Filed 7/9/24 P. v. Mallet CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JEROME EVAN MALLET,

Defendant and Appellant.

 B328705

 (Los Angeles County

 Super. Ct. No. A619834)

APPEAL from an order of the Superior Court of Los 

Angeles County, John J. Lonergan, Judge. Affirmed.

Lori A. Nakaoka, 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, Assistant 

Attorney General, Kenneth C. Byrne and Allison H. Chung,

Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________
2

Jerome Evan Mallet,1 who was convicted of first degree 

murder and other offenses in 1981, appeals from an order 

denying his petition for resentencing under Penal Code former 

section 1170.95 (now section 1172.6)2 after an evidentiary

hearing.

3 He challenges the trial court’s findings that he was a 

major participant in the felonies and that he acted with reckless 

indifference to human life. We reject Mallet’s contentions of error 

and affirm.

1 “Mallet” is the correct spelling of appellant’s name, and it 

is the spelling the parties use in this appeal. Some court 

documents, including the opinion in Mallet’s direct appeal, 

however, refer to appellant as “Mallett.” We use the correct 

spelling except in our citation to the opinion in the direct appeal, 

which was styled as People v. Mallett.

2 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text (Stats. 2022, 

ch. 58, § 10).

Undesignated statutory references are to the Penal Code.

3 This is Mallet’s third appeal from an order denying his 

petition for resentencing, as we discuss more fully below. (See 

People v. Mallet (Jan. 28, 2021, B301369) [nonpub. opn.] (Mallet 

I); People v. Mallet (July 27, 2022, B313218) [nonpub. opn.]

(Mallet II).)
3

BACKGROUND

I. Mallet’s Trial

A. Pertinent evidence presented at trial

Substantial evidence presented at trial showed the 

following:4

On December 27, 1980, between 11:00 p.m. and midnight, 

Cora Taylor was in the bachelor apartment she shared with her 

children, Mary Taylor and Michael Taylor (the murder victim).

William Birdsong, a friend, was also present.

5

Cora heard a knock on the door, and three men entered the 

apartment without waiting for someone inside to open the door. 

One of the men asked for Michael, using his nickname Pierre. 

Cora asked the men to wait outside, but one of them said Pierre 

had told them to come inside and sit down. A fourth man 

remained outside on the porch. 

Mary, Michael, and Birdsong were in the adjoining kitchen.

Cora called to Michael, and he opened the kitchen door, looking 

surprised. Mary and Birdsong joined Michael in the doorway 

between the kitchen and the living room/bedroom. According to 

Mary’s trial testimony, Michael indicated he knew one of the men 

(identified at trial as then-19-year-old appellant Mallet), and 

possibly one of the other suspects, from the park. Mallet or the 

4 On Mallet’s motion, we augmented the record in this 

appeal with the reporter’s transcripts from Mallet’s trial.

5 We will refer to members of the Taylor family by their 

first names to distinguish them because they share the same 

surname. 

Cora, Mary, and Birdsong testified at trial.
4

other suspect told Michael to shut up.6 According to Cora and 

Mary, Mallet struck Birdsong or grabbed him by the collar and a 

scuffle ensued, with Mary and Michael coming to Birdsong’s aid.

7

Mallet pulled out a gun, ordered the victims to get on the 

bed, and asked Michael for money.8 Mary asked one of the other 

men, “ ‘What’s happening, blood?’ ” The man responded, “ ‘Ain’t 

no blood here,’ ” and he hit her in the jaw with his fist. Mary told 

the men they did not have any money, and Mallet struck her in 

the head with the gun. Michael repeated that they did not have 

any money. Mallet pointed the gun at Cora, addressed her as 

“ ‘old bitch,’ ” and threatened to shoot her first if the victims did 

not turn over money. Mary heard him cock the gun. Birdsong 

heard one of the other men say they were not going to hurt “the 

old lady.” 

Mallet ordered the victims to lie face down on the bed. One 

of the men threw a coat over their heads. Mallet stood guard 

over the victims as the other two men ransacked the apartment. 

Mallet repeatedly asked Michael where the money was, and 

Michael said he did not have any. At some point, the Taylors’ 

telephone rang in the living room/bedroom, and one of the men 

picked up the receiver. Mallet scolded the man and told him to 

put it down. 

6 Mary also testified that she had seen Mallet in her 

neighborhood before the crimes, once at the local park and once 

at a store near the park. 

7 Birdsong testified it was one of the other two men who 

grabbed him by the collar.

8 Mallet was the only man Cora, Mary, and Birdsong saw 

with a gun.
5

One of the men (not Mallet) asked Birdsong if he had any 

money, and Birdsong said he had five dollars. The man told 

Birdsong he would kill him if he actually had more money. 

Birdsong said there was money in his wallet, and the man 

reached into Birdsong’s pockets and took $60 from the wallet. 

The man whispered to Birdsong, “ ‘You have been invited to your 

friend’s death.’ ” One of the men took Cora’s purse from the bed.

Mary told the men they could take anything they wanted 

from the apartment, and she asked them not to hurt Michael. 

One of the men (not Mallet) pulled Mary off the bed by her hair, 

took her into the bathroom, and raped her twice. The man left 

Mary alone in the bathroom, and Mallet joined her. Mallet 

pulled down his pants and attempted to rape her but she 

resisted. The other man came back into the bathroom and tried 

to pull Mallet out. Mallet indicated he wanted to finish with 

Mary, but he acquiesced, and left the bathroom with the other 

man.9

While Mary was in the bathroom, Cora told Michael to tell 

the men where the money was, but Michael remained silent. One 

of the men (not Mallet) pulled Birdsong off the bed and told Cora 

and Michael to stand up. Then, Michael told the man there was 

money in a kitchen cabinet, and the man went to the kitchen to 

retrieve it.

According to Birdsong, the man who was waiting outside on 

the porch looked into the apartment, and Michael addressed him. 

Michael said, “ ‘You know me from the park. I shoot basketball 

9 The jury found a personal use firearm enhancement to be 

not true on count 4 for assault with intent to commit rape, so 

Mallet may no longer have had the gun when he was in the 

bathroom with Mary.
6

up there.’ ” Michael asked him to tell the other men not to hurt 

them. The man responded, “ ‘Yeah, you know, Pierre. Yeah, I 

know you.’ ” 

One or more of the men led Birdsong and Cora to the 

bathroom. Cora was holding Michael’s hand, but one of the men 

separated them and kept Michael out of the bathroom. Mary, 

Cora, and Birdsong were shut in the bathroom. Birdsong heard 

the men asking Michael for more money, and one of the men said 

something about Michael knowing his sister. Michael begged the 

men not to hurt anyone. Someone said to Michael, “ ‘You come 

down to the park,’ ” and “ ‘We don’t like you anyway’ ” or “ ‘I don’t 

like you anyway.’ ” Birdsong testified that the person who made 

the latter comments could have sounded like the man who had 

been waiting outside on the porch.

Then Cora, Mary, and Birdsong heard a gunshot in the

living room/bedroom. Cora opened the bathroom door and saw 

Michael lying in a puddle of blood in the living room/bedroom. 

He had been shot in the head, and it was a fatal wound. The men 

were gone. The ordeal lasted between 30 and 45 minutes. 

Shortly after midnight, law enforcement officers pursued a 

vehicle traveling without lights near the local park. The vehicle 

crashed, and the four male occupants fled. Officers found Mallet 

hiding in a bush nearby. Officers discovered a gun inside the 

vehicle and a stereo and photo album near the vehicle. A stereo, 

Michael’s watch, and some Christmas presents (including the 

photo album) were missing from the apartment. Mary testified 

at trial that the gun officers recovered looked like the gun Mallet 

used. 
7

B. Verdicts and sentence

Mallet was tried alone. We take the following procedural 

history from our opinion in Mallet’s appeal from the trial court’s 

May 25, 2021 order denying his petition for resentencing after his 

first evidentiary hearing in this matter (Mallet II, supra, 

B313218), an appeal we discuss below.

“In 1981, a jury found Mallet guilty of one count of first 

degree murder under section 187 (count 1), two counts of forcible 

rape in concert under sections 261 and 264.1 (counts 2 & 3), one 

count of assault with intent to commit rape under section 220 

(count 4), one count of burglary under section 459 (count 5), and 

three counts of robbery under section 211 (counts 6 through 8). 

The jury found true the allegations that Mallet personally used a 

firearm and that a principal was armed with a firearm in the 

commission of all offenses, except count 4, assault with intent to 

commit rape.” (Mallet II, supra, B313218, p. 3.)

“As to count 1, the jury deadlocked on the special 

circumstance allegations that the murder was committed during 

the commission of a robbery and a burglary within the meaning 

of section 190.2. The trial court declared a mistrial as to those 

allegations and, at the time of sentencing, granted the 

prosecution’s motion to dismiss the allegations. [Citation to 

opinion in Mallet’s direct appeal.] A true finding on those 

allegations—under the version of section 190.2 in effect at the 

time of the killing—would have required the jury to find Mallet 

was the actual killer or intentionally aided and abetted in first 

degree murder. (See People v. Banks (2015) 61 Cal.4th 788, 798.) 

The 1980 murder in this case predated approval of Proposition 

115, which amended section 190.2 to allow for felony-murder 

special circumstance findings where the defendant was a major 
8

participant in the felony and acted with reckless indifference to 

human life. (See Prop. 115, § 10, as approved by voters, Primary 

Elec. (June 5, 1990).) Accordingly, to find the felony-murder 

special circumstances true in Mallet’s case, the jury was not 

required to find he was a major participant in the felony who 

acted with reckless indifference to human life. [¶] As to count 6, 

which charged Mallet with robbery of the murder victim, the jury 

found not true the special allegation that Mallet personally 

inflicted great bodily injury on the murder victim.” (Mallet II, 

supra, B313218, pp. 3-4.)

“On the murder count, the trial court sentenced Mallet ‘to 

state prison for the term prescribed by law’ [25 years to life], plus 

two years for the firearm enhancement, to be served consecutive 

to a total term of 21 years and four months on the remaining 

counts.” (Mallet II, supra, B313218, p. 4.) Mallet appealed, and 

we affirmed the judgment of his convictions. (People v. Mallett

(June 29, 1983, 41449) [nonpub. opn.].)

II. The Petition for Resentencing and First Two Appeals

In 2018, the Legislature enacted Senate Bill No. 1437 “to 

amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, 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.” (Sen. Bill No. 1437 (2017-2018 Reg. 

Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) & 

189, subd. (e).) Senate Bill No. 1437 amended sections 188 

(defining malice) and 189 (felony murder) and added former 

section 1170.95, now renumbered section 1172.6, which 

established a procedure for vacating murder convictions and 
9

resentencing defendants who could no longer be convicted of 

murder in light of the amendments to sections 188 and 189 made 

effective January 1, 2019. (Stats. 2018, ch. 1015, § 4, pp. 6675–

6677.)

On January 16, 2019, Mallet, as a self-represented litigant,

filed a form petition for resentencing under former section 

1170.95, now section 1172.6. In the petition, Mallet checked 

boxes stating, in pertinent part, that he was convicted of first 

degree felony murder, and he could not now be convicted of that 

crime under changes to section 189, effective January 1, 2019,

because (1) he was not the actual killer, (2) he did not directly aid 

and abet the murder with intent to kill, and (3) he was not a 

major participant in the felony, or he did not act with reckless 

indifference to human life during the course of the felony. The 

trial court appointed counsel to represent Mallet and received 

briefing from the parties. (Mallet I, supra, B301369, pp. 5-7.)

On September 10, 2019, the trial court summarily denied 

Mallet’s petition for resentencing, and he appealed (Mallet I).

This court determined the record of conviction did not establish 

as a matter of law that Mallet was ineligible for relief under 

former section 1170.95, and the trial court engaged in 

impermissible factfinding at the prima facie stage of the 

proceedings in reaching the conclusions that he aided and 

abetted with the specific intent to kill and that he was a major 

participant in the felony who acted with reckless indifference to 

human life. We reversed the order summarily denying the

petition and remanded the matter, directing the trial court to 

issue an order to show cause under former section 1170.95, 

subdivision (c), and conduct a hearing under subdivision (d) to 
10

determine whether Mallet was entitled to relief. (Mallet I, supra, 

B301369, pp. 11-12.) 

Upon remand, the district attorney filed a second response 

to Mallet’s petition, arguing Mallet could still be convicted of 

felony-murder today under section 189, as amended, because (1) 

he acted with intent to kill, and (2) he was a major participant in 

the felonies who acted with reckless indifference to human life. 

In the brief, the district attorney relied on a summary of the facts 

and circumstances of the crimes that was derived from this 

court’s opinion in Mallet’s direct appeal. Mallet did not submit 

further briefing. (Mallet II, supra, B313218, pp. 7-8.)

The trial court set the matter for an order to show cause 

hearing, which occurred on May 18, 2021. The parties did not 

introduce any new evidence. After hearing argument from the 

parties, the court took the matter under submission.

10 On May 

23, 2021, the court issued an order denying the petition, finding 

Mallet was a major participant in the felonies and acted with 

reckless indifference to human life. The court indicated in the 

order that it based these findings on a factual summary derived 

from this court’s opinion in Mallet’s direct appeal. (Mallet II, 

supra, B313218, pp. 8-9.)

Mallet appealed. We reversed the order denying the 

petition and remanded the matter for a new evidentiary hearing. 

We explained in our opinion that shortly after the evidentiary 

10 In his argument at the evidentiary hearing, Mallet 

referenced the factual summary in the district attorney’s 

responses to the petition. He did not object when the trial court 

asked the parties if they had any objection to the court receiving 

and considering the opinion in the direct appeal. (Mallet II, 

supra, B313218, pp. 8-9.)
11

hearing, the Legislature amended former section 1170.95, 

subdivision (d)(3) to prohibit a trial court from relying on a 

factual summary in an appellate opinion to determine a 

petitioner’s eligibility for resentencing. (Sen. Bill No. 775 (2021-

2022 Reg. Sess.) Stats. 2021, ch. 551, § 2.) The trial court’s 

decision denying the petition rested on evidence made 

inadmissible by statute, and there was no evidence in the 

appellate record on which we could conclude the error was 

harmless. (Mallet II, supra, B313218, pp. 2, 10-15.)

III. Second Evidentiary Hearing

Upon remand, the district attorney filed a third response to 

Mallet’s petition for rehearing, which included a summary of the 

circumstances of the crimes with citations to the reporter’s 

transcripts from Mallet’s trial. Mallet did not file further 

briefing.

The trial court held the second evidentiary hearing on 

February 3, 2023. In advance of the hearing, the court reviewed 

and considered the reporter’s transcripts from Mallet’s trial, 

which it received on a disc. The court stated at the hearing that 

it would base its decision on those trial transcripts. After the 

parties presented their arguments, the court denied the petition 

for resentencing, finding Mallet was a major participant in the 

felonies, and he acted with reckless indifference to human life. 

The court provided a summary of the facts and circumstances of 

the crimes and then set forth its ruling on the record as follows, 

in pertinent part:

“It came out in the trial that Mr. Mallet was the only one 

who knew Michael of the group [of four suspects]. And why, none 

of us may never know, there may be theories, but why they 

decided to go there. Perhaps it was a beef with Michael. But 
12

regardless, Mr. Mallet and the others invaded the privacy of one’s 

home which is the sanctity of our privacy, our castle, so to speak. 

They intruded into that home for whatever their reasons were 

and there was guns involved. There was rapes involved, et 

cetera.

“If Mr. Mallet wasn’t a major participant, then I don’t know 

of any set of facts that could meet that criteria. He certainly was 

a major participant and it can be argued, was argued, that he 

was the ring leader in this and the fact that he was the only one 

that knew Michael and would have reason based on that 

association to be there for whatever his reasons were, making 

certain statements that were attributed to him and certain 

actions, pistol-whipping people, talking about blowing their heads 

off and attempting to rape a young woman who was in there, just 

the fact that he happened to be in that apartment at that time. 

So the court has no issues as to that. He certainly was a major 

participant.

“And for the same reasons he certainly did act with reckless

indifference to human life. That is all based on his conduct and 

the facts that came out in the trial. I don’t see any other way any 

reasonable person could look at this based on his conduct. . . .” 

DISCUSSION

I. Section 1172.6 and Standards Applicable to the 

Evidentiary Hearing

If a defendant files a facially sufficient petition for 

resentencing and makes a prima facie case for relief under 

section 1172.6, as in this case, the trial court must issue an order 

to show cause and “hold a hearing to determine whether to vacate 

the murder . . . conviction and to recall the sentence and 

resentence the petitioner on any remaining counts . . . .” 
13

(§ 1172.6, subd. (d)(1).) At the hearing, the burden of proof is “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 parties may rely 

on “evidence previously admitted at any prior hearing or trial 

that is admissible under current law,” and they “may also offer 

new or additional evidence to meet their respective burdens.” 

(Ibid.) “At the evidentiary hearing, the trial court acts as an 

independent fact finder.” (People v. Owens (2022) 78 Cal.App.5th 

1015, 1022.)

Section 189, subdivision (e), added by Senate Bill No. 1437, 

states: “A participant in the perpetration or attempted 

perpetration of a felony listed in subdivision (a) [including 

robbery and burglary] in which a death occurs is liable for 

murder only if one of the following is proven: [¶] (1) The person 

was the actual killer. [¶] (2) The person was not the actual 

killer, but, with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶] (3) The 

person was a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2.”

“We review the trial court’s factual findings for substantial 

evidence. [Citation.] ‘Our job on review is different from the trial 

judge’s job in deciding the petition. While the trial judge must 

review all the relevant evidence, evaluate and resolve 

contradictions, and make determinations as to credibility, all 

under the reasonable doubt standard, our job is to determine 

whether there is any substantial evidence, contradicted or 
14

uncontradicted, to support a rational fact finder’s findings beyond 

a reasonable doubt.’ [Citation.] We will not reverse unless there 

is no hypothesis upon which sufficient substantial evidence exists 

to support the trial court’s decision. [Citation.] We must 

‘presume in support of the judgment the existence of every fact 

the trier could reasonably deduce from the evidence.’ ” (People v. 

Guiffreda (2023) 87 Cal.App.5th 112, 125.)11

II. Case Law Defining Major Participant and Reckless 

Indifference to Human Life

A. Major participant

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

Supreme Court set out a series of considerations relevant to 

determining whether a particular defendant was a major 

participant in the underlying felony. These factors are as follows: 

“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 

11 Mallet argues the appropriate standard of review should 

be independent review because the judge who ruled on the 

petition did not preside over Mallet’s trial and decided this 

matter on a cold record (the trial transcripts) without live 

testimony. “[A]ppellate courts that have considered this 

argument have uniformly rejected it,” and we have no cause to 

revisit the issue. (See People v. Underwood (2024) 99 

Cal.App.5th 303, 313-314.)
15

particular role in the death? What did the defendant do after 

lethal force was used? No one of these considerations is 

necessary, nor is any one of them necessarily sufficient. All may 

be weighed in determining the ultimate question, whether the 

defendant’s participation ‘in criminal activities known to carry a 

grave risk of death’ [citation] was sufficiently significant to be 

considered ‘major.’ ” (Id. at p. 803, fn. omitted.) The court noted 

that “participation in an armed robbery, without more, does not 

involve ‘engaging in criminal activities known to carry a grave 

risk of death.’ ” (Id. at p. 805.)

The defendant in Banks was a getaway driver in an armed 

robbery of a marijuana dispensary. (Banks, supra, 61 Cal.4th 

at pp. 804-805.) The court held there was insufficient evidence 

that he was a major participant in the robbery, noting that he 

was not present at the scene when a cohort shot and killed a 

guard at the dispensary; rather, he was sitting in a car three 

blocks away. (Id. at p. 805.) Thus, “There was no evidence he 

saw or heard the shooting, that he could have seen or heard the 

shooting, or that he had any immediate role in instigating it or 

could have prevented it.” (Ibid.) In addition, there was no 

evidence that he procured the weapons or that his confederates 

had a history of committing murder or other violent crimes. 

(Ibid.)

B. Reckless indifference to human life

“Reckless indifference to human life is ‘implicit in 

knowingly engaging in criminal activities known to carry a grave 

risk of death.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676.) It 

“has a subjective and an objective element. [Citation.] As to the 

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

willingly involved in the violent manner in which the particular 
16

offense is committed,’ and he or she must consciously disregard 

‘the significant risk of death his or her actions create.’

[Citations.] As to the objective element, ‘ “[t]he risk [of death] 

must be of such a nature and degree that, considering the nature 

and purpose of the actor’s conduct and the circumstances known 

to him [or her], its disregard involves a gross deviation from the 

standard of conduct that a law-abiding person would observe in 

the actor’s situation.” ’ [Citation.] ‘Awareness of no more than 

the foreseeable risk of death inherent in any [violent felony] is 

insufficient’ to establish reckless indifference to human life; ‘only 

knowingly creating a “grave risk of death” ’ satisfies the statutory 

requirement. [Citation.] Notably, ‘the fact a participant [or 

planner of] an armed robbery could anticipate lethal force might 

be used’ is not sufficient to establish reckless indifference to 

human life.” (Id. at p. 677.)

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

Supreme Court established a list of factors useful to determining 

whether a defendant acted with reckless indifference to human 

life. Because the issue of reckless indifference to human life 

overlaps significantly with major participation in the underlying 

felony, the relevant factors are similar to those stated in Banks. 

(See id. at pp. 614-615.) The factors identified in Clark are: (1) 

The defendant’s knowledge of weapons, the number of weapons 

used, and the defendant’s own use of weapons; (2) the defendant’s 

physical presence at the crime and opportunities to restrain the 

crime and/or aid the victim; (3) the duration of the felony; (4) the 

defendant’s knowledge that his cohort was likely to kill; and (5) 

whether the defendant made efforts to minimize the risk of 

violence during the felony. (Id. at pp. 618-622.) Just as in Banks, 

the court in Clark clarified that these considerations are not 
17

exhaustive, sufficient, nor necessary to establishing whether the 

defendant’s conduct met the standard for the special 

circumstance. (Id. at p. 618.) Knowledge that a confederate has 

a gun and that armed robberies carry a risk of death, without 

more, is not sufficient to show reckless indifference to human life. 

(Id. at pp. 617-618.)

The court in Clark applied these factors and concluded 

there was insufficient evidence to show the defendant acted with 

reckless indifference to human life. (Clark, supra, 63 Cal.4th at 

p. 623.) The defendant was the principal planner of a robbery 

of a CompUSA store. The plan was to wait until the store was 

closed, then handcuff the staff in the store’s bathroom and load 

store merchandise into a U-Haul van. (Id. at p. 620.) The mother 

of a store employee came into the store looking for her son, 

surprising one of the defendant’s confederates, who shot 

and killed her. (Id. at p. 537.) Several factors contributed to the 

court’s conclusion that the defendant did not act with reckless 

indifference to human life. Most notably, the defendant was 

not present at the time of the shooting, and he had planned the 

robbery in a way that would minimize the risk of violence. He 

scheduled the robbery after the store closed, when fewer people 

were likely to be present, and expected the group to use only one 

gun, which was loaded with only a single bullet. (Id. at pp. 621-

622.) “[N]o evidence was presented at trial that [the shooter] was 

known to have a propensity for violence, let alone evidence 

indicating that defendant was aware of such a propensity.” (Id.

at p. 621.) The court noted a “defendant’s willingness to engage 

in an armed robbery with individuals known to him to use lethal 

force may give rise to the inference that the defendant 

disregarded a ‘grave risk of death.’ ” (Ibid.)
18

III. The Trial Court’s Factual Findings on the Petition 

Are Not Contrary to the Jury’s Factual 

Findings/Verdicts at Mallet’s Trial

Before reviewing the sufficiency of the evidence supporting 

the trial court’s decision, we address and reject Mallet’s 

contention that the trial court committed reversible error by

making a “factual determination crucial to its decision” that is 

contrary to a “finding” made by Mallet’s jury and not supported 

by substantial evidence.

12

The purported erroneous factual determination to which 

Mallet refers is “that Mallet was the only person among the four 

suspects who knew Michael Taylor.” Mallet argues this factual 

determination “was crucial to [the trial court’s] holding that 

Mallet was the ringleader so [he] was necessarily a major 

participant who acted with reckless indifference to human life.”

Mallet asserts there is evidence supporting the theory that 

other suspects knew Michael “and that the killing was the result 

of a personal vendetta held by one of the suspects other than 

Mallet and was independent of the robbery.” Mallet references 

the following evidence: According to Mary, Michael indicated he 

knew one of the other suspects who was inside the apartment

(identified at trial as suspect No. 2). Birdsong testified that 

suspect No. 2 whispered to him, “ ‘You have been invited to your 

friend’s death.’ ” Birdsong also indicated in his testimony that 

the suspect who waited outside on the porch (identified at trial as 

suspect No. 4) agreed with Michael when Michael said the man 

12 The Attorney General argues Mallet forfeited this 

contention by failing to raise it below. We disagree. Mallet 

raised his concerns related to this contention with the trial court 

at the second evidentiary hearing.
19

knew him from the park. Birdsong heard a man, who could have 

been suspect No. 4, say to Michael before the gunshot, “ ‘We don’t 

like you anyway’ ” or “ ‘I don’t like you anyway.’ ”

According to Mallet, the trial record “reveals” the jury 

shared this “interpretation of the evidence that Michael’s murder 

was the result of a personal vendetta, separate and independent 

from the robbery, and unknown to Mallet.” (Fn. omitted.) He 

references the following question the jury posed to the trial court: 

“If one of the robbers killed for a personal reason and others did 

not know this was likely to occur, are all guilty of first degree 

murder?”13 The trial court responded by rereading one of the jury 

instructions on first degree felony murder.

There was no jury finding at Mallet’s trial that is contrary 

to the trial court’s decision here. The jury’s verdicts, including 

the finding that Mallet did not inflict great bodily injury on 

Michael during the robbery, and the not-true finding on the 

felony murder special circumstance (which, at that time, would 

have required the jury to find Mallet was the actual killer or 

intentionally aided and abetted in first degree murder), are not 

inconsistent with the trial court’s current findings that Mallet 

was a major participant in the felonies who acted with reckless 

indifference to human life. (Cf. People v. Henley (2022) 85 

Cal.App.5th 1003, [on a section 1172.6 petition, the court’s 

finding that the defendant personally used a firearm during the 

robbery was inconsistent with the jury’s not-true finding on the 

personal use firearm enhancement, which was based on the same 

evidentiary record].) The jury’s question is not a factual finding

on which Mallet may rely. It is pure speculation to assume the 

13 As set forth above, Mallet was tried alone.
20

jury would have made factual findings that Mallet was not a 

major participant in the felonies, and he did not act with reckless 

indifference to human life, if the jury had been asked to reach

these issues.

IV. Substantial Evidence Supports the Trial Court’s 

Findings That Mallet Was a Major Participant in the 

Felonies Who Acted With Reckless Indifference to 

Human Life

Mallet contends there is no substantial evidence supporting

the trial court’s decision, and the insufficient evidence of felony 

murder violated his due process rights under the Fourteenth 

Amendment to the United States Constitution and article I, 

section 15 of the California Constitution. 

Upholding the trial court’s decision is not dependent upon 

whether there is substantial evidence showing that Mallet was 

the only suspect who knew Michael or that Mallet was the 

ringleader, as Mallet suggests. Here, we are reviewing the 

sufficiency of the evidence supporting the court’s findings that 

Mallet was a major participant in the felonies and that he acted 

with reckless indifference to human life. 

Substantial evidence in the record demonstrates the 

following, in pertinent part: Mallet pulled out a gun when a 

scuffle between the suspects and victims ensued. He pointed a 

gun at the victims, demanded money, and ordered them to lie 

face down on the bed. He watched over them with the gun as his 

accomplices ransacked the apartment. He threatened to shoot 

and kill the victims if they did not turn over money. He struck 

Mary in the head with the gun and assaulted her with the intent 

to rape her. The suspects demanded additional money from 
21

Michael just before he was shot. The ordeal lasted 30 to 45 

minutes. 

This substantial evidence supports the trial court’s finding 

that Mallet was a major participant in the felonies. He was the 

only suspect the victims saw with a gun. He used the gun to 

subdue the victims. He threatened to kill the victims if the 

suspects did not receive the money they were after (and the 

record indicates the suspects were not satisfied with what they 

received). And he perpetrated violence against Mary. 

Substantial evidence demonstrates he participated “ ‘in criminal 

activities known to carry a grave risk of death,’ ” and his 

participation “was sufficiently significant to be considered ‘major.’ 

” (See Banks, supra, 61 Cal.4th at p. 803.) There is no 

requirement that he be the “ringleader” in order to be found a 

major participant.

The substantial evidence set forth above also supports the 

finding that Mallet acted with reckless indifference to human life. 

He did more than participate in a garden-variety armed robbery. 

He, himself, greatly increased the level of violence inherent in a 

garden-variety armed robbery. He threatened to shoot the 

victims, he pistol-whipped Mary, and he assaulted Mary with the 

intent to rape her. He terrorized a family in their home for 30 to 

45 minutes. He was certainly aware that a death might result if 

the victims did not turn over sufficient money, as he was one of 

the suspects who made that threat.

In challenging the findings that he was a major participant 

who acted with reckless indifference to human life, Mallet 

repeats his theory that “the jury concluded Michael’s death was 

not connected to the robbery,” a theory not proven in the trial 

record, as discussed above. He argues that certain factors listed 
22

in Banks and Clark are not shown here (e.g., he argues there is 

no evidence he was still in the apartment when Michael was 

shot), but the findings are not dependent upon the presence of 

every factor. (See Banks, supra, 61 Cal.4th at p. 803 [“No one of 

these considerations is necessary, nor is any one of them 

necessarily sufficient”]; Clark, supra, 63 Cal.4th at p. 618

[same].) And he construes the evidence in a light most favorable 

to himself, in contravention of the standard of review.

Finally, Mallet argues his youth is a relevant consideration 

that “bears significantly on his subjective ability to appreciate the 

dangers associated with armed robbery.” He was 19 years old 

when he committed the crimes. We note that he also made this 

argument in the trial court. As set forth above, substantial 

evidence demonstrates Mallet subjectively appreciated the 

dangers associated with armed robbery. He held the victims at 

gunpoint, he threatened to shoot them if the robbery was not 

lucrative, and he pistol-whipped Mary. Substantial evidence 

shows he was aware of and consciously disregarded the 

significant risk of death his actions created.

Because substantial evidence supports the trial court’s 

decision, we need not address further Mallet’s constitutional 

claim regarding insufficiency of the evidence.
23

DISPOSITION

The February 3, 2023 order denying the petition for 

resentencing is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.