People v. Thornton CA1/2 ( 2022 )

Filed 10/26/22 P. v. Thornton CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A160581
v.
MARVIN DOUGLAS JOHNSON, (Mendocino County Super. Ct.
No. SCUK CRCR 11-18259)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent,
A160566
v.
SIMON THORNTON, (Mendocino County Super. Ct.
No. SCUK CRCR 11-18259)
Defendant and Appellant.
In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (S.B. 1437) “ ‘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, [and] was not a
major participant in the underlying felony who acted with reckless
indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1,
2019, the new law narrowed the felony murder rule significantly for
defendants who were not actual killers and eliminated second degree murder
1
liability based on the natural and probable consequences doctrine. (People v.
Strong (2022) 13 Cal.5th 698, 703 (Strong); Pen. Code,1 §§ 188, subd. (a)(3),
189, subd. (e); People v. Gentile (2020) 10 Cal.5th 830, 841–843 (Gentile).) It
also provided a resentencing procedure for those convicted of murder under
the former law to have their convictions set aside if they could not be
convicted of murder under the law as amended by S.B. 1437. (Lewis, at p.
959; see § 1172.6.)
Years before S.B. 1437 was enacted, a jury convicted Marvin Douglas
Johnson and Simon Thornton (together, defendants) of first degree murder,
though it was undisputed neither was the actual killer, and subsequently
their convictions were reduced to second degree murder after direct appeals.
(See People v. Johnson (2016) 243 Cal.App.4th 1247, 1251–1252 (Johnson).)
In 2019, Johnson and Thornton each petitioned for resentencing under
S.B. 1437.2 After an evidentiary hearing, the trial court denied their
petitions, finding that each defendant was a major participant in an
attempted armed robbery and acted with reckless indifference to human life
and that they were thus guilty of first degree felony murder under current
law (see § 189, subd. (e)(3)).
Johnson and Thornton appeal. We conclude there is no substantial
evidence supporting the trial court’s findings that defendants acted with
reckless indifference to human life and, therefore, reverse the orders denying
defendants’ petitions for resentencing.
1 Further undesignated statutory references are to the Penal Code.
2The resentencing procedure was originally codified as section 1170.95
and that is the provision the parties cite in their appellate briefing. Effective
June 30, 2022, the provision has been renumbered section 1172.6 without
substantive change. (Strong, supra, 13 Cal.5th at p. 708, fn. 2.)
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FACTUAL AND PROCEDURAL BACKGROUND
A. Defendants’ Joint Criminal Trial
1. The Shooting and the Criminal Charges
As we summarized in our opinion on direct appeal, “On July 20, 2011, a
car sped into a campsite at Lake Mendocino at about 60 miles an hour and
skidded to a stop. Four men got out of the car: defendant Marvin Douglas
Johnson, defendant Simon Thornton, AJ Schnebly and William (Buck)
Crocker. Crocker, wearing a red bandana that covered his face from the nose
down, ran towards the group at the campsite, and with a gun in his hand,
shouted for everybody to get down on the ground. Within minutes, Joe
Litteral, who had been staying at the campsite, was shot to death and
Brandon Haggett, another visitor, was shot and seriously wounded.”
(Johnson, supra, 243 Cal.App.4th at p. 1251).
Johnson and Thornton were jointly tried on three counts: murder,
attempted murder, and attempted kidnapping. At trial, it was undisputed
that Johnson and Thornton were not the shooters. The prosecution
proceeded under two theories of murder liability that are no longer valid: first
degree felony murder without proof that defendants either acted with intent
to kill or were major participants in the underlying felony who acted with
reckless indifference to human life, and second degree murder based on the
natural and probable consequences doctrine. The prosecution relied on
attempted robbery and attempted kidnapping as the underlying felonies.
2. Prosecution Evidence
Deborah Cano testified that, in July 2011, she was married to Johnson
and they “were homeless and living on the ‘outside’ in a field in a tent in
Mendocino County. They had a 12-year, troubled relationship that Cano
described as ‘ups and downs, abusive, controlling.’ Johnson hit, beat and
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threatened her on many occasions and was also verbally and emotionally
abusive. She was afraid of Johnson and many times tried to leave him.
When she left he would send people to find her, or he would look for her
himself. . . .” (Johnson, supra, 243 Cal.App.4th at p. 1252.)
“In July 2011, Cano decided to get away from [Johnson]. Initially, she
went to AJ Schnebly’s house. She didn’t stay with Schnebly, however,
because he was Johnson’s friend and that made her feel unsafe. She ‘took off
walking’ until she ran into Joe Litteral, who was also homeless. . . .
[¶] Litteral offered to take Cano to the Pine Cone Motel where he had a room.
A lot of people were in and out of the motel, and three or four people spent
the night in Litteral’s room. Cano did not leave the room because she did not
feel safe. After she arrived, Johnson sent Schnebly and two other people to
check on her.
“The next day Cano, still at the Pine Cone Motel, overheard Johnson
and a friend of Litteral’s named Brandon Haggett on the phone. Johnson was
yelling at Haggett and she overheard Johnson saying, ‘I am going to kill you.
I am going to come there and I am going to kill you.’ . . .
“Cano and the other people who were staying with her and Litteral at
the Pine Cone Motel decided to go to the Bu-Shay campground at Lake
Mendocino. Cano estimated that there were at least nine people at the
campground, including two children. Brandon Haggett and Joe Litteral were
among this group.
“The day after they arrived, Johnson came up over the ridge ‘yelling
and screaming.’ He sent two or three people into the campground ahead of
him. Cano did not know them by name, but was familiar with them. Cano
did not speak with Johnson directly. Instead, she went inside her tent.
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Johnson stayed at the campsite into the evening hours eating, talking,
smoking marijuana and drinking with, among others, Litteral and Haggett.
“Toward the end of the evening, Johnson approached her. He said
things like ‘I am going to get you. I am going to get you back. I know I am
going to get you, and you better watch what you are doing. You better not
have them do anything, and if I see you doing anything, I’m going to hurt
somebody.’ Cano testified that Johnson said ‘if he seen me with Joe Litteral’
in a romantic way ‘he was going to hurt us.’ After Johnson left, Litteral told
her that she should stay in the tent with him because ‘we’re not going to let
nobody scare us.’
“Johnson went to the campsite next to theirs, where six or seven other
people were staying. He stayed the night. The next morning he was back at
Cano’s campsite ‘talking with all the guys.’
“On July 20, as it was becoming evening, a car pulled up ‘really quick’
to the tent where Cano was staying. The doors flew open. The first person
Cano recognized was AJ Schnebly, who had a pistol grip shotgun in his
hands. Cano did not see anything in Johnson’s hands. Schnebly racked the
shotgun. Moments later, Cano saw Brandon Haggett ‘fighting with a guy
with a handgun.’ This man (later identified as Crocker) was wearing a
bandana over his nose and mouth. Cano heard a gunshot and saw Haggett
drop to his knees.
“Litteral, who was about 55 feet away, ran toward Haggett. Cano saw
the man with the gun ‘shoot him, point blank.’ She heard a second shot, and
testified ‘I seen Joe [Litteral] go down. . . . I screamed, and I started running
over there . . . .’ At that point, Johnson ran toward her and grabbed at her.
As he did so he yelled, ‘Get in the fucking car, bitch.’ She ran the other way
5
towards Haggett and Litteral.” (Johnson, supra, 243 Cal.App.4th at pp.
1252–1254.)
“Brandon Haggett, one of the shooting victims, testified about the days
that led up to the incident and the shooting itself. In July 2011, Haggett was
staying at the Pine Cone Motel with his friend Joe Litteral. Cano came to
stay at the motel. Over the course of Cano’s first day at the motel, Haggett
answered five or six calls from a man who identified himself as Cano’s
husband. This man, who Haggett later learned was Johnson, told Haggett, ‘I
want her back,’ ‘[b]etter bring my wife back. I am going to kill you. I am
going to find you.’ . . . All of the conversations he had with Johnson contained
threats of some kind, including threats to kill.
“At several points, Cano spoke with Johnson on the phone. Haggett
heard her yelling at Johnson, and at one point she agreed to meet Johnson to
see if they could work things out. [¶] Haggett didn’t take Johnson’s threats
seriously because ‘people threaten people all the time when they are hurt.
They never act on it.’ But because the calls were creating ‘a lot of strain’
among the people at the motel, they decided to leave and go to a campground
at Lake Mendocino.
“A day after they arrived at the campground, Johnson showed up with
three other people. He was yelling at his wife, and she was yelling back at
him. Haggett told him ‘if you are looking for a fight, I am going to stop you
right here because you are not bringing this into the campground.’ Johnson
and his friends accepted Haggett’s invitation to stay to eat, drink beer and
smoke marijuana.
“The next day, July 20, 2011, at around dinner time, a car came
speeding into the campground about 60 miles an hour. The car skidded about
five feet before it stopped. Four doors swung open, and four men came out.
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One had a shotgun and one had a .45. Johnson came out of the right hand
passenger side rear door. Haggett did not see who came out of the driver’s
side.
“The man with the shotgun (Schnebly) stood by the car. The man with
the .45 (later identified as Crocker) was moving toward the campground. He
was running fast, and wore a wig and a red bandana that covered his face.
There were about 15 or 20 people at the campground. Crocker pointed the
gun in the air and then moved it around in a circle toward the people at the
campground and yelled ‘[e]verybody down on the ground.’ At the same time,
Johnson was yelling at Cano, ‘ “See what we can do? Get in the car.” ’
“Haggett told one of the women at the campsite to ‘ “[g]et the kids out of
here.” ’ Haggett then ‘made a split decision to protect the girls and
[Litteral’s] life.’ He ran up to Crocker, grabbed Crocker’s gun, put it to his
own chest and told Crocker ‘to pull the trigger a couple of times.’ When
Crocker did not pull the trigger, Haggett started fighting with him over the
gun. In the struggle over the gun, Crocker dropped to the ground on his
back. Haggett was on top of him, and it felt like Crocker was losing his grip
on the handgun.
“At that point, Haggett felt three ‘severe blows’ to the back of his head.
It sounded like metal hitting a rock. Haggett turned around to face the
person who was hitting him. He identified that person at trial as Thornton.
As Haggett pulled back his fist to hit Thornton, Haggett was shot point blank
in the chest by Crocker.
“Haggett tried to get up and saw Litteral start fighting with Thornton.
Crocker ran toward the car and then ‘turn[ed] back around and start[ed]
firing in Joe [Litteral]’s direction.’ Haggett heard three shots.
7
“Litteral dropped to his knees, and Haggett heard him yelling, ‘ “Oh
shit. I am dead.” ’ All the men ran toward the car. Johnson was by the car
and yelled to Cano to get into the car again. During the entire incident,
Johnson stayed by the car. When the men got in the car, Cano was over
where Litteral had fallen and Johnson ‘made no attempt to make sure he got
Deborah to leave . . . .’ ” (Johnson, supra, 243 Cal.App.4th at pp. 1254–1255,
fns. omitted.)
Evidence showed “Litteral bled to death from a gunshot wound that
perforated his right lung. His right arm was fractured by a blow with such
significant force that there was a tremendous amount of hemorrhage around
the broken bone. The forensic pathologist believed the bone was fractured by
something round and wooden that could create this amount of force and type
of injury, such as a baseball bat or a bowling pin. Haggett was shot in the
left arm and is now unable to extend his fingers or move his wrist on that
arm.
“Schnebly’s nephew, Kenny Kumpula, testified that after the shooting,
Thornton told him that he had gone to Lake Mendocino with Schnebly and
Crocker ‘[o]ver some money and a woman[,]’ and ‘to beat some people up[.]’
Thornton also told Kumpula that ‘people at the lake owed him money[.]’ ”
“Defendant Johnson gave several interviews to the police, substantial
portions of which were played for the jury. Johnson admitted he drove
Schnebly, Crocker and another person to and from the [campsite] where the
shootings took place. He told the police that he had told ‘AJ and those guys’
that there was ‘weed and cash’ at the campground, and that while at ‘the
creek’ in Willits the morning of the shootings he knew that they were ‘going
out there to rob these mother fuckers[.]’ . . . ‘I thought they were going out
there to argue and fight maybe and try to get their money or whatever but
8
not like that.’ At another point he explained that everybody was ‘out there
for the money and the weed that’s out there.’ He also admitted that he saw
Schnebly’s and Crocker’s guns before they arrived at the campsite. Johnson
told the police that when he was driving the men to the campsite
immediately before the shootings, he ‘knew they were driving out there to go
rob some people.’ Johnson related that the others told him ‘you’re just going
for the lady. We’re getting all the money.’
“After he was arrested, Johnson took the police to the place in Potter
Valley where the guns had been dumped after the shootings. He told them a
bat was there too, but no bat was recovered.” (Johnson, supra, 243
Cal.App.4th at pp. 1255–1256.)
In a recorded phone call from jail, “Thornton spoke to ‘Justin,’ and told
him that ‘there’s some things out I need to get, make sure that are disposed
of.’ . . . (When Thornton testified at trial, he admitted he was talking about
the guns used at the incident.) In another recorded phone call, Thornton told
his fiancé[e] Tanya Thurman to tell Schnebly that ‘we got rid of’ the thing
that Thornton ‘wanted to get from [Schnebly],’ and told her to ‘[t]ell
[Schnebly] all of that, nothing to worry about unless somebody that was with
us says something.’ Apparently referring to Kenny Kumpula (Schnebly’s
nephew and Thurman’s friend, and the person whose car was borrowed so the
entourage could drive to the lake on the day of the shootings), Thurman told
Thornton that Kumpula ‘wants to know why he got lied to by his uncle and
you and that he doesn’t care and that anyone who lies to him is dead to him.’
Thornton replied, ‘We did it to protect him because if he knew what was
really going on, it could be bad for him. And it wasn’t planned to go the way
it went.’ ” (Johnson, supra, 243 Cal.App.4th at p. 1256.) In another call,
Thornton asked Thurman “to tell Kumpula that a ‘good soldier’ ‘follows
9
orders.’ Thornton told Thurman to tell Kumpula that he ‘was looking at the
bigger picture. I was looking at making our life more comfortable. All of
ours.’ ” (Id. at p. 1257.)
3. Johnson’s Defense
Testifying in his own defense, Johnson denied he intended to aid a
robbery. (Johnson, supra, 243 Cal.App.4th at p. 1265.)
Describing his relationship with Cano, Johnson corroborated her
testimony that she left him in July 2011. Johnson knew Cano was staying
with Litteral and Haggett at the Pine Cone Motel, and he testified he both
went to the motel to talk to her and called her there. (Johnson, supra, 243
Cal.App.4th at p. 1260.)
“The next time Johnson saw Cano was at Lake Mendocino. He went
there to ‘talk to my wife and maybe she was going to come back with me. I’m
not sure. I wasn’t going to make her.’ At first, the conversation was ‘heated’
but ultimately, . . . Litteral . . . invited him into the campsite. He was
familiar with Litteral from running into him in Willits. Litteral told Johnson
that he thought Cano needed some time away from him. . . .
“Johnson . . . was ‘kind of hurt but I wasn’t going to bust a grape over
it.’ He decided to continue trying to talk to Cano about it, so he stayed
overnight at the next campsite. He heard Cano crying in the tent she was
sharing with Litteral. He understood she was crying because she didn’t want
him to be there. He also felt that she was trying to make people feel sorry for
her. He did not go to her tent to talk to her that evening.
“At the end of the evening, someone asked Johnson if he could help
them get some marijuana. Johnson talked to someone at another campsite
and made a deal with a man named Brackett whereby Johnson would receive
$100 for every pound that was bought. . . .
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“The next morning, July 20, Johnson introduced Brackett to Litteral
and a man named River to set up the marijuana deal. Johnson then left the
campground and went back to Willits. He met Crocker and some other men
‘at the creek.’ At some point Schnebly showed up. The men were talking,
‘smoking some pot, drinking some whisky, some beer.’ After Schnebly said he
was going to Lake Mendocino with some girls, Johnson told him that ‘Well,
okay if you guys go up there, ask them if a weed deal went through because
they owe me a couple hundred bucks.’ When Schnebly asked him to
elaborate, Johnson told him there might be ‘weed and money’ up there.
Johnson admitted he was ‘drinking so I kind of, you know, blabbed a lot to
him;’ he was ‘running [his] mouth, . . . [¶] . . . talking big talk.’ Johnson
bragged that he had set up a big marijuana deal.” (Johnson, supra, 243
Cal.App.4th at pp. 1260–1261.)
Later that day, Schnebly asked Johnson if he had a driver’s license
because he wanted Johnson to drive them (apparently referring to Crocker,
Schnebly, and Thornton, who had joined them) out to the lake. “Johnson said
he was not sure. . . . They approached him again and asked him to give them
a ride. His response was ‘[w]ell, I guess, I could try see if my wife’s ready to
go home yet or not.’ . . . (Johnson, supra, 243 Cal.App.4th at p. 1261.)
Schnebly’s nephew Kumpula loaned Johnson the car because he had a
driver’s license. Johnson claimed that his intention at that point “was to give
the three men a ride to the campsite. He knew they wanted ‘to do something’
but he ‘wasn’t really sure what . . . they wanted to do. Little bits and pieces
were coming out but not all at once.’ He described the men in the car as
‘talking amongst themselves like back and forth mumbling and stuff like
that, what was going to be going on. But I mean, I had a little inkling of
what was kind of going to go on, they were going to handle something, but
11
not for sure exactly what until we got there and everything went bad.’
Thornton was involved in this conversation ‘[b]ut not really as much as
[Crocker].’ [¶] Johnson testified that he might have heard about a handgun
before they went to Crocker’s trailer in Willits. Crocker got out of the car,
went into his trailer and got back in with a duffel bag. Johnson was ‘getting
a little suspicious here and there off of some things that were being said. . . .’
Johnson attributed his inability to remember some of the details of these
events to being ‘a little bit drunk’ that day.” (Johnson, supra, 243
Cal.App.4th at p. 1262.)
“When Johnson was asked why he changed his mind and agreed to
drive to the campsite, he said he ‘was thinking on what they were going to be
doing and my wife was out there I didn’t want her to get hurt or whatnot.’
He changed his mind because of ‘[t]heir actions, the way they were talking.’
The ‘bits and pieces’ he was hearing included ‘talk about going out there and
handling some business, coming up.’ To him ‘handling some business’ meant
‘they want to go out there [and] take whatever they were getting that I set
them up with.’ He admitted he understood that ‘they were going to go out
and take the stuff [he] had bragged to them about that might be up there.”
(Johnson, supra, 243 Cal.App.4th at p. 1262.) Johnson “was worried when
they were talking about ‘robbing,’ and Crocker came out [of his trailer] with
some bags.” (Id. at p. 1263.)
“Before they arrived at the campground, Johnson pulled off the road
and stopped the car. Thornton got out and took the duffel bag out of the
trunk. He handed it to Schnebly and then got back in the car. Schnebly
unzipped the duffel bag and started piecing together a shotgun sitting right
next to Johnson in the front seat. Johnson asked him what he was doing, but
still continued driving. Johnson [testified that he] did not get out of the car
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and leave because he was ‘kind of freaked out . . . I don’t mess with guns.’
This was the first time Johnson realized there was a shotgun inside the bag.
At that point he knew ‘what we’re going to be doing,’ but [he claimed at trial
that] he did not want any part of it.
“Johnson continued to drive through the guard gate to the campground.
He told the guard he was dropping off some supplies. A short way beyond
that, he stopped the car again. Crocker and Schnebly put on bandanas.
Crocker also unzipped his bag and put a magazine into his gun. Johnson saw
people putting clips in guns and racking a round into the shotgun.
“Crocker and Schnebly told him to drive up to the campsite. Johnson
agreed but ‘I was real hesitant on what I was wanting to do because I was
just stunned.’ He described himself as being a little scared and a little
anxious. But he knew ‘exactly [what] was going on at that point.’ He knew
they were going to use the guns and maybe commit a robbery. And he kept
driving them into the campground. (Johnson, supra, 243 Cal.App.4th at p.
1263.)
According to Johnson, he drove the car at a normal speed to the site
where his wife was staying. (Johnson, supra, 243 Cal.App.4th at p. 1263.)
He testified that “Schnebly opened his door first, pulled out the shotgun,
cocked it and said ‘ “Everybody on the ground.” ’ Crocker got out of his seat
behind Schnebly and ‘with his handgun out . . . he started pointing it at
people as he was walking.’ Crocker told everyone to get on the ground as
well. [¶] Johnson ‘got out of the car and . . . was standing with one leg in, one
leg out, and was holding the door . . . I was yelling “what the fuck? What the
fuck?” ’ He yelled out to Cano, ‘get—get fucking over here and get in the
fucking car.’ It was his intention to take Cano away as quickly as possible.”
(Id. at p. 1264.)
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Johnson testified that “Thornton was still in the car. He got out when
‘[Schnebly] asked [him] to get out of the car and go help [Crocker] while
[Crocker] was . . . getting jumped . . . .’ ‘Haggett was hitting [Crocker] in the
face with his fist. And Joe [Litteral] took off running with a log in his hand,
going, “Ahh,” like that, going toward them and then Joe started hitting
[Crocker] and he hit him right across the bridge of his nose with a stick. . . .
[¶] And then [Schnebly] tells [Thornton] to get out of the car and go help
[Crocker]. So [Thornton] got out of the car with the baseball bat, went over
there and he starts swinging on Mr. Haggett and then Mr. Litteral got hit in
the arm. . . . [¶] . . . That’s how the log got dropped . . . [Litteral] had the log
in the arm that he was swinging with and when he got hit in the arm the log
fell.’ Johnson recalled that the bat was a beat up aluminum bat with a black
piece on the handle.” (Johnson, supra, 243 Cal.App.4th at p. 1264.)
Johnson testified he “was ‘yelling a lot of shit out. . . . everything went
so fast . . . .’ His main concern was with his wife. He testified he did not
leave the car and get her, however. He knew she wouldn’t go with him
‘especially after the gun got fired.’ The gun was fired after ‘[Litteral] hit
[Crocker] in the face with the log and [Crocker] went down and he was on his
knee when he was pointing upward . . . .’ Johnson heard the gun go off two
times. Haggett ‘was probably on one knee from getting hit with the baseball
bat.’ Crocker got up and Johnson ‘heard the gun go off . . . as [Crocker] was
running away from them.’ Johnson thought Crocker was going to fire the gun
again, but Schnebly told him to stop. Johnson restarted the car and drove off
with Thornton, Schnebly and Crocker.” (Johnson, supra, 243 Cal.App.4th at
p. 1264.) “On the way back to town, Thornton said, ‘ “I cracked him a couple
of times.” ’ Johnson recalled that the bat was in Kenny Kumpula’s car when
14
they began driving and that Thornton had possession of it ‘[l]ike it was his
weapon.’ ” (Id. at p. 1264, fn. 7.)
“All the way back to Lake County, Crocker and Schnebly argued about
where they were going to hide out. Johnson took them to Potter Valley and
told them where to put the guns. . . . [¶] Schnebly and Crocker put the guns
in the bushes and Thornton threw the bat ‘deep into the bushes on the
driver’s side of the car. . . .’ Johnson was dropped off in Ukiah. He told them
‘You guys are on your own. I’m not hiding from nobody. I’m going to walk
right down the street. I didn’t do nothing.’ . . .
“Johnson was arrested the next day. He testified that in his interviews
with the police he began by minimizing his involvement altogether because
he was worried about ‘snitching’ and what would happen to him and his
family. Ultimately, however, he claimed he told the police the truth about
what happened. (Johnson, supra, 243 Cal.App.4th at pp. 1264–1265.)
“Johnson also testified that while he was in jail he had an altercation
with Thornton in which Thornton told him he was a ‘fucking snitch’ and that
he (Thornton) was going to ‘fucking kill you.’ This was not the first time
Thornton had threatened him.” (Johnson, supra, 243 Cal.App.4th at p. 1265.)
4. Thornton’s Defense
Thornton testified in his own defense. He met Crocker for the first
time on the day of the shooting, he had met Johnson once or twice before, and
he had only known Schnebly for about a week and a half. (Johnson, supra,
243 Cal.App.4th at p. 1258.) Thornton admitted that he was in the car with
Johnson, Crocker, and Schnebly on July 20 when they drove to the
campground, but he claimed he thought they were going to pick up Johnson’s
wife and he “ ‘was just going along for a ride.’ ” (Id. at pp. 1258–1259.)
Thornton testified that “Schnebly called Kenny Kumpula to use his car, and
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soon the four men got into the car and left town. Johnson drove. On the way,
Crocker ‘wanted to stop by the place where he was staying to grab a
backpack. So we did that. . . . [H]e came out with a green . . . Jansport
backpack, it might have been a duffel bag.’ Crocker put the backpack into
the trunk of the car.” (Id. at p. 1257.) They drove into the campground, and
Thornton saw Crocker put a mask over his face and Schnebly “ ‘start
assembling what looked like a shotgun,’ ” and Crocker also had a gun with
some clips and ammunition. (Id. at p. 1258.)
Thornton testified, “ ‘At one point they stopped. [Schnebly] opens the
door to [the] passenger front seat and gets out with the shotgun across his
body. . . . As he’s doing that, [Crocker] got out behind him. . . .’ ” (Johnson,
supra, 243 Cal.App.4th at p. 1258.) Thornton testified he was “ ‘freaking
out’ ”; he denied he ever left the car during the attempted robbery and denied
he carried a baseball bat. (Id. at pp. 1258–1259.)
According to Thornton, “Crocker and Schnebly got into the car, and
they all left. There was an argument in the car about where to go next.
Johnson wanted to get out of the car and leave, as did Thornton. Thornton
did not say anything. They went to Potter Valley to drop off the guns, and
then on to Ukiah. . . . Johnson said, ‘I had nothing to do with this. I didn’t
have no reason to be involved in this. I didn’t touch no gun, my hands are
clean. . . .’ Johnson got out of the car. Schnebly and Crocker had an
argument about who would drive the car, and Thornton volunteered to take it
back to Willits. On the way, Schnebly and Crocker threatened Thornton that
if he said anything they would hurt him and his fiancé[e], who was pregnant
at the time.” (Johnson, supra, 243 Cal.App.4th at p. 1259.)
16
5. Jury Verdicts
Johnson and Thornton were convicted of first degree murder and
attempted murder. The jury also found true firearm use allegations that a
principal in the crime was armed (§ 12022, subd. (d)) as to both charges. The
jury found both defendants not guilty of attempted kidnapping. Thornton
also was charged with personally using a deadly and dangerous weapon, “to
wit, bat” (§ 12022, subd. (b)(1)), as an enhancement to each of the counts, but
the jury did not reach a unanimous finding on the bat-use allegations, and
these allegations were later dismissed.
B. Direct Appeals
Defendants appealed, and this court concluded the trial court erred in
instructing the jury it did not have to unanimously agree on a theory of
murder where one of the theories was for murder in the first degree (felony
murder under section 189) and the other was for murder in the second degree
(natural and probable consequences liability). Finding the error prejudicial,
we conditionally reversed the first degree murder convictions and remanded
the matters to allow the prosecutor to elect whether to retry defendants or
accept second degree murder convictions. (Johnson, supra, 243 Cal.App.4th
at pp. 1251–1252.) The California Supreme Court then granted defendants’
petitions for review and transferred the cases back to this court with
directions to vacate our prior opinion and reconsider in light of the then-
recently issued opinion People v. Banks (2015) 61 Cal.4th 788 (Banks). On
reconsideration, we concluded Banks did not apply to the issues raised and no
change in the disposition of the appeals was necessary. (Johnson, at p. 1252.)
In November 2016, the prosecution opted not to retry defendants, who
now stand convicted of second degree murder. Johnson was sentenced to
17
state prison for 15 years to life, plus seven years, and Thornton was
sentenced to 15 years to life, plus nine years.
C. Petitions for Resentencing
In 2019, Johnson and Thornton each petitioned for resentencing under
former section 1170.95. (See fn. 2, above.) As to each petition, the trial court
found defendant made a prima facie case for relief and issued an order to
show cause. Opposing the petitions, the prosecution argued Johnson and
Thornton were still guilty of murder under the law as amended by S.B. 1437
because the trial evidence showed they were both major participants who
acted with reckless indifference to human life.
At a joint evidentiary hearing on the petitions, the parties elected not
to present additional evidence and relied on the original trial record. The
trial court denied the petitions, finding each defendant was a major
participant in an attempted armed robbery who acted with reckless
indifference to human life.
DISCUSSION
A. Senate Bill No. 1437
We begin by considering in more detail the changes S.B. 1437 made to
the law of murder. Now, as before S.B. 1437 was enacted, murder requires
“malice aforethought” (§ 187, subd. (a)); section 188 provides that malice may
be express or implied and describes each type of malice (§ 188, subd. (a)(1)
and (2)); and section 189 specifies the circumstances under which murder is
in the first degree and provides that all other murders are of the second
degree (§ 189, subds. (a) and (b)).
1. Murder Liability Before S.B. 1437
Under the felony murder rule before S.B. 1437, a defendant who aided
and abetted an inherently dangerous felony offense could be liable for murder
18
if an accomplice killed someone during the commission or attempted
commission of the offense; the murder would be in the first degree if the
underlying offense was listed in section 189 (including robbery and
kidnapping). (People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
Under the natural and probable consequences doctrine before S.B.
1437, a defendant who aided and abetted a crime could be liable for second
degree murder if an accomplice committed murder, and the murder was a
natural and probable consequence of the crime aided and abetted. (Cf.
Gentile, supra, 10 Cal.5th at pp. 838–839 [describing the natural and
probable consequences doctrine and holding that S.B. 1437 eliminated second
degree murder liability under the doctrine].)
Under both the felony murder rule and the natural and probable
consequences doctrine, the malice required for murder was imputed based on
the defendant’s participation in a crime that resulted in death. (See People v.
Chun (2009) 45 Cal.4th 1172, 1184 [under the felony murder rule, malice was
not irrelevant, the rule “simply describe[d] a different form of malice under
section 188”; malice was imputed “ ‘to those who commit[ted] a homicide
during the perpetration of a felony inherently dangerous to life’ ”]; Gentile,
supra, 10 Cal.5th at p. 847 [the natural and probable consequences doctrine
allowed “a factfinder to impute malice ‘to a person based solely on his or her
participation in a crime’ ”].)
2. S.B. 1437’s Changes to Murder Liability
S.B. 1437 added subdivision (a)(3) to section 188, which provides,
“Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a
crime.” (Stats. 2018, ch. 1015, § 2, italics added.) Thus, second degree
19
murder liability based on the natural and probable consequence doctrine was
eliminated. (Gentile, supra, 10 Cal.5th at pp. 842–843.)
S.B. 1437 amended the law on first degree felony murder found in
section 189, adding (among other things) subdivision (e), which now provides:
“A participant in the perpetration or attempted perpetration of a [listed]
felony [including robbery] . . . in which a death occurs is liable for murder
only if one of the following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree.
“(3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e), italics added; see Stats. 2018, ch. 1015,
§ 3.)
Section 190.2, in turn, lists the special circumstances that require a
sentence of death or life in prison without the possibility of parole. Thus,
“only defendants who are also death eligible under section 190.2 may now be
convicted of felony murder in the first place.” (People v. Cooper (2022) 77
Cal.App.5th 393, 411 (Cooper).
3. Petitioning for Resentencing
As we have mentioned, S.B. 1437 included a procedural mechanism for
defendants convicted of murder under the old law to obtain resentencing if
they could not be convicted of murder under the law as amended by S.B.
1437. (Lewis, supra, 11 Cal.5th at p. 959; see § 1172.6.)
Our high court recently described the resentencing petition process:
“When the trial court receives a petition containing the necessary declaration
20
and other required information, the court must evaluate the petition ‘to
determine whether the petitioner has made a prima facie case for relief.’
(§ 1172.6, subd. (c); [citation].) If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. (See § 1172.6, subd. (c); [citation].) If, instead, the
defendant has made a prima facie showing of entitlement to relief, ‘the court
shall issue an order to show cause.’ (§ 1172.6, subd. (c).) If there has been ‘a
prior finding by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the felony, the
court shall vacate the petitioner’s conviction and resentence the petitioner.’
(Id., subd. (d)(2).) Additionally, the parties may stipulate that the petitioner
is eligible for resentencing. (Ibid.) Otherwise, 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 1437.
(§ 1172.6, subd. (d)(3).) ‘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.’ (Ibid.) ‘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.’ (Ibid.)” (Strong, supra, 13 Cal.5th at
p. 709.)
At the evidentiary hearing, the parties may rely on the evidence
previously admitted at trial and may also offer “new or additional evidence.”
(§ 1172.6, subd. (d)(3).)
We now turn to defendants’ contentions.
21
B. Whether the Trial Court Was Allowed to Apply the Current First Degree
Felony Murder Rule of Section 189, Subdivision (e), to Defendants,
Whose Convictions Are for Second Degree Murder
Johnson’s first contention, which Thornton joins, is that when a
petitioner stands convicted of second degree murder under prior law, the trial
court is barred from denying relief based on a finding beyond a reasonable
doubt that the petitioner is currently guilty of first degree felony murder
under the law as amended by S.B. 1437. Johnson asserts his claim is based
on the language of former section 1170.95, subdivision (a)(3) and
constitutional considerations.
1. Statutory Language
At the time defendants petitioned for resentencing, section 1170.95,
subdivision (a), provided: “A person convicted of felony murder or murder
under a natural and probable consequences theory may file a petition with
the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of
the following conditions apply:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder.
(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.”
(Former § 1170.95, subd. (a), as added by Stats. 2018, ch. 1015, § 4, italics
added.)
22
2. Analysis
Johnson concedes that former section 1170.95, subdivision (a)(3)
(former § 1170.95(a)(3)) could be interpreted to mean a petitioner convicted of
murder under prior law is entitled to resentencing if he could not now be
convicted of murder under the law as amended by S.B. 1437. That is how the
parties and the trial court interpreted the provision, and the trial court
determined defendants were not entitled to relief in this case based on its
findings that defendants are currently guilty of first degree felony murder
under section 189, subdivision (e)(3) (§ 189(e)(3)) as made effective January 1,
2019, by S.B. 1437.
This understanding of the resentencing procedure was endorsed in
People v. Hernandez (2021) 60 Cal.App.5th 94. Like Johnson, the defendant
in Hernandez argued that, because his conviction was for second degree
murder, he could not be denied resentencing based on a finding he is now
guilty of first degree murder. (Id. at p. 109.) The Court of Appeal rejected
this argument, explaining that a “petition under section 1170.95 ‘express[es]
the hypothetical situation’ of ‘what would happen today if [the petitioner]
were tried under the new provisions of the Penal Code?’ ” (Id. at p. 110.) The
defendant’s prior conviction was “not relevant to the analysis.” (Ibid.)
Johnson believes this understanding of the resentencing procedure is
wrong. He argues former section 1170.95(a)(3) means the trial court must
apply the current state of the law to the “trial or plea . . . that produced the
previous judgment” and whether a petitioner’s judgment is for first or second
degree murder is “determinative of the boundaries within which the [section]
1170.95 analysis must occur.” Johnson asserts, “Some cases will come before
the court as second-degree judgments in which only section 188(a)(3) is at
issue; some will come before the court as first-degree judgments where only
23
[section] 189(e)(3) is the issue; and some will come before the court as first-
degree judgments where both [sections] 188(a)(3) and 189(e)(4) [sic] may
apply.”
As we understand his argument, Johnson thinks the phrase, “The
petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019” should be read
to mean, “The petitioner who has been convicted of first degree murder could
not be convicted of first degree murder because of changes to Section 189 (and
possibly Section 188) made effective January 1, 2019, or the petitioner who
has been convicted of second degree murder could not be convicted of second
degree murder because of changes to Section 188 made effective January 1,
2019.” Johnson offers no relevant authority to support his position, and we
do not believe this is a reasonable reading of the phrase within the context of
the statute.
“ ‘The first principle of statutory construction requires us to interpret
the words of the statute themselves, giving them their ordinary meaning, and
reading them in the context of the statute . . . as a whole. . . . ‘In construing
constitutional and statutory provisions, whether enacted by the Legislature
or by initiative, the intent of the enacting body is the paramount
consideration.’ ” (People v. Gonzales (2017) 2 Cal.5th 858, 868.)
Here, the Legislature has indicated its intent by its amendment to the
statute. Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section
1170.95(a)(3) to read, “The petitioner could not presently be convicted of
murder or attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Stats. 2021, ch. 551, § 2; see § 1172.6, subd.
(a)(3).) This amendment clarifies that the trial court’s task at the evidentiary
hearing is to determine whether the petitioner is currently guilty of murder
24
under the law as amended by S.B. 1437. The amendment demonstrates the
Legislature’s reasonable intent that, even if a petitioner was originally
prosecuted under a theory of murder liability that S.B. 1437 eliminated, the
petitioner is not entitled to have his or her murder conviction vacated if the
petitioner is still guilty of murder under current law. (See also § 1172.6,
subd. (d)(3) [“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019”].) The degree of the petitioner’s murder conviction
is not mentioned at all. Given the Legislature’s clarification of the provision,
we reject Johnson’s convoluted and strained interpretation of former section
1170.95(a)(3). (See Carter v. California Dept. of Veterans Affairs (2006) 38
Cal.4th 914, 922 [“A statute that merely clarifies, rather than changes,
existing law is properly applied to transactions predating its enactment”].)
We are unpersuaded by Johnson’s suggestion that allowing the trial
court to consider whether defendants are guilty of first degree felony murder
under current law would raise serious constitutional problems. He asserts
that his reading of the statute respects the “Sixth Amendment right to have a
jury finding of guilt beyond a reasonable doubt” because the trial court at the
evidentiary hearing is bound by “what the trial jury had actually found
originally.” The resentencing procedure under S.B. 1437, however, “is not
subject to Sixth Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’ Sixth
Amendment rights.” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156
(Anthony).)
25
We do not mean to imply that a jury’s prior factual findings in the
petitioner’s criminal trial may be ignored by a trial court deciding a petition
under S.B 1437. (See Cooper, supra, 77 Cal.App.5th at pp. 416–417 [where a
petitioner was acquitted of a crime, the trial court deciding a petition under
S.B. 1437 could not, based on the trial record alone, find the petitioner
committed that crime and then rely on that fact to find the petitioner
currently guilty of murder].) But, in this case, no jury ever made a factual
finding that Johnson or Thornton was not guilty of first degree felony
murder, and this court never held the jury’s first degree murder verdicts were
unsupported by the trial evidence. We reversed the jury’s first degree
murder convictions only because of instructional error, and the prosecution
elected to accept second degree murder convictions. Defendants’ second
degree murder convictions do not represent any factual findings by the jury
that would prevent the trial court from now determining the defendants are
currently guilty of first degree felony murder. Further, a trial court’s finding
that a petitioner is currently guilty of murder under the law as amended by
S.B. 1437 would never result in a new conviction or greater sentence; it would
mean only that the petition for resentencing would be denied. (See People v.
Mitchell (2022) 81 Cal.App.5th 575, 588 [“A petition under former section
1170.95 is not a criminal prosecution. . . . The process . . . can only help the
defendant and can never hurt”].) In short, Johnson’s “constitutional”
argument fails.
C. Sufficiency of the Evidence
Johnson and Thornton argue there is insufficient evidence to support
the trial court’s findings that they are currently guilty of first degree felony
murder under section 189(e)(3). Each defendant challenges the trial court’s
finding of reckless indifference to human life. Thornton also argues no
26
substantial evidence shows he was a major participant in the underlying
attempted armed robbery.
1. Legal Principles and Standard of Review
The phrases “major participant” and “reckless indifference to human
life” of section 189(e)(3) are from section 190.2, which took the phrases from
United States Supreme Court cases addressing when capital punishment is
permissible for felony murder. (Strong, supra, 13 Cal.5th at p. 705.) The
California Supreme Court first provided guidance on the meaning of these
phrases in Banks, supra, 61 Cal.4th 788, and expounded further in People v.
Clark (2016) 63 Cal.4th 522 (Clark), and In re Scoggins (2020) 9 Cal.5th 667,
676. (Scoggins).)
In Banks, our high court examined two United States Supreme Court
cases, Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. Florida
(1982) 458 U.S. 782 (Enmund). (Banks, supra, 61 Cal.4th at pp. 798–804.)
The court explained that Tison and Enmund “ ‘place[d] conduct on a
spectrum’ of defendant culpability, ‘with felony-murder participants eligible
for death only when their involvement [was] substantial and they
demonstrate[d] a reckless indifference to the grave risk of death created by
their actions.’ (Banks, at p. 794.) [At] one end of the spectrum was the
getaway driver the high court found constitutionally ineligible for death in
Enmund . . . : a ‘ “minor actor in an armed robbery, not on the scene, who
neither intended to kill nor was found to have had any culpable mental
state.” ’ (Banks, at p. 800.) Toward the other end of the spectrum were the
[Tison brothers] found eligible for death in Tison, supra, 481 U.S. 137, who
had broken convicted murderers out of jail, armed them, captured an
innocent family, ‘held [the family] at gunpoint while the two murderers
deliberated whether the family should live or die, [and] then stood by while
27
all four members were shot.’ (Banks, at p. 802.)” (Strong, supra, 13 Cal.5th
at p. 705, italics added.)
In Banks, defendant Matthews acted a getaway driver for an armed
robbery of a medical marijuana dispensary in 2008. (Banks, supra, 61
Cal.4th at pp. 795, 804–805.) Matthews dropped off his three confederates,
including Leon Banks, near the dispensary and waited for them for about 45
minutes. His confederates, two armed with guns, entered the dispensary and
began tying up employees and searching the premises. At some point, the
dispensary security guard, who also was armed, attempted to resist the
robbery. The security guard and Banks were seen struggling at the front
door, shots were fired, and the security guard was killed. (Id. at p. 795.) The
Banks court concluded that Matthews could not qualify as a “major
participant” under section 190.2 as a matter of law, noting there was no
evidence that Matthews procured the weapons and that, even though he and
two of his confederates were gang members, there was no evidence they had
“previously committed murder, attempted murder, or any other violent
crime.” (Id. at p. 805, 807.) The court explained that, to establish major
participation, “a defendant’s personal involvement must be substantial,
greater than the actions of an ordinary aider and abettor to an ordinary
felony murder such as [the getaway driver in a home robbery] Earl Enmund”
(id. at p. 802, italics added) and “participation in an armed robbery, without
more, does not involve ‘engaging in criminal activities known to carry a grave
risk of death’ ” (id. at p. 805). The court observed that the Tison brothers, for
example, did not merely participate in “a garden-variety armed robbery,
where death might be possible but not probable[; rather, they] . . . were
substantially involved in a course of conduct that could be found to entail a
likelihood of death.” (Id. at p. 802.)
28
The California Supreme Court returned to these issues the following
year in Clark, supra, 63 Cal.4th 522. “The defendant in that case planned
and organized the robbery of a computer store. ([Clark,] at p. 536.) The
defendant planned for the robbery to take place after the store closed, when
there would be few people in the store, and to involve only one gun without
any bullets in it. (Id. at pp. 621–622.) But an employee’s mother
unexpectedly entered the store during the robbery, and the defendant’s
accomplice shot her with a bullet he had loaded into the gun. (Id. at p. 537.)
Soon after the shooting, the defendant fled the scene and abandoned his
accomplice. (Id. at p. 620.) [Our high court] concluded that although the
‘defendant had a prominent, if not the most prominent, role in planning the
criminal enterprise that led to the death’ (id. at p. 613), the record did not
establish that he exhibited reckless indifference to human life (id. at p. 623).”
(Scoggins, supra, 9 Cal.5th at p. 676.)
In Scoggins, defendant Scoggins planned an unarmed assault and
robbery that resulted in death. (Scoggins, supra, 9 Cal.5th at p. 671.) After
he was swindled out of $900 by the victim, Scoggins devised a plan for his two
friends to “ ‘beat the shit’ ” out of the victim and get Scoggins’s money back;
Scoggins would not be present at the planned assault and robbery. (Ibid.) At
the planned attack, however, one of his friends shot at the victim multiple
times, killing him. (Id. at p. 672.) Our high court concluded the evidence did
not show Scoggins exhibited reckless indifference to human life. (Id. at p.
676.)
Synthesizing United States and California Supreme Court authority,
the Scoggins court explained: “Reckless indifference to human life is ‘implicit
in knowingly engaging in criminal activities known to carry a grave risk of
death.’ (Tison, supra, 481 U.S. at p. 157.) Examples include ‘the person who
29
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.’ (Ibid.) Reckless
indifference ‘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.’ (Clark, supra, 63 Cal.4th at p. 617.)
“Reckless indifference to human life has a subjective and an objective
element. (Clark, supra, 63 Cal.4th at p. 617.) As to the subjective element,
‘[t]he defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,’ and he or she must
consciously disregard ‘the significant risk of death his or her actions create.’
(Banks, supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) As to the objective
element, ‘ “[t]he risk [of death] must be of such a nature and degree that,
considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in the
actor’s situation.” ’ (Clark, at p. 617, quoting Model Pen. Code, § 2.02, subd.
(2)(c).) ‘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. (Banks, at p. 808.) Notably, ‘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. (Ibid.; see Clark, at
p. 623.)
“We analyze the totality of the circumstances to determine whether
[the defendant] acted with reckless indifference to human life. Relevant
30
factors include: 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? (Clark, supra, 63
Cal.4th at pp. 618–623.) ‘ “[N]o one of these considerations is necessary, nor
is any one of them necessarily sufficient.” ’ ” (Scoggins, supra, 9 Cal.5th at
pp. 676–677.)
We review the trial court’s factual findings for substantial evidence and
its application of facts to the law de novo. (Cooper, supra, 77 Cal.App.5th at
p. 412.)3 “We ‘ “examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
3 Johnson argues that independent review is the appropriate standard
because a resentencing petition under S.B. 1437 is akin to a habeas
proceeding. He cites no authority for his position. In a petition for
resentencing, the judge who originally sentenced the petitioner is to decide
the petition unless that judge is unavailable (§ 1172.6, subd. (b)(1)); if the
petitioner makes a prima facie showing, the parties are allowed to present
new evidence at the hearing on the petition (id., subd. (d)(3); and the trial
court must decide whether the petitioner is guilty of murder under the law as
amended by S.B. 1437 beyond a reasonable doubt (ibid.). Here, the judge
who originally presided over the criminal trial and observed the witnesses’
testimony has now made findings of fact based on the same trial evidence to
decide defendants’ petitions under S.B. 1437. Under these circumstances, we
will apply the usual rule that findings of fact are reviewed for substantial
evidence. (See People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements)
[“We review the trial judge’s fact finding for substantial evidence”]; People v.
Gregerson (2011) 202 Cal.App.4th 306, 319 [an order applying the correct
standard of proof is reviewed for substantial evidence].)
31
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, supra, 75 Cal.App.5th at p. 298.)
2. Johnson
Johnson challenges the trial court’s finding that he acted with reckless
indifference to human life. He argues there is no objective evidence of “the
foreseeability of a grave risk to human life beyond the normal risk inherent
in any armed robbery.” Johnson points out he was not armed and did not use
a weapon and he knew nothing about Schnebly, Crocker, or Thornton that
would suggest any of them had a history of, or propensity for, violence.
The Attorney General responds that the following evidence shows
Johnson acted with reckless indifference: he knew two of his confederates
were armed with guns; “he drove a car—which is itself a lethal weapon—at a
high rate of speed into a populated campsite”; he “contributed to the chaotic
scene”; he was present for the shooting; he “took no steps to minimize the use
of violence” and instead stayed by the car and yelled epithets at his wife; and
he drove his confederates from the scene without rendering aid to the victims.
After carefully considering the evidence, we are not convinced the
record can support a finding that Johnson acted with reckless indifference to
human life. “[A]ny person who plans or participates in an armed robbery can
be said to anticipate that lethal violence might be used, given that ‘roughly 1
in 200 [armed robberies] results in death.’ [Citation.] But that fact, without
more, does not establish reckless indifference to human life.” (Scoggins,
supra, 9 Cal.5th at p. 682.) The additional circumstances cited by the
Attorney General do not establish that Johnson knew the robbery he was
undertaking with Schnebly, Crocker, and Thornton would be more dangerous
than a “garden-variety armed robbery.” (See People v. Ramirez (2021) 71
32
Cal.App.5th 970, 987 (Ramirez) [“Participation ‘in a garden-variety armed
robbery’ where ‘death might be possible but not probable’ is insufficient”].)
Johnson’s knowledge that two of his confederates had firearms is
insufficient to show reckless indifference to human life. Two of Matthews’s
confederates were armed in Banks (Banks, supra, 61 Cal.4th at p. 795) and
Enmund’s two confederates were armed (Enmund, supra, 458 U.S. at p. 802,
fn. 2 (dis. opn. of O’Connor, J., joined by Burger, C. J., Powell, J., and
Rehnquist, J.).)
On the other hand, a defendant’s knowledge that a confederate is likely
to kill is significant to the reckless indifference analysis. (Clark, supra, 63
Cal.4th at p. 621.) In Tison, for example, the defendant “Tison brothers
brought an arsenal of lethal weapons into the prison which they then handed
over to two convicted [murderers], one of whom the brothers knew had killed
a prison guard in the course of a previous escape attempt,” and they “had
advance notice of the possibility that their father would shoot the family
because, in response to one of the victim’s plea not to be killed, the father
stated that he ‘was thinking about it.’ ” (Clark, supra, 63 Cal.4th at p. 621,
italics added, citing Tison, supra, 481 U.S. at pp. 151, 140.) There is no
similar evidence here that Schnebly, Crocker, or Thornton had killed or
committed violent crimes before. (See Banks, supra, 61 Cal.4th at p. 807 [no
evidence that Matthews’s confederates “previously committed murder,
attempted murder, or any other violent crime”].) Instead, as in Enmund and
Banks, it appears Crocker fired his gun in a spontaneous response to
resistance from Haggett and Litteral. (See Banks, supra, 61 Cal.4th at p. 807
[“as in Enmund, Banks’s killing of [the security guard] was apparently a
spontaneous response to armed resistance from the victim”].)
33
The Attorney General does not explain how the facts that Johnson
drove the car at a high rate of speed and “contributed to the chaotic scene”
(presumably referring to Johnson’s skidding into the campsite and then
yelling at Cano) demonstrate that Johnson knew his confederates were likely
to use lethal force during the robbery, and we do not see how these facts
support such an inference.
Johnson was present at the scene of the shooting, which distinguishes
him from the defendants in Enmund, Banks, Clark, and Scoggins. But
presence alone does not establish reckless indifference. (See Ramirez, supra,
71 Cal.App.5th at p. 989 [the defendant’s presence at the scene of the
shooting did not establish reckless indifference where he would “not have had
a meaningful opportunity to intervene”]; In re Moore (2021) 68 Cal.App.5th
434, 452 (Moore) [the defendant’s “presence during the robbery also does not
support a finding of reckless indifference”].)
Tison illustrates how a defendant’s presence at the scene of the killing
is relevant. “The defendants in Tison were physically present during the
entire sequence of events that resulted in the victims’ deaths. (Tison, supra,
481 U.S. at p. 158.) The Tison brothers flagged down the car containing the
victims, kidnapped and robbed them, guarded them while their father
decided what to do, and eventually watched their father shoot the victims.
(Id. at pp. 139–141.) During that time, the defendants knew that their father
was debating whether to kill the victims and had ample opportunity to
restrain the crime and aid the victims. (Id. at p. 140.) Because the
defendants did neither, the high court reasoned, they exhibited reckless
indifference to human life.” (Scoggins, supra, 9 Cal.5th at p. 678, italics
added.)
34
In contrast, in Moore, supra, defendant Moore stole a car with two
confederates including Athain Russell. (68 Cal.App.5th at p. 440.) While
Moore remained in the stolen car, Russell got out of the car, robbed a couple
at gunpoint, and then, without provocation, shot one of the robbery victims,
killing him. (Id. at pp. 440, 452.) The Court of Appeal concluded that
Moore’s presence at the scene of the shooting did not support a finding of
reckless indifference because “he never left the car,” and “was not ‘close
enough to exercise a restraining effect on the crime or’ Russell.” (Id. at p.
452.) The court also found, “The short duration of the robbery and the
sudden and unprovoked nature of the shooting” supported its conclusion,
relying on Scoggins. (Moore, at p. 452.)
In Scoggins, our high court observed Scoggins “lacked control over [his
confederates’] actions once they arrived on the crime scene, especially given
how quickly the shooting occurred. This distinguishes Scoggins from the
Tison brothers, who were physically present at the scene where a long
sequence of events culminated in murder.” (Scoggins, supra, 9 Cal.5th at p.
679, italics added.)
Here, there was no long sequence of events culminating in murder.
Johnson remained by the car as the attempted robbery quickly led to a
killing.4 According to Haggett, he struggled with Crocker over Crocker’s gun,
and Crocker shot him while Crocker was on the ground. Crocker got up and
4 A campground host working at the entrance of Bu-Shay campground
on the day of the shooting testified a four-door sedan approached with four
occupants; they said they were “just here to drop something of[f] and sped
off.” The host testified that, within two or three minutes, he heard three
gunshots and called 911 and the park rangers. (Thornton and Johnson both
confirmed that the campground host was told they were just going to drop
something off.)
35
started running toward the car, then he turned back and shot toward
Litteral. There is no evidence showing either that Johnson knew Crocker
was contemplating killing anyone before Crocker started shooting or that
Johnson had an opportunity to aid the victims before the shooting started or
to restrain Crocker from shooting, especially given how quickly the shooting
occurred. (Scoggins, supra, 9 Cal.5th at p. 679.) This case is more like
Scoggins and Moore than Tison.
Finally, there is the fact Johnson “drove his confederates from the
scene without rendering aid to the victims.” Our high court has explained, “A
defendant’s actions after the shooting may also bear on the defendant’s
mental state. [Citation.] For example, the high court took into account the
Tison brothers’ failure to render aid to the victims after the shooting when it
concluded that they acted with reckless indifference to human life. (Tison,
supra, 481 U.S. at pp. 151–152.) But . . . when different inferences may be
drawn from the circumstances, the defendant’s actions after the shooting may
not be very probative of his mental state. In Clark, the defendant fled the
scene and abandoned his accomplice immediately after the shooting.
[Citation.] . . . [T]he defendant’s actions could have suggested either that the
defendant rejected his accomplice’s actions in committing the shooting or that
he wanted to flee the scene as quickly as possible to avoid arrest. [Citation.]
Ultimately, we concluded that the ‘[d]efendant’s absence from the scene of the
killing and the ambiguous circumstances surrounding his hasty departure
make it difficult to infer his frame of mind concerning [the victim’s] death.’ ”
(Scoggins, supra, 9 Cal.5th at pp. 679–680.) In Scoggins, the court concluded
that the defendant’s “behavior could suggest that he had not planned for his
accomplices to kill [the victim].” (Id. at p. 680.)
36
That Johnson left with his confederates after the shooting does not
unambiguously demonstrate that he was acting with reckless indifference
when he participated in the attempted robbery. It is not disputed that
Johnson was dropped off by the others in Ukiah. Johnson testified Schnebly
and Crocker wanted to go to Lake County to “hide out” but he stayed in
Ukiah because he “wasn’t hiding from nobody.” It could be inferred that
Johnson separated from his confederates after the killing because he had not
planned for them to kill and he did not agree with Crocker’s actions in
shooting Haggett and Litteral. (See Scoggins, supra, 9 Cal.5th at pp. 679–
680.)
Having considered the evidence cited by the Attorney General, we
conclude he has failed to demonstrate that substantial evidence supports a
finding Johnson acted with reckless indifference.
The trial court’s reasoning differs somewhat from the Attorney
General’s and is also unpersuasive. The court relied on Johnson’s threats to
his wife Cano and her companions in the days leading up to the attempted
robbery and found, “[Johnson’s] statements and conduct showed that his
primary motivation was to take a group of men with him to the campsite,
threaten, assault and steal from the campers and to instill fear in his wife.”
It determined Johnson “was clearly the instigator of the violent assault at the
campground, and had knowledge his companions were armed.” The court
found Johnson’s speeding into the campsite created “the atmosphere of fear
and confrontation that he and his codefendants intended to create,” and it
noted that Johnson shouted, “see what we can do.” But the trial court does
not explain how Johnson’s personal threats to Cano and Litteral show that he
knew the attempted armed robbery he participated in “would involve a grave
risk of death.” (Banks, supra, 61 Cal.4th at p. 807.) To the extent the trial
37
court suggests that Johnson orchestrated an armed robbery selecting
particularly violent confederates with the intent that one of them would kill
Litteral, there is no evidence to support that inference.
The court also relied on the fact Johnson “testified that he knew there
was going to be violence when they arrived.” But we must keep in mind that
the issue at trial was only whether Johnson intended to aid and abet an
attempted robbery (or an attempted kidnapping) because, under then
existing law, that finding alone would make him liable for murder. Thus, the
prosecutor tried to show Johnson was not an unsuspecting driver as he
claimed; rather he was a willing participant in a planned armed robbery. In
the context of the law as it existed at the time of trial, it is clear the
prosecutor elicited no more than an admission from Johnson that he realized
even before they reached the campground that his companions intended to
commit robbery using firearms.5 Johnson, however, did not testify that he
5 In cross-examination, Johnson admitted he told the police that, before
they borrowed the car, he heard his companions say they were “ ‘going down
to handle some business over at the lake, Mendo style.’ ” Johnson agreed
with the prosecutor that “Mendo style” meant “taking what they want
against their will.” Johnson agreed he “knew they were going to use some
force,” but he “wasn’t quite sure exactly what.” (Italics added.)
The prosecutor asked, “So you know they plan to do it Mendo style.
Which meant they were going to use some kind of force or violence or do
something. You may not have known the method at that exact point in time,
correct? But you knew they were going to use force and violence; isn’t that
correct?” Johnson responded, “Yes, it is, sir.”
The prosecutor asked a few more questions intended to show Johnson
knew his companions were planning to commit an armed robbery before they
reached the campground. Johnson agreed he “heard something about guns”
when they were at Crocker’s place. Later, the prosecutor asked, “. . . you
certainly knew that they were going to use some kind of violence and maybe
even have weapons because you want to get [your wife] out of there safe,
38
knew his companions intended to use additional force or violence beyond
what might be expected in a “garden-variety” armed robbery. (This is not
surprising given that the prosecutor was not trying to prove Johnson acted
with reckless indifference to human life.)
The trial court concluded, “Johnson’s role in the offense is far more like
the defendants in Tison that the defendant in Banks.” This conclusion is not
supported by the evidence, either. “The Tisons did not assist in a garden-
variety armed robbery, where death might be possible but not probable, but
were substantially involved in a course of conduct that could be found to
entail a likelihood of death.” (Banks, supra, 61 Cal.4th at p. 802.) The same
cannot be said about the attempted robbery in this case that unfortunately
led to Litteral’s death.
In sum, Johnson did not supply the weapons, there is no evidence his
confederates had killed before or had a propensity for violence, the entire
incident happened quickly without an opportunity for Johnson to restrain the
crime or aid the victims, and Crocker shot Litteral apparently in a
spontaneous response to resistance from the intended robbery victims.
Considering the totality of the circumstances, we conclude the trial record
lacks substantial evidence supporting a finding that Johnson acted with
otherwise be nothing to keep her safe from; isn't that true, Mr. Johnson?”
(Italics added.) Johnson answered that he “probably had suspicion” but did
not know about the weapons until they pulled off the road and Thornton
retrieved the duffel bag with the shotgun. This sequence of the prosecutor’s
questioning demonstrates that Johnson’s agreement that he knew his
companions were going to use “violence” meant he knew they intended to
commit an armed robbery. But it cannot reasonably be inferred from
Johnson’s testimony that he knew or suspected his confederates intended to
engage in violent conduct at the campsite beyond that inherent in any armed
robbery.
39
reckless indifference to human life and, thus, he cannot be found guilty of
felony murder under section 189(e)(3) as a matter of law. Accordingly, we
reverse the order denying Johnson’s petition for resentencing under S.B.
1437.
3. Thornton
The trial court found the following facts regarding Thornton. “The
presence of the purported cash or marijuana served as enticement for
Thornton, Crocker and Schnebly to go with Johnson and participate in the
robbery.” “In his closing argument, the prosecutor stated that Thornton was
‘there for the robbery . . . he carries a bat.’ The evidence undeniably
supported this statement.” “The evidence also undeniably shows that
Crocker and Schnebly were armed with firearms when the group arrived at
the campground.” “Thornton hit Haggett with the bat on the back of the
head.” Litteral “was struck with a blunt object like a bat or a bowling pin
according to the coroner. The force of the blow broke his arm. Several
witnesses testified that the only person using a bat as a weapon was Simon
Thornton[.]” “In sum, Simon Thornton decided to join three others in
committing an armed robbery. He was armed with [a] bat while two others
were armed with firearms. He participated in trying to take property by
force or fear and in so doing managed to protect his co-participants by using
the bat on Haggett and Litteral. The prosecution proved beyond a reasonable
doubt that Thornton was protecting Crocker when he struck Haggett in the
head with the bat. This enabled Crocker to escape with his gun and within
moments Crocker shot and killed Joe Litteral[]. Simon Thornton undeniably
facilitated the murder of Joe Litteral[].” “Thornton’s culpable state of mind
was further demonstrated by the threats to co-defendant Johnson after the
40
two were arrested and phone calls to his fiancé[e] asking her to assist in
hiding the weapons.”
The trial court concluded that its factual findings demonstrate
Thornton was a major participant and acted with reckless indifference to
human life and therefore denied the petition.
The facts that Thornton participated in an attempted robbery involving
marijuana and that two of his confederates were armed with firearms do not
establish reckless indifference to human life. (See Banks, supra, 61 Cal.4th
at pp. 795, 804–805, 811 [Matthews’s participation in a robbery of a medical
marijuana dispensary where two of his confederates were armed did not
support findings of major participation and reckless indifference to human
life].)
Next, there are the facts Thornton was armed with, and used, a bat.
Thornton does not challenge the court’s finding that he used a bat on
Haggett, but he argues it was pure speculation for the court to infer from his
conduct that he “intended, or would have anticipated, that [his] use of the bat
would result in Mr. Crocker shooting Mr. Haggett.” The evidence of
Thornton’s direct involvement in a physical fight with the victims and the
circumstances of the shooting are as follows.
Johnson testified that Schnebly told Thornton to help Crocker after
Haggett started hitting Crocker. According to Johnson, Thornton then got
out of the car with the bat and started swinging at Haggett. Haggett testified
he was struggling with Crocker when he felt “severe blows to the back of [his]
head.” In response, Haggett “recoiled [his] fist to go hit” Thornton,6 but
Thornton points out that Haggett did not sustain any head injury
6
from the blows. The trauma surgeon who treated Haggett examined his head
and noted no injuries.
41
Crocker shot him. Johnson testified that Litteral ran up and hit Crocker
with a stick or log. Haggett testified that, after he was shot, he saw Litteral
fighting with Thornton. At that point, Crocker “had gotten up to his feet and
had . . . started running towards the car.” Haggett saw Crocker “turn back
around and start firing in [Litteral]’s direction.” Crocker was at the car when
he shot Litteral, and Thornton “was halfway to the car.”
Does this evidence show Thornton “knew his own actions would involve
a grave risk of death” (Banks, supra, 61 Cal.4th at p. 807) or “a willingness to
kill (or to assist another in killing) to achieve a distinct aim” (Clark, supra, 63
Cal.4th at p. 617) such that he is eligible for the death penalty? (Strong,
supra, 13 Cal.5th at p. 703 [whether a defendant may be sentenced to death
or life without the possibility of parole determines eligibility for sentencing
relief under S.B. 1437].) We think the answer must be no. At the time
Schnebly told him to help Crocker, Thornton would have realized that the
robbery was not going as planned because the intended victims were fighting
back, but he also would have seen that Crocker and Schnebly, though armed
with firearms, were not firing their weapons. Under these circumstances,
Thornton would have had no reason to know Crocker “was likely to use lethal
force” when he joined the affray. (Scoggins, supra, 9 Cal.5th at p. 681 [“A
defendant’s knowledge of a confederate’s likelihood of using lethal force,
which may be evident before or during the felony, is significant to the
analysis of the defendant’s mental state”].) Crocker had already returned to
the car and Thornton was running toward the car when Crocker turned
around and shot Litteral. This shows Thornton was retreating and would
have thought Crocker had withdrawn from the attempted robbery by the
time the killing occurred. As we observed in Johnson’s case, the events at the
campsite unfolded rapidly, and the short duration of the offense “does not
42
weigh in favor of finding that [Thornton] exhibited reckless indifference to
human life.” (Id. at p. 681.)
The trial court also relied on its findings that Thornton threatened
Johnson after they both had been arrested and that he telephoned someone
from jail seeking assistance in hiding weapons. This evidence may suggest
consciousness of guilt; after all, the evidence does support that Thornton
intended to aid an armed robbery, and under the felony murder law as it
existed then, this would mean he was also liable for Litteral’s death. But
Thornton’s jail phone call and threat to Johnson do not unambiguously
suggest he had the requisite personal culpability required to find reckless
indifference to human life. Stated differently, Thornton’s post-arrest conduct
does not demonstrate that, when he participated in the attempted robbery, he
knowingly created a grave risk of death.
There is no evidence Thornton was the instigator or prominent planner
of the robbery, he did not supply the firearms, and the attempted robbery and
shooting happened quickly with Crocker shooting apparently in a
spontaneous response to resistance from the victims. Most significantly,
there is no evidence Thornton had any reason to believe his confederates
were likely to kill when he joined the physical fight between Crocker and
Haggett. Considering the totality of the circumstances, we conclude the trial
record lacks substantial evidence supporting a finding that Thornton acted
with reckless indifference to human life.7 We therefore reverse the order
denying Johnson’s petition for resentencing under S.B. 1437.
7Because there is no substantial evidence of reckless indifference, we
need not decide whether Thornton was a major participant in the underlying
attempted robbery. (Clark, supra, 63 Cal.4th at p. 611.)
43
D. Remaining Contentions
1. Sixth Amendment
Johnson argues he is entitled under the Sixth Amendment to a jury
trial on whether he is now guilty of first degree felony murder under section
189(e)(3) because this theory was never presented to the jury in his original
criminal trial. Thornton joins the claim. We rejected this argument in
Anthony, supra, 32 Cal.App.5th at page 1156. Our position is “the
unanimous view of the several courts that have considered the question”
(People v. James (2021) 63 Cal.App.5th 604, 606), and defendants have not
persuaded us to change our view.
2. Attempted Murder Convictions
Finally, Johnson asserts attempted murder is subject to review under
S.B. 1437.8 At the time defendants filed their petitions, former section
1170.95 applied to persons “convicted of felony murder or murder under a
natural and probable consequences theory” (former § 1170.95, subd. (a), as
added by Stats. 2018, ch. 1015, § 4), and the statute did not mention those
convicted of attempted murder. Since then, section 1170.95 was amended to
include persons convicted of “attempted murder under the natural and
probable consequences doctrine.” (Stats. 2021, ch. 551, § 2; see People v.
Porter (2022) 73 Cal.App.5th 644, 651–652 [“section 1170.95 has since been
amended to ‘[c]larif[y] that persons who were convicted of attempted murder
or manslaughter under a theory of felony murder and the natural [and]
probable consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories’ ”].)
8 Again, Thornton joins the claim.
44
Section 1172.6 (see fn. 2, above) now provides, “A person convicted of
felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts . . . .” (§ 1172.6, subd. (a), italics
added.)
Defendants in this case, however, did not argue below that their
convictions for attempted murder should be vacated under S.B. 1437.
Defendants are, of course, free to petition for relief under the current law.
DISPOSITION
The orders denying defendants’ petitions for resentencing are reversed.
The trial court is directed to vacate defendants’ murder convictions and
resentence them in accordance with section 1172.6.
45
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A160581, People v. Johnson; A160566, People v. Thornton
46