Filed 04/1 2 /22 P. v. Mackabee CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

.

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE

,

Plaintiff and Respondent

,

v.

MARCEL MA URICE MACKABEE

,

Defendant and Appellant

. B 3 0 6125

(Los Angeles County Super. Ct. No. NA089655 )

APPEAL from a n order of the Superior Court of
Los Angeles County, James D

. Ot to , Judge. Reversed and
remanded with directions.
Barbar a 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.
Ke ller, 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 201 3 , 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 ( Mackab ee 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

- participan t and reckless

indifference 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
reckl ess 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 s ection
1170.95 , alleging he was not guilty of murder in the wake of
SB 1437. Without issuing an order to show cause, the court
d enied 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 i mplied it had evaluated the trial evidence under
the factors set forth in Banks and Clark

. On appeal, a ppellant 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

prope rly 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 pre cluded 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 instructio ns and
verdicts did not refute a ppellant’s allegation s 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,

t he court was not permitted to deem these factual allegations untr ue 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 circu mstance 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 add ress 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/ APR01 22crimpend.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 t he 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 p arties might offer new or additional evidence

-- to determine
whether the prosecution prove d 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 murd er 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 s ection 1170.95.

B ACKGROUND
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. ( Mack abee 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 Ca l.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 William son’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 admitt ed his involvement in the murder, t he 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 sel f

- incriminatio n 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 inconsistenc ies in his

account s about what appellant had told him. ( Id. at *10,
*23

- *24.) Ronnie’s account at the prelim inary hearing was also inconsistent, in some respects, with his son Chevez ’s account to the police : a ppellant 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

- *1 3 .) 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 *1 5.) But he denied any involvement in the murder, claiming he had left
Williamson ’s apartment without incident , an d 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 pr emised 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

- murder8

special circumstance a llegation 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, requir ing 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 appe llant to life imprisonment without the possibility of parole. On direct appeal, appellant contended his counsel had been ineffective
for various reason s immaterial to this appeal . ( Mackabee I

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

- *16.)
We a ffirmed. ( 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 r eckless
indifference to human life. After receiving informal briefing from the parties, t he habeas court (Judge Marcelita V. Haynes) denied the petition. Analyzing the trial record
under the Banks / Clark factors, the court concluded several
factors were i nconclusive 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 had9

committed p rior 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
Will iamson in the head, and left Williamson in an alley to
die. The court concluded “substantial evidence indicates”

a ppellant 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 th e trial record lacked substantial evidence
that he acted with reckless indifference to human life. W e summarily den ied the petition for failure to state a pri ma 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 Novemb er 2019, appellant filed, through counsel, a petition to vacate his murder conviction under s ection
1170.95 , alleging he could not be convicted of felony murder10

after SB 1437 ’s changes to the law because, inter alia, he was not a major participant in the r obbery 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, t he superior court (Judge James D. Otto) held a hearing to
determ ine 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: “Hav ing 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 particip ant 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 sentenci ng 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 murder11

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 P

eople 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 , th is 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 s ection 1170.95 petition at prima facie stage; “‘The major parti cipant 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 that12

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 showin g, 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 th e 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 burde ns. ” (§ 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 li mited 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 convict ion) .

. . .” ( Drayton , at 980.)13

by explicitly holding the People to the beyond a reasonable
doubt eviden tiary 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 n ecessarily 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 4 38 [“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
H arless .

. . . To reach these conclusions, the resentencing court necessarily had to weigh the evidence from Harrison’s trial. This was improper”]; People v. Montes

, supra , 7114

Cal.App.5th at 1008 [“The final ground on which the trial court found appellan t 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 peti tions. 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 indiff erence , resolving only what a rational trier of fact “could have” found . Even assuming th ose 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
findi ng 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 eli gibility 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 applies15

only where “identical” issue was necessarily deci ded 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, w e 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 state ment 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 r easonably 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 reasonabl y 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 o f 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 H olding 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 pet ition for resentencing
under s ection 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 s ection 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’”].)