Filed 04/12/22 P. v. Mackabee CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCEL MAURICE MACKABEE,

Defendant and Appellant.

 B306125

 (Los Angeles County

 Super. Ct. No. NA089655)

APPEAL from an order of the Superior Court of 

Los Angeles County, James D. Otto, Judge. Reversed and 

remanded with directions.

Barbara A. Smith, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Acting Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 
2

Senior Assistant Attorney General, Idan Ivri and Michael C. 

Keller, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________________________

INTRODUCTION

Appellant Marcel Maurice Mackabee appeals from the 

denial of his petition for resentencing under Penal Code 

section 1170.95.1 In 2013, a jury convicted appellant of

felony murder and found true a robbery-murder allegation 

under section 190.2 (the special circumstance statute). The 

jury was not instructed on the special circumstance statute’s 

requirement that the defendant at least have been a major 

participant in the underlying felony and have acted with 

reckless indifference to human life. (See § 190.2, subds. (b)-

(d).) We affirmed the judgment. (People v. Mackabee (June 

20, 2014, B250143) 2014 Cal.App.Unpub. LEXIS 4355 

(Mackabee I).) Our Supreme Court later clarified the 

meaning of the special circumstance statute in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark

(2016) 63 Cal.4th 522 (Clark), each of which articulated 

factors bearing on the major-participant and recklessindifference determinations. In 2018, appellant filed a 

petition for a writ of habeas corpus, contending the special 

circumstance finding was invalid because the trial record did 

1 Undesignated statutory references are to the Penal Code.
3

not contain any substantial evidence that he acted with 

reckless indifference to human life. The habeas court denied 

the petition, concluding the special circumstance finding was 

supported by substantial evidence. Appellant then filed a 

similar habeas petition in this court, which we summarily 

denied.

2

After the enactment of Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (SB 1437), which narrowed the felony murder 

rule by incorporating the special circumstance statute’s 

requirement that the defendant at least have been a major 

participant in the underlying felony and have acted with 

reckless indifference to human life, appellant filed in the 

superior court a petition for resentencing under section 

1170.95, alleging he was not guilty of murder in the wake of 

SB 1437. Without issuing an order to show cause, the court 

denied the petition on the basis of its determination that

appellant was a major participant in the robbery and acted 

with reckless indifference to human life, and thus was guilty 

even under the narrowed version of the felony murder rule. 

The court implied it had evaluated the trial evidence under 

the factors set forth in Banks and Clark.

On appeal, appellant contends the court erred in 

denying his petition without issuing an order to show cause. 

2 We have granted the parties’ requests for judicial notice of 

the record and opinion on appellant’s direct appeal. On our own 

motion, we also take judicial notice of appellant’s habeas petition 

in case number B296620 and our order summarily denying the 

petition.
4

The Attorney General disagrees, arguing (1) the court

properly determined the purportedly legal issue whether 

appellant was a major participant in the robbery and acted 

with reckless indifference to human life; and (2) under the 

doctrines of issue preclusion and law of the case, relief under 

section 1170.95 is precluded by the habeas court’s and this 

court’s orders denying appellant’s habeas petitions.3

We conclude the superior court erred in denying 

appellant’s petition without issuing an order to show cause. 

As the Attorney General concedes, the jury instructions and 

verdicts did not refute appellant’s allegations that he was 

not a major participant in the robbery and did not act with 

reckless indifference to human life. At the prima face stage, 

the court was not permitted to deem these factual

allegations untrue on the basis of its own evaluation of the 

3

The Attorney General disclaims any argument that relief is 

precluded by the robbery-murder special circumstance finding, 

which in light of the jury’s instructions did not necessarily reflect 

a finding that appellant was a major participant in the robbery 

and acted with reckless indifference to human life. Thus, as the 

Attorney General notes, we need not address the issue pending 

our Supreme Court’s review in People v. Strong, review granted 

March 10, 2021, S266606 -- viz., whether a felony-murder special 

circumstance finding made before Banks and Clark precludes 

relief under section 1170.95. (Issues Pending Before the 

California Supreme Court in Criminal Cases (April 2022) 

California Supreme Court 

<https://www.courts.ca.gov/documents/APR0122crimpend.pdf> 

[as of Apr. 5, 2022].)
5

evidence at trial. Nor could the court properly have denied 

relief in reliance on the habeas court’s and this court’s 

conclusions that the special circumstance finding was 

supported by substantial evidence. A finding of substantial 

evidence of guilt under a still-valid theory is insufficient to 

render a petitioner ineligible for resentencing. Thus, the 

superior court was required to issue an order to show cause 

and hold an evidentiary hearing -- at which the parties

might offer new or additional evidence -- to determine 

whether the prosecution proved beyond a reasonable doubt 

that appellant was a major participant in the robbery and 

acted with reckless indifference to human life (or was 

otherwise guilty of murder under a still-valid theory). 

Accordingly, we reverse the order denying appellant’s 

petition for resentencing, and remand the matter to the 

superior court with directions to issue an order to show 

cause and proceed in accordance with section 1170.95.

BACKGROUND

A. Underlying Judgment

The People charged appellant with the murder of 

Philip Victor Williamson and alleged, inter alia, that the 

murder was committed during the commission of a robbery 

within the meaning of the special circumstance statute. 

(Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS 4355, at 

*1.)
6

1. Trial Evidence

In 2011, Williamson was found in an alley in Long 

Beach, gasping for breath and bleeding from a gunshot 

wound to the back of his head, which proved fatal. 

(Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS 4355, at 

*2, *4, *9.) Minutes earlier, a Toyota 4Runner owned by 

appellant’s wife was recorded nearby. (Id. at *8, *20.) A 

police investigation yielded evidence that large quantities of 

marijuana and cash had gone missing from Williamson’s 

apartment. (Id. at *2-*4.) The police froze the bank 

accounts of appellant’s wife, who soon thereafter passed tens 

of thousands of dollars in cash to another woman in a 

shopping mall parking lot. (Id. at *7.)

As evidence that appellant had admitted his 

involvement in the murder, the prosecution relied on the 

preliminary hearing testimony of appellant’s uncle Ronnie 

Turner (who died before trial) and on two recorded police 

interviews of Ronnie’s son Chevez Turner (who asserted his 

right against self-incrimination at trial, declined to answer 

certain questions, and denied having told the police about 

conversations with appellant related to Williamson’s 

murder). (Mackabee I, supra, 2014 Cal.App.Unpub. LEXIS 

4355, at *8-*12.) According to appellant’s alleged admissions 

to Ronnie, appellant made a plan to rob Williamson of money 

and marijuana with two accomplices; during the robbery, 

one of appellant’s accomplices shot Williamson while they 

were in appellant’s wife’s 4Runner; and the three 

accomplices dumped Williamson’s body in Long Beach. 
7

(Id. at *8-*10.) Ronnie’s credibility was challenged on 

various grounds, including admitted inconsistencies in his

accounts about what appellant had told him. (Id. at *10, 

*23-*24.) Ronnie’s account at the preliminary hearing was 

also inconsistent, in some respects, with his son Chevez’s 

account to the police: appellant allegedly told Chevez that he 

and two companions visited Williamson’s apartment to buy 

marijuana, but the deal went bad, and one of his companions

“‘“wowed” out’” and shot Williamson. (Id. at *11-*13.) 

Appellant allegedly also told Chevez that his companions 

loaded Williamson’s body into appellant’s vehicle, which 

appellant drove to an alley in Long Beach, where they

dumped the body. (Id. at *11-*14.) 

Testifying in his defense, appellant admitted he and 

Williamson had spent time together at Williamson’s 

apartment on the day of the murder, and that he had been 

driving his wife’s 4Runner. (Mackabee I, supra, 2014 

Cal.App.Unpub. LEXIS 4355, at *15.) But he denied any 

involvement in the murder, claiming he had left

Williamson’s apartment without incident, and had driven to 

Long Beach only in order to visit his aunt’s house. (Ibid.)

2. Judgment and Appeal

The jury was instructed on felony murder premised on 

the robbery of Williamson; the prosecutor, conceding 

appellant was not the actual killer, argued he was 

nevertheless guilty of felony murder, even if the killing was 

accidental. The jury’s instruction on the robbery-murder 
8

special circumstance allegation omitted any requirement 

that appellant at least have been a major participant in the 

robbery and have acted with reckless indifference to human 

life. Consistent with that omission, the prosecutor argued 

the allegation was “just a repeat” of the felony murder 

charge, requiring only a finding that the murder occurred in 

the course of the robbery. 

The jury convicted appellant of the murder and found 

the special circumstance allegation true. The trial court 

(Judge Arthur Jean, Jr.) sentenced appellant to life 

imprisonment without the possibility of parole. On direct 

appeal, appellant contended his counsel had been ineffective 

for various reasons immaterial to this appeal. (Mackabee I, 

supra, 2014 Cal.App.Unpub. LEXIS 4355, at *1, *15-*16.) 

We affirmed. (Id. at *24.)

B. Habeas Petitions

In April 2018, appellant filed a habeas petition in the 

trial court, contending the robbery-murder special 

circumstance finding was invalid because the trial record 

lacked substantial evidence that he acted with reckless 

indifference to human life. After receiving informal briefing 

from the parties, the habeas court (Judge Marcelita V. 

Haynes) denied the petition. Analyzing the trial record 

under the Banks/Clark factors, the court concluded several 

factors were inconclusive or weighed in appellant’s favor, 

because (1) there was no evidence appellant supplied or used 

a gun, or that he knew his accomplices were armed or had 
9

committed prior violent acts; and (2) the record was unclear 

regarding whether appellant was present when Williamson 

was shot, or in a position to prevent the murder. But the 

court concluded other factors weighed against appellant, 

relying on evidence that appellant planned the robbery, 

drove Williamson to Long Beach after an accomplice shot 

Williamson in the head, and left Williamson in an alley to 

die. The court concluded “substantial evidence indicates” 

appellant was a major participant in the robbery and acted 

with reckless indifference to human life. 

In April 2019, appellant filed a habeas petition in this 

court, again contending the special circumstance finding was 

invalid because the trial record lacked substantial evidence 

that he acted with reckless indifference to human life. We

summarily denied the petition for failure to state a prima 

facie for relief, explaining: “Any rational trier of fact could 

have found beyond a reasonable doubt that petitioner acted 

with reckless indifference to human life as required by Penal 

Code section 190.2, subdivision (d), from the fact that 

petitioner, the mastermind of the robbery, drove the vehicle 

with the victim inside after the victim had been shot in the 

back of the head and dumped the victim in an alley while he 

was still alive, bleeding, and gasping for air.” 

C. Section 1170.95 Petition

In November 2019, appellant filed, through counsel, a 

petition to vacate his murder conviction under section 

1170.95, alleging he could not be convicted of felony murder
10

after SB 1437’s changes to the law because, inter alia, he 

was not a major participant in the robbery and did not act 

with reckless indifference to human life. In opposition, the 

prosecution relied on the habeas court’s finding of 

substantial evidence to the contrary. In March 2020, the 

superior court (Judge James D. Otto) held a hearing to 

determine whether to issue an order to show cause, at which 

appellant’s counsel submitted on the briefs, and the 

prosecutor briefly observed that appellant’s direct appeal 

and first habeas petition had been rejected. The court

denied the petition, stating: “Having reviewed the 

[Banks/Clark] factors as set forth succinctly in the case of [In 

re Parrish (2020) 58 Cal.App.5th 539], which sets forth the 

factors, and the Court of Appeal’s [opinion] affirming the 

conviction, I find the defendant [was] a major participant 

based on the conviction and acted with reckless indifference 

to human life.” Appellant timely appealed. 

DISCUSSION

A. Section 1170.95

Section 1170.95 permits a defendant who was 

convicted of murder under a felony murder theory to petition 

the sentencing court to have the conviction vacated and to be 

resentenced on any remaining counts when, inter alia, the 

petitioner could not be convicted of murder after SB 1437’s 

changes to the law. (See § 1170.95, subd. (a)(3).) These 

changes include the amendment of section 189, subdivision 

(e) to provide that a defendant is not guilty of felony murder 
11

unless the defendant: (1) was the actual killer; (2) acted with 

the intent to kill as an aider and abettor; or (3) was a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in the special 

circumstance statute. (See § 189, subd. (e); Stats. 2018, ch. 

1015, § 3.)

After ascertaining that the petition contains certain 

required information, the court must determine whether the 

petitioner has made a prima facie showing of entitlement to 

relief. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 

952, 960-968 (Lewis).) “[T]he ‘prima facie bar was 

intentionally and correctly set very low.’” (Lewis, at 972.) 

“[A]t the prima facie stage, a petitioner’s allegations should 

be accepted as true, and the court should not make 

credibility determinations or engage in ‘factfinding involving 

the weighing of evidence or the exercise of discretion.’” (Id.

at 974, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 

980 (Drayton).) Because the weighing of evidence is typically 

required in order to determine whether a defendant was a 

major participant in an underlying felony and acted with 

reckless indifference to human life, this determination is

typically inappropriate at the prima facie stage. (See People 

v. Clayton (2021) 66 Cal.App.5th 145, 154, review denied 

Sept. 15, 2021 [superior court erred in denying section 

1170.95 petition at prima facie stage; “‘The major participant 

and reckless indifference findings the trial court made based 

solely on the record evidence entail the weighing of evidence, 

drawing of inferences, and assessment of credibility that 
12

should be left to the factfinding hearing process

contemplated by section 1170.95, subdivision (d)’”]; accord, 

People v. Harrison (2021) 73 Cal.App.5th 429, 491; People v. 

Montes (2021) 71 Cal.App.5th 1001, 1008; Drayton, supra, 47 

Cal.App.5th at 982.)4

Where the court finds the petitioner has made a prima 

facie showing, it must issue an order to show cause and hold 

an evidentiary hearing on the petitioner’s eligibility for 

relief. (§ 1170.95, subds. (c)-(d).) “At the hearing to 

determine whether the petitioner is entitled to relief, the 

burden of proof shall be on the prosecution to prove, beyond 

a reasonable doubt, that the petitioner is guilty of murder 

. . . under California law as amended by [SB 1437]. . . . The 

prosecutor and the petitioner may also offer new or 

additional evidence to meet their respective burdens.” 

(§ 1170.95, subd. (d)(3).) “The question is whether the 

petitioner committed murder under a still-valid theory, and 

that is a factual question. The Legislature made this clear 

4

The prohibition against factfinding at the prima facie stage 

is subject to a limited exception: “‘if the record, including the 

court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.’”” (Lewis, 

supra, 11 Cal.5th at 971, quoting Drayton, supra, 47 Cal.App.5th

at 979.) “However, this authority to make [factual] 

determinations without conducting an evidentiary hearing . . . is 

limited to readily ascertainable facts from the record (such as the 

crime of conviction) . . . .” (Drayton, at 980.)
13

by explicitly holding the People to the beyond a reasonable 

doubt evidentiary standard and by permitting the parties to 

submit new or additional evidence at the hearing on 

eligibility.” (People v. Clements (2022) 75 Cal.App.5th 276, 

294.) “A finding that there is substantial evidence to support 

a conviction for murder . . . is insufficient to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1170.95, subd. (d)(3).)

B. Analysis

We conclude the superior court erred in denying 

appellant’s section 1170.95 petition at the prima facie stage. 

Appellant alleged, inter alia, that he was not a major 

participant in the robbery of Williamson and that he did not

act with reckless indifference to human life. As the Attorney 

General concedes, the jury instructions and verdicts do not 

show the jury necessarily found otherwise. At the prima 

facie stage, the court was not permitted to deem appellant’s 

allegations untrue on the basis of its own evaluation of the 

evidence at trial. (See People v. Harrison, supra, 73 

Cal.App.5th at 438 [“The resentencing court stated [at the 

prima facie stage] that the record of conviction showed that 

the evidence at Harrison’s trial was sufficient to prove 

beyond a reasonable doubt that Harrison had acted as a 

major participant with reckless indifference to the life of 

Harless . . . . To reach these conclusions, the resentencing 

court necessarily had to weigh the evidence from Harrison’s 

trial. This was improper”]; People v. Montes, supra, 71 
14

Cal.App.5th at 1008 [“The final ground on which the trial 

court found appellant ineligible for relief was because 

appellant ‘was a major participant who acted with reckless 

disregard for human life.’ We believe this constitutes 

inappropriate factfinding by the trial court at the initial 

prima facie stage of this process”]; People v. Clayton, supra, 

66 Cal.App.5th at 154; Drayton, supra, 47 Cal.App.5th at 

982.) 

We disagree with the Attorney General’s contention 

that the court’s ruling was proper in light of the habeas 

court’s and this court’s orders denying appellant’s habeas 

petitions. The habeas court’s order concluded only that

“substantial evidence indicates” appellant was a major 

participant in the robbery and acted with reckless 

indifference to human life; our order reached the same 

conclusion with respect to reckless indifference, resolving 

only what a rational trier of fact “could have” found. Even 

assuming those conclusions were binding on the superior 

court under the doctrine of law of the case, they did not 

warrant denial of the section 1170.95 petition, because a 

finding of substantial evidence of guilt under a still-valid 

theory is insufficient to render a petitioner ineligible for 

resentencing. (See § 1170.95, subd. (d)(3).) Similarly, 

because the substantial-evidence issue differed from the 

issue of appellant’s eligibility for relief under section 

1170.95, the doctrine of issue preclusion could not have

operated to preclude relief. (See DKN Holdings LLC v. 

Faerber (2015) 61 Cal.4th 813, 825 [issue preclusion applies 
15

only where “identical” issue was necessarily decided in prior 

proceeding].) 

In sum, we conclude neither the habeas orders nor 

anything in the record of conviction prevented appellant 

from clearing the “‘very low’” bar set by the Legislature at 

the prima facie stage. (Lewis, supra, 11 Cal.5th at 972.) 

Accordingly, we reverse the order denying appellant’s 

petition at that stage, and remand to the superior court with 

directions to issue an order to show cause and proceed in 

accordance with section 1170.95.5

5 We note that on remand, the court will not be bound by our 

habeas order’s unequivocal statement that, inter alia, appellant 

was the mastermind of the robbery. This statement implicitly 

reflected our presumption of all facts in support of the judgment 

that the jury reasonably could have found. (See People v. Morales

(2020) 10 Cal.5th 76, 88 [court applying substantial evidence 

standard “‘“‘presumes in support of the judgment the existence of 

every fact the trier could reasonably deduce from the 

evidence’”’”].) We neither concluded that the jury necessarily 

found the facts as we stated them, nor found those facts 

ourselves. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 

1008 [“In assessing how the evidence reasonably could have been 

evaluated by the trier of fact, an appellate court . . . must indulge 

reasonable inferences that the trier of fact might have drawn 

from the evidence” (italics added)]; People v. Rodriguez (1999) 20 

Cal.4th 1, 12-14 [reversing one Court of Appeal opinion, and 

disapproving another, for engaging in “appellate factfinding” in 

reviewing convictions for sufficient evidence].) Even had we 

purported to make findings of fact, they could not have been law 

of the case. (See Investors Equity Life Holding Co. v. Schmidt

(2015) 233 Cal.App.4th 1363, 1377 [“‘As its name suggests, the 

(Fn. is continued on the next page.)
16

DISPOSITION

The order denying appellant’s petition for resentencing 

under section 1170.95 is reversed. The matter is remanded 

to the superior court with directions to issue an order to 

show cause and proceed in accordance with section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

[law of the case] doctrine applies only to an appellate court’s 

decision on a question of law; it does not apply to questions of 

fact’”].)