People v. Davis
| Decision Date | 17 August 2021 |
| Docket Number | E074748 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JIM DALE DAVIS, Defendant and Appellant. |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. ICR22535 John D. Molloy, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Jennifer B. Troung, Deputy Attorneys General, for Plaintiff and Respondent.
In 1996, a jury convicted Jim Dale Davis, the petitioner herein along with Theodis Nathaniel Brown and Jerome Pellum Holland of three counts of first degree murder (Pen. Code, § 187), [1] during which a principal was armed with a handgun (§ 12022, subd. (a)(1)) and all of which occurred during a robbery and burglary (§ 190.2, subd (a)(17)). The jury further found true the multiple murder special circumstance as to each defendant. (§ 190.2 subd. (a)(3).) Each was sentenced to four concurrent terms of life without the possibility of parole, plus one year.
In 2019, following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) and the enactment of section 1170.95, defendant petitioned for resentencing. The trial court denied the petition on the ground that defendant's jury was instructed pursuant to former CALJIC Instruction No. 8.80.1, that it could not make findings on the special circumstance allegation without first finding that defendant was a major participant and that he acted with reckless disregard, such that even following the amendments to sections 188 and 189, the convictions were valid. Defendant appealed.
On appeal, defendant argues that the 1996 special circumstances finding, which preceded the holdings of People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), does not suffice under current law. We affirm.
The facts are taken (with editing of some facts relating to the codefendants for brevity) from the record and decision in Davis's direct appeal, People v. Brown et al., (Oct. 6, 1998, E018586) [nonpub. opn.]. Defendant requested that we augment the record with the jury instructions given in the trial, which were part of the record on appeal and we granted it.
In March 1993, petitioner Jim Davis lived with his wife, two children, and Charity Zimmerle. He was selling methamphetamine from March through May of 1993 with Zimmerle's assistance.
Victim Robert Hogue was also selling methamphetamine in April of 1993. Davis bought methamphetamine from Hogue a couple of times in the beginning of April, but stopped doing business with him because he did not like Hogue's dope. Hogue lived in an upstairs apartment at the One Quail Place complex in Palm Desert. It was about 11 miles from Davis's house.
Approximately two weeks before the killings, Hogue refused to “front” Davis methamphetamine because Davis did not have any money. This upset Davis. Also, a few weeks before the killings, Davis told Zimmerle he wanted to kill victim Jerry Burris. Sometime after this, but before the killings, Davis told Zimmerle they would invite Burris to dinner and kill him because Burris knew too much. Zimmerle thought Davis was joking about killing Burris on both occasions.
About April 17, 1993, Theodis Brown, Orlando “Bone” Watley, and Kerry “K.J.” Parker[2] discussed a robbery plan with an individual named Damion Johnson in Johnson's bedroom at his group home. Brown said they planned to rob a White male who had a substantial amount of drugs, money and firearms and that he, Brown, could start a little business with the proceeds from the robbery. Watley indicated the man lived upstairs somewhere in Palm Springs or Palm Desert. Brown told Johnson that they needed a fourth person for the robbery and asked him to be that person. Because Johnson had been placed in juvenile hall for selling drugs in the past, he declined to take part in the robbery. Brown, Watley and Parker were wearing long black trench coats during this discussion. At one point, Brown and Watley showed Johnson the black ski masks they planned to use in the robbery. Johnson's foster mother walked into the room during this. When she did so, Brown and Watley attempted to hide or stow the masks. At this point, Watley had no injuries.
A few days later, Brown and Johnson continued the discussion of the robbery at Indio High School, where Johnson was a student and Brown was a part-time security guard. Brown repeatedly tried to convince Johnson to help with the robbery. Brown explained he planned to have two people go inside and gather the money drugs and guns while two others held whoever was in the apartment at gunpoint on their knees. Parker joined the discussion at one point.
On April 19, 1993, Kandi Croudy told Davis that victim Jeremy Burris had threatened her life during an earlier conversation about some property Burris had stolen from her friends. Croudy had known Davis for about six or eight months at this time. She was laughing about Burris's threat when she told Davis about it. Davis assured Croudy that, “he would be taken care of, ” or “he would take care of it.” He told her, Davis had already helped retrieve some of the property Burris had stolen. Burris had also robbed Davis and was not allowed around his house.
A couple of days before the killings, Burris told Davis, “Give me a line or I'm going to nark on you.” Davis did not appear to regard this as a joke.
On the afternoon of April 21, 1993, a 5-foot 10-inch, 200-pound African-American man parked Holland's truck across the street from Davis's house and walked over to Davis's driveway. That evening, victim Burris, along with Watley Parker, Holland and Davis, was at Davis's house. Around 9:00 p.m. Davis met with Brown for a few minutes by the gate outside Davis's home. By midnight, neither Watley, Parker, Burris nor Holland were at the home. Davis was not in his bedroom at this time, and although Zimmerle thought Davis was home, she did not know where he was. Watley's medical card, and Parker's and Watley's black sock hats were in Davis's bedroom. They had never left things like this in Davis's bedroom before.
Meanwhile, four teenagers, including Burris's brother, were visiting victims Hogue and Valerie Arnold at Hogue's apartment. During their visit, the group ingested methamphetamine which Hogue retrieved from a three-inch by five-inch brown wooden box on the living room table. It was this box of drugs which the prosecution alleged later became the object of the robbery and burglary. The group also smoked some marijuana. The four teenagers left on bicycles about 12:30 the next morning. Victim Burris had not been present during their visit.
About 1:30 a.m., the woman who lived across the hall from Hogue heard what sounded like six gunshots, followed by an unfamiliar male voice saying, “No.” The neighbor did not call 9 11 because she was not sure if the sounds she heard were gunshots.
A woman and a man were at the bottom of the stairs by Hogue's apartment when the shots were fired. The man recalled that he heard about three or four gunshots. About a minute later, the couple saw what appeared to be two men dressed in dark jackets with bandannas on their heads and faces run past them. The couple could not see what race the men were. One of the men appeared to be carrying a foot-long object under his jacket. The two men ran to the parking lot and dove into the back of a slow-moving small gray Mazda pickup truck, which looked similar to the one Holland owned.
A security guard for the apartment complex saw a silver truck which looked similar to Holland's driving through the complex with its headlights turned off at this time. It had Nevada plates that began with 85Z or B5Z. The truck exited the parking lot and stopped at an intersection. The guard saw the arm of an African-American man slap the back window of the truck and he heard him yell, “go.” The driver, a light complected African-American male, then ran a red light, turned on the headlights and turned left on Highway 111.
About 3:55 a.m. that day, Croudy arrived at Hogue's apartment. Hogue's front door was open about eight inches, the television was blaring and the lights were on. She called Hogue's name; nobody responded. She looked inside the open door and saw a body propped up against the couch and someone's legs on the floor. Croudy opened the door a little farther, looked inside the apartment and realized the people inside were hurt or dead. Croudy went to Hogue's neighbor's apartment and called 9 11. She also called Davis's house, and a couple of other people and told them what she had seen. Croudy also called victim Burris's mother, looking for him. She had not recognized Burris's body in Hogue's apartment. Burris's mother had called Davis's house around 3:00 a.m., looking for her son.
Riverside County Sheriff's Department deputies arrived at Hogue's apartment at 4:10 a.m. They found victim Burris lying with his back against the couch, victim Arnold slumped against a love seat and victim Hogue lying in the living room with his head in the hallway. The apartment did not appear to have been ransacked.
A Riverside County Sheriff's Department sergeant arrived at Hogue's apartment about 5:30 a.m. He found no signs of a forced entry or disturbances in the bedroom or living room. He found a black box with a microphone inside of it on...
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