People v. Grizzle

1

THE PEOPLE, Plaintiff and Respondent, v. ELLIOTT SCOTT GRIZZLE, Defendant and Appellant.

D079679

California Court of Appeals, Fourth District, First Division

February 27, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No SCD267438 Laura W. Halgren, Judge.

Nancy Olsen and Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Charles C Ragland, Assistant Attorneys General, Eric A. Swenson, Alan L. Amann, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

INTRODUCTION

In 2016, Elliott Scott Grizzle participated in a home invasion that led to the death of one of the home's occupants. A jury convicted him of felony murder (Pen. Code,^[1] §§ 187 subd. (a), 189), two counts of first degree robbery in concert with two or more other people in an inhabited dwelling (§ 211) and burglary (§ 459), and made several true findings. In 2021, Grizzle filed a petition for resentencing, contending he was not the actual killer, did not aid, abet, or assist the actual killer with the intent to kill, and he was not a major participant or did not act with reckless indifference to human life. Following an evidentiary hearing, the trial court found the People met their burden of proving beyond a reasonable doubt that Grizzle was a major participant in the underlying felonies, and he acted with a reckless indifference to human life. Accordingly, it denied his petition for resentencing.

Grizzle contends that because he exercised his right to a jury trial he was ineligible for resentencing under section 1172.6 (formerly section 1170.95)^[2] only if a jury and not the court found he was a major participant in the underlying felonies and acted with reckless indifference to human life. He separately contends that substantial evidence does not support the trial court's conclusion that he was a major participant who demonstrated a reckless indifference to human life. We conclude his contentions lack merit, and we affirm the denial of his section 1172.6 petition.

I. BACKGROUND AND PROCEDURAL FACTS

The Underlying Crime

We take the following statement of facts from our opinion in Grizzle's direct appeal, People v. Grizzle (Feb 27, 2019, D072975, [nonpub. opn.]):

"On May 11, 2016, B.A. and his housemates, B.W., W.S., S.P., and J.P. resided on Tommy Drive in San Diego (Tommy Drive residence). On the afternoon of May 11, S.P. returned to the house after doing some grocery shopping. His housemates were not at home. S.P. brought the groceries inside the house, set them down in the kitchen, went into the 'back living room' at the rear of the house, and checked his phone for a text message.

"S.P heard the front door open, and a group of three to five men walked through the door in a single file. The man in front pointed a gun in S.P.'s face and told him to lie down on the ground with his hands behind his back. S.P. described the gunman as being in his late 30's or early 40's six-feet tall, not much hair on his head, and clean shaven.^[3] He could not describe the other men.

"The men asked S.P. questions about everyone who lived in the house, such as what their schedules were, what jobs they had, and what cars they drove. The men were especially interested in B.A. The men also asked about large amounts of money and marijuana. S.P. told them that he did not know anything about drugs or money because he never saw anything like that in the house.

"S.P. could hear the men going through the house, ransacking it. He knew there were at least three men in the house because he could hear two men whispering to each other while someone else was going through the house. He heard the men taking the TV off the wall of the back living room. At some point, the men took his cell phone and the keys to his car.

"After about 45 minutes to an hour, the men stood S.P. up, covered his face with some type of cloth, and moved him from the back living room to the adjoining 'front living room.' S.P.'s hands were restrained with some PlayStation cords and painter's tape. After S.P. was moved, he heard the men continue to go through the house. He heard the TV slam on the ground and heard one of the men say, 'We're not going to be taking that with us.'

"Eventually, B.W. came through the front door. When B.W. entered the house, a man put a gun to his head and ordered him to get on the ground. After B.W. went to the ground, he was hit in the back of the head with the gun, and a T-shirt was placed over his head. B.W. believed there were four or five men in the house although he only saw the gunman. The men immediately asked B.W. where B.A. was, about the location of the money and marijuana, and who lived there. The men took B.W.'s credit cards, his identification, the keys to his Cadillac Escalade, and his cell phone. B.W. told the men his ATM personal identification number (PIN), and then someone left the house.

"B.W.'s hands were bound with tape and a PlayStation cord. Initially, B.W. was on the ground near the front door, but then he was moved several feet into the front living room, close to a computer desk. He heard someone at the computer desk, rummaging through the paperwork and asking questions about B.A.'s papers. He also heard rummaging throughout the whole house and the garage.^[4]

"At one point, one of the men said something like, "Larry said it's wrong" regarding the ATM PIN number. When the man or men who left the house returned, a gun was put to B.W.'s head again because the men thought that B.W. had given them the wrong PIN number. B.W. insisted that he gave them the right number and suggested that they had tried to take out too much money. Someone asked B.W. if he had ever dug a ditch.

"S.P. heard the men eating cereal and opening candy. The men asked S.P. if the beer in the refrigerator was nonalcoholic. S.P. heard a beer bottle being opened and heard somebody drinking liquid. B.W. heard the opening of beer bottles (perhaps two) and heard the men say that they had never had that type of beer before. Both S.P. and B.W. also heard someone 'roasting' drugs. There was no smell of marijuana. S.P. thought the men were smoking methamphetamine. B.W. thought that the man doing drugs was at the computer desk.

"About an hour after B.W. arrived at the house, B.A. walked through the front door. There was a struggle, and a man said, 'Hey, [B.A.], how you doing? We've been waiting for ya.' The men then asked about money, the 'grow,' and whether B.A. had any storage units. B.A. said that all he had was the little sprouts in the backyard and what was in a shoebox. The men questioned B.A. for several more minutes. Then there was another struggle, followed by four to six gunshots.

"S.P. did not hear any noise after the gunshots, and, after a moment, took the cover off his eyes. He found B.W. and helped him get free of his restraints. S.P. and B.W. searched the inside of the house and then went outside, where they saw B.A. lying face first on the side of the driveway. S.P. turned B.A. over and saw that he had been shot, blood was pumping out everywhere as B.A. was gasping for breath. S.P. tried to render aid while B.W. went to find a neighbor to call 911. Eventually, a police officer arrived at the house.

"A neighbor, who lived one block away from the house, heard two pops that sounded like gunshots a little before 3:00 p.m. He walked into his backyard to investigate but did not see anything. He turned around to go back in his house and then he heard somebody scream, 'Help me.' He looked down over his fence and saw a man without a shirt roll another man over onto his back on the driveway. The neighbor ran back into his house to call 911. The neighbor saw another man in a blue shirt come out of the house and saw one of the men performing CPR on the man on the ground. The police arrived three to four minutes later.

"B.A. was shot three times. He suffered scrapes on the left side of his face, right arm, left wrist and hand, left shoulder, and left knee. B.A. died from a gunshot wound to his thorax.

"Four bullet casings were recovered from the Tommy Drive residence. One casing was in the threshold of the front doorway, another was just inside the front door, and two were found in the front living room. Two bullets were identified at the crime scene: one was in the wall of the entryway, and the other was found underneath B.A. when he was turned over for examination. During B.A.'s autopsy, a damaged bullet was recovered from B.A.'s left buttock, and an additional bullet was recovered from B.A.'s left arm.

"Criminalist Lisa Wilson examined the four casings and concluded that all the cartridges were 9-millimeter Luger caliber and were all fired by the same gun, a pistol. Wilson also performed examinations of the three bullets and concluded that they were fired by the same gun as well.

"Criminalist Adam Dutra inspected the crime scene and performed a firearm trajectory test. Dutra determined that one bullet originated from inside the living room, struck the north wall of the front living room, traveled downwards in a northeast direction, exited the adjacent west wall of the entryway, crossed the entryway, and entered the east wall of the entryway, where it became lodged. Another bullet impacted the edge of the front door just above the strike plate and entered the door, tearing apart the wood and exterior surface of the door. The door had to have been open for that damage to occur. The trajectory of the bullet was from the interior edge of the door to the exterior edge of the door, as if it was exiting the home.

"Dutra concluded that at least three shots occurred inside the house. Two...