Filed 12/23/22 P. v. Drumm er CA6

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Respondent ,

v.
MARCELLOUS BERNARD DRUMMER , Defendant and Appellant

. H0 48576 ( Santa Clara County Super. Ct. No. C1477595 )

Opinion following remand from Supreme Court.

In November 201 4 , a Santa Clara County jury found defendant Marcellous
Bernard Drummer guilty of six crimes related to a home invasion robbery , including murder (Pe n. Code, § 187 1 ) , robbery of an inhabited place while acting in concert (§§ 211, 213, subd. (a)(1)(A) ) , battery (§ 242 ) , criminal threats (§ 422), and two counts of false imprisonment (§§ 236, 237 )

. The jury also found true a robbery

- murder special circumstance allegation (§ 190.2, subd. (a)(17)) and gang sentence enhancement allegations (§ 186.22, subd. (b)(1))

. Additionally, t he trial court found true a prior prison

1 Unspecified statutory references are to the Penal Code.2

term allegation ( former § 667.5, subd. (b)). At sentencing , t he trial court imposed a determinate term of 11 years and consecutive indeterminate terms of life imprisonment
without the possibility of parole and 15 years to life. Drummer appealed th e judgment of
conviction

. During the pendency of Drummer ’ s direct appeal, our Supreme Court clarified the meaning of the felony

- murder special circumstance statute in People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ). In June 2017, this court reversed the judgment a nd d irected the trial court to strike

a 10

- year gang sentence enhancement imposed on the murder count , strike the battery conviction, and correct certain errors in the abstract of judgment. (See People v.
Drummer (June 15, 2017, H041826) [nonpub. opn.] ( D rummer I )

. 2 ) In his appeal, Drummer did not raise any claim of error based on Banks or Clark . (See Drummer I , supra , H041826

. ) In September 2019, Drummer filed a petition in the trial court to vacate his murder
conviction and be resentenced under former section 1170.95 (hereafter petition). 3 In
October 2020 , the trial court den ied Drummer’s petition without issu ing an order to show

cause

.

2 By separate order in this case, we granted Drummer’s request that we take judicial notice of our records in his direct appeal (case No. H041826 )

.

3 In 2021, the Legislature “amended s ection 1170.95 in several respects, including (1) clarifying that, in s ome circumstances, the same relief available to persons convicted of murder is also available to persons convicted of attempted murder or manslaughter [citation]; and (2) addressing various aspects of the petition procedure, including the petitioner’s righ t to counsel, the standard for determining the existence of a prima facie case, the burden of proof at the hearing to determine whether a petitioner is entitled to relief, and the evidence a court may consider at that hearing.” ( People v. Birdsall (2022) 77 Cal.App.5th 859, 865 , fn. omitted ; see Stats. 2021, ch. 551, §§ 1, 2, eff. Jan. 1, 2022 ). In 2022, the Legislature further renumbered section 1170.95 as section 1172.6 , with no change to the text of the statute (Stats. 2022, ch. 58, § 10, eff. June 30, 2022)

.3

Drummer appealed, and we reversed the trial court’s order. The California Supreme Court granted review and held this case pending its decision in People v. Strong (2022) 13 Cal.5th 698 ( Strong ). After it decided Strong , the Supreme Court remanded
this case to us with directions to vacate our prior decision and reconsider the matter in light of Strong

. Drummer filed a supplemental brief arguing that Strong requires reversal of the trial court’s order and remand to the trial court for an evidentiary hearing on h is petition. The Attorney General, by contrast, urges us to remand the matter and direct the trial court to determine whether a prima facie case has been established. For the reasons explained below, w e reverse the trial court’s order and remand
with di rections to issue an order to show cause and conduct further proceedings under
section 1172.6

. I. FACTS AND PROCEDURAL BACKGROUND
A. Facts of the Crime as Presented at Drummer’s 2014 Trial 4 Katrina Fritz worked as a prostitute and had a multi

- year rel ationship with
Raveesh Kumra . Raveesh shared a home with his ex

- wife , Harinder Kumra. Shortly after Thanksgiving in 2012, Fritz’s younger brother, DeAngelo Austin , told Fritz that he was going to go to the Kumras’ house, which Fritz understood to mean that Austin was going to rob the Kumras

. Later, Austin and Drummer met with Fritz . Drummer had
known Austin since childhood , and they were members of the same crimina l street gang.
Drummer also had known Fritz for about 10 years. During the ir meeting, Fritz gave Austin a sketch of the Kumra s ’ house a nd pointed out Raveesh’s and Harinder’s
bedrooms. Drummer “ said something like, ‘ I bet you they have a lot of gold. ’ ” A third man sat inside Austin’s car during th e meeting. On the night of November 29, 2012, Harinder a woke w hen Austin entered her
bedroom. Austin hit , threatened , and walked Harinder downstairs t o the kitchen. When

4 We take these facts from this court’s opinion in Drummer I , supra , H041826 and the trial record

.4

Harinder got to the kitchen, “ she saw Raveesh standing up with his hands tied behind his back. Raveesh was struggling and asking for help. The m en pushed Raveesh to the
floor. [¶] Harinder twice said, ‘ Don’t push him. He’s a heart patient. He’ll die. And he has a breathing problem. ’ ” The men blindfolded and bound Harinder and told her to lie
down on the floor. “ Someone yelled at her, ‘ Don’t move. You’re moving, ’ and then hit her on the legs. ” The men took the jewelry Harinde r was wearing , and o ne of the robbers
asked her the location of the money and safe. “ Harinder said to [the men] many times,

‘ He has not moved. Please check him out. Please check him. ’ There was a person sitting near her, who told her that Raveesh was o kay. He said, ‘ Don’t worry. We’ll call 911 if anything goes wrong. Okay? ’ He later said, ‘ I’m going to gather the other people

now. We will be going very soon, but don’t you get up. If you do, it won’t be good. ’ The man also told her, ‘ Okay. I’m go ing to gather people. Don’t get up until we come back and tell you when to get up. ’ He left and she waited. ” Eventually, Harinder freed
herself , retrieve d a cell phone , and call ed 911. Police and paramedics arrived and found Raveesh unresponsive. “The cause of death was probable asphyxia due to suffocation resulting from the duct tape over his mouth.” The robbers had ransacked the house and taken several items, including cash, coins, jewelry , and gifts

. Later, Fritz met Drummer and Austin at a restaurant. “[Drummer] told her, ‘ Shit.
It went bad.

. . . It went bad, like, he’s dead. ’

. . . As Austin later told [Fritz] what had happened, [Drummer] was agreeing with him. Fritz responded, ‘ [T]his is going to be
bad. ’ Both [Drumme r] and Austin told her not to worry and that they would confess to
the crimes. ” In addition, when asked by Fritz about his actions during the crime , Drummer said that he “just sat there and, like, watched [Raveesh]. ” 5 Austin gave Fritz $2,000 in cash at the restaurant and another $40,000 the following week.

5 In contrast to Fritz’s testimony about what Drummer had said to her about sitting and watching Raveesh , Harinder testified that she thou ght it was Austin who had sat near5

“A prosecution expert testified that [Drummer] was a possible contributor to the DNA collected from a swab of Raveesh’s right hand. In her opinion, it was 5,000 times more likely that [Drummer] c ontributed to the DNA on the swab than an unknown
individual in the African

- American population. Austin and Javier Garcia were contributors to DNA found on other items in the Kumras’ residence.” 6 Cell phone records showed that phone s associated with Dru mmer, Austin, and
Garcia were in the area around the Kumras’ residence on the night of the crime. Additionally, d uring a jail phone call, Drummer referenced a purse that police had seized
from his acquaintance , saying , “ ‘ That ain’t the purse [stolen from Harinder] so they gon’ be up and give [the acquaintance] that back. ’ ”
B. Instructions , Arguments , and Verdict s at Trial
At Drummer’s 2014 trial, the trial court instructed ( and the prosecution argued ) that the jur ors could find Drummer guilty of robber y ( personally or as an aider and
abettor ) and murder based on the natural and probable consequences of committing a robbery, the natural and probable consequence of an uncharged conspiracy to commit robbery, and/or felony murder. However, the instructions that specifically addressed the
elements of murder only instructed the jury as to first

- degree felony murder and told the jury that murder was charged in this case “ under a theory of felony murder .” Regarding the felony

- murder special circumstance allegation, t he trial court instructed the jury with CALCRIM No s

. 700 and 730 and a then

- current version of
CALCRIM No. 703

. Under CALCRIM No. 700, the jury was instructed that if it found
Drummer guilty of first degree murder, it als o had to decide whether the People have proved that the special circumstance is true

. Under CALCRIM No. 730, the jury was told

her during the attack, checked on Raveesh at her request, and ordered the other men around.

6 Austin and Garcia were tried together for this incident in April 2016 . (See People v. Garcia (2020) 46 Cal.App.5th 123, 130.)6

that the People had to prove: (1) the defendant aided and abetted or was a member of a conspiracy to commit robbery; (2) the de fendant intended to commit, or intended to aid and abet the perpetrator in committing or intended that a member of the conspiracy commit robbery; (3) if the defendant did not personally commit robbery, then a perpetrator whom the defendant was aiding and a betting before or during the killing or with whom the defendant conspired personally committed robbery; and (4) the defendant

or a perpetrator did an act that caused the death of another person. The instruction further required: “The defendant must have intended to commit, or aided and abetted or been a member of a conspiracy to commit the felony of robbery before or at the time of the act causing the death

. [¶] In addition, in order for th is special circumstance to be true, the People must prove that t he defendant intended to commit robbery independent of the killing.”
The instruction under CALCRIM No. 703 stated in part: “In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a m ember of a conspiracy, the People must prove either that the defendant intend ed to kill, or the People must prove all of the following: [¶] 1. The defendant ’ s participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participat ed in the crime, he acted with reckless indifference to
human life. [¶] A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of
death. ” In his closing ar gument to the jury, the prosecutor stated that the People “have no evidence [Drummer] was the actual killer” and “ [w] e don’t know where Mr. Drummer was when Mr. Kumra was taped.” The prosecutor also acknowledged that it was Fritz’s opinion that “neither h er brother nor Mr. Drummer had any intent to kill Mr. Kumra.”
Nevertheless , the prosecutor urged the jury to find the felony

- murder special7

circumstance true because Drummer was a major participant in the crime and acted with
reckless indifference to human life. On November 4, 2014, the jury returned a general verdict on the murder charge, finding Drummer guilty “in violation of Penal Code [section] 187, a Felony, as charged
in the Information

. ” Similarly, f or the special circumstance, the jury returned a general verdict, finding the “[a]llegation that Defendant was engaged in or was an accomplice in the commission, the attempted commission, or the immediate flight after the commission or attempted commission of a felony, Robbery, in violation of Penal Code [section] 211

or [sectio n] 212.5, within the meaning of Penal Code [section] 190.2 [, subdivision] (a)(17) to be [t]rue.” In a motion for a new trial, Drummer broadly contended that there was insufficient evidence for “the required intent or mental state as harbored by [him] in o rder to establish his guilt.” Drummer “further submitted that the evidence is insufficient as to the special
circumstance as set forth in [CALCRIM No.] 703. The evidence establishes that he was not the actual killer. The evidence does not satisfactorily establish that he was a major participant in the offense and it was not proved that he acted with the intent to kill or with
the reckless indifference to [human] life.” The prosecutor opposed Drummer’s motion, asserting there was sufficient
evidence to s ustain the jury’s verdicts. T he prosecutor again conceded Drummer was not
the actual killer and argued : “In order to find the special circumstance true, because the Defendant was not the actual killer, the Jury had to have found that the Defendant joined the robbery during or before the killing, he was a major participant and he acted with reckless indifference to human life.” In December 2014, the trial court denied Drummer’s motion for a new trial

. The
court noted the DNA evidence, cell phone evidence , and testimony of Fritz and Harinder,
and stated th at “a reasonable jury could easily come to the conclusion that this jury did.”8

C. D irect Appeal In his appeal from the judgment of conviction, Drummer filed his opening brief on September 28, 2016. The Attorney General filed her brief on November 21, 2016.
Drummer filed his reply brief on November 29, 2016.
Drummer did not raise any claim challenging the sufficiency of the evidence for
the jury’s special circumstance finding or otherwise mention Banks or Clark

— both of
which had been issued by our Supreme Court after Drummer’s trial but before he filed his opening brief. 7
As mentioned a nte , on June 15, 2017 , this court reversed the judgment with
directions to strike a gang sentence enhancement and the battery conviction and to correct the abstract of judgment. ( Drummer I , supra , H041826

. )
D. Proceedings on the Former Section 1170.95 Petition On September 9 , 2019, Drummer filed on his own behalf a petition for resentencing pursuant to former section 1170.95. He alleged that he was convicted of
first

- degree f

elony murder and could not be convicted under current murder law because he was not the actual killer, he did not aid or abet the actual killer with an intent to kill, he either was not a major participant in the felony or did not act with reckless indifference to
hum an life during the course of the felony, and the victim was not a peace officer performing his or her duties.
The trial court appoint ed counsel for Drummer and obtained briefing on the petition from the Santa Clara County District Attorney and Drummer’s c ounsel. The district attorney opposed Drummer’s petition arguing, inter alia, that the jury’s finding on

7 We note that Drummer’s appellate counsel wrote the following when claiming that section 190.2, subdivision (a)(17)(A) failed to meaningfully narrow the class of defendants subject to it: “Although there was no definitiv e evidence that Drummer was one of the actual killers, and the jury did not make an express finding, there was evidence to support such a finding.

. . . Thus, the jury may have concluded that Drummer was the actual killer, and found the special circumsta nce allegation true on that basis.”9

the felony

- murder special circumstance allegation rendered former section 1170.95 inapplicable and Drummer had not made the requisite prima facie show ing that he could
not be convicted of murder under current law. The district attorney asserted that “[t]he jury found that [Drummer], based on the facts adduced at the jury trial, was a major participant in the robbery who acted with reckless indifference to human life.” The district attorney also maintained that, regardless of the jury’s special circumstance finding, “the facts adduced at the jury trial provide uncontradicted evidence that [ Drummer ] was a major participant in the robbery who acted with r eckless indifference to human life.” In his reply to the district attorney’s opposition , Drummer argued that an order to
show ca u se should issue because , “[i]n light of the changes brought about by Banks and
Clark , ” he “could not now be convicted of murde r. That is, under the law as it stands today, he was not a major participant in the robbery and he did not act with a reckless
indifference to human life. ” Drummer also asserted that the jury’s special circumstance finding “does not negate the prima faci e case.” On October 20, 2020, the trial court denied Drummer’s petition without issuing an order to show cause. The court explained : “[I] n this case, the jury finding of special circumstance is part of the court record of conviction. [¶] I should also point [ out ] I’m uniquely familiar with the facts in this case because I tried the co

- defendant, DeAngelo Austin, who, along with Mr. Drumme r, were kind of the organizers of this home invasion that took place. [¶] But I am familiar with the facts, which is of no consequence, really, other than the fact that I am aware of testimony that came out during my trial with regard
to the actions of M r. Drummer during the home invasion, as well as actions of other people who were involved in this. [¶] So I think that testimony is also part of the court record of conviction, to an extent. But specifically, the jury finding of special
circumstance is part of the court record of conviction, and I think in this case

-- I think since the jury found the special circumstance to be true, at least upon the instructions that10

were given to them, I think that that’s binding on this court. [¶] So I think that, given that the jury found the special circumstance to be true, I think that not only could Mr.
Drummer be convicted under the new law. I think, in a sense, he was convicted under the new law because the jury did find that he was a major participant and ex hibited reckless disregard for human life. [¶] So I think based upon that, I’m going to deny the petition.” Seeking clarification of the trial court’s ruling, Drummer’s counsel asked the court if its ruling was based on the jury’s special circumstance f inding alone or if it was also relying on the facts “as the court knows them” from Austin ’s trial. The trial court responded that it “can’t wipe those [ facts ] out of [ its ] mind” and said that the facts about Drummer “sitting watch over these two people, a nd, basically assaulting [Harinder] when she was trying to plead for someone to call medical assistance for her husband” were “the
fact s” in the Austin case and “also the facts alleged in [this] case

-- in [counsel’s] brief as to what happened at the time” of the crime. Counsel then asked a follow

- up question
about whether “it’s both the jury’s finding, as well as the facts [as] alleged in the brief?” The court responded, “Yes. But, primarily, the jury’s finding, because that is part of the

. . . court r ecord of conviction.” Drummer timely appealed the trial court’s order denying his petition

. II. DISCUSSION This court originally reversed the trial court’s order, and the California Supreme Court granted review and held this case pending its decision in Strong , supra , 13 Cal.5th
698. Pursuant to our Supreme Court’s subsequent order, we vacated our prior decision and now reconsider the case in light of Strong

. Drummer filed a supplemental brief arguing that Strong requires reversal of the trial court’s order and remand for issuance of
an order to show cause and an evidentiary hearing on his petition. The Attorney General disputes Drummer’s contention arguing that, on remand, the trial court should be allowed

to determine whether a prima facie showing fo r issuance of an order to show cause has11

been established. We conclude that the trial court’s order must be reversed and an order
to show ca u se should issue

. In Strong , the California Supreme Court held that a felony

- murder special circumstance finding made prior to its decisions in Banks and Clark does not categorically preclude a defendant from making a prima facie showing of eligibility for
relief under section 1172. 6. ( Strong , supra , 13 Cal.5th at p. 720.) “Section 1172.6 offers resentencing for petitioners who have not been determined beyond a reasonable doubt to have the degree of culpability now required for a murder, attempted murder, or manslaughter conviction

. Neither the jury ’ s pre

- Banks and Clark findings nor a court ’ s later sufficiency of the evidence review amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause.” ( Ibid .) The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” ( People v. Lewis (2021) 11 Cal.5th 952, 971 ( Lewis ) .) The court “ ‘ “takes petitioner ’ s factual allegations as true and ma kes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.” ’ ” ( Ibid .) Although the court may rely on the record of conviction in determining whether defendant has made a prima facie showing, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” ( Id . at p. 972 ; see also Strong , supra , 13 Cal.5th at p. 72 0 [rejecting an “after

- the

- fact review of a pre

- Banks
and Clark record” at the prima facie showing stage because such a determination would entail prohibited factfinding] .)
In the present case, the jury ’ s November 2014 felony

- murder special circumstance finding occurred before the California Supreme Court ’ s rulings in Banks and Clark in
2015 and 2016. Hence, the 2014 finding did not preclude Drummer from making a prima facie showing in support of a section 1172.6 petition. ( Strong , supra , 13 Cal.5th at
p. 721.) Nor is the trial court’s evaluation of the facts at the prima

- facie showing stage a12

proper basis for denying an order to show cause. ( Id . at p. 7 20.) Consequently, the trial court erred in denying Drummer’ s petition on the basis of the 2014 felony

- murder special circumstance finding and its evaluation of the facts. Furthermore, Drummer’s petition alleged the facts necessary for relief under section 1172.6 (§ 1172.6, subds. (a)

– (c)) and n othing in the record demonstrates that he is ineligible for relief as a matter of law

. Because Drummer’s p etition made a prima facie showing of entitlement to relief ( see Lewis , supra , 11 Cal.5th at pp. 970

– 972 ; § 1172.6, subd. (c); see also Strong , at p. 720 ), we will remand the matter to the t rial court with directions to issue an order to show cause and hold further proceedings under section
1172.6. III. DISPOSITION The trial court’s October 20, 2020 order is reversed, and the matter is remanded with directions to issue an order to show cause and conduct further proceedings in
accordance with Penal Code section 1172.6.______________________________________ D anner, J.

WE CONCUR:

____________________________________ Bamattre

- Manoukian , Acting P. J.

____________________________________ Grover , J.

H048576 People v. Drummer