Opinion
C077847
12-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLITON JAY-TWAN VARNADO et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F04345)
A jury convicted Elliton Jay-Twan Varnado and Reshay Mott of the first degree murder of D. Lafazia, attempted robbery of Lafazia, and robbery of and assault with a firearm upon C. Carter and N. Ditaranto. The jury found true certain firearm enhancement allegations against Varnado and robbery-murder special-circumstance allegations against Varnado and Mott.
Varnado and Mott now contend (1) the trial court gave a misleading version of the CALCRIM No. 373 instruction concerning co-perpetrators not on trial which negated their defense that someone else committed the charged crimes; (2) the trial court gave an inconsistent and misleading instruction that "one of the main purposes" of counsel's closing argument was to "expand on" the court's instructions; and (3) the trial court erred by not making on-the-record findings encompassing all the elements of perjury when it imposed the upper term on count three. In addition, Varnado argues (4) the trial court clerk's minutes inaccurately state that in addition to finding him guilty of first degree murder on count one, the jury returned verdicts on the lesser included offenses. And Mott contends (5) there is insufficient evidence to support the Penal Code section 190.2 robbery-murder special-circumstance finding against her. Moreover, shortly after the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess. (Senate Bill 1437)), which amends section 189 to limit the felony murder rule, we granted Mott's request for supplemental briefing on (6) whether Senate Bill 1437 retroactively applies to her case and whether there is sufficient evidence to support her first degree felony murder conviction under amended section 189.
Undesignated statutory references are to the Penal Code.
We conclude (1) the trial court's instruction about co-perpetrators not on trial is not erroneous and did not prejudice defendants; (2) reading the instructions as a whole, it is not reasonably likely that the jury understood the challenged statement by the trial court in a manner inconsistent with CALCRIM No. 200; (3) the trial court made the required findings to impose the upper term on count three based on the commission of perjury; (4) the clerk's minutes for October 2, 2014, should be corrected to reflect the jury's verdicts against Varnado and Mott on count one; (5) substantial evidence supports the section 190.2 robbery-murder special-circumstance finding as to Mott; and (6) Mott is not entitled to resentencing under Senate Bill 1437.
BACKGROUND
A
C. Carter posted an advertisement seeking women on Craig's List in May 2013. A person who identified herself as Reshay Mott responded to the advertisement. Carter found the Facebook page for Reshay Mott. The Facebook page contained photographs of Mott and her boyfriend Varnado.
All dates refer to 2013 unless otherwise specified
Mott invited Carter to meet her at an apartment in Sacramento. Carter drove to the address, pulled into a nearby church parking lot and texted his location to Mott. Mott got into Carter's car but then quickly exited, and a man took her place while another man opened Carter's driver's side door and pointed a black pistol. Carter did not see where Mott went. The man who got into Carter's car beat Carter in the head with a pistol and repeatedly yelled, "Where is it?" Carter threw his wallet at that man. The robbers fled.
Within an hour after the incident, Carter got a call from a blocked number. A man demanded the PIN number to his ATM card. The caller said he would come after Carter's daughter, whose information was in Carter's wallet, if Carter did not provide his PIN number. Carter gave the caller his PIN number. About 180 dollars was taken out of Carter's account. At trial, Carter identified Mott as the woman who got in his car on the night of the robbery and Varnado as one of the robbers.
B
N. Ditaranto posted an advertisement on Craig's List in June 2013. Someone named Shay responded to the advertisement. Ditaranto and Shay arranged a meeting. Phone records for Mott's cell phone showed a message sent from Mott's cell phone giving Ditaranto directions to Mott's apartment complex.
When Ditaranto arrived at the apartment complex, Mott leaned inside his car and then Varnado opened Ditaranto's front passenger car door and got inside. Ditaranto did not see what happened to Mott after the passenger door opened. Varnado hit Ditaranto in the back of the head with the butt of a gun six to eight times, demanding that Ditaranto give him money. After ordering him to get out of the vehicle, Varnado hit Ditaranto in the back a couple of times and took Ditaranto's Samsung Galaxy S4 cell phone and the money from Ditaranto's wallet. Mott offered a Galaxy S4 cell phone for sale through her Facebook page the day after the Ditaranto robbery. Varnado sold a Samsung Galaxy S4 cell phone to Game Stop the same day. Ditaranto identified defendant and Mott as the people who robbed him.
C
D. Lafazia posted advertisements seeking women on Craig's List in June 2013. A text message from Mott's cell phone to Lafazia's cell phone directed Lafazia to Mott's apartment complex. The last text message from Lafazia's cell phone to Mott's cell phone was sent at 12:49 a.m. on July 7. There was a 911 call at 12:59 a.m. reporting the shooting of Lafazia.
Lafazia died of a gunshot wound to his chest. Scrapings from Lafazia's left hand fingernails contained a mixture of DNA profiles. A forensic DNA expert opined Varnado was a contributor to the mixture of DNA profiles obtained from the scrapings from Lafazia's left hand. Police found a bloodied T-shirt and sweatshirt, a semiautomatic gun and a magazine at the scene. Lafazia's cell phone records showed text messages from a cell phone number associated with Mott giving directions to Mott's apartment complex. Police connected the cell phone number associated with Mott to the Carter and Ditaranto robberies.
D
Police interviewed Mott and Varnado. Mott admitted that she committed the Carter and Ditaranto robberies. She told police Varnado hit the victims of the first two robberies with a gun in order to take their property. With regard to Lafazia, Mott ultimately admitted the following: the plan was for her to take Lafazia's money and run; Varnado would be somewhere where he could see her and make sure she was safe. She got in Lafazia's truck, took Lafazia's money and left the truck. But Lafazia got out of the truck and grabbed Mott's hair. Varnado interceded and Mott ran away. Mott was halfway down the complex when she heard a gunshot.
During his police interview, Varnado admitted he and Mott set up and robbed people. Varnado admitted punching Carter five or six times and taking his wallet. He admitted punching Ditaranto six to seven times and taking his cell phone. He admitted the incident with Lafazia was also a robbery. He said the plan was for him to stay at the side of the building and come out and rob Lafazia when the latter exited his car. He said he used the same gun in the three robberies.
The People played a surreptitiously recorded conversation between Mott and Varnado. Varnado said the police had his sweater, shirt, gun and clip, and there was a photograph of him on Facebook in the sweater. He told Mott, "[i]t's over." He said he should have left and he could not "do 25 years."
The People also presented evidence of "kites" or jailhouse messages between Mott and Varnado in which they said they needed to get their "stories straight" and Mott described what she and/or Varnado would say about the robberies. Mott testified that some of the statements in her kites were untrue.
At trial, Mott admitted she and Varnado committed the Carter robbery. But Mott denied involvement with the Ditaranto robbery. She said Varnado's cousin committed that robbery with another woman. Mott testified that she arranged for Lafazia to meet her at her apartment complex to have sex for money, not to rob him. Her testimony about what happened with Lafazia was consistent with the narrative in one of her kites to Varnado.
Varnado likewise testified that he committed the Carter robbery. He said he acted as a lookout while his cousin committed the Ditaranto robbery. As Mott instructed in one of her kites, Varnado testified he did not have a gun in either robbery. Varnado's trial account of the Lafazia shooting was consistent with the narrative in Mott's kites.
E
The jury convicted Mott of the first degree murder of Lafazia (§ 187, subd. (a) -- count one), attempted robbery of Lafazia (§§ 211, 664 -- count two), robbery of Carter and Ditaranto (§ 211 -- counts three and five), and assault with a firearm upon Carter and Ditaranto (§ 245, subd. (a)(2) -- counts four and six). The jury found true the robbery-murder special-circumstance allegation in count one. (§ 190.2, subd. (a)(17).)
The jury convicted Varnado of the first degree murder of Lafazia (count one), attempted robbery of Lafazia (count two), robbery of Carter and Ditaranto (counts three and five), and assault with a firearm upon Carter and Ditaranto (counts four and six). The jury found true allegations that Varnado personally and intentionally discharged a firearm which caused Lafazia's death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The jury also found true the robbery-murder special-circumstance allegation in count one. The jury also found true allegations that Varnado personally used a firearm in the commission of the robberies and assaults of Carter and Ditaranto.
The trial court sentenced Varnado to life without the possibility of parole, plus 25 years to life, plus 19 years and 4 months. The trial court sentenced Mott to life without the possibility of parole, plus 6 years.
DISCUSSION
I
Varnado and Mott contend the trial court gave a misleading version of CALCRIM No. 373 [other perpetrator] which negated their defense that someone else committed the crimes.
In closing argument, Varnado's trial counsel conceded that Varnado participated in the Carter and Ditaranto robberies, but noted that two men were involved in those robberies and yet only Varnado was on trial. Varnado's counsel said, "you probably wonder why is there -- the other fellow not here in this case? The police certainly knew about him because they put his picture in a lineup, didn't they?" (The other individual was not charged in this case and did not testify at trial.) Varnado's counsel argued, based on the photographic lineups, that Varnado and the other individual looked alike and the witnesses could have been confused about which man was actually assaulting them. Varnado's counsel asserted the jury would have to be convinced beyond a reasonable doubt that Varnado, and not the other individual, was the man who assaulted the victims with a gun and without the other individual at trial, the jury could not be so convinced.
The prosecutor responded in closing argument that the other individual's guilt was not before the jury and the jury must focus on whether Mott and Varnado were guilty of the crimes charged. The trial court then interjected, "I'll add to that because I did not include an instruction on that. I will instruct you that you're not to speculate about anybody's participation other than the two defendants who are charged." The prosecutor then continued with closing argument.
In contrast with the trial judge's comment, CALCRIM No. 373 provides, "The evidence shows that (another person/other persons) may have been involved in the commission of the crime[s] charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether (that other person has/those other persons have) been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime[s] charged." The trial court did not instruct the jury with CALCRIM No. 373. --------
Assuming the trial court's instruction is erroneous, we will not set aside the judgment unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) In light of all the instructions given and evidence presented, we conclude reversal is not required. The trial court instructed the jury that the People must prove the defendant did the acts charged. It told the jury the People must prove beyond a reasonable doubt that it was the defendant who committed the crimes and if the People did not meet that burden, the jury must find the defendant not guilty. The trial court further instructed on the elements of the charged offenses. We presume the jury understood and followed the trial court's instructions. (People v. Gonzalez (2018) 5 Cal.5th 186, 202.) Moreover, the evidence of defendants' guilt in the Carter and Ditaranto crimes is overwhelming. That evidence included admissions from Mott and Varnado that Varnado used a gun and hit Carter and Ditaranto during the robberies.
II
Varnado and Mott next claim the trial court gave an inconsistent and misleading instruction about the purpose of closing argument.
After instructing the jury, but before closing arguments, the judge said to the jury: "The lawyers, in their argument, their job is to expand on these instructions and to make them clear to you. That's going to be one of the main purposes of their argument." There was no objection to the trial judge's statement, but Varnado and Mott now contend the statement conflicted with the CALRIM No. 200 instruction that the jury must follow the judge's explanation of the law.
Even if defendants did not forfeit their appellate claim by failing to object below, we conclude the claim lacks merit. We conclude the trial court used the word "expand" to mean that counsel would explain the trial court's instructions, not deviate from them. The trial court said the lawyers would make the instructions "clear" to the jurors. Counsel may certainly explain the relevant law in closing argument. (People v. Hawthorne (1992) 4 Cal.4th 43, 60; 21 Cal.Jur.3d (2009) Criminal Law: Trial § 124; see People v. Kelly (1992) 1 Cal.4th 495, 526; Levenson, Cal. Practice Guide: Cal. Criminal Procedure (The Rutter Group 2016) ¶ 23:36.) Moreover, the trial court told the jury, consistent with CALCRIM No. 200, that the court would instruct the jury on the law applicable to the case and the jury must follow the law as the trial court explained it. The trial court further admonished that if the jury believed the attorney's comments on the law conflicted with the trial court's instructions, the jury must follow the trial court's instructions.
It is not reasonably likely the jury understood the challenged statement by the trial court in a manner inconsistent with CALCRIM No. 200. In any event, defendants do not claim the prosecutor misstated the law.
III
Varnado and Mott also contend the trial court erred by not making on-the-record findings encompassing all the elements of perjury when it imposed the upper term on count three.
A trial court may enhance a defendant's sentence upon finding the defendant committed perjury at trial. (People v. Howard (1993) 17 Cal.App.4th 999, 1002 (Howard).) "[I]f a defendant objects to a sentence enhancement resulting from [his or] her trial testimony, a . . . court must review the evidence and make independent findings necessary to establish . . . [perjury]. [Citations.] When doing so, it is preferable for a . . . court to address each element of the alleged perjury in a separate and clear finding. The . . . court's determination that enhancement is required is sufficient, however, if . . . the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury." (United States v. Dunnigan (1993) 507 U.S. 87, 95 [122 L.Ed.2d 445, 454].)
California authority states that when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court must make on-the-record findings as to all the elements of a perjury violation. (Howard, supra, 17 Cal.App.4th at p. 1001.) Those elements are as follows: a willful statement, under oath, of any material matter which the witness knows to be false. (Id. at p. 1004.)
Here, the trial court imposed the upper term of five years on the count three charge of robbery of Carter against Varnado and Mott in part because it found Varnado and Mott committed perjury at trial. The trial court said Varnado and Mott lied on the stand. In particular, it said the testimony that force was used against Lafazia because he resisted was clearly not true. The trial court said Carter and Ditaranto testified they were pistol-whipped by the male robber after Mott contacted them, and it was clearly not true that a wound to Lafazia's head came about because Varnado saw Lafazia detaining Mott. The trial court said it was clear that Lafazia was pistol-whipped just like Carter and Ditaranto were but Lafazia did not give up like Carter and Ditaranto did. Defendants did not object to the trial court's statement of reasons at the sentencing hearing. But once again, even if defendants did not forfeit their appellate claim by failing to object below, we conclude the claim lacks merit.
The trial court made the required findings. The trial court found Varnado and Mott lied under oath about a material fact which they knew was false, i.e., claiming that Varnado assaulted Lafazia because Lafazia detained Mott. The trial court based its sentencing choice on defendants' testimony compared to the evidence related to the prior robberies, and not simply because defendants took the stand and were found guilty, which was the concern in Howard. (Howard, supra, 17 Cal.App.4th at p. 1004.) Because we find defendants' claim fails on the merits, we need not consider their ineffective assistance of counsel claim.
IV
Varnado argues the trial court clerk's minutes inaccurately state that in addition to finding him guilty of first degree murder on count one, the jury also returned verdicts convicting him of lesser included offenses. The Attorney General agrees that the minutes are incorrect in this regard. We agree with the parties. Although Mott did not join in this part of Varnado's appellate opening brief, the same error was made as to Mott. We will direct the trial court to correct the clerk's minutes for October 2, 2014, to accurately reflect the jury's verdicts as to Varnado and Mott on count one.
V
Mott contends there is insufficient evidence to support the section 190.2 robbery-murder special-circumstance finding against her.
" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- 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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]' " (People v. Nelson (2011) 51 Cal.4th 198, 210.)
"In the case of first degree felony murder [based on the commission of a robbery], 'every person, not the actual killer, who, with reckless indifference to human life and as a major participant' aids or abets the [robbery] may be convicted of special circumstance murder" and be eligible for a sentence of death or imprisonment in the state prison for life without the possibility of parole. (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks); see § 190.2, subds. (a)(17)(A), (d).) This aider or abettor robbery-murder special circumstance contains an actus reus and a mens rea requirement. (Banks, at p. 798.) With respect to the required conduct, the defendant must have substantial personal involvement, "greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Id. at p. 802.) Relevant factors that may be weighed in determining whether an aider and abettor defendant is a major participant include (1) the role the defendant had in planning the criminal enterprise that led to the death(s); (2) the role the defendant had in supplying or using lethal weapons; (3) the defendant's awareness of particular dangers posed by the nature of the crime, weapons used or past experience or conduct of the other participants; (4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent the actual murder and whether his or her actions or inactions played a role in the death; and (5) what the defendant did after lethal force was used. (People v. Clark (2016) 63 Cal.4th 522, 611 (Clark); Banks, supra, 61 Cal.4th at p. 803 [no one factor is necessary or determinative].)
In Banks, the getaway driver for an armed robbery was not a major participant within the meaning of section 190.2, subdivision (d) where there was no evidence establishing his role in planning the robbery and procuring weapons, he was in a car waiting and not at the scene during the robbery and shooting, and there was no evidence that he had reason to know there would be a shooting, saw or heard it, could have seen or heard it or had any immediate role in instigating it or could have prevented it. (Banks, supra, 61 Cal.4th at pp. 804-807.) In contrast, the defendant in People v. Williams (2015) 61 Cal.4th 1244, 1281-1282 was a major participant where he was the ringleader of a gang that committed robberies and carjackings, repeatedly instructed members of his gang to shoot resisting victims, directed fellow gang members to carjack a specific type of car and to put the victim in the trunk, gave those gang members a gun for that crime and later awarded them "stripes" for the carjacking murder.
Mott's personal involvement in the Lafazia robbery was substantial. Varnado admitted he and Mott set up and robbed people, indicating they were partners in the robbery scheme. Carter and Ditaranto's testimonies and Mott and Varnado's confessions establish that Carter and Ditaranto placed ads on Craig's List looking for women, Mott responded to those ads, luring them to Mott's apartment complex, where Varnado robbed them after Mott contacted them at their cars. Mott accompanied her cohorts to a 7-Eleven to use Carter's ATM card after the Carter robbery. Mott tried to sell a cell phone like the one taken from Ditaranto the day after the Ditaranto robbery. Consistent with the scheme used in the Carter and Ditaranto robberies, Mott responded to Lafazia's Craig's List ads for women and arranged a meeting at her apartment complex. Cell phone records showed Mott's cell phone directed Lafazia to the apartment complex where Varnado later robbed and shot him. Mott said she and Varnado obtained the gun. Ammunition for the gun was found in Mott and Varnado's bedroom, Varnado used the same gun in all three robberies, and Mott knew Varnado used the gun to hit the victims in the prior robberies. Although there is no evidence Mott was present when Varnado shot Lafazia, she did nothing to stop Varnado from pistol whipping or shooting Lafazia, and when she heard a gunshot as she was running away from the altercation between Varnado and Lafazia, she did nothing to help Lafazia or determine whether he was still alive. Mott's role in the robbery that led to Lafazia's death was not minor.
The mens rea component of section 190.2, subdivision (d) -- reckless indifference to human life -- has a subjective and an objective component. (Clark, supra, 63 Cal.4th at p. 617.) "The subjective element is the defendant's conscious disregard of risks known to him or her." (Ibid.) The defendant must be " 'subjectively aware that his or her participation in the felony involved a grave risk of death.' " (Banks, supra, 61 Cal.4th at p. 807, italics omitted.) The objective element looks at what a law-abiding person in the defendant's situation would observe. (Clark, supra, 63 Cal.4th at p. 617.) Although there must be some degree of defendant's subjective awareness of risk, it is the jury's objective determination that ultimately determines recklessness. (Id. at p. 622.)
That the defendant knowingly participated in an armed robbery, and that armed robberies carry a risk of death, are insufficient to establish reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 615, 617-618; Banks, supra, 61 Cal.4th at pp. 807-808.) However, in general, the greater the defendant's participation in the felony murder, the more likely he or she acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 615 [in general, the elements of major participation and reckless indifference to human life significantly overlap].) As we have explained, sufficient evidence shows that Mott was a major participant in the Lafazia robbery.
Further, Mott was aware of Varnado's willingness to use lethal force against robbery victims. Varnado did not merely display the gun; he pistol-whipped Carter and Ditaranto in the head in order to get their property. Mott admitted seeing Varnado hit Ditaranto with the gun. Ditaranto suffered gashes to the back of his head. Lafazia had a laceration at the top of his head, an injury that could be consistent with being hit on the head with a gun. Mott's willingness to commit the Lafazia robbery with Varnado, while knowing that he had pistol whipped prior robbery victims in the head, raised an inference that Mott disregarded a grave risk of death. (Clark, supra, 63 Cal.4th at p. 621.)
In addition, Mott knew Varnado had bullets for the gun. There was a round stuck in the gun after Lafazia was shot. The magazine had six rounds. The use of a loaded gun during the Lafazia robbery suggested that Varnado and Mott anticipated that Lafazia may resist and that the gun could be used as more than a bludgeon.
Varnado said the plan was for him to rob Lafazia when the latter exited his car. When Varnado saw Lafazia holding Mott by the arm, he told Lafazia (presumably in Mott's presence), "Give me everything you got." Varnado pointed the gun at Lafazia's face. A jury could reasonably infer that, as with the prior robberies, Mott lured Lafazia to her apartment complex and Mott and Varnado planned to rob Lafazia by having Varnado pistol-whip Lafazia in the head until the latter surrendered his property, but Varnado also made sure he could shoot Lafazia to carry out the robbery. There is no evidence that Mott tried to minimize the known risk of violence in the Lafazia robbery.
Viewing the record in the light most favorable to the judgment, we conclude substantial evidence supports the jury's section 190.2 robbery-murder special-circumstance finding against Mott. Substantial evidence shows that Mott acted with reckless disregard for human life because a law-abiding person in her situation would perceive that pistol-whipping robbery victims in the head created a grave danger to human life and Mott knowingly and actively participated in the Lafazia robbery in disregard of that risk.
VI
Mott also argues that Senate Bill 1437, which amends section 189, applies retroactively to her case and there is insufficient evidence to sustain her first degree felony murder conviction under the amended section 189.
The Attorney General responds that any claim for resentencing under amended section 189 is premature because the amendment is not effective until January 1, 2019. The Attorney General agrees that amended section 189 will apply retroactively but says Mott must follow the procedure in the new section 1170.95 and petition the sentencing court for resentencing. The Attorney General also maintains that sufficient evidence supports the jury's finding that Mott was a major participant in the attempted robbery of Lafazia and that she showed reckless indifference to human life.
Mott replies that the judgment against her will not be final on January 1, 2019, and the new section 1170.95 does not require defendants with pending appeals to file a petition in the sentencing court. She further argues that the People failed to present sufficient evidence to support the jury's section 190.2, subdivision (d) finding, which is identical to the finding required under the amended section 189 for a first degree felony murder conviction.
Under the current version of section 189, all murder that is committed in the perpetration of or attempt to perpetrate specified felonies, including robbery, is first degree murder. (§ 189, subd. (a).) Effective January 1, 2019, Senate Bill 1437 amends section 189 so that a participant in the perpetration or attempted perpetration of an enumerated felony 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; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). Senate Bill 1437 also adds section 1170.95 to the Penal Code, which authorizes a person 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 when all of the following conditions apply: (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 first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder; and (3) the petitioner could not be convicted of first or second degree murder because of changes to section 188 or 189 made effective January 1, 2019.
Assuming that amended section 189 applies to Mott, we have nevertheless concluded that substantial evidence supports the jury's finding that Mott was a major participant in the Lafazia robbery and that she acted with reckless disregard for human life within the meaning of section 190.2, subdivision (d). Accordingly, Mott is not entitled to resentencing under Senate Bill 1437.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the clerk's minutes for October 2, 2014, to accurately reflect the jury's verdicts as to Varnado and Mott on count one.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
HOCH, J.