Opinion
E079212
05-18-2023
THE PEOPLE, Plaintiff and Respondent, v. WALTER BEASLEY, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB003821 Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
In 1994, defendant and appellant Walter Beasley and his accomplices, including his brother, committed a drive-by shooting in which the victim was shot several times, but survived. Three days later, defendant and his cohorts committed a robbery at a liquor store in which the liquor store clerk was fatally shot. Pursuant to a plea agreement, defendant pleaded guilty to first degree murder (Pen. Code, § 187, subd. (a)), along with five other felonies. In return, defendant was sentenced to serve a term of 25 years to life with the possibility of parole.
All future statutory references are to the Penal Code unless otherwise stated.
In 2019, defendant petitioned to vacate his felony-murder conviction and for resentencing pursuant to former section 1170.95, which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015). Following an evidentiary hearing, the trial court found the evidence showed defendant was a major participant in the underlying robbery and acted with willful disregard for human life and therefore denied defendant relief. On appeal, defendant contends there is insufficient evidence to support the trial court's finding that he was a major participant in the crime. We disagree and affirm the postjudgment order denying defendant's section 1172.6 petition.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from defendant's testimony at the preliminary hearing of his codefendants, which was before the trial court at the evidentiary hearing for defendant's section 1172.6 petition for relief. The preliminary hearing transcript is part of the record on appeal in this case as Exhibit A of defendant's request for judicial notice (RJN).
Defendant was a member of the Pasadena Denver Lane Bloods gang. In February 1994, defendant had an ongoing dispute with Ronnie Finley about the "drug trade" business. Around midnight on February 24, 1994, defendant drove to Spruce Street in Rialto. When he saw Finley, defendant fired his .380-caliber gun at Finley, until there were no more bullets left in the gun. Defendant believed there were six or seven rounds in his gun.
Three days later, on February 27, 1994, defendant's gun was used during a crossshooting between defendant's gang and another gang. Defendant explained that his group was involved in a "'gang thing.'" Specifically, defendant stated that he and his fellow gang member Willie Rice were selling drugs at a street corner in Rialto when Crips gang members started shooting at them. Defendant, Rice and codefendants Jermaine Carter and James Beasley (defendant's brother) also began shooting. Defendant fired about six shots from his gun and explained that "there [were] shots everywhere" and that bullets were "just flying." Carter and James were behind defendant, and one of them was also firing shots. Rice was in front and running. Carter fatally shot Rice. Defendant, Carter and James got into defendant's car, and defendant fled.
Because defendant and his brother share the same last name, we will refer to James Beasley by his first name. We mean no disrespect.
After defendant and his codefendants fled the scene, defendant drove to codefendant Ivan Warren's house. Defendant hid his car in Warren's backyard because he thought the police would be looking for the car. Soon thereafter, Warren said he was "'broke'" so they needed to "'go do a jack.'" Warren drove, defendant sat in the front passenger seat, and James and Carter in the back passenger seats. They went to an AM/PM store, but decided it was too crowded to commit a robbery there and left. Warren suggested they go to Coockies Liquor Store (liquor store robbery) in San Bernardino and drove the group there. James had a .38 caliber gun and Carter had a .380 gun. Warren told James and Carter to shoot the clerk if he flinched or made any fast movements. Defendant and Warren stayed in the car while James and Carter went into the liquor store. Defendant heard the gunshot when one of his codefendants shot and killed the store clerk. James and Carter soon exited the liquor store and got back into Warren's car.
Warren then drove the group to Highland Avenue where they continued to commit armed robberies. The first stop was a parking lot near a K-Mart store. Defendant exited the vehicle and robbed a man who had a baby with him while armed with his gun. Next, Warren drove to a Coco's restaurant down the street where James and Carter got out of the car and robbed a man and a woman who were in the parking lot. The group thereafter went back to Warren's house and used the money they got from the robberies to gamble and get food.
At the preliminary hearing of his codefendants Warren and Ivan, defendant told a different story than what he told the police regarding the liquor store robbery. In pertinent part, at the preliminary hearing, defendant testified that after arriving at Warren's house, he used Warren's car and with James drove to the liquor store. James went into the liquor store to buy a soda, but did not tell defendant that he was going to rob the liquor store. Before James got back into the car, defendant heard something that could have been a gunshot or backfiring. Defendant claimed that he did not do anything during that liquor store robbery but sit in the car.
B. Procedural Background
On August 15, 1994, the morning before he testified at their preliminary hearing, defendant pleaded guilty to first degree murder of the liquor store clerk (§187, subd. (a)), attempted murder of Finley (§§ 664/187, subd. (a)) and four counts of robbery (§ 211). In return, the trial court sentenced defendant to a total term of 25 years to life with the possibility of parole.
On January 3, 2019, defendant, in propria persona, filed a petition for resentencing under former section 1170.95. After appointing counsel, finding that defendant had established a prima facie case of entitlement to relief, and issuing an order to show cause, the trial court held an evidentiary hearing on June 10, 2022.
At the hearing, the court relied on defendant's preliminary hearing testimony from the matter pertaining to codefendants James and Warren. Defendant's counsel argued that defendant's conduct in the murder of the liquor store clerk did not "reach the levels of [People v. ] Banks" (2015) 61 Cal.4th 788 (Banks). The prosecutor asserted that defendant "was involved in . . . a separate murder, and an attempt murder . . . with the shooters of the robber[y]," and based on that, defendant had "knowledge that he was engaged in dangerous activity, violent activity" with the codefendants.
After hearing the parties' arguments, the trial court denied defendant's petition. As to the attempted murder conviction, the court found defendant to be the actual shooter of victim Finley based on defendant's testimony that he was the sole occupant of the vehicle and the one who shot at Finley during the drive by shooting. With regard to the murder of the liquor store clerk, the court acknowledged that defendant was not the actual shooter and that he was in the car, not inside the liquor store at the time of the robbery. The court noted that "if that's all we had," it would be insufficient under Banks, supra, 61 Cal.4th 788, and its progeny.
The court explained "But here there is additional evidence that relates to several of the factors pointed out in [Banks]. So those additional factors are on February the 24th. That's the date that the defendant admits to doing the drive-by shooting of Mr. Finley. Three days later, February 27th, before the robbery which resulted in the death of Mr. Khatib earlier that day, the defendant was present with other co-defendants in which there was a dispute and shootout in which Mr. Rice was killed. And the defendant participated in that shooting. After that had been completed, then they - the defendant and the other co-defendants - went to Mr. Warren's residence. They then left Warren's residence and went to the liquor store, where the defendant's brother and one of the other co-defendants went inside the liquor store to do the robbery, and Mr. Khatib was killed. Defendant remained in the car during that incident. [¶] Defendant indicated that he did hear a sound that could have been a gunshot, then when the other co-defendants returned to the car, they then leave and go to a nearby K-mart, in which another victim is robbed at gunpoint. And then they go to a nearby Coco's, where a male and female are robbed at gunpoint. And the defendant participated in those robberies as well."
The court further explained, "So we have a situation where three days earlier, the defendant was involved in an incident where he shot and wounded another individual. Immediately before the robbery here, the defendant was involved in a situation with codefendants in which there was a shooting and somebody [Rice] was killed. The defendant then continued with the other co-defendants for a series of robberies and continued to participate in robberies with the co-defendants, even after the first robbery in which Mr. Khatib was killed. [¶] So in looking at the criteria set forth in [Banks], one of the criteria is if the defendant has knowledge of the other defendants' knowledge of weapons, past experience with the participants, the dangers and likelihood of a deadly encounter. So here the defendant was, just before this, involved with the co-defendants in a shooting in which someone was killed. So the defendant had knowledge that all the co-defendants were armed, that they used the weapons, and someone was shot and killed. That occurred three days after the defendant himself had shot at and wounded another individual. And then after the robbery and the shooting, the defendant continued to participate with the defendants in other armed robberies." Thus, under the criteria set forth in Banks, the court found defendant "was a major participant in the robbery, and that his actions in going and participating in the robbery with the co-defendants immediately after he was present with the co-defendants in another shooting, and then continued to participate in additional robberies with the co-defendants after the shooting and robbery of Mr. Khatib, demonstrate that the defendant was acting with willful disregard for human life and that the defendant, therefore, would still be liable for murder under the amended Penal Code section 189." Accordingly, the trial court denied defendant's petition for resentencing on the murder charge as well.
Defendant timely appealed the order.
III. DISCUSSION
Defendant contends there was insufficient evidence to support the trial court's finding that he was a major participant in the underlying robbery because he was merely sitting in the car, he was not present during the robbery, he was not the getaway driver, and the robbery was not his idea. Defendant does not dispute the finding he acted with reckless indifference to human life. We disagree.
A. Governing Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'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.'" (People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189.
Senate Bill No. 1437 amended section 189 so that "[d]efendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life[.]'" (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong), citing § 189, subd. (e)(3).) The Legislature amended section 188 to provide that, when the felonymurder rule does not apply, a principal in the crime of murder can only be convicted where he acted "with malice aforethought," and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); see Gentile, supra, 10 Cal.5th at pp. 842-843.)
Effective January 1, 2022, Senate Bill No. 775 expanded eligibility for relief to include individuals convicted of "attempted murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2; Legis. Counsel's Dig., Sen. Bill No. 775 (2021-2022 Reg. Sess.).)
Senate Bill No. 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis (2021) 11 Cal.5th 952, 959; Strong, supra, 13 Cal.5th at p. 708.) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 made effective January 1, 2019 ....'" (Strong, supra, at p. 708, fn. omitted.) "When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.]" (Ibid., citing § 1172.6, subd. (c).) If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether relief should be granted. (§ 1172.6, subds. (c), (d)(3).)
Senate Bill No. 775 clarified that the trial court's role in a section 1172.6 proceeding is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by Senate Bill No. 1437. (People v. Clements (2022) 75 Cal.App.5th 276, 294, 297; see also People v. Garrison (2021) 73 Cal.App.5th 735, 745, fn. omitted [the trial court acts as "an independent fact finder, to determine beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of murder"].) At the evidentiary hearing, the court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law," including witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the People may also offer new or additional evidence. (§ 1172.6, subd. (d)(3); see Gentile, supra, 10 Cal.5th at pp. 853-854.) "'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.' [Citation.] '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.'" (Strong, supra, 13 Cal.5th at p. 709; accord, People v. Lewis, supra, 11 Cal.5th at p. 960.) Section 1172.6 "relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life ....'" (Strong, supra, at p. 710.)
Under the amended felony-murder rule, a defendant who was not the actual killer and did not act with the intent to kill can only be liable for murder if he or she was a major participant in the underlying felony and acted with reckless indifference to human life. (Strong, supra, 13 Cal.5th at p. 708, citing § 189, subd. (e)(3).) Because "'[t]he standard under section 189, subdivision (e)(3) for holding . . . a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2[, subdivision] (d),'" "death penalty cases interpreting section 190.2, subdivision (d), including People v. Banks[, supra,] 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark), are controlling here." (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123 (Guiffreda).)
Considerations that "may play a role in determining whether a defendant's culpability is sufficient" for a finding he or she was a major participant under section 190.2, subdivision (d), include: "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; see People v. Mitchell (2022) 81 Cal.App.5th 575, 591; Guiffreda, supra, 87 Cal.App.5th at pp. 124-125.)
To determine whether a defendant exhibited reckless indifference to human life under section 190.2, subdivision (d), courts consider, among other factors, the following: "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?" (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins); see Clark, supra, 63 Cal.4th at pp. 618-623; see Guiffreda, supra, 87 Cal.App.5th at pp. 124-125.)
"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."'" (Scoggins, supra, 9 Cal.5th at p. 677.)
The requirements for finding major participation and reckless indifference to human life "'significantly overlap . . . in general, 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; see People v. Owens (2022) 78 Cal.App.5th 1015, 1023.) "No one of these considerations is necessary, nor is anyone one of them necessarily sufficient." (Banks, supra, 61 Cal.4th at p. 803; see Clark, supra, at p. 618.) Courts analyze the totality of circumstances (Scoggins, supra, 9 Cal.5th at p. 677) to determine whether the defendant acted with reckless indifference to human life or was a major participant. (See People v. Owens, supra, at p. 1023.)
B. Standard of Review
On appeal from an order denying a petition under section 1172.6, we review the trial court's factual findings for substantial evidence. (People v. Richardson (2022) 79 Cal.App.5th 1085, 1090 (Richardson).) 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 defendant guilty] 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. Clements (2022) 75 Cal.App.5th 276, 298; see Guiffreda, supra, 87 Cal.App.5th at pp. 124-125.) "'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'" (People v. Brooks (2017) 3 Cal.5th 1, 57.)
C. Analysis
Applying the factors identified by Banks, and viewing the totality of the circumstances (Scoggins, supra, 9 Cal.5th at p. 677), we conclude substantial evidence supports the trial court's finding that defendant was a major participant in the robbery.
Here, the evidence supports the trial court's determination that defendant had knowledge of the dangers associated with gun use and that a deadly encounter was likely based on defendant's past conduct and experience with his codefendants. Prior to the liquor store robbery, defendant and two of the three codefendants were involved in a gang shoot-out with a rival gang resulting in Rice's death. As the trial court pointed out, this evidence demonstrated that defendant knew all his codefendants were armed with guns, knew how to use them, and were willing to, and did kill someone. In fact, defendant was aware that James and Carter were armed before they went into the liquor store and had heard Warren tell James and Carter to shoot the liquor store clerk if the clerk flinched. Furthermore, three days prior to the liquor store robbery, defendant was involved in a drive-by shooting where he attempted to kill Finely. This cumulative evidence shows that defendant was aware of the dangers of shooting a gun, and understood the dangers posed when his armed cohorts entered the liquor store determined to rob the clerk. Substantial evidence demonstrates that defendant knew in advance that his armed codefendants intended to rob the clerk, and that there was a strong likelihood the clerk would be shot.
Regarding the factor of planning, defendant's testimony at the preliminary hearing of his codefendants shows defendant's involvement in the group's coordinated conduct before, during and after the armed robbery at the liquor store. The evidence showed that defendant was aware of, and acquiesced to, the plan to commit armed robbery at the liquor store. Defendant knew he and his codefendants were specifically going to the liquor store to commit a robbery. Prior to committing the string of robberies, Warren had stated that he was "'broke'" and they needed to "'go do a jack.'" As Warren drove by a nearby AM/PM store, defendant and his codefendants discussed committing the robbery there, but decided it was too crowded and then decided to go to the liquor store. Warren stated that they should rob the liquor store instead and then drove directly to the liquor store.
Moreover, as noted by the trial court, defendant continued to act as a major participant in the crime even after the fatal liquor store robbery. As the trial court noted, after the codefendants shot the liquor store clerk and defendant heard the gunshot, defendant "continued to participate" with his codefendants in "other armed robberies." Indeed, defendant himself brandished his weapon and took money from at least one of the victims. Defendant's actions after lethal force was used in the liquor store robbery demonstrate that he was not a minor participant.
Defendant's conduct prior to, and after the liquor store robbery, shows that defendant was a major participant in the liquor store armed robbery, and that he was not simply a passive bystander who had no knowledge of his codefendants' propensity for violence or likelihood of using lethal force. The presence of weapons and prior use of force by his cohorts placed defendant on notice of the potential for serious violence. That defendant was present during the liquor store robbery, heard the gunshot fired by his cohorts during the liquor store robbery, and continued to participate in subsequent robberies with the use of a gun in this case is also significant.
This case is unlike Scoggins and Clark in which the defendants were unarmed, not present at the scene, did not know their accomplices were armed or, as in Clark, did not know the accomplice was carrying a loaded gun. (See Scoggins, supra, 9 Cal.5th at pp. 677-678; Clark, supra, 63 Cal.4th at p. 613.) Rather, here defendant was involved in the planning of the robberies, was aware both Carter and James were armed with guns, and was present at the scene. (Banks, supra, 61 Cal.4th p. 803.) Defendant himself was also armed and used his weapon in a subsequent robbery. Defendant also was aware of the dangers posed by the crime and was aware that James and Carter were instructed to shoot the clerk if the clerk flinched. And after lethal force was used in the liquor store robbery and hearing a gunshot being fired, defendant did not stop to assist the clerk or call for assistance. Instead, he continued with his cohorts to commit more robberies.
Relying on the statement "Shoot him" made by the defendant in our recent opinion in Richardson, supra, 79 Cal.App.5th 1085, defendant contends that opinion supports his argument that the evidence was insufficient in his case. We disagree.
In Richardson, supra, 79 Cal.App.5th 1085, the defendant parked his car while his two codefendants got out and entered a market. One of the codefendants shot the store owner and killed him. The two codefendants then took the store owner's wallet and some of the items and ran back toward the car. (Id. at pp. 1087-1088.) A witness saw the men running and began following them in his car, when he saw the defendant standing outside the open driver's side door of the getaway car. The defendant yelled "Shoot him. Shoot him." One of the codefendants then fired his gun at the witness which stopped the witness from chasing the defendant and his cohorts. The codefendants and defendant got into the car and the defendant drove away. (Id. at p. 1088.) The defendant was convicted of first-degree murder and sentenced to 26 years to life in prison. (Ibid.)
After the trial court denied the defendant's petition for resentencing, the defendant appealed, arguing there was insufficient evidence that he was a major participant in the robbery. (Richardson, supra, 79 Cal.App.5th at p. 1090.) In rejecting the defendant's argument, we identified the Banks factors, and explained that the defendant's statement "Shoot him," showed that the defendant "was aware that his coparticipants were armed." (Richardson, supra, at pp. 1091-1092.) We explained that the defendant's statement also showed that the defendant "took on - or already had - a role in directing the robbery and the conduct of his coparticipants. He had the right to decide to use lethal force and to order his coparticipants to do so." (Ibid.) We thus concluded there was sufficient evidence that the defendant was a major participant in the robbery and affirmed the order denying his petition for resentencing. (Ibid.)
Defendant believes that unlike the defendant in Richardson, he did not say or do anything that helped or encouraged his codefendants to rob the liquor store. Defendant's argument belies the record. The totality of the circumstances shows that defendant was a major participant in the liquor store robbery. Defendant was present when essential instructions were shared, labors divided, and roles defined. Defendant was involved in the discussion of committing armed robberies before they left Warren's house. He went with his cohorts as they discussed committing armed robberies and shooting the clerk if the clerk flinched. Defendant heard the gunshot and was aware that his accomplices shot the liquor store clerk, yet he continued to commit additional robberies with the use of his gun.
In sum, considering the totality of the circumstances, we conclude that substantial evidence supports the trial court's finding, beyond a reasonable doubt, that defendant was a major participant in the liquor store robbery. The trial court properly denied defendant's petition for resentencing.
IV. DISPOSITION
The trial court's postjudgment order is affirmed.
We concur: McKINSTER Acting P. J., MENETREZ J.