People v. Saibu

• Decision Date: 26 July 2022
• Docket Number: D078391
• Citation: 81 Cal.App.5th 709,297 Cal.Rptr.3d 406
• Parties: The PEOPLE, Plaintiff and Appellant, v. Sadiq SAIBU, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 709

297 Cal.Rptr.3d 406

The PEOPLE, Plaintiff and Appellant,

v.Sadiq SAIBU, Defendant and Respondent.

D078391

Court of Appeal, Fourth District, Division 1, California.

Filed July 26, 2022

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, Valerie Ryan, and Anne Marie Spitzberg, Deputy District Attorneys, for Plaintiff and Appellant.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.

HUFFMAN, Acting P. J.

In 2008, a jury convicted Sadiq Saibu and Antonio Valentino for their roles in committing a robbery of a video store, two attempted robberies of a liquor store, and a murder and attempted murder in the same liquor store during one of the attempted robberies. Saibu appealed his conviction, arguing, among other things, that the trial court prejudicially erred in failing to instruct the jury with CALCRIM No. 703 with respect to the felony murder special circumstance allegation.¹ In the published portion of our opinion, we agreed with Saibu on the jury instruction contention and reversed the jury's true finding on the robbery-murder special circumstance under Penal Code ² section 190.2, subdivision (a)(17). (See People v. Saibu (2011) 191 Cal.App.4th 1005, 1014, 120 Cal.Rptr.3d 84.)

In 2019, Saibu filed a petition for resentencing under section 1172.6³ as to his murder conviction, contending he was not a major participant in the underlying felony murder and did not act in reckless indifference to human life. The superior court granted the requested relief.

The People appeal, arguing the superior court applied an incorrect legal standard when determining the merits of Saibu's petition. The People make clear they are not challenging the sufficiency of the evidence but rather are raising a pure legal issue for review.

While this case was pending, our Legislature enacted and the Governor signed into law Senate Bill No. 775 (Senate Bill 775) (Stats. 2021, ch. 551). Senate Bill 775 amended former section 1170.95 to expand eligibility for resentencing to persons convicted of attempted murder. As such, we ordered the parties to submit supplemental briefs regarding whether the trial court's finding and order under former section 1170.95 should also apply to the attempted murder conviction because it arises from the same robbery as did the murder. Both parties submitted supplemental briefs. The People concede that Saibu's conviction for attempted murder is now eligible for resentencing under Senate Bill 775. However, they point out that the parties did not address that issue below (because Senate Bill 775 was not in effect at the time) and argue they should be given the opportunity to present additional evidence and argument to show Saibu is guilty of attempted murder after changes to the felony murder law. In contrast, Saibu argues that we should find he is entitled to relief under section 1172.6 based on the superior's court's finding that he did not act with reckless indifference to human life.

Regarding the superior court's determination that Saibu is entitled to relief under section 1172.6 as to his murder conviction, we determine, on the record before us, the People cannot show that the court committed reversible legal error. As such, we affirm the order. However, we are hesitant to extend the superior court's finding on the murder offense to the attempted murder offense even though both offenses are based on the same robbery. The People represent that they would have emphasized other evidence in the record relevant to the attempted murder offense that was not pertinent to the murder conviction. We believe the People should have the opportunity to present such evidence to the superior court. As such, we remand this matter back to the superior court with instructions to issue an order to show cause (OSC) and hold an evidentiary hearing regarding whether Saibu is entitled to relief under section 1172.6 as to his attempted murder conviction. We offer no opinion regarding the results of that hearing. That said, because we are affirming the superior court's finding that Saibu is entitled to relief pursuant to section 1172.6 for his murder conviction, that issue may not be reargued below, and the court's findings as to that issue may not be challenged as part of the new section 1172.6 hearing. (See People v. Gray (2005) 37 Cal.4th 168, 196-197, 33 Cal.Rptr.3d 451, 118 P.3d 496.)

FACTUAL AND PROCEDURAL BACKGROUND⁴

"A. Factual background

"During the summer of 2005, Saibu and Valentino spent time with [R.J.], [K.C.], [K.C.'s] girlfriend [R.K.], [D.C.] and [K.B.] at [R.J.'s] mother's home on Clay Street in southeast San Diego.

"1. The July 7, 2005 Hollywood Video store robbery (counts 6 & 7 )

"At approximately 9:45 p.m. on July 7, 2005, two African-American men wearing hooded sweatshirts entered a Hollywood Video store on El Cajon Boulevard. One man was wearing a gray sweatshirt, and the other was wearing a black sweatshirt. Both men covered the lower portions of their faces with black bandanas. Shift leader [T.O.] was working near the entrance of the store that night. As the two men entered the store, [T.O.] turned to greet them. After she turned away, she heard one of the men shout, ‘Everyone get down. This is a robbery.’

"The man who was wearing the gray hooded sweatshirt had darker skin than the other man and was carrying a shotgun. The man with the shotgun said something like, ‘I don't want to have to kill someone tonight,’ or ‘Am I going to have to kill anybody today?’ The man in the black sweatshirt had a pistol and a black duffel bag. The man in the black sweatshirt went to the register and told [T.O.] to ‘[h]urry up’ and ‘[g]ive [him] the money.’ [T.O.] gave the man approximately $75 from the register. Another employee, [J.C.], emptied another register and put the money in the duffel bag that the man in the black sweatshirt was carrying.

"[M.G.] worked at the Hollywood Video store in an area of the store called Game Crazy. Game Crazy closed at 10:00 p.m., although the rest of the store remained open until midnight. [M.G.] was preparing to close Game Crazy when he heard someone yelling. [M.G.] saw a man wearing a gray hooded sweatshirt and holding a shotgun inside the store. That man told [M.G.] not to play around or mess with him. Based on the man's voice, [M.G.] believed that the man was African-American. [M.G.] gave the man approximately $650, which was the money for the night deposit from the Game Crazy register.

"[A.R.] and [S.J.] lived in an apartment located across the alley behind the Hollywood Video store. On the night of the robbery, they were moving out of their apartment. [A.R.] was driving a U-Haul truck down the alley intending to back the truck into the driveway of the apartment when he saw two individuals who were wearing baggy clothes—including hooded sweatshirts—looking into the Hollywood Video store. As [A.R.] was watching the men, they turned the corner and disappeared.

"[S.J.], who had just driven her car through the parking lot of the Hollywood Video store, drove into the alley and parked her car across the alley from the U-Haul truck. She heard someone yelling and then saw two men holding guns, running down the alley. The men had their hoods pulled up over their heads, partially concealing their faces. However, the lighting in the alley was good, and Jenkins could see the top portions of the men's faces. She believed that both men were African-American.

"[A.R.] also saw the men running through the alley. The men were wearing bandanas and holding guns. The men ran ‘full speed’ toward the U-Haul truck, and then ran through the small space between the truck and the apartment building. The men continued running to the end of the alley and turned right at the street. [A.R.] and [S.J.] ran into their apartment and did not go back outside until they saw that police officers had arrived.

"The Hollywood Video store had five surveillance cameras. San Diego police officers arrived at the store a few minutes after the robbery. [T.O.] provided the surveillance video of the robbery to Detective Ronald Hall. The video was played for the jury at trial. [T.O.] testified that the surveillance video accurately depicted the robbery.

"2. The July 12, 2005 T&M Liquor store attempted robbery (count 5 )

"At approximately 11:15 p.m. on July 12, 2005, [F.M.] was counting money and preparing the register receipts at the front counter of the T&M Liquor store, which is located on El Cajon Boulevard in the City Heights area of San Diego. [F.M.'s] girlfriend, [P.V.], was standing at the counter talking to [F.M.], waiting for him to close the store.

"[F.M.] saw a man wearing a black hooded sweatshirt with the hood over his head and a bandana covering his nose and mouth. The man pointed a shotgun at [F.M.'s] face and yelled for [F.M.] to ‘give him the money.’ The man also pointed the gun at [P.V.] and directed her to ‘get down’ and not to move. [P.V.] could see the man's face and could tell that he was a dark-skinned African-American.

"[F.M.] grabbed the money out of the register and threw it on the counter. The man told [F.M.] to put the money in a bag. As [F.M.] reached for a bag, he pressed the silent alarm button.

"[A.G.] was in the cooler at the back of the store when he heard a man yelling. [A.G.] heard the man say, ‘Put the money in the bag or I'm going to blow your head off,’ or something similar to that, and he concluded that ‘it was like a holdup.’ [A.G.] started running toward the front of the store and saw a man pointing a shotgun at [F.M.]

"[A.G.], who is in his 50's and is five-feet-four inches tall, came up behind the man and grabbed the man's elbows. The man was stiff and holding the gun high and close to his body. [A.G.] was able to lift the man about three or four inches off the ground and turn the man's body, and the gun, away from [F.M.] and [P.V.] [A.G.] and the man both fell to the floor, and [A.G.] landed on top of the man. The force of hitting the floor...