Opinion
A168406
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DONALD PAUL PARKER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR6547991)
STREETER, Acting P. J.
This is defendant Donald Paul Parker's third appeal. In August 2015, a jury convicted Parker of first degree murder (Pen. Code, § 187, subd. (a))and found true the special-circumstance allegation that the murder occurred while Parker was engaged in robbery in which he was a major participant and acted with reckless indifference to human life (§ 190.2, subd. (a)(17)). This court affirmed the convictions of Parker and of David Espinal-the actual killer. (People v. Espinal (Feb. 20, 2019, A146411 &A147074) [nonpub. opn.] (Parker I).)
All statutory references are to the Penal Code.
Parker later sought resentencing under section 1170.95 (now section 1172.6). The trial court summarily denied the petition, concluding he failed to make a prima facie showing of eligibility for relief. Parker appealed, and we reversed and remanded, directing the court to issue an order to show cause and conduct an evidentiary hearing. (People v. Parker (Oct. 15, 2020, A159440) [nonpub. opn.] (Parker II).)
In 2022, former section 1170.95 was renumbered to section 1172.6 without substantive change. (People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3.)
On remand, the court conducted a five-day evidentiary hearing. In a comprehensive written ruling, the court denied the petition, concluding beyond a reasonable doubt that Parker was a" 'major participant'" in the armed robbery who acted with" 'reckless indifference to human life'" and denied the petition. Parker appeals from that order, claiming there is insufficient evidence that he consciously disregarded a significant risk by participating in the robbery of the victim.
We affirm.
I. BACKGROUND
A. Parker's Trial and Conviction
1. The Robbery and Murder
Our prior opinions describe how Parker and Espinal lured the victim, Max Weinreb, to rob him, on the pretext of purchasing drugs from him. Parker asked Weinreb to sell him 10 pounds of marijuana, and Weinreb called a man named Noe who could supply that amount. Noe testified that on the morning of August 31, 2014, Weinreb called and said he wanted to buy 10 pounds of marijuana. (Parker I, supra, A146411 &A147074.) Around 5:00 p.m. that afternoon, Noe brought two pounds of marijuana to a park where he met with Weinreb and Parker. After Parker approved the quality of the marijuana, Weinreb told Noe to pick up the remaining quantity and bring it to him. (Ibid.)
Noe retrieved the rest of the marijuana and returned to meet Weinreb and Parker. He was concerned, however, because, as he was leaving the park, he noticed what looked like the outline of a gun in Parker's pants and the situation" 'didn't feel comfortable'" to him. (Parker I, supra, A146411 &A147074.) He picked up two friends on his way back because he thought that having more people present would ensure that" 'nothing would happen.'" (Ibid.)
Noe met Weinreb and Parker at a store and they caravanned to a motel room in Santa Rosa that Parker had rented. (Parker I, supra, A146411 &A147074.) On the way there, Noe called Weinreb and told him that Parker had a gun. Weinreb was" 'a little bit concerned'" but responded," 'we'll just play it by ear.'" (Ibid.)
Once parked, Weinreb told Noe that Parker's" 'boy is going to check it out,'" in reference to the marijuana. (Parker I, supra, A146411 &A147074.) Noe gave Weinreb a one-pound bag of marijuana, wrapped in a towel, to show Parker's friend. Weinreb took the marijuana to a motel room with Parker. A few minutes later, Weinreb called Noe to confirm that the sale was on. When Noe expressed concern about the deal, Weinreb told him," 'It's all good. I'm strapped up bro,'" and flashed a gun in a hip holster. (Ibid.) Weinreb and Noe took the ten-pound bag of marijuana to the motel room. (Ibid.)
Noe was nervous and gradually inched towards the door. He noticed Parker looking at his waist and thought Parker was checking him for weapons. Then, Parker opened the curtains and the window. When Weinreb told Espinal to check the rest of the marijuana and" 'give us the money,'" Espinal looked at Parker and said," 'You ready, bro?'" Parker replied," 'Yeah, yeah, it's all good. Just give him the money.'" (Parker I, supra, A146411 &A147074.) Espinal then lifted his shirt and reached his right hand into his waistband. Fearing they were going to be robbed, Noe screamed and ran out of the motel room. He heard three gunshots, and later returned to find Weinreb's body. Noe flagged down a police officer, shouting that Weinreb had been shot and the shooters," 'two Black guys had left in a red Charger.'" (Ibid.)
In the room, a firearm was found under Weinreb's right leg and a roll of duct tape was found under a pillow on one of the beds. Subsequent testing revealed Parker's fingerprint on the inside of the duct tape roll. (Parker I, supra, A146411 &A147074.)
That evening two African-American men in a red Dodge Charger led police on a high speed chase before evading arrest. Defendants were identified and arrested within weeks. (Parker I, supra, A146411 &A147074.)
Espinal testified at trial. He admitted he shot Weinreb but claimed to have done so in self-defense after Noe's scream led Weinreb to try to draw his own gun. Espinal described how, after the shooting, he and Parker leapt out of the window with the bag of marijuana, ran to their car, and fled. He claimed that he bought a roll of duct tape the morning of the shooting to seal the bags of marijuana. (Parker I, supra, A146411 &A147074.)
Detective Patrick Albini was qualified as an expert on marijuana cultivation and narcotics sales. He testified that in his many years as a narcotics detective he had" 'never come across a bag of marijuana sealed with duct tape.'" (Parker I, supra, A146411 &A147074.) He also testified that the motel was known to be a common location for drug deals and that he had previously investigated a" 'marijuana ripoff'" that occurred in a hotel room. (Ibid.)
2. Parker's Prior Offenses
A Sonoma County deputy sheriff testified that on February 14, 2006, he was dispatched to a home invasion robbery in Santa Rosa. When he arrived, the victim had blood on his face and clothing, and there were three wounds on his scalp. The victim also had duct tape stuck in his hair. Physical and DNA evidence later connected Parker to the robbery. (Parker I, supra, A146411 &A147074.)
Jameson Bonner testified that in 2008 and 2009, he sold marijuana and cocaine in Santa Rosa. In January 2009, he was robbed at his house by Parker. Bonner had shown marijuana to a potential customer but the sale did not go through. About 45 minutes later, Parker arrived at his house with a gun. He and an accomplice assaulted Bonner and demanded the marijuana. When Bonner was unable to locate the drugs in his roommate's room, Parker and his associate beat him until he lost consciousness. (Parker I, supra, A146411 &A147074.)
Bonner also described being robbed by Parker at his house in July 2008. Parker arrived at Bonner's house about an hour after Bonner had purchased an ounce of marijuana. Parker searched Bonner, taking his wallet and the marijuana that Bonner had just purchased. Parker then ordered Bonner to get into a bathtub where Parker and his accomplice beat him. (Parker I, supra, A146411 &A147074.)
3. Verdict and Sentencing
In August 2015, the jury found Espinal and Parker guilty of first degree murder (§ 187, subd. (a)) and found true the special-circumstance allegation that the murder occurred while Parker was engaged in a robbery in which he was a major participant and acted with reckless indifference to human life (§ 190.2, subd. (a)(17)). The court sentenced Parker (and Espinal) to life in prison without possibility of parole, and they appealed.
B. First Appeal
We affirmed the judgment, holding, among other things, that substantial evidence supported the special-circumstance finding against Parker. We concluded the "evidence established that he arranged the transaction and there was evidence from which a jury could conclude that Parker was armed and knew Espinal was also armed." (Parker I, supra, A146411 &A147074.) In analyzing the sufficiency of the evidence, we relied on factors that the Supreme Court had deemed relevant in two recent opinions-one defining a "major participant" that was issued before the verdict in this case (People v. Banks (2015) 61 Cal.4th 788 (Banks)), and one defining "reckless indifference" that was decided after Parker's trial (People v. Clark (2016) 63 Cal.4th 522 (Clark)). We found substantial evidence that Parker was a "major participant" as Banks defined the term, and we concluded that, "[w]hile not all of [the factors identified in Clark] tend to reflect that Parker was indifferent to whether Weinreb lived or died, several do provide substantial support for the jury's finding ...." (Parker I, supra, A146411 &A147074.)
C. Summary Denial of Parker's Petition for Resentencing
Parker subsequently petitioned for resentencing under section 1170.95. The trial court issued an order appointing counsel and directing the district attorney to file a response. (Parker II, supra, A159440.) After receiving that response and a reply by Parker, including a declaration describing how he would testify at an evidentiary hearing, the court denied the petition. It stated its reasons as follows:" '[T]he court has looked at the file, has looked at the Court of Appeal decision, and [has found that] the following facts are clear: One, Parker was found guilty of first-degree murder on a felony murder theory. That is the only theory . . . presented at trial. [¶] Two, the jury was instructed with a modified version of . . .
CALCRIM 703 that incorporated factors identified by [Banks]. [¶] Three, the jury found true a . . . section 190.2[, subdivision (a)(17)] allegation and found that [Parker] was a "major participant" who acted with "reckless indifference to human life." [¶] And, four, in [Parker]'s direct appeal, the Court of Appeal expressly found that under the standards set forth in [Banks] and [Clark, ] substantial evidence supported the jury's finding that [Parker] was a major participant who acted with reckless indifference to human life. [¶] The Court of Appeal has already concluded that Parker's jury[, in finding] the special circumstance allegation true[,] necessarily found true the very element that [the law] would now require to be proved for the murder charge itself. (See also People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411.) [¶] Under these circumstances, the court finds that [Parker] is ineligible for any [section] 1170.95 relief.'" (Parker II, supra, A159440.) Parker appealed from the summary denial of his petition.
D. The Second Appeal
We concluded the trial court erred in relying on the jury's finding to summarily deny the petition because the jury made that finding before our Supreme Court clarified and narrowed the meaning of "reckless indifference" in Clark, supra, 63 Cal.4th 522. (Parker II, supra, A159440.) We explained the jury's pre-Clark finding should not foreclose the possibility that, under the clarified standard and upon consideration of additional evidence, the trier of fact would find that Parker did not act with reckless indifference, as defined in Clark. (Ibid.)
However, the same was not true with respect to whether Parker was a "major participant." A year before Clark, while Parker's trial was underway, the Supreme Court issued Banks, supra, 61 Cal.4th 788, which clarified and narrowed the meaning of "major participant." The trial court was able to instruct the jury with a version of CALCRIM No. 703 that was modified to include the factors that Banks deems relevant to the majorparticipant inquiry. Given the use of this modified instruction, we did not question that the jury's finding on the issue of major participation precluded Parker from relying on that issue to show that he could not be convicted of murder under current law. That issue was determined against him based on the criteria established by Banks, and we assumed section 1170.95 did not allow him to relitigate that issue. (Parker II, supra, A159440.)
E. The Evidentiary Hearing
The evidence introduced during the hearing was comprised of 1) the transcripts and exhibits from Parker's jury trial; 2) Parker's 2019 declaration in support of his resentencing petition, 3) Parker's pre-trial statements to police, and 4) Parker's own testimony regarding the underlying offense.
In his pre-trial statements to police, Parker indicated he knew Weinreb was suspicious of meeting new people during drug deals. Parker also said he knew Weinreb carried a gun.
In his 2019 declaration, Parker admitted he had intended to participate in an armed robbery, but denied having agreed with Espinal to kill Weinreb when they stole his marijuana. Parker thought Weinreb would comply when he saw Espinal's gun, rather than resist. Parker said he jumped out of the hotel room window when Espinal and Weinreb reached for their waistbands. He helped Espinal take Weinreb's bag of marijuana.
Parker said he did not know Weinreb had been shot until he and Espinal were in the getaway car. Parker did not know the extent of Weinreb's injuries; he assumed Noe would render aid to Weinreb.
At the evidentiary hearing, Parker denied he ever planned to commit an armed robbery. Originally, Parker and Espinal planned to conduct a" 'con robbery"" of Weinreb, wherein the two would accept Weinreb's marijuana to sell to another person and later claim that the unnamed buyer had stolen the marijuana from them. However, due to Weinreb's insistence on the location for the transaction, Parker and Espinal changed their plan and instead decided to overpower Weinreb and take his marijuana by force. Parker testified he was not armed during the robbery and that Noe mistook what he had in his pocket, which was a box of cigars.
Parker told Espinal not to bring a gun to the robbery; he was unaware that Espinal actually brought a firearm to the robbery. Parker told Espinal to bring money to the transaction and eventually instructed Espinal to pay Weinreb for the marijuana during the offense. Parker denied signaling Espinal to initiate the armed robbery. Parker said he jumped out of an open window before any shots were fired. He first learned Espinal shot Weinreb as they were driving away from the robbery. Parker denied being involved in any police chase on the highway. Parker did not expect Weinreb to be armed on the day of the offense. Parker had never seen Weinreb with a weapon on the prior occasions he had met with him. Parker said he brought duct tape to the hotel to seal bags of marijuana. He denied that he intended to use the duct tape to restrain Weinreb.
When confronted with his 2019 declaration, Parker admitted he read and signed the document but did so simply at the direction of his former attorney. Parker testified the declaration was inaccurate because he did not intend to participate in an armed robbery.
F. Trial Court's Ruling
In a detailed written order, the court determined Parker was not a credible witness. Parker had repeatedly lied to law enforcement, his explanations regarding the offense "def[ied] common sense," and Parker had been studying the new law since it went into effect, thereby providing himself, "with a roadmap as to how to shape his testimony in a way that is favorable to him."
The court found Parker and Espinal planned to rob Weinreb while armed, Parker knew Weinreb carried a gun, and he expected Weinreb to be armed on the day of the robbery. Parker himself told police he knew Weinreb carried a gun. Parker's testimony to the contrary was not credible. Parker also knew Espinal had brought a loaded .357 magnum handgun to the hotel room where Weinreb was killed.
The court found Parker himself was also armed on the day of the killing. Parker's explanation that all he had in his pocket was a box of cigars was not credible. It was not reasonable to believe that Parker- having previously brought a firearm to two similar robberies-would show up to a planned armed robbery of a drug dealer who he knew carried a gun without being armed himself. It was similarly unreasonable to believe that Noe would have mistaken a box of cigars for a gun.
The court found Parker signaled Espinal to brandish a firearm during the course of the robbery. Parker's claim that he actually intended to have Espinal pay Weinreb for the marijuana was not credible. The evidence supported the conclusion that Parker was still in the room when the shooting began and that Parker knew Espinal had shot Weinreb before the two fled. Parker's testimony that he jumped out of the hotel window before the shots were fired was not credible.
The court determined that Parker brought duct tape with him on the day of the offense to facilitate the armed robbery, that Parker was in fact involved in a high-speed chase with law enforcement, and that neither Parker nor Espinal brought money with them on the day they robbed and killed Weinreb.
The court recognized Parker's prior criminal history, including three home robberies that occurred in 2006, 2008, and 2009, and the fact that Parker used duct tape to bind the victim during one of the crimes.
Based on the foregoing evidence, the court found beyond a reasonable doubt that Parker was a" 'major participant' " who acted with" 'reckless indifference to human life.' "
Recognizing the concepts of "major participant" and "reckless indifference to human life" are interrelated, the court stated (and the parties agreed) it would independently determine whether Parker was a "major participant" notwithstanding the prior jury determination that Parker was a "major participant" under the Banks standard.
This timely appeal followed.
II. DISCUSSION
A. Applicable Law and Standard of Review
At the time of Parker's trial sections 188 and 189 permitted a conviction for felony murder by imputing malice to a participant in certain felonies, including robbery, that resulted in a homicide. (See People v. Chun (2009) 45 Cal.4th 1172, 1184.) Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) "substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder [citation] and significantly narrowing the felony-murder exception to the malice requirement for murder." (People v. Mancilla (2021) 67 Cal.App.5th 854, 862; see §§ 188, subd. (a)(3), 189, subd. (e).)
Regarding felony murder, Senate Bill 1437 added section 189, subdivision (e), which states: "A participant in the perpetration or attempted perpetration of [a qualifying felony] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (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," the felony-murder special-circumstance provision. (See People v. Ramirez (2021) 71 Cal.App.5th 970, 985.)
Senate Bill 1437 also added section 1172.6 (former § 1170.95), which provides a procedure by which an individual convicted of felony murder (or murder based on the natural and probable consequences doctrine) may petition the court to vacate the conviction and may seek resentencing on any remaining counts if he or she could not now be convicted of murder because of Senate Bill 1437's changes to the definitions of the crime. (See People v. Lewis (2021) 11 Cal.5th 952, 957.) When, as here, a court issues an order to show cause and holds an evidentiary hearing pursuant to section 1172.6, subdivision (d), the court acts "as an independent fact finder" in determining whether the petitioning defendant is entitled to relief. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant "is guilty of murder or attempted murder" under the law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3); see People v. Garcia (2022) 82 Cal.App.5th 956, 966.) The court may consider evidence previously admitted at the petitioner's trial that is admissible under current law, and the parties may offer new or additional evidence. (§ 1172.6, subd. (d)(3).) If the prosecution fails to sustain its burden of proof, the prior conviction is vacated and the defendant is resentenced on any remaining charges. (Ibid.)
When the court holds an evidentiary hearing pursuant to section 1172.6, subdivision (d), and concludes that the prosecution has satisfied its burden of proof, "the reviewing court applies the substantial evidence standard to the superior court's findings." (People v. Vargas (2022) 84 Cal.App.5th 943, 951; accord, People v. Ramirez, supra, 71 Cal.App.5th at p. 985.) Under this standard,"' "we review 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- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citations.]" (Vargas, at p. 951.)
B. Substantial Evidence Supports the Trial Court's Finding Beyond a Reasonable Doubt Parker Was Ineligible for Relief Under Section 1172.6
It is uncontested that Parker was not the actual killer. As discussed, however, he remains guilty of murder under current law if he "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." (§ 189, subd. (e)(3).) Parker argues the court's finding that he acted with reckless indifference to human life is not supported by substantial evidence.
Parker does not challenge the court's determination that he was a major participant in the robbery and murder of Weinreb. But there is significant overlap between being a major participant and having reckless indifference to human life and in general," '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.) Accordingly, we will also review the court's determination that Parker was a major participant in the felony murder of Weinreb.
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." '" (Clark, supra, 63 Cal.4th at p. 611.) "[P]articipation in an armed robbery, without more, does not involve 'engaging in criminal activities known to carry a grave risk of death.'" (Banks, supra, 61 Cal.4th at p. 805.)
In Banks the Supreme Court identified a non-exhaustive list of factors courts should consider in determining whether a defendant was a major participant under section 190.2, subdivision (d): "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.)
Here, there is substantial evidence that Parker was a major participant in the robbery murder. Parker arranged the transaction and knew Espinal would be armed. He set up the meeting with Weinreb. Parker rented the motel room and provided the getaway car. His fingerprint appeared on a roll of duct tape hidden in the room. Although Parker claimed the duct tape was for sealing the bag of marijuana, the court found this explanation was not credible. Not only was there testimony that duct tape was unsuitable for sealing the bags, in a prior robbery Parker used duct tape to restrain the victim. The court was not required to believe Parker's contentions to the contrary.
Similarly lacking in credibility was Parker's testimony that he did not bring a gun to the motel. Based on Parker's three prior robberies-two of which involved the armed robbery of a drug dealer-it was reasonable for the court to infer that Parker himself was armed during the robbery of Weinreb. The court likewise determined it was not reasonable to believe that Noe would have mistaken a box of cigars for a handgun.
Prior to telling Espinal that everything was" 'all good'" and to give Weinreb the money, Parker checked Weinreb for a weapon and opened the window. Based on this evidence it was reasonable for the court to infer that Parker signaled Espinal to rob Weinreb.
Finally, after Weinreb had been shot, Parker did nothing to aid the dying victim. Instead, Parker carried the bag of stolen marijuana to his car and drove away with such recklessness that he was able to evade a pursuing patrol car.
This active participation and presence during every aspect of the planning and execution of the crime leaves little doubt that Parker was a major participant in the underlying offenses. These facts, which are supported by the record, together provide sufficient evidence in support of the court's conclusion that beyond a reasonable doubt Parker was a major participant in the underlying armed robbery and murder.
2. Reckless Indifference to Human Life
"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." '" (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins); see People v. Cody (2023) 92 Cal.App.5th 87, 106.)
Although" '[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life" and" 'only knowingly creating a "grave risk of death"' satisfies the statutory requirement," "[r]eckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (Scoggins, supra, 9 Cal.5th at pp. 677, 676.) "Examples include 'the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property.'" (Id. at p. 676.) 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." (Clark, supra, 63 Cal.4th at p. 617.)
Determining whether a defendant had the mental state required to find reckless indifference to human life depends on "the totality of the circumstances." (Scoggins, supra, 9 Cal.5th at p. 677.) Relevant considerations include (1) "use of or awareness of the presence of a weapon or weapons," (2) "physical presence at the scene and opportunity to restrain confederates or aid victims," (3) "the duration of the crime," (4) "knowledge of any threat the confederates might represent," and (5) "efforts taken to minimize risks." (People v. Strong (2022) 13 Cal.5th 698, 706, citing Clark, supra, 63 Cal.4th at pp. 618-623.)
Substantial evidence supports the court's finding that beyond a reasonable doubt Parker acted with reckless indifference to human life. That finding relies on much of the same evidence as the court's finding he was a major participant. (See Clark, supra, 63 Cal.4th at pp. 614-615 [referring to "the interrelationship between the two elements" and the" 'significant[ ] overlap'" in the requirements for being a major participant and having reckless indifference to human life]; People v. Cody, supra, 92 Cal.App.5th at p. 113 [major participant finding is "itself [] supportive" of reckless indifference finding].)
a. Awareness of Weapons and Confederate's Potential for Violence
Parker knew Espinal had a loaded .357 magnum that would be brandished to accomplish the robbery. As the trial court recognized, however, nothing in the record suggests Espinal had a propensity for violence or that Parker was aware of such a propensity. The court reasonably inferred Parker himself was armed. Although Parker never used a gun during the robbery of Weinreb, in two prior drug-related robberies Parker had used a gun. The court found it was not reasonable to believe that Noe would have mistaken a box of cigars for a handgun. Additionally, based on Parker's statements to police, the court found Parker knew Weinreb carried a gun and Parker would have expected Weinreb to be armed on the day in question. The trial court, acting as an independent trier of fact, was entitled to make these credibility assessments.
b. Presence at Scene, Opportunity to Restrain, and Duration of Crime
Parker's presence at the crime is also significant. As discussed, Parker was present at the time of the robbery and murder. He also took an active role by bringing the duct tape, checking the victim for weapons, signaling to Espinal when it was time to initiate the robbery, and carrying the stolen marijuana away from the scene.
Nevertheless, the record suggests the interaction with Weinreb in the motel room was brief before Espinal shot and killed Weinreb. It also appears the killing was due to Espinal's spontaneous response to Weinreb's armed resistance, such that Parker had no chance to prevent Espinal from shooting Weinreb. Thus, these factors do not weigh in favor of reckless indifference.
c. Opportunity to Render Aid
Although Parker may not have had a chance to restrain Espinal from shooting Weinreb, he had an opportunity to render aid to Weinreb after the shooting but he did not. Without pausing to check Weinreb's condition or to summon aid, Parker immediately hopped out of the window, took the bag of marijuana that Espinal tossed him, and fled. Numerous cases have recognized that such a failure to seek or provide aid is a highly significant factor indicative of indifference to the life of the victim. For example, in People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1386, affirmed in People v. Gonzalez (2018) 5 Cal.5th 186, the court found that the defendant exhibited reckless indifference to human life when he fled with the shooter instead of rendering aid and accompanied the shooter when he disposed of the murder weapon. (See also People v. Smith (2005) 135 Cal.App.4th 914, 927-928, overruled on another ground as recognized in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292 [defendant acted with reckless indifference to human life because, knowing that the victim had been assaulted and seeing his cohort leave the room covered in blood, he chose to flee with the assailant rather than come to the victim's aid or summon help]; People v. Lopez (2011) 198 Cal.App.4th 1106, 1117, disapproved in part by Banks, supra, 61 Cal.4th at p. 809, fn. 8 [defendant exhibited "utter indifference to the victim's life" when she lured the victim into a secluded alley and after hearing gunshot failed to help the victim or call 911]; People v. Medina (2016) 245 Cal.App.4th 778, 792-793 [defendant, who had participated in the robbery but left prior to the shooting, exhibited a reckless indifference to human life when he returned to the scene to aid the shooter but made no effort to offer aid or inquire as to the victim].)
d. Effort to Minimize Risk
There is also substantial evidence that Parker made no effort to minimize the risk of violence. Parker brought duct tape to the room and had previously used duct tape to restrain a robbery victim, supporting the inference that he anticipated the possibility that Weinreb would resist the robbery and that violence and the use of weapons would be necessary to restrain him.
Parker argues a recent case from our colleagues in Division Two of this judicial district demonstrates he is entitled to relief under section 1172.6. Not so. In People v. Underwood (2024) 99 Cal.App.5th 303 (Underwood), the defendant and an accomplice approached a stranger on the sidewalk, the defendant's accomplice told the stranger,"' "give me this money, or I'll kill you," '" and the accomplice subsequently stabbed the stranger. (Id. at p. 308.) The court held that there was insufficient evidence of reckless indifference to sustain the conviction, in part because there was no evidence the defendant knew his accomplice had a knife. (Id. at pp. 317319.) Also, the evidence suggested the defendant "intended only to overpower the victim and take his wallet, not to participate in an armed robbery." (Id. at p. 319.)
Here, although the shooting may have been spontaneous, the robbery of Weinreb was in no way a spontaneous crime of opportunity. The evidence established Parker knowingly planned and participated in an armed robbery. Indeed, "there was considerable run-up to this robbery-hours of interaction to set up what was billed to the victim[] as a drug sale." (Parker I, supra, A146411 &A147074.)
Parker's attempts to reinterpret the facts do not undermine the court's findings. For example, Parker suggests that Noe's testimony that he thought he saw an outline of a gun in Parker's pocket was "uncertain at best." Parker also contends Noe's testimony should not be believed because he told a "number of lies about material aspects of the case," and testified under a grant of immunity. Further, Parker asserts his early statements to police about Weinreb carrying a gun were false and should have been disregarded.
Parker argues that the presence of the duct tape was only relevant to his intent to commit robbery. He further suggests that "all else being equal" restraining a victim with duct tape actually reduces the risk of death. Parker also disputes that his presence in the hotel room militated in favor of finding he acted with reckless indifference to human life. Lastly, he asserts evidence of his prior crimes was relevant only to his intent to rob, which was not at issue.
But Parker's various arguments about the facts, and his additional contentions that go to witness credibility, conflate the role of the trial court with our role as an appellate court applying the substantial evidence standard of review. The trial court was charged with considering the totality of the circumstances germane to determining whether Parker was a major participant who acted with reckless indifference to human life. (See People v. Strong, supra, 13 Cal.5th at p. 706; Scoggins, supra, 9 Cal.5th at p. 677.) "Under our substantial evidence standard of review, we defer to the trial court's implicit credibility findings and accept all reasonable inferences from the evidence." (People v. Oliver (2023) 90 Cal.App.5th 466, 482.) Our role is not to reweigh the evidence, judge the credibility of witnesses, or resolve evidentiary conflicts. (See In re Caden C. (2021) 11 Cal.5th 614, 640.) Rather, determinations are" 'upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Ibid.)
Viewed in the light most favorable to the judgment, the evidence is sufficient to support the court's finding that beyond a reasonable doubt Parker was a major participant who acted with reckless indifference to human life.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: GOLDMAN, J., DOUGLAS, J.[*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.