People v. Gooden CA4/1 ( 2023 )

Filed 8/30/23 P. v. Gooden 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D080676
Plaintiff and Respondent,
v. (Super. Ct. No. CR61365)
ALLEN GOODEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel B.
Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
Allen Gooden, who was convicted by a jury of first degree murder in
1983, appeals from an order denying his petition for resentencing pursuant to
Penal Code section 1172.6.1
We conclude that substantial evidence supports the trial court’s order
denying the petition based on its finding that, in committing felony murder,
Gooden was a major participant in the underlying burglary who acted with
reckless indifference to human life. We accordingly affirm the order denying
the petition for resentencing.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 1982, Olivia Rel was murdered while Gooden and his
then-wife, Sheryl, were burglarizing Rel’s apartment. The cause of death was
a stab wound to the neck. Approximately two months after the murder,
Gooden confessed to law enforcement about his involvement in the crime.
Gooden told detectives that on the morning of the murder, he and
Sheryl woke up at 6:30 a.m. and began to carry out the plan they had been
developing over the past three days. Specifically, they planned to burglarize
their neighbor Rel’s apartment to get money to buy drugs and so that Sheryl
could take some of Rel’s personal property that she wanted for herself. That
morning, Gooden and Sheryl gained entry to Rel’s apartment when Sheryl
knocked on Rel’s door and claimed she needed to use Rel’s telephone because
she was having a miscarriage. While Rel was helping Sheryl make a phone
1 Unless otherwise indicated, all further statutory references are to the
Penal Code. Effective June 30, 2022, the Legislature renumbered former
section 1170.95 to section 1172.6 without substantive change. (Stats. 2022,
ch. 58, § 10.) Although Gooden filed his petition under former section
1170.95, for clarity and conformity, we will refer to the statute as section
1172.6 throughout this opinion.
2
call, Gooden grabbed Rel’s neck and put a sock in her mouth. Sheryl and
Gooden dragged Rel into the back room and tied her up with elastic cord that
Gooden brought with him. Gooden also gagged Rel, tied her mouth, and put
a pillow over her face.
According to Gooden, at some point during the burglary, Sheryl
convinced him that they had to kill Rel, but he decided Sheryl should do it.
Specifically, Gooden explained, “I was thinking, ah I was in the frame of mind
we got everything let’s just go and leave her you know, but my wife had
brought, brought me back to reality and to grips of myself to realize I say we
have to kill her, but I said I’m not going to kill her, you kill her, I don’t want
it on my conscience.”
Gooden and Sheryl did not bring any weapons with them. Therefore,
Sheryl took a knife out of Rel’s kitchen sink to use as a murder weapon.
According to Gooden, “[Sheryl] tried to cut [Rel’s] throat with it like slice
across the throat, but it was real dull so it didn’t work, so she went in the
kitchen and looked and [sic] the sewing machine box where she noticed the
scissors were at and she stabbed her in the neck.” Gooden watched as Sheryl
killed Rel with the scissors.
Gooden explained that during the burglary, he and Sheryl took jewelry,
stereo equipment, a television, clothes, a fur coat, a camera, and cash.
According to Gooden, after Sheryl stabbed Rel, he attempted to help Sheryl
remove some of the jewelry from around Rel’s neck by using washcloths to try
to “wash the majority of the blood that was running from [Rel’s] neck,” but he
“couldn’t stomach it,” so he went into the other room to pack up the stereo
equipment. Gooden stated that he made two separate trips from Rel’s
apartment to carry away the television and the stereo equipment, and then
he returned a final time “to double check.” At the conclusion of the burglary,
3
according to Gooden, he “washed the rags out and cleaned up all the
fingerprints in the house.” Gooden then told Sheryl that she should go to
work for “a good alibi.” Gooden and Sheryl sold or disposed of the items they
took, and they used the proceeds to buy cocaine.
In 1983, a jury convicted Gooden of burglary of an inhabited residence
(§§ 459, 667), receiving stolen property (§ 496.1), and first degree murder
(§ 187). In connection with the murder count, the jury made a finding that
Gooden did not personally use a deadly weapon. (§ 12022, subd. (b)).2
Gooden was sentenced to prison for a term of 25 years to life.
In January 2019, Gooden filed a petition for resentencing pursuant to
section 1172.6 and requested appointment of counsel. After two appellate
court proceedings that are not relevant to the issues currently before us,3 the
trial court determined that Gooden made a prima facie case that he was
2 As the People have explained, in 1984, the conviction for receiving
stolen property was reversed on appeal. (People v. Gooden (Dec. 12, 1984,
D000052) [nonpub. opn].) The trial court expressly did not consider the 1984
opinion in ruling on Gooden’s petition for resentencing, and it is accordingly
not included in the appellate record. However, we take judicial notice of the
1984 opinion on our own motion solely for the purpose of setting forth a
complete and accurate procedural history of Gooden’s criminal conviction and
sentence. (See § 1172.6, subd. (d)(3) [in ruling on a petition for resentencing,
“[t]he court may . . . consider the procedural history of the case recited in any
prior appellate opinion.”].)
3 Specifically, in 2019, we denied relief sought by San Diego District
Attorney in an original consolidated proceeding in mandate premised on the
contention that Senate Bill No. 1437 (2017-2018 Reg. Sess.), which enacted
former section 1170.95, was invalid because it improperly amended two voter
initiatives. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270.)
In 2021, we reversed the trial court’s summary denial of Gooden’s petition on
the ground that he had not made a prima facie case for relief, and we
remanded for further proceedings. (People v. Gooden (Mar. 5, 2021, D077814)
[nonpub. opn.].)
4
entitled to relief, issued an order to show cause, and held an evidentiary
hearing. The evidence that the trial court considered was comprised of
Gooden’s 1982 confession, Gooden’s statements contained in a comprehensive
risk assessment prepared for the Board of Parole Hearings in 2014, and the
reporter’s transcripts from Gooden’s jury trial.
The 2014 comprehensive risk assessment contains statements by
Gooden that mirror the content of his 1982 confession. “Mr. Gooden indicated
that his wife, and not he, stabbed the victim with a pair of scissors, when a
knife proved too dull to slit her throat. . . . They then took items from the
victim’s apartment that they could sell for drug money. . . . [¶] Killing the
victim, he indicated, was necessary because she knew and could identify him
(them).”
The People argued in the trial court that they had met their burden to
show that Gooden is guilty of murder under the current definition of felony
murder (§ 189, subd (e)(3)) because he was a major participant in the
underlying burglary and he acted with reckless indifference to human life.
Gooden argued that the petition for resentencing should be granted because,
although he “was a willing participant in the underlying felony, he never
intended for Ms. Rel to be killed. He did not act with reckless disregard for
human life.”
On June 29, 2022, the trial court issued an order denying Gooden’s
petition for resentencing. The trial court concluded that Gooden is guilty of
murder under the current felony murder law because he was a major
participant in the burglary and he acted with reckless indifference to human
life. Gooden appeals from the order denying his petition for resentencing.
5
II.
DISCUSSION
A. Applicable Legal Standards
Effective January 1, 2019, by enacting Senate Bill No. 1437, the
Legislature significantly limited the scope of the felony-murder rule and
eliminated liability for murder under the natural and probable consequences
doctrine. (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong (2022)
13 Cal.5th 698, 707-708 (Strong).) As relevant here, the Penal Code now
limits liability under a felony-murder theory to three categories of persons:
(1) the “actual killer” (§ 189, subd. (e)(1)); (2) a person who “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” (id.,
subd. (e)(2)); and (3) a person who 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” (id., subd. (e)(3)).
Subdivision (e)(3) of section 189 expressly incorporates section 190.2,
subdivision (d), which describes the special circumstance finding that is
required in a felony-murder case to determine that the defendant may be
sentenced to death or life without possibility of parole. Specifically, section
190.2, subdivision (d) “provides that ‘every person, not the actual killer, who,
with reckless indifference to human life and as a major participant’ aids or
abets an enumerated felony, including attempted robbery, that results in
death may be convicted of special circumstance murder and sentenced to
death or to life imprisonment without the possibility of parole. The statute,
by its text, imposes an actus reus requirement, major participation in the
enumerated felony, and a mens rea requirement, reckless indifference to
human life.” (In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
6
When the Legislature “amended Penal Code section 189 to incorporate
major participation and reckless indifference requirements, it codified the
understanding of those requirements elucidated in [People v. Banks (2015)
61 Cal.4th 788] and [People v. Clark (2016) 63 Cal.4th 522],” which
themselves interpreted section 190.2, subdivision (d). (Strong, supra,
13 Cal.5th at p. 710.) In the context of a special circumstance finding, “Banks
elucidated what it means to be a major participant and, to a lesser extent,
what it means to act with reckless indifference to human life, while Clark
further refined the reckless indifference inquiry.” (Id. at pp. 706-707.)
At the same time that it amended the definition of murder, the
Legislature established a procedure to allow a person who could not have
been convicted under the new law to file a petition to obtain an order
vacating the petitioner’s conviction and resentencing the petitioner on any
remaining counts. (§ 1172.6.) Under this statutory procedure, after a
petitioner makes a prima facie case of eligibility, the trial court holds an
evidentiary hearing to determine whether the petitioner should be granted
relief. (§ 1172.6, subds. (c), (d).) “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.” (§ 1172.6, subd. (d)(3).)
“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.”
(§ 1172.6, subd. (d)(3).) “[T]he trial court’s role in a section 1172.6 proceeding
is to act as an independent fact finder and determine, in the first instance,
whether the petitioner committed murder under the law as amended by
7
Senate Bill No. 1437.” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123
(Guiffreda).)
In reviewing the trial court’s order denying a petition for resentencing,
we review the trial court’s factual findings for substantial evidence.
(Guiffreda, supra, 87 Cal.App.5th at p. 125.) “ ‘Our job on review is different
from the trial judge’s job in deciding the petition. While the trial judge must
review all the relevant evidence, evaluate and resolve contradictions, and
make determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any substantial evidence,
contradicted or uncontradicted, to support a rational fact finder’s findings
beyond a reasonable doubt.’ [Citation.] We will not reverse unless there is no
hypothesis upon which sufficient substantial evidence exists to support the
trial court’s decision.” (Ibid.)4
4 Gooden points out that the trial court’s order contains certain factual
descriptions that are not supported by the record. Specifically, the trial court
stated, “[W]hen his wife began to murder the victim with a knife that
apparently was too dull, [Gooden] stayed with the victim while his wife
obtained the scissors used to fatally stab the victim in the neck. Thus,
[Gooden] not only failed to take any action to reduce the level of violence—he
actively kept the victim in place so his wife could complete the murder.”
Gooden correctly observes that the record contains no definitive evidence, one
way or another, as to whether he stayed with Rel while Sheryl retrieved the
scissors. However, we review the trial court’s ruling, not its reasoning.
(People v. Turner (2020) 10 Cal.5th 786, 807.) In a resentencing proceeding
under section 1172.6, regardless of the trial court’s reasoning, we conduct our
review by examining the record “ ‘ “ ‘in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 988.) Moreover, the detail
of whether Gooden stayed with Rel while Sheryl retrieved the scissors is not
material to our conclusion that substantial evidence supports the trial court’s
ultimate conclusion that Gooden is guilty of felony murder under current law.
8
B. Gooden’s Challenge to the Trial Court’s Consideration of Statements in
the Comprehensive Risk Assessment Lacks Merit
Before turning to our evaluation of the sufficiency of the evidence, we
address Gooden’s contention that the trial court erred in considering the
statements by Gooden that appear in the comprehensive risk assessment
prepared for the Board of Parole Hearings in 2014. Specifically, Gooden
challenges the trial court’s ruling, set forth in its written order, that the
comprehensive risk assessment would be “[r]eceived for [Gooden’s]
statements only, and not for any opinions, conclusions, or any other material
contained in the report.” (Bolding and italics omitted.)
On appeal, Gooden contends that defense counsel objected to the
admission of the comprehensive risk assessment. As Gooden characterizes
the record, “Defense counsel objected to the introduction of this document on
grounds that it was inadmissible based on due process and equal
protection. . . . She explained that what happens at the Parole Board is
essentially a coercive environment because people are counseled and
encouraged to admit to crimes in order to gain their release.”
We reject Gooden’s appellate challenge because, contrary to Gooden’s
representation on appeal, defense counsel did not object that it was improper
for the trial court to consider Gooden’s statements that appear in the
comprehensive risk assessment.5 Relying on People v. Myles (2021)
69 Cal.App.5th 688, defense counsel advocated for precisely the ruling that
5 In stating that defense counsel objected to the admission of the
comprehensive risk assessment on the ground of due process and equal
protection, Gooden’s appellate brief erroneously conflates defense counsel’s
discussion of her objection to the admission of any transcript from Gooden’s
parole hearing on the grounds of due process and equal protection, with
defense counsel’s statements about the propriety of admitting the
comprehensive risk assessment.
9
the trial court ended up making, namely, that it could consider any
statements against interest made by Gooden that appeared in the
comprehensive risk assessment. In setting forth her position regarding the
comprehensive risk assessment, defense counsel stated to the trial court,
“Myles stands for the proposition that it can be used only to the extent that
there is a statement against interest. All of the peripheral information about
any particular Defendant’s risk, any particular Defendant’s behavior, any
irrelevant assessments about his suitability for parole are not admissible
against this client at this time. So I would ask the Court pursuant to Myles to
only admit any statements that would be statements against penal interests of
Mr. Gooden.” (Italics added.)
“[A] challenge to the admission of evidence is not preserved for appeal
unless a specific and timely objection was made below.” (People v. Anderson
(2001) 25 Cal.4th 543, 586; see also Evid. Code, § 353, subd. (a) [error in
admitting evidence may not be basis for reversal of judgment unless “an
objection to or a motion to exclude or to strike the evidence . . . was timely
made and so stated as to make clear the specific ground of the objection or
motion”].) Here, because defense counsel not only failed to object, but
expressly agreed to, the admission of Gooden’s statements in the
comprehensive risk assessment, Gooden may not challenge the admission of
that evidence on appeal. (People v. Hensley (2014) 59 Cal.4th 788, 811
[appellant’s challenge to the admission of evidence was waived when defense
counsel told the trial court, “ ‘I’m not objecting’ ”].) We therefore reject
Gooden’s challenge to the trial court’s consideration of Gooden’s statements
in the comprehensive risk assessment.
10
C. Substantial Evidence Supports a Finding That Gooden Was a Major
Participant and Acted with Reckless Indifference to Human Life
Turning to our evaluation of the sufficiency of the evidence, we note
that the trial court’s ruling was premised on two separate factual findings
required by section 189, subdivision (e)(3): (1) Gooden was a major
participant in the burglary of Rel’s apartment; and (2) Gooden acted with
reckless indifference to human life. “ ‘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.’ ” (Clark, supra, 63 Cal.4th at p. 615.) Determining whether the two
requirements are met “requires a fact-intensive, individualized inquiry.”
(Scoggins, supra, 9 Cal.5th at p. 683.)
1. Major Participant
We first examine whether substantial evidence supports a finding that
Gooden was a major participant in the burglary.
“The ‘major participant’ element refers to ‘the defendant’s personal role
in the crimes leading to the victim’s death’ and is intended to reflect ‘the
defendant’s individual responsibility for the loss of life, not just his or her
vicarious responsibility for the underlying crime.’ (Banks, supra, 61 Cal.4th
at p. 801, italics added.) In other words, the focus is on the defendant’s own
culpability, not on the others who committed the crime and killed the victim.
(Ibid.)” (People v. Madrigal (2023) 93 Cal.App.5th 219, 238.)
Our Supreme Court has explained that in evaluating whether a
defendant was a major participant in an underlying felony it is instructive to
look to the specific facts of the United States Supreme Court cases that
originated the rule that a defendant who is a major participant in an
underlying felony and acted with reckless indifference to human life is
constitutionally eligible for the death penalty. (Banks, supra, 61 Cal.4th at
11
p. 802 [citing Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v.
Florida (1982) 458 U.S. 782 (Enmund)].) “With respect to conduct, Tison and
Enmund establish that a defendant’s personal involvement must be
substantial, greater than the actions of an ordinary aider and abettor to an
ordinary felony murder.” (Banks, at p. 802.) “Earl Enmund was just a
getaway driver, sitting in a car away from the murders.” (Id. at pp. 802-803,
italics omitted.) In contrast, with respect to the two defendants in Tison,
“[f]ar from merely sitting in a car away from the actual scene of the murders
acting as the getaway driver to a robbery, each [defendant] was actively
involved in every element of the kidnaping-robbery and was physically
present during the entire sequence of criminal activity culminating in the
murder of the [victims] and the subsequent flight.” (Tison, at p. 158.)
Specifically, both of the defendants supplied weapons to facilitate a prison
break of two persons, one of whom had killed a guard during a previous
escape. (Banks, at p. 802.) As part of the prison break in Tison, the two
defendants participated in “stopping and capturing an ‘innocent family whose
fate was then entrusted to the known killers [they] had previously armed.’
[Citation.] They robbed the family and held them at gunpoint while the two
murderers deliberated whether the family should live or die, then stood by
while all four members were shot.” (Banks, at p. 802.) After the killings, the
defendants “chose to aid those whom [they] had placed in the position to kill
rather than their victims.” (Tison, at p. 152.)
“Comparing the facts of Enmund with the facts of Tison, the Banks
court derived the following nonexclusive list of factors bearing on whether an
aider and abettor of felony murder was a ‘major participant’ under section
190.2, subdivision (d): ‘What role did the defendant have in planning the
criminal enterprise that led to one or more deaths? What role did the
12
defendant have in supplying or using lethal weapons? What awareness did
the defendant have of particular dangers posed by the nature of the crime,
weapons used, or past experience or conduct of the other participants? Was
the defendant present at the scene of the killing, in a position to facilitate or
prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was
used?’ (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) ‘No one of these
considerations is necessary, nor is any one of them necessarily sufficient.’
(Ibid.) To decide whether an accomplice is a major participant, the fact finder
must consider the totality of the circumstances. (Id. at p. 802.)” (People v.
Montanez (2023) 91 Cal.App.5th 245, 267-268.)
Although Gooden’s opening appellate brief contains an argument
heading and a single sentence stating that insufficient evidence supports the
trial court’s finding that he was a major participant in the burglary, Gooden
makes no substantive argument either applying the factors identified in
Banks, supra, 61 Cal.4th at page 803, or explaining in any other manner why
he was not a major participant in the burglary. We could treat Gooden’s
failure to develop the argument as a forfeiture of the issue. (City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“we may disregard
conclusory arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the conclusions
he wants us to adopt”].) However, because there is “significant[ ] overlap”
between the issue of whether someone is a major participant in a felony and
whether someone acted with reckless indifference to human life (Clark,
supra, 63 Cal.4th at p. 615), we will exercise our discretion to address
whether substantial evidence supports the trial court’s finding that Gooden
was a major participant in the burglary.
13
For the first Banks factor, we look to the role that Gooden played in
planning the criminal enterprise. (Banks, supra, 61 Cal.4th at p. 803.)
Based on Gooden’s 1982 statement to the detectives, the trial court could
reasonably conclude that Gooden and his wife were equally involved in
planning the burglary. Specifically, as Gooden stated, on the morning of the
burglary, “we both was ready to go and do what we’d been planning to do for
about three days.” This factor weighs in favor of Gooden being a major
participant.
For the second Banks factor, we examine Gooden’s role in supplying or
using lethal weapons. (Banks, supra, 61 Cal.4th at p. 803.) Here, there is no
evidence that Gooden either supplied or used lethal weapons.
For the third Banks factor, we ask what awareness Gooden had of the
particular dangers posed by the nature of the crime, the weapons used, or the
past experience or conduct of the other participants. (Banks, supra,
61 Cal.4th at p. 803.) In some cases, as here, “[t]he warning signs that the
crime[ ] pose[s] a serious risk of danger to the victim[ ]” will “accumulate[ ] as
the crime[ ] unfold[s].” (Montanez, supra, 91 Cal.App.5th at p. 273; see also
In re Harper (2022) 76 Cal.App.5th 450, 461 [“Whatever petitioner may or
may not have believed about the plan for the robbery at the outset . . . , he
was clearly aware of the risk of death once the robbery was underway” when
another participant “came out and asked where she could find some knives,
[and] petitioner thought to himself, ‘ “[A]re they gonna stab him . . . ?” ’ Yet,
he still told her where to find the knives.”].) Here, Gooden clearly became
aware of the danger to Rel in the course of the burglary, as he and Sheryl
discussed the need to kill Rel, and agreed to that plan. This factor weighs
heavily in favor of a finding that Gooden was a major participant.
14
For the fourth Banks factor, we consider whether Gooden was present
at the scene of the killing, in a position to facilitate or prevent the actual
murder, and whether his own actions or inaction play a particular role in the
death. (Banks, supra, 61 Cal.4th at p. 803.) Here, it is clear from the
statement Gooden made to detectives that he was present in the apartment
during the killing and watched Sheryl stab Rel in the neck. More
importantly, Gooden agreed with Sheryl that Rel should be killed and told
Sheryl that she should do it instead of him. This factor, too, weighs heavily
in favor of a major participant finding.
For the final Banks factor, we focus on what Gooden did after lethal
force was used. (Banks, supra, 61 Cal.4th at p. 803.) Here, Gooden made no
attempt to render aid to Rel. Instead, he proceeded to complete the burglary,
including trying to remove necklaces while Rel was covered with blood and
taking steps to hide his and Sheryl’s involvement in the crime. This final
factor also weighs in favor of a finding that Gooden was a major participant.
Based on the totality of the circumstances, Gooden easily falls at the
Tison “pole of the Tison-Enmund spectrum” (Banks, supra, 61 Cal.4th at
p. 805) with respect to whether he was a major participant in the underlying
burglary. As in Tison, although Gooden was not the person who committed
the killing during the underlying felony, he was present while it was
“deliberated whether [Rel] should live or die,” “stood by” while Rel was killed,
and then continued the criminal enterprise with Sheryl instead of aiding the
victim. (Banks, at p. 802.) Gooden was a major participant because, as in
Tison, he “was actively involved in every element of the [underlying felony]
and was physically present during the entire sequence of criminal activity
culminating in the murder.” (Tison, supra, 481 U.S. at p. 158.) If anything,
Gooden qualifies as a major participant to a greater extent than the
15
defendants in Tison, as he was directly involved in the discussions about
whether Rel should die, specifically agreed on the killing, and directed Sheryl
that she should carry it out.
2. Reckless Indifference to Human Life
The next question is whether substantial evidence supports the trial
court’s finding that Gooden acted with reckless indifference to human life.
In Clark, our Supreme Court “explained that reckless indifference to
human life has subjective and objective elements. ‘The subjective element is
the defendant’s conscious disregard of risks known to him or her.’ ([Clark,
supra, 63 Cal.4th] at p. 617.) ‘ “[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.” ’ ([Scoggins, supra, 9 Cal.5th at p. 677].)
‘ “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.’ (Ibid.)” (Montanez, supra, 91 Cal.App.5th at pp. 268-269.)
“The objective component is determined by considering what ‘ “a law-
abiding person would observe in the actor’s situation.” ’ (Clark, supra,63 Cal.4th at p. 617.) ‘ “ ‘[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.’ ” ’ (Scoggins, supra, 9 Cal.5th at p. 677.) At
the same time, ‘a defendant’s good faith but unreasonable belief that he or
she was not posing a risk to human life in pursuing the felony does not suffice
16
to foreclose a determination of reckless indifference to human life under
Tison.’ (Clark, at p. 622.)” (Montanez, supra, 91 Cal.App.5th at p. 269.)
Our Supreme Court in Clark “enumerated a five-factor test to
determine whether a defendant acted with reckless indifference to human
life, clarifying that no one factor is necessary, nor is any sufficient by itself.
The first factor is the defendant’s knowledge of weapons used, [the
defendant’s] own use of weapons, and the number of weapons involved.
([Clark, supra, 63 Cal.4th] at p. 618.) . . . The second factor is whether the
defendant was physically present at the crime scene and whether [the
defendant] had opportunities to restrain the crime or aid the victim(s). (Id. at
p. 619.) A defendant’s presence may be particularly significant where ‘the
murder is a culmination or a foreseeable result of several intermediate steps,
or where the participant who personally commits the murder exhibits
behavior tending to suggest a willingness to use lethal force.’ (Ibid.) [¶] The
third factor is the duration of the felony; crimes of longer duration present
greater risk of violence and therefore evince more reckless indifference. ([Id.]
at p. 620.) The fourth factor is the defendant’s knowledge of his or her
coparticipants’ likelihood of killing. (Id. at p. 621.) . . . Finally, the fifth factor
is whether the defendant made any efforts to minimize the risk of violence
during the felony. (Ibid.)” (Guiffreda, supra, 87 Cal.App.5th at pp. 124-125.)
For the first Clark factor, we look to Gooden’s knowledge of, and use of,
weapons. (Guiffreda, supra, 87 Cal.App.5th at p. 124.) Gooden clearly had
knowledge during the commission of the burglary that Sheryl was using a
weapon to kill Rel. He first became aware that Sheryl was using a weapon
when she used a knife that was too dull, and he then was present as Sheryl
used the scissors to kill Rel. Although Gooden did not use the weapons
himself, by telling Sheryl that he agreed that Rel should be killed and that
17
Sheryl should do it instead of him, he impliedly endorsed Sheryl’s use of a
deadly weapon. This factor accordingly weighs against Gooden.
For the second Clark factor, we examine Gooden’s presence at the crime
scene and opportunity to intervene against the killing or in aid of the victim.
(Guiffreda, supra, 87 Cal.App.5th at p. 124.) This factor weighs heavily
against Gooden. He was present during the entire burglary, including while
Rel was killed; he agreed with Sheryl that Rey should be killed; and he did
nothing to aid Rel while she was dying. Gooden contends in his appellate
brief that he “may not have called 911 out of loyalty to his wife or out of fear
because she had a weapon and was not hesitant to use it.” He also suggests
that he was “subject to a need to obey his wife.” However, the trial court
could reasonably have reached a different inference based on the facts.
Specifically, Gooden explained during the comprehensive risk assessment
that he reached the conclusion that killing Rel “was necessary because she
knew and could identify him (them),” and he told the detectives in 1982 that
he “realize[d] . . . we have to kill her.”
The third Clark factor directs us to look at the duration of the
underlying felony. (Guiffreda, supra, 87 Cal.App.5th at p. 124.) Applying
this factor, we observe that there was ample time during the burglary for
Sheryl and Gooden to discuss the need to kill Rel and for Gooden to direct
Sheryl to accomplish the killing. Sheryl’s first attempt with the knife was
unsuccessful, which prolonged the process of killing Rel. Gooden could have
changed his mind about the killing while Sheryl was retrieving the scissors
and could have intervened to try to stop her, but he did not do so.
Accordingly, this factor weighs against Gooden.
For the fourth Clark factor, we inquire whether Gooden knew about
Sheryl’s likelihood of killing. (Guiffreda, supra, 87 Cal.App.5th at p. 124.)
18
Our Supreme Court has made clear that a defendant’s knowledge of a
coparticipant’s likelihood of killing “may occur during the felony.” (Clark,
supra, 63 Cal.4th at p. 621.) Here, during the course of the burglary, Gooden
and Sheryl expressly discussed the need to kill Rel, and Gooden told Sheryl
that she should do the killing. Therefore, Gooden indisputably became
aware, during the course of the burglary, that Sheryl was likely to kill Rel.
Gooden argues that “there was no evidence that [he] was aware of any past
violent acts by his wife.” That may be true, but it pales in comparison to the
fact that Gooden learned during the burglary that Sheryl wanted to kill Rel
and agreed that she should do so. The fourth factor accordingly weighs
against Gooden.
For the fifth and final Clark factor, we examine whether Gooden made
any efforts to minimize the risk of violence during the burglary. (Guiffreda,
supra, 87 Cal.App.5th at pp. 124-125.) There is no evidence that Gooden
made any effort to minimize the risk to Rel. On the contrary, he agreed with
Sheryl that Rel should be killed, and he instructed Sheryl to do so. This
factor weighs against Gooden.
Considering the totality of the circumstances, including our application
of the Clark factors, we conclude that substantial evidence supports a finding
that Gooden acted with reckless indifference to human life during the
burglary. The evidence supports a finding that, with respect to his subjective
state of mind, Gooden understood that there was a high risk that Rel would
die based on the fact that he and Sheryl agreed to that course of action.
Further, from an objective standpoint, any reasonable person would know
that Gooden’s act of agreeing with Sheryl that Rel should be killed and then
standing by while Sheryl took action, was likely to result in Rel’s death.
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In sum, substantial evidence supports a finding that Gooden is guilty of
murder under the current felony-murder law because he was a major
participant in the underlying burglary and he acted with reckless
indifference to human life. (§ 189, subd. (e)(3).) We accordingly affirm the
trial court’s order denying Gooden’s petition for resentencing.
DISPOSITION
The order denying the petition for resentencing is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BUCHANAN, J.
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