Opinion
E078256
10-26-2022
THE PEOPLE, Plaintiff and Respondent, v. LYNDA PICHEL, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, A. Natasha Cortina, Alan L. Amann and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. FVI018962 Michael A. Camber, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, A. Natasha Cortina, Alan L. Amann and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
In 2004, defendant Lynda Pichel was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and kidnapping (§ 207, subd. (a)). She was subsequently sentenced to a term of eight years, plus a consecutive term of 25 years to life in state prison. Pichel appeals the trial court's denial of her petition to vacate her murder conviction and for resentencing under section 1170.95. She contends the trial court erred when it found the prosecution proved beyond a reasonable doubt she could still be guilty of murder under amended changes to section 189. We disagree and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated. [footnote continued on next page]
Pichel committed the murder and kidnapping with her boyfriend Reginald Perkins, and her sister, Katrina Mulholland, who were also sentenced to state prison terms. Pichel and Perkins were jointly tried, and Perkins was also convicted of first degree murder and kidnapping. (See People v. Pichel (Aug. 2, 2006, E037275) [nonpub. opn.].)
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the record in defendants' 2004 joint trial, which the trial court took judicial notice of and considered in ruling on the petition. Similarly, we take judicial notice of the record on appeal from Pichel's direct appeal in case No. E037275.
A. Factual Background
During the evening of August 22, 2002, and early morning of August 23, Steven Shane was kidnapped, beaten, stabbed and lethally shot in the head. His body was discarded by the side of the road and discovered a few hours later. His demise was precipitated by his failure to repair and return to defendants an El Camino truck.
About a week before the murder, Shane agreed to repair the El Camino, which belonged to Perkins. Perkins frequently allowed his girlfriend, Pichel, to drive the El Camino.
On August 21, 2022, Shane and a friend, Richard Edison, worked on the El Camino in the garage of Patricia Campbell's home. That evening Shane and Edison took the car for a test drive. The left rear axle fell off at a street intersection in Apple Valley. Shane left the car at the intersection with a note on the car's windshield wipers stating, "do not tow," and found another way back to Campbell's residence.
That same evening, at 2:30 a.m., Deputy Martinez found the El Camino at the intersection, with the left tire axle on the ground next to the car. After Deputy Martinez was unsuccessful in locating the registered owner of the vehicle, he had the El Camino towed to a storage yard as it was blocking traffic.
Meanwhile, Pichel and Perkins wanted the El Camino back and began searching for the car and Shane. Pichel went looking for Shane at the home of her friend, James Stephenson, who had previously recommended Shane repair the El Camino. Shane was not there. Pichel told Stephenson she wanted Shane to return the El Camino. Stephenson told her Shane was working on the El Camino at Vickey Smith's home. Stephenson accompanied Pichel to Smith's home. Shane was not there as well. On the way back to Stephenson's home, Pichel angrily told Stephenson she and Perkins wanted the car back as soon as possible. She told Stephenson to tell Shane to return it right away or he would be in big trouble.
Pichel and Perkins drove around town looking for Shane, complaining Shane still had the El Camino. At some point, Pichel phoned an unidentified person and said that she was going to kill or beat Shane. After the call, Pichel told an 11-year-old child, who was living with Pichel at the time and overheard Pichel's end of the conversation, to keep what she heard to herself.
During the evening of August 22, 2022, Pichel returned to Smith's home looking for Shane. Smith told Pichel that Shane was at Patricia Campbell's home a block away, and gave directions on how to get there.
Later that same evening, Pichel, Perkins, and Katrina Mulholland, Pichel's sister, drove to Campbell's house in Mulholland's Toyota Tundra pickup truck. Shane, Barry Miller, Carrie King, and Jeremiah Easter were outside at Campbell's house when Pichel, Perkins and Mulholland arrived.
Pichel, Perkins and Mulholland got out of the Tundra, walked to the garage, and angrily asked Shane where the El Camino was. When Shane said it had broken down and had been impounded, Pichel and Perkins repeatedly demanded Shane leave with them in the Tundra and threatened to kill him if he did not get in the truck. Shane said he did not want to go and resisted. Perkins grabbed Shane by the neck, pushed him in the truck, and shut the door. After Perkins, Pichel, and Mulholland also got in the Tundra, Perkins locked the doors and drove away.
During that same night, at around 1:30 a.m., an unidentified woman called Shane's grandmother, Virginia Shane, and requested and was given the phone number of Shane's sister, Renee Gomez. Right after that, Shane called Gomez and asked if she had heard anything about an impounded El Camino. Gomez said she had not and refused to give Shane his father's or another sister's telephone numbers, which Shane and a woman requested.
That same morning, between 8:30 and 10:30 a.m., a passing motorist found Shane's body by the side of a dirt road in Apple Valley, about 10 miles from Campbell's house. Shane was wearing only pants and socks. His feet, hands, and waist were bound with yellow construction flagging. His waist and head were also wrapped with packing tape and he was gagged with cardboard in his mouth. His face was bruised, his arms and legs had abrasions and contusions, his right shoulder had been stabbed, and he had a gunshot wound to the head. Investigators determined that Shane was killed elsewhere and his body dumped by the roadway.
An autopsy on Shane's body revealed that all of the contusions and abrasions resulted from blunt force trauma, either from kicks, punches or a fall, and were inflicted shortly before death. The gunshot wound was the cause of his death. The stab wound was a contributing cause, which resulted in significant bleeding and without medical attention would have been fatal. Shane, however, died before the stab wound bled out.
After the murder, Mulholland told her husband, Neemo Rezvani, that someone had been killed in the back of her Tundra. Rezvani thereafter removed and threw away the backseats and truck-bed liner, which had blood on them, as well as the dirty rear bumper and bumper inserts. Later, Rezvani pled guilty to being an accessory after the fact for getting rid of the evidence in the Tundra.
Investigators found a smear of blood in the rear seat area of the Tundra. DNA testing showed a high probability the blood was Shane's. Tire impressions near Shane's body were consistent with the Tundra tires. Detectives found construction flagging similar to that wrapped around Shane's neck in Mulholland's home.
Within a few days after Shane's murder, Pichel saw Stephenson at a bus stop, and told Stephenson that "they killed Shane." Pichel did not mention any names. Pichel also asserted that "if everybody shuts their mouths, nobody will be in trouble."
At trial, David Bowers, who had been in a prison cell next to Perkins's cell, testified that in 2003, he overheard Perkins tell another inmate that he wanted to prevent Rezvani from testifying. Perkins also mentioned he was in prison because "[h]e shot the guy to put him out of his misery," and that a truck was involved.
B. Procedural Background
In October 2004, a jury found Pichel guilty of first degree murder (§ 187, subd. (a)) and kidnapping (§ 207, subd. (a)). The jury found not true an allegation that Pichel was vicariously armed with a firearm within the meaning of section 12022, subdivision (d). The trial court sentenced Pichel to eight years, plus 25 years to life in prison.
Pichel appealed from the judgment. She claimed, in part, that there was insufficient evidence of kidnapping and that the first degree murder conviction must be reversed or reduced to second degree murder. On August 2, 2006, in a nonpublished opinion in case No. E037275, this court affirmed the judgment in its entirety.
On January 30, 2019, Pichel filed a petition to vacate her murder conviction and for resentencing under section 1170.95.
After the trial court appointed counsel for Pichel, on March 5, 2021, the trial court found the petition set forth a prima facie case, issued an order to show cause, and set the matter for an evidentiary hearing.
Following the evidentiary hearing and ruling on evidentiary objections, on November 19, 2021, the trial court found "beyond a reasonable doubt that [Pichel] is guilty of murder under California Law as amended by the changes to . . . [s]ection 189," and denied the petition. Pichel timely appealed from the court's ruling.
III. DISCUSSION
Pichel contends the trial court erred in denying her section 1170.95 petition because the People failed to prove she is guilty of murder under current law at the evidentiary hearing.
A. Senate Bill No. 1437 and Senate Bill No. 775
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'to amend 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.'" (People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); Gentile, supra, at pp. 842-843, 847848.)
New section 188, subdivision (a)(3), thus provides, "Except as stated in subdivision (e) of [s]ection 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." New section 189, subdivision (e), limits the felony-murder rule exception to the malice requirement to circumstances where the People prove the defendant "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." (§ 189, subd. (e)(3).)
Senate Bill No. 1437 also "added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief." (Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11 Cal.5th at p. 959.) Pursuant to section 1170.95, an offender must file a petition in the sentencing court declaring that: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder [;] [¶] [and] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1170.95, subds. (a)(1)-(3); see also § 1170.95 subd. (b)(1)(A).)
On January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) became effective. (Stats. 2021, ch. 551.) In Senate Bill No. 775, the Legislature amended the language of section 1170.95, expanding the scope of the petitioning process and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.) Section 1170.95 now provides that, 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." (§ 1170.95, subd. (c).)
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).)
The version of the statute that existed at the time of Pichel's evidentiary hearing stated that at the hearing held pursuant to section 1170.95, subdivision (d), "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Former § 1170.95, subd. (d)(3).) The statute now provides, "The admission of evidence in the 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. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (§ 1170.95, subd. (d)(3); see Gentile, supra, 10 Cal.5th at p. 853.)
At the hearing stage to determine whether the petitioner is entitled to relief, the People have the burden to prove, beyond a reasonable doubt, "that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (d)(3); see Lewis, supra, 11 Cal.5th at p. 960.) The trial court acts as "an independent fact finder, to determine beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of murder." (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
Here, in accordance with section 1170.95, subdivision (c), the trial court reviewed the petition, determined Pichel made a prima facie showing she was entitled to relief, appointed counsel for Pichel, and issued an order to show cause. The court then conducted the required evidentiary hearing. In rendering its decision Pichel was ineligible for resentencing, the trial court examined the trial transcripts, the certified rap sheet of Perkins, two photographs of the victim, and the record of conviction.
B. Standard of Review
Relying on People v. Vivar (2021) 11 Cal.5th 510 (Vivar), Pichel argues "the trial court's cold-record factual finding-that [she] is guilty beyond a reasonable doubt of murder under the current murder laws-is subject to de novo review." She maintains that de novo review is appropriate because the trial court's inquiry was limited to a cold record, the judge who decided the section 1170.95 petition was not the trial judge, and therefore no deference is owed to his findings. We disagree.
In Vivar, our Supreme Court addressed section 1473.7, which currently provides that one who is no longer in criminal custody to move to vacate a conviction or sentence where the "conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence." (§ 1473.7, subd. (a)(1). The court held that an independent standard of review applies to prejudice determinations in connection with such a motion. (Vivar, supra, 11 Cal.5th at p. 528.) In so holding, the court reasoned that analogous prejudice determinations in ineffective assistance of counsel claims were reviewed independently as predominantly legal questions; prior appellate decisions had reviewed section 1473.7 prejudice determinations independently; and the Legislature, while aware of this standard, did not alter it. (Vivar, supra, at pp. 524-526.) The court additionally reasoned that its embrace of independent review fit with how section 1473.7 motions were brought because such motions necessarily arise after the defendant serves his or her sentence and are determined on a cold record. (Vivar, supra, at pp. 526-527.) But the court made clear that its holding applied only to section 1473.7 prejudice determinations. (Vivar, supra, at p. 528, fn. 7.)
The appellate courts that have considered the standard of review for appeals of the denial of a petition under section 1170.95 have uniformly held the proper standard is the substantial evidence test. (People. v. Clements (2022) 75 Cal.App.5th 276, 301 (Clements); People v. Hernandez (2021) 60 Cal.App.5th 94, 113-114; People v. Williams (2020) 57 Cal.App.5th 652, 663-664; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1086-1087.) And at least one court has done so after rejecting the argument that Vivar's independent review standard should be extended to factual findings the trial court makes from a cold record at a section 1170.95 evidentiary hearing. (Clements, supra, at p. 307.)
In Clements, supra, 75 Cal.App.5th 276, the appellate court expressly rejected the argument that we should apply an independent review standard to factual findings the trial court makes from a cold record at a section 1170.95 evidentiary hearing. (Clements, supra, at pp. 297-298.) In doing so, the court emphasized that the question of whether the defendant acted with reckless indifference to human life is a predominantly factual one. (Id. at p. 301.) We agree the substantial evidence test applies to our standard of review, and reject Pichel's arguments that Clements was wrongly decided. (See also People v. Perez (2018) 4 Cal.5th 1055, 1066 ["even if the trial court is bound by and relies solely on the record of conviction to determine eligibility, [where] the question . . . remains a question of fact, . . . we see no reason to withhold the deference generally afforded to such factual findings"].)
Thus, when the trial court applies its factual findings under a statute, we review the factual findings for substantial evidence. (People v. Bascomb, supra, 55 Cal.App.5th at pp. 1086-1087 [trial court's factual finding that the defendant was ineligible for section 1170.95 relief because he was a major participant who acted with reckless indifference to human life reviewed for substantial evidence].) In assessing a claim of insufficiency of evidence, our task is to review "the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11; accord, People v. Bascomb, supra, 55 Cal.App.5th at p. 1087.) "Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Clements, supra, 75 Cal.App.5th at p. 298.)
In this case, trial court ruled Pichel ineligible because it found beyond a reasonable doubt that she is guilty of murder under California Law as amended by changes to section 189. Because Pichel was convicted under a felony-murder theory, the factual issue the trial court considered at the evidentiary hearing was whether the People could establish, beyond a reasonable doubt, that Pichel could be convicted of felony murder under the version of section 189 as amended by Senate Bill No. 1437. Under the amended version of section 189, a person is guilty of felony murder only if the person is either (1) the actual killer; (2) although not the actual killer, a person who intended to kill and assisted the actual killer in the commission of first degree murder; or (3) a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e)(1)-(3).)
C. Analysis - Sufficiency of the Evidence
Since Pichel was not the actual killer, she can be guilty under a felony-murder theory only if she, "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," or she "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."(§ 189, subd. (e)(2), (3).)
Because we find Pichel was a major participant who acted with reckless disregard for human life, we need not decide whether Pichel aided and abetted Perkins in the murder with the intent to kill.
The key question to be resolved in this case as to whether Pichel was ineligible for resentencing was whether she was a major participant in the crime who acted with reckless disregard for human life. (§ 189, subd. (e)(3).) Substantial evidence supports the trial court's finding that she was.
Our Supreme Court provided a nonexclusive list of factors to assist in making the determination whether a defendant was a "major participant" in a felony murder, namely-"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?" (People v. Banks (2015) 61 Cal.4th 788, 803, fn. omitted.) Importantly, the court stated, "No 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.'" (Ibid.)
"Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, '[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.' [Citations.] As to the objective element, '"[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."' [Citations.] 'Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life; 'only knowingly creating a "grave risk of death"' satisfies the statutory requirement." (In re Scoggins (2020) 9 Cal.5th 667, 677.) To determine whether the defendant had the requisite mental state, "[w]e analyze the totality of the circumstances" in a manner that largely overlaps with our "major participant" discussion. (Ibid.) As our Supreme Court has explained, "'[a]lthough we state these two requirements separately, they often overlap,'" "'for the greater the defendant's participation in the felony murder, the more likely that he [or she] acted with reckless indifference to human life.'" (People v. Clark (2016) 63 Cal.4th 522, 615.)
In People v. Clark, supra, 63 Cal.4th at pages 615 to 623, our Supreme Court laid out the interrelated factors to ascertain whether a participant in a crime acted with reckless indifference. These factors include: the defendant's knowledge of weapons and the use and number of weapons in the crime; the defendant's presence at the crime and opportunities to restrain the crime and/or aid the victim; the duration of the felony; the defendant's knowledge of the cohort's likelihood of killing; and the defendant's efforts to minimize the risk of violence during the felony. (Id. at pp. 618-622.)
Here, there was substantial evidence demonstrating Pichel was a major participant who acted with reckless disregard for human life. Indeed, Pichel does not dispute that she was a major participant in the kidnapping of Shane, but argues that "there is simply no evidence to suggest that [she] acted with reckless indifference to human life." We disagree.
Pichel helped Perkins kidnap Shane by forcing him into her sister's Toyota Tundra. Pichel then got into the Tundra and left with the group. Shane's blood was in the back seat of the Tundra. Pichel's sister, Mulholland, told her husband, Rezvani, that someone was killed in the back of her Tundra. Tire impressions consistent with the Tundra tires were found near Shane's body, and construction flagging similar to that wrapped around Shane's neck were discovered in Mulholland's home. A few days after Shane's murder, Pichel ran into Stephenson and told him that they had killed Shane. Pichel also stated to Stephenson, "If everybody shuts their mouths, nobody will be in trouble." The trial court could reasonably infer that Pichel was present during the duration of the kidnapping and murder.
Furthermore, there is no evidence to suggest Pichel attempted to help Shane or disassociate herself from the situation. Rather, when Perkins told Shane, "You're getting in the truck and you're coming with us," Pichel issued the same order, telling Shane to get in the truck. Pichel refused to allow Shane go back to his house to retrieve his belongings. Instead, she assisted Perkins as he threatened to kill Shane, struck Shane in the face, and made gestures to Shane indicating he had a gun. In addition, the trial transcripts indicate that Pichel was aware of Perkins's violent nature and of the presence of weapons. Before forcing Shane into the truck, Perkins made repeated threats to kill Shane while reaching into his pants. While Perkins threatened to kill Shane, Pichel stood about three feet behind Perkins. Pichel also observed Perkins hit Shane in the face.
Moreover, sufficient evidence suggest that Shane was tortured, bound and gagged before he was killed and that more than one weapon was used during the crimes. Shane was found wearing only pants and socks. His feet, hands, and waist were bound with yellow construction flagging. His waist and head were also wrapped with packing tape, and he was gagged with cardboard in his mouth. His face was bruised, his arms and legs had abrasions and contusions, his right shoulder had been stabbed, and he had a gunshot wound to the head. An autopsy on Shane's body revealed that all of the contusions and abrasions resulted from blunt force trauma, either from kicks, punches or a fall, and were inflicted shortly before death. The gunshot wound was the cause of Shane's death, but the stab wound was a contributing cause, which resulted in significant bleeding and without medical attention would have been fatal.
Finally, the duration of the kidnapping was extremely lengthy. It took Pichel, Perkins, and Mulholland 15 to 20 minutes to get Shane into the Tundra. Several hours later, around 1:30 a.m., Shane called his grandmother and sister asking about the El Camino, showing he was still alive. An unidentified woman, either Pichel or Mulholland, got on the phone and asked for the numbers of Shane's other family members. Shane's body was not discovered until sometime between 8:30 and 10:30 a.m. the following day.
We conclude substantial evidence supports the trial court's finding Pichel was a major participant in the crime. We also find substantial evidence exists to support the finding Pichel acted with reckless disregard for human life, and reject Pichel's attempts to reinterpret the evidence to the contrary.
Pichel's awareness of the particular dangers of the plan, her statements, the events leading up to the murder, and her proximity to the murder are significant in assessing her reckless indifference to human life. In addition, where a defendant "had ample opportunity to restrain the crime and aid the victims" but "did neither," "the high court [found] they exhibited reckless indifference to human life." (In re Scoggins, supra, 9 Cal.5th at p. 678; see Tison v. Arizona (1987) 481 U.S. 137, 157-158.)
Here, Pichel was a major participant in the kidnapping and assisted Perkins in forcefully kidnapping Shane with threats and violence. She could have attempted to restrain Perkins and her sister or dissuade them from committing the kidnapping. After the kidnapping and torture of Shane, she also could have attempted to aid the victim. But she did none of these things. Similarly, these same facts support the conclusion Pichel failed to take efforts to minimize the risk of violence. (People v. Clark, supra, 63 Cal.4th at p. 622 ["a defendant's apparent efforts to minimize the risk of violence can be relevant to the reckless indifference to human life analysis"].) Finally, the evidence supports the conclusion Pichel knew Perkins was likely to use lethal force. A defendant's "knowledge of factors bearing on a cohort's likelihood of killing . . . may be evident before the felony or may occur during the felony." (Id. at p. 621.)
Based on the foregoing, we conclude substantial evidence exists to support the finding Pichel was a major participant who acted with reckless disregard for human life. The trial court did not err in finding Pichel not eligible for resentencing. (§§ 189, subd. (e)(3), 1170.95, subd. (d).)
IV. DISPOSITION
The order denying Pichel's section 1170.95 petition is affirmed.
We concur RAMIREZ P. J. FIELDS J.