Error and/or relief
Denial of petition to vacate judgment of murder and for resentencing under section 1172.6 is reversed. The appellant’s participation in the planning and commission of the robbery and failure to render aid to the co-defendant do not demonstrate that he acted with the requisite reckless indifference to human life to be culpable of murder.
First Holding:
The Legislature enacted SB 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. As amended by SB 1437, section 189 now limits liability under a felony-murder theory to actual killers and those who, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree. Individuals who do not fall into those categories can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—the statute defining the felony-murder special circumstance. Section 1172.6 permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts.
Authority:
SB 1437
PEN 189
PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959
People v. Strong (2022) 13 Cal.5th 698, 708
Second Holding:
On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court’s factual findings for substantial evidence. 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. 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. We do not reweigh evidence or revisit the trial court’s credibility determinations.
Authority:
People v. Richardson (2022) 79 Cal.App.5th 1085, 1090
People v. Clements (2022) 75 Cal.App.5th 276, 298
People v. San Nicolas (2004) 34 Cal.4th 614, 657-658
People v. Emanuel (2025) 17 Cal.5th 867, 885
People v. Cody (2023) 92 Cal.App.5th 87, 112-113
Third Holding:
In Banks, the Supreme Court set out a nonexhaustive list of considerations relevant to whether a defendant’s participation in criminal activities known to carry a grave risk of death is sufficiently significant to render him or her a major participant in the crime. Those considerations are: 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?
Authority:
People v. Banks (2015) 61 Cal.4th 788, 794, 803
People v. Strong (2022) 13 Cal.5th 698, 705
Fourth Holding:
Clark similarly set forth a list of considerations relevant to determining whether a defendant acted with reckless indifference to human life. The first factor relates to weapons: was the defendant aware that weapons would be used in the felony? Did the defendant use a weapon? How many weapons were used in the crime? The court cautioned that the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun is what the Banks court meant by a garden-variety armed robbery.
The second factor is the defendant’s physical proximity to the murder and the events leading up to it, and the opportunities that proximity afforded to restrain the crime or aid the victim.
The third factor is the duration of the felony, particularly the duration of the interaction between victims and perpetrators; more prolonged incidents provide “‘a greater window of opportunity for violence.
The fourth factor is the defendant’s awareness of his or her codefendants’ propensity for violence or likelihood of killing a victim.
The final factor is the defendant’s efforts to minimize the risk of violence during the felony, though the court cautioned that some effort to minimize the risk of violence does not, in itself, necessarily foreclose a finding that defendant acted with reckless indifference to human life. In cases where a defendant was a youth at the time of the crime, his or her age may also be relevant to determining whether he or she acted with reckless indifference.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 617-623
People v. Banks (2015) 61 Cal.4th 788, 794, 802
People v. Emanuel (2025) 17 Cal.5th 867, 885 fn 6
In re Moore (2021) 68 Cal.App.5th 434, 453-454
People v. Ramirez (2021) 71 Cal.App.5th 970, 987
Fifth Holding:
No single Banks or Clark factor is determinative. Lower courts should take care to consider the presence or absence relating to each relevant factor on its own merits before considering the evidence in its totality.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 618, 621-623
People v. Emanuel (2025) 17 Cal.5th 867, 888
Sixth Holding:
There is significant overlap between being a major participant and acting with reckless indifference to human life, and the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. However, that does not necessarily mean that every major participant in a crime acts with reckless indifference to human life. Participation in a gardenvariety armed robbery is insufficient without more to establish reckless indifference. The defendant must not merely be aware of the foreseeable risk of death inherent in any violent felony; he or she must knowingly create a grave risk of death to demonstrate reckless indifference to human life. The defendant’s actions before and during the crime are important but not determinative; the key inquiry is what his actions reveal about his mental state.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 618, 614-615
People v. Emanuel (2025) 17 Cal.5th 867, 884