Taylor v. Beard

• Decision Date: 21 January 2016
• Docket Number: No. 11–55247.,11–55247.
• Citation: 811 F.3d 326
• Parties: Ronald TAYLOR, Petitioner–Appellant, v. Jeffrey BEARD, Secretary of the California Department of Corrections and Rehabilitation, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

811 F.3d 326

Ronald TAYLOR, Petitioner–Appellant,

v.Jeffrey BEARD,^* Secretary of the California Department of Corrections and Rehabilitation, Respondent–Appellee.

No. 11–55247.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Sept. 10, 2015.

Filed Jan. 21, 2016.

Kurt David Hermansen (argued), San Diego, CA, for Petitioner–Appellant.

Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Eric E. Reynolds (argued), Deputy Attorney General, Los Angeles, CA, for Respondent–Appellee.

Before: SIDNEY R. THOMAS, Chief Judge and DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RONALD M. GOULD, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, MORGAN CHRISTEN and JOHN B. OWENS, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

In 1987, two men entered Lewis Lim's fast food restaurant, and one of them shot Lim dead. A jury found that Ronald Taylor was the shooter. Taylor was convicted and sentenced to life without parole for felony murder predicated on attempted robbery. After the trial, Taylor told the State that his cousin was the shooter but admitted that he was the second person—that he had traveled to and from the restaurant with his cousin and had been present at the killing. The State came to be persuaded that Taylor was not the shooter. Though its subsequent attempt to prosecute the person identified by Taylor as the actual shooter was unsuccessful, the State still supported an effort to have Taylor's sentence reduced to the shorter term that would apply to him if convicted as an aider and abettor and not as the actual shooter. That effort was ultimately successful, and Taylor was resentenced to a term of imprisonment with the possibility of parole.

Taylor objected, however, contending that his conviction should be entirely set aside. He argued that the jury's finding that he was the shooter meant that it had not found him guilty of felony murder on a theory of aiding and abetting as the person who accompanied the shooter. A finding of guilt on that aiding and abetting theory would have required an additional finding of specific intent, not required to find him guilty as the actual shooter. That claim was not addressed by the state courts, so Taylor petitioned the federal court for a writ of habeas corpus, under 28 U.S.C. § 2254, arguing that the State may not continue to hold him on the basis that he aided and abetted felony murder when the jury did not find the facts necessary for the aiding and abetting theory. The district court denied the petition, and Taylor appeals.

We affirm the district court's denial of Taylor's petition. Taylor had a fair trial. The jury verdict was valid, and the subsequent determination that Taylor was the second man, not the actual shooter, does not require that his conviction be set aside.

I. Background

The following facts emerged at trial and are undisputed. On November 19, 1987, petitioner Ronald Taylor and another man stole a car with the intent to use it to commit a robbery. At around 3:10 p.m. that day, the two men drove the stolen car to a Pioneer Chicken restaurant in Sunland, California. The first man entered the restaurant and requested the key to the lavatory from Rajinder Kaur, the attendant behind the counter. Kaur gave him the key and the man went out of the restaurant to the lavatory, which was entered from the outside. The man kept the lavatory door ajar and watched until two customers drove off. The second man remained outside, sitting either in the car or on its hood, able to see the lavatory.

The first man then reentered the restaurant, walked behind the counter into the kitchen area, and gave the key back to Kaur with his left hand while pulling a gun from his pocket with his right. The second man had by then also entered the restaurant and was sitting in the dining area near the restaurant cook, who was eating lunch. The owner of the restaurant, Lewis Lim, caught the attention of the gunman. While the gunman was distracted by Lim, Kaur went through the kitchen door to the dining area to summon help. The first man ("shooter") then punched Lim and shot him through the head. As Kaur tried to leave, the second man ("lookout") struck her on the back and threw her to the floor. The two men fled in the stolen car in which they had arrived. The car was later found wiped down with brake fluid to remove fingerprints, but Taylor's palm print was recovered.

Taylor was arrested and charged with murdering Lim in violation of California Penal Code § 187(a). The State also alleged three special circumstances which, if found true, would increase the sentence Taylor faced upon conviction. First, it alleged that Taylor committed the murder while in the attempted commission of a robbery in violation of Penal Code § 190.2(a)(17).¹ Second, the State alleged that Taylor personally used a firearm during the crime. Third, the State alleged that a principal was armed with a firearm during the offense.

There was a dispute at trial whether Taylor, if he was present at all, was the shooter or the lookout. The prosecutor argued that both men, shooter and lookout, were guilty of felony murder. Because Lim was killed during the course of the robbery, the lookout could be found guilty of felony murder under an aiding and abetting theory for attempting to rob the Pioneer Chicken, and the jury was so instructed. But, as the prosecutor acknowledged at the time, the jury could not properly find the § 190.2(a)(17) special circumstance "true" as to Taylor on an aiding and abetting theory.

Under California law, someone found guilty as "an actual killer" does not need to "have had any intent to kill at the time of the commission of the offense" for the special circumstance to be found true, but someone who aided and abetted the murder is subject to the special circumstance only if it is found that he acted with "the intent to kill." Cal.Penal Code § 190.2(b) - (c). The prosecutor conceded that he had not proven that the lookout had the intent to kill Lim, so he told the jury that it could not convict Taylor of the special circumstance if it found Taylor was the lookout. This made a difference for Taylor's sentence. Taylor would only be eligible for life without parole or the death penalty if the jury found the special circumstance true. Cal.Penal Code § 190.2(a). Otherwise, Taylor would be subject to the lesser term of 25 years to life with the possibility of parole. Cal.Penal Code § 190(a).

At trial Taylor could not deny, in light of his palm print, that he had helped wipe down the stolen getaway car, but he otherwise tried to minimize his involvement. His attorney argued that he wasn't "necessarily ... even there at the time of the robbery." If he was there, the attorney argued, he had no idea that the shooter planned to commit a robbery. Or, the attorney argued to the jury, the shooter might simply have wanted to execute Lim, not commit a robbery. If the jury believed this last theory, then even if it found that Taylor was the shooter, it could not convict Taylor of the first special circumstance, robbery murder.

In the face of the evidence against him, Taylor's defense amounted to a high-risk gamble. Taylor lost. The jury found him guilty of first degree felony murder, attempted robbery, and the unlawful taking of a vehicle, and found true the allegations that the murder was committed while Taylor was engaged in an attempted robbery and that Taylor personally was armed with and used a firearm.

After the verdict was rendered but before sentence was imposed, Taylor told his lawyer that he was present during the robbery but that someone else was the shooter. Taylor filed a motion for a new trial or, in the alternative, sought to strike the findings that he was the shooter and that he had personally used a firearm. The trial court denied that motion, and he was sentenced to life without parole. The verdict was upheld on appeal, and the California Supreme Court denied Taylor's petition for review.

Seven years later, hoping that "somehow [he wouldn't] die in prison," Taylor tried again to convince the State that he had not been the actual killer, identifying his cousin, Hugh Hayes, Jr., as the shooter. The Los Angeles Police Department and Los Angeles County District Attorney's Office concluded that Taylor's assertion was true, and the district attorney's office filed an information charging Hayes with murder. Taylor testified at Hayes's preliminary hearing that he and Hayes stole the car and drove around with a loaded gun looking for a place to rob, and that he had been with Hayes at the Pioneer Chicken during the attempted robbery. In 1999, Hayes was tried for the murder but was acquitted.

Despite the failure to convict Hayes as the shooter, the district attorney wrote to the California Board of Prison Terms requesting that Taylor's case be returned to the trial court for resentencing, given the new evidence that Taylor was not the shooter. The board denied the request.

Taylor continued to challenge his conviction and sentence in state court. In May 2005, while the California Supreme Court was considering a habeas petition filed by Taylor pro se, the district attorney again wrote to the California Department of Corrections and the California Board of Prison Terms to request that they recommend that the trial court recall Taylor's sentence and resentence him. The district attorney repeated that new evidence showed that Hayes, not Taylor, was the shooter. The California Supreme Court then instructed the California Attorney General to submit an informal response to Taylor's petition that addressed the district attorney's requests.

In its informal response, the State suggested that the California Supreme Court issue an order to show cause to the State regarding Taylor's claim that he was not the shooter....