People v. Andrews

1

THE PEOPLE, Plaintiff and Respondent, v. JASON WESLEY ANDREWS, Defendant and Appellant.

F085020

California Court of Appeals, Fifth District

May 22, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No CF94519731. Alvin M. Harrell III, Judge.

Mi Kim, 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, Julie A. Hokans, and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

Appellant and defendant Jason Wesley Andrews (Andrews), and codefendants Susan Lee Russo (Susan) and Bobby Leon Morris (Morris), were jointly charged with count 1, first degree murder with two special circumstances, and count 2 conspiracy to commit murder, for the murder of Susan's husband, David Russo (David).

After a joint jury trial, Susan was convicted of count 1, first degree murder with two special circumstances; count 2 conspiracy to commit murder; and count 3, solicitation of another person to murder Morris; she was sentenced to life in prison without possibility of parole for murder, plus 25 years to life for conspiracy.

The jury was unable to reach verdicts for any of the charges against Andrews.

Prior to retrial, he pleaded no contest to count 1, first degree murder, in exchange for the dismissed of the special circumstances and other charges and was sentenced to 25 years to life. Codefendant Morris entered into the same plea agreement and was also sentenced to 25 years to life.

In 2022, Andrews filed a petition in the superior court for resentencing pursuant to Penal Code section 1172.6^[1] and alleged he was convicted of first degree murder under the felony-murder rule or the natural and probable consequences doctrine, and he could not be so convicted under the amended law. The trial court denied the petition.

On appeal, Andrews argues his petition stated a prima facie case for resentencing under section 1172.6, and the trial court improperly made factual findings when it found he was ineligible as a matter of law.

We affirm.

FACTS^[2]

Prior to his death, David Russo was on active duty in the United States Navy.

David was married to Susan Russo (collectively "the Russos"). In August 1993, David and Susan were told by the military that, in the event of David's death, Susan would receive a little more than $200,000 in a lump sum benefit and a monthly payment of about $2,500, less taxes for the rest of her life.

One day late in 1993 or early 1994, a neighbor of the Russos was playing cards with them. Susan and David got into a verbal disagreement. Susan taunted David and said, "Well, I can just have you taken out at any time." Susan told David she had friends in high places, that she was connected to the Mafia, and that she could put a "hit" out on him.

The neighbor knew David had a number of guns in the house. He had seen a nine-millimeter Beretta, a couple of handguns, and a Russian rifle, an AK-47. The neighbor and David had gone target shooting a couple of times with one of these weapons.

By July 1994, David developed some emotional problems. He began seeing a counselor in Fresno. David's first session was on July 6, 1994, and the second was on July 13, at 5:00 or 6:00 p.m. That evening, David told a friend he needed to go to bed around 10:00 p.m. because he had to go to work the next morning.

David's Disappearance

Eugene Stokes, who worked with David at the naval base, came to the Russo residence on July 14, 1994, at 7:00 a.m. to give David a ride to work. Susan told Stokes that David had left for cigarettes and gas the night before, about 11:00 p.m., and did not return. Russo sounded concerned, but not overly so.

About 7:30 a.m. on July 14, 1994, a farmer who lived in the rural area between Laton and Riverdale saw a male, dressed in shorts and a tank top, walking nervously down the street outside the farmer's kitchen. The man had a tattoo on one of his upper arms. He was moving quickly, seemed nervous and kept turning around and looking back. The farmer later found an abandoned car near the river, about a mile from his home. The driver's side window was down, and the backseat was covered to the top of the seat with sleeping bags and blankets.

At 8:30 a.m. on July 14, 1994, a coworker of David's got worried about his absence and telephoned the Russo residence. Susan told the coworker David had gone out for cigarettes and gas the night before and did not return. Susan sounded concerned and told the coworker that David might be in San Diego with his son who was having problems. In a later conversation that same day, Susan asked if David 's paycheck would be deposited in the bank account the next day, which was payday.

David's mother spoke to Susan on the telephone late in the afternoon on July 14, 1994. Susan said that they were doing great and getting better. She did not tell David's mother that David was missing.

William Cole, David's best friend and coworker, went to the Russo home on the evening of July 14, 1994. David was not there but Susan was present with a man later identified as Andrews. Susan told Cole that David went out for cigarettes and gas the night before and did not return. Susan expressed concern about how she was going to get David's paycheck because the next day was payday. Susan suggested David might be with a friend in Las Vegas. Cole noticed David's white Dodge Intrepid was not there. Cole knew David kept guns in the house because he talked often about his AK-47 and nine-millimeter Beretta.

Discovery of David's Body

Later in the evening on July 14, 1994, Fresno County Deputy Sheriff Myron Toste found David's white Dodge Intrepid in a remote rural location, on a road that winds around the Kings River. In the backseat of the car, Deputy Toste found a pile of sleeping bags. David's body was found inside the sleeping bags. The body was naked except for black shorts that were pulled down around his hips, exposing the genital area. The coroner later determined David had died from a single gunshot wound to the back of the head. Several law enforcement personnel examined the scene where David's body was found.

Detective Melinda Ybarra went to the Russo residence, but Susan was not there. About 7:45 a.m. on July 15, 1994, Susan and Andrews arrived on David's motorcycle. Ybarra told Susan that a body had been found in David's car. Susan remained calm, but said she hoped it was not David's body. Susan permitted Ybarra to walk through the house. Ybarra noticed the interior was very neat and orderly.

Susan and Andrews were separately taken to the sheriff's department for interviews.

Interview of Andrews

Detective Robert Moore interrogated Andrews. Andrews told Detective Moore that Susan was his good friend and housekeeper. Andrews said they were out on the motorcycle looking for David since about 10:00 p.m. the previous night. Andrews stated his relationship with Susan was platonic. He did not learn of David's death until the detective told him.

Susan's Confession

Detective Moore interviewed Susan, who said David had been getting counseling in Fresno, she and Andrews were friends, and she and David had not had guns in their house for over three years. She confirmed that she cleaned houses to earn income. She said David went out for cigarettes and gas about 10:30 or 11:00 p.m. on July 13, 1994. Detective Moore asked Susan if there was any blood in her house. She said no and added that Moore would not find any bullets in the house. Moore had not given Susan any information about how David had died.

Detective Moore told Susan he knew David was killed in his house. Susan then told Moore she let some people into the house about 1:00 a.m. on July 14, 1994. She stated she saw David 's nine-millimeter Beretta gun. She told the people that her husband was asleep. She told them to keep their voices down because the children were sleeping. She said David was shot with a Beretta nine-millimeter, but she had given the gun to someone on July 12, 1994. Susan stated the shot was muffled and occurred while she was checking on one of her children. Susan stated she and the other people then wrapped David's head in a garbage bag, his body in sleeping bags, tied ropes around the body, and put it into the Intrepid. She later cleaned the bedroom. She had tried to put David's black shorts onto his body but could only get them up to his knees.

Susan admitted she had previously discussed David's killing with someone, and said she knew about the insurance policy, she was going to buy a house and pay bills with the insurance money, and the killing was a stupid thing to do. Susan stated the car was going to be torched.

Evidence Inside the Russo Residence

Detective Christian Curtice later examined the interior of the Russo home and found bloodstains on the master bedroom carpet, next to the bed. Curtice found a pillowcase, with a pattern and color that matched the pillowcase found on David's head, trash bags like the one found on the body, and yellow rope like that used to tie up the body.

Detective Curtice subsequently found a shotgun, an AK-47 rifle and a .357-magnum revolver in Andrews's residence. The serial number on the rifle and revolver matched those on paperwork found at the Russo residence.

Arrest of Defendants

Susan and Andrews were arrested and held at the jail.

Just after midnight on July 15, 1994, Morris turned himself in to law enforcement. He cooperated with the police, told them where certain items of evidence would be found, and led officers to various places on two different days to help them retrieve evidence.

Susan's...