality of the circumstances, substantial evidence also supports the finding that Mackabee acted with reckless indifference to human life. The major participant and reckless indifference factors "significantly overlap" in that "'the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at pp. 614-615, quoting Tison, supra, 481 U.S. at p. 153.) Consequently, the trial court's factual finding that Mackabee was a major participant as the ringleader of the robbery is supportive of the court's additional factual finding that Mackabee acted with reckless indifference to human life. (People v. Cody (2023) 92 Cal.App.5th 87, 113; see also Tison, supra, 481 U.S. at p. 158, fn. 12 [a defendant's status as a major participant in the underlying felony will "often provide significant support for [ ] a [reckless indifference] finding"].)
Furthermore, Mackabee's plan was to rob a drug trafficker of a significant amount of money and drugs. (See In re McDowell (2020) 55 Cal.App.5th 999, 1013 [home invasion robbery of a drug dealer posed obvious risk of lethal violence evidencing reckless indifference to human life].) It was reasonable for the trial court to infer Mackabee knew the risk inherent in doing this, and thus, recruited two co-perpetrators to assist him. Mackabee further admitted he interacted with Williamson for hours on the day of the robbery and murder. But there is no evidence Mackabee, as the robbery's mastermind, considered calling off the robbery or that he did anything to minimize the risk of violence. (Id. at p. 1014 ["A defendant is more culpable when he does nothing to avoid violence despite having time to reflect and consider his options"].)
Additionally, Mackabee's conduct after the shooting weighs heavily in favor of finding Mackabee acted with reckless disregard for Williamson's life. Although Williamson was grievously injured, Mackabee drove Williamson to the alley and took part in dumping him there. (See People v. Garcia (2020) 46 Cal.App.5th 123, 148 ["Presence at the scene of the murder is a particularly important aspect of the reckless indifference inquiry"].) Mackabee abandoned Williamson while he was still alive, bleeding, and gasping for air. Mackabee made no attempt to aid Williamson or summon help-even anonymously. (See, e.g., Clark, supra, 63 Cal.4th at p. 619; In re Parrish (2020) 58 Cal.App.5th 539, 544 [reckless indifference shown by failure to pause to aid or comfort victim].) It could be reasonably inferred Mackabee was aware Williamson was still alive but wanted him to die or cared only about completing the robbery. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) Indifferent to the fatal wounds inflicted upon Williamson, Mackabee returned to Williamson's house to steal the drugs and money before later destroying evidence. (See People v. Mitchell (2022) 81 Cal.App.5th 575, 593 [defendant was recklessly indifferent to human life where after victim was shot, defendant worked to complete robbery, not to care for the victim]; see also People v. Douglas (2020) 56 Cal.App.5th 1, 10 [defendant "displayed no interest in moderating violence or in aiding his bloody and suffering victim," and instead picked his pocket].)
Mackabee was thus ineligible for resentencing under section 1172.6. Only where "'"upon no hypothesis whatever is there sufficient substantial evidence to support the [judgment]"'" is reversal warranted. (People v. Cravens (2012) 53 Cal.4th 500, 508.) Mackabee does not meet this standard.
DISPOSITION
The order is affirmed.
We concur: COLLINS, Acting P. J., ZUKIN, J.