Petition for Resentencing Must Consider Youthfulness

In 2005, fifteen-year-old Davion Keel and eighteen-year-old Ariel Boulton held Barry Knight at gunpoint and robbed him of twenty dollars on the streets of San Bernardino.  One of the two shot and killed Knight when he resisted the robbery and tried to flee.  Keel was an associate, not a member, of the East Side Crips street gang and sold drugs for the gang.

Keel and Bolton were both prosecuted in adult criminal court and, in 2008, convicted of first degree murder (Penal Code §§ 187(a), 189) in connection with Knight’s death.

Keel was sentenced to 25 years to life in prison.  The conviction and sentence were affirmed on appeal to the Fourth Appellate District Court of Appeal.  The California Supreme Court denied review on January 13, 2010.

More than a decade later, in 2019, Keel filed a motion to vacate his murder conviction and be resentenced under Penal Code § 1172.6 (formerly § 1170.95) based on changes to the state’s felony-murder rule under Senate Bill 1437. 

Keel alleged he could not be convicted of murder now if he were tried for the crime today because: (1) he was not the actual killer; (2) he did not aid and abet the actual killer with intent to kill; and (3) he was not a major participant in the underlying robbery and he did not act with reckless indifference to human life.

The trial court found that Keel had made a prima facie showing for relief and set the matter for an evidentiary hearing at which time the People bore the burden to show why Keel should not be resentenced.

The prosecution claimed that Keel should not be resentenced, despite the changes in the law, because (1) Keel was the actual killer; (2) he aided and abetted the actual killer with the intent to kill; and (3) he was a major participant in the robbery and he acted with reckless disregard to human life.  To support these arguments, the prosecution submitted reporter’s transcripts from the murder trial showing the testimony of several percipient witnesses, the jury instructions and the verdict form from the trial, as well as the Fourth Appellate District’s opinion affirming the conviction.

The evidence included a witness who heard four or five shots and looked in the direction of the noise.  He saw Knight running away and heard him say, “Oh my God.  Oh my God.”  He also saw Keel and Bolton running away in a different direction.  Another bystander about a block away identified Keel as pointing his gun at Knight and being the shooter.  Another bystander about 100 feet away on a balcony identified Bolton as the shooter.

However, all the shell casings recovered from the scene were from the firearm Bolton was carrying.

About twelve hours later, police found Keel and while chasing him, he tried to put his gun in a trash can.  Police found it and discovered it was not loaded.

At the conclusion of the hearing, the trial court found there was “no credible evidence” that Keel shot Knight.  Although one bystander identified Keel as the shooter, the judge found the bystander’s credibility on this issue “dubious at best.”

As to whether Keel was a major participant, however, the judge found that Keel had pulled out a gun and pointed it at Knight during the robbery, which suggested he was a major participant who acted with reckless indifference to human life.  Therefore, the judge denied resentencing.

Keel appealed to the Fourth Appellate District, which reversed and remanded the ruling with instructions for the trial court to reconsider the “major participant acting with reckless indifference” facts in light of defendant’s youthfulness.

The Fourth District explained that the trial court even acknowledged this and noted that Keel was “a mere 15 years old” at the time of the robbery and “the decision to rob was made quickly” and Keel was with an older co-defendant.  Moreover, the events culminating in the shooting “unfolded rather quickly.”

The Fourth Appellate District cited to People v. Clark (2016) 63 Cal. 4th 522, wherein the California Supreme Court addressed reckless indifference to human life.  The Clark court held that “reckless indifference . . . encompasses a willingness to kill (or 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.”  Id., at 617.

Since Clark, courts have discerned an additional factor that may be relevant to the reckless indifference analysis – the defendant’s youth.  In re Moore (2021) 68 Cal. App. 5th 434, 453; see also People v. Ramirez (2021) 71 Cal. App. 5th 970, 990 – 991 [reversing order denying petition for resentencing in part, because “defendant’s youth at the time of the shooting greatly diminished any inference he acted with reckless disregard for human life”]; People v. Harris (2021) 60 Cal. App. 5th 939, 960 [defendant’s youth was relevant to whether he was a major participant in underlying felony].

The case was therefore remanded with instructions for the trial court to reconsider the factors of defendant’s youth more closely.

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