Opinion
F082059
05-11-2022
THE PEOPLE, Plaintiff and Respondent, v. SANTOS ACEVEDO PASILLAS, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED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 a judgment of the Superior Court of Tulare County No. VCF037619C-96 Melinda Myrle Reed, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant 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 [*]
INTRODUCTION
Defendant Santos Acevedo Pasillas pleaded guilty to murder based on his involvement in the robbery of a convenience store during which the shop owner was shot dead by defendant's coparticipant. Defendant was paroled in 2018 and he petitioned for resentencing under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) in 2019. After holding an evidentiary hearing, the court denied the petition, concluding defendant acted as a major participant in the robbery who acted with reckless indifference to human life. On appeal, defendant argues insufficient evidence supports the trial court's conclusion.
We affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, defendant pleaded no contest to first degree murder and second degree robbery. He also admitted to having personally used a firearm during the commission of the crime within the meaning of Penal Code section 12022.5, subdivision (a). (Undesignated statutory references are to the Penal Code.)
Petition for Resentencing
In 2019, defendant petitioned the court for resentencing pursuant to section 1170.95 using a preprinted form. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; he pled guilty or no contest to first or second degree murder in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Sen. Bill 1437). He asked the court to appoint him counsel during the resentencing process.
The People responded to the petition, arguing defendant was not entitled to relief because the facts of the case established he was a major participant in the robbery who acted with reckless indifference to human life. They argued defendant planned the robbery and procured guns for use during its commission; he provided the shooter with the gun that was used to shoot the clerk; he was aware of the danger armed robbery presented and was on alert as evidenced by the fact only he noticed the clerk had a gun; he was present at the scene and alerted his armed coparticipants the clerk had a gun; accordingly, he played a vital role in the death of the clerk; and, finally, he went out to celebrate with his coparticipants after the shooting. They asserted, in part, "Here [defendant] was present in the store only two to four steps away when the shooter shot the victim." They also moved to dismiss the petition based on the alleged unconstitutionality of Senate Bill 1437.
After the parties submitted briefing on the petition, the court issued an order to show cause and set the petition for an evidentiary hearing. The People submitted a filing summarizing witnesses' sworn statements at the trial of defendant's coparticipant, George Contreras. They also attached excerpts from the trial transcript to the filing.
It does not appear defendant objected to the use of the sworn testimony below, nor does he challenge the use of such testimony at the evidentiary hearing on appeal. Rather, he states, "[t]he parties apparently stipulated to the use of sworn witness statements from codefendant Contreras' jury trial," which the court considered without objection.
The transcripts included testimony from Scott O'Neill of the Tulare County Sheriffs Department who testified he was dispatched to the Casa Blanca Market on December 29, 1994, at 3:27 p.m.; he arrived at 3:31 p.m. He found "the store clerk who was laying on the floor inside behind the cash register"; the clerk was dead.
The People also attached the testimony of Artero Vallejo. He testified he had known Contreras for years and used to see him every day or every other day. Vallejo discussed the night of December 29, 2014. Vallejo was working from 3:00 to 11:00 that night, and then went to defendant's house to hang out. Vallejo used to go there every day. Defendant was there with Contreras and they all watched the news. Defendant talked to Vallejo "[a]bout a [little robbery] that they tried to pull and didn't go through, didn't happen." Defendant told Vallejo, "there was a shooting" and "they didn't get nothing out of it, and [defendant] was kind of excited." Defendant said, "it was an adrenaline rush."
According to Vallejo, they explained what happened; defendant did most of the talking. Vallejo reported to police Contreras had a shotgun and defendant had a .22 rifle. Defendant "was watching the back," "he had a .22, while Louie [Fernandez] was in the car waiting." Jose Gonzalez tried to open the register looking around it for money. Gonzalez did not find any money, and "the [clerk] wasn't willing to give up any money." At some point, Contreras looked away and defendant saw the clerk pulling out a gun. Defendant "said watch out, he's got a gun." Contreras, who was holding the shotgun with one hand, shot the clerk. Gonzalez and defendant ran out of the store while Contreras remained inside with the clerk. Defendant and Gonzalez jumped in the car and defendant said "let's take off, that [Contreras] was hit." They drove off, but Fernandez, the driver, did not believe Contreras had been shot, so he made a U-turn and went back to the store. Contreras was still in the store at that point.
Contreras admitted to Vallejo "he had shot the clerk at the store." Contreras explained "he was holding the shotgun with one hand"; "they couldn't get no money out of the clerk"; "they were not able to find any money." Contreras "told the clerk that he was going to shoot him … if he did anything. And he told [Vallejo] that he ended up shooting him." Contreras told Vallejo that "after he shot [the clerk] the first time, … he walked up to [the clerk], and [Contreras] looked at him and the clerk had a smile on his face." Contreras said to the clerk, "'I told you I was going to kill you, '" and "he kicked [the clerk] and he shot [the clerk] again." Contreras seemed a little excited and confused when he was explaining the incident to Vallejo; he acted "[l]ike it was no big deal." Contreras reported "the only thing that they got out of it was a gun." He pulled the gun out of his jacket pocket and showed it to Vallejo. Defendant and Contreras told Vallejo the television news was wrong about a lot of the details.
According to Vallejo, Fernandez and Gonzalez also showed up at defendant's house that night. They all went to Fernandez's house. Then, they all went to a bar and two parties because defendant and the coperpetrators "wanted to go to celebrate" the shooting. They were all drinking and did methamphetamine at the first party.
Vallejo testified he had gone with defendant and Contreras to get a shotgun and a .22 rifle a week or two earlier. He also recalled Contreras telling him he got a gun the day before the shooting incident in order for them to commit an armed robbery.
The People also attached the sworn testimony of Jose Guadalupe Valencia to their filing. Valencia testified, one afternoon in December 1994, Contreras picked up him and Gonzalez and they went to Contreras's house. Eventually, Valencia, Gonzalez, and Contreras went to Fernandez's house. Fernandez drove the three of them back to defendant's apartment. Defendant and Contreras brought two long guns out of the house; they put them in the backseat of Fernandez's vehicle. Defendant, Contreras, and Gonzalez sat in the backseat on top of the guns; Valencia sat in the front passenger seat, and Fernandez was driving. They went to a store in Visalia "[t]o rob it." While in the car, defendant, Gonzalez, and Contreras put on masks that covered their faces from the nose down. "They saw there was a lot of people outside [the first store], so they just kept on going." They then drove to another store, the Casa Blanca Market in Farmersville; it was still daylight. Defendant got out to see if anyone was in the store; he acted like he was going to use the phone. He returned to the car and told Gonzalez and Contreras there was nobody in the store; Contreras and Gonzalez each got out of the car with a gun. Defendant, Contreras, and Gonzalez then went into the store. About 20 seconds later, Valencia heard a loud gunshot. Defendant ran out, got in the car, and kept saying Contreras got shot. Fernandez started driving and made a U-turn to pick up Contreras. Valencia did not see Gonzalez get in the car, but Gonzalez was in the car when the group drove off. In the car, Contreras was smiling and saying, "'I'll never forget the smile on his face.'" They went to defendant's apartment then Contreras's house. Contreras tried to give Valencia a small handgun, but Valencia refused to take it. Gonzalez told Valencia he tried to shoot the clerk when the clerk pulled out a gun, but Gonzalez's gun jammed. Contreras told Valencia he shot the clerk because the clerk pulled out a gun. Gonzalez took the clerk's wallet. Contreras said, "If anybody says anything, I'll get them, too."
At the evidentiary hearing on defendant's section 1170.95 petition, defense counsel argued Vallejo's statement was "inconsistent" and "contradictory about anything that was said afterwards." He argued "the only evidence the prosecution really has that the Court can rely upon is the testimony of … Valencia … who was a participant in the matter." He asserted, through this testimony, "We know that … [defendant] was one of the people whose house they went to when they brought the guns out to do a robbery and a robbery was committed. That's uncontroverted …." He argued it was "very clear," however, defendant "was not involved in any of [the actual shooting of the clerk] and there was no indication that he was the shooter or involved or had a gun. The other defendant did so. There was no indication they planned to do this-to kill the clerk-and therefore under the natural and probable consequences doctrine, they're committing a robbery and in the process of … the clerk pulling out a gun and gun play between the … other defendant in that matter and the clerk, there's a homicide committed." Accordingly, defense counsel argued defendant was guilty of robbery, not murder, under the amended laws.
The People responded Vallejo's testimony reflected defendant obtained the guns with Contreras for use in the robbery. They emphasized defendant's statements and actions after the murder and that he was "very excited." The prosecutor argued Contreras took the shotgun, Gonzalez took the rifle, and they "went in the store and [defendant] was just a couple steps behind." They asserted defendant had an active role and aided and abetted the shooting. He was involved in the planning, he brought the guns, he was at the scene, he held the rifle, and he alerted his coparticipants that the clerk had a gun, which was "tantamount to directing [Contreras] to stop the clerk and that's what [Contreras] did, and he shot him."
The court ultimately denied defendant's petition for resentencing, concluding the evidence established, beyond a reasonable doubt, that defendant was a major participant in the underlying robbery resulting in death, and he acted with reckless indifference to human life. The court acknowledged the factors articulated in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) that should be considered in determining whether a defendant was a major participant who acted with reckless indifference to human life. It explained its conclusion:
"Here the defendant's degree of culpability is large. The defendant was involved in planning the robbery. He and a coparticipant obtained the two long guns used in the robbery shortly before the crime. Defendant and the other robbers met at the defendant's house just prior to the robbery to discuss the robbery. The guns used were stored and retrieved from the defendant's house, defendant and two of the codefendants sat on the two long guns in the car while driving to the robbery, defendant was aware that a place other than the victim's store was not robbed because the store was too busy. Once at the victim's store, the defendant wore a mask. He told the codefendants the store was empty after pretending to use a phone outside the store. Defendant then went into the store with two others who were armed with the long guns. Once inside the store, the defendant warned or alerted the other defendants that the victim had a gun. He was steps away when the shooter shot the victim the first time. Defendant did nothing to stop the crime or help the victim and stood by until the shooter shot the victim a second time. The defendant then ran out of the store and got into the getaway car. The shooter followed shortly behind the defendant and jumped into the same getaway car. Defendant's active participation continued in that at some point the robbers all ended up at the defendant's house. The shooter had the victim's gun in his possession while saying to a witness that he had shot the victim and it was no big deal. Defendant and the others did celebrate that evening together by going to a bar and a party the night of the crime. Some evidence clearly and beyond a reasonable doubt shows that the defendant actively planned the crime and obtained and supplied the weapons used to kill the victim. He was physically present acting as a lookout when the victim was shot. He displayed no interest in moderating violence or aiding the victim. Rather, defendant warned the shooter that the victim had a gun and fled the scene with the other robbers and celebrated the event later that night."
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the court's denial.
1. Senate Bill 1437 and Senate Bill 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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, subd. (f).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides that, "[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder … which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"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 Section 190.2."
The legislation also added section 1170.95, providing a procedure by which defendants whose cases were final could seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, section 1170.95 permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts …." (Stats. 2018, ch. 1015, § 4, subd. (a).)
In Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, the Legislature amended the language of section 1170.95 to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1170.95, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1170.95, subd. (b)(3).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1170.95, subd. (c).) If the petitioner has made such a showing that the petitioner is entitled to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid)
Within 60 days after the order to show cause has issued, the trial court must then hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) At the hearing, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under the amended laws. (§ 1170.95, subd. (d)(3).)
The admission of evidence at the evidentiary hearing "shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. (Ibid) If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (Ibid)
2. Standard of Review
On appeal from a denial of relief following an evidentiary hearing under section 1170.95, subdivision (d), we review the trial court's factual findings for substantial evidence. (See People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements); accord, People v. Cooper (2022) 77 Cal.App.5th 393, 412.) Under that familiar standard, '"we review 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-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt'" under section 188 as amended. (People v. Morales (2020) 10 Cal.5th 76, 88; Clements, supra, at p. 298.) To that end, we presume the existence of every fact the court as fact finder could reasonably deduce from the evidence in support of the court's order. (See People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)
3. Applicable Law
Section 190.2 "identifies the circumstances under which murderers and accomplices can be punished by death or life imprisonment without parole.… For defendants who did not kill and lacked intent to kill, section 190.2, subdivision (d) permits such punishment only if they acted 'with reckless indifference to human life and as a major participant' [in] a qualifying felony like robbery." (People v. Douglas (2020) 56 Cal.App.5th 1, 7; see In re Scoggins (2020) 9 Cal.5th 667, 674.) By incorporating this requirement, section 190.2 codified the holdings of Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison), bringing California law "into conformity with prevailing Eighth Amendment doctrine." (In re Ramirez (2019) 32 Cal.App.5th 384, 393; see Clark, supra, 63 Cal.4th at p. 609; People v. Estrada (1995) 11 Cal.4th 568, 575; In re McDowell (2020) 55 Cal.App.5th 999, 1004.) Section 190.2 thereby requires courts to "examine the defendant's personal role in the crimes leading to the victim's death and weigh the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime." (Banks, supra, 61 Cal.4th at p. 801.)
Enmund held the death penalty could not constitutionally be imposed on a robbery getaway driver who was a minor participant in the crime, was not present when the murder was committed, and had no intent to kill or any culpable mental state. (Enmund, supra, 458 U.S. at pp. 798, 801; In re Scoggins, supra, 9 Cal.5th at p. 675.
Tison, in contrast, did not preclude imposition of the death penalty for two defendants, brothers who helped their father and his cellmate-both convicted murderers-escape from prison. (Tison, supra, 481 U.S. at pp. 139, 151-152, 158.) The brothers locked up the prison guards and armed the two prisoners during the escape. (Id. at p. 139.) A few days later, the group got a flat tire. (Ibid) One of the brothers flagged down a passing car for help. (Id. at pp. 139-140.) The group then kidnapped the family of four that was in the car, robbed them, and drove them into the desert. (Id. at p. 140.) The sons stood by while the father and cellmate shot the victims repeatedly. (Id. at p. 141.) The perpetrators left the family-which included a toddler and a teenager-to die in the desert and drove off in the family's car. (Id. at pp. 139-141.) Tison held the Eighth Amendment does not prohibit imposition of the death penalty on a nonkiller who lacked the intent to kill, but whose "participation [in the crime] is major and whose mental state is one of reckless indifference to the value of human life." (Id. at p. 152; see id. at pp. 157-158.)
Enmund and Tison helped define the constitutional limits for punishing accomplices to felony murder and establish a "'spectrum of culpability, '" with felony murderers who "'actually killed, attempted to kill, or intended to kill'" at one end, and minor actors who were not present on the scene and neither intended to kill nor had any culpable mental state at the other end. (In re Scoggins, supra, 9 Cal.5th at p. 675; accord, Banks, supra, 61 Cal.4th at pp. 794, 800; In re Loza (2017) 10 Cal.App.5th 38, 46.) "Somewhere between them, at conduct less egregious than the Tisons' but more culpable than … Enmund's, lies the constitutional minimum" required for the imposition of a sentence of death or life without the possibility of parole. (Banks, at p. 802.) Tison and Enmund did not establish a ceiling or a floor for determining when an aider and abettor is eligible for such a sentence, however. (In re Miller (2017) 14 Cal.App.5th 960, 974, fn. 4; In re Bennett (2018) 26 Cal.App.5th 1002, 1014, fn. 4.) The fact a particular defendant appears more culpable than Enmund does not automatically make him death eligible; conversely, neither must a defendant be as culpable as the Tison brothers in order for section 190.2, subdivision (d) to apply. The question is one of degree. (In re Miller, supra, at p. 974, fn. 4; In re Bennett, supra, at p. 1014, fn. 4.)
In Banks and Clark, our state Supreme Court clarified the meaning of the "major participant" and "reckless indifference to human life" requirements. Banks considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant." (Banks, supra, 61 Cal.4th at p. 794.) The court listed various factors to 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.)
Banks found insufficient evidence to show the defendant there-a getaway driver for an armed robbery-was a major participant who acted with reckless indifference. (Banks, supra, 61 Cal.4th at pp. 804-808.) No evidence established his role in planning the robbery or procuring the weapons; during the robbery and murder he was absent from the scene, sitting in a car and waiting; and no evidence showed he had any role in instigating the shooting, or could have prevented it. (Id. at p. 805.) He was "no more than a getaway driver," like Enmund. (Ibid)
The following year, in Clark, the court addressed the "reckless indifference" determination. (Clark, supra, 63 Cal.4th at pp. 614-623.) Reckless indifference to human life may be "'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.' [Citation.]" (Clark, at p. 616, quoting Tison, supra, 481 U.S. at p. 157.) 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." (Clark, at p. 617.) Reckless indifference to human life has both a subjective and an objective component. (In re Scoggins, supra, 9 Cal.5th at p. 677.) Subjectively, "'[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.'" (Ibid, quoting Banks, supra, 61 Cal.4th at p. 801; accord, Clark, at p. 617.) Objectively, "'"[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."'" (In re Scoggins, supra, at p. 677; see Clark, at p. 617.) The fact a robbery involved a gun or carried a risk of death is insufficient, by itself, to support a finding of reckless indifference. (Clark, at pp. 617-618; see In re Scoggins, supra, at p. 677 ["'the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used' is not sufficient to establish reckless indifference to human life"].)
Clark, like Banks, listed various factors to be considered when determining whether a defendant acted with reckless indifference: "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, supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark, supra, 63 Cal.4th at pp. 618-623].)
Based on these factors, Clark concluded that the defendant there did not act with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 623.) The Clark defendant was the "mastermind" who planned and organized a computer store robbery and waited across from the store's parking lot when the fatal shooting occurred. (Id. at pp. 612, 619.) His plan called for the robbery to take place after the store closed, when there would be fewer people present, for any remaining employees to be handcuffed, and for the use of a single, unloaded gun. (Id. at pp. 620-622.) However, during the robbery the mother of one of the employees-who had come to pick him up from work-entered the store, surprising the robbers, and the defendant's accomplice shot her. (Id. at pp. 537, 539.) As police cars arrived, the defendant fled the scene, leaving the shooter behind. (Id. at p. 537.) Clark concluded that the defendant-who was not armed, was not physically present in the store when the shooting occurred, did not have the intent to kill, and attempted to minimize the likelihood of violence by timing the robbery for a time when fewer people would be present, and by planning for use of a single, unloaded gun-did not act with reckless indifference to human life. (Id. at pp. 611, 618-623; In re Scoggins, supra, 9 Cal.5th at p. 676.)
More recently, our Supreme Court considered the reckless indifference inquiry in In re Scoggins, supra, 9 Cal.5th 667. Scoggins found an insufficient showing of reckless indifference where the defendant planned an unarmed assault and robbery in which one of his accomplices deviated from the contemplated plan and unexpectedly killed the victim. (Id. at pp. 671-672.) There, the defendant was swindled by the victim in the purchase of three television sets. (Id. at p. 671.) In response, the defendant recruited two close friends to ambush the victim, '"beat the shit'" out of him, and get the defendant's money back, while the defendant waited at a nearby gas station. (Id. at pp. 671, 678.) When the victim arrived, one of the friends pulled out a gun and shot him. (Id. at p. 672.) In concluding the evidence was insufficient to establish the defendant acted with reckless indifference, the Scoggins court considered that he was not present at the scene of the murder, was not in a position to restrain the shooter, did not know a gun would be used or that the victim would be killed, he attempted to minimize the risk of death by ordering the assault to occur in a public place in broad daylight, and he acted ambiguously after the shooting. (Id. at pp. 677-683.)
After the passage of Senate Bill 1437, section 189, subdivision (e)(3), now provides that a participant in a robbery where a death occurs may be liable for murder if the person was "a major participant in the [robbery] and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." Because the factors articulated by the California Supreme Court in Banks, Clark, and Scoggins construe the language in section 190.2, subdivision (d), which the Legislature incorporated into section 189, subdivision (e), these factors apply when determining a defendant's eligibility for relief under section 1170.95 as a person convicted of felony murder. (See In re Taylor (2019) 34 Cal.App.5th 543, 561 ["the standard under section 189, subdivision (e)(3) for holding such a defendant liable for felony murder is the same as the standard for a special circumstance under section 190.2(d), as the former provision expressly incorporates the latter"]; see generally People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 [because "[t]he language of the special circumstance tracks the language of Senate Bill 1437 and the new felony-murder statutes," a jury's true finding on § 190.2, subd. (d) renders a § 1170.95 petitioner ineligible for relief]; accord, People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854.) Thus, we look to these factors in reviewing for substantial evidence a court's finding that a defendant was a major participant who acted with reckless indifference to human life.
4. Analysis
Defendant concedes his "active role in planning the robbery and procuring weapons, as well as his presence during the incident, support a finding that he was a major participant." However, he argues the evidence does not support a finding that he acted with reckless indifference. He asserts, contrary to the court's findings, there was no evidence to suggest he was in close proximity to the shooting. He further contends the evidence established he was outside the store when the second shot was fired, and he asserts the sworn statements undermine the court's finding he "stood by until the shooter shot the victim a second time." He argues "the shooting was a spontaneous response to unexpected armed resistance. There was little time to react or intervene." Defendant also asserts his efforts to ensure the store was empty before they entered belied any suggestion he anticipated violence. He also contends it was irrelevant that he did not render aid to the clerk because he thought his coparticipant Contreras, not the clerk, had been shot. He further asserts the court relied on inaccurate facts to deny his petition. He likens his case to Clark. The People argue defendant should have reasonably expected his cohort would shoot the clerk and death would result after he armed his coparticipants with two guns, stayed near them in the store, and alerted them the clerk had a gun. They further argue defendant was present when his coparticipant shot the clerk and he instigated the shooting by notifying his armed coparticipants the clerk was armed. They assert defendant "had the opportunity but did not act as a restraining influence[] on his murderous cohort." In supplemental briefing, defendant asserts Senate Bill 775 "clarified the evidence admissible at a hearing and emphasized the proper burden of proof, changes that are relevant to and supportive of [his] argument that the court erred in denying relief." He argues, the court here improperly relied upon the "'summary [of the witnesses' sworn statements]' filed by the prosecution," which was inadmissible hearsay. The People respond, "Regardless of whether the prosecutor's summary relied upon inadmissible hearsay under section 1170.95, subdivision (d)(3), [defendant] is still not entitled to resentencing because the trial court's deni[al] of the petition was based on other substantial evidence that [defendant] acted with reckless indifference to human life." We agree with the People. Without even considering the challenged evidence, we conclude sufficient evidence supports the trial court's conclusion defendant acted as a major participant who acted with reckless indifference to human life.
First, defendant concedes he qualified as a major participant in the underlying felony. (Banks, supra, 61 Cal.4th at p. 803 [factors to consider in determining whether defendant was major participant include: "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? No one of these considerations is necessary, nor is any one of them necessarily sufficient" (fn. omitted)]; accord, Clark, supra, 63 Cal.4th at p. 611.) And the record comports with this conclusion.
Here, there was evidence defendant was involved in planning the armed robbery. Indeed, there was evidence defendant helped obtain the two guns used in the robbery and then supplied them to his coparticipants. He evaluated whether customers were present in the store before he and his cohort went inside. He and the coperpetrators donned masks and followed each other into the store. Defendant then acted as lookout as his coparticipants threatened the clerk and tried to obtain money, and he was physically present in the store when Contreras shot the clerk. After the shooting, defendant escaped with his cohort and went out to celebrate the shooting. Based on this record, there was sufficient evidence to support a conclusion defendant acted as a major participant in the underlying felony.
We next turn to whether there is substantial evidence in the record before us to support the trial court's conclusion defendant acted with reckless indifference to human life. We conclude there is.
Notably, "factors demonstrating [defendant's] role as a major participant are highly relevant to the analysis of whether he acted with reckless indifference." (In re Loza, supra, 10 Cal.App.5th at p. 52.) Thus, the foregoing analysis and defendant's concession that he was a major participant in the underlying felony are highly relevant to our inquiry into whether the evidence sufficiently established defendant acted with reckless indifference to human life.
Furthermore, turning to the first Clark factor, as discussed, here, defendant knew two guns would be used in the robbery and, in fact, there was evidence he secured and supplied the murder weapon to Contreras in advance of the robbery and provided a gun to coparticipant Gonzalez. Thus, this factor weighs in favor of a reckless indifference finding. (See In re Parrish (2020) 58 Cal.App.5th 539, 544 [defendant acted with reckless indifference where he knew about guns used during robbery and in fact supplied one; he was present and had opportunity to restrain murderous partners but did not; and he knew his cohorts were not peaceable or cautious]; In re Loza, supra, 10 Cal.App.5th at p. 53 [that defendant supplied killer with gun immediately before robbery weighed in favor of reckless indifference finding].)
Next, with regard to the second Clark factor, the evidence reflected defendant was present in the store during the robbery, at least when the initial shot was fired. Also relevant to the second factor is whether the defendant acted "'"as a restraining influence on murderous cohorts."'" (In re Loza, supra, 10 Cal.App.5th at p. 53.) "'If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders."'" (Id. at pp. 53-54.) Here, there was no evidence defendant tried to talk the coperpetrators out of committing the armed robbery or shooting the clerk. Defendant also did not help the clerk after the shooting. Rather, he ran away after the clerk was first shot, leaving the clerk with Contreras who was armed and had just engaged in violence. (See Clark, supra, 63 Cal.4th at p. 619 [a defendant's "failure to provide aid while present at the scene" may be relevant]; accord, People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [defendant planned robbery, stood by as cohort stabbed victim and fled, leaving victim to die, thereby demonstrating reckless indifference to life].) Even if defendant believed Contreras was the one who had been shot, he made no effort to render aid or assist the clerk once he realized the clerk was the victim. That defendant was physically present at the scene and did not make an attempt to restrain the shooter or assist the clerk is particularly significant to the reckless indifference inquiry. (In re Loza, supra, 10 Cal.App.5th at pp. 53-54; see People v. Murillo (2020) 54 Cal.App.5th 160, 172, review granted Nov. 18, 2020, S264978 ["In Banks and Clark, and in other cases in which a court has overturned a special circumstance finding, the defendant either was not present at the scene of the killing, or at least was not capable of preventing his cohort from acting"].) Furthermore, here, despite knowing Contreras had shot the clerk, defendant went out to "celebrate" the shooting that night with his coparticipants. (See In re Scoggins, supra, 9 Cal.5th at p. 679 ["A defendant's actions after the shooting may also bear on the defendant's mental state"]; cf People v. Ramirez (2021) 71 Cal.App.5th 970, 990 [defendant's actions after shooting did not support reckless indifference finding, noting he "did not celebrate the shooting"].) This fact also weighs in favor of a conclusion defendant acted with reckless indifference to human life.
We also consider "[t]he duration of the interaction between victims and perpetrators" in assessing whether a defendant was recklessly indifferent to human life. (Clark, supra, 63 Cal.4th at p. 620.) For example, "[w]here a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder." (Ibid.) Here, the limited evidence of the duration of the interaction while defendant was in the store suggests it lasted approximately 20 seconds, rather than a prolonged period. Thus, this factor does not necessarily support a reckless indifference finding. However, the record before us does evince a window of opportunity for violence that could culminate in murder. As discussed, the cohort robbed the store with two loaded weapons while the store was open; the clerk was being held at gunpoint while the coparticipants tried to retrieve money. There was evidence Contreras told the clerk he would be shot if he "did anything"; defendant then alerted Contreras and Gonzalez the clerk had a gun. Gonzalez tried to shoot the clerk but his gun jammed; then Contreras shot the clerk. Defendant left the store knowing someone had just been shot, leaving the victim alone with the shooter. Accordingly, he could have anticipated further violence would result.
The fourth Clark factor relates to defendant's knowledge of his cohort's propensity for violence. Here, there was no evidence presented defendant knew or should have known his coparticipants were prone to violence before engaging in the armed robbery with them.
Finally, whether defendant made efforts to minimize the risk of violence during the felony is relevant, as is whether defendant planned the crime to "elevate[] the risk to human life beyond those risks inherent in any armed robbery." (Clark, supra, 63 Cal.4th at p. 623.) Here, there was evidence defendant was involved in procuring and providing the guns used in the robbery, which could be viewed as elevating the risk to human life during the offense. And while defendant evaluated whether customers were present in the store before robbing it, he and his cohort still decided to rob a store in the middle of the day while it was open for business. Thus, they could have expected there to be employees present. They brought two loaded guns to the scene. (Cf. Clark, supra, 63 Cal.4th at pp. 621-622 [plan called for robbery to take place after store closed, when there would be fewer people present, for any remaining employees to be handcuffed, and for the use of a single, unloaded gun].) There is no evidence defendant tried to talk his coparticipants out of committing the armed robbery or shooting; rather, he was actively involved in committing the robbery. He also notified Gonzalez and Contreras the clerk was armed, elevating the risk that violence would result during the robbery. Additionally, he ran out of the store after Contreras shot the clerk and made no effort to minimize the risk of additional violence, regardless of who he believed had been shot.
Defendant asserts there was no evidence he anticipated violence or was in a position to intervene. Here, as discussed, defendant was physically present in the store when the initial shooting took place. Indeed, there was evidence Contreras warned the clerk he would shoot if the clerk did anything, and then defendant notified Contreras the clerk was armed. Thus, there was some evidence from which a rational trier of fact could conclude defendant could have anticipated Contreras would shoot the clerk upon learning he was armed. And even if defendant did not anticipate any of his coparticipants would shoot the clerk, he should have anticipated and was in a position to intervene after the initial shot. He could have prevented further harm to the clerk by attempting to restrain the shooter. Defendant ran away and did not assist the clerk or attempt to prevent further harm. Even if defendant initially thought Contreras had been shot, Contreras returned to the car unharmed. Defendant then escaped with his cohort rather than aid the clerk. (See People v. Medina (2016) 245 Cal.App.4th 778, 792 [that defendant "helped [his cohort] escape and had no concern for the shooting victim" supported special circumstance finding]; People v. Bustos, supra, 23 Cal.App.4th at p. 1754 [that "[the defendant] fled together with his accomplices and the robbery loot, leaving the victim to die" evidenced he was a major participant who acted with reckless indifference to human life].)
Viewing the totality of the evidence in the light most favorable to the court's conclusion, we conclude this record sufficiently supports the trial court's conclusion defendant acted with reckless indifference to human life; that is, defendant was "aware of and willingly involved in the violent manner in which the particular offense [was] committed." (Banks, supra, 61 Cal.4th at p. 801; see Clark, supra, 63 Cal.4th at pp. 622- 623.) Thus, we conclude sufficient evidence supports the trial court's order.
Defendant asserts the "court inaccurately stated that [defendant] was 'steps away' when the victim was shot and 'stood by until the shooter shot the victim a second time." He argues the only evidence supporting the court's statements was the prosecutor's summary of facts, which was hearsay based, in part, on a Mirandized statement of Jose Gonzalez given to police, which was also hearsay. He concedes the "defense did not object to the statements," but argues there was no stipulation to such evidence, so it was not admissible.
As defendant admits, he did not object to or challenge the referenced evidence or the prosecutor's statements upon which the court's findings were alleged to be based below. Thus, to the extent defendant is now challenging the admission of alleged improper hearsay evidence, we conclude his objection is forfeited. (See Evid. Code, § 353, subd. (a) ["A … finding shall not be set aside, nor shall the …decision based thereon be reversed, by reason of the erroneous admission of evidence unless … [¶]… [t]here appears of record an objection to or a motion to exclude or to strike the evidence"]; People v. Stevens (2015) 62 Cal.4th 325, 333 ["the failure to object to the admission of … hearsay at trial forfeits an appellate claim that such evidence was improperly admitted"].) Similarly, because he did not object to the prosecutor's alleged misstatement as misconduct, he forfeited any claim of prosecutorial misconduct on that basis. (See People v. Fuiava (2012) 53 Cal.4th 622, 679.)
Irrespective, we cannot conclude it is reasonably probable he would have obtained a more favorable result absent the challenged evidence and the prosecutor's related statements. (See People v. Harris (2005) 37 Cal.4th 310, 336 ["We have held the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of People v. Watson (1956) 46 Cal.2d 818, 836"].) As discussed, defendant concedes he was a major participant in the underlying felony. And there was sufficient other evidence to support the court's reckless indifference finding, including evidence defendant supplied the shooter with the loaded gun used to kill the clerk, he actively participated in planning and executing the robbery, he fled the scene and did nothing to assist the victim, and instead, he went out to celebrate the shooting with his coperpetrators. And the court's statement that defendant was steps away when Contreras shot the clerk could reasonably be inferred from the testimony that defendant was in the store when Contreras shot the clerk, and defendant was close enough to see the clerk reach for a gun and to warn Contreras and Gonzalez. Similarly, the court's comment that defendant "stood by" when the clerk was shot a second time could be interpreted to mean defendant did not intervene or assist the victim before the second shot took place, a conclusion that was also supported by the evidence. Nonetheless, we cannot conclude he was prejudiced by the challenged evidence and comments.
Notably, contrary to defendant's assertions, the evidence did not conclusively establish he was outside of the store when Contreras fired the second shot.
DISPOSITION
The court's order denying defendant's section 1170.95 petition for resentencing is affirmed.
[*]Before Peña, Acting P. J., Smith, J. and De Santos, J.