People v. Cory CA2/3 ( 2023 )

Filed 4/28/23 P. v. Cory CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B315668
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA030961-04)
v.
RONALD L. CORY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rob B. Villeza, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 1997, a jury convicted Ronald L. Cory of, among other
crimes, two counts of felony murder with true findings on two
special circumstance allegations. Years later, Cory petitioned for
vacation of his murder convictions and resentencing under Penal
Code1 section 1172.6, which limited accomplice liability for
murder.2 After an evidentiary hearing under that section, the
trial court denied the petition, concluding that Cory was a major
participant in the underlying felony who acted with reckless
indifference to human life and, as such, ineligible for relief. Cory
now appeals the order denying his petition, and we affirm.
BACKGROUND
I. The evidence from Cory’s trial3
This case arises from a February 8, 1996 home invasion
robbery that resulted in the deaths of Curtis Reilly and Charles
Johnson. Cory was jointly tried with Kevin Watkins and Joseph
Portillo for murder and related crimes. Isaac Pereira was also
implicated in the crimes but was not tried with Cory, Watkins,
and Portillo.
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 We have granted the People’s request for judicial notice of
the record from Cory’s direct appeal (People v. Ronald Lee Cory
and Joseph John Portillo (June 8, 1999, B118065) [nonpub.
opn.]).
2
A. Events leading to the murders
The victim Reilly was acquainted with some of the
defendants through his friend, Patricia Russell. Reilly sold drugs
and sometimes Russell would arrange for Portillo and Pereira to
buy drugs from him. On February 5, 1996, three days before the
murders, Russell was introduced to Cory when she went with
him, Portillo, and Pereira to buy speed from Reilly at his auto
body shop.
The next day, February 6, 1996, Portillo, Pereira, and Cory
were at Russell’s home. Portillo and Pereira asked Russell what
Reilly had at his house, what he collected, if he had guns, and
who lived with him. According to Russell, Cory was quiet during
these conversations. Russell told them that two men, Johnson
and Keith Palmer, lived with Reilly and that Palmer, whom she
described as a little crazy, was always home. She also told them
that Reilly had guns, although she was lying, because she had
never seen guns at Reilly’s house.4 She lied because she wanted
them to be afraid to go to Reilly’s house.
On February 7, 1996, Russell, Pereira, Portillo, and Cory
again went to Reilly’s auto body shop, although only Russell went
inside. Pereira gave Russell $10 to buy methamphetamine,
which she thought was odd because she couldn’t buy enough
methamphetamine to get all of them high with that amount.
That afternoon, Cory shot up methamphetamine at Russell’s
home.
The morning of the murders, February 8, 1996, Reilly was
at Russell’s home when Portillo and Pereira came over. Portillo
argued with Reilly about Reilly’s supposed interest in Portillo’s
4 There was other evidence that Reilly did keep a gun in the
house.
3
former girlfriend, Anna Scott. Pereira and Reilly also argued
about a glass pipe Pereira was refusing to return. Later that day,
at about 7:00 p.m., Portillo asked Russell if she knew where to
get a gun, and she told him her brother might know. Portillo
called Russell at about 10:30 p.m. and again asked questions
about Reilly’s house, what he collected, and who was there.
Scott, Portillo’s ex-girlfriend, testified that their
relationship had ended in the months preceding Reilly’s murder.
Scott was also friends with Reilly. In January 1996, Portillo
asked Scott a couple of times what kind of security devices and
weapons Reilly had at his house. Portillo said he wanted the
stuff. About a week before the murders, Portillo told Scott he
was going to do something, he might not make it out alive, and
somebody might die. On the evening of the murders, Portillo
asked Scott if she had a gun or if she knew how he could get one.
He said he had a shotgun but needed more.
B. The night of the murders
The night of the murders, at about 10:30 p.m., six people
were at Reilly’s house: the three men who lived there (Reilly,
Johnson, and Palmer), and three others (Donnie Aiken, Debbie
Olmer, and Sharon McCart). Olmer sometimes stayed at Reilly’s
house. Aiken was Reilly’s friend and had come by to fix Reilly’s
computer. McCart had dropped by to discuss with Palmer a
problem she was having with her car. Aiken and McCart
testified about what happened next.
According to Aiken, there was a knock on the door at about
11:00 p.m. It was Pereira, who said he was there to apologize to
Reilly for something that had happened earlier. Reilly let him in.
There was a second knock on the door, and Pereira opened the
door and said some of his friends were there. Cory, Portillo, and
4
Watkins came inside. Watkins had a locking blade knife in his
hand. Cory opened up his coat and brought up a shotgun. At
trial, Aiken demonstrated how Cory held the shotgun and had his
“right finger extended as if to be on the trigger.”
Reilly called to Johnson, saying “ ‘They got a gun.’ ” Aiken,
who had been a sharpshooter in the army, “dove” for the shotgun,
reasoning that he could survive a knife attack but that if Cory
started shooting, nobody would make it out. He and Cory
struggled over the shotgun, and Portillo joined the struggle,
hitting Aiken. Aiken did not see Portillo with a weapon.
Meanwhile, Aiken could see Johnson fighting with Watkins.
Reilly had grabbed a pool stick and was swinging out with it.
At some point, Aiken felt a punch to his back, causing him
to let go of the shotgun. Because Cory and Portillo were in front
of him, he reasoned that whoever hit him was behind him. Aiken
realized he was bleeding from a stab wound, and he saw Pereira,
smiling and wiping blood from a six-inch fixed-blade knife on his
pants leg. Aiken also saw Reilly, face down on the ground. Aiken
did not see who stabbed him or Reilly. Cory went through the
kitchen, in the direction Johnson had gone. Aiken tried to crawl
away but, at Pereira’s direction, Portillo got on top of Aiken.
Aiken could hear Pereira yelling at Reilly, “Where is the shit?”
Pereira asked Portillo where the other people were, and Portillo
said they had left already.5 Portillo got off Aiken and left with
Pereira.
McCart testified that she was in another room when she
heard a commotion. A man McCart didn’t recognize told her and
5 At the preliminary hearing, Aiken testified that Cory and
Watkins left before the others.
5
Olmer to go into the bathroom. Olmer fled outside, through a
window. McCart heard someone say, “Get the girl,” so she locked
the door. The same man who had ushered her into the bathroom
broke down the door, and when McCart said she was the only one
there, the man walked back into the family room.6 McCart heard
the same voice angrily ask, “ ‘Where is the shit?’ ”
Reilly died at the scene from a stab wound that penetrated
his heart. Johnson had been stabbed twice but he did not
immediately die and was transported to a hospital. Johnson was
able to communicate to officers that he did not know who stabbed
him before he died.
Watkins was arrested that night with a knife in his pocket
and blood on his hands. His car was found parked near Reilly’s
house with a loaded shotgun in it. While Watkins was being held
in jail, a cellmate overheard Watkins brag that he went to a
residence to retrieve drug money, a fight broke out, and he joined
in stabbing someone. Watkins said he “ ‘went off on the guy.’ ”
Cory was not arrested until August 1996, when a patrol
officer stopped the car he was the passenger in. The officer
noticed that Cory was extremely nervous and had puncture
marks on his arm, suggesting drug use. The officer had Cory exit
the car and place his hands on his head. Cory admitted he had a
loaded gun in his waistband and ammunition clips. The officer
retrieved the gun, which was loaded, and methamphetamine.
Cory asked the officer if he could let him go, and when the officer
refused, Cory said he (Cory) was never going to see the light of
day again once the officer found out who he was. Recognizing
6 McCart identified Pereira as the man who ushered them
into the bathroom and then broke down the door.
6
Cory from a wanted poster, the officer asked Cory if he was
referring to a murder. Cory said he got in a fight with some
people, and there were pool sticks involved and everyone was
fighting. He said he was at Reilly’s house but did not kill anyone.
Cory also told the officer that his cautious approach to the car
when he stopped them kept the situation from becoming ugly.
C. Cory’s testimony
Cory testified in his defense. Around the time of these
events, Cory was unhoused and living on the streets or going
from house to house, including Watkins’s house. He was also
addicted to and sold crystal methamphetamine, and when the
murders occurred, he was using methamphetamine every day.
As of February 1996, Cory had known Watkins for about two
months and Portillo for four months. He had met Pereira four or
five times.
Cory had $1,000 and wanted to buy an ounce of
methamphetamine with it. Watkins said he could buy it from
Reilly, so that night, Watkins drove Cory to Reilly’s house. Cory
never spoke to Portillo or Pereira about going to Reilly’s home
that day. He was not present during any discussion about
whether Reilly had guns and who lived with him.
When Cory and Watkins arrived at Reilly’s house, Cory
noticed Pereira’s car but didn’t think much about it. Cory and
Watkins walked to the door, and Watkins knocked on it. Cory
did not have a weapon, had not seen a shotgun in Watkins’s car,
did not see Watkins with a knife, and was not intending to cause
any trouble. A man answered the door, and Cory and Watkins
went inside. Almost immediately, Cory was hit with something;
his head cracked open, and blood squirted down his face, blinding
him in one eye. He saw stars and his vision went blurry. He
7
thought he was hit twice. Cory could tell there was a scuffle
happening around him, but the next thing he remembered was
Watkins helping him leave the house. Cory estimated he was in
the house just 30 to 40 seconds before leaving. Cory blacked out
for a bit, but Watkins led him to the street, they separated, and
some strangers gave Cory a ride to a friend’s house. Cory no
longer had the $1,000, and he had no idea who took it from him.
The next day, Cory learned that people had died. He was too
scared to turn himself in.
II. Verdict and sentence
A jury convicted Cory of two counts of first degree murder
of Reilly and Johnson (§ 187, subd. (a)), attempted premeditated
murder of Aiken (§§ 664, 187, subd. (a)), attempted robbery
(§§ 664, 211), attempted first degree residential burglary (§ 459),
and first degree residential burglary (§ 459). The jury found true
principal (§ 12022, subd. (a)(1)) and personal (§§ 1203.06,
subd. (a)(1), 12022.5, subd. (a)(1)) gun use allegations as to all
counts. Also, the jury found true two special circumstance
allegations: multiple murder and the murders were committed
during the commission of an attempted robbery. (§ 190.2,
subd. (a)(3) & (17).)
In 1997, the trial court sentenced Cory to life in prison
without the possibility of parole for the murders, life for the
attempted murder, and 10 years for the burglary.
On direct appeal, a different panel of this Division affirmed
Cory’s judgment of conviction, rejecting, among others,
appellants’ argument that there was insufficient evidence to
support the felony-murder special circumstance findings. (People
v. Cory, supra, B118065.) However, the matter was remanded for
resentencing. On remand, the trial court resentenced Cory to life
8
without the possibility of parole for the murders, life plus 10
years for the attempted murder, and 16 years for the burglary.
III. Section 1172.6 petition and evidentiary hearing
After our Legislature passed Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437) to limit accomplice liability for
murder, Cory petitioned to vacate his murder conviction and for
resentencing. The trial court appointed counsel, received
briefing, and set the matter for an evidentiary hearing. At the
evidentiary hearing, the trial court admitted the abstract of
judgment, charging documents, jury instructions, Court of Appeal
decisions, and reporter and clerk transcripts from Cory’s trial.
Cory also testified at the hearing. He said that when the
crimes occurred, he was addicted to methamphetamine. Indeed,
he was still using methamphetamine during the trial, at which
he did not testify truthfully.
On February 7, 1996, Cory spent the night at Watkins’s
house, and as of February 8, he had been up for a week without
sleep because he was using methamphetamine multiple times a
day. On the evening of the murders, Cory told Watkins he
wanted to buy a sixteenth of methamphetamine, and Watkins
said he had something in the works. At about 10:30 p.m., Cory
went to Reilly’s house to buy methamphetamine, but he denied
knowing of any plan to rob people. Cory had $100, not $1,000 as
he had testified at trial. He and Watkins drove alone to the
house, but they did not discuss any plan to rob people.
But when they got to the house, Watkins reached under his
seat, pulled out a shotgun, and told Cory to put it under his coat.
Watkins said the shotgun wasn’t loaded and that they were going
to steal drugs. Cory didn’t want to take the gun, but Watkins
9
was aggressive, so Cory put the shotgun under his coat. Cory did
not see Watkins with any weapons.
As they approached the house, Cory saw Portillo standing
outside and Pereira driving up. Cory did not see Portillo with
any weapons. Portillo knocked on the door, and Cory entered the
house after him. At Watkins’s instruction, Cory pushed his coat
aside to show the shotgun and raised the barrel to his waist, but
he did not put his finger on the trigger. Someone yelled that
there was a gun, and within seconds, Cory was struck on his head
twice, causing him to bleed and to almost lose consciousness.
Fighting broke out, and Watkins helped him from the house.
Because Watkins had dropped his car keys in the house, he and
Cory walked down the street, but Watkins eventually left Cory on
his own. Although they left with the shotgun, Cory did not
remember what happened to it. He didn’t turn himself in
because he was afraid and still high on drugs.
After Cory testified, the trial court heard argument from
both counsel. The People argued that Cory was still guilty of
murder under three theories: (1) as a direct aider and abettor
with the shared intent to kill, (2) as a major participant in the
felony who acted with reckless indifference to human life, or
(3) under an implied malice theory.
The trial court spoke at length in ruling on the petition. It
first noted that Cory’s testimony at the evidentiary hearing
differed from his trial testimony, and so it found Cory not
credible and his testimony deserving of little weight. The trial
court then said it did not believe that Cory thought he was taking
an unloaded shotgun into the house and that the occupants
would just turn over the drugs when he showed the shotgun to
them.
10
The trial court found that the People met their burden of
proving beyond a reasonable doubt that Cory was a major
participant in the felony and acted with reckless indifference to
human life. The trial court explained that Cory was a major
participant because he went on several drug buys with his
cohorts on February 6, 7, and 8 to determine the right time to rob
Reilly. Cory was present when Portillo and Pereira talked to
Russell about whether Reilly had guns in the house and who
lived there. Cory entered the house with a loaded shotgun, which
elevated the risk of death and danger and caused the occupants
to react and defend themselves. “And by pulling up the shotgun
with a finger on the trigger, Mr. Cory signaled he was prepared
to kill during the robbery.”
As to the reckless indifference prong, the trial court found
that Cory knew that carrying a loaded shotgun and pulling it up
with his finger on the trigger would “ignite the confrontation and
likely lead to death.” He was armed, he knew that at least one of
his cohorts had a knife, and he knew that Reilly had guns in the
house. “[R]using the house occupants and pulling out a loaded
gun for a violent and criminal purpose is an egregious and
inherently dangerous act.” As he was in the room with his
cohorts, he had the opportunity to restrain them. As to the
event’s duration, it was “extended well beyond a typical grab-and-
go” robbery. It was unclear to the trial court what Cory knew of
his confederates’ propensity for violence, but he knew they were
trying to find out if they would face multiple armed residents at a
stash house, and a cohort was trying to find more guns to use.
Cory made no effort to minimize the risk of violence and instead
elevated it by pulling up a shotgun with his finger on the trigger.
And after lethal force was used, Cory simply left the house.
11
The trial court also found that Cory shared intent to kill,
based on his use of a loaded shotgun and his finger on the trigger.
The trial court therefore denied Cory’s petition.
DISCUSSION
I. Senate Bill 1437 and standard of review
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to the end of ensuring that a person’s sentence
is commensurate with the person’s individual criminal
culpability.7 (People v. Gentile (2020) 10 Cal.5th 830, 842–843.)
As relevant here, Senate Bill 1437 amended the felony-murder
rule by adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a direct
aider and abettor; or (3) the person was a major participant in
the underlying felony and acted with reckless indifference to
human life, as described in section 190.2, subdivision (d).
(Gentile, at p. 842.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid theory of murder may petition for vacation of their
convictions and resentencing. A defendant is eligible for relief
under section 1172.6 if the defendant meets three conditions: the
7 Senate Bill No. 775 expanded relief to convictions for
attempted murder and manslaughter, but Cory makes no
argument regarding his attempted murder conviction.
12
defendant (1) must have been charged with murder under a
theory of felony murder, (2) must have been convicted of first or
second degree murder, and (3) could no longer be convicted of first
or second degree murder due to changes to sections 188 and 189
effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a
petitioner makes a prima facie showing of entitlement to relief,
the trial court shall issue an order to show cause (§ 1172.6,
subd. (c)) and hold an evidentiary hearing at which the
prosecution bears the burden of proving “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (§ 1172.6,
subd. (d)(3)). The parties may offer new or additional evidence at
the evidentiary hearing. (Ibid.) A “finding that there is
substantial evidence to support a conviction for murder” is
insufficient to meet this required showing. (Ibid.) The trial court
sits as an independent factfinder to determine beyond a
reasonable doubt whether the defendant is guilty of murder
under a valid theory of murder. (People v. Garrison (2021) 73
Cal.App.5th 735, 745.)
On appeal, we review the trial court’s findings for
substantial evidence. (People v. Clements (2022) 75 Cal.App.5th
276, 298 (Clements); accord, People v. Mitchell (2022) 81
Cal.App.5th 575, 591.) Under that standard of review 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.” ’ ” (Clements,
at p. 298.) It is the trial court’s job to evaluate and resolve
contradictions in the evidence to make credibility determinations.
13
(Ibid.) It is our job on appeal to determine whether there is
substantial evidence, contradicted or not, to support a rational
fact finder’s conclusions beyond a reasonable doubt. (Ibid.) We
presume in support of the judgment the existence of every fact
that can be reasonably deduced from the evidence. (People v.
Owens (2022) 78 Cal.App.5th 1015, 1022.)
II. The trial court did not misapprehend what evidence it
could consider or the standard of review
Cory first argues that reversal is required because the trial
court improperly relied on the Court of Appeal opinion affirming
his judgment of conviction on direct appeal. We disagree.
At a section 1172.6 evidentiary hearing, admission of
evidence is 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.” (§ 1172.6, subd. (d)(3); see
also People v. Lewis (2021) 11 Cal.5th 952 [appellate opinion has
limited probative value in assessing whether prima facie case for
relief has been made].) Thus, trial courts should not rely on
factual summaries in prior appellate opinions when a section
1172.6 petition reaches a full-fledged evidentiary hearing.
(Clements, supra, 75 Cal.App.5th at p. 292.)
To support his argument that the trial court here relied on
the factual summary in the appellate opinion, Cory cites the
minute order from the evidentiary hearing, the parties’ briefing
stating the facts as derived from the appellate opinion, and a
comment the trial court made at the evidentiary hearing. The
trial court’s minute order, however, merely stated it admitted the
14
appellate opinion as an exhibit. It did not state that the trial
court relied on the factual summary in reaching its decision. As
for the parties’ briefing, it has little bearing on what the trial
court read and considered in denying the petition. And while the
trial court noted that the Court of Appeal had inferred Cory’s
intent to kill Reilly and Johnson from the jury’s finding of guilt
on the attempted murder count, the trial court went on to explain
why it believed Cory acted with intent to kill, citing his use of a
loaded shotgun with his finger on the trigger.
In any event, the trial court said multiple times that it had
reviewed the entire record from Cory’s criminal trial. At a
hearing to discuss procedural matters, the trial court said it had
the trial transcripts on a CD but preferred to review a hard copy
the People had attached as an exhibit, further commenting that it
wanted to review the record in preparation for the evidentiary
hearing. Then, at the outset of the evidentiary hearing, the trial
court made a record of what it had reviewed, including the trial
transcripts and the Court of Appeal decision affirming the
judgment of conviction. Moreover, the trial court said it had
“very carefully” read Cory’s trial testimony—something that its
pointed questions at the hearing, its observations about how
Cory’s hearing testimony differed from his trial testimony, and
its detailed ruling confirms. The record thus shows that the trial
court did not improperly just read and rely on the appellate
opinion to inform itself of the facts. It scrupulously read the trial
transcript. The suggestion that the trial court read the entire
trial transcript but disregarded it to rely on the Court of Appeal’s
factual summary is therefore meritless. (See, e.g., Clements,
supra, 75 Cal.App.5th at p. 293 [“As far as we can discern, the
15
trial judge admitted the prior appellate opinion, but did not rely
on it.”].)
For these reasons, we reject Cory’s related contention that
his counsel below rendered ineffective assistance by adopting the
prosecutor’s statement of facts which in turn relied on the
appellate opinion. Indeed, we fail to see how this can be, given
that Cory’s counsel presented new evidence, namely, Cory’s
testimony, at the evidentiary hearing and therefore clearly was
not relying on any other party’s summary of facts or the one in
the appellate opinion. (See generally Strickland v. Washington
(1984) 466 U.S. 668 [ineffective assistance of counsel claim
requires error and prejudice].)
Cory raises a second argument in his reply brief, that the
trial court misapprehended its role as an independent factfinder
that was required to decide whether the prosecution proved
beyond a reasonable doubt Cory’s guilt of murder under a valid
theory, and instead used a sufficiency of the evidence standard.
We do not, however, consider arguments raised for the first time
in a reply brief because it is unfair to the respondent, who has no
opportunity to respond. (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894–
895, fn. 10; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754,
764.) In any event, the argument is meritless. The trial court
acknowledged that “the People have the burden to prove beyond a
reasonable doubt that the record of conviction supports the
murder conviction.” The trial court then found that the People
“met that burden as the evidence proves beyond a reasonable
doubt that the defendant was a major participant in the
underlying felony and acted with reckless indifference to human
16
life.” Nothing in the record shows that the trial court relied on
the wrong standard of proof.
III. Sufficiency of the evidence Cory was a major participant in
the felony who acted with reckless indifference to human
life
Cory contends that the trial court erred by denying his
section 1172.6 petition because there was insufficient evidence to
support its conclusion that he was a major participant in the
felony who acted with reckless indifference to human life. After
setting forth our California Supreme Court’s articulation of the
factors relevant to determining who is a major participant who
acts with reckless indifference to human life, we explain why
sufficient evidence supports the trial court’s finding that Cory
met that definition.
A. What it means to be a major participant who acts
with reckless indifference to human life
This area of law regarding what it means to be a major
participant in a crime who acts with reckless indifference to
human life has its genesis in two United States Supreme Court
cases: Enmund v. Florida (1982) 458 U.S. 782 and Tison v.
Arizona (1987) 481 U.S. 137. Enmund held that the death
penalty could not constitutionally be imposed on an armed
robbery getaway driver who was a minor participant in the crime,
was not present when the murder was committed, and had no
intent to kill. (Enmund, at pp. 798, 801.)
In contrast, Tison v. Arizona, supra, 481 U.S. at page 139,
did not preclude imposing the death penalty for two defendants,
brothers, who had helped their father and his cellmate—both
convicted murderers—escape from prison. The defendants gave
17
them guns, and the group later kidnapped a family of four. The
defendants then stood by while their father debated whether to
kill the family and proceeded to shoot the family, including a
toddler and a teenager. (Id. at pp. 139–141.) The court held that
the Eighth Amendment does not prohibit imposing the death
penalty on a nonkiller who lacked the intent to kill, but whose
“participation [in the crime] is major and whose mental state is
one of reckless indifference to the value of human life.” (Id. at
p. 152; see also id. at pp. 157–158.)
Years later, in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), our
Supreme Court addressed Enmund and Tison and substantially
clarified the “major participant” and “reckless indifference to
human life” requirements. Banks, at page 794, considered “under
what circumstances an accomplice who lacks the intent to kill
may qualify as a major participant.” The court listed various
factors that should be considered in making that determination:
“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?” (Id. at p. 803, fn. omitted.)
The court then turned its attention to “reckless indifference
to human life” in Clark. Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to
18
carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.)
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.”
(Id. at p. 617.) Recklessness has both a subjective and an
objective component. (Ibid.) Subjectively, the defendant must
consciously disregard risks known to him. Objectively,
recklessness is determined by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” that is, whether defendant’s
conduct “ ‘involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would
observe.’ ” (Ibid.)
Clark listed factors to consider when determining whether
reckless indifference existed: “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
[summarizing Clark factors].)
B. Major participant
Cory’s contention that he was not a major participant rests
on his reweighing of the evidence and resolution of inferences and
credibility determinations in his favor. However, as we have
said, the trial court found Cory not credible, and the standard of
review does not allow us to find otherwise. (See generally
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Clements, supra, 75 Cal.App.5th at p. 298.) The standard of
review also does not allow us to resolve contradictions in the
evidence in Cory’s favor, where the trial court resolved them
against him. Thus, Cory’s observation that many facts were
“contested” is of little moment.
Turning to the Banks factors, the evidence suggests that
Portillo took the lead in planning the robbery. Nonetheless, as
the trial court found, there was also evidence Cory was present
during at least one discussion between Portillo, Pereira, and
Russell about whether Reilly had guns in the house and who
lived with him. Although Russell said that Cory was quiet
during that conversation, he would have nonetheless been aware
of what they were planning. Further, Cory went with Portillo
and Pereira to buy drugs from Reilly at his auto shop in the days
immediately preceding the murders. Although there was no
evidence about what was said during these trips, a reasonable
inference is they were information-gathering forays because, for
example, Russell said that Portillo gave her just $10 to buy
methamphetamine, but she couldn’t buy enough
methamphetamine with that amount to get four people high.
And although Cory cites his own testimony that he had no idea
Pereira and Portillo would be at Reilly’s house, the trial court did
not believe that testimony. The evidence shows that Cory
participated in planning the robbery, so this supports the trial
court’s finding he was a major participant.
Cory’s relationship to the weapons also supports that
finding. Although the evidence shows that Portillo procured the
shotgun, it was Cory who used it. It is hard to use a gun during a
crime and not be considered a major participant. Further, at
least Watkins and Pereira had knives. Although Cory denied
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knowing that Watkins had a knife, the trial court did not believe
Cory. Indeed, Watkins and Cory drove to Reilly’s house together
and Watkins walked into the house with the knife out. The trial
court therefore had reason to disregard Cory’s attempt to
distance himself from the weapons.
As for what Cory knew of any particular dangers posed by
the proposed crime, weapons used, and his confederates, the
evidence is not as clear. Cory had not known Watkins, Portillo,
and Pereira for long, and there is no evidence they had any
propensity for violence that Cory knew about. But Cory was
present when Russell said Reilly kept guns at his house, which
should have signaled that the situation could be volatile.
Based on these Banks factors, there was sufficient evidence
to support the trial court’s finding that Cory was a major
participant.
C. Reckless indifference to human life
Cognizant that the Banks/Clark factors overlap, we
reexamine Cory’s use of the shotgun and knowledge that weapons
would be used in the context of how it shows reckless indifference
to human life. The trial court disbelieved Cory’s story that he
didn’t know about the shotgun until just before entering Reilly’s
house, when Watkins supposedly made him take it. There was
reason to disbelieve this story: Cory was present when Portillo
asked Russell whether Reilly had guns in his house, and Cory
drove with Watkins to the house, raising an inference he would
have seen the shotgun in the car. Although Cory’s mere
knowledge that he and Watkins were armed is insufficient by
itself to establish reckless indifference to human life (see, e.g.,
Clark, supra, 63 Cal.4th at p. 617), Cory actively used his gun to
threaten the victims. Cory entered the house with the gun
21
hidden under his coat but, once inside, moved his coat aside to
show the shotgun, raised it, and moved his finger to the trigger.
As the trial court said, “And by pulling up the shotgun with a
finger on the trigger, Mr. Cory signaled he was prepared to kill
during the robbery.” Such use of his gun enabled the murder and
exhibited reckless indifference to human life. (See, e.g., People v.
Bradley (2021) 65 Cal.App.5th 1022, 1033 [wielding gun during
robbery reflects reckless indifference to human life]; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1089.) Similar to here, the
Bascomb defendant used his gun to threaten and keep victims at
bay during a bank robbery, thereby actively enabling the murder.
The Bascomb defendant did not discharge his gun and yet was
found to have exhibited reckless indifference to human life by
merely displaying it threateningly.
As for Cory’s presence at the crime scene, he was struggling
with Aiken over control of the shotgun when Aiken was stabbed.
Cory could have been in a position to see the stabber—the
evidence suggests Pereira—approach Aiken with a knife and
have time to warn Aiken or try to stop the stabber. (See, e.g., In
re Loza (2017) 10 Cal.App.5th 38, 51, 53 [petitioner had time to
observe and react before murder because he heard killer threaten
to shoot clerk and count to five before doing so].) However, there
was evidence that these events transpired quickly, which could
suggest Cory had little time to control his accomplices’ actions,
especially with respect to the stabbings of Reilly and Johnson.
(See, e.g., In re Scoggins, supra, 9 Cal.5th at p. 679 [quickness of
shooting suggested defendant lacked control over accomplices’
actions]; People v. Ramirez (2021) 71 Cal.App.5th 970, 989
[defendant lacked meaningful opportunity to intervene when he
and shooter were on opposite sides of victim’s car, and attempted
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carjacking was quickly executed]; In re Moore (2021) 68
Cal.App.5th 434, 452 [defendant not “ ‘close enough’ ” to restrain
shooter].) However, the evidence also shows that Cory and
Watkins left while Portillo and Pereira were still in the house;
yet, Cory did nothing to try and get them to leave or to otherwise
restrain them. While Cory might argue he was in no physical
position to do so because he had been hit on the head, the trial
court was entitled not to agree. Even a brief opportunity is still
an opportunity to intervene to prevent violence. (In re McDowell
(2022) 55 Cal.App.5th 999, 1012 [defendant was knocked to the
ground but still had brief opportunity to say or do something to
restrain accomplice].)
There is no evidence Cory did anything to minimize the
risk of violence. Instead, the evidence is he heightened the risk of
violence. He and his accomplices scoped out Reilly by going to his
auto shop. They also chose to rob a drug dealer’s house when
they knew he and others would be home, given the time of night
(11:00 p.m.) and that Russell had told them multiple people lived
there and that at least Palmer was always home. (See, e.g.,
People v. Owens, supra, 78 Cal.App.5th at p. 1024 [bank robbery
posed high risk of violence because it occurred during business
hours with 20 people present and robbers were armed].) Had
they wanted to minimize the risk of violence, they could have
robbed the house when Reilly was at his auto body shop. Also,
the plan had Pereira going into the house first under the ruse he
was there to apologize to Reilly. Pereira then let his armed
accomplices in, giving them the element of surprise and ambush.
Cory and his accomplices entered the house armed, likely
anticipating armed resistance and prepared to meet it. Such a
decision to arm oneself, viewed in combination with the
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particularly risky crime involved—a home invasion robbery of a
methamphetamine dealer known to have guns in his home—
shows this was not a garden-variety robbery. (See, e.g., In re
McDowell, supra, 55 Cal.App.5th at p. 1011; People v. Mora
(1995) 39 Cal.App.4th 607, 611 [defendant who entered drug
dealer’s house to rob him had to know of risk of resistance to
armed home invasion and extreme likelihood death could result].)
The potential for such a robbery to turn violent is “obvious.”
(McDowell, at p. 1011.) The occupants’ reactions to the shotgun
underscores that Cory’s use of it heightened the risk of violence.
Aiken immediately reasoned that he had to grab for the shotgun
because he knew he and the others wouldn’t survive a gun attack,
and Reilly called out to Johnson for help by yelling that there was
a gun. Cory’s use of the shotgun thus prompted a violent
response. Instead of preventing resistance and the risk of death,
the evidence supports a finding that Cory’s conduct contributed
to Reilly’s and Johnson’s deaths.
As for what Cory knew about any propensity for violence
Watkins, Portillo, and Pereira might have had, there is little
evidence on this factor, except perhaps some knowledge that
Portillo and Pereira were angry with Reilly and seeking revenge.
The trial court thus said it was unclear what Cory knew about
his confederates’ propensity for violence, although the trial court
also noted that they were trying to find out if they would face
multiple armed residents at a stash house, and Portillo was
trying to find more guns to use. Thus, while this evidence may
not speak to what Cory knew about any propensity for violence
his accomplices had, he knew they were anticipating and
preparing for violence.
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Next, sufficient evidence supports the trial court’s finding
that the crime was of some duration and longer than a “grab and
go” operation. Generally, there is a greater opportunity for
violence when victims are held at gunpoint or restrained for
prolonged periods. (Clark, supra, 63 Cal.4th at p. 620.) Here,
Pereira went inside the house first to draw out Reilly by
pretending he was there to apologize. Pereira then let in
Watkins, Cory, and Portillo, at which point they began fighting
with the occupants of the house. Relying on his own testimony
that he was in the house only 30 or 40 seconds before someone hit
him, Cory argues that the crime was of short duration. The trial
court did not credit Cory’s testimony but, in any event, this is not
the accurate measure of the crime’s duration. Rather, the crime
began when Pereira entered the house and lasted until at least
all the robbers left.
And while Cory points out that there was evidence he left
while the crime was ongoing, this does not necessarily negate his
reckless indifference. Rather, if he left while Portillo and Pereira
were still fighting with Reilly and Johnson, this confirms he did
nothing to restrain his accomplices. At a minimum, he failed to
give aid to at least Aiken, who was stabbed before Cory left the
house. Such failure to aid victims shows reckless indifference to
human life. (See, e.g., Clark, supra, 63 Cal.4th at p. 619; In re
Parrish (2020) 58 Cal.App.5th 539, 544 [reckless indifference
shown by failure to pause to aid or comfort victim]; People v.
Douglas (2020) 56 Cal.App.5th 1, 10 [petitioner “displayed no
interest in moderating violence or in aiding his bloody and
suffering victim,” and instead picked his pocket].)
The totality of the Clark factors, and in particular Cory’s
use of the shotgun and acts that heightened the risk of violence,
25
supports the trial court’s finding that Cory acted with reckless
indifference to human life. Because we therefore conclude that
there was sufficient evidence to support the trial court’s finding
that Cory was a major participant in the felony who acted with
reckless indifference to human life, we need not address whether
the evidence also supported the trial court’s finding that Cory
had the intent to kill Johnson and Reilly.
DISPOSITION
The order denying Ronald Cory’s Penal Code section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
LAVIN, J.
EGERTON, J.
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