Filed 5/24/24 P. v. Graham CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

BORIS GEORGE GRAHAM,

Defendant and Appellant.

 B331633

 (Los Angeles County

 Super. Ct. No. LA046159)

APPEAL from an order of the Superior Court of 

Los Angeles County, Martin Larry Herscovitz, Judge. Affirmed.

Marilee Marshall, 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

MEMORANDUM OPINION1

Penal Code section 1172.62 authorizes a trial court to 

resentence a defendant who was convicted under a theory of 

felony murder if the prosecution fails to prove beyond a 

reasonable doubt that under current law, the defendant was a 

major participant in the underlying felony who acted with 

reckless indifference to human life. (See People v. Basler (2022) 

80 Cal.App.5th 46, 50–51, 54–56 & fn. 2 (Basler).) Here, the trial 

court found the prosecution discharged that burden. Because 

defendant Boris George Graham fails to show that substantial 

evidence does not support the order denying his petition, we 

affirm.

A. Procedural Background3

We summarize only those portions of the procedural history

relevant to this appeal. In our Discussion, post, we describe

additional facts relevant to resolving the issues before us.

1 We resolve this case by memorandum opinion because it 

“raise[s] no substantial issues of law or fact . . . . ” (Cal. Stds. 

Jud. Admin., § 8.1.)

2 Undesignated statutory citations are to the Penal Code. 

Prior to June 30, 2022, section 1172.6 was codified in

section 1170.95. (See Stats. 2022, ch. 58, §§ 10, 47 [Assem. Bill 

No. 200, which renumbered § 1170.95 as § 1172.6, and provided 

that the statute took effect immediately on June 30, 2022]; People 

v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3 [noting that Assem.

Bill No. 200 renumbered former § 1170.95 to § 1172.6 without 

any substantive change].) For the sake of clarity and consistency, 

we refer to the statute as section 1172.6.

3 In describing the procedural history and the evidence 

considered by the trial court in ruling on Graham’s petition for 
3

The People filed an information charging Graham with 

murder, in violation of section 187, subdivision (a) (count 1); 

kidnapping to commit robbery, in violation of section 209, 

subdivision (b)(1) (count 2); kidnapping to commit carjacking, in 

violation of section 209.5, subdivision (a) (count 3); first degree 

robbery, in violation of section 211 (count 4); first degree 

burglary, in violation of section 459 (count 5); carjacking in 

violation of section 215, subdivision (a) (count 6); and evading an 

officer causing death, in violation of Vehicle Code section 2800.3 

(count 7). Pursuant to section 190.2, subdivision (a)(17), the 

People averred as special circumstances that Graham committed 

the murder while he was engaged in the commission of robbery, 

carjacking, kidnapping, and burglary. Additionally, pursuant to 

section 12022, subdivision (a)(1), the People alleged that in the 

resentencing, we rely in part on admissions made by the parties 

in their appellate briefing, and on assertions made by the 

Attorney General that Graham does not contest in his reply brief. 

(See Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 

[“ ‘An express concession or assertion in a brief is frequently 

treated as an admission of a legal or factual point, controlling 

in the disposition of the case.’ ”]; Artal v. Allen (2003) 

111 Cal.App.4th 273, 275, fn. 2 [“ ‘[A] reviewing court may make 

use of statements [in briefs and argument] . . . as admissions 

against the party [advancing them].’ ”]; Reygoza v. Superior Court

(1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which 

the Court of Appeal assumed that an assertion made by 

respondent was correct because “defendant did not dispute 

respondent’s claim in his reply”]; Rudick v. State Bd. of 

Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the 

appellants made an implicit concession by “failing to respond in 

their reply brief to the [respondent’s] argument on th[at] point”].)
4

commission of the charged offenses, a principal was armed with a 

firearm. 

At Graham’s jury trial, there was evidence that in 

February 1999, Graham and Kirell Taylor brought Christopher 

Rawlings into his home in handcuffs and took several valuable

belongings; after Rawlings’s wife saw the two robbers push 

Rawlings down in the garage, she quietly retreated into the 

home, telephoned the police, gathered her two small children,

and hid on the rooftop of the home with the children; Graham 

and Taylor put Rawlings into the trunk of his automobile; Taylor 

sat in the driver’s seat and Graham sat in the front passenger 

seat; Taylor thereafter drove at high speeds to evade the police

while Rawlings was still in the trunk of the automobile; the 

vehicle crashed at the conclusion of the police chase, causing

Rawlings to be ejected from the trunk; Rawlings later died from 

blunt force trauma to his head; and Taylor and Graham fled the 

scene of the crash.4

The jury found Graham guilty on all seven counts, 

concluded the murder was in the first degree, and found true the 

principal armed with a firearm and special circumstance 

allegations. The trial court sentenced Graham to life 

imprisonment without the possibility of parole, doubled pursuant 

to the “Three Strikes” law, on count 1, plus a consecutive term of 

one year in prison for the firearm enhancement. The court

imposed but stayed sentences on the remaining counts pursuant 

4 Taylor was separately tried by a jury and convicted of 

Rawlings’s murder, kidnapping for robbery, kidnapping for 

carjacking, two counts of second degree robbery, first degree 

burglary, two counts of carjacking, and evading an officer causing 

death. 
5

to section 654. In August 2009, we issued an unpublished 

opinion affirming the judgment. 

In January 2022, counsel filed a section 1172.6

resentencing petition on Graham’s behalf. The trial court later 

concluded Graham had made a prima facie showing under the 

statute. At the evidentiary hearing held on June 8, 2023, the 

court admitted the trial record filed in Graham’s prior appeal, 

and Graham testified in support of his petition. The court found

Graham was a major participant who acted with reckless 

indifference to human life and denied the petition. Graham 

timely appealed the order denying his resentencing petition. 

B. Discussion

1. Standard of Review

In his opening brief, Graham acknowledges that “[f]actual 

determinations made below are entitled to great weight when 

supported by the record,” but cites an appellate decision 

regarding a habeas corpus petition for the proposition that “if the 

difference of opinion with the lower court is not based on the 

credibility of live testimony, such deference is inappropriate.”

(Citing In re Sodersten (2007) 146 Cal.App.4th 1163, 1223.) 

The Attorney General counters that the deferential 

substantial evidence standard governs our review of the trial 

court’s finding that Graham was a major participant who acted 

with reckless indifference to human life, regardless of the extent 

to which the court relied upon live witness testimony. Graham 

does not respond to this argument in his reply brief. Instead,

Graham maintains that “there is no substantial evidence that 

[he] acted with reckless indifference to human life.” (Boldface &

capitalization omitted.)
6

The Attorney General has identified the correct appellate 

standard. “[A] trial court’s decision denying a petition under 

section 1172.6 following an evidentiary hearing is predominantly 

a question of fact” that is reviewed for “substantial evidence.” 

(See People v. Underwood (2024) 99 Cal.App.5th 303, 314

(Underwood).) “Under this standard, we review the record ‘ “ ‘in 

the light most favorable to the judgment below to determine 

whether it discloses substantial evidence—that is, evidence 

which is reasonable, credible, and of solid value—such that a 

reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ ” ’ [Citations.]” (People v. Reyes (2023) 

14 Cal.5th 981, 988.) “ ‘If such substantial evidence be found, it 

is of no consequence that the trial court believing other evidence, 

or drawing other reasonable inferences, might have reached a 

contrary conclusion.’ [Citation.]” (People v. Ortiz (2012) 

208 Cal.App.4th 1354, 1363, italics omitted.) Under the 

substantial evidence standard, “we must begin with the 

presumption that the evidence . . . was sufficient” to support the 

trial court’s findings, “and the defendant bears the burden of 

convincing us otherwise.” (See People v. Sanghera (2006) 

139 Cal.App.4th 1567, 1573–1574 (Sanghera).)

Our sister Courts of Appeal “have uniformly rejected” the 

argument that in reviewing the denial of a section 1172.6 petition

following an evidentiary hearing, “we need not defer to the trial 

court’s factual findings” that “are based on a cold record, [instead 

of] live testimony and associated credibility determinations.” 

(See Underwood, supra, 99 Cal.App.5th at pp. 313–314 [collecting 

cases].) We follow our colleagues’ approach. (See The MEGA Life 

& Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 

1529 [“We, of course, are not bound by the decision of a sister 
7

Court of Appeal. [Citation.] . . . ‘[W]e respect stare decisis, 

however, which serves the important goals of stability in the law 

and predictability of decision. Thus, we ordinarily follow the 

decisions of other districts without good reason to disagree.’ ”].)

2. Graham Forfeited His Challenge to the Trial Court’s 

Finding That He Was a Major Participant

In Graham’s opening brief, he argues, “[T]he prosecution 

failed to prove beyond a reasonable doubt that [Graham] acted 

with reckless indifference to human life . . . .” Apart from a 

heading in which Graham asserts “the prosecution failed to prove 

beyond a reasonable doubt that [Graham] was a major 

participant who acted with reckless indifference to human life” 

(boldface & capitalization omitted, italics added), Graham 

does not argue in his opening brief that the People failed to show 

he was a major participant. 

In his reply brief, Graham states, “[Graham] has never 

argued that he was not a major participant in a robbery but only 

that he did not act with reckless indifference to life. [Graham] 

was not a major participant in the kidnap[p]ing or car jacking, 

which appeared to be unplanned, or at least unknown to 

[Graham] until it happened and [Graham], certainly, could not 

have foreseen the car chase and ultimate crash.” Graham 

does not support this new argument with any citation to the 

record or legal authority. 

Given Graham’s briefing, we conclude Graham has 

forfeited his challenge to the trial court’s finding that he was a 

major participant, which is an element of first degree felony 

murder. (See Basler, supra, 80 Cal.App.5th at p. 54, fn. 2 

[discussing the findings required for first degree felony murder];

People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [“ ‘[E]very 
8

brief should contain a legal argument with citation of authorities 

on the points made. If none is furnished on a particular point, 

the court may . . . pass it without consideration. [Citations.]’ 

[Citations.] This principle is especially true when an appellant 

makes a general assertion, unsupported by specific argument, 

regarding insufficiency of evidence.”]; People v. Flint (2018) 22 

Cal.App.5th 983, 1006, fn. 17 (Flint) [noting that an appellate 

court may “ ‘decline to consider any factual assertion 

unsupported by record citation at the point where it is 

asserted[,]’ ” and that “ ‘[a]n appellate court “will not develop the 

appellants’ arguments for them” ’ ”]; People v. Taylor (2004) 119 

Cal.App.4th 628, 642–643 (Taylor) [concluding that a defendant 

had forfeited a contention by raising it for the first time in a reply 

brief].)

3. Graham Fails To Demonstrate the Trial Court Erred 

In Finding He Acted With Reckless Indifference to 

Human Life

In concluding Graham acted with reckless indifference to 

human life, the trial court found that Graham “knew that guns 

were involved and the car was driving in excess of 100 miles an 

hour”; Graham “possessed and used a firearm” during the 

incident; and one could infer “there were two guns involved” from

Rawlings’s wife’s trial testimony that she saw two perpetrators 

standing over her husband. The court further indicated that 

Graham was near the victim when the killing occurred, and 

remarked that Graham “did have the opportunity to stop the 

killing, to slow down . . . Taylor, and . . . to assist [Rawlings] or at 

least check in on the status or condition of . . . the victim . . . .” 

The court also found the crime lasted “a relatively long period of 

time . . . consider[ing] the arrival at the house, waiting for . . . 
9

Rawlings to arrive home, . . . going through the house, [a] certain 

degree of ransacking, placing . . . Rawlings in the trunk, and the 

time of the pursuit.” The court acknowledged the record did not 

establish that Graham was aware that Taylor was “likely to kill.” 

Lastly, the court indicated it did not find credible Graham’s 

testimony that “he told . . . Taylor to slow down,” and the court 

opined that Graham could have prevented Rawlings’s death by

“wrestling the steering wheel from . . . Taylor” or applying the 

brake of the vehicle by “forcing [Graham’s] foot across the floor 

boards . . . .” The court thus followed the proper legal framework 

for its analysis.

5 

On appeal, Graham argues the trial court erred in rejecting 

his testimony that only one gun was involved in the robbery.

Graham also asserts, “The court inexplicably credited not what 

the witnesses said at [Graham’s] trial but prior statements . . . 

attributed to the witnesses [that were] introduce[d] for 

impeachment.” Next, Graham maintains that “Taylor was the 

planner of the event” and Graham “had no way of knowing . . . 

that the incident would turn into a carjacking/[]kidnapping in 

which the robbery victim was accidentally killed.” Additionally, 

5 (See People v. Clark (2016) 63 Cal.4th 522, 618–623 

(Clark) [holding that in determining whether a defendant acted 

with reckless indifference to human life, a court may consider 

(1) the defendant’s “knowledge of weapons, and [the] use and 

number of weapons” involved in the offenses; (2) the defendant’s 

“physical presence at the crime and opportunities to restrain the 

crime and/or aid the victim”; (3) “whether a murder came at the 

end of a prolonged period of restraint of the victim[ ] by [the] 

defendant”; (4) the “defendant’s knowledge of [his or her] cohort’s 

likelihood of killing”; and (5) the “defendant’s efforts to minimize 

the risks of . . . violence,” italics & capitalization omitted].) 
10

Graham contends the trial court’s suggestion that he “could have 

prevented the death by making Taylor slow down or simply 

grabbed the wheel of a car traveling 100 mph is not reasonable, 

as it would have been likely to ensure not prevent death.” “[A]s 

for helping Rawlings,” Graham contends (a) “the police were 

chasing them and would surely provide more competent 

assistance than [Graham] could have provided,” and (b) “the 

police were at the scene within seconds” of the crash. As 

explained below, Graham fails to establish error under the 

deferential substantial evidence standard of review.

6

Graham acknowledges the People introduced evidence at 

trial that Taylor had told police: (a) Taylor brought two guns to 

the robbery; (b) after Taylor took certain items of Rawlings’s 

property, Graham put Rawlings into the trunk of the vehicle; and 

(c) following the crash, Taylor and Graham fled the scene. 

Graham also acknowledges there was evidence he had admitted

to two witnesses that after he and Taylor committed a robbery, 

Graham and Taylor put the robbery victim into the trunk of a 

vehicle that later crashed during a police chase. Graham further

acknowledges his testimony at the evidentiary hearing 

indicating: (a) Graham participated in the robbery with Taylor; 

(b) Graham held a pistol during a brief period while Taylor 

handcuffed Rawlings; (c) after Taylor heard a call on his police 

scanner, Taylor and Graham got into Rawlings’s car, and Taylor 

drove the vehicle at a high speed in an attempt to evade the 

police; (d) Graham knew Rawlings had been forced into the trunk 

6 We decline to address Graham’s argument that his 

actions were not the proximate cause of Rawlings’s death because 

Graham raises that contention for the first time in his reply brief. 

(Taylor, supra, 119 Cal.App.4th at pp. 642–643.)
11

of the vehicle prior to the police chase; and (e) Graham fled the 

scene of the crash without checking on Rawlings’s condition.

Notwithstanding Graham’s arguments to the contrary, the 

trial court could have inferred from this evidence that Graham 

disregarded a grave risk that the high-speed police chase would 

result in Rawlings’s death.

7 (See Clark, supra, 63 Cal.4th at 

p. 621 [indicating that a defendant acts with reckless indifference 

to human life if he or she “disregard[s] a ‘grave risk of death’ ”].)

Furthermore, Graham’s argument that the court erred in relying 

on “prior statements . . . attributed to the witnesses introduce[d] 

for impeachment” fails because he offers no analysis or citation to 

authority to support it. (Stanley, supra, 10 Cal.4th at p. 793; see 

also People v. Johnson (2018) 6 Cal.5th 541, 583 [observing that 

under certain circumstances, “[a]n out-of-court statement by a 

witness that is inconsistent with his or her trial testimony is 

admissible to establish the truth of the matter asserted”].)

Regardless of whether Graham ought to have applied the 

brake of the automobile or grabbed the steering wheel from 

7 In observing that the robbery was “still in progress” when 

Graham and Taylor fled from the police, the trial court remarked 

“both kidnapping and carjacking based on the natural and 

probable consequences theory is totally reasonable if the only 

plan was to rob . . . Rawlings and not kidnap him or carjack him.” 

Graham asserts this remark demonstrates that the court 

improperly relied on the natural and probable consequences 

theory. We do not address this contention because we have 

already concluded that substantial evidence established Graham 

assisted Taylor in forcing Rawlings into the trunk just before the 

two robbers used the vehicle to flee from the police. (See People 

v. Camacho (2022) 14 Cal.5th 77, 123 [“ ‘[I]f the [trial court’s] 

ruling was correct on any ground, we affirm.’ ”].)
12

Taylor during the police chase, the trial court reasonably 

concluded that Graham failed to undertake any measures to 

prevent Rawlings’s death. This is because the court was entitled

to disregard Graham’s testimony that he told Taylor to slow

down. (See Sanghera, supra, 139 Cal.App.4th at p. 1572 

[“ ‘ “ ‘[We do] not substitute our evaluation of a witness’s

credibility for that of the fact finder.’ ” ’ ”].)

Lastly, we reject Graham’s claim that it was unnecessary 

for him to assist Rawlings because “the police were at the scene 

within seconds” of the crash. Graham fails to support this

contention with any citation to the record. (Flint, supra,

22 Cal.App.5th at p. 1006, fn. 17.) In fact, Graham represents in 

his briefing he had testified that in fleeing from the vehicle crash, 

“[h]is focus was on getting away” and he “did not think about 

Rawlings . . . .” Graham’s own statements demonstrating that he 

had no interest in offering aid to Rawlings thus also support the 

trial court’s finding Graham acted with reckless indifference to 

human life. (See Clark, supra, 63 Cal.4th at p. 619 [noting that 

“appellate courts have considered relevant a defendant’s failure 

to provide aid while present at the scene”].) Indeed, Graham’s 

indifference to Rawlings’s life is underscored by evidence adduced 

at trial that the engine of the vehicle caught fire after crashing,

and that Rawlings was still alive, albeit nonresponsive, for a 

short time after the collision. 

In sum, Graham fails to establish that substantial evidence 

does not support the trial court’s finding he acted with reckless 

indifference to human life. 
13

DISPOSITION

We affirm the trial court’s order denying defendant Boris 

George Graham’s petition for resentencing.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.