People v. Howard CA2/3 ( 2024 )

Filed 10/2/24 P. v. Howard CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B324178
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA240172)
v.
REGINALD HOWARD, et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Ronald S. Coen, Judge. Remanded with directions as to
Reginald Howard. Affirmed as to Jesse Singleton.
Ellen M. Matsumoto, under appointment by the Court of
Appeal, for Defendant and Appellant Reginald Howard.
Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant Jesse Singleton.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Reginald Howard and John Singleton participated in an
armed robbery, during which a security guard was shot and
killed. A jury convicted Howard of first degree murder and
robbery. After two juries hung as to Singleton’s guilt for robbery
and murder, he pled guilty to voluntary manslaughter and
robbery and admitted a firearm allegation. Thereafter, Howard
and Singleton separately petitioned for resentencing under Penal
Code section 1172.6,1 which limited accomplice liability for
murder. After evidentiary hearings under that section, the trial
court denied the petitions, finding that both were major
participants in the felony who acted with reckless indifference to
human life.
Howard and Singleton now appeal the trial court’s orders
denying their petitions. Howard contends that the trial court
erred by finding he was personally armed during the robbery, in
contravention of a jury finding he did not use a firearm.
Singleton contends that he had a right to a jury trial and there
was insufficient evidence he acted with reckless indifference to
human life. As to Howard, the record is unclear what the trial
court found as to the firearm, and we therefore remand with
directions as to him. However, we reject Singleton’s contentions
and affirm the order as to him.
1
All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
BACKGROUND
I. The robbery and murder
Howard and Singleton were tried together before separate
juries. Others involved in the crime (Claudell Hatter, Rollin
Denem, Thomas Bridges, and Wardell Joe) were tried together in
a separate proceeding. Based on our review of the trial
transcripts, we find the opinion affirming Howard’s judgment of
conviction on direct appeal (People v. Howard (June 1, 2007,
B186175) [nonpub. opn.]) to be an accurate summary of evidence
admitted at Singleton and Howard’s joint trial. We therefore
quote its recitation of the background, with additions noted in
brackets. (§ 1172.6, subd. (d)(3); see People v. Lewis (2021) 11
Cal.5th 952, 972 [appellate opinion generally part of record of
conviction in § 1172.6 proceedings].) We have taken judicial
notice of the clerk’s and reporter’s transcripts from that case.
(Evid. Code, § 452, subd. (d).)
“1. Prosecution evidence.
“a. The Big Saver robbery.
“On November 3, 1998, [in the late morning,] defendant
Howard along with Claudell Hatter, Jesse Singleton, Rollin
Denem, Wardell Joe, Tiasha Croslin and Thomas Bridges robbed
a Big Saver Foods Market (‘Big Saver’) in Los Angeles.2 Howard,
Hatter, Singleton, Denem and Joe were members of the 69 East
Coast Crips. Bridges belonged to the West Covina Neighborhood
Crips, and his girlfriend Croslin used to belong to a gang in San
Diego.
“2 Amar Mobley was acquitted of having participated in the
Big Saver robbery.
3
“Gilbert D. lived close to the Big Saver. On November 3,
1998, three cars stopped in front of his house and he watched the
occupants talking together for a few minutes. One of the cars
was a blue and tan Regal. It looked to Gilbert like the occupants
of the cars were plotting something. As he watched, three men
got out of one of the cars and walked toward the Big Saver. The
cars departed, but one quickly parked again nearby. When
Gilbert walked down the street, the man inside this car avoided
Gilbert’s gaze in an apparent attempt to conceal his identity.
Another one of the three cars then pulled up. Gilbert walked
back home and called 911 because he thought the people in the
cars were planning to rob him. He watched as four men went
into the Big Saver. Shortly thereafter, he saw two or three
people run out of the Big Saver, jump in one of the cars and drive
off. In May 2001, police showed Gilbert photo arrays. He
identified the two occupants of the Regal as Hatter and Croslin:
Hatter had been driving and Croslin had been sitting in the
passenger seat.
“Jose L., the assistant manager at Big Saver, was stocking
shelves when he noticed three men inside the store. Jose got
suspicious because he saw the men wandering around the store
without picking out any items to buy. At one point, the men
stopped and had a conversation less than 10 feet away from Jose
and he was able to see their faces. Jose then went to the upstairs
warehouse and watched the men from above. He lost sight of
them as they moved toward the front of the store. After hearing
a gunshot, he went back downstairs and saw one of the men who
had been roaming the store. This man was standing behind
Marissa, one of the cashiers, and pointing a gun at her head.
4
“In April 2001, police showed Jose a photo array and he
identified Howard as one of the three men he had seen roaming
around the market that day. At the trial, which took place a
little more than seven years after the robbery, Jose was asked if
he saw any of those men in the courtroom. Howard was being
tried with two codefendants. Jose replied, ‘It’s been a very long
time. I couldn’t tell you exactly.’ Asked the same question a little
later during his testimony, Jose said Howard ‘seems familiar.’3
“Marissa A. testified she heard another cashier yell for the
security guard. Looking toward the front of the store, Marissa
saw two men struggling with Jose Hernandez, the security guard.
A third man was standing in front of Hernandez and pointing a
gun at him. Marissa heard a gunshot and ran to the manager’s
office, but the manager locked the door before she could get
inside. Then one of the men who had been struggling with
Hernandez yelled at Marissa [‘to get [her] ass over there.’] When
she turned around, the man was pointing a gun at her. Marissa
returned to her cash register, where the man ordered her to hand
over the money. Because it was still early in the day, the robbers
did not get more than three or four hundred dollars and some
food stamps. As Marissa was emptying the register, she saw
Hernandez ‘on the floor’ and she thought he had been shot.
“3 When Jose was asked why he had initially been unsure, the
following colloquy occurred: ‘A. When you asked me the question
the first time, it seemed so but I wasn’t sure. [¶] Q. What
happened that made you feel more sure? [¶] A. I don’t know. It
just seems to me that I’ve seen him before, that’s why. I don’t
know if it was perhaps in the picture as well.’ Jose further
explained: ‘At the moment when the question was asked of me, I
didn’t want to say yes, but he did look familiar,’ and ‘I felt he was
one of the people I had seen inside the store.’
5
[Carlos G. was working in the produce department that
day. He noticed two young African American men looking around
the store. Soon thereafter, Carlos saw a man with long hair and
wearing a cap near the cash registers. The man pointed a gun at
the ceiling, told everyone to get down, and fired a shot into the
ceiling. The man had two companions. On hearing the gunshot,
Carlos ran, and as he ran, he heard a second gunshot.]
“b. The initial 1998 investigation.
“Los Angeles County Sheriff’s Detective Joseph Martinez
arrived at the scene shortly after the shooting. He found
Hernandez dead, lying on the floor in front of a magazine rack.
Hernandez’s gun was missing. His shirt, which had been
removed by paramedics, had a gunshot hole just below the left
breast pocket. Martinez found a hole in the magazine rack and
an expended .45-caliber bullet between some magazines. He also
found a bullet hole in the ceiling near one of the cash registers.
“James Carroll, a forensic firearms examiner, testified the
bullet recovered from the magazine rack was a .45-caliber bullet
that had probably been fired from a semiautomatic weapon.
Hernandez owned a .380-caliber gun which could not have fired
the .45-caliber bullet. Carroll found black sooting around the
bullet hole in Hernandez’s shirt, indicating the murder weapon
had been pressed right up against Hernandez’s body when it was
fired.
“The investigation made no further progress for several
years.
“c. The investigation resumed in 2001.
“Leonard Jackson was a member of the 76 East Coast
Crips. He was acquainted with the people who committed the
6
Big Saver robbery. He frequently hung out with them at Hatter’s
house on 84th Street.4 Two days after the Big Saver robbery,
Jackson was arrested for violating parole. He had been in federal
custody since March 2000.
“In October 2000, Jackson was given a 17-year prison
sentence on a federal drug case. Hoping to get this sentence
reduced, he told the United States Attorney in Los Angeles he
had information about the Big Saver murder. Jackson was
initially interviewed by Los Angeles Police Dep[artment]
Detective Gregory McKnight, who was investigating another
case, a March 2001 drive-by gang shooting in which Howard was
a suspect. When Jackson made statements about the Big Saver
case, McKnight contacted Detective Martinez, who had been
conducting the Big Saver investigation. Based on identifications
made by Jackson, Martinez began showing photo arrays to
various eyewitnesses.
“McKnight arrested Howard in April 2001, in connection
with the drive-by shooting. Under interrogation, he began to
incriminate himself in the Big Saver case after McKnight falsely
said Singleton had implicated him.5 McKnight contacted
Martinez, who asked him to start taping the interview. On the
recording, Howard admitted his participation in the Big Saver
robbery. He said someone had given him an inoperable firearm
to wave around during the robbery and that he was supposed to
“4 The house belonged to Hatter’s aunt, but it will be referred
to as ‘Hatter’s house’ for convenience.
“5 Regarding the drive-by shooting, McKnight falsely told
Howard his fingerprint had been found on the suspected drive-by
vehicle, and that Singleton had implicated him.
7
get money from the safe in the manager’s office. He saw
Singleton and Joe fighting with the security guard; one of them
shot the guard.
“After arriving at the police station, Martinez took over the
questioning. When he said he was investigating the Big Saver
case, Howard said he didn’t want to talk about that. As Martinez
got up to leave, Howard asked if Martinez would ‘mind telling
him what I had on him.’ Shown the photographs that had been
identified by Jackson, Howard remarked, ‘It looks like you’ve
done your job.’ Howard then asked ‘who was talking[?]’ Martinez
falsely told him it was Croslin, to which Howard responded,
‘Can’t trust no bitch.’ When Martinez again asked if Howard
wanted to make a statement, Howard said, ‘[W]ell, with what I
had on him and with what McKnight had on him, he was looking
at life in prison, so he asked . . . to call his mother, get some
advice from his mother.’ After the call, Howard refused to say
anything else.
“d. Croslin’s trial testimony.
“Croslin testified that in November 1998, she was living
with her boyfriend Thomas Bridges in Los Angeles. Croslin
previously lived in San Diego, where she had been a member of
Emerald Hills, a Blood gang. Bridges was a member of the West
Covina Neighborhood Crips. He frequently hung out with
members of the 69 East Coast Crips at Hatter’s house on 84th
Street. Croslin and Bridges lived on 68th Street. Their friend
Leonard Jackson lived in a house right in front of them.
“On the day of the Big Saver robbery, Croslin and Bridges
went to Hatter’s house. Howard, Hatter, Singleton, Denem, Joe
and Amar Mobley were also there. Croslin heard them planning
a robbery. The plan was to use three cars. Bridges told Croslin
8
to ride with Hatter in the blue and tan Regal. The three cars left
Hatter’s house at the same time. Croslin and Hatter drove to a
Big Saver market and went inside ‘[t]o scope the place out.’ They
bought a few items and left. As they drove away, Croslin saw the
other two cars parked on a street near the Big Saver. She could
see the other members of the robbery group, including Howard.
Hatter then parked the Regal out of sight of the Big Saver. He
and Croslin sat there a few minutes, then drove past the Big
Saver again. Croslin saw ‘[p]eople running out of the store,’
‘covering their faces and running.’
“All the Big Saver participants met back at Hatter’s house.
People started arguing because someone had gotten shot during
the robbery. [Denem had a wig that he wore during the robbery
to disguise himself.] Howard was pacing nervously, saying, ‘I
shot him,’ and ‘I killed him, I killed him.’ Hatter told Howard to
shut up. Hatter said, ‘You didn’t kill him, you didn’t kill him.’
People were also complaining because the robbery proceeds were
so meager. Croslin saw Leonard Jackson arrive in a car being
driven by his girlfriend. Croslin left shortly thereafter and went
home.
“That night, Croslin saw a report about the Big Saver
robbery on the news. Police sketches of Denem and Bridges were
shown. Croslin got upset when she learned the security guard
had been killed. When Bridges came home, he had money and
food stamps from the robbery. Croslin confronted him about the
guard’s death. Bridges said he and Denem were supposed to
open the safe while Howard and Singleton robbed the cash
registers, but that an employee locked the office door so Bridges
and Denem went to the cash registers. Bridges saw Howard and
Singleton ‘tussling with the security guard.’ A gun went off, but
9
Bridges did not see who fired it. [However, Bridges also told
Croslin that Howard shot the security guard.]
“Croslin was arrested two days later in a bank robbery and
she had been in federal custody ever since. She agreed to testify
against her Big Saver accomplices in return for a guilty plea to
manslaughter and robbery. Detective Martinez interviewed
Croslin in Connecticut in May 2001, after which she was brought
to Los Angeles.
“In her testimony, Croslin admitted having written letters
to Hatter[’s] and Bridges’s mother[s] apologizing for falsely
implicating Bridges and Hatter in the Big Saver robbery. Croslin
wrote she had done so because the police threatened her. She
was subsequently interviewed by Hatter’s investigator, who
prepared a statement that she signed asserting she had been the
victim of police coercion. However, Croslin testified the letters
she had written to Hatter[’s] and Bridges’s mother[s] were false.
Bridges’s mother had been visiting Croslin in jail and harassing
her, telling her not to testify. Hatter had threatened her when
they happened to be on the same prison bus: ‘He told me to don’t
say anything else, this is a capital murder case, we’re looking at
the death penalty and just shut up and be quiet.’ Croslin wrote
the apology letters to stop this harassment. The statement she
signed for the defense investigator was untrue; she had never
been pressured to make statements against the defendants.
“e. Jackson’s trial testimony.
“Jackson testified that on November 3, 1998, he went to
Hatter’s house. Because he was wanted for a parole violation,
Jackson had his girlfriend drive him while he hid in the back seat
of the car. When they arrived, Jackson sat up and saw three cars
drive up. He saw Hatter, Singleton, Mobley, Denem, Joe,
10
Croslin, Bridges and Howard go into Hatter’s house. When
Jackson walked into the house, he saw Howard and the others
discussing the robbery and dividing up food stamps. Hatter said,
‘Man, how much money you all got. This is all you all got?,’ to
which Bridges replied, ‘We would have got more if [Howard]
wasn’t so damn trigger happy.’ Jackson testified Howard was
‘stressed out’ and ‘pacing back and forth’ during this
conversation. Howard appeared to have something heavy in his
pocket which might have been a gun.
“Later that day, after Howard left, Jackson remained at
Hatter’s house. He was watching television with Bridges and
Denem when a news report came on about the Big Saver robbery.
Bridges and Denem said it ‘was messed up’ ‘how the killings [sic]
went down . . . saying that [if Howard hadn’t been] trigger happy
. . . the killing wouldn’t have went down.’
“In March 2000, while Jackson was in federal custody, he
ran into Bridges. Bridges started talking about the Big Saver
robbery. He said there was ‘never supposed to [have] been a
murder,’ but that Howard ‘was real trigger happy. [Howard] shot
and killed the officer in the store.’ Bridges described how the
robbery unfolded. After Croslin and Hatter cased the market,
Howard, Singleton, Denem and Bridges went in. Singleton and
Howard were armed and they were supposed to rob the security
guard. When the guard tried to take Singleton’s gun, Howard
shot him. However, Jackson also testified that Bridges admitted
he had not actually witnessed the shooting: ‘[Bridges] said he
heard . . . a gunshot and he ran to the front [of the store]. He
said when he ran to the front, [Singleton] and [Howard] had
already run up out the door. [¶] Q. Could he see what was
happening with the security guard? [¶] A. Naw.’
11
“The prosecution’s gang expert testified that in 1998 the 69
East Coast Crips had about 130 members. Their principal
enterprises included murder, robbery, drive-by shootings, drug
sales and weapons sales. When these gang members committed
robberies in their own territory, they did so in order to obtain
money to buy drugs, weapons and vehicles. Howard had
identified himself as a member of the 69 East Coast Crips to
several police officers.
“2. Defense evidence.
“Hatter’s investigator, Stephen Thornton, visited Croslin at
the county jail in response to the letter she had written to Hatter.
Croslin told Thornton her police statements had been coerced,
that Detective Martinez said she would go to prison for the rest of
her life and never see her mother again. Martinez played her a
tape of his interview with Jackson, and Croslin just repeated
what Jackson said. Thornton later brought Croslin a written
statement describing this police coercion, which she signed.”
(People v. Howard, supra, B186175.)
II. Verdicts and sentences
Howard and Singleton were charged with crimes arising
from three separate incidents. As to the Big Saver crimes,
Howard and Singleton were charged with Hernandez’s murder
(§ 187, subd. (a); count 1) with a special circumstance allegation
the murder was committed during a robbery (§ 190.2, subd.
(a)(17)), two counts of robbery (§ 211; counts 2 (Hernandez) & 3
(Ayon)), and firearm and gang allegations. They were also
charged with a 2001 murder (count 4) and attempted murder
(count 5) and a 2006 robbery (count 6).
12
As relevant here, Howard’s jury convicted him of the first
degree murder of Hernandez with a true finding on the special
circumstance (§§ 187, subd. (a), 190.2, subd. (a)(17)) and the
robbery of Ayon (§ 211). His jury found not true personal gun use
allegations (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d))
but found true principal gun use allegations (§§ 12022,
subd. (a)(1), 12022.53, subds. (b), (c), (d) & (e)(1)). In 2005, the
trial court sentenced Howard to life without parole, plus 25 years
to life for the gun enhancement, plus six years. A different panel
of this division affirmed Howard’s judgment of conviction on
direct appeal. (People v. Howard, supra, B186175.)
Singleton’s jury hung on the Big Saver murder and robbery
counts, and the trial court declared a mistrial as to them. A
second trial also ended with a hung jury on all three counts. In
2007, Singleton entered into a negotiated plea under which he
pled guilty to voluntary manslaughter and two counts of robbery
and admitted a firearm enhancement (§ 12022.5, subd. (a)). Per
the minute order from the plea hearing, the trial court found a
factual basis for the plea.6 In 2007, the trial court sentenced
Singleton to 23 years in prison in this case.
6
The reporter’s transcript from the plea is not part of the
record on appeal.
13
III. Postconviction petitions for resentencing
In 2022, Howard and Singleton separately petitioned for
resentencing under section 1172.6. The People agreed petitioners
made prima facie cases for relief because they were convicted
under the felony-murder doctrine, so the trial court scheduled
evidentiary hearings. At both evidentiary hearings, the parties
did not offer new evidence or testimony. Instead, the People
relied on the evidence presented at Singleton’s and Howard’s
joint trial.
A. Singleton’s evidentiary hearing
In his briefing submitted for the evidentiary hearing,
Singleton, who was 17 years old when the crimes were
committed, agreed that he was armed during the robbery.
At the hearing, the trial court found of “no moment” that
two juries hung, so the trial court did not consider that fact.
Turning to the evidence supporting its conclusion that Singleton
was guilty of felony murder, the trial court noted that Singleton
was at the precrime meeting. During the robbery, Singleton was
present, armed, and active. Although there was some evidence
Singleton may have been a shooter, the trial court did not “put
much note into that.” However, Singleton did not try to help the
dying victim. Finally, Singleton was at the postcrime meeting
where the proceeds were divided. And he destroyed evidence,
namely, a car.
Based on the totality of what the trial court considered, it
found beyond a reasonable doubt that Singleton was guilty of
felony murder as a major participant who acted with reckless
indifference to human life. The trial court accordingly denied
Singleton’s petition for resentencing on October 7, 2022.
14
B. Howard’s evidentiary hearing
At Howard’s evidentiary hearing, the trial court said it had
considered the trial transcripts, verdicts, and jury instructions.
It had glanced at the appellate opinion but did not consider it.
Howard’s counsel argued that his client qualified for
resentencing because the jury had found he was not the actual
shooter. Counsel otherwise conceded that Howard was a major
participant but disputed that he acted with reckless indifference
to human life. In response, the prosecutor said it was not asking
the trial court to find that Howard was the actual killer;
nonetheless, the jury’s finding did not preclude a finding that
Howard was armed with and intended to use a gun.
The trial court said the jury’s finding did not preclude it
from finding Howard was an actual shooter. Further, the trial
court did not believe Howard’s “self-serving statement” that his
gun was inoperable and rejected that Howard tried to minimize
the risk of violence by using an inoperable gun. Howard was at
the planning meeting for the robbery. He armed himself, and it
was his job to hold up the security guard. Howard was also at
the postcrime meeting where the robbers divided the proceeds.
The trial court therefore also denied Howard’s petition for
resentencing on November 3, 2022.
DISCUSSION
I. Senate Bill No. 1437
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) limited
accomplice liability under the felony-murder rule, eliminated the
natural and probable consequences doctrine as it relates to
15
murder, and eliminated convictions for murder based on a theory
under which malice is imputed to a person based solely on that
person’s participation in a crime. (See generally People v. Reyes
(2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952,
957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile).) As relevant here, Senate Bill 1437 amended the
felony-murder rule by adding section 189, subdivision (e), which
provides that a participant in the perpetration of qualifying
felonies is liable for felony murder only if the person (1) was the
actual killer, (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor, or (3) the person was a
major participant in the underlying felony and acted with
reckless indifference to human life, as described in section 190.2,
subdivision (d). (Gentile, at p. 842.)
Senate Bill 1437 also created a procedure, codified at
section 1172.6, for a person convicted of murder, attempted
murder, or voluntary manslaughter under the former law to be
resentenced if the person could no longer be convicted of those
crimes under the current law. (People v. Lewis, supra, 11 Cal.5th
at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant
commences that procedure by filing a petition containing a
declaration that, among other things, the defendant could not
presently be convicted of murder, attempted murder, or voluntary
manslaughter under the current law. (People v. Strong (2022) 13
Cal.5th 698, 708 (Strong).)
If a petition establishes a prima facie case for relief, the
trial court must appoint counsel if requested, issue an order to
show cause, and hold an evidentiary hearing at which the parties
may offer new or additional evidence and the trial court sits as an
independent factfinder to determine beyond a reasonable doubt
16
whether the defendant is guilty of murder under a valid theory.
(§ 1172.6, subds. (b)(3), (c), & (d)(1); People v. Garrison (2021) 73
Cal.App.5th 735, 745.)
II. Standard of review
On appeal, we review the trial court’s findings after a
section 1172.6, subdivision (d)(3), evidentiary hearing for
substantial evidence. (People v. Clements (2022) 75 Cal.App.5th
276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575,
591.) Under that standard of review we “ ‘ “examine the entire
record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in
support of the judgment the existence of every fact that can be
reasonably deduced from the evidence. (People v. Owens (2022)
78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues
or evidentiary conflicts. (Ibid.) Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.)
Before we may set aside a trial court’s order, it must be clear that
“ ‘ “upon no hypothesis whatever is there sufficient substantial
evidence to support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
Notwithstanding this standard of review, Singleton
suggests that where the appeal is on a “cold record” we need not
defer to the trial court’s findings but may make our own. He cites
People v. Vivar (2021) 11 Cal.5th 510 to support his argument.
Vivar concerned section 1437.7, under which courts may vacate a
conviction if a defendant shows a prejudicial error affecting the
17
defendant’s ability to meaningfully understand the immigration
consequences of a plea. Vivar, at page 524, emphasized that
while the inquiry whether counsel’s immigration advice was
inadequate and prejudicial involved mixed questions, the inquiry
was predominately one of law. As such, independent review on
appeal was proper. The court further noted that its decision
applied only to section 1437.7, and nothing it said otherwise
“disturbs a familiar postulate” requiring appellate deference to
the trial court’s factual findings regardless of whether they are
based on oral testimony or declarations. (Vivar, at p. 528, fn. 7.)
We therefore find Singleton’s reliance on Vivar unpersuasive to
show that the substantial evidence standard of review is
inapplicable. (See, e.g., People v. Clements, supra, 75 Cal.App.5th
at pp. 301–302 [substantial evidence review applies even where
review of § 1172.6 evidentiary hearing is from a “cold record” and
distinguishing Vivar]; accord, People v. Njoku (2023) 95
Cal.App.5th 27, 42–43.)
Next, Singleton “accepts” that we must view the facts in the
light most favorable to the verdict. But he suggests this principle
does not apply because there was no “verdict” against him and
“thus no facts concerning his involvement in the underlying
crimes to view in the light most favorable to the ‘non-verdict.’ ”
However, section 1172.6 applies to pleas. (§ 1172.6, subd. (a)(2)
[person who “accepted a plea offer in lieu of a trial” may petition
for relief].) Singleton pled guilty to voluntary manslaughter and
robbery and admitted a gun enhancement. That plea is the
“verdict” for purposes of section 1172.6.
Singleton also suggests that the trial court could not
consider the trial record because the jury hung as to his guilt and
18
he entered into a West plea.7 A West plea of nolo contendere is
one that does not admit a factual basis for the plea. (People v.
West (1970) 3 Cal.3d 595; In re Alvernaz (1992) 2 Cal.4th 924,
932.) The plea is a generic one that does not establish a theory of
murder liability or admit elemental facts necessary to an
enhancement. (People v. Estrada (2024) 101 Cal.App.5th 328,
338.) While Singleton’s generic plea did not establish or admit
any specific facts, that is irrelevant to whether the trial court
could consider the trial transcript. The statute expressly
provides that the court “may consider evidence previously
admitted at any prior hearing or trial that is admissible under
current law.” (§ 1172.6, subd. (d)(3).) The trial court therefore
could consider the record of conviction, including the trial
transcripts from Singleton and Howard’s joint trial.
III. Bank/Clark factors
The trial court found that Howard and Singleton were
guilty of felony murder as major participants in a crime who
acted with reckless indifference to human life under current law.
This area of law has its genesis in two United States Supreme
Court cases: Enmund v. Florida (1982) 458 U.S. 782 and Tison v.
Arizona (1987) 481 U.S. 137. Enmund held that the death
penalty could not constitutionally be imposed on an armed
robbery getaway driver who was a minor participant in the crime,
7
The reporter’s transcript of the plea hearing is not
available, and the minute order from that hearing merely states
that the trial court found there was a factual basis for the plea.
We will therefore assume this was a West plea.
19
was not present when the murder was committed, and had no
intent to kill. (Enmund, at pp. 798, 801.)8
In contrast, Tison v. Arizona, supra, 481 U.S. at page 139,
did not preclude imposing the death penalty for two defendants,
brothers, who had helped their father and his cellmate—both
convicted murderers—escape from prison. The defendants gave
them guns, and the group later kidnapped a family of four. The
defendants then stood by while their father debated whether to
kill the family and proceeded to shoot the family, including a
toddler and a teenager. (Id. at pp. 139–141.) The court held that
the Eighth Amendment does not prohibit imposing the death
penalty on a nonkiller who lacked the intent to kill, but whose
“participation [in the crime] is major and whose mental state is
one of reckless indifference to the value of human life.” (Id. at
p. 152; see also id. at pp. 157–158.)
Years later, in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), our
Supreme Court addressed Enmund and Tison and substantially
clarified the “major participant” and “reckless indifference to
human life” requirements. Banks, at page 794, considered “under
what circumstances an accomplice who lacks the intent to kill
may qualify as a major participant.” The court listed various
factors that should be considered in making that determination:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
8
This division relied on Enmund to reverse the true finding
on the special circumstance allegation as to Wardell Joe, a
getaway driver during the Big Saver crimes. (In re Joe (Sept. 15,
2016, B275593) [nonpub. opn.].)
20
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.)
The court then turned its attention to “reckless indifference
to human life” in Clark. Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to
carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.)
It “encompasses a willingness to kill (or to assist another in
killing) to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(Id. at p. 617.) Recklessness has both a subjective and an
objective component. (Ibid.) Subjectively, the defendant must
consciously disregard risks known to him. Objectively,
recklessness is determined by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” that is, whether defendant’s
conduct “ ‘involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would
observe.’ ” (Ibid.)
Clark listed factors to consider when determining whether
reckless indifference existed: “Did the defendant use or know
that a gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present at
the crime? Did he or she have the opportunity to restrain the
crime or aid the victim? What was the duration of the interaction
between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s
21
propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence
during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677
[summarizing Clark factors].)
IV. Singleton’s petition for resentencing
Singleton makes two arguments why the trial court’s order
should be reversed. First, “principles underlying the right to trial
by jury and the principle of issue preclusion” require reversal.
Second, there is insufficient evidence he acted with reckless
indifference to human life under Banks and Clark.
A. Section 1172.6 does not violate the right to a jury trial or
due process
Emphasizing that two juries were unable to convict him of
the at-issue crimes, Singleton argues that section 1172.6 violates
his Sixth Amendment right to a jury trial and due process rights
because a judge and not a jury made factual determinations
about his conduct. He cites Apprendi v. New Jersey (2000) 530
U.S. 466, 490, which held that “any fact that increases the
penalty for a crime beyond the prescribed statutory maximum”
must be found by a jury, except that “the fact of a prior
conviction” may be found by the court. Apprendi, however, has
no application here. Resentencing statutes like section 1172.6 do
not trigger the right to a jury trial because they are ameliorative
sentencing statutes that do not arise until after a final conviction.
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; accord,
People v. Silva (2021) 72 Cal.App.5th 505, 520–522.) Section
1172.6 is an act of lenity that reduces the offense for which a
defendant was properly convicted. (People v. James (2021) 63
Cal.App.5th 604, 609; Anthony, at p. 1156.) As such, the
22
retroactive relief that section 1172.6 affords is not subject to
Sixth Amendment analysis. (James, at p. 609, Anthony, at p.
1156.)
Nor does section 1172.6 offend due process. (See People v.
Silva, supra, 72 Cal.App.5th at pp. 523–524.) The statute
restricts the trial court’s fact finding to determine eligibility to
defined evidence presented at a noticed evidentiary hearing, at
which the petitioner has an opportunity to be heard and to
present evidence. (§ 1172.6, subd. (d)(3).) Singleton makes no
contention that the trial court did not follow those requirements.
B. Reckless indifference to human life
Singleton next contends that there was insufficient
evidence he acted with reckless indifference to human life.9 We
disagree.
Singleton does not dispute that he and at least some of his
accomplices were armed. While Singleton’s mere knowledge that
he and his accomplices were armed is insufficient by itself to
establish reckless indifference to human life, it is not irrelevant.
(Clark, supra, 63 Cal.4th at p. 617; accord, In re Scoggins, supra,
9 Cal.5th at p. 682 [anyone who plans or participates in armed
robbery anticipates lethal violence might be used, given that one
in 200 armed robberies results in death, even though that alone
does not establish reckless indifference to human life].) Rather,
that Singleton and at least one other accomplice were armed is
relevant to the required mens rea and weighs in favor of the trial
court’s conclusion, even if it is not dispositive.
9
We treat Singleton’s failure to address whether he was a
major participant as a concession there was sufficient evidence of
that prong.
23
Further, while the initial plan might not have involved
shooting the security guard, evidence of Singleton’s presence
during and proximity to the murder and events leading to it “may
be particularly significant where, as in Tison, the murder is a
culmination or a foreseeable result of several intermediate steps.”
(Clark, supra, 63 Cal.4th at p. 619; see, e.g., People v. Nieber
(2022) 82 Cal.App.5th 458, 479; People v. Mitchell, supra, 81
Cal.App.5th at p. 592 [“Mitchell was physically present at every
stage of the crime: planning, execution, dividing the spoils, and
flight.”].) Here, before any shots were fired, Jose L. saw three
men wandering the store without picking up any items to buy.
After hearing a gunshot, Jose L. saw one of the men holding a
gun to Marissa A.’s head. Although it is not clear which of the
three men was Singleton, there is nonetheless evidence he was in
close proximity to the security guard and to Marissa A. when a
cohort was holding a gun to her head. Both Howard and Bridges
identified Singleton as one of the men who fought with the
security guard. Once encountering resistance from the security
guard, Singleton could have desisted or tried to restrain his
accomplice from shooting him or from pointing a gun at Marissa
A.’s head. Instead, Singleton helped restrain the security guard,
enabling his accomplice to shoot him. And there is no evidence
he tried to help Marissa A. These actions exhibited a reckless
indifference to human life. (See People v. Bascomb (2020) 55
Cal.App.5th 1077, 1089 [defendant enabled murder by using gun
to keep victims at bay during bank robbery].) This case is
therefore not like ones in which the defendant had no opportunity
to intervene. (Compare In re Scoggins, supra, 9 Cal.5th at p. 679
[quickness of shooting suggested defendant lacked control over
accomplices’ actions]; People v. Ramirez (2021) 71 Cal.App.5th
24970, 989 [defendant lacked meaningful opportunity to intervene
when he and shooter were on opposite sides of victim’s car, and
attempted carjacking was quickly executed]; In re Moore (2021)
68 Cal.App.5th 434, 452 [defendant present during robbery but
not “ ‘close enough’ ” to restrain shooter].)
There is also no evidence that Singleton tried to minimize
the risk of violence. To the contrary, he and the others planned
the robbery for a time (late morning) and place (a busy market
where people would be shopping and employees were working)
that posed a high risk of violence. (Compare People v. Owens
(2022) 78 Cal.App.5th 1015, 1024 [bank robbery posed high risk
of violence because it occurred during business hours with 20
people present and robbers were armed], with Clark, supra, 63
Cal.4th at pp. 621–622 [plan to rob closed store minimized risk of
violence]; In re Scoggins, supra, 9 Cal.5th at p. 677 [defendant’s
plan to beat victim and steal his money did not involve use of
weapons].)
As for what Singleton knew before going into the store
about any propensity for violence his accomplices might have
had, there is no evidence about this factor, other than that the
participants were gang members. Mere comembership in a gang
does not by itself establish knowledge of a propensity for violence.
(See, e.g., In re Miller (2017) 14 Cal.App.5th 960, 976 [although
defendant and killer belonged to same gang and had committed
follow-home robberies together, no evidence they had participated
in shootings, murder, or attempted murder].) Even so, once the
robbers were in the market, one of them fired a gunshot into the
ceiling near the front of the store, where, the evidence shows,
Singleton was. Although this was apparently a warning shot to
customers and employees to get down, it was an extremely
25
reckless and violent act. Assuming Singleton was not the person
who fired into the ceiling, Singleton would have been alerted at
that point to his accomplice’s willingness to commit a violent act,
if not a propensity for it. (See People v. Nieber, supra, 82
Cal.App.5th at p. 479 [although Nieber did not know about
cohorts’ likelihood of killing, “he was aware they brought a
weapon, which they were using”].) Yet, there is no evidence
Singleton then tried to tamp down the violence or extricate
himself from the situation. Instead, as we have said, he
increased the level of violence by fighting with the security guard.
The next factor we examine is the crime’s duration, because
there is generally a greater opportunity for violence when victims
are held at gunpoint or restrained for prolonged periods. (Clark,
supra, 63 Cal.4th at p. 620.) It is unclear how long the robbery
lasted. But one of the robbers held a gun to Marissa A.’s head
and forced her to open the cash register. Even if Singleton was
not the man who did this, the evidence supports the reasonable
inference that Singleton was in proximity to him, and, as we have
said, did not intervene to help Marissa A.
Singleton also failed to aid the wounded security guard.
Instead, Singleton or one of his cohorts robbed the security guard
of his gun. Such callous behavior supports the reckless
indifference finding. (See generally Clark, supra, 63 Cal.4th at
p. 619; In re Parrish (2020) 58 Cal.App.5th 539, 544 [reckless
indifference shown by failure to aid or comfort victim]; People v.
Douglas (2020) 56 Cal.App.5th 1, 10 [petitioner “displayed no
interest in moderating violence or in aiding his bloody and
suffering victim,” and instead picked his pocket].)
In evaluating the sufficiency of this evidence to support the
trial court’s finding, we are mindful that no one Clark factor “ ‘is
26
necessary, nor is any one of them necessarily sufficient.’ ” (Clark,
supra, 63 Cal.4th at p. 618.) Rather, we evaluate the factors
under the totality of the circumstances to determine Singleton’s
place on the culpability spectrum. (In re Scoggins, supra, 9
Cal.5th at p. 675.) To be sure, certain factors weigh against a
reckless indifference finding: the shooting appears not to have
been preplanned and there is no evidence Singleton knew his
accomplices had a propensity for violence before entering the
market. But other factors weigh in favor of the reckless
indifference finding: they executed the robbery during regular
business hours in a market where customers, including children,
and employees would be present; the plan involved moving
victims at gunpoint; Singleton was in close proximity to the
violent events but did not intervene; and he did not help the
dying Hernandez. We therefore conclude that substantial
evidence supports the trial court’s conclusion that Singleton acted
with reckless indifference to human life.
V. Howard’s petition for resentencing
Howard’s jury found personal gun use allegations not true.
However, at his section 1172.6 evidentiary hearing, the trial
court said it could disregard that jury finding. The trial court
ultimately found that Howard was “armed” and therefore was a
major participant in the robbery who acted with reckless
indifference to human life. Howard now contends that the trial
court could not make a finding in contravention of the jury’s
finding. We agree.
The issue is: what is the effect of a jury finding at a
subsequent section 1172.6 proceeding? Two Courts of Appeal
have analyzed the issue—People v. Cooper (2022) 77 Cal.App.5th
393, 397 (Cooper) by analogizing a section 1172.6 proceeding to
27
one under Proposition 36, and People v. Arnold (2023) 93
Cal.App.5th 376 (Arnold) under the issue preclusion doctrine.
In Cooper, supra, 77 Cal.App.5th at page 397, a jury
convicted the defendant of murder and kidnapping, found true a
principal gun use allegation, and acquitted him of being a felon in
possession of a firearm. Thereafter, Cooper petitioned for section
1172.6 relief. At the evidentiary hearing, the parties did not
introduce new or additional evidence. (Cooper, at p. 398.) The
trial court denied relief, finding that Cooper was a major
participant who acted with reckless indifference to human life
because he fired a gun. This finding contradicted his acquittal on
the charge of being a felon in possession of a firearm. The
appellate court reversed the trial court’s order, concluding that “a
trial court cannot deny relief in a section [1172.6] proceeding
based on findings that are inconsistent with a previous acquittal
when no evidence other than that introduced at trial is
presented.” (Ibid.; accord, People v. Henley (2022) 85 Cal.App.5th
1003.) In reaching that conclusion, Cooper analogized section
1172.6 proceedings to proceedings under Proposition 36, which
created a procedure to allow some persons serving third strike
sentences to seek resentencing. Cooper, at page 413, thus noted
that appellate courts interpreting Proposition 36’s resentencing
scheme had found that trial courts could not deny a petition by
“relying on factual determinations about the defendant’s gun use
that ‘turn[ed] acquittals and not-true enhancement findings [at
trial] into their opposites.’ ”
Cooper declined to decide whether the same conclusion
could be reached under issue preclusion principles. However,
Arnold, supra, 93 Cal.App.5th 376 found it could. In Arnold, at
page 379, a jury found the defendant guilty of murder in the
28
stabbing death of a man during a brawl. But the jury found not
true an allegation that the defendant personally used a knife.
(Ibid.) Defendant petitioned for section 1172.6 relief. At the
evidentiary hearing, the parties did not introduce any new or
additional evidence. (Arnold, at p. 382.) The trial court denied
relief, finding Arnold to be the actual killer, that is, he stabbed
the victim. (Ibid.)
The appellate court concluded that the trial court was
precluded from so finding. (Arnold, supra, 93 Cal.App.5th at
pp. 386–387.) Issue preclusion bars relitigating previously
decided issues. It applies (1) after final adjudication (2) of an
identical issue (3) that was actually litigated and decided in a
former proceeding, and (4) can only be asserted against a party to
the former proceeding. (Id. at p. 386, citing Strong, supra, 13
Cal.5th at p. 716.) Arnold found that all requirements of issue
preclusion were present. Specifically, the Arnold jury was
instructed that, to find the personal use of a knife allegation true,
it had to determine whether the defendant displayed the knife in
an intentionally menacing manner or intentionally struck a
person with it. (Arnold, at p. 386.) The jury “necessarily decided
the issue in rendering its not true finding on the knife use
allegation.” (Id. at p. 387.) As the other elements of issue
preclusion were met, the doctrine applied.
We agree with Arnold: issue preclusion bars relitigating a
jury’s factual findings at a section 1172.6, subdivision (d)(3)
evidentiary hearing. Arnold observed that our California
Supreme Court has suggested as much. The court in Strong,
supra, 13 Cal.5th 698, considered whether pre-Banks and Clark
special circumstance findings always foreclose relief in section
1172.6 proceedings. Strong, at page 715, acknowledged that
29
issue preclusion generally will govern whether a prior finding
will be given preclusive effect in a later proceeding. (See also
People v. Curiel (2023) 15 Cal.5th 433, 453 [noting its prior
observation in Strong that “a relevant jury finding is generally
preclusive in” § 1172.6 proceedings].) However, Strong, at page
716, declined to apply issue preclusion based on an equitable
exception to it, where there has been a significant change in the
law. Banks and Clark had significantly changed the law
regarding what factual findings are necessary to find a person is
a major participant in an underlying felony who acts with
reckless indifference to human life. Therefore, pre-Banks and
Clark findings did not have preclusive effect.
Here, there is no intervening law concerning a personal
firearm use allegation. (See, e.g., People v. Curiel, supra, 15
Cal.5th at p. 455 [defendant did not identify similar change in
law as in Strong to justify departure from general rule of issue
preclusion].) Rather, Howard’s jury was instructed that use of a
firearm meant he “intentionally displayed a firearm in a
menacing manner, intentionally fired it, or intentionally struck
or hit a human being with it.” (CALJIC No. 17.19.) The jury,
however, did not find that Howard displayed his gun menacingly,
fired his gun, or hit someone with it. That jury finding should
have been given preclusive effect at the section 1172.6 hearing.
People v. Santamaria (1994) 8 Cal.4th 903 (Santamaria)
does not show that issue preclusion is inapplicable here, as the
Attorney General argues. In that case, the victim had been
stabbed, strangled, and run over by a car. (Id. at p. 908.) Two
men, including Santamaria, were involved in the victim’s death,
but only Santamaria was tried for special circumstance murder
committed during a robbery and with personally using a knife
30
during the crime. (Ibid.) At Santamaria’s trial, his accomplice,
who had entered into a plea deal, testified against him. The jury
convicted Santamaria of murder but found the knife-use
allegation not true. (Id. at p. 909.) The court of appeal reversed
the murder conviction based on a procedural error in allowing a
continuance and remanded for a new trial.
The parties agreed that Santamaria could not be retried on
the knife-use allegation. (Santamaria, supra, 8 Cal.4th at
p. 910.) However, Santamaria also urged that the jury’s finding
precluded retrial of the murder charge on a theory he personally
used a knife. (Id. at pp. 911–912.) Santamaria, at page 917,
noted that the jury’s acquittal on the knife allegation and
conviction on the murder and robbery charges involved different
issues. The verdict showed that the jury had a reasonable doubt
that Santamaria “specifically used a knife. It does not show the
reverse, that the jury specifically found defendant was an aider
and abettor. . . . The jury may merely have believed, and most
likely did believe, that defendant was guilty of murder as either a
personal knife user or an aider and abettor but it may have been
uncertain exactly which role defendant played,” which would
explain the split verdict. (Id. at p. 919.) The jury therefore might
have reasonably doubted Santamaria was the direct perpetrator
and similarly doubted he was the aider and abettor, but had “no
such doubt that he was one or the other.” (Ibid.) As unanimity
on the theory of murder is not required, the jury could properly
find him guilty of murder.
The court of appeal thus concluded that the issue decided
by the knife-use verdict and the one the defense wanted
precluded in the murder retrial were not identical. (Santamaria,
supra, 8 Cal.4th at p. 920.) “Although defendant claims he
31
merely seeks to preclude the theory that he used the knife, he
necessarily is claiming more; he seeks to preclude the theory, and
evidence to support the theory, that he either used the knife or
aided and abetted the one who did. This, however, is not the
issue decided regarding the enhancement allegation. Whether
defendant specifically used a knife is one question; we may
assume the prosecution did not prove that beyond a reasonable
doubt, which explains the not true enhancement verdict.
Whether defendant committed murder by either using a knife or
aiding and abetting the one who did is quite a different question;
the prosecution did prove that to the jury’s satisfaction.” (Ibid.)
Santamaria does not prevent applying issue preclusion
here. (See, e.g., Arnold, supra, 93 Cal.App.5th at p. 388.)
Santamaria involved a retrial at which the second jury would
have to determine whether the defendant was guilty beyond a
reasonable doubt of murder. The jury’s acquittal on the knife
allegation precluded the prosecution on retrial from recharging
the defendant with a personal-use-of-a-knife enhancement;
however, the prosecution was not precluded from introducing
evidence that the defendant used a knife to show that he was
guilty of murder.
Procedurally, this case involves a postconviction
resentencing hearing under section 1172.6, subdivision (d)(3), at
which the trial court had to determine beyond a reasonable doubt
whether Howard could be guilty of murder under a valid theory
based on the record of conviction (which includes the jury’s
instructions and verdict), as no new or additional evidence was
32
introduced.10 In this case, the jury’s not true finding on the
personal gun use allegations precluded the trial court from
finding that Howard shot the security guard, brandished the gun
menacingly, or hit someone with it; however, the jury’s verdict
would not preclude the trial court from finding that Howard, who
admitted he entered Big Saver armed, had a gun to support the
theory he exhibited reckless indifference to human life. Stated
otherwise, the trial court at the section 1172.6 proceeding could
consider evidence that Howard possessed the gun during the
robbery to support the murder conviction, so long as any finding
did not contravene the jury’s finding that Howard did not shoot,
brandish it menacingly, or hit someone with it.
It is unclear, however, whether the trial court properly
considered the preclusive effect of the jury’s finding at the
evidentiary hearing. When defense counsel said the jury finding
established Howard was not the actual shooter, the trial court
immediately responded, “I understand that. That does not
preclude me from finding he is an actual shooter.” On this point,
the trial court was wrong. This is exactly what the jury’s prior
finding precluded. Then, when it became the prosecutor’s turn to
argue, she cited Cooper, and, based thereon, said she was not
asking the trial court to find Howard was the actual killer or
waved his gun in a menacing manner. She added, “But that does
not preclude the court from finding that he personally was armed
with that firearm and had the intention of using it, if necessary,
10
The preclusive effect of a jury finding at an evidentiary
hearing at which new or additional evidence is introduced is not
before us. (See, e.g., People v. Henley, supra, 85 Cal.App.5th 1003[addressing preclusive effect of jury finding at later § 1172.6
evidentiary hearing where defendant testified].)
33
or even had it at the ready or displayed it in a non-menacing
manner.” After hearing both parties’ arguments, the trial court
did not respond directly to the prosecutor’s concessions. Instead,
the trial court ruled, finding, among other things, that Howard
“was armed and his job was to hold up” the security guard, and
he and others did so. (Italics added.)
The presence of a gun and the role it played in the robbery
are critical to evaluating the Banks/Clark factors. (See, e.g.,
Cooper, supra, 77 Cal.App.5th at p. 418 [although improperly
considered gun evidence was not only evidence of mens rea, it
was “crucial” to it]; People v. Henley, supra, 85 Cal.App.5th at
p. 1021 [same].) Based on counsel’s arguments and the trial
court’s statements, it is unclear what, if anything, the trial court
found about Howard and his gun, other than that he was armed
with it. We cannot find, especially based on the trial court’s
express statement that it could find that Howard was the actual
shooter, that it did not then improperly do so. We therefore find
sufficient uncertainty in the record as to whether the trial court
disregarded the jury’s finding in reaching its conclusion. Where,
as here, it is “ ‘uncertain whether the trial court would have
reached the same result using correct legal standards,’ ” it is
appropriate to remand the matter for a new hearing to determine
whether the prosecution proved, beyond a reasonable doubt, that
defendant is guilty under any of these alternative permissible
theories. (People v. Reyes, supra, 14 Cal.5th at p. 992; Arnold,
supra, 93 Cal.App.5th at p. 391.)
To the extent the trial court based its evaluation of the
Banks/Clark factors on a finding that contravened the jury’s not
true finding on the personal gun use allegations, remand is
34
proper. We express no opinion about what the outcome should be
on remand.11
11
Howard makes no argument on appeal that the evidence is
insufficient to support a finding under a valid theory of murder,
including that he was a major participant in the robbery who
acted with reckless indifference to human life. We therefore treat
that as a concession about the sufficiency of the evidence and
agree that remand for another evidentiary hearing is the proper
remedy.
35
DISPOSITION
The order denying Singleton’s petition is affirmed. The
order denying Reginald Howard’s Penal Code section 1172.6
petition is reversed and the matter is remanded for the trial court
to conduct another evidentiary hearing. At that evidentiary
hearing, the trial court shall not make any finding that
contradicts the jury’s finding not true the personal use of a gun
allegations.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
36