Opinion
F084170
06-10-2024
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JACKSON, Defendant and Appellant.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF91451754. Gary R. Orozco, Judge.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Appellant Christopher Jackson challenges the denial of his petition for resentencing under Penal Code section 1172.6 after an evidentiary hearing. In 2019, appellant petitioned for resentencing under former section 1170.95 (now § 1172.6), which the trial court initially dismissed. On appeal, we reversed, vacated the dismissal order, and remanded for further proceedings under former section 1170.95. (People v. Jackson (Feb. 23, 2021, F080236) [nonpub. opn.].) On remand, the trial court concluded appellant had established a prima facie showing of entitlement to resentencing. The court then held an evidentiary hearing after which it denied appellant's resentencing petition, concluding he was guilty of murder beyond a reasonable doubt as a major participant in the robbery who acted with reckless indifference to human life. On appeal, appellant argues insufficient evidence supports the trial court's holding.
All further statutory references are to the Penal Code unless indicated otherwise.
We reject appellant's contentions and affirm the order denying the petition.
BACKGROUND
I. Factual Background
Around the end of March 1991, appellant began planning the robbery of Any Kind Check Cashing in Fresno, and brought his idea to Michael Sherman and Eugene Robinson. They, along with others, had committed similar robberies in the Oakland area, during which apparently no one had been hurt; appellant had been involved in at least 10 robberies since he had come to California three years before, including the robbery of an armored car guard at a Home Depot store. In the weeks leading up to the robbery, appellant surveilled the Fresno check cashing business approximately three to five times, with Sherman accompanying him on two of those observations. They were supposed to commit the robbery on April 1, 1991, but then Robinson backed out; appellant and Sherman then proceeded with the plan on April 15, 1991.
While surveilling the business, appellant noted that an armored truck would arrive in the morning, and a guard would take money bags in and out of the business. Appellant and Sherman decided they needed to be armed for the robbery because the guard who carried the money bags was armed. They never intended to hurt anyone because they felt if "[they] did it right, nobody would ever get hurt .…" They planned for appellant to confront the guard as he was the larger of the two, Sherman would grab the money bag, they would run back to the car and appellant would drive.
Appellant and Sherman also decided they needed to steal a car because neither wanted to use their personal vehicles as those could be traced back to them. So, the night before the robbery, appellant and Sherman stole a Ford Escort from a car rental agency by placing gum at the end of a stick and removing the keys through an after-hours key return box. They drove the stolen Escort to a parking lot near the check cashing business, parked the Escort and returned to their motel. The next morning, they drove their own cars back to the stolen Escort, parked their cars in the parking lot, drove the Escort to the check cashing parking lot and waited for the armored truck to arrive. As planned, they were both armed: appellant had a loaded .45-caliber handgun, and Sherman carried a loaded nine-millimeter (9mm) caliber handgun; appellant could not recall if he supplied Sherman ammunition for the 9mm-appellant had extra rounds left over from a 9mm he had previously sold, and 9mm bullets were found in his jacket during a police search in September 1991, several months after this robbery. When they saw the armored truck at the bank across the street, appellant pulled the Escort to the front of the check cashing business and they went inside. Appellant went to the counter and told a clerk he wanted to send money through Western Union, and the clerk gave him a form to fill out. Appellant wrote on the form while Sherman stayed in the lobby holding a magazine, waiting for the armored truck guard to enter the business.
When the guard came into the lobby carrying a money bag, appellant approached the guard with his gun out in his right hand, and reached for the guard's gun with his left.
The guard grabbed appellant's gun, and a struggle ensued. During the struggle, the gun was facing up and discharged close to appellant's face-he felt the heat of the bullet along the side of his face. Appellant yelled out that he was shot, and called for Sherman to help. As appellant continued to wrestle with the guard, Sherman came over and appellant heard two shots being fired. The guard fell slack, and appellant saw Sherman with his weapon in his hand. Sherman headed for the door, and appellant followed; appellant testified he did not grab the money bag. On cross-examination, however, appellant acknowledged he told police in a prior interview that he grabbed the bag and ran out the door.
They raced to the Escort, and appellant drove them back to where their cars were parked; they drove their own cars out of the parking lot, heading toward Oakland. Later, when they stopped for gas along the way, appellant discovered Sherman had grabbed the money bag from the guard. They traveled back to Sherman's house, where appellant gave Sherman his gun to get rid of it; appellant had dumped his clothes along the highway during the trip. They discussed the fact the money bag had been empty.
The guard died as a result of the shooting, and his death certificate reported he suffered two gunshots wounds to his heart and lungs. Two 9mm gun casings were found by police at the check cashing business. A few days after the robbery, appellant read in a newspaper the guard had died, and he and Sherman discussed the death-Sherman concluded it was "better him than us." Appellant testified the death of the guard stunned him and made him sick; he subsequently committed additional robberies.
II. Procedural Background
A criminal complaint was filed against appellant and Sherman in September 1991, charging them with murder, robbery, and vehicle theft. A special-circumstance allegation attached to the murder charge asserted the murder was committed during the course of a robbery. There were also firearm enhancements alleged as to both defendants.
After Sherman's and appellant's cases were severed, appellant testified at Sherman's preliminary hearing, held in January and February 1992. A preliminary hearing with respect to appellant was held in July 1994. An information was filed as to appellant in August 1994, alleging appellant committed first degree murder (§ 187, count 1); robbery (§§ 211, 212.5, former subd. (b), count 2); and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 3). As before, a special-circumstance allegation attached to the murder charge asserted the murder was committed in the course of a robbery, and a firearm enhancement was also alleged.
Appellant entered into a negotiated plea to having committed the lesser included offense of second degree murder (count 1), and robbery (count 2), with an admission that he personally used a firearm, in exchange for an aggregate sentence of 25 years to life (a determinate term of 10 years, followed by an indeterminate term of 15 years to life). It was stipulated that the factual basis for the plea was comprised of the preliminary examination hearing transcript and the police reports. On November 28, 1994, defendant was sentenced in conformance with the plea agreement.
In 2019, appellant sought resentencing under former section 1170.95. The trial court concluded Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional, and appellant's petition was dismissed. On appeal, we concluded Senate Bill 1437 was constitutional, reversed the trial court's dismissal order, and returned the matter to the trial court for further proceedings under former section 1170.95. (People v. Jackson, supra, F080236.) On remand, the trial court found appellant had made the required initial prima facie showing that he was entitled to resentencing, and the matter proceeded to an evidentiary hearing. For consideration at the evidentiary hearing, the prosecution proffered six exhibits, which were admitted by the trial court: (1) the victim's death certificate; (2) redacted portions of appellant's 1994 preliminary examination hearing; (3) a portion of this court's 2021 nonpublished opinion; (4) redacted portions of Sherman's 1992 preliminary examination hearing; (5) appellant's October 1994 change of plea hearing transcript; and (6) the information that was filed when appellant pleaded guilty.
Among other things, Senate Bill 1437 created the resentencing procedure under former section 1170.95. (Stats. 2018, ch. 1015, § 4.)
The preliminary hearing transcripts were redacted to remove inadmissible hearsay. (See § 1172.6, subd. (d)(3).)
After a March 2022 hearing, where both parties presented argument to the court but no live testimony was given, the trial court took the matter under submission. At a separate and subsequent hearing in April 2022, the trial court denied the petition, finding appellant was guilty beyond a reasonable doubt of murder as a major participant who acted with reckless indifference to human life. In considering appellant's role in planning the robbery, the trial court found appellant took a lead role; he advised they needed weapons and supplied ammunition to Sherman; he knew the dangers of having to disarm the guard; he precipitated the victim's death because he refused to relent when the guard began to resist, and then he called to Sherman, which facilitated the shooting; and he managed to grab the money bag the guard was carrying. The trial court found appellant played a role in the victim's death-he was the one who confronted the guard, got into a struggle, and called for help; he also drove the vehicle to and from the crime scene, immediately fled the scene and did not summon any help despite having a portable phone under a different name. Based on the balance of these facts, the trial court concluded appellant was a major participant.
For similar reasons, the trial court concluded appellant also acted with reckless indifference to human life. The trial court found, among other things, that appellant was the one who declared the firearms were necessary to carry out the robbery; he knew the guard was armed and that he and Sherman were also armed; he did not call out to the guard or otherwise try to disable him prior to confronting him; he did not attempt to stop the killing and called on his confederate to neutralize his struggle with the guard, which Sherman did "in the most predictable and foreseeable fashion." The court concluded the prosecution had proven beyond a reasonable doubt that appellant remains guilty of murder under a valid theory. Accordingly, appellant's petition for resentencing under section 1172.6 was denied. Appellant now appeals.
DISCUSSION
I. Senate Bill 1437
Senate Bill 1437 was enacted "to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Section 188 now provides that, "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person solely based on his or her participation in a crime." (Id., subd. (a)(3).) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Senate Bill 1437 also added section 189, subdivision (e), to the Penal Code, which limits the circumstances under which a person may be convicted of felony murder: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (Id., subd. (e).)
The legislation also enacted former section 1170.95, which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, former section 1170.95 permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts .…" (Stats. 2018, ch. 1015, § 4, subd. (a).)
In Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, the Legislature amended the language of section 1170.95 to expand the scope of the petitioning procedure to include individuals convicted of "attempted murder under the natural and probable consequences doctrine .…" (Stats. 2021, ch. 551, § 2; Legis. Counsel's Dig., Sen. Bill No. 775 (2021-2022 Reg. Sess.).) Under the amended statute, if the petitioner has made a prima facie case for relief, the court "shall issue an order to show cause." (§ 1172.6, subd. (c).) Within 60 days after the order to show cause has issued, the trial court must then hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.…" (§ 1172.6, subd. (d)(1).)
Former section 1170.95 was renumbered as section 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) Hereafter, we refer only to section 1172.6.
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3).)
II. Standard of Review
In determining whether a trial court correctly denied a section 1172.6 petition following an evidentiary hearing, we review the factual findings for substantial evidence, and the application of those facts to the statute de novo. (People v. Hill (2024) 100 Cal.App.5th 1055, 1066; People v. Arnold (2023) 93 Cal.App.5th 376, 383.)
"In reviewing the trial court's findings for substantial evidence, we apply well-settled principles. 'We "'examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the necessary fact] beyond a reasonable doubt.'" [Citation.] 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.'" (People v. Oliver (2023) 90 Cal.App.5th 466, 480.) Reversal is not warranted unless "'"upon no hypothesis whatever is there sufficient substantial evidence to support [the trial court's ruling]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
III. Substantial Evidence Supports the Trial Court's Findings
The prosecution asserted the evidence showed appellant was guilty of murder beyond a reasonable doubt under section 189, subdivision (e)(3), as a major participant in the underlying felony and acted with reckless indifference to human life. As noted, Senate Bill 1437 added section 189, subdivision (e), limiting the circumstances under which a person may be convicted of felony murder: "A participant in the perpetration or attempted perpetration of a felony listed in [section 189,] subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (Id., subd. (e).)
Section 189, subdivision (e)(3), tracks the language of section 190.2, subdivision (d) (section 190.2(d)), which applies to the felony-murder special circumstance. Under section 190.2(d), a nonkiller who, "with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated" in section 190.2, subdivision (a), which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or life in prison. In 2015 and 2016, the Supreme Court provided guidance as to the meaning of section 190.2(d) in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Because the Legislature is presumed to know and act against the backdrop of existing case law (In re Greg F. (2012) 55 Cal.4th 393, 407), the language of section 189, subdivision (e)(3), as enacted by the Legislature in 2018, necessarily was intended to accord with the interpretation of section 190.2 articulated in Banks and Clark, as both opinions were issued at least two years before Senate Bill 1437 was signed into law. (In re Taylor (2019) 34 Cal.App.5th 543, 561 (Taylor) ["the standard under section 189, subdivision (e)(3) … is the same as the standard for finding a special circumstance under section 190.2(d), as the former provision expressly incorporates the latter"].)
A. The Enmund-Tison Continuum
In Banks, the California Supreme Court held that section 190.2(d) was designed to codify the holding in Tison v. Arizona (1987) 481 U.S. 137 (Tison), which articulates the constitutional limits on executing felony murderers who did not personally kill. (Banks, supra, 61 Cal.4th at p. 794.) Banks explained Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782 (Enmund), "collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions." (Banks, supra, at p. 794.) As such, section 190.2(d) (and, in turn, § 189, subd. (e)(3)), must be accorded the same meaning. (Banks, supra, at p. 794.)
At one end of the continuum is Enmund, where the defendant's culpability did not meet the constitutional minimum for the death penalty. (Enmund, supra, 458 U.S. at p. 801.) There, the defendant identified a robbery victim, planned the crime, and drove armed confederates to the home of the victims. (Id. at p. 784; id. at p. 803 (dis. opn. of O'Connor, J.).) The confederates shot and killed the robbery victims, and Enmund acted as a getaway driver and helped dispose of the weapons. (Id. at pp. 784-787.) The high court held the Eighth Amendment bars the death penalty for any felony-murder aider and abettor "who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (Enmund, supra, at p. 797.) "The intent to commit an armed robbery is insufficient; absent the further 'intention of participating in or facilitating a murder' ([Enmund, supra], at p. 798), a defendant who acts as 'the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape' (id. at p. 788) cannot constitutionally be sentenced to death." (Banks, supra, 61 Cal.4th at p. 799.) The high court reversed Enmund's death sentence as prohibited by the federal Constitution, concluding Enmund was a "'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.'" (Id. at p. 800.)
Tison lies at the other end of the continuum, where the defendants' conduct was deemed death-penalty eligible under the federal Constitution. In Tison, three brothers (Ricky, Raymond and Donald Tison) assisted their father Gary Tison (who had killed someone in a previous escape attempt) and his cellmate in breaking out of prison, bringing a large arsenal of weapons with them to the prison. (Tison, supra, 481 U.S. at pp. 139-140.) In the ensuing escape, "their car, already down to its spare tire, suffered another flat, so the five men agreed to flag down a passing motorist in order to steal a replacement car. Raymond waved down a family of four; the others then emerged from hiding and captured the family at gunpoint. Raymond and Donald drove the family into the desert in the Tisons' original car with the others following. Ricky and the cellmate removed the family's possessions from their car and transferred the Tison gang's possessions to it; Gary and his cellmate then killed all four family members. When the Tisons were later apprehended at a roadblock, Donald was killed and Gary escaped into the desert, only to die of exposure. [Citation.] Ricky and Raymond Tison and the cellmate were tried and sentenced to death. The trial court made findings that Ricky and Raymond's role in the series of crimes was '"very substantial"' and they could have foreseen their actions would '"create a grave risk of … death."'" (Banks, supra, 61 Cal.4th at pp. 799-800 [summarizing the facts of Tison].)
In Banks, guided by Tison and Enmund, the court considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant .…" (Banks, supra, 61 Cal.4th at p. 794.) There, Banks and two other men attempted to rob a medical marijuana dispensary. During the attempted robbery, shots were fired and the three fled. When a security guard attempted to stop them, Banks shot him twice, killing him. (Id. at p. 795.) Matthews was acting as the getaway driver, driving the three to the dispensary, waiting for them, and then picking up two of them after the failed robbery and driving them away. (Id. at p. 805.) In comparing and contrasting the factors the United States Supreme Court had considered in Tison and Enmund, our high court concluded Matthews was not a major participant in the robbery: there was no evidence of Matthews's role in the planning or procuring of weapons; there was no evidence any of them had previously committed murder, attempted murder, or any other violent crime; Matthews was not present when the shooting took place, and there was no evidence he instigated or could have prevented the shooting. (Banks, supra, at p. 805.)
The court further found Matthews did not act with reckless indifference to human life: although Matthews knew he was participating in an armed robbery, there was no evidence he "knew his own actions would involve a grave risk of death. There was no evidence Matthews intended to kill or, unlike the Tisons, knowingly conspired with accomplices known to have killed before. Instead, as in Enmund, Banks's killing of [the security guard] was apparently a spontaneous response to armed resistance from the victim." (Banks, supra, 61 Cal.4th at p. 807.)
The California Supreme Court expanded its discussion of major participant and reckless indifference to life in Clark. There, Clark was involved in the attempted robbery of a computer store. Clark "was the mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime." (Clark, supra, 63 Cal.4th at p. 612.) During the robbery, one of Clark's confederates, shot and killed the mother of a store employee who arrived at the store to pick up her son. At the time of the shooting, Clark was not at the store, but he drove to the location shortly thereafter and fled when he saw a woman lying on the ground, the police approaching, and the shooter fleeing the scene. (Id. at pp. 537-542, 612-613.)
Clark was convicted of first degree felony murder, and true findings were made on the robbery-murder and burglary-murder special circumstance allegations based on his aiding and abetting liability in the shooting. (Clark, supra, 63 Cal.4th at pp. 608-610.) To decide whether Clark was a major participant in the robbery, the court reviewed the factors discussed in Banks, but did not decide whether Clark was a major participant because it held the evidence was insufficient to show reckless indifference to life. (Clark, supra, at p. 614.)
In reaching this conclusion, the court expanded on factors relevant to the reckless indifference to life analysis: there was only one gun at the scene of the killing, it was not carried by Clark and it was loaded with only one bullet; as Clark was not present at the scene, there was no evidence he had an opportunity to intervene to prevent the killing; Clark's departure was ambiguous as to his mental state concerning the victim's death, and Clark knew police were arriving to aid the victim; the period of interaction between the perpetrators and the victims was designed to be limited; no evidence was presented that Clark knew the shooter had a propensity for violence, and, as he was not at the scene, he had no opportunity to observe the shooter's conduct that might have indicated the shooter was likely to engage in lethal violence; and, finally, there was evidence Clark had taken some steps to minimize the risk of violence during the robbery-the robbery was undertaken after closing time, there were not supposed to be any bullets in the gun, and the gun was actually loaded with only one bullet. (Clark, supra, 63 Cal.App.4th at pp. 618-623.)
In In re Scoggins (2020) 9 Cal.5th 667 (Scoggins), our high court again revisited section 190.2(d). There, the defendant planned an unarmed robbery and assault of a man (Wilson) who had swindled the defendant out of money. (Scoggins, supra, at p. 671.) Pursuant to the plan, two of Scoggins's friends (Powell and Howard) would hide inside a van, and then they would jump out and assault Wilson. (Ibid.) Scoggins was not going to be present at the scene or participate in the attack, and there was no evidence the plan involved the use of weapons. (Ibid.) In executing the plan, however, Powell pulled out a gun and fired several shots and killed Wilson; Powell and Howard got into a confederate's van and drove away. (Id. at p. 672.) Scoggins, meanwhile, waited at a gas station nearby, but exchanged numerous phone calls with Powell and Howard in the hour before the shooting. (Ibid.) After the shooting, Scoggins walked over to Wilson, spoke with bystanders and participated in a police interview at the scene. (Ibid.)
The court held that Scoggins did not act with reckless indifference to human life: Scoggins did not use a gun, nor did he know one would be used; his plan did not involve shooting Wilson; he was not physically present at the crime scene and was not in a position to restrain Powell once the meeting with Wilson began; Scoggins's view of the scene was obstructed, so he was unaware in real time that Powell was deviating from the original plan; although he was in contact with Powell and Howard by phone, he lacked control over their actions once they arrived on the crime scene, especially given how quickly the shooting occurred; there was no evidence Scoggins instructed his confederates to kill Wilson, or that he directed them to deviate from the plan once they arrived at the crime scene; Scoggins's return to the scene after the shooting reflected ambiguity as to his mindset-it could be inferred that Scoggins walked back to the crime scene because he was unsurprised by the shooting; alternatively, he might have intended to check on Wilson and render aid; the duration of the interaction between the perpetrators and the victim was very limited; and there was no evidence Scoggins knew that Powell or Howard was likely to use lethal force. (Scoggins, supra, at pp. 680-681.)
Pursuant to the framework articulated in Banks, Clark and Scoggins, and their application of the Enmund-Tison continuum, we consider whether there is substantial evidence to support the trial court's finding that appellant was a major participant who acted with reckless indifference to human life.
B. Analysis
Appellant contends the evidence is insufficient to show he acted with reckless indifference to human life. Appellant makes no argument regarding his status as a major participant, but does not concede the issue, and disputes several factual findings the trial court made to underpin its conclusion as to appellant's major participation and his recklessly indifferent mental state. As such, we consider both prongs of the trial court's analysis.
As an initial matter, we reject appellant's contention that because this was a cold-record case where no live testimony was given and the People bore the burden of proof beyond a reasonable doubt, factual ambiguities should be construed in appellant's favor and not in the light most favorable to the judgment. Similar arguments have been rejected by multiple courts (see, e.g., People v. Njoku (2023) 95 Cal.App.5th 27, 42; People v. Werntz (2023) 90 Cal.App.5th 1093, 1109, review granted Aug. 9, 2023, S280278; People v. Oliver, supra, 90 Cal.App.5th at p. 480; People v. Sifunetes (2022) 83 Cal.App.5th 217, 232-233; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591; People v. Clements (2022) 75 Cal.App.5th 276, 283, 302.) We agree with these courts: the substantial evidence standard of review applies to the trial court's factual findings. Under this familiar standard, we do not resolve factual ambiguities or conflicts in the evidence against the judgment. Instead, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (People v. Hill, supra, 100 Cal.App.5th at p. 1066.) "[W]hether the prosecutor relied upon direct or circumstantial evidence, if the trier of fact's determination is supported, reversal is not warranted, even where '"'the circumstances might also reasonably be reconciled with a contrary finding.'"' ([People v.] Vargas [(2020)] 9 Cal.5th [793,] 820, quoting [People v.] Rivera [(2019)] 7 Cal.5th [306,] 331.)" (Ibid.)
1. 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 [citations]."'" (Clark, supra, 63 Cal.4th at p. 611.) To assist in answering this question, Banks articulated the following considerations: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Ibid.)
Considering the record in the light most favorable to the judgment, the factual findings supported by substantial evidence establish appellant's role as a major participant under the totality of the circumstances. On the first Banks factor-the defendant's role in planning the crime-there is substantial evidence to support the trial court's finding that appellant played a primary role. He was the one who first surveilled the check cashing business and called Sherman with the idea to rob it. Appellant then proceeded to observe the business four or five different times, with Sherman accompanying him on at least two of those occasions, and they planned together how they would steal a car and arm themselves because they knew the guard was armed; they also planned that appellant would confront the guard during the robbery because he was larger than Sherman.
As to the second factor, and appellant's role in supplying or using lethal weapons-appellant and Sherman agreed they both needed weapons and each procured their own guns. (Banks, supra, 61 Cal.4th at p. 803.) Appellant testified he could not remember whether he gave Sherman any ammunition, but acknowledged he had 9mm ammunition from a Glock he had owned previously, and appellant had 9mm bullets in his jacket when he was searched by police in September 1991, several months after the robbery. This combination of evidence is not sufficient to support the trial court's finding appellant supplied the ammunition for Sherman's gun. (See People v. Grant (2020) 57 Cal.App.5th 323, 330 [factual inferences must be drawn from evidence rather than from mere speculation as to probabilities without evidence].) However, appellant nevertheless knew Sherman was armed with a loaded gun, as they had planned. Appellant himself was armed and confronted the guard with his weapon drawn, which precipitated the struggle, appellant called to Sherman for help, which resulted in Sherman shooting and killing the guard.
With regard to the third factor and the particular dangers posed by the nature of the crime, the weapons used, or past experience or conduct of the other participants (Banks, supra, 61 Cal.4th at p. 811), the robbery plan here presented a grave risk of death because appellant knew every person involved in the robbery (the victim and both assailants) would be armed. (Id. at pp. 803, 805.) While appellant had been involved in the robbery of an armored truck at a Home Depot store, which apparently did not result in any violence, there was little testimony about whether the guard involved in that robbery was confronted under similar circumstances and whether the robbery was committed with multiple weapons. Here, although there is no evidence Sherman had any type of violent background, there was an obviously elevated risk of death beyond that generally attendant to any violent felony because of the multiple weapons that all involved would be carrying, including the victim. Moreover, the robbery was planned to occur during business hours when customers and employees would be present. This posed a heightened degree of risk the guard would resist, and because both Sherman and appellant were armed, there was a greater likelihood that any resistance would be met with lethal force.
The trial court noted that appellant had planned to commit the crime with two others, but then had to manage with one when the third dropped out. Appellant argues he initially planned to do the robbery with two people, while another person would act as the dedicated getaway driver; the lack of a getaway driver was not material to the guard's unexpected resistance. Appellant does not support this assertion with any citation to the record, and we find evidence only that appellant had planned with Robinson and Sherman to commit the crime, but Robinson dropped out around April 1, 1991. Appellant and Sherman then planned to commit the robbery two weeks later without Robinson. Yet, absent evidence of what role Robinson was to play in the robbery, it is not clear how his absence would increase or decrease the risk of lethal violence, and we do not find this fact to have any significant or material bearing on the weight of this factor.
Considering the fourth factor-and appellant's presence at the scene (Banks, supra, 61 Cal.4th at p. 803), there is substantial evidence that appellant was an integral part of the underlying crime and the resulting murder: he confronted the guard at the scene of the murder; he drew his weapon on the guard and tried to take the guard's gun; and, when that failed and he was in a struggle where his gun discharged close to his face, appellant called for help from Sherman whom he knew to be armed. His own actions precipitated Sherman shooting the guard. This factor strongly weighs toward finding appellant acted as a major participant.
Notably, appellant fled the scene with Sherman when he realized the guard had been shot, rendering no aid. (Banks, supra, 61 Cal.4th at p. 803 [considering what the defendant did after lethal force was used].) But, as the trial court found, he managed to grab the money bag to complete the robbery. At Sherman's preliminary hearing, appellant testified Sherman grabbed the money bag, but on cross-examination he was impeached with his prior inconsistent statement to police that he had grabbed the money bag. Appellant explained he had made a mistake in telling police that, but the trial court obviously did not credit his explanation.
Appellant argues the trial court's finding that appellant grabbed the money bag is unsupported by substantial evidence and cites a portion of the preliminary hearing where the court sustained the prosecutor's objection to a defense question about appellant grabbing the money bag. However, a few questions later, defense counsel questioned appellant about his prior inconsistent statement to a police detective describing how he had kicked the bag in the air, caught it and continued to run out the door. The trial court here was entitled to credit as true appellant's prior inconsistent statement to the detective. (Evid. Code, §§ 770, 1235 [prior inconsistent statement of a witness may be used for the truth of the matter stated if the statement is otherwise admissible under the conditions specified in Evid. Code, § 770, which requires the witness to have an opportunity to explain or deny the statement, or where the witness has not been excused from giving further testimony in the action].)
Appellant was the prosecutor's (Gary Hoff) witness at Sherman's preliminary examination hearing on January 16, 1992-appellant was cross-examined on February 6, 1992, by Sherman's counsel, Don Clay.
In sum, substantial evidence supports the trial court's factual findings on several factors, which, under the totality of the circumstances, substantiates the conclusion appellant was a major participant. He was the primary planner of the robbery, and the plan significantly elevated the risk of resistance because the guard was known to be armed and each of the robbery participants thus armed themselves. Appellant was not merely waiting in a car as a getaway driver, he was an active participant on the scene who confronted the guard with his weapon drawn; and appellant was the one who called for help from Sherman, which precipitated Sherman coming to his aid and shooting the guard. After the shooting, appellant rendered no aid to the victim, grabbed the money bag, and fled; appellant then drove Sherman back to where their own cars were parked so they could make their escape. In short, other than firing the shots that killed the guard, appellant participated fully in planning and executing the crime. These factors support the conclusion appellant acted as a major participant.
C. Reckless Indifference
We turn next to consider whether appellant acted with the requisite mental state, examining the record for "sufficient evidence of '"'reasonable, credible, and of solid value'"' to 'support a finding beyond a reasonable doubt'" that appellant acted with reckless indifference. (Clark, supra, 63 Cal.4th at p. 618.)
To determine whether a defendant acted with reckless indifference to human life, we "look to whether a defendant has '"knowingly engag[ed] in criminal activities known to carry a grave risk of death."'" (Banks, supra, 61 Cal.4th at p. 801.) "The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Ibid.) Although "'there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life'" (Clark, supra, 63 Cal.4th at p. 615, quoting Tison, supra, 481 U.S. at p. 158, fn. 12), such as "'the manufacture and planting of a live bomb,'" armed robbery is not among them (Clark, supra, at p. 615, quoting Banks, supra, at p. 810, fn. 9). "Reckless indifference 'encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.'" (Scoggins, supra, 9 Cal.5th at pp. 676- 677, quoting Clark, supra, at p. 617.)
"Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, '[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.' [Citations.] As to the objective element, '"[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."' [Citations.] 'Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life; 'only knowingly creating a "grave risk of death"' satisfies the statutory requirement." (Scoggins, supra, 9 Cal.5th at p. 677.)
In Clark, the court articulated the following considerations for determining whether a defendant acted with reckless indifference to human life: "Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (Scoggins, supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark, supra, 63 Cal.4th at pp. 618-623].)
The reckless indifference considerations "'significantly overlap'" with the major participant considerations, "'for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615.) As with the major participant considerations, "'[n]o one of [the reckless indifference] considerations is necessary, nor is any one of them necessarily sufficient.'" (Id. at p. 618.) "We analyze the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life." (Scoggins, supra, 9 Cal.5th at p. 677.)
Despite appellant's arguments to the contrary, we are not persuaded that the reckless indifference finding is unsupported under the totality of the circumstances presented here. Turning to the first Clark factor, and whether appellant used or knew that a gun would be used during the felony, appellant did not supply a weapon to Sherman, and their plan did not involve shooting the guard. Nonetheless, appellant knew the guard was armed, so appellant deemed it necessary that he confront the guard with a loaded weapon, and he knew and had planned that Sherman would also carry a loaded weapon. (See Clark, supra, 63 Cal.4th at pp. 617-618 [bringing weapons to the scene of the crime can weigh in favor of a finding of reckless indifference to life when combined with other factors].)
Second, we consider whether appellant was physically present at the crime scene and whether he had opportunities to restrain the crime or aid the victim. (Clark, supra, 63 Cal.4th at p. 619.) Physical presence may be highly relevant to a defendant's culpability because it could demonstrate the murder was the culmination or a foreseeable result of several intermediate steps-it may show the defendant observed his cohorts and that he shared in their actions and mental state; and it may show the defendant had an opportunity to act to restrain his cohorts or aid the victim after the shooting. (Ibid.) It is undisputed appellant was present at the scene of the murder and in very close proximity to the shooting, unlike the defendants in Enmund, Banks, Clark and Scoggins. Indeed, appellant was physically present "during the entire sequence of events culminating in the murder[]." (Clark, supra, at p. 619.)
Relevant to this factor, is whether appellant acted "'as a restraining influence on murderous cohorts.'" (Clark, supra, 63 Cal.4th at p. 619.) "'If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.'" (Ibid.) Appellant actively participated and was "willingly involved in the violent manner in which the particular offense [was] committed." (Banks, supra, 61 Cal.4th at p. 801.) Appellant concluded that he and Sherman both needed loaded weapons for the robbery because the guard was armed, and they planned that appellant, as the larger of two, would confront the guard. This is sufficient evidence to support an inference appellant subjectively knew and anticipated both the guard's resistance (by planning the larger man would confront the guard) and the potential need to meet that resistance with lethal force (by planning that Sherman would also be armed). (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298 [under substantial evidence review, all reasonable inferences are drawn in support of the judgment].)
In the face of the guard's resistance and appellant's struggle with the guard over his gun causing the weapon to fire toward the ceiling, appellant called to Sherman for help, which immediately precipitated Sherman coming over and shooting the guard. (See In re Parrish (2020) 58 Cal.App.5th 539, 544 [the defendant heightened the risk of the armed robbery by telling those with guns the store owner was pushing a police alarm-an act that immediately preceded and apparently prompted the deadly shot; the defendant took no steps to reduce risk or alleviate harm].)
As the trial court pointed out, by calling for assistance from his armed cohort during a struggle with the victim over appellant's gun, it was entirely predictable Sherman would shoot the guard. Indeed, the fact they planned both to be armed with loaded guns supports the inference they had prepared for resistance during the confrontation that would require this kind of backup with a second gun. Appellant argues the physical closeness of the struggle between himself and the guard points away from an inference appellant anticipated Sherman would shoot because that would endanger appellant in the process. We agree this might be an inference that could be drawn, but there was sufficient evidence for the trial court's opposing view of the evidence. Appellant may not have specifically intended the death of the guard, but appellant's call for help was made with knowledge that Sherman had a loaded weapon and, given the potentially deadly struggle appellant was currently engaged in when he called for help, it is reasonable to infer appellant understood Sherman was likely to use his gun against the guard as the best method to quickly end the struggle. Indeed, there was little other quick aid Sherman could have offered appellant given the struggle over the gun. And, because Sherman was not engaged in the struggle with the guard, he was positioned to shoot the guard with precision-which he did.
Additionally, appellant did not stop his struggle with the guard, as the trial court observed. Appellant argues this is an unreasonable interpretation of the evidence because appellant felt a bullet graze his face and thought he had been shot; his struggle with the guard was "purely reflexive, defensive and necessary." We disagree. There was evidence to infer appellant could have ended his struggle before the gun went off-he did not have to wrestle initially, or continue to struggle, with the guard over the gun. Not only did he not cease his quest to free the guard's grip on his gun, but he continued to wrestle with the guard and called for help after his gun discharged and appellant feared he had been shot.
Relevant too is appellant's decision not to aid the guard after knowing the guard had been shot, and instead fled the scene. As discussed in Scoggins, "[a] defendant's actions after the shooting may also bear on the defendant's mental state." (Scoggins, supra, 9 Cal.5th at p. 679.) Here, the shooting took place in a business during regular hours with at least one employee witness who could aid the victim (i.e., the clerk who gave appellant the Western Union form to fill out), yet appellant left without knowing how badly the guard was injured; and, despite having a cellular phone, he did not use it to call for assistance, either. He also managed to pick up the money bag on his way out. Under these circumstances, there was evidence to reasonably infer appellant desired to flee as quickly as possible without regard for the victim's welfare.
Appellant argues a person under these circumstances is almost always going to flee: "To treat something which almost no robbery participant ever does [i.e., aid the victim] as the equivalent of 'pulling the trigger' would amount to a rule of near-automatic felony-murder liability for any participant at the crime scene."
Yet, the failure to aid a victim does not automatically support a reckless indifference finding, let alone necessarily conclusively establish reckless indifference. Instead, that conduct must be considered in light of the surrounding facts to determine whether an inference could be drawn about the defendant's mental state and how strongly (or not) that inference, considered among all the other factors, supports a reckless indifference finding. (Clark, supra, 63 Cal.4th at p. 618 ["'[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient'"].)
Under certain circumstances, a defendant's failure to aid the victim may say very little about the defendant's mental state. For example, in Clark, the defendant was waiting across a parking lot for his robbery accomplice when the accomplice shot a victim. (Clark, supra, 63 Cal.4th at pp. 537, 619-620.) When the defendant drove into the scene of the shooting immediately afterward, a patrol car was also approaching. (Id. at p. 620.) When the shooter-accomplice tried to get into the defendant's vehicle, the defendant drove away. (Id. at. pp. 537, 620.) The high court explained the defendant's failure to help the shooter enter the car could be interpreted "either as [the] defendant's rejection of [the shooter's] actions in committing the shooting or as [the] defendant's desire to flee the scene as quickly as possible, without regard for [the shooter's] welfare or that of the shooting victim." (Id. at p. 620.) The court reasoned that unlike in Tison, the defendant would have known that help in the form of police intervention was arriving; yet, given the defendant's absence from the scene of the killing "and the ambiguous circumstances surrounding his hasty departure … [it was] difficult to infer his frame of mind concerning [the victim's] death." (Ibid.)
Less ambiguous circumstances, like those in Tison, do support an inference of a recklessly indifferent state of mind, especially in concert with the other factors. There, the Tison brothers failed to render aid to the victims despite being present when the victims were shot, and knowing there was little help available to the victims and they were in no position to summon it-instead, the brothers aided the shooters in escaping. (Tison, supra, 481 U.S. at pp. 151-152.) Here, on balance, although the circumstances may not give rise to a particularly strong inference of a recklessly indifferent mindset akin to Tison, they are less ambiguous than the circumstances in Clark where the defendant was not directly on scene when the victim was shot and his flight from the scene occurred at the same time a patrol car was arriving. When considered with other factors, this factor does lend some support to a reckless indifference finding.
Third, Clark explained that courts "have looked to whether a murder came at the end of a prolonged period of restraint of the victims by [the] defendant." (Clark, supra, 63 Cal.4th at p. 620, fn. omitted.) "Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder." (Ibid.) This shooting did not involve a prolonged period of restraint like that at issue in Tison, and this factor is not supportive of a finding of reckless indifference. The trial court's reference to the lengthy period of planning does not bear on appellant's state of mind in the context of this factor.
Fourth, "[a] defendant's willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a 'grave risk of death.'" (Clark, supra, 63 Cal.4th at p. 621.) Here, there was no evidence appellant knew that Sherman had any propensity or reputation for violence. (Ibid. [the petitioner did not act with reckless indifference to human life, in part, because "no evidence was presented at trial that [the confederate] was known to have a propensity for violence, let alone evidence indicating that [the] defendant was aware of such a propensity"]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025 [finding "'significant'" the lack of evidence that the petitioner knew of his confederates' "violent propensities"].) Appellant and Sherman had been involved in prior robberies, and there is no evidence anyone was shot or hurt. This factor is neutral with regard to appellant's mental state.
The final Clark factor, the defendant's efforts to minimize the risks of violence during the felony, is a factor that mitigates culpability. (See Clark, supra, 63 Cal.4th at p. 622.) We find no evidence appellant took any steps to minimize the risks of violence. Appellant argues the fact that he did a significant amount of planning shows he was trying to minimize the risks because he testified that if the robbery was done right, no one would be hurt. Yet, the trial court was not obligated to draw that inference from appellant's planning efforts. It was just as reasonable to infer appellant took the planning efforts he did to ensure they could accomplish the robbery and escape afterward. (See People v. Jones (1990) 51 Cal.3d 294, 314 [in determining whether there is substantial evidence, appellate court does not draw factual inferences contrary to the judgment].) In fact, the plan to confront an armed guard with both appellant and Sherman carrying loaded firearms inside the business at a time when it was open to customers posed obvious and heightened risks of lethal violence. As the trial court noted, appellant's plan ensured that if events went awry, appellant would "have a second gunman ready to take whatever action was necessary to complete the crime, save [appellant], or neutralize any unforeseen threat, including killing a surprised and unyielding armed guard."
Considering the foregoing, there are several key factors, supported by substantial evidence, that weigh in favor of a finding of reckless indifference. Appellant spearheaded planning the crime and did the bulk of the surveillance to make the plans. He and Sherman knew the guard was armed, and, as a result, planned that they would both be armed with loaded weapons. They also planned that appellant, who was larger, would confront the guard. These facts indicate appellant subjectively understood the heightened risk the guard would resist-the larger person would confront the guard, and Sherman would act as armed backup. Appellant did not stay in the car-he was present on the scene of the murder the entire time; he confronted the guard with his gun drawn, and called Sherman over while struggling with the guard knowing Sherman was armed. Then, despite knowing Sherman had shot the guard, appellant fled without rendering any aid, managed to grab the money bag on his way out, and drove them away from the scene. While appellant's conduct was not as egregious as that of the Tison brothers, the totality of the circumstances shows a mindset recklessly indifferent to the life of the guard.
D. Conclusion
The trial court's material factual findings were supported by substantial evidence and, viewing the totality of the circumstances, the relevant factors weighed in favor of the conclusion appellant was a major participant who acted with reckless indifference to human life. It was appellant's plan to rob an armed guard during business hours at gunpoint with a second armed cohort as backup-a plan that significantly increased the likelihood of resistance and the need to respond with lethal force.
Appellant participated fully in executing the plan-he was present on the scene for the whole course of the crime, knowing everyone involved (the victim and both assailants) were armed; he confronted the guard with his gun drawn, and, knowing Sherman was armed, he called for Sherman's help when a struggle ensued, which precipitated the shooting; he did not aid the victim afterwards, and he did not do anything to minimize the risks of the crime. The trial court's findings underpinning its conclusion that appellant was a major participant who acted with reckless indifference to human life was supported by substantial evidence.
Appellant asserts that because the trial court's findings are unsupported by substantial evidence, the trial court violated his due process rights under the Fourteenth Amendment of the federal Constitution. Assuming without deciding whether the Fourteenth Amendment could be implicated on this basis, because we conclude substantial evidence supported the trial court's findings that appellant was a material participant in the robbery who acted with reckless indifference to life, the denial of the petition did not violate due process.
DISPOSITION
The court's April 5, 2022, order denying appellant's section 1172.6 petition is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J., DeSANTOS, J.