People v. Player
| Decision Date | 19 May 2022 |
| Docket Number | B311739 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MARCUS WILLIAM PLAYER, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No A900447, Nicole C. Bershon, Judge.
Marilee Marshall, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marcus William Player appeals from the trial court's order denying his petition under Penal Code[1]section 1170.95 to vacate his conviction for felony murder. Defendant contends the trial court improperly relied on evidence from a co-defendant's trial to find defendant was a major participant in the underlying felony and acted with a reckless indifference to life. Based on the trial court's comments at the evidentiary hearing, we conclude the challenged evidence was not in fact essential to the trial court's ruling, but merely reinforced a finding the trial court already had reached based on other evidence. In short the trial court made clear it would make the same finding even without the evidence from the co-defendant's trial.
Accordingly, we affirm.
The following summary is derived from our opinion in defendant's direct appeal, People v. Player (Jan. 2, 1985, 2d Crim. No. 45127) [nonpub. opn.] (Player). Several courts have held that recent amendments to section 1170.95 prohibit courts from relying on factual summaries from prior appellate opinions when making determinations under that statute. (See People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9; People v. Flores (2022) 76 Cal.App.5th 974, 981; People v. Clements (2022) 75 Cal.App.5th 276, 292 (Clements).) We include the following information solely to provide background and context for the parties' arguments, and do not rely on it to resolve this appeal.
Late in the evening on December 18, 1981, defendant proposed to Walter Fonteno that they commit a robbery. The two men went to the apartment of Andre Davis. Defendant's brother, Lavelle Player, was there as well.[2] Defendant explained his robbery plan and said he had a gun. Lavelle agreed to participate in the robbery.
The four men went outside and defendant showed them a gun he had in the trunk of his car. Lavelle asked if the gun worked. Defendant fired two shots into a vacant lot and told the others there were three bullets left in the gun.
Davis returned to his apartment and defendant, Lavelle, and Fonteno drove off in defendant's car. Defendant suggested they look for robbery targets near a Denny's restaurant, and the others agreed.
Defendant parked in the Denny's upper parking lot, divided by a fence from the lower parking lot. The three men saw a van pull into the lower parking lot. Defendant gave the gun to Lavelle, and Lavelle and Fonteno jumped over the parking lot fence and approached the van.
Toney Lewis and Carolyn Spence were in the van. Spence testified that as she and Lewis were getting out, two men approached them. One man told Spence it was a robbery and demanded her purse. The other man pointed a gun at Lewis and demanded his coat and wallet. Lewis said he did not have a wallet and would not give up his coat.
According to our prior opinion, (Player, supra, 2d Crim. No. 45127.)
Lewis told the gunman he would not give him anything, and the gunman said, "That's okay-you're going to die anyway." The gunman took a gold chain from around Lewis's neck and took the keys from the ignition. He then shot Lewis, and ran away with the other robber.
When Lavelle and Fonteno got back to defendant at the upper parking lot, he told them not to get in his car but to meet him back at Davis's apartment, which they did.
Investigators identified defendant, Lavelle, and Fonteno as suspects. Fonteno ultimately confessed, and agreed to a plea bargain for a five-year sentence in exchange for his testimony.
Defendant, while in jail, arranged to put pressure on Davis not to testify. Defendant also told his common-law wife not to testify.
At trial, the defense put forth witness testimony that defendant was at a bar at the time of the robbery and that Lavelle and Fonteno were responsible for the crime, not defendant.
A jury convicted defendant of first degree murder, robbery, and attempted robbery. The jury found true the special circumstance that the murder was committed while defendant was engaged in an attempted robbery, and also found true allegations supporting firearm enhancements. The trial court sentenced defendant to life without the possibility of parole for the murder, and stayed the sentences on the robbery and attempted robbery counts.
In defendant's direct appeal from his convictions, we reversed the special circumstance finding for instructional error, but otherwise affirmed the judgment. On remand, the trial court resentenced defendant to 31 years 8 months to life.
In 2018, defendant filed a petition to vacate his murder conviction under section 1170.95, claiming he could not be found guilty in light of amendments to the felony murder statute, section 189. Defendant was no longer in custody at this time.
The People filed an opposition, arguing, inter alia, that defendant either had an intent to kill or was a major participant in the robbery and acted with reckless indifference to human life, thus making him culpable even under the amended section 189. The trial court found the petition stated a prima facie basis for relief, appointed counsel, and issued an order to show cause.
As the parties prepared for the evidentiary hearing, most of defendant's trial record could not be located, including almost all of the reporter's transcript. The People provided the trial court with the transcript from the preliminary hearing, the transcript of the closing arguments at trial, police and probation reports, and our opinion from defendant's original appeal.
The People also provided the trial court with the record from Lavelle's separate trial. This included two volumes of clerk's transcripts, six volumes of reporter's transcripts, and the Court of Appeal opinion from Lavelle's direct appeal, decided by our colleagues in Division Three.[3] A difference between the summary of evidence in our prior opinion from defendant's direct appeal, and the record from Lavelle's trial, is attribution of the "Take the van" statement during the robbery. As noted, our prior opinion stated only that "someone" said, "Take the van." During Lavelle's trial, however, Fonteno testified it was defendant who said, "Take the van." This testimony attributing the statement to defendant also was included in the factual summary in Lavelle's prior appellate opinion.
Defendant argued below that the materials from Lavelle's trial were inadmissible because they were not part of defendant's record of conviction, and using testimony from a trial of which defendant was not a part was unfair and raised an issue under the Confrontation Clause. He also argued the police reports were inadmissible hearsay.
The People argued the probation and police reports were admissible as "reliable hearsay." The People similarly argued Lavelle's trial record, "in particular statements under oath, subjected to challenge, and corroborated by other evidence," as well as the opinion from Lavelle's direct appeal were "reliable" and therefore admissible. It was the People's position, however, that even without this additional evidence there was enough in defendant's own record of conviction, including the opinion from his direct appeal and the preliminary hearing transcript, to find him ineligible for resentencing beyond a reasonable doubt.
The trial court did not rule expressly on defendant's evidentiary objections, but the court's discussion of the evidence at the evidentiary hearing, described post, indicated it considered the police reports and Lavelle's trial transcript and appellate opinion as part of its analysis.
Before conducting the hearing, the trial court also raised the question of what standard of proof to apply when determining whether defendant was still guilty of murder despite the amendments to the felony-murder statute. At the time of the hearing the Courts of Appeal were split on the question, with some holding the trial court should decide as an independent factfinder whether defendant was still guilty beyond a reasonable doubt, and others holding the trial court should determine only whether there was substantial evidence from which a jury could find the defendant was guilty. (See People v. Garrison (2021) 73 Cal.App.5th 735, 745 (Garrison).)
Recognizing the split of authority, the trial court evaluated the evidence under both standards at the hearing. After hearing argument on March 26, 2021, the court concluded under either standard defendant was ineligible for resentencing under section 1170.95.
The court first explained its ruling under the substantial evidence standard. The People's theory was that defendant was guilty of felony murder under the amended section 189 because he was a major participant in the underlying robbery and acted with reckless indifference to human life. The court found it was "clear that [defendant was] a major participant," because the robbery was his idea, he chose the location and the victims, and provided the weapon. The court found it was "undisputed" that defendant "was the ring leader."
As for reckless indifference, the trial...
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