Filed 04/12/22 P. v. Mackabee CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089655)
v.
MARCEL MAURICE MACKABEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James D. Otto, Judge. Reversed and
remanded with directions.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Acting Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Idan Ivri and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________________________
INTRODUCTION
Appellant Marcel Maurice Mackabee appeals from the
denial of his petition for resentencing under Penal Code
1
section 1170.95. In 2013, a jury convicted appellant of
felony murder and found true a robbery-murder allegation
under section 190.2 (the special circumstance statute). The
jury was not instructed on the special circumstance statute’s
requirement that the defendant at least have been a major
participant in the underlying felony and have acted with
reckless indifference to human life. (See § 190.2, subds. (b)-
(d).) We affirmed the judgment. (People v. Mackabee (June
20, 2014, B250143) 2014 Cal.App.Unpub. LEXIS 4355
(Mackabee I).) Our Supreme Court later clarified the
meaning of the special circumstance statute in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), each of which articulated
factors bearing on the major-participant and reckless-
indifference determinations. In 2018, appellant filed a
petition for a writ of habeas corpus, contending the special
circumstance finding was invalid because the trial record did
1
Undesignated statutory references are to the Penal Code.
2
not contain any substantial evidence that he acted with
reckless indifference to human life. The habeas court denied
the petition, concluding the special circumstance finding was
supported by substantial evidence. Appellant then filed a
similar habeas petition in this court, which we summarily
denied.2
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), which narrowed the felony murder
rule by incorporating the special circumstance statute’s
requirement that the defendant at least have been a major
participant in the underlying felony and have acted with
reckless indifference to human life, appellant filed in the
superior court a petition for resentencing under section
1170.95, alleging he was not guilty of murder in the wake of
SB 1437. Without issuing an order to show cause, the court
denied the petition on the basis of its determination that
appellant was a major participant in the robbery and acted
with reckless indifference to human life, and thus was guilty
even under the narrowed version of the felony murder rule.
The court implied it had evaluated the trial evidence under
the factors set forth in Banks and Clark.
On appeal, appellant contends the court erred in
denying his petition without issuing an order to show cause.
2
We have granted the parties’ requests for judicial notice of
the record and opinion on appellant’s direct appeal. On our own
motion, we also take judicial notice of appellant’s habeas petition
in case number B296620 and our order summarily denying the
petition.
3
The Attorney General disagrees, arguing (1) the court
properly determined the purportedly legal issue whether
appellant was a major participant in the robbery and acted
with reckless indifference to human life; and (2) under the
doctrines of issue preclusion and law of the case, relief under
section 1170.95 is precluded by the habeas court’s and this
3
court’s orders denying appellant’s habeas petitions.
We conclude the superior court erred in denying
appellant’s petition without issuing an order to show cause.
As the Attorney General concedes, the jury instructions and
verdicts did not refute appellant’s allegations that he was
not a major participant in the robbery and did not act with
reckless indifference to human life. At the prima face stage,
the court was not permitted to deem these factual
allegations untrue on the basis of its own evaluation of the
3
The Attorney General disclaims any argument that relief is
precluded by the robbery-murder special circumstance finding,
which in light of the jury’s instructions did not necessarily reflect
a finding that appellant was a major participant in the robbery
and acted with reckless indifference to human life. Thus, as the
Attorney General notes, we need not address the issue pending
our Supreme Court’s review in People v. Strong, review granted
March 10, 2021, S266606 -- viz., whether a felony-murder special
circumstance finding made before Banks and Clark precludes
relief under section 1170.95. (Issues Pending Before the
California Supreme Court in Criminal Cases (April 2022)
California Supreme Court
[as of Apr. 5, 2022].)
4
evidence at trial. Nor could the court properly have denied
relief in reliance on the habeas court’s and this court’s
conclusions that the special circumstance finding was
supported by substantial evidence. A finding of substantial
evidence of guilt under a still-valid theory is insufficient to
render a petitioner ineligible for resentencing. Thus, the
superior court was required to issue an order to show cause
and hold an evidentiary hearing -- at which the parties
might offer new or additional evidence -- to determine
whether the prosecution proved beyond a reasonable doubt
that appellant was a major participant in the robbery and
acted with reckless indifference to human life (or was
otherwise guilty of murder under a still-valid theory).
Accordingly, we reverse the order denying appellant’s
petition for resentencing, and remand the matter to the
superior court with directions to issue an order to show
cause and proceed in accordance with section 1170.95.
BACKGROUND
A. Underlying Judgment
The People charged appellant with the murder of
Philip Victor Williamson and alleged, inter alia, that the
murder was committed during the commission of a robbery
within the meaning of the special circumstance statute.
(Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS 4355, at
*1.)
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1. Trial Evidence
In 2011, Williamson was found in an alley in Long
Beach, gasping for breath and bleeding from a gunshot
wound to the back of his head, which proved fatal.
(Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS 4355, at
*2, *4, *9.) Minutes earlier, a Toyota 4Runner owned by
appellant’s wife was recorded nearby. (Id. at *8, *20.) A
police investigation yielded evidence that large quantities of
marijuana and cash had gone missing from Williamson’s
apartment. (Id. at *2-*4.) The police froze the bank
accounts of appellant’s wife, who soon thereafter passed tens
of thousands of dollars in cash to another woman in a
shopping mall parking lot. (Id. at *7.)
As evidence that appellant had admitted his
involvement in the murder, the prosecution relied on the
preliminary hearing testimony of appellant’s uncle Ronnie
Turner (who died before trial) and on two recorded police
interviews of Ronnie’s son Chevez Turner (who asserted his
right against self-incrimination at trial, declined to answer
certain questions, and denied having told the police about
conversations with appellant related to Williamson’s
murder). (Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS
4355, at *8-*12.) According to appellant’s alleged admissions
to Ronnie, appellant made a plan to rob Williamson of money
and marijuana with two accomplices; during the robbery,
one of appellant’s accomplices shot Williamson while they
were in appellant’s wife’s 4Runner; and the three
accomplices dumped Williamson’s body in Long Beach.
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(Id. at *8-*10.) Ronnie’s credibility was challenged on
various grounds, including admitted inconsistencies in his
accounts about what appellant had told him. (Id. at *10,
*23-*24.) Ronnie’s account at the preliminary hearing was
also inconsistent, in some respects, with his son Chevez’s
account to the police: appellant allegedly told Chevez that he
and two companions visited Williamson’s apartment to buy
marijuana, but the deal went bad, and one of his companions
“‘“wowed” out’” and shot Williamson. (Id. at *11-*13.)
Appellant allegedly also told Chevez that his companions
loaded Williamson’s body into appellant’s vehicle, which
appellant drove to an alley in Long Beach, where they
dumped the body. (Id. at *11-*14.)
Testifying in his defense, appellant admitted he and
Williamson had spent time together at Williamson’s
apartment on the day of the murder, and that he had been
driving his wife’s 4Runner. (Mackabee I, supra, 2014
Cal.App.Unpub. LEXIS 4355, at *15.) But he denied any
involvement in the murder, claiming he had left
Williamson’s apartment without incident, and had driven to
Long Beach only in order to visit his aunt’s house. (Ibid.)
2. Judgment and Appeal
The jury was instructed on felony murder premised on
the robbery of Williamson; the prosecutor, conceding
appellant was not the actual killer, argued he was
nevertheless guilty of felony murder, even if the killing was
accidental. The jury’s instruction on the robbery-murder
7
special circumstance allegation omitted any requirement
that appellant at least have been a major participant in the
robbery and have acted with reckless indifference to human
life. Consistent with that omission, the prosecutor argued
the allegation was “just a repeat” of the felony murder
charge, requiring only a finding that the murder occurred in
the course of the robbery.
The jury convicted appellant of the murder and found
the special circumstance allegation true. The trial court
(Judge Arthur Jean, Jr.) sentenced appellant to life
imprisonment without the possibility of parole. On direct
appeal, appellant contended his counsel had been ineffective
for various reasons immaterial to this appeal. (Mackabee I,
supra, 2014 Cal.App.Unpub. LEXIS 4355, at *1, *15-*16.)
We affirmed. (Id. at *24.)
B. Habeas Petitions
In April 2018, appellant filed a habeas petition in the
trial court, contending the robbery-murder special
circumstance finding was invalid because the trial record
lacked substantial evidence that he acted with reckless
indifference to human life. After receiving informal briefing
from the parties, the habeas court (Judge Marcelita V.
Haynes) denied the petition. Analyzing the trial record
under the Banks/Clark factors, the court concluded several
factors were inconclusive or weighed in appellant’s favor,
because (1) there was no evidence appellant supplied or used
a gun, or that he knew his accomplices were armed or had
8
committed prior violent acts; and (2) the record was unclear
regarding whether appellant was present when Williamson
was shot, or in a position to prevent the murder. But the
court concluded other factors weighed against appellant,
relying on evidence that appellant planned the robbery,
drove Williamson to Long Beach after an accomplice shot
Williamson in the head, and left Williamson in an alley to
die. The court concluded “substantial evidence indicates”
appellant was a major participant in the robbery and acted
with reckless indifference to human life.
In April 2019, appellant filed a habeas petition in this
court, again contending the special circumstance finding was
invalid because the trial record lacked substantial evidence
that he acted with reckless indifference to human life. We
summarily denied the petition for failure to state a prima
facie for relief, explaining: “Any rational trier of fact could
have found beyond a reasonable doubt that petitioner acted
with reckless indifference to human life as required by Penal
Code section 190.2, subdivision (d), from the fact that
petitioner, the mastermind of the robbery, drove the vehicle
with the victim inside after the victim had been shot in the
back of the head and dumped the victim in an alley while he
was still alive, bleeding, and gasping for air.”
C. Section 1170.95 Petition
In November 2019, appellant filed, through counsel, a
petition to vacate his murder conviction under section
1170.95, alleging he could not be convicted of felony murder
9
after SB 1437’s changes to the law because, inter alia, he
was not a major participant in the robbery and did not act
with reckless indifference to human life. In opposition, the
prosecution relied on the habeas court’s finding of
substantial evidence to the contrary. In March 2020, the
superior court (Judge James D. Otto) held a hearing to
determine whether to issue an order to show cause, at which
appellant’s counsel submitted on the briefs, and the
prosecutor briefly observed that appellant’s direct appeal
and first habeas petition had been rejected. The court
denied the petition, stating: “Having reviewed the
[Banks/Clark] factors as set forth succinctly in the case of [In
re Parrish (2020) 58 Cal.App.5th 539], which sets forth the
factors, and the Court of Appeal’s [opinion] affirming the
conviction, I find the defendant [was] a major participant
based on the conviction and acted with reckless indifference
to human life.” Appellant timely appealed.
DISCUSSION
A. Section 1170.95
Section 1170.95 permits a defendant who was
convicted of murder under a felony murder theory to petition
the sentencing court to have the conviction vacated and to be
resentenced on any remaining counts when, inter alia, the
petitioner could not be convicted of murder after SB 1437’s
changes to the law. (See § 1170.95, subd. (a)(3).) These
changes include the amendment of section 189, subdivision
(e) to provide that a defendant is not guilty of felony murder
10
unless the defendant: (1) was the actual killer; (2) acted with
the intent to kill as an aider and abettor; or (3) was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in the special
circumstance statute. (See § 189, subd. (e); Stats. 2018, ch.
1015, § 3.)
After ascertaining that the petition contains certain
required information, the court must determine whether the
petitioner has made a prima facie showing of entitlement to
relief. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th
952, 960-968 (Lewis).) “[T]he ‘prima facie bar was
intentionally and correctly set very low.’” (Lewis, at 972.)
“[A]t the prima facie stage, a petitioner’s allegations should
be accepted as true, and the court should not make
credibility determinations or engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’” (Id.
at 974, quoting People v. Drayton (2020) 47 Cal.App.5th 965,
980 (Drayton).) Because the weighing of evidence is typically
required in order to determine whether a defendant was a
major participant in an underlying felony and acted with
reckless indifference to human life, this determination is
typically inappropriate at the prima facie stage. (See People
v. Clayton (2021) 66 Cal.App.5th 145, 154, review denied
Sept. 15, 2021 [superior court erred in denying section
1170.95 petition at prima facie stage; “‘The major participant
and reckless indifference findings the trial court made based
solely on the record evidence entail the weighing of evidence,
drawing of inferences, and assessment of credibility that
11
should be left to the factfinding hearing process
contemplated by section 1170.95, subdivision (d)’”]; accord,
People v. Harrison (2021) 73 Cal.App.5th 429, 491; People v.
Montes (2021) 71 Cal.App.5th 1001, 1008; Drayton, supra, 47
4
Cal.App.5th at 982.)
Where the court finds the petitioner has made a prima
facie showing, it must issue an order to show cause and hold
an evidentiary hearing on the petitioner’s eligibility for
relief. (§ 1170.95, subds. (c)-(d).) “At the hearing to
determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by [SB 1437]. . . . The
prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) “The question is whether the
petitioner committed murder under a still-valid theory, and
that is a factual question. The Legislature made this clear
4
The prohibition against factfinding at the prima facie stage
is subject to a limited exception: “‘if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.’”” (Lewis,
supra, 11 Cal.5th at 971, quoting Drayton, supra, 47 Cal.App.5th
at 979.) “However, this authority to make [factual]
determinations without conducting an evidentiary hearing . . . is
limited to readily ascertainable facts from the record (such as the
crime of conviction) . . . .” (Drayton, at 980.)
12
by explicitly holding the People to the beyond a reasonable
doubt evidentiary standard and by permitting the parties to
submit new or additional evidence at the hearing on
eligibility.” (People v. Clements (2022) 75 Cal.App.5th 276,
294.) “A finding that there is substantial evidence to support
a conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
B. Analysis
We conclude the superior court erred in denying
appellant’s section 1170.95 petition at the prima facie stage.
Appellant alleged, inter alia, that he was not a major
participant in the robbery of Williamson and that he did not
act with reckless indifference to human life. As the Attorney
General concedes, the jury instructions and verdicts do not
show the jury necessarily found otherwise. At the prima
facie stage, the court was not permitted to deem appellant’s
allegations untrue on the basis of its own evaluation of the
evidence at trial. (See People v. Harrison, supra, 73
Cal.App.5th at 438 [“The resentencing court stated [at the
prima facie stage] that the record of conviction showed that
the evidence at Harrison’s trial was sufficient to prove
beyond a reasonable doubt that Harrison had acted as a
major participant with reckless indifference to the life of
Harless . . . . To reach these conclusions, the resentencing
court necessarily had to weigh the evidence from Harrison’s
trial. This was improper”]; People v. Montes, supra, 71
13
Cal.App.5th at 1008 [“The final ground on which the trial
court found appellant ineligible for relief was because
appellant ‘was a major participant who acted with reckless
disregard for human life.’ We believe this constitutes
inappropriate factfinding by the trial court at the initial
prima facie stage of this process”]; People v. Clayton, supra,
66 Cal.App.5th at 154; Drayton, supra, 47 Cal.App.5th at
982.)
We disagree with the Attorney General’s contention
that the court’s ruling was proper in light of the habeas
court’s and this court’s orders denying appellant’s habeas
petitions. The habeas court’s order concluded only that
“substantial evidence indicates” appellant was a major
participant in the robbery and acted with reckless
indifference to human life; our order reached the same
conclusion with respect to reckless indifference, resolving
only what a rational trier of fact “could have” found. Even
assuming those conclusions were binding on the superior
court under the doctrine of law of the case, they did not
warrant denial of the section 1170.95 petition, because a
finding of substantial evidence of guilt under a still-valid
theory is insufficient to render a petitioner ineligible for
resentencing. (See § 1170.95, subd. (d)(3).) Similarly,
because the substantial-evidence issue differed from the
issue of appellant’s eligibility for relief under section
1170.95, the doctrine of issue preclusion could not have
operated to preclude relief. (See DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 825 [issue preclusion applies
14
only where “identical” issue was necessarily decided in prior
proceeding].)
In sum, we conclude neither the habeas orders nor
anything in the record of conviction prevented appellant
from clearing the “‘very low’” bar set by the Legislature at
the prima facie stage. (Lewis, supra, 11 Cal.5th at 972.)
Accordingly, we reverse the order denying appellant’s
petition at that stage, and remand to the superior court with
directions to issue an order to show cause and proceed in
5
accordance with section 1170.95.
5
We note that on remand, the court will not be bound by our
habeas order’s unequivocal statement that, inter alia, appellant
was the mastermind of the robbery. This statement implicitly
reflected our presumption of all facts in support of the judgment
that the jury reasonably could have found. (See People v. Morales
(2020) 10 Cal.5th 76, 88 [court applying substantial evidence
standard “‘“‘presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the
evidence’”’”].) We neither concluded that the jury necessarily
found the facts as we stated them, nor found those facts
ourselves. (See Conservatorship of O.B. (2020) 9 Cal.5th 989,
1008 [“In assessing how the evidence reasonably could have been
evaluated by the trier of fact, an appellate court . . . must indulge
reasonable inferences that the trier of fact might have drawn
from the evidence” (italics added)]; People v. Rodriguez (1999) 20
Cal.4th 1, 12-14 [reversing one Court of Appeal opinion, and
disapproving another, for engaging in “appellate factfinding” in
reviewing convictions for sufficient evidence].) Even had we
purported to make findings of fact, they could not have been law
of the case. (See Investors Equity Life Holding Co. v. Schmidt
(2015) 233 Cal.App.4th 1363, 1377 [“‘As its name suggests, the
(Fn. is continued on the next page.)
15
DISPOSITION
The order denying appellant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded
to the superior court with directions to issue an order to
show cause and proceed in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
[law of the case] doctrine applies only to an appellate court’s
decision on a question of law; it does not apply to questions of
fact’”].)
16