Error and/or relief
The defendant appeals from the denial of his motion for recall of sentence under section 1172.6. The evidence is insufficient to support he was a major participant who acted with reckless indifference to human life. The order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded to the trial court with instructions to vacate his voluntary manslaughter conviction and resentence him on the remaining charges.
First Holding:
In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.) 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 was 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.
To accomplish these goals, SB 1437 redefined malice in section 188, and narrowed the classes of persons liable for felony murder under section 189. It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and be resentenced on any remaining counts. SB 775 (2021–2022 Reg. Sess.) subsequently extended this relief to persons convicted of manslaughter.
If a trial court determines that a petitioner has made a prima facie case for relief, it shall issue an order to show cause” and hold an evidentiary hearing.
At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by SB 1437. The parties may offer evidence from a prior trial or hearing or offer new or additional evidence.
If the prosecution fails to carry 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.
Authority:
PEN 188
PEN 189
PEN 1172.6
Second Holding:
We review the denial of a section 1172.6 petition following an evidentiary hearing for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a major participant who acted with reckless indifference to human life.
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.
Authority:
People v. Emanuel (2025) 17 Cal.5th 867, 885
People v. Clements (2022) 75 Cal.App.5th 276, 298
Third Holding:
A person who did not kill or act with the intent to kill may be liable for murder under the felony-murder doctrine only if they were a major participant in the underlying felony and acted with reckless indifference to human life. The major participant and reckless indifference standards did not originate with SB. 1437, but rather the Legislature imported those standards from section 190.2(d), which governs the felony-murder special circumstance that renders a criminal act eligible for the death penalty or life without parole.
In Banks and Clark, our high court interpreted section 190.2(d) and provided guidelines for the major participant and reckless indifference standards. When SB 1437 amended section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark.
Authority:
PEN 189(e)(3)
People v. Emanuel (2025) 17 Cal.5th 867, 881
People v. Banks (2015) 61 Cal.4th 788
People v. Clark (2016) 63 Cal.4th 522
People v. Strong (2022) 13 Cal.5th 698, 710
Fourth Holding:
Banks identified factors relevant to determining whether a defendant was a major participant in the underlying felony:
(1) the defendant’s role in planning the crime that led to the death;
(2) the defendant’s role in supplying or using deadly weapons;
(3) the defendant’s awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of other participants;
(4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent it, and whether the defendant’s own actions or inactions played a particular role in the death; and
(5) the defendant’s actions after lethal force was used.
Authority:
People v. Banks (2015) 61 Cal.4th 788, 803
Fifth Holding:
Clark identified factors relevant to whether a defendant acted with reckless indifference to human life:
(1) the defendant’s knowledge of weapons, and the use and number of weapons;
(2) the defendant’s physical presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim;
(3) the duration of the interaction between the perpetrator and the victim;
(4) the defendant’s knowledge of their cohort’s propensity for violence or likelihood of killing; and
(5) the defendant’s attempts to minimize violence during the crime.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 618-622
Sixth Holding:
A defendant’s youth can also be a relevant factor in the reckless indifference analysis.
Authority:
People v. Keel (2022) 84 Cal.App.5th 546, 558–559
Seventh Holding:
No one of the Banks or Clark factors is necessary, nor is any one of them necessarily sufficient to establish a defendant was a major participant or acted recklessly indifferent to human life. Moreover, there is often a significant overlap between being a major participant and acting with reckless indifference to human life, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.
Authority:
People v. Banks (2015) 61 Cal.4th 788, 803
People v. Clark (2016) 63 Cal.4th 522, 615, 618
Eighth Holding:
In cases where a major participant finding was substantiated, there was evidence that the defendant played a substantial role or was a mastermind who planned and organized the underlying offense and orchestrated the events at the scene.
(Gary note: A portion of this part of opinion compares the defendant’s participation to cases in which there was a finding of substantial participation. I have listed those cases below–after the Clark reference, which pertains to the first paragraph of this “Eighth Holding”–because they do hold that the conduct as described does represent sufficient substantial evidence in support of a finding that the accused was a major participant in the underlying felony.)
Authority:
People v. Clark (2016) 63 Cal.4th 522, 615, 612
Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were actively involved in every element of the kidnaping-robbery and were physically present during the entire sequence of criminal activity culminating in the murder and the subsequent flight]
People v. Mitchell (2022) 81 Cal.App.5th 575, 584 [defendant agreed to rob someone with his brother, helped pick out the victim, and after the victim was injured, held the firearm while his brother rifled through the victim’s pockets]
People v. Richardson (2022) 79 Cal.App.5th 1085, 1088, 1091-1092 [The defendant yelled, “Shoot him. Shoot him,” directing his armed coparticipants to shoot a citizen who was following the defendant’s car during the commission of the crime. Richardson was a major participant in the underlying robbery, as his orders to shoot showed he took on—or already had—a role in directing the robbery and the conduct of his coparticipants.]
Ninth Holding:
But even if we assume the defendant was a major participant, the evidence is insufficient to support that he exhibited reckless indifference to human life. Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death.
It 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. Examples of reckless indifference 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.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 616-617
In re Scoggins (2020) 9 Cal.5th 667, 676
Tenth Holding:
The reckless indifference standard has both a subjective and an objective component. Subjectively, the 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.
Objectively, the 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. 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.
Authority:
People v. Clark (2016) 63 Cal.4th 522, 617
In re Scoggins (2020) 9 Cal.5th 667, 677
Eleventh Holding:
Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.
Authority:
People v. Emanuel (2025) 17 Cal.5th 867, 884
In re Scoggins (2020) 9 Cal.5th 667, 677 [the fact a participant or planner of an armed robbery could anticipate lethal force might be used is not sufficient to establish reckless indifference to human life]
People v. Banks (2015) 61 Cal.4th 788, 805 [participation in an armed robbery, without more, does not involve engaging in criminal activities known to carry a grave risk of death]
(Gary note:
(At this point and throughout the opinion, the appellate court compares and contrasts the defendant’s conduct in this case with other cases in which the question of major participant and reckless indifference to human life was resolved by finding either the presence or the absence of same.
(The analysis is fact-specific and would be of no value in your cases because you cannot cite an unpublished case, so you would have no way to get the facts of this summarized case before your court. But you should be able to learn what you need from the published cases this appellate court discussed in reaching its conclusion that this defendant was not a major participant in the underlying felony, and that his conviction for voluntary manslaughter (obtained by plea agreement) must be vacated.)