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

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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.

 B300984

 (Los Angeles County

 Super. Ct. No. A625636)

APPEAL from an 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, Senior 

Assistant Attorney General, Charles S. Lee and Chung L. Mar, 

Deputy Attorneys 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 He contends that the court erred in failing to issue an 

order to show cause under 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 relief. 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 shooting death of Basil Calvert. The 

jury found Harris was a principal in the offense and was armed 

with a firearm within the meaning of section 12022, 

subdivision (a). At sentencing the trial court observed as a 

1 Statutory 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 We Affirm

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 in 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 eyeglasses 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 

Lawrence Bradley had seen defendant Harris, who had said that 
4

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 

boyfriend.” (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.’ The deaf man was 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 victim. 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.App.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 visiting a girlfriend on Colden 

and defendant 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 Harris 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 he 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 Harris 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 twice with what sounded like a 

.25 caliber gun; 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 testify. 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 detective 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 wouldn’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 tape-recorded a conversation between defendant 
6

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 Thomas 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 January 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 sections 188 and 189. Finding Harris 

“demonstrated a prima facie case that he qualifies for resentencing” under section 1170.95, the superior court appointed 

counsel.

The People filed two briefs 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 to human life.” The latter brief, citing section 
7

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. The 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 several times, ultimately to 

August 20, 2019. In the meantime, counsel for Harris filed three

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; and 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 were 

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 that 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 might 

have been mistaken in testifying they saw Harris punch Calvert 

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. (The 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 malice 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.5th 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 murder because 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 murder and is eligible for relief (§ 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 showing 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 petitioner may file and 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 steps, “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 whether 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 1043, 1054, review granted 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, 118 [section 

1170.95, subdivision (c), has only one prima facie review before 

the court issues an order to show 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 requests 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 

ineligible 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.5th 666, 674, review granted 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 Harmless

Harris contends that the superior court erred in not issuing

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 that the superior court erred in 

failing to issue an order to show cause, but argue that the error 
11

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 agree 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 

determined 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 proved beyond a reasonable doubt Harris was not eligible 

for resentencing.

2 Prior to holding that 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 states “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 

points 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 silent. 

(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 evidence 
12

court should have conducted the more nuanced, two-step prima 

facie review described in Verdugo, supra, 44 Cal.App.5th 320, 

review granted, and issued an order to show cause. Its 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 prejudiced him in any 

way. The court found Harris made the prima facie case required 

by section 1170.95, subdivision (c), and—after appointing counsel 

and receiving briefing in compliance with subdivision (c)—held a

hearing on the petition that complied with subdivision (d), in 

particular with its provisions 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 procedural 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 structural 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 ineligible 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 was 

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 introduced and relied on that 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 an 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 directions for the superior court to issue an order 

to show cause and hold a hearing under section 1170.95, 

subdivision (d). (Drayton, at pp. 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 equally unavailing. 

(See id. at pp. 960-961 [reversing an order denying a petition 

under section 1170.95 because an evidentiary hearing was 

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 under section 

1170.95, subdivision (c), constituted ineffective assistance. To 

establish ineffective assistance of counsel, “‘“a defendant must 

show that (1) counsel’s representation fell below an objective 

standard of reasonableness under prevailing 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 determined 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 easier 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, he 
15

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 unclear. 

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.5th 896, 908, review granted Dec. 9, 

2020, S265254; People v. Lopez (2019) 38 Cal.App.5th 1087, 

1114-1115, review granted Nov. 13, 2019, S258175.) Once the 

petitioner makes a prima facie showing under section 1170.95, 

subdivision (c), he or she has a right to court-appointed counsel 

(see Verdugo, 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 (see 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 in People v. 

Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 

2020, S264278, “having a constitutional 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 ‘there is no constitutional right to the 

effective assistance of counsel’ 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 indifference 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 actual killer cannot be 

convicted of felony murder 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 

life, as described in subdivision (d) of Section 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 Banks, supra, 61 Cal.4th 

788 and Clark, supra, 63 Cal.4th 522 clarified “[t]he factors 

properly considered in assessing such a felony-murder specialcircumstance finding.” (Harris, at p. 954.) 

“In Banks the Supreme Court identified factors courts 

should consider in determining whether a defendant was a ‘major 

participant’ under 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 the 
17

killing, in a position to facilitate or prevent the actual murder, 

and did his or her own actions or inaction play a particular role in 

the death? What did the defendant do after lethal force was 

used?’” (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.’”’ [Citation.] 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.] As 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 

considerations 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 defendant 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.] Specifically 

with respect to the facts before it, the Clark court emphasized, 

‘[W]hile the fact that a robbery involves a gun is a factor beyond 

the bare statutory requirements for first degree robbery felony 
18

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

presented, 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 had 

awareness their confederates were armed and armed robberies 

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 factual findings under 

section 1170.95, subdivision (d), for substantial evidence. (People 

v. Gregerson (2021) 202 Cal.App.4th 306, 320, review granted 

Apr. 28, 2021, S267624; Rodriguez, supra, 58 Cal.App.5th at 

p. 238, review granted; People 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 would 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 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 uncontradicted, to support a 

rational fact finder’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 who 
19

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 reasonably that Mr. Harris 

was not a major participant in the crime.” Indeed. The record 

amply supports that Harris planned the robbery, chose the 

victim, physically took the property from the victim, punched the 

victim, and was present on the scene when Thomas 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. The 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.’” (Clark, supra, 63 Cal.4th at p. 615; see ibid. [“‘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, the extent of Harris’s participation in the crime 

here was extremely high. 

And evidence relevant to several individual factors further

supported 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 

defendant’s presence gives him an opportunity to act as a 

restraining influence on murderous cohorts. If the defendant 
20

fails to act as a restraining influence, then the defendant is 

arguably more at fault for the resulting murders.’” (Ibid.) Harris 

was physically 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 Calvert was 

confronted, the shooting happened almost immediately” and “was 

a ‘somewhat impulsive’ response by Thomas.” He 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 about—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 planned. 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 who 
21

were not wielding guns themselves and also not present for the 

shooting (either because they were acting as getaway drivers 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 standard 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, Harris 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 moments 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 objections 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, his 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 previously 

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 as 
22

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

(Harris, supra, 60 Cal.App.5th at pp. 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 relief 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 documents. Nor have we.