Opinion
D080023
07-19-2023
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVID JAMES CARTER, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino, No. FWV1202970 Shahla S. Sabet, Judge. (Retired Judge of San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
In 2016, a jury found Steven David James Carter guilty of attempted robbery and the first degree murder of Brandon P. It also found a personal firearm use allegation not true. In 2020, Carter filed a petition for resentencing under Penal Code section 1172.6. Following an evidentiary hearing (§ 1172.6, subd. (d)(3)), the trial court concluded the People proved beyond a reasonable doubt that Carter was the actual killer or, alternatively, that he was a major participant in the underlying crime and acted with a reckless indifference to human life. Thus, it denied Carter's petition.
Further statutory references are to the Penal Code.
Carter contends the court's finding that he was the actual killer was prejudicial error because it contradicts the jury's not-true finding on the personal use of a firearm allegation. He also contends substantial evidence does not support the trial court's finding that he was a major participant who acted with a reckless disregard for human life. We agree that the court erred in making a factual finding inconsistent with the jury's not-true finding. However, we conclude substantial evidence supports the court's alternative finding that Carter was a major participant in the robbery who acted with reckless indifference to human life. Thus, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
Aaron A. and Albert T. approached Steven Carter at a barbecue he was hosting and offered him $300 to act as a lookout while they stole marijuana plants from a grow operation. Aaron and Carter approached Michael Hall and asked him if he wanted to help; Aaron told Hall to return to Carter's house around midnight. When Hall returned, Beth B., a friend of Aaron's was there in her white, four-door car, and Aaron was leaning against her car.
Beth died of natural causes before trial. Her testimony from the preliminary hearing was read into the record.
Beth drove Aaron and Hall to an apartment complex, where Albert was waiting with Carter at Albert's red truck. Beth left, saying she was driving around the corner to a friend's house.
Hall was charged with the murders of Aaron, Albert, and Brandon, as well as first degree robbery, a gang enhancement, and various gun enhancements. He entered a plea of no contest to one count of manslaughter (§ 192, subd. (a)), one count of robbery (§ 211), and possession of a firearm in a street gang crime (§ 12021.5, subd. (a)). Hall testified at trial that Beth drove him and Aaron to the apartment complex. Beth testified that she drove Hall, Aaron, and Carter.
Aaron, Albert, Hall, and Carter talked about what was going to happen. Aaron said the group was going to steal marijuana; Hall was to stay in front of the apartment complex to wait and help load the truck when the others returned.
Aaron, Albert, and Carter entered the apartment complex through a gate. Aaron and Albert had masks and gloves; Carter did not have a mask. They headed to the home of Brandon P., who lived in a "grandfather quarters" behind another residence, where there was a grow operation in the garage.
Brandon was an experienced hunter and an excellent marksman. He owned some firearms, including a .38 special.
About 20 minutes after the group split up, Hall heard five or six gunshots. The shots came in two volleys, with a pause between the two sets of shots. About 10 minutes after Hall heard the shots, Carter appeared back in front of the apartment complex. Hall asked Carter where Aaron and Albert were, but Carter did not say; he said things were not looking good. Carter called Beth, who appeared about five minutes later. Carter asked where Aaron was, and Beth said she thought Aaron was with them.
Hall and Carter got in Beth's car, and Carter directed Beth to drive around the corner, where Brandon's house was. Carter got out of the car first, then Hall. Hall saw Carter go up the driveway and around the back of the property, where he was no longer visible. Beth believed Hall and Carter went to look for Aaron, and she testified that while she was waiting, she heard three pops in a quick succession. She tried to call Aaron, but the call went to voicemail, so she left.
Hall testified that he stayed out front. When Carter returned to Hall, he shook his head, and told Hall it was not good. He said Aaron was gone, dead. The two began walking. At some point before Hall saw Carter, Carter had called Benito D. for a ride. Benito picked up Carter and Hall about 10 or 15 minutes later, and Benito drove them to Carter's house.
Benito told police that Carter was distraught during the ride; Carter said Aaron was hurt or dead. Carter told Benito that he tried to pull Aaron out, but Aaron slumped over dead. Carter said "that he basically got the guy, the guy that got [Aaron]." Benito asked Carter if Carter had any weapons, and Carter said no. Benito overheard Carter wondering when trash day was and believed Carter dumped his weapons before Benito picked him up. After Benito dropped off Carter and Hall, he returned home, where he lived with Christine C., with whom he talked about what happened.
Christine told police that Benito left some time after midnight and was gone for about half an hour. Benito told her that Carter had a gun but had gotten rid of it while on foot, so he did not have a gun when Benito picked him up. Based on what Benito told her, it was Christine's impression Carter had a gun during the incident. Benito told Christine that Carter said he was the one who shot Brandon.
Police recovered from the scene a stun gun/taser, a crowbar, a semiautomatic handgun with one .380 live round in the chamber, two expended casings stamped .380 auto, a pellet gun, a .22 caliber rifle, and an unloaded shotgun and magazine. Blood was smeared inside the residence, starting from the area where a stun gun was found and leading out the front door. Aaron was a major DNA contributor to the stun gun. Brandon's DNA was found on the crowbar and the grip of the semiautomatic handgun.
Aaron, Albert, and Brandon sustained fatal gunshot wounds. Brandon suffered three gunshot wounds. He was killed by a .38 or .357 caliber revolver. The weapon that killed him was never found. Brandon also suffered several blunt force injury wounds, including one to his forehead and defensive wounds on his hands and forearms. The pattern of the injury to his forehead was similar to the butt of the shotgun police found at the scene. Some abrasions were consistent with the stun gun, and other bruises and contusions were consistent with the crowbar.
Aaron's body was found in the driveway face down; Albert's and Brandon's bodies were found inside Brandon's home. One of the bullets recovered from Albert's body was consistent with a .38 special or a .357 magnum revolver; it did not come from the semiautomatic weapon. The residence door had been locked with a deadbolt, but intruders forced their way in.
Police interviewed neighbors who testified that there were two sets of shots fired after midnight. One witness testified there were about three minutes between the sets of shots; another estimated that between 20 and 30 seconds passed between the two sets of shots. One witness looked outside after the second set of shots and saw a man in a white shirt go to a car, return to the house, then get back in the white vehicle and leave.
Police searched Carter's home and found clothing and mail that belonged to Aaron. Police collected eleven .357 caliber rounds of ammunition, three .38 caliber rounds, and a box of 50 .22 caliber rounds, but they found no revolver.
Police interviewed Carter several times. Once, Carter said he did not go anywhere with Aaron, and he kept his phone all night.
Another time, Carter told police he never went inside Brandon's house. He knew Aaron and Albert had a shotgun with them, but they told him it was not loaded. Aaron had a taser, which Carter heard but did not see. He knew someone had a crowbar; it came from his toolbox. Carter said he did not have a gun, and he did not touch the guns.
Carter said he rode to the apartment complex with Albert and Aaron, and on the way, Carter found out they already had another crew of guys coming. Carter was supposed to stay out front as a lookout and call Albert if someone was coming.
In one interview, Carter told police there were two other people at the scene who wore hoods and masks. Carter got into a white car with them. He said he did not see their faces and did not know them, and he did not know they had handguns until he was in the car with them. Carter told police these men told him to erase all his call logs off his phone, which he did. They also collected their clothes and Carter's clothes and threw bags containing the clothing in dumpsters. Police drove around the area with Carter looking for the bags of clothing; they did not find any.
Carter told police he found Aaron in the doorway of the home, and when he tried to grab Aaron's arms, Aaron flopped, and his head hit the concrete.
In another interview, Carter told police that Albert and Aaron said they were meeting somebody at Brandon's, but he never saw who they were meeting. Carter stayed by the truck at the apartment complex until he heard gun shots. After he unsuccessfully tried to move Aaron's body, he ran home, throwing his clothes away about three blocks over because they had blood all over them. Carter claimed he did not know there were handguns; he only knew about a shotgun, and Aaron and Albert said it was not loaded.
During one interview, a detective loaned Carter his phone, and Carter called his older brother. On that call, Carter said he did not have a weapon and did not know who shot Aaron. Two men were there already; he did not know who they were because they had on masks. They told him to remove his clothes and throw them away. He also said that Aaron told him to sit out front as the lookout, that Albert had a shotgun, Aaron had a taser, and two other guys had handguns.
Carter was charged with the murder of Brandon (§ 187, subd. (a); count 1), and it was alleged that he personally and intentionally used or discharged a handgun which caused Brandon's great bodily injury and death (§ 12022.53, subds. (b), (c) &(d)) and that the murder was for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He was also charged with the murders of Albert and Aaron (§ 187, subd. (a); counts 2 and 3), first degree residential burglary (§ 459; count 4), and first degree residential robbery (§ 211; count 5). It was further alleged that he personally and intentionally used or discharged a handgun and that the conduct was for the benefit of a criminal street gang in connection with counts 2 through 5.
Following trial, a jury convicted Carter of first degree murder for Brandon's death (count 1) and attempted robbery (count 4), but it found the personal firearm use allegation not true. The court dismissed the remaining charges and sentenced Carter to 25 years to life for the murder and three years for the attempted robbery.
Carter appealed, contending the court erred by sentencing him to consecutive sentences, and a panel of this court affirmed the judgment. (People v. Carter (2019) 34 Cal.App.5th 831.)
B. Petition for Resentencing
In 2020, Carter filed a petition for resentencing pursuant to section 1172.6. The court denied the petition. Carter appealed, and a panel of this court reversed the denial. (People v. Carter (July 19, 2021, D078340) [nonpub. opn.].) The trial court then issued an order to show cause, and it subsequently held an evidentiary hearing.
The court considered the filings made in connection with the petition for resentencing, as well as records from the trial. Neither party presented new evidence at the evidentiary hearing. Citing the evidence presented at trial, the People argued Carter was the actual shooter and, alternatively, that Carter was a major participant who acted with a reckless indifference to human life. Accordingly, he could still be found guilty of murder, and his petition for resentencing should be denied. The court, which also presided over the trial, found that Carter was the actual shooter. Recognizing the inconsistency with the not-true finding on the personal gun use allegation, the court explained that jurors make inconsistent conclusions; it could be that the jurors made a compromise, wanted to demonstrate leniency, were expressing compassion, or made an error.
Alternatively, excluding the possibility that Carter was the actual shooter, the court addressed the factors found in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) and found that Carter was a major participant in the robbery who acted with reckless indifference to human life.
The court denied the petition. Carter timely appealed.
II.
DISCUSSION
A. Governing Law
Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437) limited the scope of the felony-murder rule and eliminated liability for murder under the doctrine of natural and probable consequences. (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong (2022) 13 Cal.5th 698, 707708 (Strong).) Senate Bill 1437 accomplished this by amending section 189 so that "[d]efendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life[.]'" (Strong, at p. 708, citing § 189, subd. (e)(3).) Senate Bill 1437 also amended section 188 to provide that when the felony-murder rule does not apply, a principal of the murder can only be convicted if he or she acted "with malice aforethought." (§ 188, subd. (a)(3).) Further, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Ibid.; see People v. Gentile (2020) 10 Cal.5th 830, 842-843.) The result is that Senate Bill 1437 "ensure[s] that murder liability is not imposed on a person who is not the actual killer, did not act with intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Strong, at p. 708, citing § 189, subd. (e)(3).)
Senate Bill 1437 established a procedure, detailed in section 1172.6, to allow a defendant who could not be convicted under the new law to petition the court to vacate the murder conviction and resentence him or her on remaining counts. (See § 1172.6, subd. (a); Strong, supra, 13 Cal.5th at p. 708.) Courts consider the petition" 'to determine whether the petitioner has made a prima facie case for relief.'" (Strong, at p. 708, citing § 1172.6, subd. (c).) If the defendant meets his or her prima facie burden of eligibility for relief, the court issues an order to show cause and holds an evidentiary hearing to determine whether it should grant the resentencing relief. (§ 1172.6, subds. (c), (d)(3).)
Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, amended section 1172.6 to clarify that the burden of proof at a resentencing hearing is "on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder" under California law as amended by Senate Bill 1437. It also clarified that "[a] finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3); see also Stats 2021, ch. 551, § 1, subd. (c).) Senate Bill 775 further explained that in the evidentiary hearing, the trial court's role is to act as an independent fact finder to determine whether the petitioner committed murder under the law as amended by Senate Bill 1437. (People v. Clements (2022) 75 Cal.App.5th 276, 294, 297 (Clements).)
B. Impact of Not-True Finding on Evidentiary Hearing
Carter contends the trial court erred when it denied his petition for resentencing on the factual finding that he was the actual shooter because that finding is inconsistent with the jury's not-true finding that Carter personally used a firearm. We review this legal question, whether the jury's not-true finding has a preclusive finding on later fact-finding at an evidentiary hearing, de novo. (See People v. Lewis (2021) 11 Cal.5th 952, 961; Strong, supra, 13 Cal.5th at pp. 715-716.)
To support his position, Carter cites People v. Cooper (2022) 77 Cal.App.5th 393 (Cooper). There, the jury acquitted Cooper of the charge of felon in possession of a firearm but found him guilty of first degree murder and kidnapping. (Id. at p. 397.) It also found true that a principal was armed with a firearm. (Ibid.) When Cooper sought resentencing under section 1172.6, the court denied the request based on its determination that Cooper possessed and fired a gun, even though that finding contradicted the jury's not-true finding. (Cooper, at p. 398.) The appellate court concluded that the trial court's reliance on its belief that Cooper possessed and used a weapon was inconsistent with the acquittal and therefore constituted prejudicial error. (Id. at pp. 417-418.)
The court also concluded Cooper was a major participant in the underlying kidnapping who acted with a reckless indifference to human life. (Cooper, at p. 398.)
Although the defendant argued that collateral estoppel principles prevented the trial court from reaching a contradictory conclusion about firearm possession after the evidentiary hearing, the appellate court in Cooper relied on "the analogous context of petitions for resentencing under the Three Strikes Reform Act of 2012 (Proposition 36 or the Act)" to reach its conclusion. (Cooper, supra, 77 Cal.App.5th at p. 413.) The court in Cooper cited with approval People v. Arevalo (2016) 244 Cal.App.4th 836 and People v. Piper (2018) 25 Cal.App.5th 1007. Those cases held that a superior court could not find a defendant ineligible for resentencing under section 1170.126 based on factual determinations that "turn[ed] acquittals and not-true enhancement findings [at trial] into their opposites." (Arevalo, at p. 853; accord Piper, at p. 1015.)
The Attorney General contends that Cooper was wrongly decided and argues the comparison of sections 1172.6 and 1170.126 are inapt because, as the court in Cooper recognized, section 1170.126 does not permit the introduction of new evidence. (Cooper, supra, 77 Cal.App.5th at pp. 415-416.) In Cooper, the appellate court concluded that the difference did not impact its analysis "because the prosecution did not introduce any new or additional evidence at the hearing, and the trial court's conclusion that Cooper was ineligible for relief was based on the same evidence the jury considered." (Id. at p. 416.) Thus, "Cooper's acquittal of the firearm-possession count 'constituted [a] finding[ ] inconsistent with' the trial court's theory that he was a major participant in the kidnapping who acted with reckless indifference to human life." (Id. at pp. 416-417.)
We followed Cooper in People v. Henley (2022) 85 Cal.App.5th 1003 (Henley). There, we addressed a situation in which new evidence was presented at the evidentiary hearing under section 1172.6, subdivision (d)(3). The defendant had been charged with possession of a firearm during a robbery, and the jury found that allegation not true. The defendant testified at the evidentiary hearing, but the prosecutor did not ask if she had a gun during the robbery. (Id. at p. 1011.) Even though the defendant admitted she knew a co-defendant had a gun, because she denied handling the gun herself (id. at p. 1011), and none of the new evidence presented at the hearing addressed whether the defendant used a firearm during the robbery (id. at p. 1019), there was no new evidence to contradict the jury's finding. Nonetheless, the superior court found the defendant was not entitled to relief based in part on its finding that the defendant was personally armed with a firearm. (Id. at pp. 1007, 1012, 1017.) We concluded that the court prejudicially erred by finding, in contradiction to the not-true finding of the jury, that the defendant personally used a firearm during the robbery. (Id. at pp. 1007, 1019-1020.)
Here, as in Cooper and Henley, no new evidence was presented to indicate that Carter personally used a weapon. The trial court here could not consider that Carter personally shot the victim because the jury found that not true. Thus, the superior court here erred the same way the trial courts did in Cooper and Henley. It "effectively turned [an] acquittal 'into [its] opposite[ ].' [Citations.]" (Cooper, supra, 77 Cal.App.5th at p. 417; Henley, supra, 85 Cal.App.5th at p. 1020.)
Having concluded that the superior court erred in finding Carter was the actual shooter, we turn to the court's alternative finding, that Carter was a major participant who acted in reckless indifference to human life.
C. Major Participant Who Acted With Reckless Indifference to Human Life
1. Standard of Review
We review challenges to the sufficiency of the evidence for substantial evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 658 ["A judgment will not be reversed so long as there is substantial evidence to support a rational trier of fact's conclusion ...."]; see People v. Gregerson (2011) 202 Cal.App.4th 306, 320.) In so doing, we examine the entire record in the light most favorable to the judgment below. (People v. Becerrada (2017) 2 Cal.5th 1009, 1028.)
"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.) We will not reverse the trial court's decision unless there is no hypothesis upon which substantial evidence exists to support the trial court's decision. (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We "must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) We look for substantial evidence, which 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" (People v. Koontz (2002) 27 Cal.4th 1041, 1078; Banks, supra, 61 Cal.4th at p. 804, and we do not substitute our own factual determinations for the fact finder's (Koontz, at p. 1078).
2. Major Participant
"The ultimate question pertaining to being a major participant is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major." '" (Clark, supra, 63 Cal.4th at p. 611.) We consider the following factors when determining whether a defendant was a major participant: (1) the defendant's role in planning the crime that led to the victim's death; (2) the defendant's role in supplying lethal weapons; (3) the defendant's awareness of particular dangers posed by the crime, weapons, or past conduct of the other participants; (4) the defendant's presence at the scene of the crime; (5) whether the defendant was in a position to facilitate or prevent the killing; (6) whether the defendant's actions or inactions played a particular role in the defendant's death; and (7) the defendant's actions after the lethal conduct. (Banks, supra, 61 Cal.4th at p. 803.) Courts weigh the factors to determine whether the defendant's participation in the crime carried a" 'grave risk of death'" and was sufficiently significant to be considered" 'major,'" but no single factor is necessary or sufficient. (Ibid.)
The trial court recognized that each factor did not need to be met and that any single factor might not be sufficient to demonstrate Carter was a major participant. However, it concluded that Carter played a role in planning the robbery, participated in supplying weapons used during the robbery, understood the dangers posed by robbing a grow operation in the middle of the night, could have facilitated or prevented the killing, and acted in a way that demonstrated consciousness of guilt following the robbery. We conclude substantial evidence supports these findings.
Carter was involved in planning the robbery, and there is evidence that he supplied the lethal weapon. Although Aaron approached him initially at the barbecue and invited him to participate, Carter then accompanied Aaron and asked Hall to join them. He was aware that Albert and Aaron had with them an unloaded shotgun and a stun gun, and he provided the group a crowbar from his toolbox. The ammunition used to kill Brandon matched ammunition that police found in the kitchen pantry at Carter's home, providing circumstantial evidence from which the court could reasonably conclude that Carter supplied the fatal weapon.
Because Carter knew the group planned to steal marijuana plants from a grow operation in the middle of the night, the court inferred that he understood the particular dangers associated with the crime. It concluded that the type of crime here was extremely dangerous because of its time of day and the involvement of drugs, which meant weapons would be present. However, this factor had limited weight in determining whether Carter was a major participant because the court also recognized that Carter did not have knowledge of his coparticipants' past conduct in engaging in similar activities.
The Attorney General argues "the evidence established that after Brandon P. shot Aaron A. and Albert T., appellant returned to the house and shot Brandon P." This view of the evidence contradicts the jury's not-true finding, so we treat it as factually impossible. However, there is substantial evidence to support the court's findings that Carter was present at the scene and in a position to facilitate or prevent Brandon's death. As the court explained, Carter was some distance away from the residence at the start of the robbery, but after the first set of shots was fired, Beth drove him and Hall to the residence, and Carter left her vehicle and went to Brandon's house. At that point, Beth heard another volley of shots before she left. Carter told Benito and the police that he was at the home because he tried to help Aaron by moving Aaron from the doorway when he discovered that Aaron was dead. Because evidence suggests Carter was at the crime scene during the second set of shots, the court felt he was in a position to facilitate or prevent that shooting, but he did not. The court noted that was true even treating Hall or another defendant as Brandon's killer.
While it is not clear what role, if any, Carter's action or inaction had in Brandon's death, his conduct after the murder shows he played a major role in the crime. Substantial evidence shows that he procured a ride home for him and Hall with Benito, and he discarded evidence of the crime, including his clothing and phone records. There is also testimony that he participated in discarding the lethal handgun.
Viewing the evidence in a light favorable to the fact-finder's conclusions here, substantial evidence supports the court's conclusion that Carter was a major participant in the robbery.
3. Reckless Indifference
To demonstrate a reckless indifference, a "defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed" and consciously disregard "the significant risk of death his or her actions create." (Banks, supra, 61 Cal.4th at p. 801; see Clark, supra, 63 Cal.4th at pp. 616-617.) Both the "magnitude of the objective risk of lethal violence and a defendant's subjective awareness of that risk" are relevant to the reckless indifference inquiry. (Clark, at p. 623.) To establish the requisite mindset, the defendant must "knowingly create[ ] a 'grave risk of death'" (Banks, at p. 808.)
We consider the following factors in determining whether substantial evidence supports the trial court's conclusion that Carter acted with reckless indifference to human life: (1) knowledge of weapons and use and number of weapons, (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim, (3) duration of the felony, (4) the defendant's knowledge of the other perpetrators' likelihood of killing, and (5) the defendant's efforts to minimize the risk of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) No single factor is necessary or sufficient to determine a recklessly indifferent state of mind. (Id. at p. 619.) Further, because of the overlap between the factors assessing whether a defendant is a major participant and whether the defendant acted with reckless indifference, the greater a defendant's participation in the felony murder, the more likely it is that he acted with reckless indifference. (Id. at pp. 614-615.)
Substantial evidence supports the trial court's conclusion that Carter was aware of the weapons used in the robbery, including the handgun that killed Brandon. Carter told police he knew Aaron and Albert brought an unloaded shotgun, a stun gun, and the crowbar that Carter supplied them. The handgun that killed Brandon was never recovered even though the participants in the home invasion were found dead at the scene, meaning someone removed the weapon. Evidence supports the conclusion that Carter had access to and possessed the weapon before the crime, even if he was not the actual killer. Specifically, Benito told police he believed Carter discarded the handgun before getting a ride home from Benito, and Christine corroborated that belief based on what Benito told her near the time of the crime. Finally, ammunition matching the type of weapon that killed Brandon was found in the kitchen pantry of Carter's home. While the "mere fact of a defendant's awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life" (Clark, supra, 63 cal.4th at p. 618), here Carter's knowledge of the weapon used, the use of his own crowbar to beat Brandon, and the number of weapons involved-all of which were known to Carter-support a finding of reckless indifference.
Substantial evidence likewise supports the court's conclusion that Carter was present at the scene of the crime near Brandon's death. The timing of the two sets or volleys of gunfire suggests Carter was present during some of the shooting. Carter left the general area of Brandon's house to meet Beth, then returned to the scene after Beth arrived. He ran back toward danger and did nothing to stop it. Moreover, even assuming Carter was not Brandon's shooter, as we must, evidence indicates that Brandon suffered three gunshot wounds, but only one was fatal. The defensive wounds on Brandon's hands and forearms suggests he lived long enough to fight the intruders, and the gunshot wound that fractured the spine and caused injury to his heart left Brandon initially able to move his torso, arms, neck, and head, before he eventually died. Carter admits he was present at the scene because he moved Aaron's body away from the doorway. Yet, there is no indication he tried to aid Brandon.
The trial court recognized that the felony here was not prolonged. However, it gave weight to the fact that there were two sets of shots fired and the timing of the gun shots as supporting the theory that Carter was the actual shooter, having returned to Brandon's home to kill him in revenge for Aaron's death. We discount this understanding of the events because it assumes that Carter fired the lethal shot that killed Brandon, a conclusion inconsistent with the jury verdict in this case. However, crimes of longer duration present greater risk of violence and indicate more reckless indifference. (Clark, supra, 63 Cal.4th at p. 620.) The pause in shooting here, coupled with the missing lethal weapon, indicates that even if Carter was not in the residence when Aaron and Albert initially began the robbery, he became directly involved after the first set of shots. This factor supports a finding of recklessness because it suggests an opportunity to deescalate the situation before the second set of shots was fired that Carter ignored.
The trial court concluded that Carter was not aware of his coparticipants' likelihood of killing, so that factor has no bearing.
Finally, turning to the final factor, the court concluded that there was no evidence that Carter minimized the risk of violence because he was present when the second set of shots was fired and did nothing to prevent it. We recognize that Carter knew Aaron and Albert had with them an unloaded shotgun, a crowbar, and a stun gun when they entered Brandon's home, items which could be-and were-used to violently beat and subdue the victim. While the weapons that Carter admitted to knowing about could suggest an effort to minimize the risk of death, the evidence that circumstantially ties Carter to the handgun used to kill Brandon, and the decision to enter Brandon's home in the middle of the night when Brandon was likely to be present supports the trial court's conclusion that Carter did not make efforts to minimize the risk of violence during the felony. (Clark, supra, 63 Cal.4th at p. 620.)
Finally, the court explained that this was an extremely dangerous robbery, undertaken in the middle of the night, in a location where drugs were involved, raising an inference that weapons will be present to protect the drug operation. Although a finding of recklessness cannot be based on the fact that the participant of the armed robbery could anticipate the potential use of lethal force (In re Scroggins (2020) 9 Cal.5th 667, 677; Banks, supra, 61 Cal.4th at p. 808), Carter's conduct of returning to the scene after shots were fired and doing nothing to deescalate or aid Brandon provides substantial evidence that he acted with a reckless indifference to human life. This conduct demonstrates that he was "willingly involved in the violent manner" in which the robbery occurred, even though he was not the actual killer. (See Banks, at p. 801.) Accordingly, we cannot say that there is no hypothesis upon which substantial evidence exists to support the trial court's denial of the petition for resentencing. (See Bolin, supra, 18 Cal.4th at p. 331.)
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J. BUCHANAN, J.