Opinion
F085254
03-21-2024
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ALRAY LEE, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Plaintiff and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. BF127496C. Michael G. Bush, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellant Jonathan Alray Lee appeals from the superior court's denial of his petition for resentencing under Penal Code section 1172.6 (Stats. 2022, ch. 58, § 10)after the trial court determined that Lee had made a prima facie showing of eligibility for resentencing and a hearing was ordered. Based upon the evidence presented at that hearing, the court denied the resentencing petition, finding beyond a reasonable doubt that Lee was a major participant in an enumerated underlying crime who acted with reckless indifference to human life, and concluding Lee could still be convicted of first degree murder under current law and was therefore ineligible for resentencing. (See §§ 189, subds. (a) &(e)(3), 1172.6, subd. (a)(3).) We affirm.
Undesignated statutory references are to the Penal Code. Lee filed his petition under former section 1170.95. Effective January 1, 2022, section 1170.95 was amended by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775). Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10). We cite to the current section 1172.6 throughout this opinion.
BACKGROUND
On June 22, 2009, Lee was charged, along with codefendant Patrick Harris, in count 1 with murder (§ 187, subd. (a)); in count 2, with first degree robbery (§ 212.5, subd. (a)); in count 3, with burglary of an inhabited dwelling (§ 460, subd. (a)); and in count 11, with active participation in a criminal street gang (§ 186.22, subd. (a)). Count 1 further alleged robbery, burglary, and gang special circumstances (§ 190.2, subd. (a)(17)(A), (G) &(a)(22)). Counts 1, 2, and 3 further alleged that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal personally used a firearm (§§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d) &(e)(1)).
Count 11 also included codefendant Carlos Ruiz, Jr.
On December 22, 2010, Lee pled guilty to an amended information charging him with count 1, voluntary manslaughter (§ 192, subd. (a)), and count 2, first degree robbery (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A)). As to count 1, Lee admitted that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and, as to count 2, that a principal, Harris, personally used a firearm (§ 12022.53, subds. (b) &(e)(1)).
Lee was sentenced on January 14, 2011, to a stipulated sentence of 26 years four months in state prison, consisting of the upper term of 11 years for voluntary manslaughter, plus 10 years for the gang enhancement, one-third the midterm of two years for the first degree robbery, and three years four months for the firearm enhancement.
On January 24, 2022, Lee filed a petition for resentencing pursuant to section 1172.6. On August 24, 2022, the trial court concluded a prima facie showing had been made and a hearing was set.
After briefing and argument by the parties and review of the stipulated record of conviction and additional trial exhibits, the trial court denied the petition on November 7, 2022, concluding that Lee was ineligible for resentencing. This appeal followed.
The facts are taken from the preliminary hearing transcript and Lee's interview with law enforcement, both admitted into evidence and considered by the trial court at the hearing on Lee's petition.
On April 9, 2009, C.A. invited eight or nine people to his home for a "kickback." C.A.'s best friend Silberio Rodriguez was there, as were R.W. and S.J. Close to midnight, someone knocked on the front door. C.A. went to the front window to see who it was; Rodriguez went to the door. C.A. saw two people he had not seen before.
C.A. told Rodriguez not to open the door, but he did anyway. C.A. went and stood next to Rodriguez, and Jackson and Wilson stood behind them. Lee and Harris were at the door and Harris asked to come inside. C.A. said," 'No,'" and that he did not know him. Harris talked while Lee stood next to him.
Harris said they knew him "through some girl" and were there for a kickback. C.A. again told Harris and Lee they could not come in, but Harris repeated that "some girls" told him C.A. had sold weed and he wanted some.
After asking to come in and being denied three times, Harris looked over and made eye contact with Lee, which to C.A. did not "feel right." Harris then pulled out a gun from his pants, pointed it at C.A., and said," 'This is a jack move. Get down.'" C.A. tried to grab Harris's arm and Rodriguez tried to close the door. Harris pushed the door back open, fired a single shot and entered the home.
C.A. yelled for everyone to run. He ran down the hallway to his bedroom, locked the door, and loaded his gun. He pushed the screen out of his window and fled, hearing gunshots when he did so.
Meanwhile, R.W. and S.J. ran to another bedroom and heard someone say," 'Open the door, or I am going to pop this n[***]a.'" One of the men said," 'Open the door,'" and then," 'Give me your keys and your wallets.'" S.J. could not tell if this was the same person talking or two people. S.J. then heard a loud noise that sounded like a door being kicked in. After hearing one or two more gunshots, R.W. and S.J. fled out of the bedroom window.
J.J. had been in the kitchen when he heard the knock on the door of the home. He heard talking but could not tell what it was about. After a few minutes, he heard a gunshot and was going to run, but was prevented from running by Lee, who came into the kitchen. Lee said something J.J. could not understand, and J.J. told Lee he did not know what was going on and had nothing to do" 'with this.' "
Rodriguez then came into the kitchen, followed by Harris, who then held his gun to J.J.'s head and told him to get on the floor or he would kill him. He also told J.J. to empty his pockets. Harris went through J.J.'s pockets and took his keys and cigarettes.
While this was happening, Lee grabbed Rodriguez by the head and took him towards C.A.'s bedroom. After going through J.J.'s pockets and taking his keys and cigarettes, Harris left the kitchen and kicked down C.A.'s door. J.J. heard someone say," 'Empty your pockets. Empty your pockets. Give me all that. Give me all that.'" About 10 seconds later, there were two gunshots and then a voice said," 'We got to get out of here.'" When J.J. got up, he saw Rodriguez in the hallway, slumped over. Rodriguez ultimately died of a bullet wound to the head.
Lee and Harris were located shortly after the shooting, a revolver nearby. Lee's girlfriend's car was found on the street near C.A.'s home, with gloves and a ski mask inside. Harris had a pair of gloves on him. Lee had J.J.'s keys on him. Both were arrested and booked into jail.
The following day, Lee was interviewed by Kern County Sheriff's Detective Jason Balasis. Lee said Harris was his older half-brother who had been "locked up" and got out. Lee had seen Harris's "face on the news" in connection with a robbery and knew he should not "mess with" him. According to Lee, Harris had called him and told him to pick him up at a discount store. Lee took his girlfriend's car and went to meet Harris, who said he needed weed, and Lee told him he knew where to find some nearby. They drove to a home and Harris told Lee not to park in front of the home, so he parked at some apartments nearby.
Harris and Lee then went to the front door of the home and knocked. Three people came to the door. Harris asked to buy marijuana and one person said he did not know them and would not sell to anyone he did not know. Someone pulled up in a car and a girl went into the home with a bag. Harris kept insisting on getting some marijuana.
Lee claimed to be looking at the girl when Harris pulled out a gun and told everyone to get down. Harris then told Lee to "get the stuff," and handed him a pair of gloves. Lee did not know what to do as Harris was his older brother and he was "crazy." There was a struggle at the door between Harris and the men and Lee heard a gunshot.
The men ran and Harris and Lee entered the home. Harris brought Rodriguez to the kitchen. Harris told Jenkins to lie down and went through his pockets. Harris instructed Lee to take Rodriguez to open the bedroom door.
Lee grabbed Rodriguez and took him to the bedroom, where Harris told Lee to open the door. Lee refused because he had heard that someone in the home had a gun. As told to Balasis, Lee said, "So, I grab him. I put him by the door. I'm like, n[***]er, you open the door. I mean, I'm-in my head, I'm already going. Someone told me I think he had a gun. I'm not going to open this door. And we in his-we in his house. You know what I'm saying, he has all right to protect hisself [sic]."
Lee told Harris to open the door and Harris kicked it in. The room was empty and the window was open.
Harris told Lee to check the room, which he refused to do. Harris then grabbed Rodriguez and told Lee to get whatever he could, the PlayStation and Xbox. Lee pulled on the PlayStation, but left it because it would not move. He flipped the bed over. Harris had Rodriguez by the hair and was asking him where the stuff was.
Harris then led Rodriguez out of the room. Lee was still in the room when he heard a gunshot. He heard another gunshot when he was out of the room. Harris then ran out of the home, followed by Lee. The two got into the car and Harris told Lee to hurry up and said something about "let's dome this n[***]er," which Lee knew meant Harris had shot someone in the head. Lee started driving, but he switched places with Harris when they saw police. A helicopter followed the car, so Harris pulled over and he and Lee fled on foot, but were apprehended shortly thereafter.
DISCUSSION
Legal Framework
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended the felony-murder rule to provide: "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: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2 [the statute defining felony-murder special circumstances]." (§ 189, subd. (e).) The new law was designed "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f).)
The Legislature also added former section 1172.6, which creates a procedure for offenders previously convicted under a felony-murder theory to obtain the benefits of these changes retroactively. Under the statute, individuals convicted of murder can petition for relief in the court where they were sentenced if (1) the complaint or information filed against the defendant "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime," (2) the defendant was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the defendant could have been convicted of murder or attempted murder, and (3) the defendant could not presently be convicted of murder or attempted murder because of changes to section 188 or 189. (§ 1172.6, subd. (a)(1)-(3), (b)(1)(A).) Section 1172.6 initially applied only to murder, but the Legislature amended that section to include attempted murder and voluntary manslaughter in Senate Bill 775.
In most cases where the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must hold an evidentiary hearing at which the prosecution bears the burden of proving, "beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder" under state law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) "A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.)
In 2015 and 2016, our high court substantially clarified the law governing findings under felony special circumstance murder in section 190.2, subdivision (d) in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v Clark (2016) 63 Cal.4th 522 (Clark). "Banks elucidated what it means to be a major participant and, to a lesser extent, what it means to act with reckless indifference to human life, while Clark further refined the reckless indifference inquiry." (People v. Strong (2022) 13 Cal.5th 698, 706-707.) Specifically, Banks considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant." (Banks, at p. 794.) The court listed various factors that should be considered in making that determination: "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 the defendant do after lethal force was used?" (Id. at p. 803, fn. omitted.) However, whether a defendant acted as a major participant depends on the totality of the circumstances. (Id. at p. 802.) Moreover, "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.'" (Id. at p. 803.)
Reckless indifference to human life is" 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (Clark, supra, 63 Cal.4th at p. 616.) It "encompasses 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." (Id. at p. 617.) Recklessness has both a subjective and an objective component. (Ibid.) Subjectively, the defendant must consciously disregard risks known to him or her. Objectively, recklessness is determined by "what 'a law-abiding person would observe in the actor's situation,'" that is, whether defendant's conduct" 'involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe.'" (Ibid.) However, the mere fact that a robbery involves a gun is insufficient on its own to establish reckless indifference to human life. (Ibid.)
Clark listed factors to consider when determining whether reckless indifference existed: "Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (In re Scoggins (2020) 9 Cal.5th 667, 677 [summarizing Clark factors].) As with a major participant finding," '[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.'" (Clark, supra, 63 Cal.4th at p. 618; see also Scoggins, at p. 683 ["[determining a defendant's culpability under [§ 190.2, subd. (d)] requires a fact-intensive, individualized inquiry"].) Standard of Review
On appeal, we review the trial court's findings for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
Hearing on Lee's Petition for Resentencing
At the September 21, 2022, hearing on the petition, counsel for Lee indicated that she was prepared to submit on the preliminary hearing transcript and a recorded interview of Lee. The People stated they were willing to submit and asked the trial court to take judicial notice of its own file, "specifically the preliminary hearing transcripts, the plea form, the amended first [information, and the minute order of the plea ...." It also offered into evidence Lee's interview with law enforcement. Lee's counsel then asked for a future court date after the trial court had reviewed all evidence, which was then set for November 7, 2022.
At the November 7, 2022, hearing, the trial court stated that it had read the preliminary hearing transcript and the transcript of Lee's interview with law enforcement. Lee's counsel then argued that the recent case of People v. Keel (2022) 84 Cal.App.5th 546 (Keel), was on point. The court asked to review it, but before doing so, asked if Lee was a juvenile when the crime occurred. Counsel stated Lee was 19 at the time.
Following the trial court's review of Keel, Lee's counsel argued Lee was not a "major participant in the underlying felony" and did not act with reckless indifference to human life. Counsel argued that Lee did not know his brother had a gun, Lee did not have a gun, he did not provide his brother with a gun, and there was no evidence he had any knowledge that his brother was planning on robbing the occupants of the home. Instead, counsel argued, it was Harris who made the quick decision, after the two were told they were not going to be sold any weed, to discharge his gun. Counsel argued that
Lee did not have a meaningful opportunity to stop his brother from shooting. Counsel also argued the duration of the crime was short, happened "very quickly," and there was no evidence that the robbery was prearranged. Counsel further argued that Lee had no knowledge that his brother might represent any threat and knew of no violent tendencies he had, citing the fact that Harris had been incarcerated for an extended period of time and Lee had not been around him "for a while." Counsel also argued that Lee tried to minimize the risk during the robbery, citing Lee's refusal to open the bedroom door when told to do so by Harris, which led to Harris kicking the door and breaking it. This, counsel claims, was conduct on Lee's part to "distance himself from his brother's behavior." Counsel also argued that Lee's youth at age 19 should be considered because he was "definitely more vulnerable and susceptible to the outside pressures from his brother." Finally, counsel argued, Lee did not see when Harris shot the victim, but it was Harris who told Lee he had shot the victim and that they had to flee. Nor, as counsel argued, did Lee take any items from the home, only that he "pretended" to pull the cord of the PlayStation to "pretend" that he was following his brother's instructions.
The People argued that Lee was a major participant in the robbery, as he was present, he helped restrain the victims, he helped search the bedroom and, while there was no evidence that he took property from the victims, he was in possession of one of the victim's keys when he was booked into jail. The People also argued that Lee acted with reckless indifference in that, while there was not a lot of evidence of a "prearranged, well planned out robbery," there was "at least a tacit agreement to commit this robbery beforehand," citing the eye contact observed between Harris and Lee before they entered the home, that Harris pulled out the gun before they entered, and they entered together "as a coordinated pair." The People argued Lee obviously knew Harris had a gun because he was willing to discharge it at the "very start of the robbery," and still Lee continued to participate in the robbery after that. Lee also knew Harris was previously wanted for robbery, although it was not certain if that was for armed robbery. There was also evidence that Lee had a chance to deescalate the violence but did not when he helped restrain Rodriguez while Harris kicked down the door. The People argued that Lee refused to kick down the door not because he did not want to help Harris, but because he personally believed that the person inside the room was armed and Lee did not want to get shot. The People argued that, while Lee was 19 years old at the time, he had "enough maturity to know what he was . . . getting into at that point."
Lee's counsel then attempted to reiterate that there was no evidence Lee knew Harris had a gun. The trial court interjected by stating, "that's true up until the point the gun went off at the front door," and Lee did not leave at that point, but still entered the home with Harris after that. Lee's counsel also reiterated that Lee's age played "a big part in why he succumbed to the pressures of his brother at that point ._" Counsel asked that the court consider the age difference between Lee and Harris and that Lee was "extremely scared" when he walked into the home. Counsel argued further that Lee's refusal to kick down the door when told to by Harris "shows" that he "did not expect the events to go down that path, and he did not want to . . . be more involved in this robbery that was-started as a trip to go purchase weed."
The People argued again that there were parts of Lee's statement to law enforcement where he admitted to holding one of the victims, which would mean physically restraining him. The People also pointed out Lee's statement to the officer who interviewed him that Lee did not want to kick the door down because he had heard that the owner of the home had a gun. The trial court looked back at the transcript of the interview and agreed with the People's assessment of Lee's statement.
The trial court in its ruling reiterated that both parties agreed Lee was not the actual killer, but it was the "third criteria" that was at issue here: whether "[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life." The court then reviewed the "Banks and Clark factors" and discussed their applicability to the facts of Lee's case, finding that Lee went with Harris, who he knew was wanted for robbery, to a home where they did not know anyone with the intent to rob them; that, while Lee did not supply the lethal weapon, he knew Harris had a loaded gun as soon as he fired it at the door; that the dangers of what they were doing was evident, as Harris was wanted for robbery, had been to prison before, and Lee knew the gun was loaded; and while Lee may not have been "present" when the gun was used to kill the victim, he obviously heard Harris say he was going to" 'pop this n[***]a'" if he did not open the door; Lee did not restrain Harris and he did not aid the victims; while the time frame may have been short, "a lot of action" happened during that time and Lee was "right in the middle of it"; and Lee knew his brother was a threat to the victims, as evidenced by the verbal threats made by Harris, and did nothing to minimize the risk. In conclusion, the trial court denied the petition, finding beyond a reasonable doubt that Lee was a major participant in the underlying felony and that he acted with reckless indifference to human life.
Substantial Evidence Supports the Trial Court S Findings
On appeal, Lee argues that the prosecution's evidence was insufficient to carry its burden establishing him as a major participant who acted with reckless indifference to human life during the 2009 robbery. Specifically, Lee claims he had no role in providing a weapon; there was no evidence he knew Harris was armed until he drew the weapon; while present at the scene, the robbery unfolded very quickly and was unplanned; there was no significant evidence Lee was aware Harris had a propensity for violence; and he was not present when Harris shot Rodriguez.
First, with respect to the major participant finding, it is true that there was no hard evidence Lee planned the crime, supplied the weapon, or carried a weapon. However, as our high court has explained, "[n]o one" of the factors it has identified as relevant in this context is "necessary." (Banks, supra, 61 Cal.4th at p. 803.) Lee and Harris were together at the front door and made eye contact with each other before entering the home. A reasonable inference from this fact is that Harris was looking for confirmation that Lee was on board with the plan and ready to back him up. While there is no evidence that Lee supplied Harris with the gun, Lee certainly knew of the weapon as soon as Harris fired it; moreover, he knew Harris was willing to use it. Lee was aware that Harris was wanted for robbery and that he had spent considerable time in prison. Furthermore, there is no evidence that Lee took any action to dissuade Harris, either from entering or later from shooting Rodriguez. Finally, after the shooting, Lee fled with Harris and drove away. In sum, substantial evidence supports the trial court's conclusion that Lee's participation in the underlying crimes "was sufficiently significant to be considered 'major.'" (Ibid.)
As for the reckless indifference finding, as stated above, knowing participation in an armed robbery is not sufficient, on its own, to demonstrate reckless indifference. Here, however, the evidence supports the inference that Lee was aware Harris likely intended to use a firearm during the robbery and kill someone and did nothing to minimize this grave risk of death. (See Clark, supra, 63 Cal.4th at p. 621 ["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.' "].) Again, Lee's status as second in command cannot be ignored. Lee had multiple opportunities to object to the resulting shooting, but he did not do so. After the shooting, he did not go to the aid of the victim but instead followed Harris out of the home and drove away. Substantial evidence thus supports the trial court's conclusion that Lee acted with reckless indifference to human life.
Consideration of Lee's Youth
Lee was 19 years old at the time of Rodriguez's murder. Lee's major contention on appeal is that the trial court did not consider his youth as part of the totality of the circumstances. Lee contends this matter must be reversed and/or reversed and remanded so that the trial court can expressly consider his youth as part of the totality of circumstances relevant to whether he was a major participant who acted with reckless indifference to human life. In response, the People argue the trial court did consider Lee's age and nevertheless determined that other factors proved beyond a reasonable doubt that Lee was a major participant in the robbery who acted with reckless indifference to human life.
We conclude that, if there was any error, it was harmless on these facts.
In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme Court concluded that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. (Id. at p. 470.) In doing so, it reiterated that" 'developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,'" and that "those findings-of transient rashness, proclivity for risk, and inability to assess consequences-both lessened a child's 'moral culpability' and enhanced the prospect that, as the years go by and neurological development occurs, [their]' "deficiencies will be reformed." '" (Miller, at pp. 471-472, quoting Graham v. Florida (2010) 560 U.S. 48 (Graham).)
California has increasingly legislated with these psychological and neurological differences in mind. For example, "[effective January 2018, section 3051 was amended . to require youth offender parole hearings for offenders who committed their crimes when they were 25 years of age or younger. (Stats. 2017, ch. 675, § 1.) According to the author of the amendment,' "[Assembly Bill No.] 1308 would align public policy with scientific research.. Scientific evidence on adolescence and young adult development and neuroscience shows that certain areas of the brain, particularly those affecting judgement and decision-making, do not develop until the early-to-mid-20s. Research has shown that the prefrontal cortex doesn't have nearly the functional capacity at age 18 as it does at 25. The prefrontal cortex is responsible for a variety of important functions of the brain including attention, complex planning, decision making, impulse control, logical thinking, organized thinking, personality development, risk management, and short-term memory. These functions are highly relevant to criminal behavior and culpability.."' " (In re Jones (2019) 42 Cal.App.5th 477, 485 (conc. opn. of Pollak, P. J.), quoting Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, pp. 2-3.)
In a related vein, section 4801 was amended to provide: "When a prisoner committed his or her controlling offense . . . when he or she was 25 years of age or younger, the board, in reviewing a prisoner's suitability for parole . . ., shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).) And, effective January 1, 2022, prosecutors must now consider a defendant's youthful age as a mitigating factor during plea negotiations. (§ 1016.7, subd. (a)(2); see Stats. 2021, ch. 695, § 4.) For purposes of this provision, a youth "includes any person under 26 years of age on the date the offense was committed." (§ 1016.7, subd. (b).)
Lee relies on several cases which have addressed the relevance of a defendant's youth when conducting an analysis of major-participant and reckless-indifference findings under Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522. For instance, the appellate court in People v. Harris (2021) 60 Cal.App.5th 939 (Harris), remanded the matter for a resentencing hearing under subdivision (d) of former section 1170.95 because the record of conviction did not establish as a matter of law that the defendant, 17 years old at the time of his arrest, was ineligible. (Id. at pp. 944, 959-961.) In its discussion of the major participation requirement, the court cited Miller and Graham and commented: "[G]iven [the defendant's] youth at the time of the crime, particularly in light of subsequent case law's recognition of the science relating to adolescent brain development [citations], it is far from clear that [the defendant] was actually aware 'of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.'" (Harris, at p. 960.)
In In re Moore (2021) 68 Cal.App.5th 434 (Moore), the appellate court found insufficient evidence that the defendant acted with reckless disregard to human life "upon consideration of the factors identified in Clark together with [the defendant's] youth at the time of his offenses." (Moore, at p. 451.) First, many of the Clark factors suggested that the defendant "did not act with the requisite reckless indifference to human life." (Moore, at p. 452.) Second, citing Harris and Miller, the court concluded that, even if the evidence supported "a finding of reckless indifference for an adult, it is not sufficient to establish that [the defendant], who was 16 at the time of the shooting, had the requisite mental state." (Moore, at pp. 453-454.) Rather, concluding that "the 'hallmark features' of youth-'among them, immaturity, impetuosity, and failure to appreciate risks and consequences'-are arguably more germane to a juvenile's mental state than to his or her conduct" (id. at p. 454), the appellate court held that "a defendant's youth is a relevant factor in determining whether the defendant acted with reckless indifference to human life." (Ibid.) When the court viewed the evidence through "the lens of [the defendant's] youth," it could not "conclude beyond a reasonable doubt that [the defendant] was subjectively aware that his actions created a graver risk of death than any other armed robbery." (Ibid.)
In Keel, the appellate court found the record did not include substantial evidence to support the trial court's finding of reckless indifference to human life in the defendant's participation in a fatal robbery. (Keel, supra, 84 Cal.App.5th at p. 559.) It further found, relying on Moore and Harris, that the defendant's age, 15 at the time of the crime, should have been considered in addressing the Clark factors on reckless indifference. (Keel, at pp. 557-559.)
And in People v. Jones (2022) 86 Cal.App.5th 1076 (Jones), defense counsel argued at resentencing that the defendant was only 20 at the time of the crime and" 'immature.'" (Id. at p. 1091.) Citing Miller and Graham, counsel asked the court to consider the defendant's youth on the basis that" 'recklessness is a hallmark of youth, but it does not alone demonstrate a reckless disregard for the value of human life.'" (Jones, at p. 1091.) In addition, a defense sentencing report contained in the record of conviction asserted that Jones had a "traumatic and violent" upbringing as well as under-diagnosed mental health and substance abuse issues, and "appeared to be impulsive rather than criminally sophisticated." (Ibid.) When denying resentencing, however, the trial court failed to discuss the defendant's youthful age or maturity level. (Ibid.)
The Jones court determined that, given the recentness of Harris and Moore, it could not assume that the trial court had followed the law and considered the defendant's youth in its Banks/Clark analysis. (Jones, supra, 86 Cal.App.5th at p. 1092.) It held that "in addition to the Banks and Clark factors, a defendant's youthful age must be considered." (Jones, at p. 1088, fn. 7; see also id. at p. 1091 ["The Banks and Clark factors are not exclusive.... [T]he totality of the circumstances necessarily includes the defendant's youthful age ...."].) Although the court recognized that the defendant was 20, it concluded "in the interest of justice" that it was "best for the trial court to have a meaningful opportunity to consider [the defendant's] youth as part of the totality of the circumstances germane to determining whether he was a major participant who acted with reckless indifference to human life." (Id. at p. 1093.)
Here, as noted above, Lee's counsel did argue at the hearing on the petition that Lee's youth should be considered, citing Keel and Clark. Counsel argued specifically that, "[A]t 19 years of age, the mental and emotional development of . Lee should be considered because . Lee was definitely more vulnerable and susceptible to the outside pressures from his brother." And later argued, "Lee's age plays a big part in why he succumbed to the pressures of his brother at that point and walked into the [home] .."
In response, the People argued that, while Lee was 19 at the time, that was "much older" than the defendant in Keel, who was 15. The People argued that, at age 19, Lee had "enough maturity to know what . he was getting into at that point."
In denying relief, the trial court discussed the relevant factors under Banks and Clark, and noted Lee's youth, stating, "I realize he was younger, 19, but at 19, at some point in your life you have to start taking responsibility for your actions."
Thus, the trial court did consider Lee's age in its decision. Even assuming, arguendo, that the trial court failed to adequately address Lee's age, we find any such error under the specific circumstances of this case harmless.
As stated in People v. Oliver (2023) 90 Cal.App.5th 466 (Oliver), "[W]e acknowledge the trajectory of the legislation and case law recognizing the psychological and neurological differences between youthful and adult offenders, which both lessen the culpability of the young and increase the likelihood of their rehabilitation. However, we leave for another day the task of establishing the parameters of our colleagues' holding in Jones. Thus, for example, we need not articulate the appropriate definition of 'youthful' in this context. Nor do we determine whether it is incumbent upon a trial court to expressly consider youth as part of its Banks/Clark analysis even when age is not raised by the defense. Rather, we conclude that, even if the trial court was required to expressly consider [the defendant's] youth, any such error in this regard is harmless under the specific circumstances of this case." (Oliver, supra, 90 Cal.App.5th at pp. 488-489.)
The defendant in Oliver was 23 years old at the time of the crime. The court in Oliver noted that the presumption of immaturity weakens as a defendant approaches 26, and that "case law discussing the differences in brain development among youthful offenders (in contrast to their adult counterparts) stress two areas of divergence: (1) their relative impulsivity; and (2) their vulnerability to peer pressure." (Oliver, supra, 90 Cal.App.5th at p. 489.) The trial court in Oliver found no evidence that the defendant's criminal behavior was motivated by either of these two factors. (Ibid.)
Here, too, we are not presented with a situation where a youthful offender was swept up in circumstances beyond his control that led to an unintended death. Rather, the evidence shows that Lee was aware, at the moment of entry into the home, that Harris was willing to fire his weapon in further pursuit of the weed they sought and decided to follow him inside. This made Lee "subjectively aware that his actions created a graver risk of death than any other armed robbery." (People v. Moore, supra, 68 Cal.App.5th at p. 454.) Nevertheless, Lee actively participated. (Compare In re Harper (2022) 76 Cal.App.5th 450, 467-472 [habeas corpus petition denied where defendant's youth, even if a factor, did not change his culpability because the evidence showed he knew the plan was to kill the victim]; see also People v. Mitchell, supra, 81 Cal.App.5th at p. 595 ["[E]very 18 year old understands bullet wounds require attention. The fact of youth cannot overwhelm all other factors."].)
As for peer pressure, there is no evidence that Lee felt compelled to assist in Rodriguez's murder. Rather, the record discloses that Lee and Harris went to the home together at Lee's suggestion, despite Lee knowing Harris was "crazy" and wanted for robbery. And while Lee's counsel argued that Lee was susceptible to pressure from Harris, his older half-brother, Lee had no trouble telling Harris he was not going to knock down the door to the bedroom, telling Harris to do it himself. (Compare People v. Ramirez (2021) 71 Cal.App.5th 970, 991 [evidence to support a finding that the defendant was influenced by peer pressure, including fear of death if he did not participate in the carjacking]; see also Jones, supra, 86 Cal.App.5th at p. 1093 ["In Harris and Moore, the concern was that a juvenile was vulnerable to the influence of others and could fail to appreciate the dangers of his activities and his cohort's actions."].)
Finally, Lee has failed to present on appeal or in the court below any specific support for the proposition that his level of maturity somehow lessened his culpability for this murder. The defendant in Jones, in contrast, presented evidence of his "traumatic and violent" upbringing as well as under-diagnosed mental health and substance abuse issues, and "appeared to be impulsive rather than criminally sophisticated." (Jones, supra, 86 Cal.App.5th at p. 1091.)
Under the circumstances of this case, we see no reasonable likelihood that the trial court would have reached a different conclusion had it focused more specifically on Lee's age.
DISPOSITION
The trial court's order denying Lee's petition for resentencing under section 1172.6 is affirmed.
[*] Before Poochigian, Acting P. J., Franson, J. and Meehan, J.