People v. Wildman CA4/1 ( 2022 )

Filed 12/23/22 P. v. Wildman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078745
Plaintiff and Respondent,
v. (Super. Ct. No. FVI1301535-3)
VALERIE WILDMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Debra Harris, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Melissa Mandel, Lynne McGinnis and
Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.
Valerie Wildman is currently incarcerated following her conviction for
first degree murder. She appeals the trial court’s order denying her petition
for resentencing under Penal Code,1 section 1172.6. She argues insufficient
evidence supports the court’s finding she acted as a major participant in the
robbery with reckless indifference to human life. We affirm.
FACTUAL BACKGROUND
This court’s unpublished opinion People v. Ronell Frederick Bolden et
al. (July 30, 2019, D074574) (Bolden) sets forth the procedural background,
and we supplement it with other trial evidence.
Separate juries convicted Ronell Frederick Bolden and Wildman of first
degree murder (§ 187, subd. (a); count 1), attempted robbery (§§ 664, 211;
count 2), and robbery (§ 211; counts 5 and 6). The crimes were committed in
the early morning hours of October 7, 2012. The victim of the attempted
robbery and murder was Duane Murley.
The People’s original complaint also charged LaShawn Hay (Bolden’s
mother) and Phillip Peterson (Bolden’s cousin and Hay’s nephew) with
murder and attempted robbery. A later-filed information charged Peterson
with counts 1, 2, 5, and 6, and charged Hay of being an accessory after the
fact (count 4). Peterson and Hay entered into plea agreements and testified
at trial. (Bolden, supra, D074574.)
Wildman’s jury found three firearm use allegations true as to each of
counts 1 and 2 (§ 12022.53, subds. (b-e)), and one firearm use allegation true
as to each of counts 5 and 6 (§ 12022.53, subd. (b)). As to all four counts, the
jury found that Wildman committed the crimes for the benefit of or in
association with a criminal street gang. (§ 186.22, subd. (b)(1).) The court
1 All undesignated statutory references are to the Penal Code. The
Legislature amended section 1170.95 and renumbered it as section 1172.6
without substantive change (Stats. 2022, ch. 58, § 10). We refer to section
1172.6 in this opinion.
2
sentenced her to a determinate prison term of 26 years and an indeterminate
term of 50 years to life. (Bolden, supra, D074574.)2
Prosecution Case
On October 6, 2012, Bolden’s and Peterson’s grandmother hosted a
barbeque to celebrate Bolden’s 21st birthday, which Bolden, Peterson, Hay,
and Wildman attended. It ended between 10:00 p.m. and midnight.
Peterson testified at trial that Wildman subsequently drove him,
Bolden, and Hay to a nightclub. There, Wildman bought alcohol for the
group, and they all were drinking a lot. In the club, Wildman started talking
to Bolden and Peterson about committing a robbery in order to recoup the
money she spent on drinks. She urged Bolden and Peterson to commit a
robbery at a nearby restaurant.
Police interviewed Peterson, who was 18 years old at the time the
crimes were committed. Police asked him why Wildman talked about
committing the robberies. He replied, “Because she wanted some more liquor
and stuff.” Police asked whether Bolden “was good to do that?” Peterson
answered, “Well, he didn’t want to do it at first, but, [Wildman] . . . it was
kind of like she forced people, like, not really forced, but . . . .” The police
interjected, “Pushing the issue?” Peterson answered, “Yeah.”
2 Bolden’s jury found three firearm use allegations true as to each of
counts 1 and 2 (§ 12022.53, subds. (b-d)), and one firearm use allegation true
as to each of counts 5 and 6 (§ 12022.53, subd. (b)). As to counts 5 and 6, the
Bolden jury also found true an allegation that Bolden committed the
robberies for the benefit of or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). Bolden’s jury was unable to reach a verdict on gang
enhancement allegations as to counts 1 and 2. Consequently, the court
declared a mistrial as to those allegations and dismissed them as to Bolden.
The court sentenced Bolden to a determinate prison term of 29 years four
months and an indeterminate term of 50 years to life. (Bolden, supra,
D074574.)
3
Peterson testified Wildman drove the group to the restaurant, saw
some people in the parking lot and said they “could get those people right
there.” Bolden and Peterson left the vehicle. Peterson saw Bolden take a
gun from his waistband. They walked up to two men, and Bolden “had
words” with the men, and Peterson frisked them, took one’s cell phone and
the other’s chain. Peterson testified that he heard Bolden say “gang stuff”
like “Rolling 60 Crip.” Bolden and Peterson then got back into Wildman’s
vehicle and she drove away. (Bolden, supra, D074574.)
Police in the interview asked Peterson if Wildman saw Bolden’s gun,
and he answered, “Yeah.”
A San Bernardino County Deputy Sheriff responded to the restaurant
robberies in the early morning of October 7, 2012, and contacted one of the
victims, who said a man, later identified as Bolden, pulled a revolver from his
waistband and pointed it at the victims, saying he was from a gang. Bolden’s
companion, later identified as Peterson, frisked them for their property. That
victim gave Peterson $60 and a silver watch. (Bolden, supra, D074574.)
Peterson testified that after he and Bolden committed the first
robberies, they got back into Wildman’s vehicle with Wildman and Hay and
Wildman drove away. They drove for a while looking for more people to rob.
Eventually, Wildman decided to drive to a bank. A truck was parked in front
of it, and Peterson saw a man exit the truck and walk toward an ATM in
front of the bank. Wildman backed her vehicle into a parking space at the
side of the bank and told Bolden and Peterson to “get out and go get him.” A
detective testified that when he interviewed Hay, she said Wildman had
ordered a “lick”—meaning a robbery—at the bank. (Bolden, supra, D074574.)
Peterson said when he and Bolden exited Wildman’s vehicle, Bolden
walked ahead, holding the same gun. Peterson stopped and lost sight of
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Bolden, who walked to the front of the bank. Peterson eventually heard two
shots. Immediately afterwards, Bolden ran back toward Peterson and the
two ran to Wildman’s vehicle. Inside the vehicle, Bolden said he “messed up.”
Wildman rapidly drove away. She dropped Peterson off at his grandmother’s
house. (Bolden, supra, D074574.)
A taxi driver testified that around 4:00 a.m. that day, she turned onto
the street where the bank was located, and saw a truck stopped partially on
the sidewalk with its engine running. She called 911, saying she could not
tell if the victim inside the truck was breathing. (Bolden, supra, D074574.)
Defense Case
Wildman did not testify at trial, but her police interview was admitted
into evidence. (Bolden, supra, D074574.) She was 47 years old when the
crimes were committed. As we summarized in Bolden, “Wildman told
detectives that on the night of Bolden’s birthday, she drove to [the club] with
Hay and from there went to [the restaurant] to get a cup of coffee because she
was not feeling good. She drove [there], parked, and went inside . . . to get
coffee and use the bathroom. When she came out of the restaurant, ‘there
was some commotion or what not’ but she did not know what it was about.
She had been in the restaurant about 10 to 15 minutes. When she returned
to her vehicle, Bolden and Peterson were present, and Hay asked Wildman to
give them a ride to the bank so Peterson could withdraw some money from an
ATM. Wildman did not know a robbery had occurred while she was inside
the restaurant.” (Bolden, supra, D074574.)
“Wildman told detectives that she drove to [the bank] with Hay,
Bolden, and Peterson, and that Bolden and Peterson got out of her vehicle at
the bank and she heard shots after they exited. After Bolden and Peterson
ran back to the vehicle, she drove away from the scene and dropped Hay,
5
Bolden, and Peterson off at Hay’s apartment. She repeatedly told the
detectives throughout the interview that she did not see the shooting at the
bank and did not see a gun or know that Bolden had a gun.” (Bolden, supra,
D074574.)
Wildman described for police Bolden’s violent conduct, and what she
called his “crazy” tendencies. She admitted being afraid of Bolden’s temper
and what he “could do.” She agreed that Bolden was “violent,” and twice
stated that he “would beat his mother up for a dollar.” Wildman said she had
seen Bolden beat up his stepfather. She also said that after the attempted
bank robbery, she just wanted to get Bolden “home because I know that [he]
is . . . [s]cary.” She added, “honestly, [Bolden has] never given me any
problems. I know he is a problem, because [his mother] has told me he’s a
problem. Like, I know he’s beat up his girlfriend, went to jail for it, certain
things like that.”
Wildman explained her immediate conclusion when Bolden and
Peterson returned to her vehicle after the bank shooting: “I thought, in my
mind, that if [Bolden] doesn’t get his way, shit hits the fan. Windshields get
broke, things happen. That’s what I figured, ‘Oh he didn’t get the money,
here we go again. We’re gonna go through the broken windshield or the car
getting thrown in to park.’ Things like that. That’s exactly what I thought.”
Wildman said that when Bolden gets into one of his rage spells, “You almost
have to have like a taser.”
As we stated in Bolden, Wildman knew about Bolden’s gang
membership because in her police interview, she “initially denied attending
the barbecue, stating she did not go because she heard it would be attended
by people from Inglewood and she knew ‘they’re gang bangers.’ She later
stated that Hay had told her Bolden was ‘a Crip’ in Los Angeles and that Hay
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and Bolden had moved to Victorville because Bolden ‘had gotten himself in
some trouble[.]’ Wildman added that Bolden ‘always wears a stupid rag on
his head.’ When asked to describe the rag, she said she thought it was blue
and that her boyfriend said it was ‘Crip.’ ” (Bolden, supra, D074574.)
This court affirmed that judgment on direct appeal. (Bolden, supra,
D074574.)
The Resentencing Petition
Wildman filed a petition for resentencing. At the contested hearing on
Wildman’s section 1172.6 resentencing petition, neither party presented any
witness or new evidence. The same judge who had presided at trial ruled on
this petition and denied it, finding the prosecution met its burden of showing
Wildman could be convicted of felony murder under current law: “I don’t find
that [Wildman] had a good faith but unreasonable belief she was posing a
risk to human life in pursuing this felony. [¶] I specifically found that there
was sufficient evidence beyond a reasonable doubt that the jury could have
found [Wildman] was the ring leader, drove the vehicle into the bank’s
parking lot[.] [I] found evidence that [Wildman] knew that [Bolden] was
violent. Any circumstantial evidence to the contrary would have been
unreasonable and would have just been rejected. [¶] . . . [¶] I also found
that [Wildman] had a careless attitude that she was concerned about the
shooter having a gun and using it in light of there being a prior robbery that
had occurred shortly prior to this one. [¶] I also found that this was not a
spontaneous response . . . by the shooter to any kind of resistance, because,
remember, the evidence was that the victim was desperately trying to flee.
. . . [¶] [I] also found that [Wildman] . . . did not act solely as a getaway
driver. After witnessing the killing, [she] did not call 911 to assist but drove
7
the shooter home, not knowing whether or not help would eventually arrive,
even though there was a cab driver who eventually arrived on the scene.”
DISCUSSION
I. Senate Bill No. 1437 and Other Applicable Law
“As relevant here, Senate Bill [No.] 1437 significantly limited the scope
of the felony-murder rule to effectuate the Legislature’s declared intent ‘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.’
[Citations.] . . . [S]ection 189, as amended, now limits liability under a
felony-murder theory principally to ‘actual killer[s]’ [citations] and those who,
‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of
murder in the first degree’ (id., subd. (e)(2)). Defendants 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, as described in subdivision (d) of . . .
[s]ection 190.2’— that is, the statute defining the felony-murder special
circumstance.” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
“Senate Bill [No.] 1437 also created a special procedural mechanism for
those convicted under the former law to seek retroactive relief under the law
as amended.” (Strong, supra, 13 Cal.5th at p. 708.) Unless the parties
stipulate that the defendant is eligible for resentencing, the court must “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 state law as amended by Senate Bill [No.] 1437.
(§ 1172.6, subd. (d)(3).)” (Strong, at p. 709.) At the hearing, the court may
consider previously-admitted evidence, so long as it remains “admissible
8
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).) The parties may also offer new or additional evidence to meet their
respective burdens. “ ‘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, at p. 709.)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) Murder committed during the perpetration
of a robbery (felony murder) is first degree murder. (§ 189, subd. (a).) As
relevant here, an accomplice must be “a major participant” in the robbery
who acted “with reckless indifference to human life.” (§ 190.2, subds.
(a)(17)(A), (d).) The law “thus imposes both a special actus reus requirement,
major participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.” (People v. Banks (2015) 61 Cal.4th 788,
798 (Banks).) “ ‘These requirements significantly overlap . . . for the greater
the defendant’s participation in the felony murder, the more likely that he
acted with reckless indifference to human life.’ ” (People v. Clark (2016) 63
Cal.4th 522, 615 (Clark).)
In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th at p. 522,
the California Supreme Court “clarified the meaning of the special
circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 671.) In Banks,
the court held a “major participant” in a robbery is someone whose “personal
9
involvement” is “substantial” and “greater than the actions of an ordinary
aider and abettor.” (Banks, supra, 61 Cal.4th at p. 802.) However, he or she
“need not be the ringleader.” (People v. Williams (2015) 61 Cal.4th 1244,
1281, cited with approval in Clark, at pp. 614, 619.)
Determining whether a defendant was a major participant requires a
court to consider the totality of the circumstances. (Banks, supra, 61 Cal.4th
at p. 802.) Banks identified five nonexclusive factors for evaluating the
extent of a defendant’s participation: “[(1)] What role did the defendant have
in planning the criminal enterprise that led to one or more deaths? [(2)]
What role did the defendant have in supplying or using lethal weapons? [(3)]
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? [(4)] 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? [and (5)] What did the
defendant do after lethal force was used?” (Id. at p. 803, fn. omitted.) None
of the above factors is necessary or necessarily sufficient, and all must be
weighed in determining the ultimate question of “whether the defendant’s
participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.)
In Clark, the court noted reckless indifference to human life “may be
‘implicit in knowingly engaging in criminal activities known to carry a grave
risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.) “ ‘[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.’ ” (In re Scoggins,
supra, 9 Cal.5th at p. 677, quoting Banks, supra, 61 Cal.4th at p. 801, and
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citing Clark, at p. 617.) However, the court cautioned that merely
participating in an armed robbery is not enough to show reckless indifference
to human life. (Clark, at pp. 615-616, 623.)
Courts must likewise view the totality of the circumstances to
determine whether the defendant acted with reckless indifference to human
life. (In re Scoggins, supra, 9 Cal.5th at p. 677.) Clark identified five
relevant but nonexclusive factors for evaluating this subjective requirement:
(1) the “defendant’s awareness that a gun [or other deadly weapon] will be
used,” whether the defendant personally used a lethal weapon, and the
number of lethal weapons used; (2) the defendant’s “[p]roximity to the
murder and the events leading up to it” and opportunity to either restrain the
crime or aid the victim; (3) whether the murder took place “at the end of a
prolonged period of restraint of the victim[ ] by the defendant”; (4) the
“defendant’s knowledge of . . . a cohort’s likelihood of killing”; and (5) whether
the defendant made an “effort[ ] to minimize the risks of violence in the
commission of a felony . . . .” (Clark, supra, 63 Cal.4th at pp. 618-622.)
Again, no single factor is necessary, nor is any one necessarily sufficient. (Id.
at p. 618.)
We must apply the deferential substantial evidence standard of review
to assess a petitioner’s claim that the special circumstance finding is not
supported by the record. (Banks, supra, 61 Cal.4th at p. 804; Clark, supra, 63
Cal.4th at p. 610.) We ask “whether, when evidence that is reasonable,
credible, and of solid value is viewed ‘in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the [special circumstance] beyond a reasonable doubt.’ ” (Clark, at p. 610.)
“We presume, in support of the judgment, the existence of every fact the trier
of fact could reasonably deduce from the evidence, whether direct or
11
circumstantial.” (Ibid.) We do not substitute our own evaluation of a
witness’s credibility for the factfinder’s. (People v. Koontz (2002) 27 Cal.4th
1041, 1078.)
II. Analysis
A. Major Participant
The first factor in determining if Wildman was a major participant in
the robbery and murder is, “What role did the defendant have in planning the
criminal enterprise that led to one or more deaths?” (Banks, supra, 61 Cal.4th
at p. 803.) Wildman concedes she “arguably planned the robbery to the
extent she drove the pair to [the restaurant] and then to [the bank].” The
trial court concluded Wildman was in fact the “ringleader” of the crimes.
Substantial evidence supports the finding Wildman orchestrated the crimes
by telling Bolden and Peterson to commit them for the specific purpose of
reimbursing her for the money she spent buying the group’s drinks at the
club. Wildman next decided to accomplish the plan by driving the group to
the specific restaurant she selected. She even identified the victims who
Bolden and Peterson should rob. After that successful robbery, Wildman
selected the bank where the second robbery would take place. She again
identified the specific victim to target. The record shows Wildman was more
than twice the ages of Bolden and Peterson; she knew they had been drinking
alcohol; further, at the early morning hour when the crimes were committed,
she controlled the means of transportation, as she drove them to and from the
crime scenes.
With respect to the second factor, “What role did the defendant have in
supplying or using lethal weapons,” (Banks, supra, 61 Cal.4th at p. 803) there
is no evidence Wildman did either. This factor weighs in her favor.
12
As to the third factor, “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” (Banks, supra, 61 Cal.4th at
p. 803), Peterson stated in his police interview that Wildman knew Bolden
had a gun when they left the vehicle to commit the restaurant robbery.
Wildman acknowledges Peterson’s statement, but counters, “there is no
context though for when she would be aware of it because there was no follow
up by the officer during this interview.” She also argues Peterson’s
“credibility was certainly questionable during that interview and it has to be
viewed in the light that he wanted to aid Bolden and hurt [Wildman].” But
under the above-referenced standard of review, we do not make credibility
determinations. (People v. Koontz, supra, 27 Cal.4th at p. 1078.)
As stated, Wildman knew Bolden was a gang member who had violent
tendencies. Wildman nonetheless argues, “there is a great distance between
knowing Bolden has a temper and knowing that Bolden was likely to shoot a
man during a robbery. There was no evidence of Bolden having previous
violent crimes outside of [Wildman’s] hearsay statement about him going to
jail.”
The record contains strong evidence Wildman knew or reasonably
should have known from the fact that Bolden carried a gun and how he
tended to react when he did not get his way, that a resisting victim was likely
to be killed during the robbery.
Wildman argues the People would not be able to carry the burden of
proving, beyond a reasonable doubt, that she remains guilty of murder under
our state’s current murder laws because “the evidence of gang membership
would not be admissible given the changes in law pursuant to [Assembly Bill
No.] 333. Further, substantively, gang membership by itself does not suggest
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lethality.” We acknowledge the law has changed, but not in a way that is
applicable here.3 Even assuming for the sake of argument that Wildman’s
police interview statements regarding Bolden’s gang membership are no
longer admissible to prove a gang crime or enhancement, Wildman has not
shown that those statements would be inadmissible for all purposes.
Specifically, in order to evaluate whether Wildman was a major participant
in the robbery and murder under the revised felony-murder special
circumstance law, her statement was relevant to show she knew enough
about Bolden’s gang past to be concerned about attending a barbeque where
3 The California Supreme Court has pointed out: “Assembly Bill [No.]
333 made the following changes to the law on gang enhancements: First, it
narrowed the definition of a ‘criminal street gang’ to require that any gang be
an ‘ongoing, organized association or group of three or more persons.’
(§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former
subdivision (f) required only that a gang’s members ‘individually or
collectively engage in’ a pattern of criminal activity in order to constitute a
‘criminal street gang,’ Assembly Bill [No.] 333 requires that any such pattern
have been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd.
(f), italics added.) Third, Assembly Bill [No.] 333 also narrowed the definition
of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to
show a pattern of criminal gang activity occurred within three years of the
date that the currently charged offense is alleged to have been committed; (2)
the offenses were committed by two or more gang ‘members,’ as opposed to
just ‘persons’; (3) the offenses commonly benefitted a criminal street gang;
and (4) the offenses establishing a pattern of gang activity must be ones other
than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth,
Assembly Bill [No.] 333 narrowed what it means for an offense to have
commonly benefitted a street gang, requiring that any ‘common benefit’ be
‘more than reputational.’ (§ 186.22, subd. (g).)” (People v. Tran (2022) 13
Cal.5th 1169, 1206.)
14
he would be present. She therefore was aware of the particular danger
Bolden posed because of his past experience.4
The fourth factor asks whether “the defendant [was] 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.”
(Banks, supra, 61 Cal.4th at p. 803.) Although Wildman was not alongside
Bolden during the second crime involving robbery and murder, she parked
her vehicle close enough to the bank to be able to see if anyone arrived at the
bank, and to facilitate her group’s getaway.
About the last factor, “What did the defendant do after lethal force was
used” (Banks, supra, 61 Cal.4th at p. 803), Wildman admitted to police she
4 We assume without deciding that Wildman’s police interview comments
would be admissible as party admissions under Evidence Code section 1220,
which provides in pertinent part: “Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the declarant in an
action to which he is a party . . . .”
We also need not decide whether Wildman’s comments qualified as
statements against interest under Evidence Code section 1230. Evidence of a
statement made other than by a witness while testifying and “offered to prove
the truth of the matter stated” is inadmissible unless it comes within a
hearsay exception. (Evid. Code, § 1200.) Evidence Code section 1230
provides that “a statement . . . is not made inadmissible by the hearsay rule if
declarant is unavailable as a witness and the statement, when made, . . . so
far subjected him to the risk of . . . criminal liability . . . that a reasonable
man in his position would not have made the statement unless he believed it
were true.” (Evid. Code, § 1230.) “[A] person’s interest against being
criminally implicated gives reasonable assurance of the veracity of his
statement made against that interest.” (People v. Spriggs (1964) 60 Cal.2d
868, 874.) “ ‘In determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is sufficiently
trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible
motivation of the declarant, and the declarant’s relationship to the
defendant.’ ” (People v. Grimes (2016) 1 Cal.5th 698, 711.)
15
realized that Bolden or Peterson had been involved in firing a weapon after
she heard the gunshots and based on Bolden’s and Peterson’s quick return to
the vehicle and Bolden’s emotional reaction once inside the vehicle. After
initially denying hearing gunshots, Wildman eventually admitted: “We
heard something, baam. And I said, ‘What the hell was that?’ And I went to
start the truck to leave and I said, ‘I’m getting the hell outta here.
Somebody’s shooting.’ ‘Cause I didn’t know at the time it was them in the
bank.” She also added, “I did know something was up. Because the way
they ran to the truck.” Nevertheless, she did nothing to try to help the
victim. To the contrary, she fled with the perpetrators. Therefore, this factor
weighs against Wildman.
Wildman argues, “There was no aid that could have been rendered to
the victim even if [she] had known the extent of the injuries. As the coroner
testified, with the head wound, it was too late even if [the victim] had been
immediately taken to the hospital. Even if she could ascertain that the
shooting was connected to the robbery, [she] could not ‘ “appreciate how badly
[the victim] was wounded.” ’ ”5 This argument misses the mark, as we must
evaluate this last Banks factor based on the information available to
Wildman at the time of the incident, and not on the coroner’s eventual
conclusion. The point here is that Wildman never even tried to help the
victim, despite the fact that she was close enough to have done so.
Balancing the above factors, we conclude the record contains
substantial evidence to support the conclusion that Wildman was a “major
participant” in the robbery. Only the second factor—that she did not supply
5 The prosecutor asked the forensic pathologist at trial whether the
victim would have survived the gunshot injury to his skull if it had occurred
first. She replied, “[N]o, even with the surgery it would be too late to get him
to the hospital.”
16
or use lethal weapons—unambiguously weighs in her favor. All of the other
factors weigh against her to a greater or lesser degree.
B. Reckless Indifference to Human Life
As stated, the major participant factors analyzed above and the
reckless indifference factors we now turn to “significantly overlap.” (Clark,
supra, 63 Cal.4th at p. 615.) Therefore, to the extent they overlap, we need
not repeat our analysis when considering these Clark factors.
The first Clark factor addresses the “defendant’s awareness that a gun
[or other deadly weapon] will be used,” whether the defendant personally
used a lethal weapon, and the number of lethal weapons used. (Clark, supra,
63 Cal.4th at pp. 618-619.) Only one gun was used in these crimes. Although
Wildman knew about Bolden’s gun, she did not use a gun during the
commission of the crimes. This factor is neutral, as it weighs partly in
Wildman’s favor and partly against her.
Regarding the second factor, the defendant’s “[p]roximity to the murder
and the events leading up to it” and the opportunity to either restrain the
crime or aid the victim (Clark, supra, 63 Cal.4th at pp. 619-620), this factor
also weighs partly against Wildman, as set forth above. Wildman was
instrumental in directing the events leading up to the murder. She had the
ability to restrain the murder by electing not to drive to the bank in pursuit
of another robbery victim. Even though once at the bank she was not close
enough to restrain the murder, she was close enough to have aided the
victim, but failed to do so.
The third factor addresses whether the murder took place “at the end of
a prolonged period of restraint of the victim[ ] by defendant.” (Clark, supra,
63 Cal.4th at pp. 620-621.) There is no evidence of a prolonged period of
restraint. This factor weighs in Wildman’s favor.
17
As for the fourth factor, the “defendant’s knowledge of . . . a cohort’s
likelihood of killing” (Clark, supra, 63 Cal.4th at p. 621), as set forth above,
this factor weighs against Wildman, who was aware Bolden carried a gun.
She also knew he belonged to a gang. She told police Bolden had a temper
when he did not get his way, and that he had beat his mother and girlfriend.
She should therefore have expected that a victim would likely resist a
robbery attempt, which would cause Bolden to use the gun to get his way.
The fifth factor addresses whether the defendant made an “effort[ ] to
minimize the risks of violence in the commission of a felony.” (Clark, supra,
63 Cal.4th at pp. 621-622.) Wildman asserts she never told Bolden to use
violence and, as evidenced by the restaurant robbery, “none should have been
necessary.” But this argument does not address any affirmative action
Wildman took to minimize the risks of violence. The record does not reveal
that Wildman did anything in that regard, particularly after she knew
Bolden had used a gun in the first robbery. This factor therefore weighs
against her.
Balancing the factors from Clark, supra, 63 Cal.4th 522, and
considering the totality of the circumstances, we conclude the record
demonstrates Wildman acted with reckless disregard for human life. Only
the third factor weighs in Wildman’s favor. Accordingly, on this record, we
conclude Wildman “ ‘knowingly creat[ed] a “grave risk of death,” ’ ” such that
she may be found to have acted with reckless indifference to human life.
(Scoggins, supra, 9 Cal.5th at p. 683.) The prosecution carried its burden of
proving, beyond a reasonable doubt, that Wildman remains “guilty of
murder” under our state’s current murder laws. (§ 1172.6, subd. (d)(3).) The
court therefore did not err in denying her petition for resentencing.
18
DISPOSITION
The order is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
19