Opinion
B334938
09-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ZECOREY LAMONT MARCUS, Defendant and Appellant.
Sylvia W. Beckham, 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, 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NOT TO BE PUBLISHED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, No. YA071844 Hector M. Guzman, Judge. Conditionally affirmed.
Sylvia W. Beckham, 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, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
MEMORANDUM OPINION
As the parties agree and we concur that remand is necessary in this matter, we decide this appeal by memorandum disposition. (See Cal. Stds. Jud. Admin., § 8.1.)
In 2009, the Los Angeles County District Attorney's Office charged appellant Zecorey Lamont Marcus and codefendant Jayvion Galloway with the robbery of P.G. and the subsequent robbery and murder of Hae Sook Roh. A jury convicted Marcus of two counts of robbery (Pen. Code, § 211) and one count of first degree murder (§ 187, subd. (a)). The jury also found true a felony-murder special circumstance allegation (§ 190.2, subd. (a)(17)), in addition to gang and firearm enhancement allegations.
All subsequent statutory references are to the Penal Code.
The trial court imposed a sentence of life without the possibility of parole for murder, plus an additional 25 years to life for the firearm enhancement. On appeal, we struck the gang and firearm enhancements, but otherwise affirmed the judgment. (See People v. Galloway et al. (June 8, 2012, B232165) [nonpub. opn.].)
Ten years later, Marcus filed a petition pursuant to section 1172.6 challenging his murder conviction. The trial court concluded that Marcus" 'was, at a minimum, a major participant in the murder [who] acted with reckless indifference to human life'" and denied the petition. Marcus appealed, arguing that the felonymurder special circumstance finding in his case no longer is valid "in light of our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of 'major participant' and 'reckless indifference to human life.'" (People v. Marcus (Aug. 25, 2020, B300883) [nonpub. opn.] (Marcus I), review granted Oct. 28, 2020, transferred with directions to vacate opn. Sept. 28, 2022, S264319.)
We affirmed the order denying Marcus's petition "on the ground that the proper procedure for challenging a special circumstance finding is a petition for habeas corpus, not a petition under section [1172.6]." (Marcus I, supra, B300883 .) Marcus sought review of our decision before the California Supreme Court. He also filed a habeas petition challenging the special circumstance finding, and on December 18, 2020, the trial court summarily denied that petition.
We do not recount here the full history of Marcus's pursuit of habeas relief because it is unnecessary to our resolution of this appeal.
On September 28, 2022, the Supreme Court directed us to vacate our decision affirming the denial of Marcus's section 1172.6 petition and to reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952. Upon reconsideration, we reversed the denial of Marcus's petition, explaining: "The Supreme Court in Strong agreed with us that a prior special-circumstance finding would ordinarily disqualify a defendant from resentencing under section 1172.6. [Citation.] But the Court held that an exception applie[s] to defendants like Marcus who were convicted of special-circumstance felony murder before the court issued its opinions in [Banks] and [Clark], clarifying the meaning of 'major participant' and 'reckless indifference to human life.'" (People v. Marcus (Dec. 1, 2022, B300883) [nonpub. opn.] (Marcus II).) We therefore concluded that Marcus had made a prima facie case for relief, and we directed the trial court to "issue an order to show cause and conduct further proceedings as specified in section 1172.6." (Marcus II, supra, B300883.)
On remand, the trial court conducted an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). The prosecutor relied on the trial record, which includes video footage of the murder, in arguing that Marcus is ineligible for relief. At the conclusion of the hearing, the court denied Marcus's petition. Marcus timely appealed.
Marcus now asks us to remand this matter for a new evidentiary hearing, arguing that the trial court (1) impermissibly relied on factual summaries contained in prior appellate opinions, rather than the trial record, in denying his petition, and (2) applied the wrong legal standard at the evidentiary hearing.
We reject Marcus's first contention, as it is unsupported by the record. Marcus is correct that the court did not state expressly that it "had studied the trial record"; however, the court admitted the entirety of the trial record at the evidentiary hearing, stated it had reviewed the video footage of the murder introduced at trial, and noted that it had "spent a lot of time with [the] case."
Marcus also is correct that the court referenced its December 18, 2020 order denying habeas relief during the evidentiary hearing, and that the December 18 order refers to factual summaries contained in prior appellate opinions. But the court did not state it was relying on the December 18 order in denying the section 1172.6 petition. The court stated only that "[t]he opinion [it] expressed back on December 18th"-namely, that Marcus is not entitled to relief-"[had] not changed." Moreover, defense counsel twice informed the court during the hearing that it could consider prior appellate opinions for "procedural history and nothing more," and the court replied, "Okay." We therefore are not persuaded that the court impermissibly relied on factual summaries contained in prior appellate opinions in denying Marcus's petition.
We agree with both parties, however, that the record is ambiguous as to what legal standard the trial court applied at the evidentiary hearing. At such a hearing, the prosecution bears the burden of "prov[ing], beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law" as amended by Senate Bill No. 1437 (§ 1172.6, subd. (d)(3)), and the trial court must act as an "independent fact finder" in determining whether the prosecution has met its burden. (People v. Garrison (2021) 73 Cal.App.5th 735, 745 (Garrison); accord, People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.) Notably, "[a] finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3).)
Here, the court referenced the reasonable doubt standard, but also twice referenced the substantial evidence standard and used conditional language alluding to what a jury "could" find based on the trial record:
"The court: . . . I am still of the opinion that the petitioner is not eligible for relief and could still be convicted of murder.
"[¶] . . . [¶]
"So I've considered all the relevant factors together, and I don't take each one separately apart. I look at the entire picture, the totality of the circumstances, to get a good flavor of the events that led to the murder of . . . Roh, and I conclude that substantial evidence supports the finding that . . . Marcus was a major participant in the robbery of Roh . . . and that he acted in reckless indifference to human life, that that finding, I find, is supported beyond a reasonable doubt.
"[¶] . . . [¶]
"I'm not going to address the implied malice theory, because I'm not comfortable with that theory, . . . and I don't think I need to do so, based on my opinion that there's substantial evidence to support the conclusion that . . . Marcus was a major participant in the robbery of the victim in this case, Ms. Roh, and acted with reckless indifference to human life." (Italics added.)
We thus cannot determine from the record which standard the trial court applied. And we agree with the parties that if the court applied the wrong standard, we cannot disregard that error as harmless on the facts here. The prosecutor conceded at the evidentiary hearing that Marcus was neither the actual shooter nor even armed during the robbery that resulted in Roh's death. He argued instead that, under Banks and Clark, supra, Marcus is guilty as a major participant in the crime who acted with reckless indifference to human life-but the prosecutor conceded further that some of "the Banks/Clark factors . . . are double-edged swords" in this case. The facts here thus are not like those in Garrison, supra, where we concluded that any error by the trial court in applying the wrong legal standard at the section 1172.6 evidentiary hearing was harmless because the record conclusively established the defendant there was the actual killer. (Garrison, supra, 73 Cal.App.5th at p. 745.) We therefore conclude that, if the court erroneously applied the substantial evidence standard in denying Marcus's petition, it is reasonably probable that application of the reasonable doubt standard would have resulted in a different outcome. (See People v. Vance (2023) 94 Cal.App.5th 706, 716 [applying state law harmless error standard to alleged error at section 1172.6, subdivision (d)(3) hearing].)
Accordingly, we remand the matter to permit the trial court either to (1) clarify that it found Marcus guilty of murder beyond a reasonable doubt, or (2) hold a new hearing to determine as a fact finder whether the prosecution has demonstrated Marcus's guilt beyond a reasonable doubt, in compliance with section 1172.6, subdivision (d)(3).
DISPOSITION
The order denying Marcus's section 1172.6 petition is conditionally affirmed, and the matter is remanded to permit the court either to (1) clarify that it found Marcus guilty of murder beyond a reasonable doubt, or if that was not the standard it applied (2) vacate the order denying Marcus's petition and conduct a new hearing in compliance with section 1172.6, subdivision (d)(3).
WE CONCUR: WEINGART, J. KLINE, J. [*]
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.