Filed 5/13/21 P. v. Harris CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE HARRIS,

Defendant and Appellant. B 300984

(Los Angeles County Super. Ct. No. A625636 )

APPEAL from a n order of the Superior Court of Los Angeles County, Laura R. Walton

, Judge. Affirmed

. Patricia J. Ulibarri , under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , S enior
Assistant Attorney General, Charles S. Lee and Chung L. Mar

, Deputy Attorn ey s General, for Plaintiff and Respondent

.

_____________________________2 INTRODUCTION

Willie Harris appeals from the superior court’s order denying his petition for resentencing under Penal Code section

1170.95. 1 H e contends that the court erred in failing to issue an
order to show cause und er section 1170.95, subdivision (c)

, that his counsel’s failure to request one constituted ineffective
assistance , and that substantial evidence did not support the superior court’s finding he was ineligible for r elief. We conclude the court’s error in not issuing an order to show cause under section 1170.95, subdivision (c)

, was harmless because the court nevertheless held an evidentiary hearing

, as prescribed by section 1170.95, subdivision (d) , where it found beyond a reasonable doubt Harris was ineligible for relief. Consequently

, Harris has not demonstrated the requisite prejudice for an
ineffective assistance of counsel claim . We also conclude substantial evidence supported the superior court’s finding
Harris was ineligible for relief because he was a major participant who acted with reckless indifference to human life

. Therefore

, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Harris of First Degree Murder
In 1983 a jury convicted Harris and a codefendant, Jean
Pierre Thomas, of first degree murder in connection with the (uncharged) robbery and s hooting death of Basil Calvert. The jury found Harris was a principal in the offense and was armed
with a firearm within the meanin g of section 12022,
subdivision (a). At sentencing the trial court observed as a

1 S tatutory references are to the Penal Code.3

mitigating factor that Harris “was not the trigger man,” then
sentenced him to a prison term of 25 years to life on the murder
conviction , plus one year for the firearm enhancement.

B. Harris Appeals, and W e Affir m In People v. Harris (1985) 175 Cal.App.3d 944 ( Harris I ) we affirmed Harris’s conviction and sentence . In our opinion we described the facts of the shooting : “On the evening of April 6, 1983, Ms. Mary Jackson was driving

. . . eastbound toward her
home at approximately 744 Colden when she heard two shots. She proceeded i n the same direction and within a minute saw two men running westbound and therefore facing her. These two men were the defendants, both of whom she had seen before. She
had seen ‘ Boo, ’ defendant Harris, around the neighborhood too many times to count. She knew defendant Thomas as ‘ Powerful
Pierre ’ and had seen him on prior occasions also.” ( Id. at

pp. 947

- 948.)

“ Ms. Jackson had also known Basil Calvert, known as Deaf John, for approximately six months. He was deaf, but he could speak and read lips. Just after the shooting, she saw him stepping away from an apartment building and out into the

street. He was staggering and fell face down. When Ms. Jackson got to the victim, he appeared to be alive, but he closed his eyes
and died. Both his eyeglasse s and his hearing aid were missing. ” ( Harris I

, supra , 175 Cal.App.3d at p. 948.)

“ When Ms. Jackson had first seen the defendants, they were two yards from the victim’ s position, already in full stride running. Defendant Harris had a gun. Three or four men standing in the area next to a building did not run away.” ( Harris I

, supra , 175 Cal.App .3d at p. 948.)
“Earlier that evening between 7:30 and 8 p.m. 19

- year

- old
L awrence Bradley had seen defendant Harris, who had said that4

he was ‘going to do a jack.’ That meant that he was going to rob people. At about 8 p.m., defendant Thomas came to Delitha Crain’s house looking for defendant Harris, who was Ms. Crain’s boyfri end.” ( Harris I

, supra , 175 Cal.App.3d at p. 948.)

“ Later that night Mr. Bradley saw defendant Harris with someone else on Colden, a great distance away. As Mr. Bradley was walking down the street, defendant Harris asked whether he
knew a ‘deaf man.’ Th e deaf man w as coming up some stairs as
Mr. Bradley walked past him. Defendant Harris then ‘socked’ the man, whose glasses flew off, and he fell. The deaf man tried to say something when Mr. Bradley heard two shots and saw
defendant Harris shoot the vict im. Mr. Bradley ran, and then the police arrived. Mr. Bradley did not see the man with defendant Harris do anything.” ( Harris I

, supra , 175 Cal.A pp.3d at p. 948.)

“ At the time of trial Robert Stringer, also known as

‘ Monster, ’ refused to answer most of the questions put to him

. Thereafter Mr. Stringer was impeached with a prior statement made to Detective Eide on April 27, 1983, in which he indicated that he had known Boo for about 10 years; that on the night Deaf
John was killed Mr. Stringer was visiti ng a girlfriend on Colden
and defe ndant Harris arrived there at 7 o ’ clock; that he observed Deaf John by the front of the parking lot when defendant Harris went up to him and they started talking in sign language; that he
saw Deaf John hand defendant Harri s some money; and that defendant Harris stepped back a couple of steps and shot the
victim. ” ( Harris I

, supra , 175 Cal.App.3d at pp. 948

- 949.)

“ Robert Stringer further stated to the detective that the next day defendant Harris came by the house and said that h e had shot the victim; that Mr. Stringer told him it was stupid because there were so many people who saw it; and that defendant Harris indicated that he did not care as long as ‘ nobody snitched. ’5

Mr. Stringer also commented that defendant Harr is had a

.25 caliber automatic for a year. ” ( Id. at p. 949.)

“ On April 28, 1983, Detective Eide had a conversation with Robert Stringer at his house, at which time he stated that he saw the victim in front of 744 West Colden and saw both defendants

go up to him; that the victim talked in sign language and gave defendant Thomas some money; that at this point defendant
Harris ‘ socked Deaf John ’ and the victim staggered back; that
defendant Thomas shot the victim twi ce with what sounded like a

.25 caliber gu n; and that both defendants had guns

. ” ( Harris I

, supra , 175 Cal.App.3d at p. 950.) “ Mr. Stringer further stated he knew that both defendants were with the 107th Hoover Crips, a local gang, and that is why he lied about what he saw. He was
afraid to tes tify. He did not want their friends coming around after him and his family. He said that he was telling the truth because his brothers and family had told him to tell the truth and
not to be afraid. In subsequent conversations Mr. Stringer told
the dete ctive that he was afraid to testify because defendants would shoot up his mother ’ s house if he did. ” ( Ibid. ) “Sometime after the shooting, Delitha Crain returned to
her house. Both defendants approached her, and she said that a man got killed on Colden. Defendant Harris said to defendant Thomas, ‘“A man got killed on Colden. A man got killed.”’ Defendant Thomas said, ‘“So,”’ and laughed. She said, ‘“That
ain ’ t funny. You wo uldn ’ t be laughing if you go to jail.”’ Then
defendant Harris told her that defendant Thomas shot the
victim.” ( Harris I

, supra , 175 Cal.App.3d at p. 950.)

“ After defendant Harris was taken into custody, he stated to Detective Monica Rhodes of the Los Angeles Police that he knew who had shot the victim and would make a telephone call to prove it. Thereafter Detective Rhodes and Detective Eide
overheard and ta pe

- recorded a conversation between defendant6

Harris and defendant Thomas at which time defendant Harris said, ‘“They got me down for that man. I talked to the detectives. Hey, man, check this out. How many times you shoot that nigger?”’ Defendant Thoma s replied, ‘“I think once. I don’t know.
I don’ t know. I ain’t talking on the phone. ” ’ Defendant Harris then said, ‘“This guy named Pookie say you went and shot the
deaf man. He said I had a Roscoe and shot that man. ”’ Defendant Thomas stated, ‘“ You know you didn’ t do it.”’ He further stated that he would ‘try to get these niggers not to snitch and take care of things on the street.’” ( Harris I

, supra , 175 Cal.App.3d at p. 950.)

“ On April 27, Tommie Delores Harris, defendant Harris ’ mother, had a conversation with defendant Thomas at her home. She asked defendant Thomas whether he shot the deaf man, and he said, ‘“ Yes. ”’” ( Harris I

, supra , 175 Cal.App.3d at p. 950.)

C. The Superior Court Denies Harris’s Petition Under
Section 1170.95
In Januar y 2019 Harris filed a petition for resentencing under section 1170.95, indicating that at trial he was convicted of first degree murder under the felony murder rule and that he could not now be convicted because of changes , effective January 1, 2019, to se ctions 188 and 189. Finding Harris

“ demonstrated a prima facie case that he qualifie s for re

sentencing ” under section 1170.95, the superior court appointed
counsel.
T he People filed two brief s opposing Harris’s petition , one arguing section 1170.95 was unconstitutional (a contention the People have abandoned) , the other arguing Harris did not, in any event, qualify for relief because , in particular, “he was a major participant in the robbery [of Calvert] and acted with reckless
indifference t o human life.” The latter brief, citing section7

1170.95, subdivision (d), acknowledged that “the People must

prove [Harris’s] ineligibility beyond a reasonable doubt ,” and to establish Harris was a major participant who acted with reckless
indifference to human life, the People’s brief applied factors the Supreme Court identified as relevant in People v. Banks (2015)

61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark )

. Three exhibits accompanied the brief : (1) this court’s opinion in Harris I

, supra , 175 Cal.App.3d 944

, (2) Harris’s opening brief in his direct appeal, and (3) the stipulated testimony of Detective Rhodes and the reporter’s transcript of Harris’s preliminary hearing in August 1983. Harris, through counsel, filed two briefs in reply, one addressing the statute’s constitutionality

, the other arguing the People had “not established proof beyond a reasonable doubt that [ Harris ] acted with reckless disregard or indifference for life”
under Banks

, Clark , and other cases. T he People filed two more briefs, again arguing that section 1170.95 was unconstitutional
and that Harris was factually ineligible for relief. On May 1, 2019 the superior court held a hearing on the petition, which the court continued seve ral times, u ltimately to August 20, 2019. In the meantime, counsel for Harris filed t hree
exhibits in support of the petition : the transcript of Harris’s sentencing hearing ; excerpts from the trial testimony of Robert Stringer, Detective Rhodes, and Detective Eide ; a nd the trial testimony of George Bolduc, a Deputy Medical Examiner in the Los Angeles County Coroner’s Office, who testified about his examination of Calvert’s body. Bolduc testified that, although he found “scrapes” around Calvert’s eyes and nose that we re consistent with falling and hitting pavement, he found no signs Calvert was punched in the face in the few minutes before he
died.8 The superior court began the August 20, 2019 hearing by stating it was holding “an 1170.95 hearing” because Harris had made a prima facie case he “was entitled to the hearing

. ” The

court stated: “It’s my understanding that, if the defendant makes the prima facie case, that he’s entitled to a hearing, then the burden then goes to the People to show the court th at he is not
entitled to be resentenced under 1170.95.” The People agreed and argued that, under the Banks and Clark factors

, Harris was a major participant in the crime who acted with reckless
indifference to human life. Counsel for Harris argued that “ the
reckless indifference is what’s

. . . most important in making the
decision whether or not, under the new law, Mr. Harris is guilty beyond a reasonable doubt of murder.” And on that point

, he cited Bolduc’s testimony to argue that other witnesses migh t have been mistaken in testifying they saw Harris punch Calver t just before the shooting

. The superior court found Harris was a major participant
who acted with reckless indifference to human life

, and on that
basis the court denied the petition

. ( Th e court found the
“constitutional issue

, ” therefore, was “moot.”) Harris timely appealed.

DISCUSSION

A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4), effective January 1, 2019, eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder ( People v. Gentile (2020) 10 Cal.5th 830, 842

- 843) and significantly limited the felony murder exception to the m alice requirement for murder. (See People v.9

Rodriguez (2020) 58 Cal.App.5th 227, 236 ( Rodriguez ), review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)

55 Cal.App.5t h 1077, 1080.) Senate Bill No. 1437 also authorized, through new section 1170. 95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the court to vacate the conviction and request resentencing on any remaining counts if he or she
could not have been convicted of mu rder bec ause of Senate Bill
No. 1437’s changes to the law. (See Gentile , at p. 843.) If a petition under section 1170.95 contains all the required information, including a declaration by the petitioner that he or
she was convicted of murde r and is eligible for r elief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a process for the court to determine whether to issue an order to show cause: “The court shall review the petition and determine if the petitioner has made a prima facie show ing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response

. . . and the petiti oner may file an d serve a reply

. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” We have explained that the superior court proceeds under section 1170.95, subdivision (c) in two s teps, “one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95

— that is, that the petitioner may be eligible for relief

— and a second after briefing by both sides to determine whe ther the petitioner has made a prima facie showing he or she is entitled to relief.” ( People v. Verdugo (2020) 44 Cal.App.5th 320, 328 ( Verdugo ), review granted Mar. 18, 2020, S260493; accord, People v. Soto (2020) 51 Cal.App.5th 1 043, 1054, review grante d Sept. 23, 2020,10

S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975; but

see People v. Cooper (2020) 54 Cal.App.5th 106, 11 8 [section 1170.95, subdivision (c), has only one prima facie review before
the court issues an order to s how cause], review granted Nov. 10, 2020, S264684.) If the court concludes the petitioner has failed to make the initial prima facie showing, the court need not appoint counsel. ( Verdugo , at pp. 332

- 333; but see Cooper , at p. 123 [ a petitioner is entitled to counsel upon filing a facially sufficient petition that requ ests counsel be appointed ].) If the court issues an order to show cause, it must hold a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts

. (§ 1170.95, subd. (d)(1); see Rodriguez

, supra , 58 Cal.App.5th at

p. 237, review granted .) At the hearing the prosecution has the burden of proving beyond a reasonable doubt the petitioner is
i neligible for resentencing. (§ 1170.95, subd. (d)(3); Rodriguez , at

p. 237.) The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence. (See Rodriguez , at

p. 237; People v. Tarkington (2020) 49 Cal.App.5th 892, 898

- 899, review granted Aug. 12, 2020, S263219; People v. Edwards (2020)

48 Cal.App.5t h 666, 674, review gran ted July 8, 2020, S262481.) “The record of conviction includes the reviewing court’s opinion.” ( People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020, S260598.)

B. The Superior Court’s Error in Not Issuing an Order
To Show Cause Was Harmles s Harris contends that the superior court erred in not issu ing

an order to show cause under section 1170.95, subdivision (c)

, and that we must therefore remand with directions for the court
to do so

. The People concede t hat the superior court erred in failing to issue an order to show cause, but argue that the error11

was harmless because the court held an evidentiary hearing as prescribed by section 1170.95 , subdivision (d)

, after which the court denied the petition

. We a gree with the People the court ’s

error was harmless. The superior court did not comply in every respect with the procedure prescribed by section 1170.95, subdivision (c). Having
determin ed Harris made a prima facie case he was “qualifie [ d ] ”
for resentencing under section 1170.95

, the court appointed
counsel for him , received briefing from the People and from
Harris

, and held an evidentiary hearing, as contemplated by section 1170.95, subdivision (d), where the court determined the People prove d b eyond a reasonable doubt Harris was not eligible
for resentencing

. 2 Prior to holding th at evidentiary hearing , the

2 Harris does not dispute the superior court applied the beyond

- a

- reasonable

- doubt standard of proof. In his reply brief, however, he s tates “it is not at all clear ” the court applied that standard consistent with our decision in Rodriguez

, supra , 58 Cal.App.5th 227, review granted (see id. at pp. 243

- 244 [ “it is the court’s responsibility to act as independent fact finder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 ”]) and poi nts to what he describes as “a silent record” on the issue. To the extent Harris is arguing the superior court did not apply the standard of proof consistent with Rodriguez , the argument lacks merit. First, we do not presume error where the record is sil ent

. (See People v. Torres (2020) 47 Cal.App.5th 984, 989 .) Second

, the record indicates the court applied the standard correctly. The court repeatedly stated it found Harris was a major participant who acted with reckless indifference to human life and at no time mentioned applying, for example, what we referred to (and rejected) in Rodriguez as “ essentially substantial evidence12

court should have conduct ed the more nuanced, two

- step prima
facie review described in Verdugo

, supra , 44 Cal.App.5th 320, review granted, and issue d an order to show cause. It s failure to
do so was error. We review such an error, however, for prejudice under the
standard of People v. Watson (1956) 46 Cal.2d 818

, 836, according
to which a defendant “ must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result.” ( People v. Lightsey (2012)

54 Cal.4th 668, 699; see ibid. [“[t]ypically, a defendant who has
established error under state law” must meet this standard]; People v. Daniel (2020) 57 Cal.App.5th 666, 676, review granted
Feb. 24, 2021, S266336.) 3 Harris has not shown the superior court’s failure to conduct its prima facie review in two steps or its
failure to issue an order to show cause prejudice d him in any

way. The court found Harris made the prima facie case required by section 1170.95, subdiv ision (c), and

— after appoint ing counsel
and receiv ing briefing in compliance with subdivision (c)

— held a hearing on the petition that complied with subdi vision (d), in particular with its provision s that the prosecution and petitioner may rely on new or additional evidence outside the record of

standard for appellate review.” ( Rodriguez , at p. 238; see id. at

p. 240.)

3 Harris does not argue the superior court’s pr ocedural errors violated his federal constitutional rights (see People v. Nicolas (2017) 8 Cal.App.5th 1165, 1179 [the “more stringent” test of “harmless beyond a reasonable doubt,” under Chapman v. California ( 1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]

, applies “in cases where federal constitutional errors are made”])
or were structur al errors not subject to harmless

- error analysis (see People v. Lightsey

, supra , 54 Cal.4th at p. 699)

.13

conviction and that the prosecution has the burden of proving beyond a reasonable doubt the petitioner is ineligi ble for relief. Attempting to characterize the August 20, 2019 hearing as the second step in the superior court’s prima facie review of his petition , Harris argues the court engaged in factfinding that is impermissible at that stage and deprived him of the opportunity to introduce evidence he was not a major participant who acted
with reckless indifference to human life. But the record belies Harris’s characterization of the hearing: The briefs of both parties in advance of the hearing

, the superior court’s comments
at the beginning of the hearing , and the nature of the argument
that followed show that everyone involved understood the court had completed its prima facie review of the petition and w as proceeding to hold an evidentiary hearing at which the People had the burden of proving beyond a reasonable doubt Harris was ineligible for resentencing. Nor has Harris identified any favorable evidence he was precluded from introducing. He cites
the trial testimony of Bolduc that examining Calvert’s body did not reveal any indication Calvert was punched, but counsel for
Harris introduce d and rel ied on th at evidence at the hearing.
Harris analogizes this case to People v. Drayton

, supra , 47 Cal.App.5th 965, but that case is readily distinguishable.
There

, the court reversed a n order summarily denying a section

1170.95 petition , concluding the superior court erred in finding
the petitioner did not make a prima facie case for relief, and
remanded with di rections for the superior court to issue an order to show cause and hold a hearing under section 1170.95, subdivision (d). ( Drayton , at p p

. 968 , 972, 981 .) Unlike the
defendant in Drayton , Harris was not denied the evidentiary hearing to which he was entitled under section 1170.95,
subdivision (d). For the same reason, Harris’s reliance on our
decision in People v. Harris (2021) 60 Cal.App.5th 939 ( Harris )

,14

review granted April 28, 2021, S267802 , is equal ly unavailing. (See id. at p p

. 960

- 961 [reversing an order denying a petition
under section 1170.95 because an evidentiary hearing wa s necessary to determine whether the petitioner was ineligible for
relief ].)

C. Harris Has Not Demonstrated He Received Ineffective
Assistance of Counsel Harris contends his appointed counsel’s failure to “ demand ” the superior court issue an order to show cause und er section 1170.95, subdivision (c), constituted ineffective assistanc e. To establish ineffective assistance of counsel, “‘ “a defendant must show that (1) counsel ’ s representation fell below an objective standard of reasonableness under prevail ing professional norms, and (2) counsel ’ s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel ’ s failings, the
result would have been more favorable to the defendant.”’” ( People v. Rices (2017) 4 Cal.5th 49, 80

. ) “If a claim of ineffective
assistance of counsel can be deter mined on the ground of lack of prejudice, a court need not decide whether counsel ’ s performance
was deficient.” ( In re Crew (2011) 52 Cal.4th 126, 150; see Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674] [“[i]f it is eas ier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed”]. ) As discussed, Harris has not shown he was prejudiced in any way by the superior court’s failure to issue a
formal order to show cause, and thus he has not shown he was prejudiced by his counsel’s failure to request one. Therefore

, he15

has not demonstrated he received ineffective assistance of
counsel. 4

D

. Substantial Evidence Supported the Superior Court’s Finding That Harris Was Ineligible for Relief Harris also contends substantial evidence did not support the superior court’s finding he was ineligible for relief under

4 Whether a petitioner has a constitutional right to effective assistance of counsel in section 1170.95 proceedings is un clear. Section 1170.95 “ is an act of lenity not subject to Sixth Amendment analysis .” ( People v. James ( Apr. 27, 2021 , A159207)

___ Cal.App.5th ___, ___ [ 2021 WL 1625015 , p. 1 ]; see People v. Perez (2020) 54 Cal.App.5t h 896, 908, review granted Dec. 9, 2020, S265254; People v. Lopez ( 2019) 38 Cal.App.5th 1087,
1114

- 1115, review gr anted Nov. 13, 2019, S258175.) O nce the petitioner makes a prima facie showing under section 1170.95, subdivision (c), he or she has a right to court

- appointed counsel (see V erdugo

, supra , 44 Cal.App.5th at p. 332, review granted; People v. Lewis, supra , 43 Cal.App.5th at p. 1140

, review granted ), a statutory right that may also be grounded in due

process (s ee In re Clark (1993) 5 Cal.4th 750, 779

- 780 [habeas corpus proceeding]; People v. Shipman (1965) 62 Cal.2d 226, 232 [coram nobis proceeding].) But as the court explained i n People v. Cole (2020) 52 Cal.App.5th 1023

, review granted October 14, 2020, S264278, “ having a constitu tional right to the appointment of counsel is not the same as having a constitutional right to the effective assistance of that counsel ,” and the “ Supreme Court has steadfastly held that ‘t here is no constitutional right to the effective assistance of coun sel’ in state postconviction proceedings

. ” ( Id. at p. 1032.) Because Harris has not shown his counsel provided ineffective assistance, we do not decide this issue.16

section 1170.95 because he was a major participant who acted
with reckless ind ifference to human life. His contention lacks
merit.

1. Applicable Law and Standard of Review
Senate Bill No. 1437 “amended the definition of felony murder in section 189. Under the new law, an accomplice to the underlying felony who was not the act ual killer cannot be convicted of felony mu rder unless he or she aided in the murder
with the intent to kill or [was] ‘a major participant in the underlying felony and acted with reckless indifference to human
li fe, as described in subdivision (d) of Secti on 190.2.’” ( People v.
Law (2020) 48 Cal.App.5th 811, 815, quoting § 189, subd. (e)(3), review granted July 8, 2020, S262490. ) The new law thus incorporates “the same requirements for proving the defendant
acted with reckless indifference to human life as a major participant in one of the identified serious felonies as necessary for a felony

- murder special

- circumstance finding under section 190.2, subdivision (d).” ( Harris

, supra , 60 Cal.App.5th at p. 954, review granted.) The Supreme Court in Ban ks

, supra , 61 Cal.4th
788 and Clark

, supra , 63 Cal.4th 522 clarified “[t]he factors properly considered in assessing such a felony

- murder special

circumstance finding .” ( Harris , at p. 954.)
“In Banks the Supreme Court identified factors courts
should co nsider in determining whether a defendant was a ‘major participant’ u nder section 190.2, subdivision (d): ‘What role did the defendant have in planning the criminal enterprise that led
to one or more deaths? What role did the 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 the17

killing, in a posi tion 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?’” ( Harris

, supra , 60 Cal.App.5th at pp. 954

- 955, review granted.)

“ In both Banks and Clark the Court explained that, to
determine whether the defendant acted with reckless indifference, courts must ‘ look to whether a defendant has

“‘ knowingly engag[ed] in criminal activities known to carry a grave risk of death. ’ ”’ [Citatio n.] Specifically, ‘ [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. ’ [Citation.] A s further refined in Clark

, ‘ reckless
indifference ’ ‘ encompasses both subjective and objective elements. The subjective element is the defendant ’ s conscious disregard of
risks known to him or her

. . . . [R]ecklessness is also determined by an objective standard, namely what “ a law

- abiding person
would observe in the actor ’ s situation. ” ’” ( Harris

, supra , 60 Cal.App.5th at p. 955 , review granted .) “The Supreme Court in Clark set out a series of
considerat ions relevant to determining whether a defendant had acted with reckless indifference to human life (with some obvious overlap with the major

- participant factors specified in Banks ). Among others, was the defendant aware that guns would be used;
did the d efendant himself or herself use a gun; did the defendant have an opportunity to reduce the overall risk of violence during the felony or to aid the victim; did the defendant know his or her cohorts were likely to use lethal force? [Citation.] Specificall y with respect to the facts before it, the Clark c ourt emphasized,

‘ [W]hile the fact that a robbery involves a gun is a factor beyond the bare statutory requirements for first degree robbery felony18

murder, this mere fact, on its own and with nothing more

p resented, is not sufficient to support a finding of reckless indifference to human life for the felony

- murder aider and abettor special circumstance. ’ ” ( Harris

, supra , 60 Cal.App.5th at p. 955

, review granted.) Thus, “‘felony murderers

. . . who simply h ad
awareness their confederates were armed and armed rob beries carried a risk of death[ ] lack the requisite reckless indifference to human life.’” ( Clark

, supra , 63 Cal.4th p. 618; accord, Banks

, supra , 61 Cal.4th at p. 809.)
We review the superior court’s fact ual finding s und er section 1170.95, subdivision (d), for substantial evidence. ( People v. Gregerson (20 2 1) 202 Cal.App.4th 306, 320 , review granted Apr

. 28, 2021, S267624 ; Rodriguez

, supra , 58 Cal.App.5th at

p. 238, review granted; Pe ople v. Bascomb

, supra , 55 Cal.App.5th
at p. 1087 .) “ We ‘ “ examine the entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence

— that is, evidence that is reasonable, credible, and of solid value that w ould support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ [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 evide nce, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a
rational fact find er ’ s findings beyond a reasonable doubt. ” ( People v. Clements (2021) 60 Cal.App.5th 597, 618 , review granted Apr. 28, 2021, S267624. )

2. Analysis Substantial evidence supported the superior court’s finding Harris was a major participant in the underlying felony who19

acted with reckless indifference to human life. First, there is little question he was a “major participant” in the robbery, an issue counsel for Harris effectively conceded at the evidentiary hearing : “I don’t think I can argue rea sonably that Mr. Harris was not a major participant in the crime .” Indeed

. T h e record amply supports that Harris planned the robbery, chose the victim, p hysically took the property from the victim, punched the victim, and was present on the scene when Th omas shot the victim. (See Banks

, supra , 61 Cal.4th at p. 803.) Second, substantial evidence concerning the relevant Banks
and Clark factors supported the superior court’s finding Harris
acted with reckless indifference to human life. T he major participant requirement “‘significantly overlap[s]’” the requirement of reckless indifference to human life, “‘for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.’” ( C lark

, supra , 63 Cal.4th at p. 615; see i bid. [“‘even in cases
where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding’”].)
As discussed, t he extent of Harris’s participation in the crime
here was extremely high

. And evidence relevant to several individual factors further
support ed a finding Harris was “‘ aware of and willingly involved in the violent manner in which the particular offense [was]
committed .’” ( Harris

, supra , 60 Cal.App.5th at p. 955 , review granted , quoting Banks

, supra , 61 Cal.4th at p. 801 .) The California Supreme Court in Clark observed that the United States Supreme Court has “stressed the importance of presence to culpability.” ( Clark

, supra , 63 Cal.4th at p. 619.) “ ‘ [T]he
de fendant’s presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant20

fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.’” ( Ibid. ) Harris was ph ysically present throughout the encounter that resulted in
Calvert’s death , and nothing suggests he did anything to restrain Thomas from shooting him.
Harris asserts he did not have an opportunity to restrain Thomas from shooting Calvert because, “once C alvert was confronted, the shooting happened almost immediately” and “was a ‘somewhat impulsive’ response by Thomas.” H e cites no evidence to support this assertion , however, and it is difficult to
believe Harris would not have had an opportunity to register an objection to Thomas’s shooting Calvert. But even if that were so,
Harris could have tended to Calvert after he was shot

— the man was still alive, staggering a bout

— but Harris instead ran away. A
defendant’s failure to render aid to a wounded victim while present at the scene shows reckless indifference to human life. (See Clark

, supra , 63 Cal.4th at p. 619.) Harris also brought a gun to the robbery he plann ed. And though he may not have used the gun

, it is eminently reasonable
to infer he brought it because he was willing to use it if the robbery required it

. (See Clark

, supra , 63 Cal.4th at p. 617 [“‘reckless indifference’

. . . 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”] .) That Harris was personally armed and physically present throughout the crime distinguishes him from felony

- murder defendants who lack the requisite reckless indifference to human life because they “‘simply had awareness
their confederates were armed and armed robberies carried a risk of death.’” ( Id. at p. 618; see People v. Bascomb

, supra , 55 Cal.App.5th at p. 1090 [“The defendants who have shown their culpability was too slight under Banks and Clark ‘are those who21

were not wielding guns themselves and also not present for the shooting (either because they were acting as getaway drive rs or because they were involved in the planning of the crime only).’”];
see also People v. Law

, supra , 48 Cal.App.5th at p. 825 [“we are not aware of a single case that concludes a defendant who personally committed a robbery, used a gun, and was present for the shooting did not meet the standar d in section 190.2,
subdivision (d)”], review granted.)
In addition

, substantial evidence supported the superior
court’s finding that, far from attempting to reduce the risk that the robbery would turn violent, Harr is escalated that risk by punching Calvert. Citing the trial testimony of the medical examiner, Bolduc, Harris argues that whether “Calvert was even punched is disputed,” But two eyewitnesses , Bradley and Stringer, testified Harris “socked” Calvert momen ts before
Thomas shot him . It is the superior court’s role to resolve contradictions in the evidence and make credibility determinations, and in that role the superior court here concluded Harris punched Calvert. Finally, Harris raises evidentiary objec tions he did not raise before the superior court and therefore has forfeited. (See People v. McKinnon (2011) 52 Cal.4th 610, 638 [ “ ‘ [A]s a general rule, “ the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal. ”’”].) Moreover, h is primary objection is that it was improper for the superior court to rely on the factual summary
from our opinion deciding Harris’s direct appeal because that summary was inadmissible hearsay . We have p reviously concluded such reliance is proper, holding that in proceedings under section 1170.95, as in other postconviction proceedings,

“ statements from prior appellate opinions are admissible as22

reliable hearsay even if they would not be admissible at trial .” ( Harris

, supra , 60 Cal.App.5th at p p

. 953

- 954 , review granted ;

see ibid. [ rejecting the argument that “factual statements in an appellate opinion are inadmissible hearsay and not properly considered in determining eligibility for rel ief under section 1170.95”]; Verdugo

, supra , 44 Cal.App.5th at p. 333 , review granted [same] ; see also People v. Clements

, supra , 60 Cal.App.5th at p. 612 [same].) 5

DISPOSITION

The superior court’s order denying Harris’s petition under
section 1170.95 is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER

, J.

5 Harris ’s other objections are that “any reliance on his opening brief [from his direct appeal] was improper” and that, “to the extent the court relied on Harris’s preliminary hearing, this was questionable.” These fail for the additional reason that Harris cites nothing in the record suggesting the superior court relied on these docu ments. Nor have we.