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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BORIS GEORGE GRAHAM,

Defendant and Appellant. B 331633

(Los Angeles County Super. Ct. No. LA046159 )

APPEAL from a n order of the Superior Court of
Los Angeles County, Martin Larry Herscovitz , Judge. Affirmed.
Marilee Marshall , under a ppointment 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 OPINION 1

Penal Code section 1172.6 2 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 felon y who acte d with
reckless indifference to human life. (See People v. Basler (2022) 80 Cal.App.5th 46, 50

– 51

, 54

– 5 6 & fn. 2 ( Basler ) .) Here

, the trial court found the prosecution discharged that burden. Because defendant Boris George Graham fails t o show that substantial evidence does not support the order denying his petition , w e affirm

.

A. Procedural Background 3

We summarize only th ose portions of the procedural history relevant to this appeal. In our Discussion, post , w e describe
additional facts re levant 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 for3 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); kidnappi ng 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), t he People averred as special circumstances tha t 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.Ap p.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 Cour t 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 con cession by “failing to respond in their reply brief to the [respondent ’ s] argument on th[at] point”].)4

commission of the charged offenses, a princi pal was armed with a
firearm

. At Graham’s jury trial, the re was evidence t hat 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 robbe rs 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 pu t Rawlings into the trunk of his automobile ; Taylor
sat in the driver’s seat and Graham sat in the front passenger

sea t ; 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 ; Ra wlings later die d 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 S trikes ” law , on count 1 , plus a consecutive term of

one year in prison for the fire arm 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 jud gment. 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 hu man 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

sup ported 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.” (Cit ing 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 th is argument in his reply brie f

. I ns tead

, 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] t rial court ’ s de cision 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.5 th 303, 314 ( Underwood ) .) “ Under this standard, we review the record ‘ “ ‘ in the light most favorable to the judgment bel ow to determine
whether it discloses substantial evidenc e

— 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.5 th 981, 988.) “ ‘If such substantial evidence be found , it is of no consequence that the trial court believing other evidence, or drawing other reasonabl e inferences, might have reached a contrary conclusion. ’ [Citation.]” ( People v. Ortiz (2012)

208 Cal.App.4 th 1354, 1363 , italics omitt ed

. ) 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.4 th 1567, 1573

– 1574 ( Sanghera ) .)
Our sister Courts of Appeal “have uniformly rejected” the
argument tha t 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 testi mony and associated credibility determinations. ” (See Underwood

, supra , 99 Cal.App.5 th at p p

. 313

– 314 [collecting cases].) W e follow our colleagues’ approach

. (See The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4 th 1522, 1529 [“ We, of course, are not bound by the decision of a sister7

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, w e 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 majo r 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, w e 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 require d for first degree felony murder]; People v. Stanley (1995) 10 Cal.4th 764, 793 ( Stanley ) [“ ‘[E]very8

brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particul ar point, the court may

. . . pass it without consideration. [Citations.] ’ [Citation s .] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence.”]; People v. Fl int (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 t he 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 T o Demonstrate the Trial Court Erred
I n 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

. T h e 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 pursu it.” T he court acknowled ged 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 co urt opined that Graham could have prevented Rawlings’s death by
“wrestl ing the steering wheel from

. . . Taylor” or appl ying 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 c ourt 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 ( Clar k ) [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 li kelihood of killing”; and (5) the “defendant’s efforts to minimize the risks of

. . . violence,” italics & capitalization omitted].)10

Graham contends the trial court’s suggesti on that he “could have prevented the death by making Taylor slow down or simply grabbed the wheel of a car traveling 1 00 mph is not reasonable, as it would have been likely to ensure not prevent death.” “ [A] s for helping Rawlings, ” Graham contends ( a ) “ t he police were chasing them and would surely provide more competent assistance than [Graham] could have provided, ” and ( b ) “ t he police were at the scene within seconds” of the crash. As explained below, Graham fails to establish error under the
deferential substan tial evidence standard o f 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 t he trunk of the vehicle ; and (c) following the cra sh, 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 peri od 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.
Notwith standing Graham’s argument s 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 [indicati ng that a defendant acts with reckless indifference
to human life if he or she “ disregard [s] a ‘ grave risk of death ’ ” ] .)
Further more , 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 ”] .)
R egardless of whether Graham ought to have applied the
brake of the automobile or grab bed the steering wheel from

7 In observing that the robbery was “still in p rogress” 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 th is contention because we have already concluded that substantial evidence e stablished Graham assisted Taylor in forcing Rawlings into the trunk just befor e the two robbers used the vehicle to flee from the police

. (See People v. Camacho (202 2 ) 14 Cal.5th 77, 123 [“ ‘ [I]f the [trial court’s] ruling was correct on any ground, we affirm.’ ”] .)12

Taylor during the po lice chase, the trial court reasonably concluded that Graham failed to undertake any measures to prevent Rawlings’s death. This is because t he court was entitled to disregard Graham’s testimony that he told Tay lor 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 R awlings 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 s upport 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 c ollis i on

. In sum, Graham fails to establish th at 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 f or resentencing

. NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGAR T

, J.