1

Filed 3/29/24 P. v. Clarke CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN EDWARD CLARKE,

Defendant and Appellant.

 A166554

 (San Mateo County

 Super. Ct. No. SC055709B)

In 2005, a jury convicted Kevin Edward Clarke of multiple offenses 

including first-degree murder with special circumstances. Clarke was 

sentenced to life in prison without the possibility of parole, plus 14 years. In 

2007, a different panel of this court affirmed the judgment. (People v. Clarke

(Mar. 22, 2007, A112245) [nonpub. opn.] (Clarke I).)

This appeal is from a November 2022 order denying Clarke’s petition 

for resentencing. (Pen. Code, § 1172.6.)

1 The trial court issued an order to 

show cause and conducted an evidentiary hearing before denying Clarke’s 

1 Statutory references are to the Penal Code. Clarke filed his 

resentencing petition under former section 1170.95, which was subsequently 

amended, effective June 30, 2022, and renumbered as section 1172.6 without 

any substantive change. (People v. Vargas (2022) 84 Cal.App.5th 943, 947, 

fn. 2; see Stats. 2022, ch. 58, § 10.)
2

petition. On appeal, Clarke challenges the sufficiency of the evidence to 

support the court’s findings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Murder of Kenneth Hamel

In April 2003, Kenneth Hamel was shot and killed in his apartment. 

At Clarke’s 2005 trial, the jury heard evidence about Hamel’s murder and 

testimony from multiple witnesses regarding Clarke’s role in that crime.2

The Shooting Incident and Murder Scene

On April 10, 2003, at around 6:00 or 7:00 p.m., Hamel’s 12-year-old

neighbor, A.G., saw two men in “ski mask[s]” enter the open door of Hamel’s 

apartment. The men stayed inside the apartment for 8 to 10 minutes before 

running out. A.G. then heard a woman scream. At approximately the same 

time, Katie W. (Katie), Hamel’s lateral neighbor, was sitting on her couch 

inside her apartment when she noticed she had been shot in the stomach. 

She ran from her apartment, seeking help from her building manager Frank 

J. (Frank).

Meanwhile, Frank heard “two explosions,” came out of his apartment,

and saw two men running or walking fast towards him. One was hooded and 

wearing a ski mask or scarf and the other was “bare headed.” Within 

2 In his appellate brief, Clarke adopts the factual summary set forth in 

Clarke I, contending erroneously that we may rely on that summary to 

conduct our review. Section 1172.6, subd. (d)(3) only allows the reviewing 

court to “consider the procedural history of the case recited in any prior 

appellate opinion.” (Italics added.) By specifying “ ‘ “the procedural 

history,” ’ ” “the Legislature intended to prohibit consideration of ‘the factual 

summar[y]’ in a prior appellate opinion.” (People v. Bratton (2023) 95 

Cal.App.5th 1100, 1113, italics omitted.) Here, the court below based its 

findings on trial transcripts and other evidence presented at the resentencing 

hearing. We base our review on the same evidence that was before the trial 

court.
3

seconds, Frank heard Katie scream that she had been shot, diverted his 

attention to her, and called emergency services. Frank later identified 

Clarke as the unmasked man. 

When police Sergeant Kevin Fung arrived at the scene, he went first to 

Katie’s apartment and saw a bullet-like hole in the wall. In Hamel’s 

apartment, Fung smelled marijuana, and found two piles of what looked like 

cocaine base, a scale, and some marijuana in plain view. Hamel was on the 

couch with blood coming out of his mouth and an apparent gunshot wound to 

his abdomen. He was declared dead at the scene. Evidence collected from 

Hamel’s apartment included an unfired bullet, stashes of cash in several 

parts of the house, money in the victim’s pocket, bags of marijuana and 

cocaine, and a nine-millimeter semiautomatic handgun recovered from 

behind the couch.

An autopsy established that Hamel died from multiple “gunshot 

wounds.” As to a gunshot wound to his neck, the evidence showed that the 

gun was pressed against Hamel’s skin when his assailant pulled the trigger. 

Hamel did not show signs of “[d]efensive injuries.”

Erika G.

Erika G. (Erika) testified that, in April 2003, she and her boyfriend,

William M. (William), were friends with Clarke and his ex-girlfriend,

Amanda M. (Amanda). On the evening of April 10, the day of Hamel’s 

murder, Erika, William, and Amanda were outside the house Erika shared 

with William when Clarke and his associate, Brian Parker, arrived by car. 

Clarke ran into the house carrying in his hand a black gun with a brown 

handle (not a revolver), and Parker followed. Erika and Amanda also went

inside because Erika was worried for her children, who were in the house.
4

Erika testified that she was in a bedroom with Amanda when she 

heard Clarke in the bathroom making a clicking sound. Then Clarke came 

into the bedroom, still holding the gun. He was “very upset,” and explained 

that he and Parker “went to rob” someone but “everything went bad,” the 

victim had a gun, and “they had to . . . kill somebody.” Clarke said that 

Parker “had to shoot” the victim “a couple of times,” the victim did not “die 

after the first time,” and Parker “had to shoot him some more.” Clarke told 

Erika that he and Parker “only got $27 and some change” in the robbery, but 

they initially expected to obtain $90,000. He took the money from his pocket 

and put it on the bed. Clarke also said that he tried to shoot someone else in 

the apartment but “his gun jammed,” and he was still trying to unjam it 

when he was in the bathroom. When Clarke left the bedroom, he took the 

gun with him in a shoebox and put it in the trunk of his car. 

Back outside, Erika overheard Parker tell William that he and Clarke

had committed a robbery, and Parker shot and killed the victim, who had a 

gun. Erika testified that Clarke and Parker separately recounted “that the 

two of them went to do this robbery,” neither stated they acted alone, and she 

agreed when the prosecutor described this as a joint operation. Eventually, 

Clarke and Parker left the house, but Clarke returned later that night and 

slept in his car.

Subsequently, Erika became concerned about a fresh hole in her 

backyard and contacted the police because she had heard people in her yard 

and suspected a gun was buried there. The police excavated the hole and 

found a .357-caliber Colt King Cobra revolver. The gun was analyzed by a 

firearms expert who determined that it was the murder weapon. 

At trial, Erika acknowledged that she had taken cocaine on the day of 

Hamel’s murder, but she felt “pretty sober” when Clarke and Parker came to 
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her house. Erika also testified that Clarke “was very heavy into heroin” at 

the time, he “was always” under the influence of drugs, and he said he had 

been drinking. Nevertheless, Erika “understood what [Clarke] was saying.” 

William M.

William testified that, a few days before April 10, 2003, Clarke and 

Parker approached him about their plan “to rob a drug dealer” in the South 

Bay. They told William they needed guns because the victim “might be 

armed,” that they expected to get $60,000 “plus” in the “[l]ick,” and that 

William should bring a shotgun. William agreed to participate. However,

Clarke later told William that William would not take part in the scheme

because Parker did not know William and did not “want [him] there.” 

The day before Hamel was killed, Clarke told William that he and 

Parker were “going to . . . East Palo Alto in connection with [the] robbery.” 

The next day, they returned to William’s house at around 7:00 or 8:00 p.m., 

and Clarke told William “they murked” a man—slang for murder. William

had consumed a large amount of cocaine that day, but he clearly recalled the 

conversations he had with Clarke and Parker that night because he had 

never “dealt with anything like this before.” Clarke “was upset, loud,” and he 

appeared to be under the influence of heroin. Parker did not “appear to be 

agitated or upset in any way.” Clarke had a nine-millimeter semiautomatic 

gun in his waistband, and Parker had a “chrome .357” magnum-caliber 

revolver. 

William testified that Clarke and Parker recounted the following 

events to him: When they entered Hamel’s apartment, Hamel reached for a 

firearm, and Parker wrestled him. Clarke went in the kitchen looking for 

things “[t]o steal” and was covering a second person in the kitchen when he 

heard gunshots. Clarke tried to shoot the man in the kitchen, but his gun 
6

jammed. Clarke “went into the bedroom and continued to look for stuff when 

he . . . hear[d] more shots” and decided to leave. Clarke took $27 and “some 

change” from the apartment and expressed disgust they killed a man over 

that amount of money. Clarke put the .357-caliber revolver in a shoebox, 

then “took it outside, put it in his trunk.” 

William testified that on the night of the shooting, he and Parker had a 

private conversation about the revolver that Parker used to shoot Hamel, and 

the gun that Clarke used during the robbery. Parker did not trust Clarke

with the weapons, given Clarke’s “state of sobriety and emotional state.” He 

asked William to hold the semiautomatic gun “temporarily” and to bury the 

revolver. William put the semiautomatic in his safe, and, after Clarke left 

the house, retrieved the shoebox from the trunk of Clarke’s car, wiped down 

the revolver and buried it in the backyard. About an hour later, Parker 

returned to the house, retrieved the semiautomatic gun from the safe, and 

left. 

William recalled that, about a week after the shooting, Clarke was at 

his house when the police arrived, took Clarke in for questioning, and spoke 

to William. William did not tell them what he knew because he feared 

Parker and possible repercussions for the murder weapon in his backyard. 

At that time, William did not know that the police had already recovered the 

revolver with Erika’s permission.

On July 31, 2003, William told the police he had buried the murder 

weapon and explained what he knew about the crimes. William was later

arrested for being an accessory after the fact to murder and pleaded no 

contest. He expected to be sentenced to probation in exchange for his 

agreement to testify fully and truthfully at Clarke’s trial.
7

Amanda M.

Amanda testified that when she was with Erika and William on April 

10, 2003, she ingested “[a]bout two lines” of cocaine, which made her “very 

alert and oriented.” When Clarke and Parker arrived, they went inside 

quickly, “straight to the back bedroom.” She and Erika followed them into 

the bedroom, where Clarke said, “We killed somebody in East Palo Alto.” 

Clarke did not discuss who did it or what was happening at the time, but said

it was “[a] robbery gone bad.” Clarke stated he obtained “[c]hange” in the 

robbery and placed coins on the bed, along with a “dark” semiautomatic gun. 

Amanda saw Clarke “try[] to unjam his gun,” then left because she did not 

“want any part” in the incident. 

In the weeks following the crimes, Clarke tried to explain how the 

victim was killed and said, “it was a robbery gone bad,” but Amanda did not 

want to hear details and would cut him off. Clarke’s drug use was one of the 

reasons Amanda broke up with him. Around early April 2003, Clarke used 

heroin daily by “[s]norting it” and became “really edgy,” “impatient,” 

“aggressive,” was “always in a hurry,” and “talked fast.” Clarke behaved in 

that manner the night of the killing, Amanda testified. 

Clarke’s Police Interviews

When the police first interviewed Clarke on April 16, 2003, he denied 

knowing Parker, said he was “ ‘piddling around’ ” American Canyon on the 

day of Hamel’s murder, and claimed that Erika and William could “vouch for 

him.”

A later interview conducted on June 30, was played for the jury and 

admitted into evidence. During that interview, Clarke initially claimed that 

Parker had committed a murder-for-hire. Later, he told a story about “a 
8

robbery [gone] bad” that Parker allegedly planned with an individual named 

James M. (James).

Clarke told police that he found out about the robbery plan the day 

before the crimes, when Parker told him, “I got a lick in [East Palo Alto]. 

Come on, out with me.” Parker did not give details other than they “were 

gonna hit” a “dude [who] thinks he’s John Gotti” and take “[d]rugs and 

money.” The next morning, Clarke drove Parker to Palo Alto in Parker’s car 

so Parker could collect money from certain individuals. Clarke referred to 

this as going “on a paper route.” Their second to last stop was James’s 

apartment, where they obtained a revolver and a nine-millimeter gun. When 

Clarke asked Parker why they needed the guns, Parker said, “[J]ust take it,” 

and Clarke said, “[A]ll right.” 

Clarke told police that when they arrived at Hamel’s apartment, 

Parker put a mask on and took out the revolver, as Clarke knocked on the 

door. Clarke watched Parker “take care of” Hamel, who also had a gun. They 

wrestled, and Parker fired his weapon. A second person in the apartment 

“ran into the kitchen.” Clarke pulled out the nine-millimeter gun and racked 

it, causing a bullet to fall out. Clarke denied pointing the gun at the second 

individual or firing it. After Parker fired a third shot, Clarke left the 

apartment. Parker was still shooting, but stopped before Clarke reached the 

front door. Clarke stated during the interview, “I’m done. Murder-robbery. .

I blew it.” 

Clarke’s Trial Testimony

Clarke testified that he was on parole for a felony conviction when he

met Parker at a “halfway house,” where they were roommates. Clarke knew 

Parker had been incarcerated for “murder” or “manslaughter.” 
9

Clarke told the jury that on the evening before the crimes, Parker 

explained “that he needed to get to Palo Alto [the next day] to pick up money 

that was owed to him from various individuals.” On the morning of the 

crimes, Clarke believed he “was just a driver” and was not “into the physical 

aspect of getting [Parker’s] money.” However, Clarke agreed with the 

prosecutor that it helps to have two people collect money “because it 

overcomes resistance just being there” and “carrying a firearm . . . makes it 

even easier to collect.” The last stop on their “paper route” was James’s 

house, where James gave Clarke a nine-millimeter gun and said it was 

“ready.” Clarke claimed he had never fired a gun and assumed that all he 

had to do was pull the trigger. He later testified that the gun was not for 

specific use in Hamel’s apartment, because he “wasn’t going to shoot 

anybody.” He accepted the gun because he was scared to find himself in a 

“sticky situation” involving guns. Clarke knew that because he was a felon, 

he was not supposed to possess a firearm. He explained he “took the weapon 

because [he] was pressured into taking [it],” and because he was so high at 

the time.

Clarke testified that when they reached Hamel’s apartment, Parker 

entered first as he put on a mask. At that point, Clarke realized he “was in 

some type of problem.” Clarke did not have a mask and did not know what 

was going to happen. He had not been told anything about the apartment 

containing money or drugs or that the victim was a drug dealer. Once inside, 

Parker said nothing and started firing a “very large revolver.” 

Clarke initially testified that Parker fired the first shot “[i]mmediately” 

upon entering the apartment, while “[a] foot” away from Hamel. Later, he 

claimed not to know who fired the first shot; he heard it but did not see it. 

He was “shocked” and “ducked” “in a crouching position.” Four more shots
10

“[i]mmediately” ensued. Clarke pulled out the nine-millimeter gun and 

“noticed that there was a cartridge stuck in it.” Clarke “rigged” the gun and 

the cartridge “popped out.” He pulled the gun out for protection because 

people were shooting but he “was dazed in terms of why [he] needed a 

firearm.” 

Clarke did not turn around and run away when the shooting started; 

he instead moved to a counter in the kitchen where he saw another man 

“crouched” behind the refrigerator. Clarke was near the place where police 

later found the unfired bullet when he pulled out his weapon. While 

crouched down, Clarke racked the gun after discovering it was “stove piped,”

meaning not functional. Clarke “continued to play with it” because he was 

“scared” and “protecting [him]self.” Clarke denied that his job was to cover 

the second man in the kitchen and said he was not worried about that man. 

The man screamed, “ ‘don’t shoot me,’ ” but Clarke denied trying to shoot 

him, testifying that the counter would have blocked his shot. Meanwhile, he 

could hear shots firing, and when he realized what was going on, he “headed 

to the door.” 

Clarke acknowledged that when he and Parker went to Erika’s and 

William’s house after the shooting, he brought the revolver in the house. He 

left the nine-millimeter gun in the backseat of the car and did not know what 

happened to it afterwards. He put the revolver in the trunk of his car 

because there were children in the house. Clarke denied telling Erika and 

William “this was a robbery gone bad,” but acknowledged telling Amanda “it 

possibly was a robbery.” He told the police it was a robbery gone bad because 

he “told them what they wanted to hear.” He denied taking anything from 

Hamel’s apartment and testified that the $27.50 he showed to Erika was 

money he had “from change.” He said Erika and Amanda were mistaken that 
11

the money was taken from Hamel’s house, and the women and William were 

mistaken “[a]bout that robbery aspect.” 

Clarke testified that prior to his arrest for Hamel’s murder, he used 

heroin daily, and during his police interview, he was “coming down off of 

heroin.” On the day of the crimes, he “sniff[ed]” heroin “[m]aybe every two 

hours,” and drank alcohol in the afternoon. He had to use heroin every day 

or he would “get very sick,” and he acknowledged that a heroin addict 

“need[s] to take [heroin] not to get high but just to stay ripe,” but stated he 

“wasn’t at that level yet.” Clarke used “cocaine once a day” and heroin “two 

or three times a day,” sometimes mixing both. He agreed that after using 

heroin, cocaine “kind of picks you up, makes you kind of edgy.” This was 

Clarke’s drug habit when he went with Parker to collect the money on April 

10, 2003. 

II. Procedural History

Pursuant to an amended information filed against Clarke and Parker

in October 2005, Clarke was charged with Hamel’s murder, with special 

circumstance allegations that he committed murder during commission or 

attempted commission of a burglary and robbery, and with the additional 

allegation that he personally used a firearm (§§ 187, subd. (a), 190.2, 

subd. (a)(17), 12022.53, subd. (b)). Clarke was also charged with robbery 

(§ 212.5, subd. (a)), burglary (§ 460, subd. (a)), and other crimes, as well as 

multiple enhancements.

Clarke and Parker were tried separately. “On October 3, 2005, the jury 

found [Clarke] guilty of murder with the special circumstances of committing 

murder while engaged in the commission or attempted commission of robbery 

and burglary. The jury also found [Clarke] guilty of attempted robbery (a 

lesser included offense), burglary, shooting a firearm at an inhabited 
12

dwelling, assault with a firearm, and firearm possession by a felon. The jury 

found true that [Clarke] was armed in connection with all offenses (except 

the firearm possession offense, an element of which is being armed), and that 

he had previously been convicted of a serious felony and had served a prior 

prison term.” (Clarke I, supra, at pp. *7–*8.) Clarke was sentenced to life in 

prison without the possibility of parole plus 14 years, and his conviction was 

affirmed on appeal. (Clarke I, supra, at pp. *8, *14.) 

On January 30, 2019, Clarke filed a petition for resentencing under 

former section 1170.95, which was added to the Penal Code pursuant to the 

enactment of Senate Bill 1437. (People v. Strong (2022) 13 Cal.5th 698, 708

& fn. 2.) The purpose of Senate Bill 1437 was “ ‘to ensure that murder 

liability is not imposed on a person who is not the actual killer, did not act 

with the intent to kill, or was not a major participant in the underlying felony 

who acted with reckless indifference to human life.’ ” (People v. Lewis (2021) 

11 Cal.5th 952, 959.) To that end, the Legislature amended provisions of the 

Penal Code pertaining to the felony murder rule (§ 189) and the natural and 

probable consequences doctrine (§ 188) and created a procedure for 

defendants “convicted under the former law to seek retroactive relief under 

the law as amended” by filing a petition for resentencing under section 

1170.95, later renumbered as section 1172.6. (Strong, at p. 708.) To obtain 

relief, a petitioner previously convicted of murder must show, among other 

things, that he or she “could not presently be convicted of murder . . . because 

of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, 

subd. (a).)

The same judge who presided over Clarke’s jury trial heard his 

resentencing petition. The court found that Clarke stated a prima facie case 

for relief and issued an order to show cause. An evidentiary hearing was held 
13

on July 18, 2022. Pursuant to the parties’ stipulation, evidence considered by 

the trial court included a declaration by Dr. Gantt Galloway, Clarke’s 

retained “expert in the field of pharmacology, specifically in the area of the 

effects of drugs, including alcohol and heroin, on the body and mind.” 

On November 2, 2022, the trial court denied Clarke’s petition. Framing 

the issues, the court observed that Clarke is “someone who should be 

considered for resentencing . . . as he was convicted of felony murder and 

clearly was not the actual killer.” For Clarke to be guilty of murder under a 

still-valid theory, the evidence would have to show that either he was a direct 

aider and abettor of murder, or he was both a major participant in the 

underlying felony and acted with reckless indifference to human life. (§ 189, 

subd. (e)(3) (section 189(e)(3)).) The court found that the prosecution failed to 

prove beyond a reasonable doubt that Clarke was a direct aider and abettor 

of murder but concluded that Clarke was a major participant in the robbery 

and burglary and acted with reckless indifference to human life. Concluding

that under the current state of the law, Clarke remains guilty of murder 

beyond a reasonable doubt, the court denied his resentencing petition.

DISCUSSION

Clarke challenges the sufficiency of the evidence to support the trial 

court’s conclusion that he is guilty of murder under current law. Clarke’s 

arguments raise two distinct issues, which we address separately: first, 

whether the court’s findings are generally supported by the evidence; and 

second, whether the court properly considered the evidence that Clarke was 

under the influence of drugs and alcohol when Hamel was murdered.

We review the trial court’s factual findings for substantial evidence, 

and its application of those facts to a statute de novo. (People v. Williams

(2020) 57 Cal.App.5th 652, 663.) Substantial evidence review is deferential; 
14

we ask whether “ ‘ “any rational trier of fact” ’ ” could have made a challenged 

finding, while viewing the evidence in the light most favorable to the 

prosecution. (In re Moore (2021) 68 Cal.App.5th 434, 451 (Moore).) 

Nevertheless, sufficiency of the evidence is “ultimately a legal question,” 

requiring us to examine the record independently to determine whether 

substantial evidence supports a challenged finding. (People v. Banks (2015) 

61 Cal.4th 788, 804 (Banks).)

I. Sufficiency of the Evidence

The trial court found that Clarke remains guilty of murder under 

section 189(e)(3), which requires the prosecution to prove, beyond a 

reasonable doubt, that Clarke 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.” Section 190.2, subdivision (d) (section 

190.2(d)) is the felony-murder special circumstance that applies when a 

defendant is not the actual killer but “with reckless indifference to human life 

and as a major participant, aids, abets . . . or assists in the commission” of a 

qualifying felony. In construing this statute, our Supreme Court has 

articulated standards for determining whether the requirements of major 

participation and reckless indifference have been satisfied. (Banks, supra, 61 

Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522 (Clark).) 

To be a major participant in the underlying crime, a person must have 

substantial personal involvement beyond that of an ordinary aider and 

abettor. (Banks, supra, 61 Cal.4th at p. 802; Clark, supra, 63 Cal.4th at 

p. 611.) Banks delineates five non-inclusive factors to consider when 

evaluating the totality of the circumstances to determine if a defendant was a 

major participant in a crime that resulted in a death. We consider the 

defendant’s (1) role in planning the criminal enterprise; (2) role in supplying 
15

or using lethal weapons; (3) awareness of dangers posed by the crime; 

(4) presence at the scene and actions or inactions relating to the death; and 

(5) conduct after lethal force was used. (Banks, at p. 803.)

The trial court concluded that Clarke’s “participation in criminal 

activities, known to carry a grave risk of death, was sufficiently significant to 

be considered major.” Clarke does not challenge the major participant 

finding, instead focusing on the reckless indifference requirement.

Our Supreme Court has identified the following factors as potentially 

relevant when considering whether a defendant acted with reckless 

indifference to human life: whether the defendant knew a weapon would be 

used or himself used a weapon, and the number of weapons that were used; 

whether the defendant was physically present at the crime and had an 

opportunity to restrain the crime or aid the victim; the duration of the 

interaction between the victim and the perpetrators; whether factors bearing 

on the likelihood that a cohort would kill the victim were known to the 

defendant prior to or during the commission of the felony; whether the 

defendant attempted to minimize the risk of violence during commission of 

the felony. (Clark, supra, 63 Cal.4th at pp. 618–623; In re Scoggins (2020) 

9 Cal.5th 667, 677.) The factors identified in Banks are also relevant, “ ‘for 

the greater the defendant’s participation in the felony murder, the more 

likely that he acted with reckless indifference to human life.’ ” (Clark, at 

p. 615.) 

The resentencing court made a number of factual findings in support of 

its conclusion that Clarke acted with reckless indifference to human life, all 

of which we conclude are adequately supported by the evidence. The court 

found that Clarke knew he and Parker were going into the apartment to rob 

a drug dealer, who would most likely be armed; Clarke knew Parker had 
16

previously been convicted of (at least) manslaughter; Clarke armed himself 

and tried to recruit William to have more guns available; Clarke was 

physically present in the apartment looking for things to steal and pursuing a 

second victim when Parker shot Hamel; Clarke tried to use his gun but was 

unable to because it jammed; and Clarke did nothing to assist the victim. 

Based on these facts, the trial court properly concluded the evidence 

established Clarke acted with reckless disregard for human life.

Clarke disagrees with our conclusion, making two sets of arguments. 

First, he challenges three discrete findings the trial court made, contending 

that each one, considered separately, does not support a finding of reckless 

indifference. Specifically, Clarke argues that accepting a weapon from James

“does not establish conscious creation of a grave risk that death would 

ensue”; that Clarke’s knowledge of Parker’s “previous manslaughter

conviction, without more, is not conclusive”; and that the fact he tried to use a 

gun that jammed should not be given decisive weight. We agree with Clarke 

that these facts in isolation may not be dispositive, as the totality of the 

circumstances must be considered when evaluating whether a defendant 

acted with reckless indifference. (Clark, supra, 63 Cal.4th at p. 617; Banks, 

supra, 61 Cal.4th at p. 803.) Here, the trial court did not rely exclusively on 

any one of these factors, and Clarke does not dispute that each is supported 

by substantial evidence. Thus, this first set of arguments fails. 

With his second set of arguments, Clarke does dispute the sufficiency of 

the evidence underlying other findings. Specifically, Clarke contends that his 

own trial testimony establishes that he did not know the victim would have 

access to a firearm. Clarke’s reliance on this conflict in the evidence reflects 

his misunderstanding of substantial evidence review, which requires us to 

assess the record in the light most favorable to the finding of the trier of fact,
17

drawing all reasonable inferences in favor of the judgment. (People v. Reyes

(2023) 14 Cal.5th 981, 988; People v. Mitchell (2022) 81 Cal.App.5th 575, 

591.) Here, Clarke admitted to the police that Parker told him they were 

going to “hit” a “dude [who] thinks he’s John Gotti” and take “[d]rugs and 

money.” And William testified that when Clarke and Parker approached him

before the crime, they said they wanted to rob a drug dealer and needed guns 

because the man “might be armed.” From this evidence, the trial court drew 

a reasonable inference that Clarke knew the victim most likely would be 

armed. 

Clarke also challenges the finding that he did not attempt to aid 

Hamel, contending that he never had that opportunity. The record shows 

otherwise. Clarke’s presence in the apartment throughout the commission of 

the robbery, which apparently involved a physical struggle, supports the 

finding that Clarke theoretically had an opportunity to assist the victim but 

instead chose to assist his cohort. Testimony from Clarke and other 

witnesses established that during the robbery, he dealt with the second 

person in the kitchen and looked for things to steal while Parker killed 

Hamel.

Finally, citing People v. Saibu (2022) 81 Cal.App.5th 709, Clarke 

disputes the trial court’s finding that the prosecution proved beyond a 

reasonable doubt that he knew his activities carried an elevated risk to 

human life, beyond that inherent in any armed robbery. Saibu is factually 

and legally inapposite. In that case, the trial court found that the People 

failed to carry their burden of proving the defendant acted with reckless 

indifference, whereas here the trial court reached the opposite conclusion. 

(Id. at pp. 715, 731–732.) Saibu was an appeal by the People, not a

sufficiency of the evidence challenge. (Id. at pp. 737–738, 741.) Moreover, 
18

the facts of the present case are easily distinguishable from Saibu, where the

defendant was outside a liquor store when his cohort killed the victim, and 

there was no evidence that the defendant tried to shoot anyone. (Id. at 

pp. 729–730.) Here, by contrast, Clarke and Parker went into the victim’s 

apartment together, and Clarke attempted to shoot another occupant and 

complete the robbery while Parker shot Hamel multiple times. These facts,

along with evidence that Clarke helped to plan the armed robbery and to 

cover up the murder, substantially support the finding that the People proved 

beyond a reasonable doubt that Clarke acted with reckless disregard for 

human life. 

II. Evidence of Clarke’s Addiction and Intoxication

Clarke contends the order denying his petition must be reversed 

because the trial court did not properly consider evidence of his intoxication

and drug use when evaluating whether he had a conscious awareness of the 

risk associated with this robbery. This argument fails for multiple reasons.

First, the record shows that the trial court expressly did consider 

Clarke’s intoxication evidence. It found that despite evidence of his heroin 

habit and alcohol consumption, Clarke appeared to be a functioning addict. 

The court based this conclusion on evidence showing that despite his 

addiction, Clarke “was very clear” about the goal of robbing a drug dealer, 

that he armed himself and attempted to recruit someone else with a gun, and 

that he tried to dispose of the gun after the murder. 

Furthermore, Clarke misconstrues the significance of his expert 

evidence, which was admitted at the hearing pursuant to the parties’ 

stipulation. Dr. Galloway did not offer the opinion that Clarke’s subjective 

judgment was actually impaired when he participated in the crimes. 

Galloway’s declaration addressed the psychological effects that heroin can
19

have on a person. Galloway also offered the opinion that Clarke was under 

the influence of heroin and alcohol at the time of the shooting, which he 

based on his assessment of excerpts from the trial evidence provided to him 

by the defense. 

Galloway’s opinions were not binding on the trial court, in any event. 

The trial court acted as an independent fact finder in assessing the evidence 

presented at the hearing. (People v. Ramirez (2021) 71 Cal.App.5th 970, 984.) 

“The fact finder determines the facts, not the experts.” (In re Scott (2003) 29 

Cal.4th 783, 823, italics omitted.) “Although experts may testify about their 

opinions, the fact finder decides what weight to give those opinions.” (Ibid.) 

Here, the record shows that after considering Galloway’s opinions, the trial 

court remained persuaded that Clarke was subjectively aware of and 

willingly involved in the commission of dangerous felonies creating a grave 

risk that a death would occur. In light of the evidence that Clarke had 

known a day or more before he committed the crime that the plan was to use 

firearms in robbing a drug dealer who “thinks he’s John Gotti,” we find no 

fault with the trial court’s assessment.

Finally, Clarke draws an analogy between evidence of drug and alcohol 

use and cases establishing that youth is a relevant factor in determining 

whether a defendant acted with reckless disregard to human life. (See 

Moore, supra, 68 Cal.App.5th at p. 454; People v. Jones (2022) 86 Cal.App.5th 

1076, 1090–1091.) Clarke cites People v. Avila (2020) 57 Cal.App.5th 1134, 

which involved an unconstitutional sentence under the Three Strikes Law. 

(Id. at pp. 1140–1141.) The Avila defendant was under 21 when he 

committed his strike priors, his current offenses were for nonviolent, 

nonserious felonies, and the evidence showed that he had made an effort to 

seek treatment for longstanding addiction issues. (Id. at pp. 1141, 1143–
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1144.) Putting aside the fact that Avila did not involve a resentencing 

petition, Clarke shares nothing in common with the Avila defendant. Clarke 

was not a youthful offender when he committed these crimes, and the record 

shows the court considered evidence of his drug problems and alcohol 

consumption but nevertheless concluded that he acted with reckless 

indifference to human life. Because the evidence supports this finding, 

Clarke’s claim of error necessarily fails.

DISPOSITION

The order denying Clarke’s petition for resentencing is affirmed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

People v. Clarke (A166554)