INTRODUCTION

After his nephew was jumped and beaten by several young men at a party,

defendant Darren Zesk and his nephew Jared returned to the party location and called out

one of the people who had been involved in the altercation. They demanded that the

victim, Massai Cole, come outside to fight Jared one-on-one, where Zesk pulled out a

firearm and shot the victim in the abdomen, causing death.

Defendant was initially being held to answer on charges of premeditated murder

committed by lying in wait (Pen. Code,1 §§ 187, subd. (a), 189, subd. (a)) and an

allegation of personal discharge of a firearm causing death (§ 12022.53, subd. (d)), but

later a grand jury was empaneled. The grand jury returned an indictment on the original

charges and enhancements and included a special circumstances allegations that the

victim was killed by means of lying in wait (§ 190.2, subd. (a)(15)), and because of his or

her race, color, religion, nationality, or country of origin. (§ 190.2, subd. (a)(16).)

Defendant filed a motion to set aside the racial hatred special circumstance allegation (§

995), which was granted. The People then filed this petition.

The People assert that the trial court erred in striking or setting aside the hate-

crime special circumstance allegation. We reverse.

BACKGROUND

Just after midnight on February 1, 2020, Zesk (age 19), his close-in-age nephew

Jared (age 18), and two other friends arrived at a house party in Moreno Valley after the

1 All further statutory references will be to the Penal Code unless otherwise indicated.

2 party they were previously attending was shut down. It appears the party was attended by

White people, Latinos, and one or several Black people, in descending order of

proportion.

Jared, and possibly Zesk, were beaten up during an altercation after one member

of their group dropped a liquor bottle inside the house. Jared got the worst of it. Zesk

later told another same-age nephew, who testified before the grand jury, that the persons

involved in the altercation and who beat up Jared were mostly Black, with some

Mexicans, and no White people. However, at the grand jury proceeding the homicide

investigator showed a security video still of three men attacking Jared as he lay on the

ground; he identified them as one white, one Black and one of undetermined race. Zesk

was standing nearby.

After the beating, the two young men went home and then returned to the party.

Jared mostly waited in or by Zesk’s car, a black Dodge Charger, down the street, while

Zesk went into the party four separate times over about 30 minutes, coming out in

between.2 The final time Zesk speaks to someone in the driveway before going back into

the party. In the backyard, Zesk approached the Black victim, Massai Cole, and asked

Cole to follow him to the front yard so his cousin could fight Cole one-on-one. Cole

followed Zesk. Before they reached the front yard, Cole stopped to talk to someone.

Zesk turned around and shot the victim two or more times. Cole died from these wounds.

2 Security cameras in the neighborhood captured much of the action, and stills were created from that footage.

3 When police arrived in response to the shooting, Cole was the only African-American

person present at the party.

Defendant was initially charged in case No. RIF 2000463, by way of complaint,

with murder, including allegations of lying in wait and premeditation and deliberation, as

well as a personal gun discharge enhancement allegation. (§§ 187, subd. (a), 189, subd.

(a), 12022.53, subd. (d).)3

On July 10, 2020, at the end of the preliminary hearing, the court held Zesk to

answer for murder with an enhancement for personally and intentionally discharging a

firearm causing death. The People did not allege any special circumstances. According

to Zesk’s section 995 motion, at the preliminary hearing the prosecutor asked the

homicide investigator Trudeau, who interviewed Jared, whether Jared ever mentioned

that there was racial motivation for the shooting. The investigator testified, “no, there

was none.” The preliminary hearing transcript is not provided with the petition. 4

3 On our own motion, we take judicial notice of the Riverside Superior Court file case No. RIF2000463.

4 The indictment is the initial pleading in a separate case number, RIF2010146. It appears (because our record in incomplete) that Zesk was originally charged by way of complaint with murder (§ 187, subd. (a)), along with allegations of premeditation and deliberation, as well as lying in wait, and an allegation defendant personally discharged a firearm causing death. (Riv. Sup. Ct. case No. 2000463; §§ 189, subd. (a), 12022.53, subd. (d).) There were no special circumstances alleged in this complaint. There was a preliminary hearing, however, and defendant was apparently held to answer on the charges alleged, but we do not have a copy of the transcript of the preliminary hearing, as mentioned. Later, the People sought an indictment on special circumstances murder, and the grand jury’s accusation was returned charging Zesk with murder, along with the previously alleged allegations of premeditation and lying in wait, and a special [footnote continued on next page]

4 In its opposition to defendant’s motion, the People indicated in a footnote that,

“[F]ollowing the preliminary hearing, new evidence prompted the People to empanel a

Grand Jury” to review evidence of first degree murder committed by lying in wait and for

a racial motivation.

During the grand jury proceedings, the prosecutor did not ask Investigator Trudeau

whether anyone had mentioned a racial motivation for the shooting. Instead, the People

introduced evidence that defendant’s family members had heard him speak of African-

Americans in derogatory terms and he listened to racist songs, defendant had sent text

messages to a person whose moniker was “White Power Joey,” and had also referred to

African-Americans using a racial epithet, expressed his hatred for African-Americans by

stating they were monkeys and that they belonged in a zoo; and that his name showed up

on YouTube in a racist rap song, with his name spelled “Zeskkk.” Further, on

defendant’s social media pages and instant messages, he extolled Hitler, the Ku Klux

Klan, and made denigrating references to African Americans. However, the posts were

not related to the shooting, in fact, the YouTube video was posted two years earlier.

The People also introduced defendant’s phone records showing similar sentiments,

although none of the statements referred to a motive for the shooting. Defendant’s other

young nephew testified before the grand jury that defendant told him that when he

returned to the location where the party was ongoing and where Jared was beaten, he

recognized one of the individuals involved in the altercation, “a black kid.”

circumstance allegation that the victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin. (§ 190.2, subd. (a)(16).)

5 On August 20, 2020, the grand jury indicted Zesk on the charge of murder (§ 187,

subd. (a)), with the allegation that he personally and intentionally discharged a firearm

causing death (§ 12022.53, subd. (d)), and with the special circumstances of lying in wait

(§ 190.2, subd. (a)(15)) and that the murder was motivated by the victim’s race. (§ 190.2,

subd. (a)(16).)

In 2022, Zesk filed a section 995 motion to set aside the hate crime special

circumstance. The People opposed. Zesk did not file a reply. At the motion hearing on

July 8, 2022, the parties submitted on their filings without oral argument and the court

took the matter under submission. The minute order for that day shows the court granted

the motion.

The People filed a notice of appeal on this issue on August 12, 2022 in case No.

E079587. The People also filed the instant petition seeking extraordinary relief. On

August 17, 2022, the People filed this petition seeking extraordinary relief, and

concurrently filed a notice of appeal from the trial court’s ruling, in People v. Zesk, case

No. E079587, which has been stayed.

DISCUSSION

The sole issue for review in this writ proceeding is whether the trial court erred in

granting the defense motion to strike or dismiss the special circumstance allegation that

the murder was motivated by racial hatred. In this respect, we are governed by a standard

of review that requires deference to the grand jury indictment.

6 a. Standard of Review

Section 995 requires a court to set aside an indictment on a motion where “the

defendant has been indicted without reasonable or probable cause.” (§ 995, subd.

(a)(1)(B).) The term “probable cause,” as used in this connection, refers that state of

evidence in which it appears from the examination that a public offense has been

committed, and there is sufficient cause to believe the defendant guilty thereof.

(Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026-1027.) There, the court

explained that evidence which will justify a prosecution need not be sufficient to support

a conviction. (Id,. at p. 1027.) Thus, “‘“‘[a]n [indictment] will not be set aside or a

prosecution thereon prohibited if there is some rational ground for assuming the

possibility that an offense has been committed and the accused is guilty of it.

[Citations.]’””’ (D’Amato v. Superior Court (2008) 167 Cal.App.4th 861, 880, quoting

Cummiskey, supra, 3 Cal.4th at pp. 1026–1027.)

In reviewing the grant of a defendant’s section 995 motion, we adhere to the

guidance of People v. Johnson (2012) 209 Cal.App.4th 800, 807-808, and, “‘in effect

disregard[] the ruling of the superior court and directly review[] the determination of the

[grand jury] holding the defendant to answer.’ [Citations.] Insofar as the . . . section 995

motion rests on issues of statutory interpretation, our review is de novo. [Citation.]

Insofar as it rests on consideration of the evidence add uced, we must draw all reasonable

inferences in favor of the [indictment] [citations] and decide whether there is probable

cause to hold the defendants to answer, i.e., whether the evidence is such that ‘a

7 reasonable person could harbor a strong suspicion of the defendant’s guilt . . . ’

[citations].” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072; see People v. Magee

(2011) 194 Cal.App.4th 178, 182-183 (Magee).)

In this context, the issue is not whether substantial evidence supports the trial

court’s ruling on the motion, but whether substantial evidence supports the grand jury’s

decision holding the defendants to answer the charges. (People v. Davis (2010) 184

Cal.App.4th 305, 311.) “Only the . . . grand jury . . . is permitted to weigh the evidence

or judge credibility, and all presumptions on appeal are in favor of that decision.” (Ibid.;

see Magee, supra, 194 Cal.App.4th at pp. 182-183.)

b. Analysis of the Propriety of the Order Striking/Dismissing the Racial

Hatred Special Circumstance Allegation.

Based on the governing review standards, despite the lack of evidence of an actual

racial motivation for this crime (as the defense pointed out in its motion, the investigator

testified that there was no indication of a racial motivation for the shooting), we look only

to whether the grand jury had probable cause to return an indictment on the allegation.

At the pre-grand jury preliminary hearing, there was a paucity of information regarding

racial animus, limited to evidence that defendant informed another family member that

the person he shot was black. Evidence obtained in the ongoing investigation into the

crime opened the window for the jury to conclude the killing was motivated by the

victim’s race.

8 In this regard, there was ample evidence of defendant’s hatred of African-

Americans and his support for groups and individuals who advocate violence against

members of racial or ethnic minority groups. Further, of the three (or more) persons who

jumped on defendant’s nephew, defendant only sought out Cole, the only African-

American involved in the fight, to lure outside of the residence for a confrontation, where

he was ambushed by defendant’s gunfire. While this is by no means overwhelming

evidence of racial animus, it is sufficient to pass muster under the deferential standard

accorded to review of grand jury proceedings.

For this reason, we grant the writ. Insofar as this order renders the appeal in

E079587, People v. Zesk, moot, we dismiss that appeal.

DISPOSITION

The petition is granted and the order setting aside or vacating the special

circumstances allegation is reversed. The appeal in People v. Zesk, E079587 will be

dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.

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