Filed 2/20/19 P. v. Espinal CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Codefendants David Espinal and Donald Parker appeal judgments convicting them of murder and robbery and sentencing them to terms of life in prison without the possibility of parole (LWOP). Defendants contend the court erred in admitting testimony regarding their prior criminal activity and that the court erred by instructing the jury with CALCRIM No. 375 regarding the use of this evidence. Defendants also assert the court erred by instructing the jury on flight using CALCRIM No. 372. Espinal contends the court erred in failing to sever defendants’ trials to avoid prejudice caused by the admission of testimony regarding Parker’s prior criminal acts and in denying his request for juror identifying information in support of a potential motion for new trial. Finally, Parker challenges the sufficiency of the evidence in support of the jury’s findings that, despite Espinal being the confessed shooter, Parker was a major participant in the crime and that he acted with reckless indifference to human life.

In supplemental briefing, Parker addresses the impact of Senate Bill No. 1437, which effective January 1, 2019, amended Penal Code section 189 to narrow the definition of felony murder. He asserts several grounds for reversal of his murder conviction and LWOP sentence. He also contends that he is entitled to additional presentence custody credits.

We find no prejudicial error in the admission of the testimony regarding defendants’ prior criminal acts, no abuse of discretion in the denial of Espinal’s motion to sever or the denial of his request for juror identifying information, and no instructional error. We find further that the jury’s special-circumstance findings are supported by substantial evidence, rendering any relief under the 2019 amendment unavailable. Finally, we reject Parker’s argument that the 2019 amendment rendered his LWOP sentence unconstitutional under the Eighth Amendment. We agree that the abstract of judgment should be modified to reflect the addition of one additional day of credit. With that modification, we shall affirm the judgment.

Factual and Procedural History

Defendants were found guilty, following a jury trial, of first degree murder (Pen. Code,[1] § 187, subd. (a)) and robbery (§ 211). The jury also found true the special-circumstance allegation that the murder was committed while the defendants were engaged in the attempted commission of a robbery (§ 190.2, subd. (a)(17)) and the enhancement allegations that Espinal was armed with a firearm (§ 12022, subd. (a)(1)) and that Espinal personally used and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)).

The following evidence was presented at trial:

“Noe,” who testified pursuant to an immunity agreement and understanding that his last name would be shielded, testified that he was friends with the victim, Max Weinreb, and had periodically supplied him with marijuana. On August 31, 2014, Weinreb called Noe in the morning and told him he wanted to buy 10 pounds of marijuana. Around 5:00 p.m. that afternoon, Noe brought two pounds of marijuana to a park where he met with Weinreb and Parker. After Parker approved the quality of the marijuana, Weinreb told Noe to pick up the remaining quantity and bring it to him.

Noe retrieved the rest of the marijuana and returned to meet Weinreb and Parker. He was concerned, however, because he had noticed, as he was leaving the park, what looked like the outline of a gun in Parker’s pants and the situation “didn’t feel comfortable” to him. He picked up two friends on his way back because he thought that having more people present would ensure that “nothing would happen.”

Noe met Weinreb and Parker at a store and they caravanned to a motel in Santa Rosa. On the ride, Noe called Weinreb and told him that Parker had a gun. Weinreb was “a little bit concerned” but responded, “we’ll just play it by ear.” Once parked, Weinreb told Noe that Parker’s “boy is going to check it out,” in reference to the marijuana. Noe gave Weinreb a one-pound bag of marijuana, wrapped in a towel, to show Parker’s friend. Weinreb took the marijuana to a motel room with Parker. A few minutes later, Weinreb called Noe to confirm that the sale was on. When Noe expressed concern about the deal, Weinreb told him, “It’s all good. I’m strapped up bro,” and flashed a gun in a hip holster. Weinreb and Noe took the ten-pound bag of marijuana to the motel room. Espinal rolled a “blunt” and offered it to Weinreb and Noe, but they declined.

Noe was nervous and gradually inched towards the door. He noticed Parker looking at his waist and thought Parker was checking him for weapons. Then, Parker opened the curtains and the window. When Weinreb told Espinal to check the rest of the marijuana and “give us the money,” Espinal looked at Parker and said, “You ready, bro?” Parked replied, “Yeah, yeah, it’s all good. Just give him the money.” Espinal then lifted his shirt and reached his right hand into his waistband. Fearing they were going to be robbed, Noe yelled “Aaaaaahhhh,” swung open the door, and ran out of the motel room. As soon as he was out of the room, he heard three gunshots.

When Noe returned to the room a few minutes later to look for Weinreb, he found his body on the floor. Noe flagged down a police officer, shouting “Help him. Help him. He’s been shot. He’s been shot.” After checking Weinreb’s vital signs, the officer informed Noe that Weinreb was dead. Noe told the officer that the shooters, “two Black guys had left in a red Charger.”

In a search of the room, a firearm was retrieved from under Weinreb’s right leg and a roll of duct tape was found under a pillow on one of the beds. Subsequent testing revealed Parker’s fingerprint on the inside of the duct tape roll.

That evening two African-American men in a red Dodge Charger led police on a high speed chase before evading arrest. Defendants were identified and arrested within weeks.

The prosecution introduced testimony regarding three prior robberies committed by Parker and a prior robbery of a Postage Plus store in November 2006 for which Espinal was convicted and sent to prison.

Espinal testified on his own behalf. He admitted that he sold marijuana for a living and that he shot and killed Weinreb. He said he had been purchasing marijuana from Parker for about four months before the incident, typically buying two pounds at a time. On August 31, 2014, he called Parker to buy marijuana, but Parker did not have enough affordable marijuana to fill his order. Instead, Parker arranged for him to buy 10 pounds from Weinreb for $1,200 per pound. Espinal testified that he had $7,000 left from an inheritance in 2006 and that his sister had given him another $7,000 in 2014. He brought only $10,000 to the motel, however, as he was hoping to negotiate the price down. When confronted with the fact that he robbed Postage Plus in November 2006, after he supposedly had come into this large sum of money, Espinal claimed that he “spent” his inheritance too quickly. Espinal claimed that he put the $10,000 in a “jock strap” in his underwear because he was on parole and was afraid he would be arrested if he got pulled over with a large quantity of cash. Espinal acknowledged that under the terms of his parole he was prohibited from carrying a weapon but brought a .357-magnum gun for protection because “it’s dangerous business.” He hid the gun under his seat during the drive from Sacramento. Espinal said that Parker was in the car when he put it under the passenger seat.

At the motel, Espinal said that Weinreb brought a one-pound bag of marijuana into the room. Espinal claimed that after he showed Weinreb his money, Weinreb went out to his car to retrieve the rest of the marijuana. Weinreb came back with Noe and Parker. Once Espinal checked the marijuana in the large bag, Weinreb requested the money. Espinal claimed that he lifted his shirt to retrieve the money from his jock strap, causing Noe to scream and run from the room. Espinal looked at Weinreb, who was trying to pull a gun from his holster. Espinal reached behind his back and pulled out his gun. He shot Weinreb, with the first shot hitting him in the stomach and spinning him around. Espinal shot him twice more in the back, and Weinreb dropped his gun. Espinal claimed that he was “scared to death of the man. I was fearing for my life, man.”

Parker and Espinal both jumped through the window, taking the large bag of marijuana, and ran to the red car. Parker sped away, but Espinal denied that they were ever chased by the police. They drove “up in some hills” near Petaluma and stayed there for about four hours. Espinal sold the 10 pounds of stolen marijuana. Among other things, he “partied a little bit and went to Vegas” with the sale proceeds. He claimed that he bought a roll of duct tape the morning of the shooting to seal the bags of marijuana.

Detective Patrick Albini was qualified as an expert on marijuana cultivation and narcotics sales. He testified that in his many years as a narcotics detective he had “never come across a bag of marijuana sealed with duct tape.” He also testified that the motel was known to be a common location for drug deals and that he had previously investigated a “marijuana ripoff” that occurred in a hotel room.

At a bifurcated trial, the jury found true the allegation that Espinal had a prior conviction. After a bench trial, the trial court found Parker’s prior conviction allegations true. The court subsequently sentenced Espinal to life in prison without the possibility of parole, consecutive to terms of 32 years and 25 years to life. The court sentenced Parker to life without the possibility of parole, consecutive to a three-year term. Defendants timely filed notices of appeal.

Discussion

1. The trial court did not err in admitting evidence of defendants’ prior offenses.

The following evidence regarding other crimes committed by Parker and Espinal were admitted at trial:

A Sonoma County deputy sheriff testified that on February 14, 2006, he was dispatched to a home invasion robbery in Santa Rosa. When he arrived, the victim, Martin Sussman, had blood on his face and clothing, and there were three wounds on his scalp. Sussman also had duct tape stuck in his hair. The victim’s wife testified that her husband died in 2008. She testified that she remembered getting a call from her husband around 4:00 p.m. on February 14, 2006, indicating that something was wrong at home. When she walked in, she saw “a wad of bloody towels on the coffee table” and noticed that their camera and laptop were gone. A gas station clerk testified that she saw Parker toss a backpack into a garbage can. A car rental receipt belonging to the victim’s wife was found in the discarded backpack. Blood found on gloves in the backpack was tested, revealing a mixture of DNA, likely from two people, the major contributor being Parker.

Jameson Bonner testified that in 2008 and 2009, he sold marijuana and cocaine in Santa Rosa. In January 2009, he was robbed at his house by Parker. Bonner had shown marijuana to a potential customer but the sale did not go through. About 45 minutes later, Parker arrived at his house with a gun. He and an accomplice assaulted Bonner and demanded the marijuana. When Bonner was unable to locate the drugs in his roommate’s room, Parker and his associate beat him until he lost consciousness.

Bonner also described being robbed by Parker at his house in July 2008. Parker arrived at Bonner’s house about an hour after Bonner had purchased an ounce of marijuana. Parker searched Bonner, taking his wallet and the marijuana that Bonner had just purchased. Parker then ordered Bonner to get into a bathtub where Parker and his accomplice beat him. A PlayStation, a television, an Xbox, a snowboard, jewelry, and cash taken from Bonner’s home were recovered in a search of Parker’s home.

Jill Marks testified that she worked at Postage Plus in Merced in November 2006. On the morning of November 7, she and her coworker were robbed by two men. They came into the store, and one of the men held a gun to a customer’s neck while the other—Espinal—jumped over the counter. They took about $1,200 from the register, grabbed a customer’s money, and fled. Espinal admitted that he had committed the crime and that he was convicted of robbery.

Prior to the admission of the above testimony, the jury was instructed pursuant to CALCRIM No. 375 as follows: “The People are going to present evidence that one or more of the defendants committed an offense that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant that the evidence applies to in fact committed the offense or offenses. [¶] Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that a defendant committed an offense or offenses you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit robbery in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense or offenses and the charged offense. Do not consider this evidence for any other purpose except for the limited purpose of determining whether the defendant acted with the intent to commit robbery in this case. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. If you conclude that the defendant committed the uncharged offense or offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of robbery. The People must still prove every charge beyond a reasonable doubt.” To this instruction the court added, “You’re going to hear evidence of prior offenses, or offense. That evidence can only be used against the defendant who allegedly committed the prior act, not against the other defendant.”

Evidence Code section 1101, subdivision (a) provides that evidence of a person’s character “is inadmissible when offered to prove his or her conduct on a specified occasion.” “The purpose of the rule is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as promote judicial efficiency by restricting proof of extraneous crimes.” (People v. Kelley (1967) 66 Cal.2d 232, 238-239.) Evidence Code section 1101, subdivision (b) sets forth an exception to the general rule where evidence of a prior crime is introduced to prove some fact other than the defendant’s disposition to commit the act, including intent. Our Supreme Court has explained “ ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent.’ ” (People v. Robbins (1988) 45 Cal.3d 867, 879.) “The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must [have] had the intent attributed to him by the prosecution.” (Ibid.) Where the evidence of an uncharged crime is offered to prove intent, the similarity between the charged and uncharged offenses must be substantial, but the prosecution need not show the same quantum of similarity as when the uncharged crime is used to prove identity or the existence of a common plan or design. (Id. at p. 880; People v. Ewoldt (1994) 7 Cal.4th 380, 402 [“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.”].) In Ewoldt, supra, at page 402, the court explained, “ ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ”

Parker contends that the similarities between the three uncharged robberies and charged offense were not substantial enough to support the admission of the testimony. Looking first at the two Bonner robberies, we agree with the trial court that there were sufficient similarities to the present offense to warrant admission. Like the current offense, the prior offenses involved the robbery of a marijuana dealer with a gun that resulted in violence. The similarities are sufficient to support an inference that Parker harbored the same intent—to permanently deprive Weinreb of personal property—in the present instance. Contrary to Parker’s argument, we cannot say that the trial court abused its broad discretion in determining under Evidence Code section 352 that the similarity and relevance of the two Bonner robberies outweighed any potential prejudice from their admission. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329 [“ ‘Rulings made under [Evidence Code sections 1101 and 352] are reviewed for an abuse of discretion. [Citation.]’ [Citation.] ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ”].) While defendant personally engaged in the violence against Bonner, his conduct was not necessarily more egregious in the prior crimes than in the present action in which he planned a robbery during which the victim was killed. (People v. Cowan (2010) 50 Cal.4th 401, 475 [“Evidence is prejudicial within the meaning of Evidence Code section 352 if it ‘ “uniquely tends to evoke an emotional bias against a party as an individual” ’ [citation] or if it would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause on the basis of extraneous factors.” ’ ”].) In addition, “the jury was instructed not to consider the evidence to prove that defendant was a person of bad character, thereby ‘minimizing the potential for improper use.’ ” (People v. Foster, supra, 50 Cal.4th at p. 1332.)

With respect to the Sussman robbery, we again agree that the similarities support admission, particularly the fact that Sussman robbery involved the use of duct tape and a roll of duct tape was recovered in the hotel room in this instance. Given the considerable relevance of this evidence, we disagree with Parker’s argument that the evidence should have been excluded under Evidence Code section 352 on the ground that its admission would require an undue consumption of time. The presentation of this evidence consumed only 170 pages out of an approximately 2,000-page transcript.

Finally, with respect to evidence of Espinal’s prior robbery, we question whether there were sufficient similarities to warrant admission, but conclude that any error in the admission of this evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The 2007 robbery was considerably less inflammatory than the charged murder. Espinal was convicted of the prior offense, so there was little risk the jury would punish him for past unpunished misconduct. Moreover, there was substantial evidence of Espinal’s intent, apart from any inference that might have been drawn by the jury based on his participation in the prior robbery. Espinal’s testimony that he had $10,000 to bring with him that evening to buy the marijuana was substantially impeached. Espinal admitted that he brought duct tape to the room that night and his explanation for having done so was largely impeached by the police expert. Noe’s testimony that Espinal said to Parker, “you ready, bro,” after Parker visually checked Noe and Weinreb for weapons and opened the window provided compelling support for the finding that they had a plan and intended to rob Weinreb and flee.

2. The trial court did not abuse its discretion in denying Espinal’s motion to sever.

Under section 1098, “[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” “Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘ “classic case” ’ for a joint trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) While “severance may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony,’ . . . less dramatic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice.” (Ibid.) The denial of a severance motion is reviewed for abuse of discretion. (Id. at p. 41.)

After the trial court ruled that evidence of Parker’s prior robberies would be admitted, Espinal moved to sever his trial from Parker’s. He argued that the evidence of Parker’s prior robberies would require an extensive evidentiary presentation and that a limiting instruction would not protect him from the jury transferring Parker’s intent to him. The trial court denied the motion, noting that “the evidence of the prior offenses is no more prejudicial to one than the other and they both have prior instances that fit within the description of [the] complaint.”

There was no abuse of discretion. As the Attorney General states, “This was a ‘classic case’ for a joint trial. Espinal and Parker were charged with the same crimes arising out of common acts against the same victim. If the trials had been severed, the same witnesses would have had to testify about the same events twice.” Any potential prejudice was minimized by the trial court explicit instructions that the other crimes evidence “can only be used against the defendant who allegedly committed the prior act, not against the other defendant.” The severance motion was not improperly denied.

3. The jury was properly instructed with CALCRIM No. 375.

As noted above, the jury was instructed pursuant to CALCRIM No. 375 that it could consider the evidence of the uncharged offenses for the purpose of determining whether defendants had the intent to commit a robbery “only if the People have proved by a preponderance of the evidence that the defendant that the evidence applies to in fact committed the offense or offenses.” Parker contends that CALCRIM No. 375 permitted the jury to find the element of intent and convict him based on less than proof beyond a reasonable doubt in conflict with the instructions on circumstantial evidence (CALCRIM No. 224)[2] and on consideration of circumstantial evidence relevant to the robbery-murder special circumstance (CALCRIM No. 704).[3] He acknowledges that in People v. Virgil (2011) 51 Cal.4th 1210, 1259, the Supreme Court rejected this argument. In Virgil the court reiterated, “When evidence of uncharged misconduct is admitted for the purpose of establishing identity or intent, we have explained that the crimes are mere ‘evidentiary facts.’ [Citation.] The jury cannot consider them at all unless they find them proven by a preponderance of the evidence. ‘If the jury finds by a preponderance of the evidence that defendant committed the other crimes, the evidence is clearly relevant and may therefore be considered. [Citations.]’ [Citation] If the jury finds the facts sufficiently proven for consideration, it must still decide whether the facts are sufficient, taken with all the other evidence, to prove the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1259-1260.) Parker acknowledges that this court is bound by Virgil, but argues that in Virgil, the Supreme Court did not consider the impact of CALCRIM No. 375 “on further findings such as the special circumstances finding in cases such as this where is depends on finding an accomplice’s intent.” Defendant “therefore presents the issue . . . for whatever review this court can provide and to preserve it for consideration by the Supreme Court should further review be necessary.” We see no basis on which to distinguish Virgil. If, as the Supreme Court has held, there is no conflict between CALCRIM Nos. 224 and 375, then there is no conflict between CALCRIM Nos. 703 and 375.

4. The trial court properly instructed the jury on flight pursuant to CALCRIM No. 372.

Parker contends that the court erred by instructing the jury with the flight instruction, CALCRIM No. 372, because the instruction assertedly conflicts with the statute on which it is based (§ 1127c), is unnecessary in light of other instructions, and is argumentative. He argues that the instruction is “argumentative,” “prosecution-favorable” and conflicts with the language, spirit and intent of the statute. The Attorney General asserts that each of Parker’s challenges have been rejected by other courts, and this court should follow the sound reasoning and logic of those rulings. We agree.

CALCRIM No. 372 as given reads: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Section 1127c conveys the same information as CALCRIM No. 372, but reverses the order of the clauses: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”

In People v. Price (2017) 8 Cal.App.5th 409, 456, the court confirmed the holdings by other courts finding no conflict between the language of the instruction and the statute. (Citing People v. Paysinger (2009) 174 Cal.App.4th 26; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154.) More importantly, the court rejected the argument made by Parker that the court should have instructed the jury it could consider evidence of flight in determining “guilt or innocence.” (Id. at p. 457.) Just as Parker does here, the appellant in Price relied on People v. Wright (1988) 45 Cal.3d 1126 to argue that “stating flight alone will not support an inference of guilt after stating flight may show awareness of guilt gave ‘primary significance to the debunked prosecution-favorable inference [that flight may indicate guilt], and only secondary inference [sic] to its limitation.’ ” (Price, at p. 457.) The court explained, “Price cites Wright for the proposition that any instruction that ‘invite[s] the jury to draw inferences favorable to [one party] from specified items of evidence on a disputed issue of fact’ is argumentative. [Citation.] But unlike the instruction the defendant requested in Wright, which sought to focus the jury's attention on a list of items of evidence that favored the defendant, the instruction here focuses solely on one factor, evidence of flight, and not on a laundry list of evidence favoring the prosecution, and there is a statute—section 1127c—that requires an instruction on flight if there is evidence of flight.” (Price, at p. 458.) As the court noted, “it cannot be said that a defendant’s flight or attempt to flee immediately after the crime is as likely to show innocence as it is to show guilt. Flight may show consciousness of guilt or it may not, but . . . evidence of flight has no tendency to establish innocence. Indeed, while section 1127c requires that the jury be instructed that flight is not sufficient to establish guilt, it gives the jury permission to consider flight as some evidence of guilt. . . . ‘Certainly, then, it is not improper to inform the jury of the reason why it is asked to consider defendant's flight as a factor that might tend to indicate his guilt of the crime charged.’ ” (Price, at p. 458.) For the reasons expressed by the court in Price, we reject Parker’s challenge to CALCRIM No. 372.

5. Substantial evidence supports the special-circumstances allegation against Parker.

Section 190.2, subdivision (d) provides that “Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.” “ ‘The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.’ [Citation.] Participating in a robbery murder is one of the special circumstances for which an aider and abettor may be punished by death or life imprisonment without parole.” (In re Miller (2017) 14 Cal.App.5th 960, 967.)

Here, there was no dispute that Espinal shot and killed Weinreb. Parker was charged with first degree murder and with the robbery-murder special-circumstance allegation as an aider and abettor in the shooting. The jury was instructed pursuant to CALCRIM No. 703 as follows: “If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Robbery, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended 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 participated in the crime, he acted with reckless indifference to human life.” In her closing argument, the prosecutor did not argue that Parker had an intent to kill; rather, she explained how Parker played a major role in the planning and execution of the crime and acted with reckless indifference to human life. In finding the special-circumstance allegation true, the jury necessarily found that defendant was a major participant in the crime and acted with reckless indifference to human life. Parker contends that the evidence was insufficient to support the jury’s findings.

1. Major Participant

“The ultimate question pertaining to being a major participant is ‘whether the defendant’s participation “in criminal activities known to carry a grave risk of death” [citation] was sufficiently significant to be considered “major.” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 617 (Clark); In re Miller, supra, 14 Cal.App.5th at pp. 970-971 [“To satisfy section 190.2, subdivision (d)’s conduct requirement (major participation), the defendant’s ‘personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder . . . .’ ”].) “[P]articipation in an armed robbery, without more, does not involve ‘engaging in criminal activities known to carry a grave risk of death.’ ” (People v. Banks (2015) 61 Cal.4th 788, 805.)

The following factors are relevant to whether Parker was a major participant: “ ‘What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did defendant do after lethal force was used?’ ” (In re Miller, supra, 14 Cal.App.5th at p. 971.)

Here, there is substantial evidence that Parker was a major participant in the robbery murder. The evidence established that he arranged the transaction and there was evidence from which a jury could conclude that Parker was armed and knew Espinal was also armed. He knew there was duct tape in the room and he had used duct tape to restrain the victim in a prior robbery. According to Noe, he checked Weinreb for a weapon and opened the window before giving the signal to Espinal to rob Weinreb. After the shooting, he fled with the stolen drugs without seeking assistance for Weinreb.

2. Reckless Indifference to Human Life

“To satisfy the mental state required by section 190.2, subdivision (d) (reckless indifference to human life), the defendant must have ‘ “ ‘knowingly engag[ed] in criminal activities known to carry a grave risk of death.’ ” ’ [Citations.] The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.’ ” (In re Miller, supra, 14 Cal.App.5th at pp. 970-971.) In Clark, the court observed that there is significant overlap between being a major participant and having reckless indifference to human life and that in general, “ ‘the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.’ ” (Clark, supra, 63 Cal.4th at p. 615.)

Factors to consider in evaluating the sufficiency of proof of reckless indifference include: “the defendant’s knowledge of weapons, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the offense conduct, that is, ‘whether a murder came at the end of a prolonged period of restraint of the victims by defendant’; the defendant's awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.” (In re Miller, supra, 14 Cal.App.5th at p. 973.) In Clark, the court reiterated that no single factor “ ‘is necessary, nor is any one of them necessarily sufficient’ ” to establish defendant’s reckless indifference. (Id. at p. 618, quoting People v. Banks, supra, 61 Cal.4th at p. 803.)

While not all of these factors tend to reflect that Parker was indifferent to whether Weinreb lived or died, several do provide substantial support for the jury’s finding that his active participation in the robbery and murder displayed such an indifference.

1. Duration of the felony

Although there was considerable run-up to this robbery—hours of interaction to set up what was billed to the victims as a drug sale—the interaction with Weinreb in the motel room was brief before Espinal shot and killed Weinreb. Thus, “whether [the] murder came at the end of a prolonged period of restraint of the victim[] by defendant” (Clark, supra, 63 Cal.4th at p. 620) is not a factor tending to show indifference to human life in this instance.

2. Knowledge of cohort’s likelihood of killing

“A defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a ‘grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 621.) Nothing in the record suggests that Espinal had a propensity for violence, let alone evidence that Parker was aware of such a propensity.

3. Knowledge and use of weapons

While the “mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life,” it is a factor to consider. (Clark, supra, 63 Cal.4th at p. 618.) Here, the evidence established more than mere presence and knowledge of the weapons. Parker brought duct tape to the room and had previously used duct tape to restrain a robbery victim, supporting the inference that he anticipated the possibility that Weinreb would resist the robbery and that violence and the use of weapons would be necessary to restrain him.

4. Physical presence at the crime

In Clark, supra, 63 Cal.4th at page 619, the court explained that presence at the scene of the killing is an important factor in evaluating indifference to human life because presence allows the defendant to observe his cohort’s actions and demeanor, to be aware if his behavior indicates a willingness to use lethal force, and to have the opportunity to intervene. Here, the record suggests that the killing “was apparently a spontaneous response to armed resistance from the victim” so that Parker had no opportunity to restrain Espinal from shooting. (People v. Banks, supra, 61 Cal.4th at p. 807.)

Presence is also important, however, because it provides defendant the opportunity to render aid to a wounded victim. (Clark, supra, 63 Cal.4th at p. 619.) In Clark, the court observed that the circumstances surrounding the defendant’s flight from the scene was ambiguous. (Id. at p. 620.) A police officer had arrived at the scene and the defendant fled without the shooter. (Ibid.) The court reasoned such conduct may have been a rejection of the shooter's actions in committing the shooting or a reflection of the defendant's desire to flee the scene quickly without regard for the victim's welfare. (Ibid.) The court found significant that “defendant would have known that help in the form of police intervention was arriving.” (Ibid.)

Here, Parker was present when Espinal shot Weinreb and Weinreb fell to the floor. Without pausing to check Weinreb’s condition or to summon aid, Parker immediately hopped out the window, took the bag of marijuana that Espinal tossed him, and fled. Although Weinreb had been shot three times, once in the back and twice in his abdomen, the responding police officer testified that he did not notice any blood around Weinreb’s body when he first arrived. Espinal also testified that he was unsure of Weinreb’s condition when he left the room. Noe had already fled and there was no reason to believe that police or anyone else would soon find Weinreb in the upstairs hotel room that Parker had selected because of its distance from others. While Noe later returned to the room and flagged down a police officer, Parker did not know that Noe would return, and by the time the police arrived Weinreb was dead. After leaving the motel, Parker and Espinal went up to the hills where Parker called his girlfriend.

Numerous cases have recognized that such a failure to seek or provide aid is a highly significant factor indicative of indifference to the life of the victim. In People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1365, affirmed in People v. Gonzalez (2018) 5 Cal.5th 186, the court found that the defendant exhibited reckless indifference for human life when he fled with the shooter instead of rendering aid and accompanied the shooter when he disposed of the murder weapon. (See also People v. Smith (2005) 135 Cal.App.4th 914, 927-928, overruled on another ground as recognized in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292 [Defendant acted with reckless indifference to human life because, knowing that the victim had been assaulted and seeing his cohort leave the room covered in blood, he chose to flee with the assailant rather than come to the victim's aid or summon help.]; People v. Lopez (2011) 198 Cal.App.4th 1106, 1117, disapproved in part by People v. Banks, supra, 61 Cal.4th at p. 809, fn. 8 [Defendant exhibited “utter indifference to the victim’s life” when she lured the victim into a secluded alley and after hearing gunshot failed to help the victim or call 911.]; People v. Medina (2016) 245 Cal.App.4th 778, 792-793 [Defendant, who had participated in the robbery but left prior to the shooting, exhibited a reckless indifference to human life when he returned to the scene to aid the shooter but made no effort to offer aid or inquire as to the victim.].)

5. Efforts to minimize risk of violence

In Clark, supra, 63 Cal.4th at pages 621-622, the court found that certain facts, including that the attempted robbery was undertaken after closing time, when most of the employees had left the building, and that there were not supposed to be any bullets in the gun, demonstrated defendant’s efforts to minimize the risk of violence in the felony and thereby weighed against increased culpability. No such evidence is present in this case. To the contrary, Parker’s decision to conduct the robbery in a motel room, located as far from security as possible, combined with his possession of the duct tape, tends to show an awareness that resistance and violence were anticipated.

Viewed in the light most favorable to the judgment, the evidence is sufficient to support the finding of reckless indifference to human life. Parker actively participated in arranging a robbery in which he anticipated and prepared for resistance and violence. He was present when the resistance and violence occurred and the victim was shot. He may not have been able to stop the unanticipated shooting, but he failed to render or summon aid when the need arose, instead abandoning the victim and fleeing with the stolen marijuana. This evidence demonstrates “a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)

This finding disposes of Parker’s argument, made in his second supplemental opening brief, that he is entitled to relief under the 2019 amendments to the felony murder rule. (§ 189, subd. (e)(3) [“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] . . . The person 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.”].) Parker argues that the jury may have arrived at its verdict based on a theory of felony murder that has since been rejected. However, because the jury made the findings required by the new law and those findings are supported by substantial evidence, there is no basis for reversal.

6. Parker’s sentence does not violate the Eighth Amendment.

In his second supplemental opening brief, Parker argues that his LWOP sentence “is unconstitutional because section 190.2 no longer narrows the class of defendants convicted of felony murder to those few deserving of capital punishment.” Parker’s argument fails for the simple reason that he was not sentenced to death.

The United States Supreme Court has held that state sentencing guidelines must, pursuant to the Eighth Amendment, distinguish between those persons eligible for sentencing to death and those who are not. (Zant v. Stephens (1983) 462 U.S. 862, 877 [For an aggravating sentencing factor to pass constitutional muster, it “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”].) Parker, however, was not sentenced to death, rendering the “narrowing” rule inapplicable. A sentence of life without the possibility of parole, while undoubtedly grave, “remains fundamentally different from death in the one respect so often emphasized in Eighth Amendment jurisprudence: time and again the high court opinions reason that capital punishment is ‘final’ and ‘irrevocable’ in the obvious sense that after it is carried out there is no possibility of rehabilitation, clemency, or belated relief because of factual mistake or change in the law.” (People v. Zimmerman (1984) 36 Cal.3d 154, 158.) As the court noted in People v. Banks (2015) 61 Cal.4th 788, 804, “As a purely constitutional matter, nothing would foreclose California from imposing life imprisonment without parole sentences on felony murderers with [defendant’s] degree of culpability.” (Citing People v. Estrada (1995) 11 Cal.4th 568, 575 [“ ‘reckless indifference to human life’ ” is not constitutionally required for a life imprisonment without parole sentence]; People v. Johnson (2010) 183 Cal.App.4th 253, 296-299, [rejecting an Eighth Amendment challenge to a life imprisonment without parole sentence for a robbery-murder getaway driver].) There is no constitutional infirmity in Parker’s LWOP sentence.

7. The abstract of judgment must be corrected to award one additional day of presentence custody credit.

Parker contends and the Attorney General agrees that due to a computational error he is entitled to one extra day of presentence custody credit. Contrary to Parker’s argument, however, the court was not required to award an additional six days credit for time spent in custody between the sentencing hearing and the restitution hearing. As the Attorney General explains, post-sentencing credits are to be calculated and awarded under section 2900.5, subdivision (e), by the Department of Corrections and Rehabilitation.[4] (People v. Johnson, supra, 183 Cal.App.4th at pp. 300-301 [The Department of Corrections and Rehabilitation, not the trial court, is responsible for calculating and applying custody credits for any time a defendant remains in custody between the date of sentencing and the date of delivery to the Department of Corrections and Rehabilitation.].) As the Attorney General notes, nothing in the record demonstrates that Parker has not been properly credited for the six days by the Department of Corrections and Rehabilitation.

8. The trial court did not err in denying Espinal’s posttrial motion for jury identifying information.

“After a jury’s verdict is recorded in a criminal jury proceeding, the court’s record is ‘sealed,’ meaning all ‘personal juror identifying information of trial jurors . . . consisting of names, addresses, and telephone numbers,’ is extracted or otherwise removed from the court record.” (People v. Carrasco (2008) 163 Cal.App.4th 978, 989, citing Code Civ. Proc., § 237, subd. (a)(2)-(3).) Pursuant to Code of Civil Procedure section 237, subdivision (b), “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.” “Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the deferential abuse of discretion standard.” (People v. Carrasco, supra, at p. 991.)

Here, Espinal’s counsel filed a declaration in support of Espinal’s petition to disclose juror identifying information, stating that he had spoken to some jurors and alternates after the trial, and those discussions led him to believe that the duct tape found under the pillow was a key piece of evidence showing that Parker and Espinal had planned to rob Weinreb. Counsel opined that the jurors might have “ignored the court’s limiting instruction and illegally used the facts surrounding Mr. Parker’s 2006 robbery to find Mr. Espinal guilty of robbery in this case and therefore murder under a felony murder theory.”

After a hearing on the motion, at which several jurors were present and expressed their opposition to the release of the information, the trial court denied the motion. Among other things, the court stated that the juror’s posttrial statements do not demonstrate a failure to follow its instructions. There was no abuse of discretion in this ruling. The duct tape was significant evidence of planning relevant to both defendants. Indeed, Espinal testified that he purchased the tape and brought it to the room. Counsel’s suggestion that the jurors may have considered Parker’s prior criminal use of duct tape as evidence against Espinal is not supported by any evidence in the record and provides no basis for the release of the jurors’ identifying data.

Disposition

The judgments are affirmed. The abstract of Parker’s judgment shall be modified to reflect one additional day of presentence custody credit.

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POLLAK, P. J.

WE CONCUR:

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STREETER, J.

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TUCHER, J.

A146411, A147074