Filed 10/5/23 P. v. Jordan CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES JORDAN,

Defendant and Appellant.

 B313749

 (Los Angeles County

 Super. Ct. No. A294099)

APPEAL from an order of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, and Gary A. Lieberman, Deputy 

Attorney General, for Plaintiff and Respondent.

* * * * * *

Charles Jordan (defendant) appeals the trial court’s order 

denying his petition for resentencing filed pursuant to Penal 

Code section 1172.6.1 Concluding there was no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. The Underlying Crime

Just before midnight on a Monday in February of 1973, 

defendant, George Monroe Clark (Clark), and Frederick Dwayne 

Nelson (Nelson) were hanging out in the Belmont Bar in 

downtown Los Angeles. Nelson had a knife. Clark was a pimp, 

and JoAnn Fay (Fay) was one of his prostitutes.

Frank Zion (Zion) walked into the bar and had cash visibly 

overflowing from his pockets. Zion was noticeably drunk. After 

Zion told Fay he wanted a “date” with her and peeled off $130 to 

give her from his wad of cash, Zion led Fay to the Rosslyn Hotel, 

a then-seedy hotel across the street from the bar. Defendant, 

Clark, and Nelson waited a few minutes, and then followed. 

Before they left, however, one of them grabbed a beer bottle and 

concealed it in a T-shirt.

Back in Zion’s room at the hotel, Zion and Fay had sex.

1 When defendant filed his petition, the relevant 

resentencing statute was numbered section 1170.95. Effective 

June 30, 2022, section 1170.95 was renumbered section 1172.6, 

with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, 

we refer to the section by its new numbering.

All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Mere minutes after the sex ended and while Zion was still 

laying on the bed, defendant, Clark, and Nelson barreled into 

Zion’s hotel room with enough force to splinter the door jamb and 

knock down Fay, who was near the door. Defendant was the first 

of the three assailants through the door. They let Fay exit the 

room and then, as Zion lay on the bed, all three men rushed him 

and unleashed a hail of punches. One of the three men pulled out 

the by-that-time broken beer bottle and plunged its jagged edge 

into Zion’s neck, severing his jugular vein and causing his 

lifeblood to rapidly flood the bedsheets. Zion had no defensive 

wounds. 

Defendant, Clark, and Nelson then ransacked the hotel 

room, taking Zion’s wallet and the other wads of cash. They left 

the room with Zion bleeding out on the bed, and returned to the 

bar to “split” the loot.

II. Prosecution, Conviction, and Appeal

The People charged defendant, Clark, and Nelson with 

robbery (§ 211) and murder (§ 187), and further alleged that each 

defendant intentionally inflicted great bodily injury. The jury 

convicted defendant of first degree robbery and first degree 

murder, and found true the further allegation.

The trial court imposed a sentence of life for the murder 

conviction, but stayed the sentence for the robbery conviction.

Defendant’s conviction and sentence were affirmed on 

appeal.

III. Petition to Vacate Under Section 1172.6

In January 2019, defendant filed a petition for resentencing 

under section 1172.6. After appointing counsel to represent 

defendant, and after receiving a response from the People and a 

further brief from defendant, the trial court in February 2021 
4

issued an order to show cause and set the matter for an 

evidentiary hearing. 

On May 14, 2021, the trial court held an evidentiary 

hearing. At that hearing, the court stated that it had read the 

transcripts from the original trial. The People also introduced a

2009 comprehensive risk assessment presented to the Board of 

Parole Hearings. Defendant introduced no new evidence. A few 

days after the hearing, defendant filed a supplemental brief 

contesting the admissibility of the 2009 assessment.

On May 28, 2021, the trial court issued a 13-page order 

denying defendant’s petition. The court reasoned that defendant 

was not entitled to relief under section 1172.6 for two reasons—

namely, (1) defendant had admitted in the 2009 assessment to 

being the “actual killer” (that is, the one who plunged the beer 

bottle into Zion’s neck); and (2) the evidence from the original 

trial supports an independent finding, beyond a reasonable 

doubt, that defendant was a major participant in the robbery who 

acted with reckless indifference to the value of human life.

IV. Appeal

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the trial court erred in denying his 

petition for resentencing because the court erred in finding that 

(1) he was the “actual killer” because the sole basis for that 

finding was the 2009 assessment, which was improperly admitted 

into evidence; and (2) he was a major participant who acted with 

reckless indifference to human life because (a) there is 

insufficient evidence that he acted with reckless indifference, and 

(b) the court never considered his relative youth. As we explain 

below, because the trial court’s independent finding that 
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defendant was a major participant who acted with reckless 

indifference is valid, we have no occasion to address his challenge 

to the evidence underlying the “actual killer” finding.

I. Substantial Evidence Supports the Finding That 

Defendant Was a Major Participant Who Acted with 

Reckless Indifference

A. Pertinent law

In 2018, our Legislature amended the definition of 

“murder” in our state to preclude a jury from “imput[ing]” the 

“malice” element of that crime “based solely on [a defendant’s] 

participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s 

purpose was to ensure that “[a] person’s culpability for murder 

[is] premised upon that person’s own actions and subjective mens 

rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability for 

murder is limited to persons (1) who are the actual killer; (2) who 

aided and abetted the actual killer in the murder (that is, who 

acted with the intent to kill); or (3) who were a major participant 

in the underlying felony that resulted in the killing, but only if 

they also acted with reckless indifference to human life. (§§ 188, 

subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50 

Cal.App.5th 46, 58-59.)

Section 1172.6 is the procedural vehicle by which persons 

convicted in now-final judgments can seek to vacate convictions 

that do not satisfy the now-current definition of “murder.” 

Where, as here, a defendant files a facially sufficient petition and 

the record does not otherwise foreclose relief as a matter of law, 

the trial court must issue an order to show cause and convene an 

evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, the 

People have the burden of proving to the trial court, acting as an 
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independent factfinder, that a defendant is guilty of murder on a 

still-valid theory. (§ 1172.6, subd. (d)(3).)

As pertinent here, the trial court found beyond a 

reasonable doubt that defendant was guilty under the still-valid 

theory that he was a major participant in the robbery that 

resulted in Zion’s death and that he acted with reckless 

indifference to human life. Defendant concedes that the court’s 

finding that he was a major participant is supported by the 

record, but asserts that the finding that he acted with reckless 

indifference to human life is not. As a threshold matter, 

defendant argues that we must engage in de novo review of the 

evidence presented at trial, including reevaluating the credibility 

of witnesses and drawing whatever inferences we find 

persuasive; for support, he cites People v. Vivar (2021) 11 Cal.5th 

510. However, Vivar itself confined its rule of independent

review for testimony presented in transcripts (rather than 

through in-person testimony) to petitions under section 1473.7 

(id. at pp. 527-528 & fn. 7); not surprisingly, and contrary to 

defendant’s proclamation that the law on this point is 

“unsettled,” the courts have uniformly rejected the argument 

defendant now advances (People v. Clements (2022) 75 

Cal.App.5th 276, 301-302; People v. Sifuentes (2022) 83 

Cal.App.5th 217, 232-233; People v. Mitchell (2022) 81 

Cal.App.5th 575, 590-591). We join that chorus. As a result, our 

task is simply to assess whether “substantial evidence”—that is, 

“‘“evidence that is reasonable, credible, and of solid value”’”—

supports the trial court’s independent finding that defendant 

acted with reckless indifference. (People v. Nieber (2022) 82 

Cal.App.5th 458, 476.) In so doing, we view the evidence in the 
7

light most favorable to the court’s finding, drawing all reasonable 

inferences in support of that finding. (Ibid.)

In People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court 

spelled out that a defendant acts with reckless indifference to 

human life when he “‘“knowingly engag[es] in criminal activities 

known to carry a grave risk of death.”’” (Banks, at p. 801, 

quoting People v. Estrada (1995) 11 Cal.4th 568, 577, 

quoting Tison v. Arizona (1987) 481 U.S. 137, 157.) This 

standard “has a subjective and an objective” component. (In re 

Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) To satisfy the 

subjective component, ‘“[t]he defendant must be aware of and 

willingly involved in the violent manner in which the [underlying 

felony] is committed,’ and . . . must consciously disregard ‘the 

significant risk of death his or her actions create.’” (Ibid., 

quoting Banks, at p. 801.) The key is whether the defendant 

evinces “a willingness to kill (or to assist another in killing) 

to achieve a distinct aim, even if the defendant does not 

specifically desire that death as the outcome of his actions.” 

(Clark, p. 617.) To satisfy the objective component, the risk of 

death “‘“must be of such a nature and degree that, considering 

the nature and purpose of the [defendant’s] conduct and the 

circumstances known to him . . . , its disregard involves a gross 

deviation from the standard of conduct that a law-abiding person 

would observe in the [defendant’s] situation.”’” (Scoggins, at p. 

677, quoting Clark, at p. 617.)

Our Supreme Court has identified a number of 

considerations bearing on whether a defendant has acted with 

reckless indifference to human life. “No one of these 

considerations is necessary, nor is any one of them necessarily 
8

sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is 

the totality of the considerations (Scoggins, supra, 9 Cal.5th at p. 

677). The considerations are: (1) “Did the defendant use or know 

that a gun would be used during the [underlying] felony,” and, 

relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was 

the defendant physically present at the crime,” such that he had 

“the opportunity to restrain the crime or aid the victim?”; (3) 

“What was the duration of the interaction between the 

perpetrators of the [underlying] felony and the victims?”; (4) 

“What was the defendant’s knowledge of his . . . confederate’s 

propensity for violence or likelihood of using lethal force?”; and 

(5) “What efforts did the defendant make to minimize the risks of 

violence during the felony?” (Ibid., citing Clark, supra, 63

Cal.4th at pp. 618-623.) 

B. Analysis

Substantial evidence supports the trial court’s finding that 

defendant acted with reckless indifference to human life. 

The court’s finding of reckless indifference is supported by 

substantial evidence when it is viewed in its totality. Defendant 

and two other men went to a hotel room that they knew was 

occupied by a drunk man who had just had sex and a prostitute 

who worked for one of them. They brought weapons—a knife and

a broken beer bottle that could not be easily concealed. They 

burst through the hotel room’s door in order to rob the man, and 

all immediately moved to where he was on the bed in order to 

beat him. This conduct is equivalent to a home invasion robbery, 

a crime that carries with it a higher risk of violence. (People v. 

Garcia (2020) 46 Cal.App.5th 123, 146-148.) What is more, 

defendant concedes he was a major participant in this robbery; 

this is further confirmed by his role as the first one to enter the 
9

hotel room after they busted the door. Defendant’s aggravated 

role is further evidence of reckless indifference. (Id. at p. 147 

[“the greater the defendant’s participation in the [underlying] 

felony . . . , the more likely he or she acted with reckless 

indifference to human life”].)

The court’s finding of reckless indifference is further 

confirmed by examining the individual Banks and Clark

considerations. 

First, and assuming for these purposes that defendant was 

not the assailant who stabbed Zion with the beer bottle, 

defendant or one of his cohorts brought the broken bottle into the 

hotel room and, given the unusual size and shape of a broken 

beer bottle, the trial court could reasonably infer that defendant 

saw the bottle as the men walked over from the bar. Defendant 

responds that there was no evidence that he or one of his cohorts 

brought the bottle with them, no evidence which of them brought 

it, and no evidence that defendant told anyone to stab Zion. 

These arguments are incorrect or irrelevant: Fay testified that 

there was no bottle in the room when she was with Zion, giving 

rise to the reasonable inference that the assailants brought it 

with them; for purposes of showing defendant’s knowledge that a 

weapon would be used, it does not matter which one of them 

brought the bottle; and in assessing recklessness, it does not 

matter which defendant intended the murder. 

Second, defendant was present in the hotel room; indeed, 

he was one of the three men punching Zion at the time one of 

them plunged the beer bottle into Zion’s neck. Defendant argues 

that the crime unfolded so quickly he had no time to intervene to 

stop the crime, but the record does not support this assertion 

given that all three men were ostensibly within arm’s reach of 
10

one another while simultaneously beating Zion; it is reasonable 

to infer defendant could have reached out to either cohort the 

moment that cohort pulled out the broken beer bottle. 

Third, defendant also could have aided Zion once he was 

stabbed; instead, he fled and returned to the bar with the others 

to count their loot. Admittedly, the attack on Zion happened 

quickly once the three men barged into the room, so there was 

not an extended period for reflection after that point in time, but 

the fact that the men had planned to proceed to immediately beat 

Zion only tends to exacerbate—not reduce—the danger to human 

life. 

Fourth, although there is no direct evidence that defendant 

was aware of Nelson’s or Clark’s past propensity for violence, 

these men were not strangers to defendant (as Nelson was 

defendant’s roommate), and the charged crime evinces a 

coordinated plan to follow a bar patron across the street to rob 

and kill him. Defendant’s concession that the evidence supports 

a finding that he was a major participant in the robbery further 

supports his role in planning the crime—and hence his 

foreknowledge of their violence-based plan. What is more, 

defendant’s lack of surprise following the crime implies that he 

knew that the attack would “go down” precisely as it did. 

Lastly, defendant made no effort to minimize the risk of 

violence; instead, he was the first to burst into the hotel room and 

set upon Zion.

Defendant resists our conclusion with one further 

argument—namely, that a person’s participation in an armed 

robbery is not enough to establish that he was a major 

participant who acted with reckless indifference to human life. 

Relatedly, he argues that this was just a “‘garden-variety’ armed 
11

robbery.” Defendant is correct that mere participation in an 

armed robbery is not enough to make every participant in the 

robbery someone who acts with reckless indifference (In re 

Bennett (2018) 26 Cal.App.5th 1002, 1026; Banks, supra, 61 

Cal.4th at p. 810; Clark, supra, 63 Cal.4th at p. 616), but he 

seems to leap from that proposition to the conclusion that no 

level of participation is enough. But that is simply an incorrect 

statement of the law because it would mean that armed robbers 

are categorically immune from being major participants who act 

with reckless indifference to human life. By the same token, 

whether or not the robbery as a whole was a “gardenvariety armed robbery” is irrelevant because what matters 

is defendant’s particular role in this particular armed robbery. 

Defendant was not the getaway driver who waited around the 

corner while his cohorts robbed a liquor store after 

hours. Instead, defendant was one of the three robbers who 

followed a mutually agreed-upon plan to follow a bar patron 

across the street to his hotel room where they forced entry and 

proceeded to beat, rob, and kill him. For the reasons explained 

above, defendant’s particular role in this particular robbery 

qualifies him as a major participant who was recklessly 

indifferent to human life. 

II. Consideration of Defendant’s Relative Youth

In a series of decisions starting with People v. Harris (2021) 

60 Cal.App.5th 939, the California courts have noted that a 

defendant’s relative youth—which various statutes refer to as 

being under the age of 26 (§§ 3051, subd. (a)(1), 4801, subd. (c))—

is relevant in assessing whether a defendant has satisfied the 

subjective component of the reckless indifference test. (Harris, at 

p. 960 [defendant’s youth makes it “far from clear that [he] was 
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actually aware ‘of [the] particular dangers posed by the nature of 

the crime, weapons used, or past experience or conduct of the 

other participants’”]; In re Moore (2021) 68 Cal.App.5th 434, 453-

454 [“a defendant’s youth is a relevant factor in determining 

whether the defendant acted with reckless indifference to human 

life”]; People v. Jones (2022) 86 Cal.App.5th 1076, 1092-1093 

[same].) Harris—the first in this line—was decided on February 

16, 2021, which is before the May 2021 evidentiary hearing in 

this case. Because the parties cited defendant’s age of 19 to the 

trial court, we may presume that the court was aware of Harris

and hence aware of its need to “consider [defendant’s] age and 

maturity level” when assessing whether defendant acted with 

reckless disregard. (Cf. Jones, at p. 1092 [concluding that 

presumption did not apply to section 1172.6 hearings held prior 

to Harris].)

Defendant resists this conclusion, urging that because his 

evidentiary hearing was held before Moore and Jones, we cannot 

presume the trial court was aware of the relevance of his relative 

youth. But Jones is to the contrary. Defendant further urges 

that the presumption that courts are aware of and apply the law 

only applies in “simplistic situations,” but he cites no authority 

for this proposition and Jones itself does not adopt it. We also 

reject it. Our conclusion in this regard obviates the need to 

consider defendant’s subsidiary argument that his counsel was 

constitutionally ineffective for not explicitly asking the court to 

consider his age.
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DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST