People v. Flores

• Decision Date: 29 March 2022
• Docket Number: F080584
• Citation: 76 Cal.App.5th 974,292 Cal.Rptr.3d 105
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marcos Eli FLORES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 974

292 Cal.Rptr.3d 105

The PEOPLE, Plaintiff and Respondent,

v.Marcos Eli FLORES, Defendant and Appellant.

F080584

Court of Appeal, Fifth District, California.

Filed March 29, 2022

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J.

INTRODUCTION

In 2010, petitioner Marcos Eli Flores pled no contest to the second degree murder of David Benjamin Smith. ( Pen. Code,¹ § 187, subd. (a).) For this offense and the related enhancements, the trial court sentenced petitioner to an aggregate term of 36 years to life.

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition on the ground petitioner had not set out a prima facie claim for relief.

On appeal, petitioner asserts he established a prima facie claim for resentencing relief, and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. We agree with petitioner and we reverse.

FACTUAL AND PROCEDURAL HISTORY

I. Criminal Prosecution

On March 18, 2009, Smith was found deceased, lying face down with tire tracks across his back on the side of the road in rural Fresno County.²

On March 25, 2009, the Fresno County District Attorney filed a first amended complaint, charging petitioner and his codefendant Loy Allen Bowman with Smith's murder ( § 187, subd. (a) ), with the special allegation that a principal was armed with a firearm ( § 12022, subd. (a)(1) ).

A. Preliminary Hearing

The court conducted a preliminary hearing on June 26, 2009. Two law enforcement officials testified at the hearing: Fresno County Sheriff Deputies S. Toscano and M. Eaton. Eaton was the primary investigator on the murder and Toscano the secondary investigator.

1. Toscano's Testimony

Toscano attended Smith's autopsy, where the medical examiner concluded Smith had five gunshot wounds, one each in his left forearm, right forearm, left shin, right shin, and left chest area. The doctor explained to Toscano that the trajectory of the arm and leg wounds indicated the bullets traveled from the lower part of the body to the upper part of the body, whereas the chest wound was from front to back. Additionally, Toscano testified that Smith had skull fractures and brain contusions, his jaw and neck were broken, and all the ribs on his left side were fractured or broken. Toscano and the doctor observed nine blunt injuries to Smith's head. The doctor determined the blunt injuries were the cause of Smith's death, with the gunshot wounds as a secondary cause.

Toscano spoke with petitioner's stepfather, Richard.³ Richard reported to Toscano that petitioner had borrowed Richard's older model Ford "dually" truck at approximately 9:30 p.m. on March 17, 2009. Richard next saw the truck the following morning at 3:30 a.m., when he noticed the door was ajar, the truck was dirty, a shawl and some towels were missing, and a pack of cigarettes was in the front seat.

Toscano also spoke with Bowman on the evening of March 18, 2009. He later received a call from a woman named Pamela, who identified herself as a friend of Bowman's mother. Pamela reported that she spoke with Bowman after Toscano's interview and Bowman seemed scared and nervous. Bowman reportedly told Pamela he was involved in Smith's murder but was not the shooter, and he inquired about using sleeping pills to commit suicide.

Toscano spoke with petitioner on March 21, 2009. Petitioner initially acknowledged borrowing Richard's truck, and reported that he went to Bowman's apartment, where he loaned the truck to Bowman and Smith. Bowman and Smith then went to the store for a long time. Eventually, Bowman returned and Smith did not. Bowman was panicking or scared, and was dirty with mud and blood.

Toscano told petitioner he did not believe petitioner was being truthful. Petitioner stated that he wanted to smoke a cigarette before he "snitched" on someone. Petitioner then told Toscano that he drove Bowman and Smith out into the county where "[t]here was an issue." Smith lost his cell phone and was upset and complaining. Petitioner pulled over to look for the phone. Bowman and Smith exited the truck first. As petitioner exited the truck, he saw Bowman with a .22-caliber rifle. Bowman shot Smith in the upper body and Smith fell to the ground. Bowman shot Smith another three to four times until the gun jammed. Bowman struck Smith several times with the rifle, as though it were a bat, at full force in the upper body and head. The rifle shattered in numerous pieces.⁴ At some point during the incident, petitioner tried to grab the rifle and injured his left hand. Toscano was able to see a small cut or laceration on petitioner's left hand.

Petitioner told Toscano that he and Bowman then left. Toscano asked petitioner a "couple times" whether Smith had been run over. Petitioner responded that he "wanted to say no" but was not sure. Toscano continued to question petitioner on this point. Petitioner eventually acknowledged that he felt a bump but did not know whether it was Smith. He stated he did not know if Smith was under the tire, and that he was scared and just "took off." After a break, Toscano questioned petitioner again on this point, and petitioner explained that he thought there was an issue with the truck's transmission, and he may have run over Smith twice – first while going in reverse and then again while driving forward. Petitioner told Toscano that if he did run over Smith, he did it accidentally. Petitioner told Toscano that he and Bowman left the scene, and petitioner then dropped Bowman off at his apartment and went home.

ii. Eaton's Testimony

Eaton was dispatched to the crime scene on the morning of March 18, 2009, where he encountered Smith's body face down in the dirt on the east shoulder of the roadway, approximately 10 feet from the road. Debris from what appeared to be a .22-caliber long rifle was located around the body in multiple pieces, however the barrel was intact. Eaton also found Smith's wallet and checkbook, .22-caliber shell casings, a folding knife, a pen, and pieces of a cell phone.

Eaton observed three sets of shoe tracks, one of which belonged to Smith. One of the other sets of tracks was in close proximity to the body and clearly involved in the "disturbance." The other set of tracks appeared to have exited from the passenger side of a vehicle and was "a little bit further [away]" from the disturbance, to the north and east. Eaton also observed tire tracks, which appeared to be from dual tires on the real axle of a vehicle.

The tracks were parallel to the roadway, and it appeared the vehicle initially reversed over the body in a southbound direction and traveled for approximately 40 feet, before going north and east back over the body. Eaton estimated the body was approximately five feet behind the truck on the passenger side before the truck started moving.

Eaton went to petitioner's residence on March 19, 2009, and observed a Ford pick-up truck with twin hubs on the rear axle parked on the curb in front of the residence. The tires on the truck appeared to have the same tread pattern that Eaton observed at the crime scene.

Eaton was present for Toscano's interview with petitioner on March 21, 2009. He also interviewed petitioner on March 24, 2009, and petitioner's statement on that date was similar to the one he gave on March 21, 2009. However, in the March 24, 2009, interview, petitioner was certain he ran over Smith. Petitioner told Eaton that he had driven the truck to the scene, where the engine was left running. After Smith was assaulted, petitioner got in the driver's side of the vehicle and he either put the vehicle in reverse or it slipped into reverse. He drove the vehicle as it backed over Smith, and then drove forward, driving over Smith again before driving away from the scene. Petitioner also told Eaton that he and Bowman had planned to confront Smith over drugs and money, and the plan involved a physical confrontation. According to Eaton, petitioner admitted "that he struck both Mr. Bowman and Mr. Smith" to try to get them to fight or confront each other over their issues. Petitioner later recanted that statement. Petitioner gave several different accounts of the shoes and clothes he was wearing on the night of the murder. Petitioner also reported that he drove alone to a car wash and washed the truck after leaving the scene.

Eaton also interviewed Bowman on three separate occasions. The first occasion was on the evening of March 18, 2009, at Bowman's apartment. Bowman was contacted because he was Smith's roommate. Bowman told Eaton he had not been aware Smith was deceased. He reported that he had spoken with Smith at approximately 4:00 p.m. the day before. He also "talked briefly" about a blue truck that was at "someone named Marcos's house," but Bowman could not take Eaton there because he had only been there once and did not know Marcos.

Eaton spoke with Bowman again on March 21, 2009, subsequent to Bowman's arrest. On that date, Bowman reported that he and petitioner were together on March 17, 2009, when petitioner borrowed the blue truck and drove Bowman home. There, they asked Smith to go with them to a friend's house. Smith agreed and, when they left, petitioner drove, Bowman was the front passenger, and Smith was the rear passenger. During the drive, an argument started between Smith and petitioner regarding a cell phone. Petitioner pulled over to try to find the cell phone. Petitioner stepped out on the driver's side and Smith stepped out on the passenger side. Petitioner and Smith were arguing, and Bowman was surprised when petitioner pulled out a .22-caliber rifle and pointed it at...