People v. Sewell
| Docket Number | A164650 |
| Decision Date | 23 June 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DARREN SEWELL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 84490B)
In 1987, a jury convicted Darren Sewell of murder and robbery. Sewell was sentenced to an aggregate term of 25 years to life plus 16 months in prison. In 1989, the judgment was affirmed by a different panel of this court. (People v Sewell (Dec. 14, 1989, A040701) [nonpub. opn.] (Sewell I).)
The present appeal is from an order denying Sewell's 2019 petition to vacate his murder conviction and resentence him for robbery. (Pen. Code, § 1172.6.)[1] According to the petition, Sewell was convicted of murder pursuant to a theory of vicarious liability that is no longer viable and he could not presently be convicted of murder under California law as amended by changes to sections 188 and 189, made effective January 1, 2019. After issuing an order to show cause and conducting an evidentiary hearing the trial court denied Sewell's petition. On appeal, Sewell contends the trial court made erroneous evidentiary rulings and challenges the sufficiency of the evidence to support the trial court's findings. We affirm.
On December 21, 1985, Earl McKeever was found dead in his home by fire department officers responding to a report of arson. Sewell and his acquaintance, Michael Pinkston, were arrested in connection with McKeever's death and subsequently charged with multiple offenses, including murder, robbery, and arson.
At an April 1986 preliminary hearing, the prosecution presented evidence regarding the crimes committed against McKeever, a 38-year-old man who had been severely disabled by cerebral palsy and was also hearing impaired. On December 21, 1985, at around 1:27 a.m., police were dispatched to McKeever's Berkeley residence in response to a report of a homicide. When they arrived, McKeever's dead body was outside on a stretcher. His throat was cut, and he had been stabbed multiple times. The inside of his home had sustained substantial fire damage and showed signs of a theft. Police found a bloody butcher knife with a broken tip on the floor near a pool of blood and a second smaller knife wrapped in a cloth. McKeever's father reported that many items were missing from his son's home, and that McKeever's van was also gone. Fire investigators determined that McKeever's residence was the target of arson. The results of an autopsy established that McKeever was stabbed more than 38 times and that he died from shock and hemorrhage due to multiple stab and incised wounds associated with a fracture of his larynx.
At the preliminary hearing, the prosecution also presented evidence that Sewell was McKeever's assailant. In December 1985, he was employed by McKeever to do light housekeeping, prepare evening meals, and help McKeever with nighttime routines. At around 3:00 a.m. on December 21, less than two hours after McKeever's body was found, Sewell and Pinkston showed up at the home of Sewell's friend, Travis Davis. Sewell wanted to talk to Davis's brother, Finnard Brown, but Brown was not home. Sewell told Davis that he and Pinkston had just killed someone, and if "anything was to go down" Davis was to say that they had been at Davis's house. Sewell also asked Davis if he knew where to sell "T.V. sets." Later that morning, Sewell called Brown and asked him to tell people that Sewell and Pinkston had been at Brown's home the previous night between 8:30 and 9:00 p.m. When Brown asked why, Sewell said he "killed somebody," and then hung up. A few days later, Sewell called Brown again and told Brown that he had "got over on some T.V.'s and things." Brown asked who Sewell had killed, to which Sewell responded that he had killed his "boss" because his boss "saw them taking his stuff." Subsequently, when Brown was interviewed by police, he reported that Sewell told him that Pinkston had shot Sewell's boss. While investigating McKeever's homicide, the police found McKeever's missing van parked a few blocks away from Sewell's home.
In October 1986, Sewell filed a motion to sever his case from Pinkston's case for purposes of trial on the ground that Pinkston had made extra-judicial statements identifying Sewell as the person who actually killed McKeever. Sewell argued that admitting Pinkston's statements into evidence at a joint trial would violate Sewell's rights. Months later, in May 1987, the trial court denied a motion to suppress Pinkston's confession to the police, and granted motions to sever the defendants' cases for trial.
Sewell's jury trial was held in June 1987. The trial transcript is by all accounts no longer available. According to a minute order from day six of trial, Pinkston invoked his Fifth Amendment right not to testify as a prosecution witness. On day ten, the jury reached a partial verdict. Sewell was found guilty of first degree murder and robbery, but the jury deadlocked as to the arson charge. The jury was also unable to reach a unanimous verdict as to an allegation that Sewell personally used a knife during commission of the murder, but it found that Sewell did not personally use a knife as a deadly weapon or personally inflict great bodily injury on McKeever during the robbery.
Sewell's sentencing hearing was held in November 1987. The court found, among other things, that the crime was brutal, the victim was vulnerable, Sewell suborned perjury, attempted to secure a false alibi, and attempted to dissuade witnesses from testifying against him. The one mitigating factor found by the court was Sewell's lack of a prior criminal record. The court also made a record of the fact that it had considered a report from the Youth Authority, which had completed an assessment of Sewell's case because he was a minor when the crimes were committed. The People "fully" concurred with the report, which found Sewell was not amenable to being housed at the Youth Authority. The prosecutor argued further that Sewell was not eligible for such a commitment. The defense disagreed and asked the court to defer the matter and allow the "adult authority" to decide where Sewell would be housed. The court denied this request, ordering Sewell to be sentenced to state prison for his offenses.[2]
In considering whether to impose consecutive sentences for the murder and robbery, the court observed that the trial evidence showed that an initial robbery occurred before the murder, and the killing was not inherently related to that original robbery but was committed in order to prevent McKeever from being a witness. Accordingly, the court sentenced Sewell to a principal term of 25 years to life for murder and a consecutive term of 16 months for the robbery.
In December 1989, the judgment was affirmed in Sewell I. According to the decision's summary of the procedural history of this case, the "prosecution's theory was that McKeever was killed in the course of a robbery perpetrated by Sewell and Pinkston and that Sewell was thus guilty of robbery and felony murder." Sewell I also reflects that the jury was instructed regarding the felony murder rule and the law pertaining to aider and abettor liability. The appellate court rejected claims that the trial court erred by failing to instruct the jury on theft as a lesser included offense of robbery and involuntary manslaughter as a lesser included offense of murder, finding insufficient evidence to support either instruction. The Sewell I court also found Sewell's consecutive sentence for robbery did not violate section 654 because the evidence showed that the killing of McKeever was not part of the robbery but a separate act based on the separate objective of covering up a robbery.
In his January 2019 petition for resentencing, Sewell alleged that he was charged and convicted of McKeever's murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of that murder because of changes to section 188 and 189 that went into effect on January 1, 2019. Sewell alleged further that he was not the actual killer; he did not, with intent to kill, aid, abet or assist the actual killer; and he either was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony. The trial court appointed counsel for Sewell and ordered briefing on the petition.
In a May 2019 response to the petition, the People argued Sewell was not eligible for resentencing. They acknowledged "this case was a felony murder," and that the verdict indicates the jury did not believe Sewell was the actual killer. Nevertheless, the People argued that assuming Sewell was not the actual killer, they could prove that he is guilty of McKeever's murder under current law, based on evidence establishing he was a major participant in the crime and acted with reckless indifference to human life. (Citing People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).)
In a July 2019 reply brief, Sewell argued that he had made a prima facie case for resentencing relief and that the People could not carry their burden of proving him guilty of murder as an aider and abettor because the record from his jury trial has been destroyed.
A hearing on Sewell's resentencing petition was continued multiple times.[3] On January 26, 2022, the court found Sewell made a prima facie case in support of his request for resentencing, issued an order to show cause, and proceeded directly to the evidentiary phase of the proceeding pursuant to a stipulation with the...
To continue reading
Request your trial