Opinion
E080593
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE HAMPTON, Defendant and Appellant.
Laura Arnold, 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, Alan Amann and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB17394. Gregory S. Tavill, Judge.
Laura Arnold, 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, Alan Amann and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant, Eddie Lee Hampton, appeals from an order denying his petition to vacate his conviction and resentence him pursuant to Penal Code section 1172.6. In 1998, a jury convicted defendant (along with his half brother Marlon Bayliss) of first degree murder, pursuant to section 187, subdivision (a), and made true findings that he personally used a shotgun (§ 12022.5, subd. (a)), that a principal was armed with a shotgun (§ 12022, subd. (a)(1)), and that he had previously been convicted of a serious or violent felony under the "Three Strikes" law. (§ 667, subds. (b)-(i).) His conviction was affirmed on direct appeal. Following the enactment of Senate Bill No. 1437, he petitioned for relief under section 1172.6 (formerly § 1170.95) in 2019, and, after an evidentiary hearing, the trial court denied relief. Defendant appeals.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues the trial court's findings and order are not supported by substantial evidence. We affirm.
Background
We recite the background facts as set forth in our unpublished opinion in case Nos. E023847/E023848, People v. Marlon Bayliss et al., filed on June 14, 2000, with additional information regarding the current petition:
"Sheryl Hilt was Bayliss's girlfriend. As of November 22, 1996, they had lived together for six or seven months. On the evening of November 22, 1996, she, Bayliss, Hampton, Bayliss's brother Tommy, and Mark Burley were together at Hilt's and Bayliss's house. Sometime during the afternoon or evening, Burley left.
"At 10:00 or 11:00 p.m., Hilt overheard a conversation between Bayliss and Hampton; Tommy Bayliss was present with them, but Tommy did not appear to be taking part in the discussion. Bayliss and Hampton were talking about doing a 'jack move' (robbery). They talked about using Hampton's car and robbing a bar.
"At 2:00 or 3:00 a.m., on November 23, Hampton and Bayliss left the house together. Hampton carried a shotgun wrapped in a sheet. Hilt thought they left in Hampton's car, because Tommy's gray car was still parked outside the house.
"Bayliss returned to the house at 4:00 or 5:00 a.m. As he got into bed, he told Hilt that 'something went wrong.'
"As of November 23, 1996, David Reno was staying at a house on Ninth Street in San Bernardino. At approximately 3:00 a.m. on that date, he was outside smoking a cigarette. He saw a dark-colored car come east on Ninth Street, turn around in a dirt field on the south side of the street and return west on Ninth Street, and then turn south at the next intersection, onto Sterling Avenue. He saw the same car repeat the same maneuver two or three times. After one of the passes, the dark car turned in at an apartment building on Ninth Street.
"Soon, Reno saw two Black men walk by. One man looked taller than the other, and the shorter man seemed huskier to Reno. The two men wore dark clothing and jackets, and they wore knit caps or beanies on their heads. One of the men carried a shotgun. The men appeared to cross a field on a path that led from Ninth Street to Sterling Avenue. A liquor store was two buildings south of the field on Sterling Avenue.
"After five or ten minutes, Reno heard gunshots. The gunshots sounded as if they came from the liquor store. The same two Black men came running past Reno. Again, one of the men carried the shotgun, but Reno could not tell if it was the same man who had carried the gun before. The men ran to the apartment complex and out of sight. Three or four minutes later, the dark car left the apartments, heading eastbound on Ninth Street, and turning north onto McKinley Street.
"Kenneth and Denyse Elder lived in the apartment building on Ninth Street. Denyse was upstairs at another apartment babysitting. Kenneth was at home. At approximately 3:00 a.m., they each heard gunshots, and, soon afterward, sirens.
"Kenneth saw a car pull up to a dumpster in the parking lot of the apartment complex. He saw a man get out of the car and throw something over a brick wall. Kenneth went upstairs to see Denyse and take her a cigarette. As he returned downstairs, he saw a Black man who looked like Hampton. They exchanged a short greeting: "What's up." Kenneth saw the man go toward the laundry room and start talking to another man, who looked like Bayliss.
"From the upstairs apartment where she was babysitting, Denyse saw a car with its headlights off leaving the parking lot. She thought the car was a Mustang, because she saw the taillights grouped in threes; she had owned a Mustang several years earlier. Kenneth also thought the car he saw by the dumpster was a Mustang.
"At approximately 3:30 a.m., the San Bernardino County Sheriff's Department received a silent alarm call emanating from the liquor store on Sterling Avenue near Ninth Street. Deputy Camacho and Sergeant Curry responded to the scene. They found blood on the handle of the front door of the liquor store. Inside they found the proprietor lying on his back in a pool of blood. The victim was still moving but did not respond to Deputy Camacho's questions.
"Paramedics took the victim to the hospital, but he died. The victim was killed by gunshot wounds. Nearly a dozen shotgun pellets inflicted wounds, mostly to the victim's front and right side; he had apparently been turning away from the blast. The pellets struck and injured many of the victim's internal organs, including the liver, right kidney, intestines, and a major blood vessel in the leg.
"In the morning of November 23, the Elders looked into the apartment dumpster where the strange car had pulled up. They saw a blue Pendleton shirt inside. On the other side of the wall, where Kenneth had seen one of the men throw something, they located a blue steel .38-caliber revolver. They showed sheriff's detectives what they had found. Investigating officers also found a knit cap on a fence near the apartment complex, and a baseball cap in the backyard of a nearby house.
"Sheryl Hilt testified that she had seen Hampton wearing the blue Pendleton shirt on the night he and Bayliss talked about doing a robbery. She said that her sister's husband had sometimes worn the baseball cap police had found, and the knit cap belonged to her cousin Francisco. Hilt had seen both caps on a table in her house on the night the men were talking about a robbery, but the caps were gone after defendants had left. Hilt's and Bayliss's house was on Golondrina Street, north of Ninth Street and a block west of Sterling Avenue.
"In the evening on November 23, 1996, an anonymous tipster called the sheriff's station and reported that two people, identified as 'Ace' and 'Tony' had been talking about their involvement in the murder at the liquor store. After some further investigation, detectives found out that one of the men, 'Ace,' was defendant Bayliss. At trial, several witnesses who knew him referred to Bayliss by the nickname 'Ace.'
"Soon after the killing, Hilt and Bayliss went to Los Angeles. Bayliss told Hilt he knew the police were looking for him to question him about the murder. Hilt and Bayliss also went to Sacramento before returning to San Bernardino. They stayed with Hilt's sister.
"Edwina Newsom lived on Golondrina Street, several houses north of the house occupied by Hilt and Bayliss. Three buildings, apartments A, B, and C, were situated on the property where Newsom lived. Newsom lived in apartment A; Hilt's sister lived in apartment C. When Hilt and Bayliss returned to San Bernardino from Los Angeles and Sacramento, they stayed in apartment C with Hilt's sister. Because Hilt and Bayliss had visited Hilt's sister in the past, Newsom was familiar with Hilt and Bayliss. Newsom had had several conversations with investigating officers and gave the officers information about the killing. Among other things, Newsom told them that she had seen Bayliss and Burley apparently burying items that were supposed to have been connected to the killing. As a result of Newsom's information, officers recovered a .22-caliber handgun wrapped in newspaper, and a knit cap in a plastic baggie, buried behind Hilt's and Hilt's sister's residences, respectively.
"On January 16, 1997, sheriff's deputies arrested Hampton and Bayliss at Hampton's house. Hampton lived on Hope Street, about two and one-half miles from the liquor store. Deputies impounded Hampton's car, a black Thunderbird, at that time.
"Meanwhile, inside the liquor store, officers had recovered shells, wadding and pellets that indicated a shotgun had been used in the killing. Other shotgun pellet strikes were found outside the building. They also found shoeprints and tire tracks in dirt nearby and took impressions of the shoeprints and tire tracks. Plaster casts of the tire tracks matched the tires on Hampton's black Thunderbird. The shoeprints matched a pair of shoes owned by Mark Burley. Officers took David Reno to the impound lot to view Hampton's car. Reno recognized the triple taillights on Hampton's Thunderbird, and immediately said, "'That's it. That's the vehicle.'"
"Hampton presented an alibi defense. His wife testified that she had used the family car, the Thunderbird, to attend school on Friday evening, November 22, and Saturday morning, November 23, 1996. She arrived home from school at approximately 10:30 p.m. on Friday. Soon afterward, at approximately 10:40 p.m., she and Hampton drove to Hampton's sister's house, but the sister was not there, so they returned home. After preparing their children for bed, Hampton's wife did ask him to go by his sister's house again, however. Hampton returned home before 12:00 midnight; Hampton and his wife then went to bed. The next morning, Hampton's wife drove the car to school in Riverside.
"Bayliss elected not to present an affirmative defense, though he did call some of the prosecution witnesses and examined them for purposes of impeaching their testimony.
"When defendants were arrested in January 1997, they were each charged with one count of murder in the first degree. The information included allegations as to each defendant that he personally used a shotgun in the commission of the offense (§ 12022.5, subd. (a)), and that a principal was armed with a shotgun (§ 12022, subd. (a)(1)). The information further alleged that each defendant had suffered a prior serious felony conviction (strike prior). (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The information was amended as to defendant Bayliss to allege an additional count that he was an accessory to murder (§ 32).
"The court impaneled a separate jury for each defendant, and bifurcated trial on the strike priors. Hampton's jury found him guilty of murder in the first degree, and found true the allegations that he personally used a shotgun and that a principal was armed with a shotgun. Bayliss's jury found him guilty of first degree murder, and of being an accessory to murder. Bayliss's jury found true the allegation that a principal was armed with a firearm in the commission of the murder. In a bifurcated court trial, the court found true the strike prior allegations as to each defendant.
"The court sentenced Hampton to a term of 50 years to life for the murder (a term of 25 years to life, doubled for the 'second strike' conviction), plus four years for the personal use enhancement. The court stayed the armed with a firearm enhancement. Bayliss received a similar sentence. Both defendants appealed."
On direct appeal, defendant Hampton argued that his conviction should be reversed because evidence of codefendant Bayliss's hearsay admissions was improperly admitted before his jury. Both defendants also argued: (1) that the court improperly denied their motions for mistrial when the prosecutor failed to turn over discovery promptly; (2) that the court improperly precluded them from inquiring into the custody status of one of the witnesses; and (3) that certain errors cumulatively prejudiced their trials. We affirmed the convictions. (People v. Marlon Bayliss et al. (June 14, 2000, E023847/E023848) [nonpub. opn.].)
In 2019, defendant sought resentencing following the passage of Senate Bill No. 1437, but the trial court denied it summarily and we affirmed the order. (People v. Hampton (Apr. 29, 2021, E074416) .) The California Supreme Court granted review, deferring further action and briefing, and later retransferred the case to us with directions to vacate our earlier opinion and reconsider our decision in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We did so, and, after vacating our decision on February 25, 2022, we allowed the parties to file supplemental briefs limited to matters arising after the previous decision in this matter. We then reversed the trial court order summarily denying the petition and remanded the case to the superior court with directions to issue an order to show cause. (People v. Hampton (Apr. 25, 2022, E074416) .)
On August 25, 2022, the trial court issued an order to show cause (OSC) and set a hearing to determine if defendant was entitled to resentencing. The parties submitted briefing to the trial court and requested that the court consider the transcripts of the second trial (the first ended in a mistrial). The matter came on for hearing on January 19, 2023, at which time the parties presented arguments and the court indicated it had read the trial transcripts. The court found beyond a reasonable doubt that defendant was the killer, the actual shooter, but that even if he were not the actual killer, there was proof beyond a reasonable doubt he was a major participant who acted with reckless indifference to human life.
The People also submitted on the bases of transcripts of the preliminary hearing and the first trial, but those records were apparently not reviewed by the trial court.
On January 27, 2023, defendant timely appealed.
Discussion
On appeal, defendant argues there is insufficient evidence to support the trial court's judgment. We disagree.
A. General Legal Principles
Senate Bill No. 1437 amended the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The statute's text and legislative history indicate that the Legislature intended to restrict culpability for murder outside the felony-murder rule to persons who personally possess malice aforethought. (People v. Gentile (2020) 10 Cal.5th 830, 847 (Gentile).)
To effectuate this purpose, the Legislature made three major changes: First, it added section 189, subdivision (e), which amended the felony-murder rule by requiring that defendants who were not the actual killer, or a direct aider and abettor to the underlying felony with the intent to kill, must have been a major participant in the underlying felony and have acted with reckless indifference to human life. (Gentile, supra, 10 Cal.5th at p. 842.)
Second, it amended section 188 by requiring that all principals to murder must act with express or implied malice, with the exception of felony murder under section 189, subdivision (e). (Gentile, supra, 10 Cal.5th at p. 842; see also People v. Turner (2020) 45 Cal.App.5th 428, 433 ["'[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)"].)
Third, it added section 1170.95 (now § 1172.6) to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the statutory changes to sections 188 and 189. (Gentile, supra, 10 Cal.5th at p. 843.)
To obtain relief under the resentencing procedures in section 1172.6, the petitioner must first make a prima facie showing that he or she is entitled to relief. (Lewis, supra, 11 Cal.5th at p. 960.) "If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause." (Ibid.) The court then holds a hearing "'to determine whether to vacate the murder 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.'" (Ibid.)
At the hearing stage, the prosecution must prove, "beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) At the hearing, '"[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens."' (§ 1170.95, subd. (d)(3); People v. Ramirez (2021) 71 Cal.App.5th 970, 984, citing Gentile, supra, 10 Cal.5th at p. 853.) At the hearing on the order to show cause under section 1172.6, subdivision (d)(3), the superior court acts as an independent fact finder and determines whether the People have met their burden in proving the defendant guilty of murder under the revised felony-murder law. (§ 1172.6, subd. (d)(3); People v. Henley (2022) 85 Cal.App.5th 1003, 1016, citing People v. Ramirez, supra, at p. 984.)
A trial court's factual findings at a section 1172.6, subdivision (d)(3), hearing are reviewed for substantial evidence. (People v. Henley, supra, 85 Cal.App.5th at p.1017, citing People v. Ramirez, supra, 71 Cal.App.5th at p. 985; see also People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087.) Under this standard, the record is reviewed "'"in the light most favorable to the judgment"'" and a reviewing court decides "'"whether it discloses substantial evidence ... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (Bascomb, supra, at p. 1087.) We look to whether the prosecution has introduced sufficient evidence of '"'reasonable, credible, and of solid value'"' to "'support a finding beyond a reasonable doubt'" that petitioner was guilty. (People v. Navarro (2021) 12 Cal.5th 285, 302, quoting People v. Banks (2015) 61 Cal.4th 788, 804 (Banks); see People v. Clark (2016) 63 Cal.4th 522, 618 (Clark).)
With respect to conflicting evidence, we follow well-settled rules: "Our application of this standard of review does not permit reweighing the evidence or reevaluating the credibility of witnesses. (See People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Instead, we presume the existence of every fact the jury reasonably could have deduced from the evidence in support of the judgment. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) And if the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Covarrubias (2016) 1 Cal.5th 838, 890; accord, People v. Houston (2012) 54 Cal.4th 1186, 1215.)" (People v. Murphy (2022) 80 Cal.App.5th 713, 725.) B. Analysis
In the present case, the People submitted the matter for decision on the trial transcripts and the preliminary hearing transcripts and neither party objected to evidence in the record or offered new evidence. We also have reviewed the transcripts of the second trial.
Although the People's briefing in the trial court relies in part on the preliminary hearing transcripts from the original record on appeal, the court indicated it had read the transcripts of the second trial and did not mention the preliminary hearing transcript. The People responded there was not a significant difference between the records of the two trials, so the trial court did not review it. Except as used to impeach a witness at trial, section 1172.6, subdivision (d), precludes the trial court, and, by extension, this court, from considering the testimony adduced at the preliminary hearing.
Although defendant argues the evidence supporting the guilt finding is less credible than the theory that a third person committed the attempted robbery and murder, admissible evidence established beyond a reasonable doubt that defendant was the actual killer. Defendant and Bayliss discussed a plan to rob a bar in the presence of witnesses Sheryl Hilt and two others. They planned to use Hampton's vehicle, a black car that was parked at the apartment complex at the time of the discussion. That car was later identified by witness Reno as the vehicle that drove up and down Ninth Street on the morning of the murder.
At trial, there was evidence that a third person, Mark Burley, was present when the robbery was planned. There was also testimony by an eyewitness who described seeing two people with a shotgun, where one person was two to four inches taller than the other. After the crime, Newsome identified Burley as one of the people who buried objects in the yard, and during closing argument, the prosecutor argued that there were "three guys involved."
When they left Hilt's residence, defendant Hampton was wearing the blue Pendleton shirt later found and photographed when he and Bayliss left the residence between 1:00 a.m. and 2:00 a.m., taking with them a shotgun and a handgun that had been in the closet of the bedroom Hilt and Bayliss shared. Hampton was carrying the shotgun. Between 4:00 a.m. and 5:00 a.m. on November 23, 1996, Bayliss returned to the residence he shared with Hilt, and stated that something had gone wrong. This evidence was not contradicted although in prior statements Hilt had denied all knowledge of the crime and gave Bayliss an alibi because she loved him, and he told her what to say.
Edwina Newsom also heard defendant and Bayliss (also called "Ace") discussing the robbery after the fact, where other people were also present. In Hampton's presence, she heard Bayliss say that Eddie killed the victim. There is no indication defendant denied this statement, and there was no objection to its admissibility either at trial, or at the evidentiary hearing on the resentencing petition.
At oral argument, defense counsel argued that the adoptive admission was inadmissible and should not be considered as evidence that defendant was the actual shooter, as the trial court concluded. However, any objection to the statement was forfeited both at trial and at the hearing on the section 1172.6 petition, so the evidence was properly considered by the trial court.
Michael Pickett, who was offered sentencing consideration in return for truthful testimony, testified that defendant told him that Bayliss told Hilt about everything that happened during the robbery and that Bayliss had not, so the police could not have connected them to the robbery.
We agree there were witnesses who gave contradictory evidence about the description of the car, the height of the two robbers, whether the tire tracks of the car used in the robbery matched the defendant's car, whether a Ford Mustang was driven by the defendants, and whether Mark Burley buried a "small shotgun" on a different date, but the weight and credibility of such evidence was for the trier of fact to determine. It is the exclusive function of the trier of fact to pass on the credibility of witnesses, resolve any conflicts, and determine the weight to be accorded the evidence; a reviewing court may not reappraise the credibility of witnesses or reweigh the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) The jury necessarily rejected the theory that a Mustang was driven to the crime scene, or that someone other than Hampton fired the shotgun, killing the victim. The trial court, at the OSC hearing also rejected such theories, finding beyond a reasonable doubt that defendant was the shooter. Because substantial evidence supports the judgment, we are not free to substitute a different judgment for that of the trial court, which resolved the credibility and weight of the conflicting evidence in favor of a guilt finding, beyond a reasonable doubt.
Defendant also argues that the fact he was found to have used a firearm within the meaning of section 12022.5, subdivision (a), was not proof he was the shooter, citing People v. Jones (2003) 30 Cal.4th 1084, 1120 (Jones), where a display of guns can qualify as personal use of a firearm. In Jones, the Supreme Court recognized that "personal use" of a firearm may take different forms. However, the record in this case includes no evidence that the shotgun was brandished or used threateningly to accomplish the robbery, or any other personal use of the weapon; instead, the only "use" of the shotgun presented by the evidence was that it was discharged during the attempted robbery and killed the victim.
Thus, while in theory a finding that a defendant personally used a firearm does not in itself prove a defendant is the actual killer (Jones, supra, 30 Cal.4th at p. 1120), the facts of a particular case may support only that conclusion. (People v. Garrison (2021) 73 Cal.App.5th 735, 743.) This is one of those cases: no other "use" of the weapon was described in the trial record or presented to the trier of fact. There is substantial evidence to support the court's finding beyond a reasonable doubt that defendant Hampton was the shooter. As the actual killer, he could still be convicted of murder under current law. C. Alternative Basis to Support Murder Conviction
In this respect, we find significance in the fact that defendant did not protest that his brother was falsely accusing him of being the shooter, either in Hilt's presence or when he discussed the crime with Pickett while in pretrial custody. His major complaint was that he was caught because his brother told Hilt what had happened and that she told the police.
Even if it could be argued that defendant was not the actual killer, the record before us is replete with evidence supporting the trial court's alternate determination that defendant was a major participant who acted with reckless indifference to human life, by which findings Hampton could still be convicted of first degree felony murder. (§ 189, subd. (e); see Banks, supra, 61 Cal.4th 788; Clark, supra, 63 Cal.4th 522.) Banks and Clark charted a "spectrum of culpability" set forth in two opinions from the United States Supreme Court, namely, Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison), to facilitate the determination that a defendant was a major participant acting with reckless indifference to human life.
Enmund and Tison require a court to consider where the defendant's conduct falls on this "spectrum of culpability." "At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state." (Tison, supra, 481 U.S. at p. 149.) At the other end is "the felony murderer who actually killed, attempted to kill, or intended to kill." (Id. at p. 150.) The court in Tison provided an inexhaustive list of factors to consider in making the finding, although it cautioned that "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death'" (Banks, supra, 61 Cal.4th at p. 803, citing Tison, at p. 157) was sufficiently significant to be considered "major." (Banks, at p. 803.)
Applying these principles to the case before us, there is substantial evidence to support the trial court's conclusion that defendant was a major participant, where the trial court recited ample facts to support its conclusion that defendant was a major participant who acted with reckless indifference to human life: Hampton was "intimately involved in the whole planning, the use of the guns, the getting of the guns, the getting of the car, his car. He was the driver[,]" and the court also found beyond a reasonable doubt that defendant was the shooter. He was a major participant in the attempted robbery and the murder of the victim.
On the issue of whether defendant acted with reckless indifference to human life, the court observed that approaching a store or a market late at night (or in the predawn hours) armed to rob it, and with the owner or clerk present, was inherently dangerous; that he was in the position to facilitate or prevent the death yet he did not attempt to discourage his coperpetrator from carrying out the violent crime; that his action or inaction played a role in the death, in that after he shot the victim, he took no steps to render or obtain medical aid for the victim; that he knew lethal force would be used in the commission of the crime, he knew how many lethal weapons would be involved, and he was present when the victim was shot and killed. He met the criteria to support a finding he acted with reckless indifference to human life.
The judgment is supported by substantial evidence.
Disposition
The judgment is affirmed.
We concur: CODRINGTON J. FIELDS J.