Filed 8/25/20 P. v. Marcus CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

 THE PEOPLE,                                                      B300883

           Plaintiff and Respondent,                              (Los Angeles County
                                                                  Super. Ct. No. YA071844)

           v.

 ZECOREY LAMONT MARCUS,

           Defendant and Appellant.



      APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed.
      Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys
General, for Plaintiff and Respondent.
                  ____________________________
       Defendant and appellant Zecorey Lamont Marcus
challenges the trial court’s denial of his petition under Penal
Code section 1170.951 for resentencing on his murder conviction.
In 2011, a jury convicted Marcus of murder on the basis of
his participation in a robbery in which a cohort shot and killed
a victim. The jury also found true a felony-murder special
circumstance (§ 190.2, subd. (a)(17)), concluding beyond a
reasonable doubt that Marcus was a major participant in the
burglary who acted with reckless indifference to human life.
The trial court denied the petition because on the basis of this
finding, Marcus could still be convicted of murder and would be
ineligible for resentencing under section 1170.95.
       Marcus contends that the special circumstance allegation
is no longer valid in light of our Supreme Court’s decisions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.”
(Ibid.) We affirm the trial court’s order on the ground that the
proper procedure for challenging a special circumstance finding is
a petition for habeas corpus, not a petition under section 1170.95.
(See People v. Galvan (Aug. 4, 2020, B300323) __ Cal.App.5th ___
[2020 WL 4462175] (Galvan).)




      1   Subsequent statutory references are to the Penal Code.




                                  2
            FACTS AND PROCEEDINGS BELOW
      The facts of the case are discussed below as described in
our opinion in Marcus’s direct appeal (People v. Galloway (June 8,
2012, B232165) [nonpub. opn.] (Galloway)).

            A.    The Robbery of Pedro Guerrero in
                  May 2008
       “Anna Sanchez, a friend of defendants Galloway
and Marcus, testified that she drove defendants to a convenience
store in Gardena and waited for them in her car while they went
into the store to buy rolling papers for marijuana and orange
juice. After a short time, Galloway came out of the store and told
Sanchez to park her car across the street because he was going
to rob a man he had seen in the store cashing a check. Moments
after Sanchez moved her car, defendants came running toward
her. Galloway was holding a black revolver. Defendants jumped
into Sanchez’s car and Galloway told Sanchez: ‘Go, go, go.’
Sanchez drove away as Galloway handed the gun to Marcus in
the backseat. She asked them what happened ‘and they said
they robbed the man that was in the store cashing his check.’
Sanchez identified defendants from a surveillance video shot
from within the store.
       “Pedro Guerrero testified that he went to a store in
Gardena to cash a check for $450.00. As he sat in his car,
putting away his money, two men walked up. One man pointed
a black gun at Guerrero’s head. ‘They told me to give them the
money or that they would kill me,’ Guerrero testified. Guerrero
gave the money to the man with the handgun. He did not report
the robbery to police because he was afraid but he told the
storekeeper about it. A week later the police located Guerrero
and showed him photographic lineups and he identified a




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photograph of Galloway as the man who robbed him with a
handgun.” (Galloway, supra, B232165, at p. 2.)

            B.    The Murder of Hae Sook Roh in May 2008
       “Five days after the Guerrero robbery, at approximately
6:45 p.m., Arthenia Thomas heard gunfire coming from the
direction of a T-shirt shop in Gardena and saw two men running
from the shop and down the street toward a restaurant where she
lost sight of them. Her only description of the two men was that
they were wearing black ‘hoodies’ and had bandanas over their
faces. A few minutes later a silver four-door car drove ‘really fast’
out of the restaurant parking lot. Because the windows were
tinted, Thomas could not tell how many people were in the car.
Thomas testified that the car depicted in People’s exhibit 4 looked
like the car she saw leaving the parking lot.
       “When the police responded to the shooting, they found the
body of Hae Sook Roh, who had worked at the T-shirt shop, lying
dead behind the counter near the cash register.
       “The prosecution showed the jury an audio and video
recording from a surveillance camera in the T-shirt shop. The
video showed a black male with a gun in his left hand entering
the area in front of the cash register. The man wore white pants,
a long white T-shirt and an open waist-length jacket. He had a
white cloth tied across his face below his eyes. The bottom left
hand portion of the video showed the pant leg and shoe of a
second person. The audio portion of the tape contained the voice
of the man with the gun saying: ‘Give it up. Give it up. Give me
the money.’ A second voice said[,] ‘Give him the money’ and
then the gunman fired at Roh saying, ‘Bitch. Give it up.’
He repeated[,] ‘Give it up’ and then shot Roh two more times,
grabbed the money from the register and ran. The gun was not




                                 4
recovered. The take from the robbery-murder was approximately
$35.
       “Sanchez testified that she was at Galloway’s house on the
day of the murder. When it started to get dark, Galloway went to
the trunk of his mother’s car and changed into basketball shorts,
a white T-shirt and waist-length jacket. He then began waiting
in front of the house. A gray Chevrolet Impala with tinted
windows pulled up in front of the house. Someone inside the
car opened the back door, and as Galloway got in, Sanchez
saw Marcus lean over. Sanchez identified the car shown in
the People’s exhibit 4 as the car she saw that evening. The
same car returned to Galloway’s house 20 to 30 minutes later
and Galloway got out. Sanchez observed that Galloway was
breathing heavily, his palms were sweating and he was acting
‘like he was nervous and scared.’ Galloway told her that ‘he
shot a lady at the T-shirt place.’ He ‘started laughing like it was
funny’ and said ‘the bitch wouldn’t die. So he just had to keep
shooting her.’ Sanchez asked Galloway why he shot the lady and
Galloway replied that he was mad because he wanted to rob the
store but ‘right before he walked in, she dropped the money [in
the floor safe] [a]nd so he shot her.’
       “A few days later Galloway showed Sanchez a YouTube
video of the murder and robbery at the T-shirt shop. He laughed
again while he watched it. Sanchez recognized Galloway on the
video because he was wearing the same clothes he wore when
he left his mother’s house the evening of the murder. She also
recognized the gun in the video as the gun Galloway had used in
the robbery of Pedro Guerrero.” (Galloway, supra, B232165, at
pp. 3–4.)




                                 5
            C.    The Defendants’ Custodial Statements
       “After defendants were arrested, they were seated next
to each other on a bench in a hall of the jail. The bench had a
hidden recording device. The prosecution played the recording
of the defendants’ conversation to the jury. In that conversation
Galloway told Marcus that the police showed him a picture
of Marcus inside the store just before the Guerrero robbery.
Marcus acknowledge[d] he [would] have to serve 15 years for
the robbery but told Galloway that if he got bailed out ‘I’m gone.’
Galloway told Marcus not to worry because he admitted the
robbery and told the police Marcus had nothing to do with it
and that he didn’t even know Marcus. Later in the conversation,
Galloway admitted his involvement in the murder. Marcus also
admitted being at the scene of the murder, noting that the video
showed him wearing the same shoes that he was wearing when
he was arrested.” (Galloway, supra, B232165, at p. 4.)

            D.    The Credibility of Sanchez
      “Sanchez admitted she played a role in the robbery of
Guerrero, that she pleaded guilty to that crime, that she was in
custody at the time of her trial testimony and that she was
receiving lenient treatment in her sentencing in exchange for her
testimony against defendants. She also admitted that she had
previously been convicted of forgery and the unlawful taking of a
motor vehicle.
      “Sanchez further admitted that she had been a regular
user of marijuana for six to nine months prior to the murder
of Roh; that she ‘smoke[d it] every day;’ and that she had
smoked marijuana just before the Guerrero robbery and was
feeling ‘mellow’ at the time. Sanchez testified that she smoked
a type of marijuana known as ‘Chronic’ which, she agreed, is a




                                 6
‘particularly potent’ and ‘intense’ form of the drug. In addition
to smoking marijuana, Sanchez stated that on weekends she used
Ecstasy. ([This court took] judicial notice that the T-shirt robbery
and murder were not committed on a weekend.) She testified
that she stopped using any drugs after May 12, 2008, the date of
the robbery-murder.
        “The defense called a forensic toxicologist who testified that
in his opinion someone who smoked Chronic every day over a six-
to nine-month period would suffer from confusion, delusion and
‘disoriented perception.’ ” (Galloway, supra, B232165, at p. 5.)
        A jury convicted Marcus of one count of first degree
murder (§ 187, subd. (a)), and found true a felony-murder
special circumstance allegation (§ 190.2, subd. (a)(17). The
jury also convicted him of two counts of robbery (§ 211), and
found true allegations of gang and firearm enhancements on
all three counts. The 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 enhancements for lack of substantial evidence, as well as
the firearm enhancements, which were invalid without a gang
enhancement (see § 12022.53, subd. (e)(1)(A)), but we otherwise
affirmed the judgment. (See Galloway, supra, B232165, at p. 11.)
        In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. Under section 189, subdivision (e), as amended by
Senate Bill No. 1437, a defendant is guilty of felony murder
only if he actually killed the victim; directly aided and abetted
or solicited the killing, or otherwise acted with the intent to kill;




                                  7
or “was a major participant in the underlying felony and acted
with reckless indifference to human life.” (§ 189, subd. (e)(3);
People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.)
The legislation also enacted section 1170.95, which established
a procedure for vacating murder convictions for defendants who
would no longer be guilty of murder because of the new law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
       Marcus filed a petition for resentencing on February 26,
2019. The trial court appointed counsel to represent Marcus and
forwarded the petition to the district attorney. The district
attorney moved to deny the petition on the grounds that Senate
Bill No. 1437 is unconstitutional, and that, in any case, the jury’s
special circumstance finding precluded Marcus from making a
prima facie case that he was entitled to resentencing. Marcus’s
counsel filed reply briefs contesting both of the district attorney’s
arguments. The trial court denied the petition on the ground
that the record in the case showed as a matter of law that Marcus
was not entitled to relief. The court found that the facts of the
case, as described in our prior opinion, “establish[ ] that [Marcus]
was, at a minimum, a major participant in the murder and acted
with reckless indifference to human life during the course of the
murder.”2




      2 The trial court made no finding as to the constitutionality
of Senate Bill No. 1437. Because the Attorney General does not
argue that the law is unconstitutional, we do not address the
issue here.




                                 8
                          DISCUSSION
            A.    Background on Section 1170.95
       Section 1170.95 allows a defendant serving a sentence
for felony murder who would not be guilty of murder because of
the new law to petition for resentencing. The statute requires
a defendant to submit a petition affirming that he meets three
criteria of eligibility: (1) He was charged with murder in a
manner “that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) He “was
convicted of ” or pleaded guilty to “first degree or second degree
murder” (§ 1170.95, subd. (a)(2)); and (3) He “could not be
convicted of first or second degree murder because of changes
to Section[s] 188 or 189 made effective” as a part of Senate Bill
No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those
changes eliminated the natural and probable consequences
doctrine as a basis for murder liability, and added a requirement
for felony murder that a defendant must have been at least a
major participant in the underlying felony and have acted with
reckless indifference to human life.
       Upon receipt of a petition, the trial court reviews it to
determine whether the petitioner has made a prima facie case
for relief. (§ 1170.95, subd. (c).) If the petitioner meets this
requirement, the court issues an order to show cause and holds
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d)(1).) At this final stage of the proceeding, the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).) In this case, the trial court appointed counsel and
received briefing, but denied Marcus’s petition on the ground that




                                 9
he had failed to make a prima facie case that he was entitled to
relief. (See § 1170.95, subd. (c).)

            B.    The Proper Procedure for Challenging
                  a Felony-murder Special Circumstance
                  Is a Habeas Corpus Petition
       The primary obstacle preventing Marcus from establishing
his eligibility for resentencing is the jury’s finding of a felony-
murder special circumstance. To be eligible for resentencing
under section 1170.95, Marcus must show that he “could not
be convicted of first or second degree murder because of changes
to Section[s] 188 or 189 made effective” as a part of Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).) Under the newly amended
version of section 189, a defendant can be convicted of felony
murder only if he was the actual killer; acted with the intent
to kill in aiding, abetting, counseling, commanding, inducing,
soliciting, requesting, or assisting in first degree murder; or
“was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e)(3).) These are identical to
the circumstances in which a felony-murder special circumstance
applies. (See § 190.2, subds. (b)–(d).) Thus, the jury’s special
circumstance finding shows as a matter of law that Marcus could
still be convicted of felony murder under the new definition,
and prevents Marcus from making a prima facie case that he is
eligible for resentencing.
       Marcus attempts to avoid this conclusion by attacking
the felony-murder special circumstance finding. He notes that
after his conviction of felony murder, the Supreme Court decided
Banks and Clark, which decisions represent a significant shift
in the interpretation of the concepts of major participation and




                                10
reckless indifference to human life. In Banks, the Court
evaluated existing United States Supreme Court jurisprudence
on the issue and set out a series of considerations relevant
to determining whether a particular defendant was a major
participant in the underlying felony. (See Banks, supra,
61 Cal.4th at p. 803.) The Court did the same in Clark with
respect to whether the defendant acted with reckless indifference
to human life. (See Clark, supra, 63 Cal.4th at pp. 618–622.)
These new considerations clarified the requirements for the
felony murder special circumstance so significantly that courts
have allowed defendants to challenge the validity of pre-Banks
and Clark special circumstance findings via habeas corpus,
making an exception to the rule that ordinarily bars a defendant
from challenging the sufficiency of the evidence in a habeas
corpus petition. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667,
673–674; In re Miller (2017) 14 Cal.App.5th 960, 979.)
       Because no court has examined whether Marcus was a
major participant who acted with reckless indifference to human
life according to the standards enunciated in Banks and Clark,
Marcus argues that the prior special circumstance finding does
not show as a matter of law that he is ineligible for resentencing
under section 1170.95.
       The Attorney General argues, however, that in order to
challenge the validity of a felony-murder special circumstance,
a defendant must file a petition for a writ of habeas corpus.
He may not seek relief via section 1170.95. We agreed
with this position in our recent opinion in Galvan, supra,
__ Cal.App.5th __ [2020 WL 4462175], and we do so again here.
       As we explained in Galvan, a defendant subject to a
pre-Banks and Clark special circumstance is ineligible for




                                11
resentencing under section 1170.95 because of the basis of
his claim. Although Marcus asserts that he could not now
be convicted of murder, “the alleged inability to obtain such
a conviction is not ‘because of changes’ made by Senate Bill
No. 1437, but because of the clarification of the requirements
for the special circumstance finding in Banks and Clark.
Nothing about those requirements changed as a result of
Senate Bill No. 1437. Just as was the case before that law
went into effect, the special circumstance applies to defendants
who were major participants in an underlying felony and acted
with reckless indifference to human life. If [the defendant]
is entitled to relief based on Banks and Clark, the avenue
for such relief is not section 1170.95, but a petition for writ
of habeas corpus.” (Galvan, supra, ___ Cal.App.5th ___ [2020
WL 4462175 at p. *4].)
       By requiring a defendant to seek relief via habeas corpus,
we avoid creating a disparity in which similarly situated
defendants’ cases are evaluated under different standards based
solely on the date of their convictions. Defendants convicted
after the Supreme Court issued its decisions in Banks and Clark
would be required to challenge the sufficiency of the evidence
of the special circumstance finding on direct appeal, where
the People would need only to show that substantial evidence
supported that finding. If the judgment is affirmed, it would
be the law of the case in any proceedings thereafter as to those
findings. (In re Saldana (1997) 57 Cal.App.4th 620, 625; see also
In re Harris (1993) 5 Cal.4th 813, 829 [“in the absence of strong
justification, any issue that was actually raised and rejected
on appeal cannot be renewed in a petition for a writ of habeas
corpus”].) “But where, as here, a defendant was convicted




                               12
before Banks and Clark, if the defendant could bring a collateral
challenge under section 1170.95, the prosecution would be
required to prove the special circumstance beyond a reasonable
doubt. (See [People v.] Gomez [(2020)] 52 Cal.App.5th 1[, 16].)
Yet nothing in the language of Senate Bill No. 1437 suggests that
the Legislature intended unequal treatment of such similarly
situated defendants.” (Galvan, supra, ___ Cal.App.5th ___ [2020
WL 4462175 at p. *5].)

                          DISPOSITION
      The trial court’s order is affirmed.
      NOT TO BE PUBLISHED.




                                      ROTHSCHILD, P. J.
We concur:




                  CHANEY, J.



                  SINANIAN, J.*




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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