Filed 8/25/20 P. v. Marcus CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ZECOREY LAMONT MARCUS,

Defendant and Appellant.

 B300883

 (Los Angeles County

 Super. Ct. No. YA071844)

APPEAL from an order of the Superior Court of 

Los Angeles County, Hector M. Guzman, Judge. Affirmed. 

Susan K. Shaler, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys 

General, for Plaintiff and Respondent.

____________________________
2

Defendant and appellant Zecorey Lamont Marcus 

challenges the trial court’s denial of his petition under Penal 

Code section 1170.951 for resentencing on his murder conviction. 

In 2011, a jury convicted Marcus of murder on the basis of 

his participation in a robbery in which a cohort shot and killed 

a victim. The jury also found true a felony-murder special 

circumstance (§ 190.2, subd. (a)(17)), concluding beyond a 

reasonable doubt that Marcus was a major participant in the 

burglary who acted with reckless indifference to human life. 

The trial court denied the petition because on the basis of this 

finding, Marcus could still be convicted of murder and would be 

ineligible for resentencing under section 1170.95.

Marcus contends that the special circumstance allegation 

is no longer valid in light of our Supreme Court’s decisions 

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

Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning 

of “major participant” and “reckless indifference to human life.” 

(Ibid.) We affirm the trial court’s order on the ground that the 

proper procedure for challenging a special circumstance finding is 

a petition for habeas corpus, not a petition under section 1170.95. 

(See People v. Galvan (Aug. 4, 2020, B300323) __ Cal.App.5th ___ 

[2020 WL 4462175] (Galvan).)

1 Subsequent statutory references are to the Penal Code. 
3

FACTS AND PROCEEDINGS BELOW

The facts of the case are discussed below as described in 

our opinion in Marcus’s direct appeal (People v. Galloway (June 8, 

2012, B232165) [nonpub. opn.] (Galloway)).

A. The Robbery of Pedro Guerrero in 

May 2008

“Anna Sanchez, a friend of defendants Galloway 

and Marcus, testified that she drove defendants to a convenience 

store in Gardena and waited for them in her car while they went 

into the store to buy rolling papers for marijuana and orange 

juice. After a short time, Galloway came out of the store and told 

Sanchez to park her car across the street because he was going 

to rob a man he had seen in the store cashing a check. Moments 

after Sanchez moved her car, defendants came running toward 

her. Galloway was holding a black revolver. Defendants jumped 

into Sanchez’s car and Galloway told Sanchez: ‘Go, go, go.’ 

Sanchez drove away as Galloway handed the gun to Marcus in 

the backseat. She asked them what happened ‘and they said 

they robbed the man that was in the store cashing his check.’ 

Sanchez identified defendants from a surveillance video shot 

from within the store.

“Pedro Guerrero testified that he went to a store in 

Gardena to cash a check for $450.00. As he sat in his car, 

putting away his money, two men walked up. One man pointed 

a black gun at Guerrero’s head. ‘They told me to give them the 

money or that they would kill me,’ Guerrero testified. Guerrero 

gave the money to the man with the handgun. He did not report

the robbery to police because he was afraid but he told the

storekeeper about it. A week later the police located Guerrero 

and showed him photographic lineups and he identified a 
4

photograph of Galloway as the man who robbed him with a 

handgun.” (Galloway, supra, B232165, at p. 2.)

B. The Murder of Hae Sook Roh in May 2008

“Five days after the Guerrero robbery, at approximately 

6:45 p.m., Arthenia Thomas heard gunfire coming from the 

direction of a T-shirt shop in Gardena and saw two men running 

from the shop and down the street toward a restaurant where she 

lost sight of them. Her only description of the two men was that 

they were wearing black ‘hoodies’ and had bandanas over their 

faces. A few minutes later a silver four-door car drove ‘really fast’

out of the restaurant parking lot. Because the windows were 

tinted, Thomas could not tell how many people were in the car. 

Thomas testified that the car depicted in People’s exhibit 4 looked 

like the car she saw leaving the parking lot.

“When the police responded to the shooting, they found the 

body of Hae Sook Roh, who had worked at the T-shirt shop, lying 

dead behind the counter near the cash register.

“The prosecution showed the jury an audio and video 

recording from a surveillance camera in the T-shirt shop. The 

video showed a black male with a gun in his left hand entering 

the area in front of the cash register. The man wore white pants, 

a long white T-shirt and an open waist-length jacket. He had a 

white cloth tied across his face below his eyes. The bottom left 

hand portion of the video showed the pant leg and shoe of a 

second person. The audio portion of the tape contained the voice 

of the man with the gun saying: ‘Give it up. Give it up. Give me 

the money.’ A second voice said[,] ‘Give him the money’ and 

then the gunman fired at Roh saying, ‘Bitch. Give it up.’

He repeated[,] ‘Give it up’ and then shot Roh two more times, 

grabbed the money from the register and ran. The gun was not 
5

recovered. The take from the robbery-murder was approximately 

$35.

“Sanchez testified that she was at Galloway’s house on the 

day of the murder. When it started to get dark, Galloway went to 

the trunk of his mother’s car and changed into basketball shorts, 

a white T-shirt and waist-length jacket. He then began waiting 

in front of the house. A gray Chevrolet Impala with tinted 

windows pulled up in front of the house. Someone inside the 

car opened the back door, and as Galloway got in, Sanchez 

saw Marcus lean over. Sanchez identified the car shown in 

the People’s exhibit 4 as the car she saw that evening. The 

same car returned to Galloway’s house 20 to 30 minutes later 

and Galloway got out. Sanchez observed that Galloway was 

breathing heavily, his palms were sweating and he was acting 

‘like he was nervous and scared.’ Galloway told her that ‘he 

shot a lady at the T-shirt place.’ He ‘started laughing like it was 

funny’ and said ‘the bitch wouldn’t die. So he just had to keep 

shooting her.’ Sanchez asked Galloway why he shot the lady and 

Galloway replied that he was mad because he wanted to rob the 

store but ‘right before he walked in, she dropped the money [in 

the floor safe] [a]nd so he shot her.’

“A few days later Galloway showed Sanchez a YouTube 

video of the murder and robbery at the T-shirt shop. He laughed 

again while he watched it. Sanchez recognized Galloway on the 

video because he was wearing the same clothes he wore when 

he left his mother’s house the evening of the murder. She also 

recognized the gun in the video as the gun Galloway had used in 

the robbery of Pedro Guerrero.” (Galloway, supra, B232165, at 

pp. 3–4.)
6

C. The Defendants’ Custodial Statements

“After defendants were arrested, they were seated next 

to each other on a bench in a hall of the jail. The bench had a 

hidden recording device. The prosecution played the recording 

of the defendants’ conversation to the jury. In that conversation 

Galloway told Marcus that the police showed him a picture 

of Marcus inside the store just before the Guerrero robbery. 

Marcus acknowledge[d] he [would] have to serve 15 years for 

the robbery but told Galloway that if he got bailed out ‘I’m gone.’

Galloway told Marcus not to worry because he admitted the 

robbery and told the police Marcus had nothing to do with it 

and that he didn’t even know Marcus. Later in the conversation, 

Galloway admitted his involvement in the murder. Marcus also 

admitted being at the scene of the murder, noting that the video 

showed him wearing the same shoes that he was wearing when 

he was arrested.” (Galloway, supra, B232165, at p. 4.)

D. The Credibility of Sanchez

“Sanchez admitted she played a role in the robbery of 

Guerrero, that she pleaded guilty to that crime, that she was in 

custody at the time of her trial testimony and that she was 

receiving lenient treatment in her sentencing in exchange for her 

testimony against defendants. She also admitted that she had 

previously been convicted of forgery and the unlawful taking of a 

motor vehicle.

“Sanchez further admitted that she had been a regular 

user of marijuana for six to nine months prior to the murder 

of Roh; that she ‘smoke[d it] every day;’ and that she had 

smoked marijuana just before the Guerrero robbery and was 

feeling ‘mellow’ at the time. Sanchez testified that she smoked 

a type of marijuana known as ‘Chronic’ which, she agreed, is a 
7

‘particularly potent’ and ‘intense’ form of the drug. In addition 

to smoking marijuana, Sanchez stated that on weekends she used 

Ecstasy. ([This court took] judicial notice that the T-shirt robbery 

and murder were not committed on a weekend.) She testified 

that she stopped using any drugs after May 12, 2008, the date of 

the robbery-murder.

“The defense called a forensic toxicologist who testified that 

in his opinion someone who smoked Chronic every day over a sixto nine-month period would suffer from confusion, delusion and 

‘disoriented perception.’ ” (Galloway, supra, B232165, at p. 5.)

A jury convicted Marcus of one count of first degree 

murder (§ 187, subd. (a)), and found true a felony-murder 

special circumstance allegation (§ 190.2, subd. (a)(17). The 

jury also convicted him of two counts of robbery (§ 211), and 

found true allegations of gang and firearm enhancements on 

all three counts. The court imposed a sentence of life without 

the possibility of parole for murder, plus an additional 25 years 

to life for the firearm enhancement. On appeal, we struck the 

gang enhancements for lack of substantial evidence, as well as 

the firearm enhancements, which were invalid without a gang 

enhancement (see § 12022.53, subd. (e)(1)(A)), but we otherwise 

affirmed the judgment. (See Galloway, supra, B232165, at p. 11.) 

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished 

the natural and probable consequences doctrine in cases of 

murder, and limited the application of the felony murder 

doctrine. Under section 189, subdivision (e), as amended by 

Senate Bill No. 1437, a defendant is guilty of felony murder 

only if he actually killed the victim; directly aided and abetted 

or solicited the killing, or otherwise acted with the intent to kill; 
8

or “was a major participant in the underlying felony and acted 

with reckless indifference to human life.” (§ 189, subd. (e)(3); 

People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) 

The legislation also enacted section 1170.95, which established 

a procedure for vacating murder convictions for defendants who 

would no longer be guilty of murder because of the new law and 

resentencing those who were so convicted. (Stats. 2018, ch. 1015, 

§ 4, pp. 6675–6677.)

Marcus filed a petition for resentencing on February 26, 

2019. The trial court appointed counsel to represent Marcus and 

forwarded the petition to the district attorney. The district 

attorney moved to deny the petition on the grounds that Senate 

Bill No. 1437 is unconstitutional, and that, in any case, the jury’s 

special circumstance finding precluded Marcus from making a 

prima facie case that he was entitled to resentencing. Marcus’s 

counsel filed reply briefs contesting both of the district attorney’s 

arguments. The trial court denied the petition on the ground 

that the record in the case showed as a matter of law that Marcus 

was not entitled to relief. The court found that the facts of the 

case, as described in our prior opinion, “establish[ ] that [Marcus] 

was, at a minimum, a major participant in the murder and acted 

with reckless indifference to human life during the course of the 

murder.”2

2 The trial court made no finding as to the constitutionality 

of Senate Bill No. 1437. Because the Attorney General does not 

argue that the law is unconstitutional, we do not address the 

issue here.
9

DISCUSSION

A. Background on Section 1170.95

Section 1170.95 allows a defendant serving a sentence 

for felony murder who would not be guilty of murder because of 

the new law to petition for resentencing. The statute requires 

a defendant to submit a petition affirming that he meets three 

criteria of eligibility: (1) He was charged with murder in a 

manner “that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) He “was 

convicted of” or pleaded guilty to “first degree or second degree 

murder” (§ 1170.95, subd. (a)(2)); and (3) He “could not be 

convicted of first or second degree murder because of changes 

to Section[s] 188 or 189 made effective” as a part of Senate Bill 

No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those 

changes eliminated the natural and probable consequences 

doctrine as a basis for murder liability, and added a requirement 

for felony murder that a defendant must have been at least a 

major participant in the underlying felony and have acted with 

reckless indifference to human life. 

Upon receipt of a petition, the trial court reviews it to 

determine whether the petitioner has made a prima facie case 

for relief. (§ 1170.95, subd. (c).) If the petitioner meets this 

requirement, the court issues an order to show cause and holds 

a hearing to determine whether to vacate the murder conviction. 

(§ 1170.95, subd. (d)(1).) At this final stage of the proceeding, the 

prosecution has the burden of proving beyond a reasonable doubt 

that the petitioner is ineligible for resentencing. (§ 1170.95, 

subd. (d)(3).) In this case, the trial court appointed counsel and 

received briefing, but denied Marcus’s petition on the ground that 
10

he had failed to make a prima facie case that he was entitled to 

relief. (See § 1170.95, subd. (c).)

B. The Proper Procedure for Challenging 

a Felony-murder Special Circumstance 

Is a Habeas Corpus Petition

The primary obstacle preventing Marcus from establishing 

his eligibility for resentencing is the jury’s finding of a felonymurder special circumstance. To be eligible for resentencing 

under section 1170.95, Marcus must show that he “could not 

be convicted of first or second degree murder because of changes 

to Section[s] 188 or 189 made effective” as a part of Senate Bill 

No. 1437. (§ 1170.95, subd. (a)(3).) Under the newly amended 

version of section 189, a defendant can be convicted of felony 

murder only if he was the actual killer; acted with the intent 

to kill in aiding, abetting, counseling, commanding, inducing, 

soliciting, requesting, or assisting in first degree murder; or 

“was a major participant in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) 

of Section 190.2.” (§ 189, subd. (e)(3).) These are identical to 

the circumstances in which a felony-murder special circumstance 

applies. (See § 190.2, subds. (b)–(d).) Thus, the jury’s special 

circumstance finding shows as a matter of law that Marcus could 

still be convicted of felony murder under the new definition, 

and prevents Marcus from making a prima facie case that he is 

eligible for resentencing.

Marcus attempts to avoid this conclusion by attacking

the felony-murder special circumstance finding. He notes that 

after his conviction of felony murder, the Supreme Court decided 

Banks and Clark, which decisions represent a significant shift 

in the interpretation of the concepts of major participation and
11

reckless indifference to human life. In Banks, the Court 

evaluated existing United States Supreme Court jurisprudence 

on the issue and set out a series of considerations relevant 

to determining whether a particular defendant was a major 

participant in the underlying felony. (See Banks, supra, 

61 Cal.4th at p. 803.) The Court did the same in Clark with 

respect to whether the defendant acted with reckless indifference 

to human life. (See Clark, supra, 63 Cal.4th at pp. 618–622.) 

These new considerations clarified the requirements for the 

felony murder special circumstance so significantly that courts 

have allowed defendants to challenge the validity of pre-Banks

and Clark special circumstance findings via habeas corpus, 

making an exception to the rule that ordinarily bars a defendant 

from challenging the sufficiency of the evidence in a habeas 

corpus petition. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 

673–674; In re Miller (2017) 14 Cal.App.5th 960, 979.) 

Because no court has examined whether Marcus was a 

major participant who acted with reckless indifference to human 

life according to the standards enunciated in Banks and Clark, 

Marcus argues that the prior special circumstance finding does 

not show as a matter of law that he is ineligible for resentencing 

under section 1170.95. 

The Attorney General argues, however, that in order to 

challenge the validity of a felony-murder special circumstance, 

a defendant must file a petition for a writ of habeas corpus. 

He may not seek relief via section 1170.95. We agreed 

with this position in our recent opinion in Galvan, supra, 

__ Cal.App.5th __ [2020 WL 4462175], and we do so again here.

As we explained in Galvan, a defendant subject to a 

pre-Banks and Clark special circumstance is ineligible for 
12

resentencing under section 1170.95 because of the basis of 

his claim. Although Marcus asserts that he could not now 

be convicted of murder, “the alleged inability to obtain such 

a conviction is not ‘because of changes’ made by Senate Bill 

No. 1437, but because of the clarification of the requirements 

for the special circumstance finding in Banks and Clark. 

Nothing about those requirements changed as a result of 

Senate Bill No. 1437. Just as was the case before that law 

went into effect, the special circumstance applies to defendants 

who were major participants in an underlying felony and acted 

with reckless indifference to human life. If [the defendant] 

is entitled to relief based on Banks and Clark, the avenue 

for such relief is not section 1170.95, but a petition for writ 

of habeas corpus.” (Galvan, supra, ___ Cal.App.5th ___ [2020

WL 4462175 at p. *4].)

By requiring a defendant to seek relief via habeas corpus, 

we avoid creating a disparity in which similarly situated 

defendants’ cases are evaluated under different standards based 

solely on the date of their convictions. Defendants convicted 

after the Supreme Court issued its decisions in Banks and Clark

would be required to challenge the sufficiency of the evidence 

of the special circumstance finding on direct appeal, where 

the People would need only to show that substantial evidence 

supported that finding. If the judgment is affirmed, it would 

be the law of the case in any proceedings thereafter as to those 

findings. (In re Saldana (1997) 57 Cal.App.4th 620, 625; see also 

In re Harris (1993) 5 Cal.4th 813, 829 [“in the absence of strong 

justification, any issue that was actually raised and rejected 

on appeal cannot be renewed in a petition for a writ of habeas 

corpus”].) “But where, as here, a defendant was convicted 
13

before Banks and Clark, if the defendant could bring a collateral 

challenge under section 1170.95, the prosecution would be 

required to prove the special circumstance beyond a reasonable 

doubt. (See [People v.] Gomez [(2020)] 52 Cal.App.5th 1[, 16].) 

Yet nothing in the language of Senate Bill No. 1437 suggests that

the Legislature intended unequal treatment of such similarly 

situated defendants.” (Galvan, supra, ___ Cal.App.5th ___ [2020

WL 4462175 at p. *5].)

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.