In re Deandre Lamar Moore On Habeas Corpus
| Decision Date | 31 August 2021 |
| Docket Number | A154032 |
| Citation | 68 Cal.App.5th 434,283 Cal.Rptr.3d 584 |
| Parties | IN RE Deandre Lamar MOORE on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
Michael J. Brennan and Heidi L. Rummel for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano and David H. Rose, Deputy Attorneys General, for Respondent.
* In People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ), the California Supreme Court examined the felony-murder special circumstance under Penal Code section 190.2, subdivision (d).1 Under that subdivision, a person who is guilty of murder but is not the "actual killer" and who aids or abets the commission of certain felonies that result in death may be sentenced to death or life without the possibility of parole if that person is a "major participant" and acts with "reckless indifference to human life ...." ( § 190.2, subd. (d).) In construing subdivision (d), Banks and Clark narrowed the circumstances under which a person may qualify for the felony-murder special circumstance.
Since Banks and Clark were decided, many defendants have filed habeas corpus petitions, challenging the sufficiency of the evidence supporting their felony-murder special-circumstance findings. In a number of those cases, the Courts of Appeal have summarily denied the petition only to have our high court issue an order to show cause requiring them to reconsider their summary denials under Banks and Clark .
That is what happened here. A jury convicted petitioner Deandre Moore of, among other things, murder ( § 187 ) and robbery ( § 211 ) and found true the special circumstance that the murder was committed during a robbery ( § 190.2, subd. (a)(17) ). Citing Banks , Moore filed a petition for writ of habeas corpus with this court, challenging the sufficiency of the evidence for the robbery-murder special-circumstance finding—which we summarily denied. The California Supreme Court then issued an order to show cause why Moore is not entitled to the relief he requested in his petition. Our high court also ordered this court to consider "whether [Moore's] youth at the time of the offense should be one of the factors considered under" Banks and Clark .
We now conclude that a defendant's youth at the time of the offense should be a factor in determining whether that defendant acted with reckless indifference to human life under section 190.2, subdivision (d). Considering the totality of the circumstances, including the fact that Moore was only 16 at the time of his offenses, in light of Banks , Clark , and their progeny, we find insufficient evidence to establish that Moore acted with the requisite reckless indifference to human life. We therefore vacate the robbery-murder special-circumstance finding and remand this case for resentencing.
On the evening of December 3, 1991, codefendants Athain Russell and Moore (collectively, defendants),3 together with an accomplice, Brian Winston, stole a car from the parking lot of the Fashion Fair mall in Fresno. The trio drove through the mall parking lot until they spotted Robert Luecke, who was getting out of a parked car with his fiancée and younger sister. One of the defendants—presumably Russell—got out of the stolen car and robbed Luecke and his fiancée at gunpoint. After Luecke and his fiancée handed over their valuables, Russell, without provocation, fired two shots at Luecke at close range. One shot from the .22-caliber handgun hit Luecke's chest and passed through his heart, killing him.
Lonnie Packard testified in exchange for the prosecution's promise to dismiss burglary charges that were pending against him. According to Packard, on the late afternoon or early evening of December 3, 1991, he was driving on Geneva Street in Fresno, looking to purchase "rock cocaine." While he was there, Russell, whom Packard knew, approached his vehicle and told Packard he would pay for a ride across town. Packard agreed to give him a ride. Russell and his companion, Winston, then got into Packard's station wagon. At Russell's request, Packard drove to several locations in an attempt to find Moore. Eventually, they found him standing in front of a residence on Geneva. Russell invited Moore to go with them across town to steal a vehicle. Moore agreed and got into Packard's car.
On the way across town, Packard stopped at an auto parts store to allow Moore, Russell, and Winston to purchase a "dent puller" and a pair of gloves to use in the auto theft.4 Packard then drove them directly to the Fresno Fashion Fair mall. Packard stopped in the parking lot while Russell, Moore, and Winston discussed what kind of car they wanted to steal. They also discussed carjacking a vehicle, but Packard said they were crazy and he would have no part of that. However, the three others agreed it would be a good idea to try a carjacking.
Packard then drove through the parking lot to the back side of Macy's. The other three continued to discuss what kind of car they wanted to steal. Eventually, Moore saw a car he wanted—a blue, two-door Mazda 626—and told Packard to pull over. Moore took the dent puller and quickly broke into the Mazda. When the Mazda's headlights came on, Russell and Winston left Packard's car and got into the Mazda with Moore. Packard had seen a handgun on the front passenger seat floor of his car while Moore, Russell, and Winston were in the car. After the three young men left, Packard noticed the gun was gone.
About the same time Moore, Russell, and Winston were stealing the Mazda, Luecke, his 13-year-old sister K.L., and his fiancée Mari G. were finishing up dinner at a restaurant in the Fashion Fair mall (6:30–7:00 p.m.). They walked out to Mari G.’s car, and Luecke drove them around the other side of the mall to go shopping at Macy's. They drove down a driveway that ran directly in front of Macy's and turned right down a parking aisle where the parking spaces angled away from Macy's. As they drove down the aisle, Mari G. noticed a car behind them. Although that car was going slowly, it did not pull into an empty parking space near the one where Luecke parked.
A few moments later, as the victims were getting ready to leave their car, Mari G. noticed the car that had been following them parked a few car lengths away. The car was facing the wrong direction in the one-way aisle. Mari G. mentioned to Luecke there were people in the car looking at them and said she thought they might be intending to steal a car. As a precaution, Luecke put a "club" type antitheft device on the steering wheel and took the car's portable CD player with him.
Luecke and his companions then left their car. As they did so, the suspicious car pulled up and a young, tall Black man got out of the passenger side. He approached Mari G., pointed a handgun at her, and demanded her wallet. Mari G. handed her entire purse to the gunman. The gunman then moved on to Luecke and demanded his wallet. Luecke handed over his wallet, as well as the bag containing the CD player he was carrying.
After surrendering his wallet, Luecke slowly backed away from the gunman with his hands up. When he stopped, the gunman fired a single shot at Luecke's chest. The gunman started to move backward but then took a step forward and shot at Luecke a second time, this time aiming downward. After he fired the second shot, the gunman returned to his car and got into the back seat. The car drove away.
Mari G. immediately ran into Macy's for help, while K.L. stayed with Luecke. An ambulance took Luecke to a local hospital. Doctors pronounced him dead shortly after he arrived. An autopsy revealed that a single small-caliber bullet struck Luecke in the chest and passed through his heart, killing him. The pathologist recovered the bullet from Luecke's body.
At trial, Mari G. identified Moore as the triggerman. However, other witnesses who were in the parking lot and had observed the shooting described the assailant as a "tall" Black man. Moore was only 5' 6? tall, while Russell was 6' 1? tall at the time of the shooting. Several of the witnesses agreed the gunman was wearing a long, black parka inscribed with a sports insignia.
Shortly after the shooting, a witness observed a blue car stopped behind her car at a red light. The car had almost rear-ended her before stopping. Looking into her rear-view mirror, the witness saw three young Black men laughing. The witness identified Moore and Russell as two of the young Black men in the blue car.
The day after the shooting, Packard saw Russell on Geneva Street. He asked him if they had "done" the shooting at the Fashion Fair mall. Russell said they had. According to Packard, Russell seemed "happy" about it.
A witness who observed the shooting tried to memorize the license plate number of the assailant's car. That number was communicated to the police. In the meantime, the owner of the stolen blue Mazda—Mary H.—called the police to report that her car had been stolen from the Fashion Fair parking lot. An officer who responded to the scene of the shooting noticed that the license plate number of the gunman's vehicle was similar to the license plate number of Mary H.’s stolen vehicle. This information was broadcast over police channels. The broadcast specified that Mary H.’s car was a suspect vehicle in the Fashion Fair murder.
About 9:20 p.m., Fresno police officers spotted Mary H.’s stolen car. The car was parked on the side of a road about seven miles from the Fashion Fair mall. When the police found the car, its engine was still running. The passenger side door lock and the ignition had been "punched"; that is, they had been forcibly removed with a tool. Inside the car, the police found a dent puller, .22-caliber shell casings, live .22 bullets, a compact disc...
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