People v. Pantoja CA5

Filed 6/23/23 P. v. Pantoja CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083581
Plaintiff and Respondent,
(Super. Ct. No. 1423449)
v.
DANIEL PANTOJA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A.
Leo, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook
A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Petitioner Daniel Pantoja petitioned the superior court, pursuant to former section
1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for first
degree murder (§ 187). The superior court conducted an evidentiary hearing and denied
the petition on the grounds petitioner was a major participant in the underlying felony
who acted with reckless indifference to human life and, alternatively, directly aided and
abetted in the murder with intent to kill.
On appeal, petitioner contends the evidence is insufficient to support the superior
court’s findings that he was major participant, acted with reckless indifference, and acted
with intent to kill. We affirm.
PROCEDURAL AND FACTUAL HISTORY
I. Underlying Convictions
Petitioner was charged, together with T.D. and J.P., with murder (§ 187, subd. (a);
count I) and attempted carjacking (§§ 215, subd. (a), 664; count II). As to both counts, it
was alleged the crime was committed for the benefit of or in association with a criminal
street gang (§ 186.22, subd. (b)(1)), and that a principal personally and intentionally
discharged a firearm, proximately causing great bodily injury or death (§ 12022.53,
subds. (d), (e)(1)). Petitioner’s motion to sever trials was granted, and dual juries were
empaneled, one for petitioner’s trial and the other for the trial of T.D. and J.P. (People v.
Diaz (2018) 21 Cal.App.5th 538, 541 (Diaz)2; People v. Pantoja (Oct. 27, 2020,
1 Undesignated statutory references are to the Penal Code. Since petitioner filed
his petition, former section 1170.95 was renumbered section 1172.6, with no change in
text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this
opinion.
2 Our decision in petitioner’s direct appeal was partially published. (See Diaz,
supra, 21 Cal.App.5th 538; see id. (Mar. 20, 2018, F071348), as mod. Apr. 10, 2018
[nonpub. opn.].) The nonpublished portions of the opinion fall within the exception to
the California Rules of Court, rule 8.1115(b)(1). Petitioner previously requested to
augment the record on appeal with the opinion. We construed the request as a request for
2.
F079427) [nonpub. opn.] (Pantoja).) As discussed in greater detail below, “[t]he
prosecution presented evidence to both juries that showed T.D. was the actual killer.
[Citation.] In addition, J.P. testified before both juries that T.D. fired the fatal shots.”
(Pantoja, F079427.)
J.P. was acquitted. T.D. was convicted on count I of first degree murder
committed during the commission of an attempted carjacking, and on count II of
attempted carjacking. His jury found the firearm discharge allegation true, but the gang
allegation not true. Petitioner was similarly convicted on counts I and II, but his jury was
unable to reach unanimous findings on the enhancement allegations, and those allegations
were subsequently dismissed on the prosecutor’s motion. (Diaz, supra, 21 Cal.App.5th at
p. 541; Pantoja, supra, F079427.) Petitioner was sentenced to a term of 25 years to life,
plus two years, six months. On appeal, we affirmed the judgment but remanded for the
limited purpose of affording petitioner the opportunity, pursuant to People v. Franklin
(2016) 63 Cal.4th 261, to make a record of information relevant to his eventual youth
offender parole hearing. (Diaz, at pp. 546–547; see Pantoja, F079427.)
II. Initial Proceedings on Section 1172.6 Petition
Petitioner filed a petition for resentencing pursuant to section 1172.6. The
superior court found he established a prima facie showing he was entitled to relief and
appointed counsel, but failed to issue an order to show cause and instead proceeded to
deny the petition on the merits without holding an evidentiary hearing. Petitioner
appealed, and we reversed the order denying the petition and remanded with directions
for the court to issue an order to show cause and hold an evidentiary hearing. (Pantoja,
supra, F079427.)
judicial notice and granted it. Accordingly, we will deny as moot respondent’s request
for judicial notice, which was presented in respondent’s brief.
3.
III. Briefing on Remand
On remand, the People argued petitioner was not entitled to resentencing because
he was a major participant in the carjacking who acted with reckless indifference to
human life and, alternatively directly aided and abetted in the murder with intent to kill.
The People asked the court to take judicial notice of our prior opinions in petitioner’s
direct appeal and his appeal from the initial denial of his section 1172.6 petition, as well
as the entire court file in the underlying action and the record of the two appellate
matters.
In response, petitioner argued he was not guilty of murder under current law
because he was not a major participant in the carjacking and did not act with implied
malice. He argued the evidence relied on by the People for a contrary conclusion was
irrelevant or was not credible. Additionally, petitioner argued the court could not
consider the gang evidence presented at trial, inasmuch as the jury did not reach a verdict
on the gang allegation. Petitioner’s brief purported to “incorporate[] by reference”
(boldface omitted) the trial transcripts and trial exhibits.
IV. Evidentiary Hearing
At the evidentiary hearing, the parties relied on testimony from petitioner’s trial
and two surveillance videos that had been entered into evidence at trial. Additionally,
petitioner called live witnesses at the evidentiary hearing. We describe below the
evidence and argument that was before the superior court when it considered petitioner’s
petition for resentencing.
A. Trial Evidence3
The offenses at issue in this case arose from the fatal shooting of Chaz Bettencourt
outside a gas station convenience store in Riverbank in the early morning hours of
3 The People asked the superior court to take judicial notice of the record of
conviction and the entire court file, including the transcripts and exhibits from
petitioner’s trial. Petitioner likewise relied on the trial transcripts and trial exhibits. The
4.
August 5, 2010.4 The events leading up to the murder took place at several locations.
The convenience store where the shooting took place was located on the corner of
Oakdale Road and Patterson Road. A market visited by petitioner and his codefendants
prior to the shooting was located approximately one half to three quarters of a mile away
on Patterson Road. A movie theater was located between the market and the convenience
store.
Between 10:30 and 11:00 p.m. on August 4, Timothy G. and Derek P.5 left
Timothy’s house in Riverbank to walk a female friend home. Their route took them past
the movie theater and the convenience store. As the trio was passing the movie theater,
Timothy saw three people wearing white shirts, who appeared to be males, on the corner
about a block away. Derek went over to them, then returned and said he was going to
buy the three some alcohol and make some money. Timothy took the woman the rest of
the way to her home.
Surveillance video taken from the market showed Derek entering the market
shortly before 11:00 p.m., followed by J.P., T.D., and petitioner. The video revealed that
J.P. was wearing jeans and a dark shirt and cap, while T.D. and petitioner were wearing
white shirts and dark caps. Petitioner and his companions looked at some items in the
store, and fingerprint analysis showed T.D. and petitioner handled a small package of
cigars on the counter. J.P. purchased a bag of chips. Derek purchased two beverage
court did not expressly address the People’s request for judicial notice, but relied on the
trial record in its ruling. We previously granted petitioner’s request for judicial notice of
the record on appeal in petitioner’s direct appeal, case No. F071348. Although our
summary is in many respects similar to the factual summary presented in Diaz, supra,
F071348, our summary of the evidence is based on our own review of the record from
petitioner’s trial and the trial of his two codefendants. (See § 1172.6, subd. (d)(3).)
4 Unspecified dates are to the year 2010.
5Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names or initials. No disrespect is intended.
5.
cans. The video showed T.D. fiddling with his pants and waistband through his time at
the market.
Timothy passed through the parking lot behind the movie theater around
11:00 p.m. or shortly after and saw the three men he earlier had seen talking with Derek.
The men jumped the fence from an adjacent school yard into the movie theater parking
lot. He heard at least one person loudly yelling gang identifiers. Timothy passed them,
then turned and looked over his shoulder. The three were walking in the direction of the
convenience store.
Meanwhile, David G. got off work at midnight. As he was driving home, he saw
his friend, Chaz Bettencourt. David asked if Bettencourt wanted to go to the convenience
store with him. Bettencourt got into the passenger seat of the car and they drove to the
convenience store. This was around 12:35 a.m. on August 5.
David parked on the left side of the store, right in front of the door. While he was
getting his money together, Bettencourt got out of the car and went inside. As David
exited the vehicle, he noticed three males walking toward him from the direction of the
gas pumps. David glanced at them, then went inside the store. Store surveillance video
showed petitioner, T.D., and J.P. walking across the parking lot toward the store. As they
neared David’s vehicle, petitioner split off from the others and walked behind David’s
vehicle, toward the passenger side, while T.D. and J.P. moved in the direction of the store
entrance, closer to the driver’s side of the vehicle.
As David walked into the store, Bettencourt was already at the register, either
purchasing something or talking to the clerk. David, who intended to buy some iced tea,
noticed the three males were leaning against the store windows, right in front of his car.
As David made his purchase, Bettencourt walked outside and waited by the passenger
door of the car.
6.
As David exited the convenience store, T.D. acted like he was walking away from
the store toward the gas pumps. He then came behind David, pointed a gun in his face,
and started demanding the keys to the car. Store surveillance video showed T.D. pointing
the gun toward the back of David’s head and then his face. At that time, according to
David, petitioner and J.P. were still standing in front of the car. T.D. said, “Give me your
fucking keys. I will blast you.” When David looked at the gun, T.D. racked the slide
back, cocking the gun, and said in an intimidating tone of voice, “This is real.”
David started backing up with his hands up, although he did not turn over his keys.
He was focused on the gun and did not know what petitioner and J.P. were doing at that
point. Store surveillance video showed J.P. and petitioner following T.D. as he and
David backed toward and around the trunk of the car. David went around the trunk and
along the passenger side toward the hood. T.D. followed with the gun pointed at David’s
face. David did not know where Bettencourt was and did not hear him say anything.
David was still focused on the gun. David moved toward the convenience store doors,
where there were security cameras and lights, and T.D. stayed by the hood of the car.
As David backed toward the front door of the convenience store, J.P. came from
behind and started blocking him, using his body to push David away from the doors. J.P.
told David that he “need[ed] to go back over there,” toward the bathrooms, where it was
very dark and there were no security cameras. J.P. said he had a gun. Although he never
displayed a firearm, J.P. reached down into his pocket and shook it around, as if he was
going to pull out a gun. David did not know where petitioner was at this time. David
tried to get past J.P. Their bodies were in contact for about 15 seconds. Surveillance
video showed David and J.P. struggling against the doors of the convenience store.
J.P. moved out of the way and went back toward David’s car. David got inside the
convenience store and told the clerk to call 911, and that the assailants had a gun. About
10 to 15 seconds later, he heard two gunshots. They sounded like they came from the
direction of his car. David could see his car, but did not see any bodies.
7.
M.C. was pulling up to the gas pumps outside the convenience store when she saw
“a few guys” on the side of a car parked in front of the store. One shot the other one
twice from several feet away. She could not recall where the shooter and victim were
standing at the time of the shooting, except that they were near the car.6 At least two
other young men were standing near the front of the car. The one who was shot ran
toward the gas pumps and fell. “[A] bunch of kids” ran on the other side of the store.
They wore baggy clothes and looked “thug-ish.” M.C. was in shock and did not know
what to do, so she just left.
David stayed inside the store for another 20 to 25 seconds, but did not see anyone.
When he went outside, he found Bettencourt lying on his back some distance from
David’s car. Petitioner, T.D., and J.P. were gone.
At approximately 12:45 a.m. on August 5, Stanislaus County Sheriff’s Deputy
Moss was on patrol in Riverbank when he was dispatched to the convenience store.
When he drove into the parking lot, he saw Bettencourt, lying on his back. David was
standing over him. Bettencourt was alive but unresponsive. He had sustained two
gunshot wounds to the chest. He subsequently died from his injuries.
David’s vehicle was parked to the west of the front door of the convenience store.
In each of the two parking spaces to the west of the passenger side of the vehicle was a
black cloth shoe. A spent .22-caliber shell casing was found west of the front door of the
store, close to the building and near the front passenger side of David’s vehicle. A black
shoe was found south of the convenience store in the parking lot for other businesses. A
small, semiautomatic, .22-caliber handgun, with the serial number scratched off, was
found in the dirt near bushes about 100 yards south of the convenience store.7 There was
6 At different points, she testified the shooter and victim were on the side of the
car, on the side of the car closest to the store door (i.e., the driver’s side), near the car,
near the passenger door, and near the rear driver’s side of the vehicle.
7 At trial, David identified this gun as the one T.D. pointed at him.
8.
an expended shell casing still in the chamber. It appeared the gun had jammed. Next to
the gun was a .22-caliber magazine that contained eight rounds of ammunition. Two
bullets were recovered from Bettencourt’s body. One had rifling characteristics similar
to bullets that were test-fired from the gun recovered near the scene, although a
conclusive determination could not be made. The other recovered bullet was too heavily
damaged for comparison. The expended cartridges were determined to have been fired in
the pistol.
Timothy learned of the shooting when he woke on the morning of August 5.
Wondering if the three individuals he had seen walking toward the convenience store
were involved, he sought out Derek and learned Derek had purchased Four Loko for
them. Timothy then went to the back fence of a schoolyard adjacent to the movie theater,
where he had seen the three jump down into the movie theater lot, and found a Four Loko
malt beverage can. He left it there and notified the sheriff’s department.8 T.D.’s and
petitioner’s DNA was found on the can, which was 23.5 ounces in size.
On August 6, David was shown two photographic lineups. David immediately
identified a photograph of T.D. and said he was the person holding the gun. David was
unable to recognize anyone in the lineup containing petitioner’s photograph. After J.P.
turned himself in on August 12, a photographic lineup containing his picture was shown
to David. David was unable to identify J.P.
Petitioner’s mother, Kellie S., testified in both the prosecution and the defense
cases. Around 4:00 p.m. on August 4, she saw petitioner, T.D., and J.P. together at her
8Timothy spoke to Stanislaus County Sheriff’s Deputy Bennett, who seized the
empty can. Timothy told Bennett that he had seen three subjects climbing over the fence
from the school side into the theater parking lot. Timothy described them as being two
Hispanics and one Black person. He said they were throwing gang signs and shouting
gang identifiers and they threatened to “kick [his] ass.” Timothy told Bennett one was
holding a can of “Four Clowns” beer, which he threw over the fence into the yard of the
school.
9.
house. She did not recall seeing any of the trio with a firearm and did not recall them
having any conversation regarding a firearm. She estimated the trio left the house shortly
before dark and returned to her house on August 5, while it was still dark. At petitioner’s
request, she drove them to T.D.’s home in Turlock. During the drive, she overheard
petitioner say to T.D. and J.P., “I can’t believe you did that, Bro.” She dropped the three
off at T.D.’s house and returned home. While driving home, she had a telephone
conversation with petitioner, in which he told her, “[T.D.] shot somebody, Mom. He’s
stupid.” She recalled petitioner telling her, “They were trying to take his car.” She
confirmed that petitioner used the word “they.” Petitioner told her that he heard a “[p]op,
pop,” and turned to see the victim take a couple of steps and then fall, after which
petitioner, T.D., and J.P. took off running. Petitioner cried during the phone call. She
recalled hearing a conversation going on in the background but could not recall what was
said. Kellie relayed this information to Stanislaus County Sheriff’s Detective Hatfield
during an interview on August 6. At trial, she confirmed petitioner received a settlement
from a car accident shortly before the shooting, but she did not know how much he
received or what he did with the money.9
Hatfield also testified. According to Hatfield, Kellie told him that, prior to the
shooting, she heard T.D. ask petitioner if he “had the piece.” However, Kellie did not see
any gun on the day of the shooting. Kellie also told Hatfield about a conversation she
overheard while she was on the phone with petitioner during her drive home. Kellie
reported that she heard T.D.’s mother say something to the effect of, “Why did you point
the gun at him and shoot him for?” Kellie heard T.D. reply, “That’s what you do when
you point a gun at someone, isn’t it?”
Petitioner’s stepfather reported to Hatfield that petitioner purchased a .22-caliber
9
handgun with the settlement money approximately two weeks prior to the shooting.
However, this evidence was presented only to T.D. and J.P.’s jury, and not petitioner’s
jury.
10.
Extensive gang evidence was presented at trial. Because the evidence is of limited
relevance to the resentencing petition, we summarize it briefly and generally. Petitioner
was identified as a suspect in an apparent gang-related beating that took place at a gas
station in Redding on June 6. A MySpace page attributed to petitioner contained a link to
the beating surveillance video and a gang-related comment regarding the video.
Petitioner later admitted to law enforcement that he was depicted in the video. On
July 22, a few days before the shooting, T.D., J.P. and petitioner were together at the
Stanislaus County Fair. A sheriff’s deputy saw T.D. making what appeared to be a gang
sign and the group was told to leave the fair. When T.D.’s residence was searched on
August 6, law enforcement encountered T.D.’s biological father, who had visible gang
tattoos. On September 13, T.D. and petitioner were located inside the Redding residence
of a known gang member.
The People’s gang expert presented extensive background testimony regarding the
operations of the relevant local gangs and gang subsets. He opined that petitioner’s
MySpace page contained numerous gang references. He opined that petitioner and T.D.
were active gang members. He opined that J.P. was not a gang member, but rather a
trusted associate of the gang. In response to a hypothetical question based on the
prosecution’s evidence concerning the charged offenses, the expert opined that the events
benefited the gang, were committed in association with the gang, and were committed by
gang members and an associate acting together. A defense gang expert provided
extensive testimony disagreeing with the testimony of the People’s expert.
J.P. testified in the defense case. He was 15 years old when he was arrested in this
case. Both his parents are African American. Neither was gang affiliated.
Prior to his arrest, J.P. resided in Turlock, about five blocks from Columbia Park.
He often went there to play, as there were always other people there. He met T.D., who
lived across the street from the park, about five months before the events of this case.
They met at a barbecue given by a friend of J.P. After that, they “[k]ind of maybe a little
11.
bit” became friends. They played basketball together at the park, and they went to the
fair the one night. J.P. met petitioner a couple of times when petitioner was at the park
with T.D. Except for the first time J.P. met T.D., if T.D. was present, petitioner was also
there. These occasions usually involved playing basketball and/or smoking marijuana.
J.P. denied being a gang associate.
J.P. had not been to Riverbank before August 4. That afternoon, J.P. was with
“Ray Ray.” Originally, J.P. was supposed to go to Ray Ray’s house in Modesto, but he
and Ray Ray saw T.D. and petitioner at the bus stop. T.D. and petitioner said there was a
party in Riverbank that night. Ray Ray could not go because he had other commitments,
but J.P. decided he would attend. J.P. had $30 or $35 that he got either from his mother
or from doing chores for his aunts. He also had some marijuana in a bag. J.P. had
smoked a blunt (a small cigar in which the tobacco had been replaced with marijuana)
before he got on the bus. J.P. was a regular user of marijuana and had built up a tolerance
for it. It made him relaxed and mellow.
The four rode the bus from Turlock to Modesto, where they had to switch buses to
continue on to Riverbank. Ray Ray left them at the bus stop in Modesto, and T.D.,
petitioner, and J.P. then took the other bus to Riverbank. There was no discussion about
committing crimes. J.P. did not know T.D. or petitioner had a gun.
When the three got off the bus and were walking to petitioner’s house, they saw an
ice cream man who was pushing a cart. Petitioner told T.D. and J.P. to “watch this,” that
he was going to get the ice cream man. There had been no discussion about robbing the
ice cream man, but petitioner pulled a gun from his waist. His shirt had been over it.
Petitioner crossed the street to the ice cream man, pointed the gun at him, and demanded
money. The man put up his hands, and petitioner reached into the man’s pocket and took
the money. Petitioner then got on a bicycle he had had with him since J.P. first met up
with them, and rode off. T.D. knew where petitioner lived, and he and J.P. kept walking
to petitioner’s house. Once there, nobody talked about what had happened. Petitioner
12.
had gotten around $70 or $80. J.P. did not ask for or receive any of it. He did not think
T.D. was given any of it, either.
At petitioner’s house, petitioner, T.D., and J.P. smoked marijuana and watched
television. Petitioner’s parents left, and petitioner had to babysit his younger siblings.
Around this time, T.D. and J.P. went to a place nearby that sold “taco truck burrito[s],”
and they each ate one. They then returned to petitioner’s house.
Up to that point, nobody had been drinking any alcohol. Petitioner telephoned his
mother and then his stepfather and asked them to get Four Loko from the store. When
petitioner’s stepfather returned to the house, he gave petitioner four cans of Four Loko.
J.P. did not drink any. Petitioner and T.D. each drank one, then the three left the house.
As they were walking, petitioner and T.D. were each drinking another one. The three had
also shared about three blunts by that time. All J.P. knew was that the party was
supposed to be later that day. Because he had never been to Riverbank, he did not really
know where they were supposed to be.
After leaving petitioner’s house, the three walked to a store down the street, where
they got more cigars.10 They then went to the home of someone petitioner knew, where
they smoked more marijuana. J.P. was feeling the effects of the marijuana. He was
relaxed.
The three left after about 15 to 20 minutes and started walking again toward the
party. They saw Derek, whom J.P. had never met. At the market, Derek bought them
cans of Four Loko. J.P. merely purchased a bag of chips with his own money.
The three left the market and walked to the school behind the movie theater. As
far as J.P. knew, they still had plans to go to the party. At the school, they went up on the
roof, smoked marijuana, and petitioner and T.D. drank. Petitioner and T.D. each had a
10The cigars J.P. favored could be purchased individually or in a pack. The three
bought them individually. T.D. and petitioner appeared to have their own money.
13.
can of Four Loko. J.P. did not remember if they passed it back and forth, who finished
first, or whether they shared the last part of the last can.
The three stayed on the roof for a little while, then got back down. There were
benches at the school, and they went and “chilled” on the benches, smoking marijuana
and a regular cigar, for about 10 minutes. After that, they climbed over a wall. J.P.
believed petitioner and T.D. were drunk. J.P. did not recall anyone shouting anything
gang related or seeing Timothy. He did not see anyone throwing gang signs. There was
no discussion whatsoever about gangs.
J.P. thought “he” finished his can of Four Loko and threw it over the fence, but he
did not remember clearly.11 The three then walked around to the front of the theater.
There were two older ladies coming from the movies. Petitioner suggested they rob the
ladies and he pulled out the same gun he had used earlier. J.P. refused, saying something
like, “That’s stupid,” or “Why would you want to rob ladies?” T.D. agreed and said,
“Yeah, that is stupid.” J.P. did not intend to rob anybody and did not urge T.D. or
petitioner to rob someone. Still holding the gun, petitioner said to T.D. or both T.D. and
J.P., “Don’t bitch up,” or “Don’t get soft.” T.D. then said he wanted to see or to hold the
gun, and petitioner gave it to him.12 T.D. did not say anything about committing a
robbery, and the three did not discuss committing robberies.
11 J.P. was not asked to specify whether “he” referred to T.D. or petitioner.
12 D. Wallace, a private investigator working on petitioner’s behalf, had, through
his experience and observations, an enhanced ability to observe and recognize when
someone was carrying a concealed handgun. In his opinion, the surveillance video from
the market showed T.D. checking his waistband and adjusting his pants in a manner that
suggested he was carrying a handgun in his waistband while inside the store. He could
not say for certain what was under T.D.’s shirt, however. Wallace acknowledged he had
seen a number of men at the courthouse, pulling up their pants in the same way and yet
getting through the metal detector. J.P. also acknowledged T.D. was adjusting his pants
at the market, but he did not think it was because he had the gun.
Wallace also investigated J.P.’s account of the robbery of the ice cream man. He
was unable to find any evidence any such robbery occurred.
14.
The three headed to the convenience store down the street so petitioner could buy
more cigars to hollow out for marijuana. There was no discussion about doing anything
of a criminal nature. J.P. had no intention of committing a crime. J.P. did not go inside
with petitioner, because, although petitioner was old enough to buy cigars, there was a
possibility the clerk might not sell to him if he thought petitioner was buying for a minor.
There was no plan to commit a crime.
As they approached the convenience store, petitioner broke away from J.P. and
T.D. and said something to them, but J.P. could not recall what was said. At one point,
J.P. testified they did not go into the convenience store because he was getting ready to
give petitioner some money to buy cigars. Later, however, he testified that they did not
go inside because T.D. had pulled out a gun. T.D. pulled the gun on David, who was
coming out of the store and walking toward his car. T.D. had not said anything to J.P. or
petitioner prior to pulling the gun. There had been no discussion about robbing David.
Bettencourt was on his cell phone on the other side of the car. Nobody said anything to
Bettencourt before T.D. pulled the gun. When the gun was pulled, J.P. was behind T.D.,
although he was not sure how far. Petitioner was beside J.P. The gun was tucked into
T.D.’s waist, under his shirt.
T.D. pulled the gun, put it in David’s face, and told David to give him his keys.
David had his hands up. He had a drink in one hand and the keys in the other hand, and
he told T.D. that he was not going to give him the keys. Neither J.P. nor petitioner said
anything, but, as David and T.D. went around the car, J.P. walked behind T.D. He did
not know why, as he had no intention of stealing a car or robbing anyone, or of acting as
a gang associate.
At some point, T.D. put his hand on top of the gun and slid it back. David broke
away from T.D. and started toward the store door. Bettencourt was standing in the
parking lot. Petitioner was next to J.P. T.D. pointed the gun in the direction of
petitioner, who was still beside T.D., and yelled to get the doors. J.P. stood in front of the
15.
doors of convenience store. He did not say or do anything to suggest he had a gun. He
did not touch David, except that they were “shouldering” each other as David tried to get
past J.P. to get inside the store. J.P. did this because T.D. had pointed the gun in his and
petitioner’s direction and told them to get the door. J.P. was scared. He did not know
whether T.D. would fire, and felt anyone could have gotten shot.
David got past J.P. J.P. saw Bettencourt standing in front of T.D., on the side of
the car. T.D. pointed the gun at Bettencourt, between his chest and his nose, and yelled
to give him the money. Petitioner also was yelling at Bettencourt but J.P. did not know
what he was saying. J.P. did not recall petitioner’s location.13 Bettencourt took money
from somewhere and threw it toward T.D.’s face. J.P. then saw T.D. shoot twice. J.P.
ran. T.D. and petitioner also ran, although T.D. picked up the money. J.P. never asked
for or received any of it.
Petitioner knew someone who lived around the corner from the convenience store,
so the three hopped the fence into the person’s backyard. T.D. and petitioner appeared to
be drunk. As either T.D. or petitioner was hopping over the fence, he fell into the doors
and the doors opened. A lady was walking in the kitchen, and petitioner told her that he
knew her brother. The lady got her brother, who went into the garage with the three. At
some point, T.D., who seemed kind of surprised, said he dropped the gun and lost one of
his shoes at the convenience store. The brother gave T.D. a shoe. Petitioner told the
brother they had been at a party and someone was shooting at them, and that they needed
a ride.
However, on cross-examination, J.P. stated petitioner was “[s]omewhere behind
13
or to the side of [T.D.]” when he was yelling, and was “around” T.D. at the time of the
shooting.
16.
The three were given a ride to petitioner’s house. Petitioner talked to his mother,
who came out, looking shocked and upset. She took them to T.D.’s house in Turlock.
Petitioner’s mother then told T.D.’s mother what happened. T.D.’s mother asked T.D.
why he did it. J.P. believed T.D. responded, “If I did it once, I can do it again.”
J.P. then left. He was almost across the street when petitioner and T.D. came out
of the house. The three crossed Columbia Park, hopped a couple of fences, and went to
the house of a girl J.P. knew. T.D. had a shotgun in a case in his hand and a small leather
pouch full of shotgun shells. While the three were walking across the park, T.D. said that
if any cops were to pull up, he would just start shooting at the cops. He said that if he
went to prison he would be “on the main line” with his father. T.D. told J.P. not to
snitch.
The three were the only ones at the house. J.P. was lying on the couch by himself,
and T.D. and petitioner were talking to each other and joking. They asked J.P. what was
wrong with him and why he was so down. J.P. told them it was not a game, and that
somebody just got shot. J.P. felt a bit intimidated because there was a shotgun present
and the others did not feel the way he did. T.D. told J.P. not to snitch and nothing would
happen.
The three stayed at the girl’s house from about 4:00 a.m. until around 5:00 a.m. or
6:00 a.m., when T.D.’s mother came, and petitioner and T.D. left with her. She asked if
J.P. wanted to go, but he declined. He stayed at the girl’s house for a while, then went
home. That was the last time he saw either petitioner or T.D. outside of court. J.P. later
turned himself in.
In March 2012, J.P. was interviewed by the prosecutor’s investigator and the
prosecutor. J.P.’s attorney requested, but was not present during, the meeting. J.P. gave
the statement so he would not have to spend the rest of his life in prison. He thought he
might get some kind of deal, although that did not happen. J.P. told the investigator and
the prosecutor the truth and did not refuse to answer any of their questions.
17.
Dr. Marczinski, an associate professor of psychology at Northern Kentucky
University, testified to T.D. and J.P.’s jury as a defense expert in alcohol mixed with
energy drinks (AED). With regard to petitioner’s jury, the parties stipulated Marczinski
would testify that, as sold in August 2010, Four Loko was a mixture of alcohol and
energy drink. Drinking an AED such as Four Loko will cause the same intoxicating
effects in humans as any other alcoholic beverage with the same amount of alcohol
content. In some cases, drinking an AED like Four Loko can cause the observable effects
of alcohol intoxication to be masked or hidden to the drinker and people observing the
drinker. One can of Four Loko, as found by Timothy at the school, contained 23.5 fluid
ounces of beverage. The alcohol concentration of that beverage was 12 percent by
volume, which was the same percentage of alcohol as most wine. Each 23.5-ounce can
of Four Loko contains the alcohol and intoxicating equivalent of 4.7, 12-ounce cans of
beer or 4.7, five-ounce glasses of wine. Marczinski watched the market and convenience
store videos and observed no objective symptoms of alcohol intoxication exhibited by
T.D., J.P., or petitioner. Some typical objective symptoms of alcohol intoxication include
lack of balance, falling down, vomiting, slurred speech, and passing out.
B. New Evidence at the Evidentiary Hearing
At the evidentiary hearing, the People entered into evidence the convenience store
surveillance video. They otherwise relied on the transcripts of petitioner’s trial and the
trial exhibits, and did not present new evidence.
Petitioner entered into evidence the market surveillance video. He also called
private investigator Wallace as a hearing witness. Wallace worked petitioner’s case at
the time of his trial and again for the section 1172.6 resentencing hearing. He again
testified he had experience attempting to spot people carrying concealed firearms.
Petitioner played the market surveillance video while Wallace testified that T.D.
appeared to have something heavy, like a firearm, in his pants. However, J.P. and
petitioner did not, at any time during the video, have the same trouble keeping their pants
18.
up. Wallace testified that, at one point in the video, T.D.’s shirt pulled “somewhat more
snugly over his right hip and you can see something of a sharp angular nature up here
underneath his shirt,” suggesting there was a “firearm present.” Wallace testified that he
saw “more evidence of [T.D.] carrying a firearm or something of that nature in his
waistband,” particularly the angular object in his waistband, than he had previously
testified to. He also noticed T.D. appeared to be looking down in the area on his
waistband, and Wallace opined T.D. was “checking on the visibility of the firearm.”
Wallace opined that T.D. appeared to have a firearm in his possession and J.P. and
petitioner did not.
Wallace also testified that he mapped out the route he believed petitioner, T.D.,
and J.P. took from the bus stop to petitioner’s home in Riverbank. He personally visited
the bus stop closest to petitioner’s mother’s residence. He also visited the residence and
traced the walking route between the bus stop and the residence. He noted that J.P.
reported that they robbed an ice cream vendor on the walking route from the bus stop to
the residence. Wallace spent “at least weeks” investigating the alleged robbery but was
unable to corroborate J.P.’s account of the ice cream robbery. He did not find or talk to
any ice cream vendors, let alone any who had been robbed. The Riverbank Police
Department had no record of any such robbery. He additionally talked to two or three
wholesalers who sold ice cream to ice cream vendors and none of them had knowledge of
any of their customers being robbed. He also talked to grocery stores and others selling
ice cream to determine where they got their ice cream. None of them knew of any
robbery. However, Wallace acknowledged not every crime is reported.
On cross-examination, Wallace acknowledged he did not have training in spotting
people carrying concealed weapons. He acknowledged that, in the market surveillance
video, both T.D. and petitioner were wearing baggy clothes that could conceal a firearm.
He also acknowledged that he did not see a gun in the video. He acknowledged that
someone who is accustomed to carrying a firearm would not be as concerned about his
19.
appearance as someone who was not accustomed to carrying a gun. Wallace did not
know if T.D. habitually fiddled with or habitually pulled up his pants or underwear.
Petitioner also called T.D. as a witness at the hearing. T.D. testified he had known
petitioner since childhood but had not been in communication with him since T.D. was
released from prison. T.D. had viewed the market surveillance video and noticed that he
appeared to be tugging on his waistband or pants several times. He acknowledged it
appeared he had a gun in his waistband. He did not recall whether anyone purchased
alcohol for the trio at the market. T.D. did not recall petitioner giving him the gun he was
alleged to have used during the shooting. He did not recall where the gun came from. He
did not recall anything from that night, including whether anyone told him to shoot
Bettencourt.
Petitioner also testified at the hearing. He testified that, at the time of the
shooting, T.D. was his friend, and he knew J.P. through T.D. The three of them were
together in Riverbank on the day of the incident and spent hours walking from place to
place. They first visited petitioner’s mother’s house at approximately 1:00 p.m. From
there, they walked to a school behind the movie theater, looking for someone to buy them
alcohol. They eventually found someone who agreed to buy them alcohol and they went
to the market, where the man purchased them Four Lokos. Petitioner knew T.D. had a
handgun in his waistband at the market.
The trio left the market and went back to the school to drink. After a couple of
hours, they left to get more alcohol. As they approached the convenience store, they had
no plans other than finding someone to purchase alcohol for them. One car was parked at
the convenience store. David and Bettencourt got out of the car and went into the
convenience store as petitioner and his companions walked up.
Petitioner, T.D., and J.P. walked to the front window of the convenience store and
stood near the wall. Petitioner stood approximately five feet from the car. At some
point, David and Bettencourt exited the store. David went to the driver’s side door and
20.
Bettencourt went to the passenger side door. T.D. left the wall and went toward David
and the driver’s side of the car. T.D. pulled the gun on David and said something, and
they both walked behind the car. Petitioner and J.P. followed toward the back of the car
“a couple of seconds later.” Bettencourt was at the passenger side of the car and David
took off running toward the front of the store. T.D. pointed the gun at petitioner and J.P.
and told them to get David. Petitioner stood there and J.P. chased David. J.P. caught
David and wrestled with him to try to physically stop him from going in the store, but he
was unsuccessful. While they wrestled, petitioner was by the wall of the store where he
started.
While petitioner was standing there, T.D. went to Bettencourt. He pointed the gun
at Bettencourt and demanded money. Bettencourt pulled out money and threw it at
T.D.’s face. T.D. then shot Bettencourt. Petitioner ran, as did J.P. and T.D. Petitioner
ran because he was scared.
Petitioner denied giving T.D. the gun or giving T.D. or anyone any orders
regarding what was to happen at the convenience store. Petitioner did not have a gun
and, to his knowledge, J.P. did not have a gun. However, T.D. had the gun throughout
the day. Petitioner denied that he robbed an ice cream man. He denied that he had
considered robbing “two old ladies.”
On cross-examination, petitioner confirmed that he, J.P. and T.D. took a bus to
Riverbank on the day of the shooting, and walked approximately two blocks to his
mother’s house. There, they drank one Four Loko that his stepfather purchased for them
and took another of the Four Lokos with them as they walked through Riverbank in the
evening. They spent time drinking at an elementary school before they saw some people
walking in an adjacent movie theater parking lot and asked them to purchase alcohol.
T.D. had a gun at the time they went to the market, and petitioner did not recall where
T.D. obtained it. T.D. had carried the gun with him a few times previously. Petitioner
had seen the gun earlier in the day when he woke up at T.D.’s house.
21.
As petitioner and his companions walked up to the convenience store, the plan was
to get someone to buy them alcohol. They saw David and Bettencourt getting out of the
car as they walked up, but did not ask David and Bettencourt to buy them alcohol
because by that point they were already in the store. When David and Bettencourt exited
the store, petitioner and his companions did not ask them for alcohol. When T.D. pulled
the gun on David, he was approximately 10 feet in front of petitioner. Petitioner
followed a couple of seconds after T.D. and heard T.D. ask David for the keys to the car.
By the time David got past J.P. and into the store, petitioner was “[p]robably by the
front” of the store. He was approximately 10 feet away from T.D. Once T.D. pointed the
gun at petitioner, petitioner did not move. After T.D. pointed the gun at Bettencourt,
petitioner said, “Hey, let’s go.” Although T.D. had not shot anyone at that point,
petitioner “guess[ed] he would have used [the firearm].” T.D. then shot Bettencourt and
petitioner ran.
Petitioner admitted that he was charged in 2010 with assault with a firearm, assault
with force likely to cause great bodily injury, shooting at an occupied motor vehicle,
discharge of a firearm with gross negligence, and trying to dissuade a witness.
Additionally, prior to the instant offense, petitioner assaulted a man at a gas station
convenience store in Redding, but was found not guilty of assault and pled no contest in
2019 to a violation of section 186.22, subdivision (d). Petitioner also was charged with
or convicted of offenses while incarcerated, including a 2017 conviction for possession of
drugs in prison (§ 4573.6), a charge for conspiring with his mother to bring drugs into
prison, and a 2019 conviction for possession of drugs in prison (§ 4573.8).
C. Ruling
The court determined the People had met their burden of proving, beyond a
reasonable doubt, that petitioner was guilty of murder based on the testimony at trial.
With regard to the disputed factual issues, the court noted it found compelling the
testimony of petitioner’s mother, who overheard a statement regarding petitioner
22.
furnishing the weapon, and also found compelling the video evidence, which
corroborated J.P.’s trial testimony. The court specifically found petitioner was a major
participant in the underlying offense and acted with reckless indifference to human life,
and alternatively that the conviction could be sustained because petitioner “aided or
abetted or assisted in the commission of the murder” with intent to kill. Accordingly, the
petition for resentencing was denied.
DISCUSSION
I. Applicable Law Regarding Section 1172.6
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Senate Bill No. 1437) “to amend the felony murder rule and the natural and
probable consequences doctrine . . . to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three
separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added
section 188, subdivision (a)(3), which requires a principal to act with malice aforethought
before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at
pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
23.
indifference to human life, as described in subdivision (d) of Section
190.2.”14 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added former section 1170.95, now section 1172.6, to provide a
procedure for those convicted of a qualifying offense “to seek relief under the two
ameliorative provisions above.” (Gentile, supra, 10 Cal.5th at p. 843.) Relevant here,
this procedure is available to persons convicted of “felony murder or murder under the
natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime.” (§ 1172.6,
subd. (a).)
Under section 1172.6, an offender seeking resentencing must first file a petition in
the sentencing court, and the sentencing court must determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c);
accord, People v. Strong (2022) 13 Cal.5th 698, 708.) If the sentencing court determines
the petitioner has made a prima facie showing, the court must issue an order to show
cause and hold a hearing to determine whether to vacate the murder conviction.
(§ 1172.6, subds. (c), (d)(1).)
At this evidentiary hearing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under
California law as amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).) “The admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially noticed. The
court may also consider the procedural history of the case recited in any prior appellate
14Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
24.
opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant
to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless
the evidence is admissible pursuant to another exception to the hearsay rule. The
prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens.” (§ 1172.6, subd. (d)(3).)
II. Sufficient Evidence of Felony-murder Liability
The superior court found petitioner was ineligible for resentencing because the
prosecution had proved beyond a reasonable doubt that he was guilty of murder as a
major participant in a qualifying felony who acted with reckless indifference to human
life. Petitioner contends the evidence was insufficient to support these findings. We
disagree.
A. Standard of Review
We review the superior court’s findings for substantial evidence. (People v.
Clements (2022) 75 Cal.App.5th 276, 298.) In doing so, we review the facts in the light
most favorable to the People and presume in support of the court’s ruling the existence of
every fact that can be reasonably deduced from the evidence, whether direct or
circumstantial. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
B. Applicable Law Regarding Felony Murder
Since the passage of Senate Bill No. 1437, section 189, subdivision (e)(3) provides
that a participant in a qualifying felony where a death occurs may be liable for murder if
the person was “a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.” Section
190.2 “identifies the circumstances under which murderers and accomplices can be
punished by death or life imprisonment without parole. . . . For defendants who did not
kill and lacked intent to kill, section 190.2, subdivision (d) permits such punishment only
if they acted ‘with reckless indifference to human life and as a major participant’ [in] a
25.
qualifying felony like robbery.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; see In re
Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
In People v. Banks (2015) 61 Cal.4th 788 (Banks), our Supreme Court sought to
clarify the circumstances under which “an accomplice who lacks the intent to kill may
qualify as a major participant so as to be statutorily eligible for the death penalty.” (Id. at
p. 794.) The high court identified the following nonexhaustive factors as relevant to this
inquiry: “What role did the defendant have in planning the criminal enterprise that led to
one or more deaths? What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?” (Id.
at p. 803, fn. omitted.) However, “[n]o one of these considerations is necessary, nor is
any one of them necessarily sufficient.” (Ibid.)
The following year, in People v. Clark (2016) 63 Cal.4th 522, 614-623 (Clark),
the high court addressed the “reckless indifference” standard. The court explained that
reckless indifference to human life “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.) The court further
explained that reckless indifference to human life has both a subjective and an objective
component. (Ibid.) Subjectively, “[t]he defendant must be aware of and willingly
involved in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or her actions
create.” (Banks, supra, 61 Cal.4th at p. 801; accord, Clark, at p. 617.) Objectively,
“ ‘[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
26.
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.’ ” (Clark, at p. 617.) The fact that a felony
involves a gun is insufficient, by itself, to support a finding of reckless indifference. (Id.
at pp. 617–618.)
In Clark, the high court provided the following nonexhaustive list of factors to be
considered in determining whether the defendant acted with reckless indifference:
(1) knowledge of weapons, and use and number of weapons; (2) physical presence at the
crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the
felony and period of interaction between the perpetrators and the victims, (4) the
defendant’s knowledge of his or her cohort’s likelihood of killing, and (5) the defendant’s
efforts to minimize the risk of violence during the felony. (Clark, supra, 63 Cal.4th at
pp. 618–623.) Like the factors considered in Banks, “ ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at p. 618.)
Notably, Banks and Clark derived their holdings from Enmund v. Florida (1982)
458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison), the prevailing
Eighth Amendment jurisprudence regarding the circumstances under which the death
penalty permissibly may be imposed for felony murder. (In re Ramirez (2019) 32
Cal.App.5th 384, 393.) Our Supreme Court has explained that Enmund and Tison
together establish a “ ‘spectrum of culpability,’ ” with felony murderers who “ ‘actually
killed, attempted to kill, or intended to kill’ ” at one end, and minor actors who were not
present on the scene and had no culpable mental state at the other. (Scoggins, supra, 9
Cal.5th at p. 675.) We briefly describe the facts of Enmund and Tison to give context to
this spectrum.
The defendant in Enmund was a getaway driver for a robbery. He sat waiting in
his parked car a few hundred feet away from the home where his two confederates fatally
shot an elderly couple when they resisted. (Enmund, supra, 458 U.S. at p. 784.) The
high court emphasized the defendant “did not kill or attempt to kill,” and the record did
27.
not support a finding he had “any intention of participating in or facilitating a murder.”
(Enmund, at p. 798.) As such, imposition of the death penalty, which must be based
solely on a defendant’s own culpability, was constitutionally disproportionate. (Ibid.)
The facts of Tison are starkly different. There, two brothers helped their father
and his cellmate—both convicted murderers—escape from prison, arming the prisoners
during their escape. (Tison, supra, 481 U.S. at pp. 139, 150–152.) When the group
eventually experienced car trouble, one of the brothers flagged down a passing car for
help while the other men laid in wait by the side of the road. (Id. at pp. 139–140.) The
group then kidnapped at gunpoint a family of four in the passing car, robbed them, and
drove them into the desert. (Id. at p. 140.) The brothers stood by while their father and
his cellmate shot the victims repeatedly. The group then left the family to die in the
desert and drove off in the family’s car. (Id. at pp. 139–141.) The high court emphasized
that “the reckless disregard for human life implicit in knowingly engaging in criminal
activities known to carry a grave risk of death represents a highly culpable mental state, a
mental state that may be taken into account in making a capital sentencing judgment
when that conduct causes its natural, though also not inevitable, lethal result.” (Id. at
pp. 157–158.) The high court noted the brothers’ substantial and active participation in
the kidnapping and robbery implicated them in the resulting deaths, and the death penalty
could properly be imposed under such circumstances where the defendants also exhibited
reckless indifference to human life. (Id. at p. 158.)
Our Supreme Court has explained that, “[s]omewhere between [Tison and
Enmund], at conduct less egregious than the Tisons’ but more culpable than Earl
Enmund’s, lies the constitutional minimum for death eligibility.” (Banks, supra, 61
Cal.4th at p. 802.)
28.
C. Major Participation
Substantial evidence supports the superior court’s finding that petitioner was a
major participant in the carjacking under the Banks standard.
As to the first Banks factor, petitioner’s role in planning the criminal enterprise
that led to one or more deaths, we note the record does not necessarily establish that
petitioner planned to engage in a carjacking. Nonetheless, the evidence is sufficient to
establish petitioner planned to engage in some kind of armed felony, and that plan
ultimately led to Bettencourt’s death. More specifically, there is substantial evidence that
petitioner began the evening by arming himself with a firearm. He then robbed an ice
cream man at gun point and suggested to his companions that they rob two women
leaving the movie theater. When his companions declined, he told T.D. not to “bitch up”
or “get soft” and gave him the firearm. He did not appear to exhibit surprise when T.D.
pointed the firearm at David and, instead, followed as T.D. pursued David around the
back of the car.15
As to the second factor, petitioner’s role in supplying or using lethal weapons, the
evidence supports a finding that petitioner armed T.D. prior to the encounter while telling
him not to “bitch up” or “get soft.” Although petitioner disputes his role in supplying the
weapon, J.P. testified that petitioner possessed and displayed the firearm at different
times before ultimately giving the firearm to T.D. Additionally, petitioner’s mother
heard T.D. asking petitioner about the “piece” while the trio was at her house, and her
testimony also suggested petitioner had the financial means to purchase a firearm based
15 The People rely on gang-related evidence to support a theory that petitioner
planned or encouraged the murder as the more senior member of the gang to which he
and T.D. belonged. However, we need not consider the gang evidence to conclude
substantial evidence supports a finding that petitioner planned to engage in an armed
felony.
29.
on a recent legal settlement. We note the superior court expressly stated that it credited
petitioner’s mother’s testimony.
As to the third factor, substantial evidence does not necessarily support a finding
that petitioner was aware, prior to his arrival at the convenience store, of particular
dangers posed by the crime, the weapons used, or the conduct of the other participants.
Although T.D. and petitioner had been friends for many years, and evidence was
presented to suggest T.D. had a history of behavioral issues and making threats of
violence in school, it is not clear that petitioner was aware of that history. Nor would
T.D.’s school history necessarily suggest to petitioner that his conduct would escalate to
murder. That said, petitioner certainly became aware of the particular dangers posed by
T.D.’s conduct during the course of the crime. By the time T.D. pulled the gun, pointed
it at David, racked the slide, and told David he would “blast” him, petitioner was on
notice of the likelihood the offense would escalate to deadly violence.16 Again,
petitioner did not appear to register surprise at the turn of events, and followed behind as
T.D. pursued David around the car.
This leads us to the fourth Banks factor: whether petitioner was present at the
scene of the killing and in a position to facilitate or prevent the actual murder, and
whether his own actions or inaction played a particular role in the death. Petitioner was
present at the scene of the killing. The time between T.D. pulling out the firearm and his
firing of the fatal shots was relatively brief, just under one minute. However, during this
time, T.D. pursued David around the car with petitioner and J.P. in tow. David fled and
16 Petitioner argues the fact that T.D. did not shoot David would have indicated to
petitioner that the incident would not result in deadly violence. We disagree. The
encounter between the perpetrators and the victims escalated rapidly. Once David
escaped to the convenience store doors, T.D. ordered the others to restrain him.
Petitioner’s own testimony at the evidentiary hearing acknowledged that, although T.D.
had not shot anyone at that point, petitioner “guess[ed] he would have used [the
firearm].” The evidence does not suggest petitioner understood T.D. was disinclined to
use deadly force.
30.
J.P. pursued him, wrestling with him at the door of the convenience store. Petitioner
stayed near T.D. and the car and yelled something at Bettencourt. T.D. demanded money
from Bettencourt, which Bettencourt threw in his face before T.D. shot him. The
shooting was not instantaneous, but rather was preceded by a series of events in which
petitioner made no effort to minimize the risk of violence. Nor did petitioner attempt to
intervene or cease his participation in the offense once it became apparent that the
carjacking had been thwarted. His inaction contributed to Bettencourt’s death.
Finally, we consider petitioner’s actions once lethal force had been used.
Petitioner did not attempt to render aid to Bettencourt. Rather, petitioner facilitated the
trio’s escape by taking them to a nearby home to hide. He then took the trio to his
mother’s house and obtained a ride for all of them to Turlock. From there, he remained
with T.D., and the two ultimately were apprehended together in Redding. His conduct
following the shooting does not indicate he repudiated T.D.’s conduct, but rather that he
supported it and believed himself to be implicated in the murder. Petitioner’s conduct
notably contrasts with that of J.P., who attempted to break off from his cohorts shortly
after the murder, and ultimately did so, eventually turning himself in to law enforcement.
Taken together, the foregoing constitutes substantial evidence to support the
superior court’s finding that petitioner was a major participant in the underlying felony.
D. Reckless Indifference
Substantial evidence also supports the superior court’s finding that petitioner acted
with reckless indifference to human life, as defined in Clark. The evidence regarding
many of these factors overlaps with the evidence supporting the Banks factors.
As to the first Clark factor, petitioner’s knowledge of the weapons used and the
number of weapons, we have already explained that substantial evidence supports a
finding that petitioner furnished, and therefore had knowledge of, the firearm used in the
offense. We recognize, however, that the evidence suggests only one firearm was used.
31.
As to the second Clark factor, petitioner’s physical presence at the crime and
opportunities to restrain the crime and/or aid the victim, we have already explained that
petitioner was physically present at the crime scene, had opportunities to restrain the
offense but failed to do so, and also declined to aid Bettencourt after the shooting. (See
In re Loza (2017) 10 Cal.App.5th 38, 53–54 [noting that a defendant who is present has
“ ‘ “an opportunity to act as a restraining influence on murderous cohorts” ’ ” and to
“assist the victim”].)
As to the third Clark factor, the duration of the felony and period of interaction
between the perpetrators and the victims, we acknowledge that the felony was relatively
brief, lasting just under one minute. However, as we have explained, during that brief
interval, the perpetrators had extensive interactions with the victims. Petitioner did not
merely stand by during these interactions. Rather, he actively supported T.D. as he
pursued David around the car, and stood near T.D. as T.D. demanded money from
Bettencourt and ultimately shot him.
As to the fourth Clark factor, petitioner’s knowledge of his cohort’s likelihood of
killing, we again acknowledge that the evidence does not necessarily suggest petitioner
had prior knowledge T.D. was likely to kill. However, once T.D. pulled out the gun,
pointed it at David, racked the slide, and told David he would “blast” him, petitioner had
notice of T.D.’s likelihood of killing. Thereafter, he took no steps to repudiate T.D.’s
conduct or minimize the risk of death.
This leads us to the fifth Clark factor, petitioner’s efforts to minimize the risk of
violence during the felony. Petitioner made no such efforts. To the contrary, his conduct
– furnishing the weapon, telling T.D. not to “bitch up” or “get soft,” following T.D. as he
pursued David, and standing nearby yelling while T.D. demanded money from
Bettencourt – only served to escalate the risk of violence.
32.
We recognize that some of the Clark factors do not weigh strongly in favor of a
finding a reckless indifference. We are mindful, however, of our Supreme Court’s
admonition that no one of the Clark factors “ ‘is necessary, nor is any one of them
necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.) Rather, we must evaluate
these factors under the totality of the circumstances to determine petitioner’s place on the
“ ‘spectrum of culpability.’ ” (Scoggins, supra, 9 Cal.5th at p. 675.) Having done so, we
conclude this is not a close case. The evidence is sufficient to establish petitioner was
recklessly indifferent to the risk to human life, and his disregard involved a gross
deviation from the standard of conduct a law-abiding person would observe in his
situation. (Id. at p. 677.)
We reject petitioner’s contention that he did not act with reckless indifference
because he was merely an “intoxicated teenager” who did not subjectively appreciate the
risk of death the incident carried. These factors may be relevant to the reckless
indifference inquiry. (See People v. Covarrubias (2016) 1 Cal.5th 838, 898
[intoxication]; People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 [age].) However,
they do not overwhelm consideration of all the other factors. (See Tison, supra, 481 U.S.
at pp. 142, 151–152, 158 [death sentence could constitutionally be imposed on 19 year
old if he was a major participant who acted with reckless indifference].) Evidence of
petitioner’s age and intoxication were presented to the superior court, which nonetheless
found petitioner acted with reckless indifference to human life.17 The evidence does not
undermine our determination that substantial evidence supports the superior court’s
finding.
17 Significantly, that evidence suggests that petitioner and his companions did not
exhibit any outward signs of intoxication.
33.
E. Conclusion
In sum, substantial evidence supports the superior court’s finding that petitioner
was a major participant in the carjacking and acted with reckless indifference to human
life. These findings are sufficient to uphold petitioner’s murder conviction under the law
as amended by Senate Bill No. 1437 and, therefore, sufficient to affirm the denial of the
petition for resentencing. Accordingly, we need not, and therefore do not, determine
whether substantial evidence also supports a finding that petitioner aided and abetted the
murder with intent to kill.
DISPOSITION
The order denying the petition is affirmed.
DETJEN, Acting P. J.
WE CONCUR:
SMITH, J.
MEEHAN, J.
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