People v. Isaac

• Decision Date: 12 August 2021
• Docket Number: B305378
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ZOELEE ISAAC, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ZOELEE ISAAC, Defendant and Appellant.

B305378

California Court of Appeals, Second District, Second Division

August 12, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County. No. BA099542 Stephen A. Marcus, Judge.

Brad Kaiserman, 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 Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

ASHMANN-GERST, ACTING P. J.

On August 6, 1996, a jury convicted defendant and appellant Zoelee Isaac of first degree murder (Pen. Code, § 187 subd. (a); count 1)^[1] with a robbery-murder special circumstance finding (§ 190.2, subd. (a)(17)), robbery (§ 211; counts 2, 4 & 5), assault with a firearm (§ 245, subd. (a)(2); counts 3, 7-10), possession of a firearm by a felon (§ 12022, subd. (a)(1); count 12) and conspiracy to commit robbery (§ 182, subd. (a)(1); count 13). As to counts 1 through 3, the jury found principal firearm use allegations to be true (§ 12022, subd (a)(1)), and found both principal firearm and personal firearm use allegations to be true as to counts 4, 5, and 7 through 10 (§ 12022.5, subd. (a)). He was sentenced to 22 years eight months in state prison, plus life without the possibility of parole. On direct appeal, we modified defendant's sentence to strike a four-month principal armed enhancement attached to count 3 and affirmed the judgment as modified. (People v. Key (Aug. 5, 1998 B105415) [nonpub. opn.], pp. 3-4, 32 (Key).)

On January 2, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Over the People's opposition, the trial court found that defendant had established a prima facie case and held an evidentiary hearing pursuant to section 1170.95, subdivision (d). Following the presentation of evidence and argument, the trial court denied defendant's petition, finding that (1) he was a direct aider and abettor who had the intent to kill, and (2) he was a major participant in the crimes who acted with reckless indifference to human life.

Defendant timely appealed. On appeal, he argues that the trial court's order denying his section 1170.95 petition must be reversed because the trial court relied upon a material factual error, namely whether he was armed during the commission of the crimes, in denying the petition. Without that “fact, ” there is insufficient evidence that he either aided and abetted with intent to kill or was a major participant who acted with reckless indifference to human life. We are not convinced by defendant's arguments. Accordingly, we affirm the trial court's order.

FACTUAL BACKGROUND

I. The Home Bank murder and robbery (counts 1-3)

“On the morning of July 20, 1994, [Sonja] Key, [Timothy Thomas] Williams, [defendant], and one other man entered Home Bank. They were all armed. Key was wearing a wig. Williams, dressed in what appeared to be a brown United Parcel Service uniform, approached the bank guard Juan Corona. An argument and struggle for Corona's gun ensued. Key walked over to the two men. She began to struggle with Corona. She said, ‘Get him off me or I'll pop him.' Key shot Corona in the neck, and he subsequently bled to death. Key ordered everyone in the bank to the floor. [Defendant] and the fourth robber brandished their weapons and demanded money. They demanded that teller Jumpee Sue Martinez and corporate officer Roy Foster give them money from the teller drawers. They did so. The robbers took $2, 869 in all from unlocked teller stations and then fled in a stolen hot-wired van. They abandoned the van and were driven off in a Pontiac. The van contained wigs and a bucket of soapy water.” (Key, supra, B105415, at p. 6.)

II. The Gilmore Bank assaults and robbery (counts 4-10)

“On the morning of July 26, 1994, [Francis D.] Flowers, [defendant], Key and Tianay Robinson, ... all armed, entered the Gilmore Commercial and Savings Bank. All four were wearing wigs. As an elderly customer, Doris Ingber, was leaving the bank, Robinson threw her down and pushed her head to the floor. Then the four robbers announced that it was a holdup and demanded to know where the vault was. [Defendant] put a gun to the head of security guard Raymond Gomez, then threw him to the floor. Robinson shot Gomez as he lay on the floor. Flowers threatened the tellers at gunpoint and filled a grocery bag with $7, 580 from the tellers' drawers. Flowers demanded that teller Esmirna Lozano give him the money from her teller drawer. She did so. Flowers later slapped Lozano for saying she had no keys to teller Patsy Beene's drawer. Flowers and [defendant] pointed their guns at Patsy Beene, who at first refused to open her teller drawer. She later did so, and Flowers took the cash in the drawer. Flowers pointed his gun at Moses Aguilar, a teller, and demanded that he give him money. After Aguilar turned over his cash, Flowers ordered Aguilar to lie down on the floor.” (Key, supra, B105415, at pp. 6-7.)

“Either Flowers or [defendant] kicked open the door to the safe deposit area, where bookkeeper Ofelia Hovian was working. The robber held a gun to her head and he and Key demanded that Hovian show them where the money was. Hovian went under a desk, and the man kicked her in the side. Hovian showed the intruders where the safe deposit boxes were. The robbers fled in a hot-wired stolen blue Oldsmobile, which they later abandoned a few miles away. The Oldsmobile contained three white wet trash bags, one of which contained a soaked $1 bill.” (Key, supra, B105415, at p. 7.)

III. The Wells Fargo Bank conspiracy to commit robbery (count 13)

“On the morning of August 3, 1994, Williams, Robinson, and [defendant] were apprehended in a stolen hot-wired van within 200 feet of a Wells Fargo Bank. [William] Blackwell, Flowers, and Key were apprehended in a red Pontiac. Police, who had been watching defendants' activities, concluded that they were about to rob the bank. Key, Flowers, and Robinson had been wearing wigs when first seen, although they removed them before exiting the vehicles. Robinson, [defendant], Key[, ] and Flowers were all wearing heavy makeup. The police found loaded guns, a laundry basket with plastic trash bag liners filled with water, wigs, a pillowcase, and a police scanner and manual in the vehicles. They also found incriminating evidence in Key's apartment, from which the five had exited just before driving to the Wells Fargo Bank, and in [defendant's] residence.” (Key, supra, B105415, at p. 7.)

“Robinson, [defendant], and Blackwell gave statements implicating themselves in various of the events to police officers.” (Key, supra, B105415, at p. 8.)

IV. Court of Appeal prior opinion

On direct appeal, we affirmed the judgment. As is relevant to the issues raised in this appeal, we rejected defendant's claim that insufficient evidence supported the jury's finding that he acted with reckless indifference to human life. (Key, supra, B105415, at pp. 24-25.) “Here, the evidence showed that all of the Home Bank robbers were armed, not just the shooter. Key announced that she was going to shoot Corona unless someone ‘got him off her.' [Defendant] did nothing to prevent the shooting. After the shooting, the guard lay on the floor bleeding to death while the robbers gathered up cash before departing the bank. [Defendant] did nothing to come to his aid. There was sufficient evidence from which the jury could have concluded that [defendant] acted with reckless indifference to human life. [Citations.]” (Key, supra, B105415, at pp. 24-25.)

PROCEDURAL BACKGROUND

I. Defendant's section 1170.95 petition

On January 2, 2019, defendant filed a petition for resentencing and requested that counsel be appointed to represent him during the resentencing process. The trial court appointed counsel and requested briefing on the petition.

II. The People's opposition

On May 14, 2019, the People filed an opposition to defendant's petition. The People argued, inter alia, that defendant was not entitled to relief because both the jury at trial and the Court of Appeal on direct appeal found that he was a major participant who acted with reckless indifference to human life.

According to the People, they were tasked with proving that defendant was ineligible for resentencing beyond a reasonable doubt. And, they met that burden by proving that defendant was a major participant in the take-over robbery and murder of the bank's security guard. His conduct demonstrated his “active participation and reckless indifference to the victim's life as required by section 189, subdivision (e).” In support, they pointed out that defendant played a key role in the sophisticated plan to rob the bank. He and his crew took the bank's money and fled in a stolen van.

The People also asserted that defendant had to have been aware of the particular danger of his crime given that part of the plan was to take the security guard by surprise and then take his gun. And, defendant was in a position to facilitate or prevent the murder. He was present at the scene of the crime; Key told him that she was going to kill Corona if someone did not get him off of her; and he did not intervene or render aid to the dying man.

Attached to the opposition was a copy of Key, a copy of the jury verdict, and a copy of the jury instructions given at defendant's trial.

III. Defendant's response

Through counsel, defendant responded to the People's opposition. Among other things, counsel argued that defendant was entitled to an evidentiary hearing and that he was “eligible for resentencing under Section 1170.95 because he...