People v. Jackson

1

THE PEOPLE, Plaintiff and Respondent, v. MARSHAWN D. JACKSON, Defendant and Appellant.

B327381

California Court of Appeals, Second District, Third Division

January 23, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No MA027330, Michael D. Carter, Judge. Affirmed.

J Kahn, 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, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

In 2005, a jury found Marshawn Jackson guilty of four counts of attempted murder. In 2022, he petitioned for resentencing under Penal Code section 1172.6,^[1] which limits accomplice liability for attempted murder. After an evidentiary hearing the trial court denied Jackson's petition based on evidence admitted at his underlying trial, including surveillance footage of the crime. Jackson appeals contending the trial court improperly considered the surveillance footage because the prosecutor did not ask that it be admitted at the evidentiary hearing and that, in any event, there was insufficient evidence of his intent to kill. We disagree with these contentions and affirm the order.

BACKGROUND

I. The underlying crimes

Our background is from the trial court's memorandum of decision, which Jackson agrees properly characterizes the evidence.

On September 13, 2003, John Tarry was at Snooky's, a bar he owned. Present that day were Jeff Collier, a customer; John Long, the doorman; and April Tapia, the bartender. Snooky's had a front public area with pool tables and a bar, and a back private office where Tarry kept a safe.

Soon after Snooky's opened that day, Jackson, Terrence Dunson, and Brian McDonald entered the bar together. Dunson was the tallest of the three men and he wore a floppy tan hat, while Jackson and McDonald wore black skull caps. The men drank and played pool, but when Tarry asked Dunson to return his drink because Dunson did not have identification, the three men left.

Seconds after leaving, the three men returned. Dunson immediately hit Tarry's head with a bar stool. Tapia began to run, but one of the men stopped her and asked if she wanted to die right there. Meanwhile, one of the men shot Long in the hip, requiring him to be airlifted to a hospital due to the seriousness of his condition. Tarry testified that the shooter shot with his left hand and wore a red shirt.

Dunson made Tarry go to the back office. En route to the office, another of the men hit Tarry, knocking out some teeth. In the office, Tarry was unable to open the safe, so Dunson repeatedly called for his accomplice to come and" 'kill this motherfucker.'" Another man pointed a gun at Tarry's head. And, at some point, someone shot Tarry's surveillance cameras.

Long, Collier, and Tapia were moved into the office with Tarry. Dunson told Tarry that if he didn't open the safe, he and the others would be killed. Tarry opened the safe, and the men took money from it and from Tarry. Tarry heard one man say,"' "[J]ust go back and kill them motherfuckers." '" Then, as Tapia lay on the floor in a fetal position, she was shot in her hip, and the bullet exited and grazed her breast. Collier was shot in his arm. A third gunshot aimed at Tarry's head missed and hit his computer.

The men escaped in a car driven by Dunson's sister, but law enforcement soon captured them. A red shirt and a handdrawn layout of Snooky's were among the items found in the car.

The layout had been drawn by Dunson's child's mother, who had worked at Snooky's and knew Tarry had a safe in the office.

A gunshot residue particle was found on Jackson's left hand. Jackson is left-handed.

At Jackson's, Dunson's, and McDonald's joint criminal trial, Dunson testified while reviewing surveillance footage. He identified himself as the tall man with a hat. During Dunson's testimony, McDonald interjected that he was the person in the white shirt. Dunson then said that the remaining robber who wore a red shirt had to be Jackson.

II. Jury verdict, sentence, and appeal

At the joint trial, the trial court instructed the jury on the natural and probable consequences doctrine. A jury found Jackson, Dunson, and McDonald guilty of four counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a)), three counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), and four counts of robbery (§ 211). As to Jackson, the jury found true personal gun use allegations (§ 12022.53, subds. (b), (c) &(d)). But as to Dunson and McDonald, the jury found true only principal gun use allegations.

As relevant here, the trial court in 2005 sentenced Jackson to four life terms, one for each of the attempted murder counts, plus three 25-years-to-life terms and one 20-years-to life term for the firearm enhancements.

This Division affirmed Jackson's judgment of conviction on direct appeal. (People v. Dunson (Oct. 13, 2006, B185018) [nonpub. opn.].)

III. Petition for resentencing

In 2022, Jackson petitioned for resentencing under section 1172.6. The trial court found that Jackson had made a prima facie showing of eligibility for relief, appointed counsel, issued an order to show cause, and, after briefing,^[2] held an evidentiary hearing.

The parties did not introduce new or additional evidence at the evidentiary hearing. Jackson's counsel argued that the trial court should consider only "aspects of the clerk's transcripts that were, for instance, like a transcript of a recording at trial," and should not consider any gang evidence because the jury had found gang allegations not true. Counsel also argued that the trial court could not consider surveillance footage, even though it had been admitted at trial, because the People had not submitted it at the evidentiary hearing and it had never been provided to counsel. Counsel did not contest that Jackson was at the robbery but instead argued that "who did what is not necessarily proven beyond a reasonable doubt." He also argued that there was insufficient evidence of Jackson's intent to kill.

After the evidentiary hearing, the trial court issued a memorandum of decision. In it, the trial court stated that it based its findings on the trial transcript and surveillance footage, which included a VHS tape and DVD. The trial court rejected Jackson's argument that it could not consider the surveillance footage because it had not been admitted at the evidentiary hearing. The trial court noted that section 1172.6, subdivision (d)(3), allows a court to consider evidence previously admitted at trial. As the surveillance footage had been admitted at the underlying trial, the trial court concluded that it was admissible under current law at the evidentiary hearing.

On the merits, the trial court found that Jackson was the shooter beyond a reasonable doubt. Describing the surveillance footage, the trial court said it showed three unmasked men enter Snooky's. Only one man wore a red shirt and held a gun. That man pointed his gun at Long at close range, and then, while in the back area, at Tarry as Tarry tried to open the safe. The trial court added, "Later, when Tarry, Long, Collier, and Tapia are on the floor in the back area, the video shows the man with the red shirt point his gun at close range towards" them. Also, Tarry testified that the shooter was left handed and wore a red shirt. Jackson admitted when he was being booked that he was left handed, and he had gunshot residue on his left hand.

The trial court then found beyond a reasonable doubt that Jackson was guilty of the attempted murders of Long, Collier, Tapia, and Tarry under current law. First, the trial court found that Jackson took direct steps to commit the attempted murders: he immediately shot Long on entering Snooky's, and he shot Collier and Tapia and shot at Tarry after Dunson told Jackson to kill them.

Second, the trial court found that Jackson manifested an intent to kill. Jackson had a motive to kill Long, whom he shot promptly on reentering Snooky's. This suggested he wanted to eliminate Long as an immediate threat and to set a tone for the rest of the robbery, that resistance would be met with deadly force. The trial court thus said, "Indeed, when Tapia attempted to run away, she was threatened with death. And when Tarry failed to quickly open the safe, he was threatened with death multiple times." Jackson also had a motive to kill Collier, Tapia, and Tarry, all of whom he shot or shot at after the robbery was completed, when they were not a threat. After someone told Jackson to" 'kill'" them, Jackson tried to follow that instruction. "Thus, the court can reasonably infer that by shooting at them, [Jackson's] only motive was to kill them" to eliminate witnesses. Finally, shooting all four victims at close range in a manner that could have inflicted mortal wounds demonstrated Jackson intended to kill them. Accordingly, the trial court denied Jackson's petition for resentencing.

DISCUSSION

I. Overview of Senate Bill No. 1437

To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.)...