Filed 3/1/24 P. v. Potts CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EDWARD POTTS,

Defendant and Appellant.

F085945

(Super. Ct. No. VCF041052D-98)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Melinda 

Myrle Reed, Judge.

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Petitioner James Edward Potts petitioned the trial court, pursuant to former section 

1170.95 (now § 1172.6) of the Penal Code,1for resentencing on his conviction for first 

degree murder (§ 187, subd. (a)). (People v. Potts (Oct. 19, 2022, F081141) [nonpub. 

opn.] (Potts).) The court conducted an evidentiary hearing (§ 1172.6, subd. (d)(3)) and 

denied the petition on the grounds petitioner was a major participant in the underlying 

felony who acted with reckless indifference to human life. 

On appeal, petitioner contends substantial evidence does not support the trial 

court’s findings. We affirm.

FACTUAL BACKGROUND

Our factual summary is derived from evidence received in petitioner’s trial, which 

was considered by the trial court when denying petitioner’s section 1172.6 petition for 

resentencing. 

I. The Crime Scene and Investigation

On February 5, 1998, Byron Jennings did not arrive for a planned dinner with his 

long-time neighbor, Roger B.2 The next morning, Roger attempted to call Jennings 

several times but received no response. Around noon, Roger went to Jennings’s house.3 

He saw a newspaper in the driveway that had not been picked up and the door to 

1 Undesignated statutory references are to the Penal Code. Former section 

1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, 

§ 10.) We refer to the current section 1172.6 in this opinion. 

2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by 

their first names. No disrespect is intended. 

As will be described in further detail post, other persons involved in this incident 

and/or charged as codefendants are: Larry Ward, Randy Spohn, Daniel Blunt, William 

Moore, Joseph Young, Joshua Sommerset, and Christie Wise. These individuals are not 

parties in this appeal.

3 The location where Roger and Jennings lived was “out in orange groves.” 

Jennings was Roger’s closest neighbor but lived one-quarter to one-half mile away. 
3.

Jennings’s office was open, which was not typical. Roger saw “blood everywhere,” 

including on the doormat just inside the door, on the floor and carpet, and on a railing. A 

picture on the floor blocked the door from closing and there was “[l]ots of blood” on a 

chair. Further inside, next to a door leading to the living room, Roger saw a bloody 

handprint dragged down the wall near the burglar alarm system. Roger walked around 

the house and called for Jennings but received no response. Eventually, Roger called the 

Tulare County Sheriff’s Office. 

Sheriff’s deputies responded to the scene and located a dark baseball cap in a 

flowerbed next to the porch, a white envelope next to the cap, and a pair of glasses in the 

driveway just outside the door.4 There was blood surrounding a door at the side of the 

residence and indentations on the door and the wall next to it. The inside of the house 

was in disarray. The kitchen cabinets and drawers were pulled open. The door to the 

basement was open and there were drag marks coming up the stairs and across the 

kitchen floor. In the office, the deputy found “[l]arge amounts of blood.” The carpet was 

saturated with blood and there was blood on the furniture and walls. The computer was 

on and an empty spool of what appeared to be duct tape was on the floor.5 A rear 

bedroom appeared to have been ransacked. A ball bearing, small spring, small button, 

and a portion of a lock cylinder were collected from the living room floor. These were 

later determined to be consistent with components of the Club, a car anti-theft device. 

There was blood on the door jamb between the office and the living room and some 

blood on the living room wall. Upstairs, deputies found a blood smear on a light switch 

in a hallway and a small amount of blood on the door trim leading into Jennings’s 

4 William Moore testified to owning a similar cap but denied being present at the 

scene or knowing how the cap got there. 

5

Information from Jennings’s Internet service provider indicated his computer last 

connected to the Internet on February 5, 1998, at 4:53 p.m., and the connection was 

terminated at 7:12 p.m. 
4.

bedroom. A fingerprint analyst processed multiple latent impressions, smudges, smeared

and fragmentary impressions from the scene that ultimately were of no value. 

Petitioner’s fingerprints were not found at the residence. DNA taken from various 

locations in the home was consistent with that of Jennings. 

Outside the house, the door to the “phone box” was open and the wires were 

pulled out and detached from each other. A piece of phone cord was on the ground near 

the phone box. A partial roll of duct tape and a plastic soda bottle with a hole in the cap 

were located on an exterior walkway that led to the office. 

In a room adjacent to the unattached garage, deputies located 54 large marijuana 

plants with a drip line and overhead “grow lights.” Sixty marijuana seedlings were 

located in the basement. It appeared the marijuana was being cultivated for sale. 

Eventually, deputies walked into Jennings’s orange groves, where they located 

Jennings’s body, approximately six rows away from the driveway. He was not wearing 

shoes and his socks were muddy as if he had walked there. Jennings’s body was face 

down with a blanket next to it, to which some duct tape was adhered. A Beretta .25-

caliber revolver belonging to Jennings was located within two to three feet of the body. 

The firearm had a loaded clip and a round in the cylinder. 

Jennings’s body had multiple blunt trauma lacerations, bruises, and abrasions, 

including on the forehead, left jaw region, chin, neck, and back of the head. He had 

approximately 14 distinct blunt trauma lacerations to the head representing approximately 

11 separate blows and approximately 18 total injuries on the rest of his body. Some 

circular or “curv[i]linear” marks on the body appeared as if “an instrument had been 

pressed in that area of the skin, leaving an actual imprint.” Circular wound patterns on 

his body were consistent with the cylinder on the Club. Many of the head lacerations 

were deep and extended down to the level of the bone. Internally, one skull fracture 

corresponded to a large irregular laceration on the back of the head and another 

corresponded to a linear laceration on the forehead. There was diffused hemorrhaging 
5.

spread over the surface of the brain. Jennings had multiple bruises and abrasions, 

including on his right ankle, foot and anterior leg, his posterior right arm and elbow, and 

the backs of his hands. The cause of death was determined to be diffuse subarachnoid 

hemorrhage due to multiple skull fractures due to multiple blunt traumas to the head. A 

forensic pathologist estimated Jennings could have lived for minutes or up to a half hour 

or so after suffering his head injuries, but acknowledged it is very difficult to predict how 

long someone will live as a result of such injuries. 

II. Further Investigation

Jennings’s credit cards were used more than 50 times after February 5, 1998, at 

locations that included a gas station, a casino, and several retail stores. 

On February 12, 1998, sheriff’s deputies retrieved videotape and photographs 

showing five subjects using Jennings’s credit card at a casino. Separate video appeared 

to show five individuals arriving in Larry Ward’s white Oldsmobile. One video showed 

two individuals, one of whom was later identified as Ward, entering the casino. 

Approximately two or three minutes later, video showed three other individuals, one of

whom was later identified as Moore, entering the casino. At the casino, Moore used 

Jennings’s credit card at a restaurant and unsuccessfully attempted to obtain cash. 

On February 14, 1998, deputies searched Ward’s house and found in his room 

various items that were recently purchased, including stereo equipment and packaging for 

shoes and socks. They also found items identified as having been taken from Jennings’s 

residence, including a Maltese cross with gold leaf and two plastic coin holders 

containing silver quarters and pennies. On the same date, deputies seized Ward’s 

Oldsmobile and recovered from the trunk the “slider section” of a Club. Wire cutters and 

duct tape were found in the trunk. Ward’s fingerprint was found on the duct tape. 

On March 11, 1998, a sheriff’s dive team located a safe and its detached door on 

the Tule River. Based on the serial number, model number, and combination, deputies 

were able to identify the safe as belonging to Jennings. 
6.

On March 25, 1998, deputies located many items at the homes of Joseph Young 

and Joshua Sommerset that were identified or suspected as having been taking from 

Jennings’s residence. These items included a Zippo lighter with the initials MLJ, a gold 

lighter with the initials CEN,6several two-dollar bills, and a 1957 one-dollar silver 

certificate. 

On April 17, 1998, officers searched a location where they believed the murder 

weapon had been tossed from a vehicle, approximately seven miles from the murder 

scene. They located portions of a generic Club device with an empty hole where the 

locking cylinder components had fallen out. The “slider,” i.e., the part of the device that 

locks in between a steering wheel, was missing. Half of the shear pin was still on the 

Club. The other half of the shear pin was in the cylinder found in Jennings’s house. 

None of Jennings’s property was found with petitioner. There was no evidence 

that petitioner ever used Jennings’s credit cards. 

III. Petitioner’s Prior Relationship with Jennings

Petitioner and Jennings grew up together. Petitioner also was known to the 

residents in Jennings’s neighborhood. Roger described him as someone who “always 

seemed like a person who needed some help.” Petitioner worked for Jennings sometime 

between 1989 and 1993 but was fired. From 1993 or 1994 to 1995, Roger’s relationship 

with Jennings was distrustful, and petitioner began to ask Roger about Jennings’s safe. 

Petitioner asked about the safe at least a dozen times. At one point, petitioner asked 

whether he could crawl under the house and get the safe. On another occasion he asked if 

Roger could get the code for the burglar alarm. And, on another occasion he asked if 

there was a key for the door going to the basement where the safe was located. Each 

time, Roger told Jennings about petitioner’s interest in the safe, but Jennings considered 

6 “MLJ” are Jennings’s son’s initials, and the lighter came from his bedroom. 

“CEN” are Jennings’s grandfather’s initials. 
7.

petitioner’s comments to be a joke. Jennings laughed and made comments such as, “Yes, 

us farmers all keep our wealth in the safe.” After 1995, petitioner stopped coming around 

and Roger had no further discussions with him regarding the safe. 

IV. Randy Spohn’s Testimony

Randy Spohn testified at trial pursuant to a plea agreement in which he pled guilty 

to second degree murder and robbery. Spohn also gave two prior recorded statements to 

law enforcement. His first statement, given on March 28, 1998, while he was in custody 

in Arkansas, was inconsistent with his trial testimony in various ways described below. 

Spohn testified that he spent part of the morning of February 5, 1998, with Ward 

before they parted ways around noon or 1:00 p.m. At that time, Ward told Spohn he 

might be back and might need Spohn for something. 

Ward returned to Spohn’s house at 4:00 or 5:00 p.m. that evening. Ward asked 

Spohn to go with him to a house in Strathmore to help him collect some money as 

payment for methamphetamine Ward had delivered the day prior. Spohn agreed to go 

along but Ward could not recall how to get to the house. As such, they drove around 

looking for petitioner, who was at that time unknown to Spohn. They eventually received 

information that petitioner was at a local bar. Ward went into the bar to talk with 

petitioner while Spohn waited in the car. After about 15 minutes, Ward returned with 

petitioner and Daniel Blunt, who also was previously unknown to Spohn. Ward got back 

into his car with Spohn while petitioner and Blunt got into a separate truck. Ward 

followed the truck to a house where petitioner and Blunt dropped off the truck. 

Spohn testified the following conversation took place in front of the house: 

“[Ward] told [petitioner], ‘Well, you ready to go do this?’ And he said yes and he said 

okay, and asked him who I was. [Ward] said, ‘Well, he’s with me,’ [petitioner] said, 

‘We’ll need him, he’s going to know me.’ And he said okay.” Ward and petitioner also 

discussed collecting money. Petitioner got into the rear driver’s side seat and Blunt got 

into the rear passenger side seat of Ward’s car. All four men had used methamphetamine 
8.

that day. To Spohn’s knowledge, none of them were in possession of any guns, knives, 

or other weapons. 

They stopped briefly at a store, from which petitioner directed them to Jennings’s

house. Ward pulled “head in” into Jennings’s driveway to just before the porch. He put 

the car in park but left it running and with the lights on when he got out. Spohn, Blunt, 

and petitioner remained in the car. Ward went up the front steps and Jennings opened the 

door and stood in the door frame. They talked for a few minutes before Ward came back, 

turned off the car, took the keys, and opened the trunk. Ward said to Spohn, “He wants 

me to test the dope again.” Jennings went back inside briefly. 

Ward returned to the porch with a small soda bottle containing what Spohn 

believed was ammonia or bleach used to test methamphetamine. Jennings returned to the 

doorway and Ward said, “Well, get the dope, we’ll test it again.” Jennings pulled a .357-

magnum from his waistband and pointed it at Ward. Spohn turned around and asked 

petitioner, “What the hell is this? What the hell is going on?” Petitioner stated he did not 

know what was going on. 

Spohn got out of the car to see what was going on. He did not think Jennings was 

going to shoot because he had not yet done so. When Spohn neared the steps, Jennings 

pointed the gun at him and asked him if he wanted to die. Spohn said, “[T]his ain’t got to 

happen,” and Jennings racked the gun at Spohn. Ward threw bleach in Jennings’s face 

and grabbed for the gun. After a brief struggle, Ward took the gun from Jennings and 

threw it in the front seat of the car. Spohn was not sure where petitioner and Blunt were 

during this time.7 Spohn anticipated a fight and shoved Jennings against the door. 

Jennings punched Spohn and they started to fight. 

7 He acknowledged, however, that he reported in his initial statement to law 

enforcement that petitioner and Blunt were out of the car at this point. 
9.

Ward retrieved a Club from the car and returned with it, telling Spohn to watch 

out.8 Ward struck Jennings with the Club on the side of his face or head. Jennings fell 

into the house. Ward said, “Hey, I need my money, I want my money or my dope.” 

Jennings said, “Fuck you, the dope is no good, you ain’t gettin’ shit.” The two continued

to struggle and conversation continued in this vein until Jennings got up and said he was 

going to get a gun and kill them. 

Jennings charged at them and Ward hit Jennings again, which caused Jennings to 

go down. When Jennings got up, he went toward the burglar alarm. Spohn and Ward 

pulled him back and Ward said, “What the hell we going to do now?” Ward may have 

hit Jennings again.9 Jennings had Ward by the collar and yanked him inside and pulled 

the door shut. Spohn tried to enter but the door was locked. Spohn stayed on the porch 

and looked through the window10 as Ward and Jennings fist fought inside the office for 

approximately five minutes. During the struggle, Jennings appeared to be going for the 

desk. Jennings was laughing and screamed that Ward and Spohn would be dead in a 

matter of days. Spohn estimated that Ward hit Jennings five to 10 times in total. Spohn 

personally saw Ward hit Jennings in the head three times, but the rest of the time the door 

was closed. 

Eventually, Ward opened the door and Spohn saw Jennings on one knee with an 

injury to his head that was bleeding. Jennings’s hands were taped up and a blanket was 

8 Spohn had received the Club from his friend, Christie Wise. Spohn “threw it in” 

Ward’s car because he did not want it. He testified that he did not give it to Ward to use 

as a weapon at Jennings’s house. Wise is also referred to in the record by the first name 

Kristi and the last name Cribbs. 

9 Spohn acknowledged that he may have reported in his initial statement that Ward 

kicked Jennings a few times but, at trial, Spohn denied that Ward kicked Jennings. 

10 Spohn acknowledged reporting in his first statement that he went back to the car 

and then returned to the porch during this time. However, at trial, he denied returning to 

the car. 
10.

draped over his shoulder and head, but Spohn did not see how that happened. Ward said 

Jennings was not going to pay the money. Ward went to the car and told petitioner he 

needed to say something. Petitioner came up to the house and told Jennings he needed to 

pay the money. Jennings refused. Spohn could see Blunt’s shadow still in the car. 

Ward reiterated that he wanted his money and petitioner said, “I know he’s got it 

here. I know he’s got the money.” He also said, “I probably know where the money is 

at” and “If he ain’t going to pay it, I think I know where that money is at.” Ward asked 

where and petitioner said something Spohn could not hear. By this time, Blunt was out 

of the car. Petitioner went around the side of the house, toward the back of the house and 

garage. Ward went into the house through the office. Spohn monitored Jennings. At 

some point, Jennings told Spohn that he could not breathe and did not want to die. Spohn 

told him not to worry and that he would be alright. Spohn did not think Jennings was 

injured very badly. 

Eventually, Ward returned, rolling a safe.11 He lifted the safe onto the bumper of 

the car and flipped it into the trunk. They expected drugs would be in the safe. Blunt 

stood near the car looking scared. Neither Blunt nor petitioner wore gloves. Ward wore 

latex gloves. At some point, Ward told Spohn that he went upstairs for a second or two, 

then went down to the basement to get the safe. 

Spohn did not see other property being taken from the house but saw a sword in 

the trunk. He also later saw a .30-30 rifle being removed from the trunk. At some point, 

he saw Ward with a portfolio that Ward said contained credit cards. Spohn never saw 

petitioner touch the Club, get on the porch, go inside the house, or come out with 

anything from the house. 

11 Spohn identified the safe retrieved by law enforcement from the Tule River as 

appearing to be the same safe. 
11.

Ward shut the trunk, Blunt and petitioner got in the car, and Ward told Jennings, 

“Hey, it didn’t have to be like this. If you don’t got the money or dope, if it got burnt, 

just tell me, we can handle it. All I wanted was my money or my dope.” They then got 

in the car and drove off. 

When they left, Jennings was on all fours, kneeling with his hands taped together 

and out in front of him by the front door. Spohn had the Club in his lap. After they had 

driven a few miles, Spohn threw the Club out the car window onto the side of the road. 

After their vehicle passed a sheriff’s vehicle Ward threw the .357-magnum out of the car. 

Nearing Porterville, they saw another sheriff’s vehicle and got scared. They drove 

through a field and ended up adjacent to a residential area. Ward asked if Spohn knew 

anyone in the area and Spohn directed him to Wise’s house. 

Spohn had sold drugs to Wise for a few months and had attended an education 

program with her. He had been to her house once or twice. Spohn went into Wise’s 

house and Ward drove the car through a gate and into the backyard. Eventually, Ward, 

Blunt, and petitioner also came inside. Wise was not home and Spohn paged her with 

“187,” a code with which he usually paged her and which he also understood to be the 

Penal Code section for murder. Wise did not respond. Spohn paged his friends 

Sommerset and Young and talked to Sommerset on the phone. By the time he finished 

this conversation, the safe had been moved into Wise’s bedroom and Wise had arrived 

with Vance O. At some point, the .30-30 rifle and sword were also brought into the 

house. 

Spohn grabbed Wise by the arm and told her he needed to tell her something. He 

pushed her into the bedroom. Ward and either petitioner or Blunt were also present. 

Spohn said “I’m in some trouble here for a second.” Spohn did not tell Wise much but 

she was “freaking out,” until she eventually calmed down and said it would be alright. 

Someone shut the bedroom door. Wise had a crowbar and multiple people used it to try 

to open the safe, including Ward and Sommerset. 
12.

Eventually, they opened the safe and found a coin collection inside, along with 

cuff links, a few lighters, and some other odds and ends. They also found certificates for 

some of the coins. Ward and petitioner argued about the contents of the safe. They 

emptied the safe into two plastic bags. At some point, Spohn changed his clothes and 

shoes because he was worried they might have blood on them. He left his worn clothes 

and shoes in Wise’s bathroom. Ward also changed clothes. 

When Spohn came out of the bathroom after changing clothes, additional people 

had arrived at the house, including Moore. Spohn told Ward they should get out of there. 

Someone took one of the bags of stolen property and the sword and put them in the trunk 

of Wise’s car. The rifle was left at the house, along with the second bag. Spohn, 

petitioner, Blunt, and Wise left in Wise’s car. Young drove Ward, Sommerset, and 

Young’s girlfriend in Young’s car. 

The group eventually ended up in Young’s garage. The property was dumped out 

of the bag onto a pool table in the garage. The property included some two-dollar bills; 

silver certificates; an envelope, rolls, baggies, and books of coins, including buffalo 

nickels, silver coins, liberty 50-cent pieces, and old dimes; cuff links; lighters; and sports 

trading cards. Ward said, “This could be worth a million dollars. It’s worthless to me. I 

need my money or dope, not a fucking coin collection.” Ward, Sommerset, Wise, and 

Young took what they wanted from the property on the pool table. Spohn took some coin 

books and cuff links, but he later gave them away. Spohn did not see petitioner or Blunt 

take any property. Someone loaded up the rest of the property and took it with them. 

Spohn did not see any property left behind on the pool table. 

Eventually, Moore picked Ward up at Young’s house. Petitioner also left Young’s 

house at some point. Spohn and Young took Blunt and dropped him off at an overpass. 

Spohn went home. 

A day or so later, Spohn and Ward learned that Jennings had died. Around the 

same time, Spohn saw Ward and Moore with Jennings’s credit cards and Moore was 
13.

using them at a store. He did not know where Moore got the cards. The cards had not 

been dumped out on the pool table. At some point, he also saw the credit cards in Ward’s 

car. Spohn told Ward, “If you guys use those credit cards you’re through.” 

After a “couple weeks,” Spohn saw detectives at his neighbor’s house and the 

neighbor told Spohn they were looking for him in relation to a murder in Strathmore. 

Spohn then fled to Arkansas, where he ran into Ward. Soon thereafter, while still in 

Arkansas, Spohn was arrested. 

V. Spohn’s Out-of-court Statements 

At trial, Spohn acknowledged additional inconsistencies between his trial 

testimony and his statement to law enforcement in Arkansas. In Arkansas, Spohn may 

have reported that he and Ward picked up petitioner and Blunt at a house, rather than a 

bar. Spohn told investigators that Ward had backed into Jennings’s driveway, rather than 

pulling in “head in.” 

In his Arkansas statement, Spohn did not mention drugs or a drug deal. Rather, he 

reported he was told they were collecting on a gambling debt. It appeared to Spohn that 

Jennings did not know who they were and had no idea why there were at his house. Once 

Spohn saw the fight between Ward and Jennings, he assumed it was a “heist” and 

Jennings did not owe any money. He did not tell law enforcement that Jennings had a 

gun. Once the fighting started, he looked back and saw that petitioner and Blunt had 

gotten out of the car. He reported that Jennings stated several times that he did not want 

to die and pleaded with them to stop hitting him and take what they wanted. He 

described the beating as “a sick scene.” He stated Ward kept striking Jennings because 

Jennings kept trying to get up. 

Although Spohn testified at trial that Blunt did not participate in the beating or 

taking of property from the house, he reported in Arkansas that Blunt was out of his sight 

for a time, Blunt and petitioner rolled Jennings’s safe up the stairs and out of the 

basement, and Blunt exited the house with a bag of property and a pistol. He reported 
14.

that both Blunt and petitioner wore work gloves. However, Ward did not wear gloves

and therefore washed things up. Spohn also stated that he had wanted to call an 

ambulance but “they” said “nah, no, just get the fuck out of here.” 

In his Arkansas statement, Spohn also reported that it was Blunt who threw the 

Club and Jennings’s handgun out of the car. Spohn reported that petitioner, Blunt, and 

Ward worked on opening the safe at Wise’s house. Additionally, Blunt brought a bag 

and the sword into Wise’s house. Petitioner was in charge of dividing up the property at 

Young’s house. 

In Arkansas, Spohn reported that he and Ward had a conversation about 

methamphetamine being found in Jennings’s orchard and Ward denied having any 

knowledge of any methamphetamine. 

Spohn wrote letters to Wise while in custody. In one letter, he stated, “I’m not 

going down for [petitioner’s] evil scheme, you know, him and [Ward] put all this 

together, I found that out later on.” He clarified that the “evil scheme” he was referring 

to was a bad drug deal. 

VI. Wise’s Testimony

Wise testified pursuant to a plea agreement. As a result of aid Wise provided 

Spohn after the murder, she was charged with and pled guilty to a felony. Another felony 

charge was dropped and the judge indicated her testimony was to be considered at 

sentencing. 

Wise identified Spohn as a friend she had known for about six months, and 

testified she knew Ward for two or three months prior to the murder. Petitioner was 

married to Wise’s aunt for three days at one point, but Wise did not know him personally 

prior to the incident. She had never met Blunt before. 

Wise testified she had given Spohn a Club a few months before the murder, after 

her car was broken into while Spohn was using it. 
15.

When Wise came home on February 5, 1998, Spohn, Ward, Blunt, and petitioner 

were at her house. Ward had a cut on his head. Blunt was in the bedroom trying to pry 

open the safe with a crowbar, petitioner was sitting in the living room with a black bag 

between his legs, and Spohn and Ward were at the side door near the carport. Ward was 

wearing Wise’s sweatpants and shirt. Spohn told Wise he needed to talk to her, so she 

went into the bedroom with Spohn and Ward. Ward proceeded to help Blunt with the 

safe. Ward told Wise they had been in a fight and the police were chasing them. 

Sommerset came into the room and then left again. The safe was opened and Ward and 

Blunt took the contents in two or three bags while Spohn talked to Wise. Petitioner 

remained in the living room. Ward and Blunt carried the bags and loaded them into 

Wise’s car. They may have also loaded some things into Young’s car. Sommerset and 

Ward got into Young’s car while Spohn, Blunt, and petitioner got into Wise’s car with 

Wise. Blunt and petitioner told her there was a .30-30 rifle in her room and she could 

have it for her troubles. Ward told her there was a bag of bloody clothes on her back 

porch and she should burn them. 

The group drove to Young’s house. Wise opened her trunk and Spohn picked up a 

sword and went and hid it on the side of the house. Petitioner and Blunt each grabbed a 

bag and everyone went into the garage. The bags were emptied onto the pool table by the 

time Wise walked in and everyone was standing around, with Ward, Spohn, Blunt, and 

petitioner picking through the contents. Among the contents, Wise saw coin books, 

sports cards, watches, lighters, a passport, and items that appeared to be candlesticks. 

Ward took the two-dollar bills and credit cards and said the others could have the rest. 

Petitioner and Blunt took a bag of items, including coin books, to divide between them 

later. Spohn also filled a bag with coin books and other things. Petitioner or Blunt also 

mentioned that a bag may have been left at Wise’s house. Wise called Vance and told 

him to put the bag away. Blunt told her he would go to her house the next day for the bag 

and a handgun registered to himself that he left in Wise’s neighbor’s yard. Wise left 
16.

shortly thereafter with Sommerset. One person left walking but she could not recall who. 

Everyone else was still at Young’s house when she left. 

On her way home, Wise and Sommerset tried unsuccessfully to locate guns that 

petitioner, Blunt and Spohn told her were thrown from the car. She was later given more 

specific information regarding the location of the guns and attempted to search for them 

again without success. 

When Wise arrived home, the safe was still there. The .30-30 rifle was under her 

bed. About an hour later, Vance, Sommerset and another individual removed the safe 

from the house in Wise’s vehicle. Vance unloaded the rifle and put it up on the wall. 

Wise told Sommerset to get rid of it and he took it out of the house. Wise did not see the 

rifle again. 

Wise left her house for a few hours and, when she returned, her fence was down 

and a “strange guy,” later identified as Moore, was fixing it. Ward’s car was in the 

backyard and Ward was there eating. Ward asked whether Wise had located the guns 

that were thrown from the car and she told him she had not. Blunt came by and asked 

about the bag that was left at the house. 

Soon after the incident, Wise saw Ward use Jennings’s credit card at a gas station. 

Ward also told her he used the credit cards at a casino. 

Wise could not recall whether Spohn had told her that petitioner and Blunt were 

taking property out of Jennings’s house the entire time that Ward and Spohn were 

fighting with Jennings but she admitted that she told a detective that Spohn had so stated. 

She could not recall telling a detective that Ward had “busted” knuckles on both hands, 

but if she made such statement, it was true to the best of her recollection. Wise testified 

that Spohn told her he wore gloves during the incident. Although Spohn generally spoke 

freely with Wise about selling drugs, he told her the debt they attempted to collect from 

Jennings was for back pay owed to petitioner. Ward told Wise that “he did a burglary 

and a guy got beat up.” Petitioner told Wise that he threw a gun out of the car. Wise 
17.

acknowledged giving multiple false statements to law enforcement regarding the events 

following the incident. 

VII. Moore’s Testimony

Moore also testified pursuant to a plea agreement. Moore testified he had been 

convicted of five prior felonies in California, as well as additional felonies out of state, 

and he anticipated his testimony would result in a reduced sentence relating to a thenongoing prosecution for possession of methamphetamine unrelated to the instant case. 

Moore otherwise was subject to a life sentence under the Three Strikes law but made a 

deal with the prosecution that he would testify in exchange for being allowed to plead 

guilty to a single felony and to be sentenced as a second-striker. When entering his plea, 

he stated he understood that “the more I help [the prosecution,] the better it helps me.” 

At the time of trial, he had not been charged with any crimes relating to the instant case. 

Moore picked up Ward at a house at 6:00 a.m. on February 6, 1998, and drove him 

to a house where they saw Blunt, who told them petitioner was asleep upstairs. Moore 

then drove Ward to Wise’s house to pick up Ward’s car. Ward brought the car out of 

Wise’s backyard while Moore started repairing Wise’s fence. While there, Moore heard 

Blunt and Ward ask Wise about a bag of stuff. Wise did not know what happened to the 

bag. Ward was mad about the missing bag but Blunt said it did not matter to him. 

Moore, Ward, and Blunt all left Wise’s house, each driving their own vehicles. They 

proceeded together to a gas station where Ward used Jennings’s credit card to fill up his 

own vehicle, and then handed the pump to Moore and Blunt who filled up their vehicles. 

Two or three days later, Ward and Moore went shopping using Jennings’s credit 

cards. They visited numerous stores, where Ward and Moore picked out what they 

wanted and Ward purchased the items at the register by signing Jennings’s name. There 

were four or five credit cards in total. On a later date, Moore, Spohn, Ward, and others 

later used one of Jennings’s credit cards to pay for a meal at a casino and unsuccessfully 
18.

attempted to get a cash advance. On the way to the casino, they used silver quarters 

provided by Ward to buy items from a vending machine. 

On a still later date, Moore had an accident in which he wrecked, and then 

abandoned, Ward’s vehicle. When Ward and Moore found out the car had been 

impounded, Moore went to the storage yard and retrieved a booklet of silver dollars. The 

silver dollars were from “the 1800s, mostly.” Moore told a man at the impound yard that 

the coins belonged to his grandfather and had sentimental value. The next day, Ward 

paid to have the vehicle released. 

VIII. Defense Case

Ward testified at trial. At the time of the murder, he had known Spohn for about 

four months and petitioner for approximately one month. He met Blunt for the first time 

the night before the incident. 

Three or four days prior to the murder, petitioner told Ward that his friend wanted 

some methamphetamine. Ward sold drugs for a living and earned approximately $15,000 

per month. Ward obtained the drugs for petitioner’s deal from someone who fronted 

them to him. The day before the murder, Ward met up with petitioner to deliver five 

pounds of methamphetamine to Jennings. Jennings looked at the drugs but did not ask 

Ward to test them. Jennings gave Ward $10,000, half of the sale price, with the 

agreement to pay the remainder the following morning. 

The next morning, Ward paged Spohn to bring him his car at the motel where 

Ward was staying. After spending some time with Spohn, Ward took Spohn home 

briefly before returning to pick him up. At that point, Ward asked Spohn to ride with him 

to pick up some money and they went looking for petitioner. Ward did not know how to 

get to Jennings’s property without petitioner’s help. By this point, it was past the time 

Ward was scheduled to return to Jennings’s home for the rest of the money. Around 3:00 

or 4:00 p.m., they found petitioner and Blunt at a bar. Ward and Spohn followed 

petitioner and Blunt to drop off Blunt’s truck and the four then rode together to 
19.

Jennings’s property. Ward went with the intention to collect his money and did not 

intend to kill or rob Jennings. 

Ward pulled straight into Jennings’s driveway. Jennings came just outside the 

office doorway and Ward got out of the car to talk to him. Ward left the car running with 

the lights on. Jennings was upset that Ward was late and Ward told him he had trouble 

locating petitioner to give him directions. Jennings “was cussing about [petitioner] a 

little bit.” Ward asked for the money and Jennings told him there was a problem with the 

drugs and he needed to test them. He was concerned that two of the one-pound packages 

were a different color than the other three. 

Ward returned to his car to get from his trunk the soda bottle containing ammonia 

to test the drugs. He turned off the car and the lights and told Spohn that Jennings 

wanted to test the drugs, which would take about 30 minutes. Jennings was worried 

about who else was in the car, but Ward refused to tell him the names of anyone other 

than petitioner. As Ward returned to the porch, Jennings backed up against the door

frame, pulled out a gun, pointed it at Ward, and asked Ward if he wanted to die. Ward 

put his hands up and said this did not have to happen. Jennings said the drugs were “no 

good.” Jennings again threatened to kill Ward and looked toward the car. As he did so, 

Ward squirted the “stuff” from the soda bottle in Jennings’s face and chest. Ward tried to 

get the gun away from Jennings and the two men struggled. 

Ward yelled for help and Spohn came running up with the Club. Spohn swung the 

Club, trying to hit Jennings. Ward was not sure if Spohn was successful. Ward and 

Jennings ended up falling or stumbling into the office. At some point, Spohn hit Ward in 

the head with the Club. Ward did not feel the blow but woke up on the floor. Ward then 

saw Spohn hitting Jennings four or five times with the Club. The gun had come loose 

from Jennings’s hand and was under Ward’s body. Spohn stopped hitting Jennings and 

Ward picked up the gun and took it outside where he put it under the front seat of his car. 

Ward testified that the gun was a Ruger .357. 
20.

While Ward was away Spohn and Jennings got into a scuffle and Spohn ended up 

with blood all over his sweater. Petitioner wanted to know what was going on and Ward 

went to find out. Ward went back into the house and confronted Jennings. Jennings 

again said the drugs were “no good” and threatened to kill Ward. Ward asked Jennings 

to give him the money or return the drugs. Jennings would only say, “Fuck you.” At 

some point, Spohn walked to the office door. Jennings shoved Spohn out, pulled Ward 

back inside, and shut the door. They wrestled for about three minutes. Jennings tried to 

get to one of the drawers in his desk. Ward got free and opened the door to let Spohn 

back in with the Club. 

Ward went back to the car. Petitioner was freaking out. Ward told petitioner to 

talk to Jennings and petitioner complied. Ward remained in the car and could not hear 

the discussion. Petitioner returned and told Ward that Jennings was not going to pay, but 

petitioner knew where the money was. Petitioner left for another three to four minutes 

before returning and telling Ward he needed his help. Ward walked with petitioner to the 

back door, then down to the basement where they found Jennings’s safe. They rolled the 

safe out through the kitchen, across the back patio, and out to the car, where Ward loaded 

it into the trunk. The only other thing they took from the house was a .30-30 rifle they 

found leaning against the back door. Ward denied opening drawers and cupboards 

throughout Jennings’s house. 

While Ward was loading the safe into the car, Spohn was standing with Jennings. 

Ward saw duct tape on Jennings’s hands and feet but did not put it there himself. The 

duct tape must have come from inside the house because Spohn never went back to the 

car. Ward said they should leave but Spohn refused. Spohn was “really pumped up, 

really excited.” Spohn was concerned that Jennings would call the police once they left. 

Ward asked someone to pull the phone lines and either petitioner or Blunt did so. They 

left Jennings on his hands and knees in the office, with a rug over his head, yelling at 

them. 
21.

About a mile from the house, they encountered a sheriff’s deputy at a four-way 

stop who put a spotlight on them, and they sped off. Spohn threw the Club out of the car. 

About a mile further along, they saw a highway patrol officer and after that, Ward threw 

the .357-Ruger firearm he had taken away from Jennings out of the car. 

On Spohn’s suggestion, the group went to Wise’s house, where Ward took off the 

fence in order to pull his car into her backyard. The safe was taken into Wise’s bedroom 

where Ward helped open it. Inside, he found a coin collection, passports and sports 

cards. The items from the safe were put into one trash bag and put into Wise’s car. At 

Young’s house, the items were poured out onto the pool table. Ward took two passports 

and the credit cards. A couple of days later, Ward obtained some coins from Spohn and 

gave them to Moore. He also gave the passports to Moore. Ward used Jennings’s gas 

credit card four times. He was with Moore when Moore used Jennings’s credit cards 

approximately eight times at various department stores. Ward kept some of the property 

Moore purchased with the credit cards. Ward also was with Moore at the casino, but 

Ward did not know that Moore used Jennings’s credit card to pay for his meal until the 

time of trial. 

Weeks after the incident, Ward found out that Jennings had died and he was 

surprised. 

Ward denied telling Wise that he had done a burglary and a guy got beat up. He 

denied telling Moore that Blunt and petitioner took property from the house while Ward 

confronted Jennings. 

An attorney testifying as a defense expert opined that the marijuana in Jennings’s 

house was being cultivated for sale, and that it was common for marijuana growers to sell 

methamphetamine. However, he conceded there was no physical evidence of sales of 

marijuana or methamphetamine at Jennings’s home. 
22.

PROCEDURAL HISTORY

“In 1998, an information was filed alleging petitioner, along with codefendants 

Larry Ward, Randy Spohn, and Daniel Blunt, committed the following offenses against 

Jennings: murder (§ 187, subd. (a); count 1), robbery (§ 211; count 2), burglary (§ 459; 

count 3), and receiving stolen property (§ 496, subd. (a); count 4). As to count 1, the 

information alleged the special circumstances that the murder was committed during the 

commission of a robbery and burglary. (§ 190.2, subd. (a)(17)(A), (G).) As to petitioner 

and Blunt only, the information also alleged prior conviction allegations.[12] (People v. 

Ward (Oct. 22, 2002, F035608) [nonpub. opn.] (Ward).) 

“During trial, petitioner pled no contest to receiving stolen property. The robbery 

count against him was dismissed. A jury found petitioner guilty of first degree murder 

and burglary, and found both special circumstances to be true. During the penalty phase, 

the jury selected life without the possibility of parole as the appropriate penalty. 

Petitioner was sentenced on count 3 to the upper term of six years, and on count 1 to a 

consecutive term of life without the possibility of parole. On appeal, we affirmed.[13] 

(Ward, supra, F035608.)” (Potts, supra, F081141.)

On February 21, 2019, petitioner filed a petition for resentencing pursuant to 

section 1172.6. Counsel was appointed to represent him. Following briefing and a 

12 “As to Ward and Spohn only, the information also alleged weapon use and great 

bodily injury enhancements. (§§ 12022, subd. (b), 12022.7.)” 

13 “Spohn pled guilty to second degree murder prior to trial. Blunt pled no contest 

to receiving stolen property along with [petitioner], and the court dismissed this count as 

to Ward. The court also dismissed the robbery count as to Blunt. The jury found Blunt 

and Ward guilty on all remaining counts and allegations. Ward was sentenced on the 

robbery count and related enhancements to a term of 13 years, and on the murder count to 

a term of life without the possibility of parole. The trial court struck the special 

circumstance as to Blunt and sentenced him to a term of 25 years to life for murder, a 

concurrent four-year term for burglary, and a concurrent two-year term for possession of 

stolen property. On appeal, we directed a corrected abstract of judgment be prepared for 

Blunt, but otherwise affirmed. (Ward, supra, F035608.)”
23.

hearing, the court denied the petition at the prima facie stage. On appeal, we reversed 

and remanded with directions to issue an order to show cause and, to the extent 

necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d). 

(Potts, supra, F081141.)

Following further briefing on remand, the trial court heard the matter on 

March 17, 2023. Based on the trial evidence, the court found petitioner “was a direct 

perpetrator and/or intended to aid and abet the burglary and robbery before the victim 

was killed, and was a major participant in the crimes who acted with reckless disregard to 

human life.” Accordingly, the court found petitioner “guilty beyond a reasonable doubt 

of murder and the special circumstances alleged.” On that basis, the petition was denied. 

DISCUSSION

I. Applicable Law Regarding Section 1172.6

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017–

2018 Reg. Sess.) (Senate Bill No. 1437) “to amend the felony murder rule and the natural 

and probable consequences doctrine . . . 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.” 

(Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three 

separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 

(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added 

section 188, subdivision (a)(3), which requires a principal to act with malice aforethought 

before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at 

pp. 842–843.) Second, to amend the felony-murder rule, the bill added section 189, 

subdivision (e): 

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] in which a death occurs is liable for murder only if one of the 

following is proven: [¶] (1) The person was the actual killer. [¶] (2) The 

person was not the actual killer, but, with the intent to kill, aided, abetted, 
24.

counseled, commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶] (3) The person 

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.”14 (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at p. 842.)

Finally, the bill added former section 1170.95, now section 1172.6, to provide a 

procedure for those convicted of a qualifying offense “to seek relief under the two 

ameliorative provisions above.” (Gentile, supra, 10 Cal.5th at p. 843.) 

Under section 1172.6, an offender seeking resentencing must first file a petition in 

the sentencing court, and the sentencing court must determine whether the petitioner has 

made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)–(c); 

accord, People v. Strong (2022) 13 Cal.5th 698, 708.) If the sentencing court determines 

the petitioner has made a prima facie showing, the court must issue an order to show 

cause and hold a hearing to determine whether to vacate the murder conviction. 

(§ 1172.6, subds. (c), (d)(1).) 

At this evidentiary hearing, “the burden of proof shall be on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under 

California law as amended by the changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (d)(3).) “The admission of evidence in the hearing 

shall be governed by the Evidence Code, except that the court may consider evidence 

previously admitted at any prior hearing or trial that is admissible under current law, 

including witness testimony, stipulated evidence, and matters judicially noticed. The 

court may also consider the procedural history of the case recited in any prior appellate 

opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant 

to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless 

the evidence is admissible pursuant to another exception to the hearsay rule. The 

14 Additionally, subdivision (f) of section 189 permits felony-murder liability

under specified circumstances where the victim is a peace officer. 
25.

prosecutor and the petitioner may also offer new or additional evidence to meet their 

respective burdens.” (§ 1172.6, subd. (d)(3).) 

“Ordinarily, a trial court’s denial of a section 1172.6 petition [following an 

evidentiary hearing] is reviewed for substantial evidence. [Citation.] 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.” ’ ” ’ ” (People v. Reyes (2023) 14 Cal.5th 

981, 988.)

II. Sufficient Evidence of Felony-murder Liability

The trial court found petitioner was ineligible for resentencing because the 

prosecution had proved beyond a reasonable doubt that he was guilty of murder as a 

major participant in a qualifying felony who acted with reckless indifference to human 

life. Petitioner contends these findings are not supported by substantial evidence. We 

disagree.

A. Applicable Law Regarding Felony Murder

Since the passage of Senate Bill No. 1437, section 189, subdivision (e)(3) provides 

that a participant in a qualifying felony where a death occurs may be liable for murder if 

the person 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.” Relatedly, 

section 190.2 “identifies the circumstances under which murderers and accomplices can 

be punished by death or life imprisonment without parole. . . . For defendants who did 

not kill and lacked intent to kill, section 190.2, subdivision (d) permits such punishment 

only if they acted ‘with reckless indifference to human life and as a major participant’ 

[in] a qualifying felony like robbery.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; 

see In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).) 
26.

In People v. Banks (2015) 61 Cal.4th 788 (Banks), our Supreme Court sought to 

clarify the circumstances under which “an accomplice who lacks the intent to kill may 

qualify as a major participant so as to be statutorily eligible for the death penalty.” (Id. at 

p. 794.) The high court identified the following nonexhaustive factors as relevant to this 

inquiry: “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 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?” (Id.

at p. 803, fn. omitted.) However, “[n]o one of these considerations is necessary, nor is 

any one of them necessarily sufficient.” (Ibid.)

The following year, in People v. Clark (2016) 63 Cal.4th 522, 614–623 (Clark), 

the high court addressed the “reckless indifference” standard. The court explained that 

reckless indifference to human life “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.” (Id. at p. 617.) The court further 

explained that reckless indifference to human life has both a subjective and an objective 

component. (Ibid.) Subjectively, “[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.” (Banks, supra, 61 Cal.4th at p. 801; accord, Clark, at p. 617.) Objectively, 

“ ‘[t]he risk [of death] must be of such a nature and degree that, considering the nature 

and purpose of the actor’s conduct and the circumstances known to him [or her], its 

disregard involves a gross deviation from the standard of conduct that a law-abiding 

person would observe in the actor’s situation.’ ” (Clark, at p. 617.) The fact that a felony 
27.

involves a gun is insufficient, by itself, to support a finding of reckless indifference. (Id.

at pp. 617–618.)

In Clark, the high court provided the following nonexhaustive list of factors to be 

considered in determining whether the defendant acted with reckless indifference: 

(1) knowledge of weapons, and use and number of weapons; (2) physical presence at the 

crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the 

felony and period of interaction between the perpetrators and the victims, (4) the 

defendant’s knowledge of his or her cohort’s likelihood of killing, and (5) the defendant’s 

efforts to minimize the risk of violence during the felony. (Clark, supra, 63 Cal.4th at 

pp. 618–623.) Like the factors considered in Banks, “ ‘[n]o one of these considerations is 

necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at p. 618.) 

Notably, Banks and Clark derived their holdings from Enmund v. Florida (1982) 

458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison), the prevailing 

Eighth Amendment jurisprudence regarding the circumstances under which the death 

penalty permissibly may be imposed for felony murder. (In re Ramirez (2019) 32 

Cal.App.5th 384, 393.) Our Supreme Court has explained that Enmund and Tison

together establish a “ ‘spectrum of culpability,’ ” with felony murderers who “ ‘actually 

killed, attempted to kill, or intended to kill’ ” at one end, and minor actors who were not 

present on the scene and had no culpable mental state at the other. (Scoggins, supra, 9 

Cal.5th at p. 675.) We briefly describe the facts of Enmund and Tison to give context to 

this spectrum.

The defendant in Enmund was a getaway driver for a robbery. He sat waiting in 

his parked car a few hundred feet away from the home where his two confederates fatally 

shot an elderly couple when they resisted. (Enmund, supra, 458 U.S. at p. 784.) The 

high court emphasized the defendant “did not kill or attempt to kill,” and the record did 

not support a finding he had “any intention of participating in or facilitating a murder.” 
28.

(Enmund, at p. 798.) As such, imposition of the death penalty, which must be based 

solely on a defendant’s own culpability, was constitutionally disproportionate. (Ibid.)

The facts of Tison are starkly different. There, two brothers helped their father 

and his cellmate—both convicted murderers—escape from prison, arming the prisoners 

during their escape. (Tison, supra, 481 U.S. at pp. 139, 150–152.) When the group 

eventually experienced car trouble, one of the brothers flagged down a passing car for 

help while the other men laid in wait by the side of the road. (Id. at pp. 139–140.) The 

group then kidnapped at gunpoint a family of four in the passing car, robbed them, and 

drove them into the desert. (Id. at p. 140.) The brothers stood by while their father and 

his cellmate shot the victims repeatedly. The group then left the family to die in the 

desert and drove off in the family’s car. (Id. at pp. 139–141.) The high court emphasized 

that “the reckless disregard for human life implicit in knowingly engaging in criminal 

activities known to carry a grave risk of death represents a highly culpable mental state, a 

mental state that may be taken into account in making a capital sentencing judgment 

when that conduct causes its natural, though also not inevitable, lethal result.” (Id. at 

pp. 157–158.) The high court noted the brothers’ substantial and active participation in 

the kidnapping and robbery implicated them in the resulting deaths, and the death penalty 

could properly be imposed under such circumstances where the defendants also exhibited 

reckless indifference to human life. (Id. at p. 158.)

Our Supreme Court has explained that, “[s]omewhere between [Tison and 

Enmund], at conduct less egregious than the Tisons’ but more culpable than Earl 

Enmund’s, lies the constitutional minimum for death eligibility.” (Banks, supra, 61 

Cal.4th at p. 802.) 
29.

B. Major Participation

Substantial evidence supports a finding that petitioner was a major participant in 

the underlying burglary that led to Jennings’s death. 

First, substantial evidence supported a finding that petitioner had a major role in 

planning the burglary. (Banks, supra, 61 Cal.4th at p. 803.) Testimony established that 

petitioner had a long-standing interest in accessing Jennings’s safe and knowledge of its 

location. Petitioner also directed the perpetrators to Jennings’s residence. He wore work 

gloves in the house, indicating he came prepared to avoid leaving fingerprints. 

Furthermore, although Spohn testified that the perpetrators went to Jennings’s home to 

collect on a drug debt, other evidence suggested this was not the case. Spohn initially 

reported to law enforcement that he quickly realized the perpetrators were not there to 

collect on a debt, Jennings did not know who they were, and it was a “heist.” 

Additionally, when petitioner first met Spohn, petitioner stated, “We’ll need him, he’s 

going to know me,” suggesting that petitioner’s intent was to take Jennings by surprise, 

rather than to collect on a drug deal petitioner had helped organize. There was no 

physical evidence to support a theory that the crime resulted from a drug deal on which 

Jennings reneged. The court, as trier of fact, was free to credit evidence suggesting the 

perpetrators intended to commit burglary over testimony suggesting the perpetrators were 

merely collecting on a debt. Taken together, the evidence supports a finding that 

petitioner played a significant role in planning the burglary.

We acknowledge that petitioner does not appear to have supplied or used the 

murder weapon. Furthermore, the evidence does not suggest petitioner had any prior 

knowledge of his co-perpetrators’ inclination toward lethal violence or awareness of any 

particular dangers posed by the nature of the crime. However, the lack of such evidence 

is countervailed by evidence regarding the duration of the offense, at which petitioner 

was present, and at which he had ample opportunity to intervene but declined to do so. 

Moreover, the evidence suggests that, once lethal force was used, petitioner entered the 
30.

house to seize Jennings’s belongings. He then remained with the co-perpetrators into the 

next morning as they travelled around the county to dispose of evidence and divide the 

items stolen from Jennings’s house. His conduct following the murder reflects no 

disapproval or disavowal of his co-perpetrators’ actions. 

The foregoing substantial evidence is sufficient to support the court’s finding that 

petitioner was a major participant in the underlying felonies.

C. Reckless Indifference

There is substantial overlap between the evidence supporting the court’s major 

participation finding and its reckless indifference finding. We again acknowledge the 

evidence does not support a finding petitioner had prior knowledge of any weapons used 

in the offense or his co-perpetrators’ likelihood of killing. However, petitioner was 

physically present during the crime, which involved a prolonged scuffle that Spohn 

described to law enforcement as a “sick scene.” Ward inflicted multiple blows to 

Jennings’s head and body while petitioner stood or sat by and made no efforts to 

minimize the violence. Instead, petitioner seemingly viewed the beating as an 

opportunity to enter the home to remove the safe.15 Petitioner’s conduct also suggests 

the extreme violence perpetrated against Jennings was unsurprising to petitioner. (See 

People v. Mitchell (2022) 81 Cal.App.5th 575, 593.) 

We reject petitioner’s contention that Jennings’s restraint – which petitioner 

characterizes as lasting approximately 10 minutes – was not so prolonged as to provide a 

substantial window of opportunity for violence nor a sufficient opportunity for petitioner 

to intervene. (See Clark, supra, 63 Cal.4th at p. 620 [“Where a victim is held at 

gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged 

15 On this basis, the cases cited by petitioner, which involve defendants who were 

not close enough to the scene to prevent or restrain the use of force, are distinguishable. 

(Scoggins, supra, 9 Cal.5th at p. 675; In re Ramirez, supra, 32 Cal.App.5th at pp. 404–

405.)
31.

periods, ‘there is a greater window of opportunity for violence’ [citation], possibly 

culminating in murder.”].) First, the testimony cited by petitioner does not support any 

estimation of the duration of the offense. Moreover, Spohn’s testimony suggests 

Jennings was restrained for longer than 10 minutes. Spohn testified that Ward and 

Jennings struggled for the gun for a few minutes. The fighting which occurred while 

Ward and Jennings were locked in the office together lasted approximately five minutes. 

Ward spent another approximately five to 10 minutes inside the house. The group left the 

house five to 10 minutes after an encounter in which Ward hit Jennings and Jennings said 

he did not want to die. Spohn estimated that the entire incident lasted approximately 45 

minutes, including a 15- to 25-minute drive to Wise’s house. However, he also 

acknowledged that he could not accurately estimate time due to his mental state 

following the incident. 

Regardless, Jennings was restrained at least long enough for the perpetrators to 

enter the home and drag the safe up the basement stairs and across the home and into the 

driveway, before tipping it into the trunk of the car. He remained restrained while 

someone cut the phone lines prior to the perpetrators’ departure. Although Jennings had 

expressed difficulty breathing, he was left with his hands taped together and his phone 

lines cut, thus limiting his ability to seek aid once the perpetrators were gone. 

Petitioner’s participation in these events manifestly evidences his reckless indifference to 

Jennings’s life. 

The cases cited by petitioner are not to the contrary. In Scoggins, supra, 9 Cal.5th 

at page 681, the high court held that an interaction that lasted between a few seconds and 

three to five minutes did not involve a prolonged period of restraint that supported 

finding of reckless indifference. In In re Bennett (2018) 26 Cal.App.5th 1002, 1024

(Bennett), the court held that a time lapse of “minutes” was negligible and did not support 

a finding of reckless indifference. Neither involved a prolonged period of restraint 

similar to that at issue here. 
32.

Furthermore, we reject petitioner’s suggestion that the Bennett court characterized 

a 24- to 34-minute period of restraint as “negligible.” The Bennett court explained that 

the victim left his apartment “around 11:00 p.m.” A few minutes later, two of the 

perpetrators left a parking lot and walked across the street and into the victim’s apartment 

complex. (Bennett, supra, 26 Cal.App.5th at p. 1008.) Witnesses then saw the 

perpetrators chasing the victim and shooting at him. Several witnesses called 911. (Id. at 

p. 1009.) The police arrived at either 11:24 p.m. or 11:34 p.m., the last 911 call having 

come in three minutes earlier.16 (Bennett, at pp. 1009, 1024, fn. 8.) Thus, the robbery 

took place sometime in the interval between “a few minutes” after “around 11:00 p.m.,” 

and the 911 call at approximately 11:21 p.m. or 11:31 p.m. The court’s recitation of 

facts, which describes the victim running from the perpetrators until he was gunned 

down, does not suggest the victim was restrained at all, let alone for 24 to 34 minutes. 

Furthermore, the witnesses called 911 as they saw the chase and the shooting, and the 

police arrived a mere three minutes later. Likewise, the appellate court, which referred to 

videotape from the parking lot where the perpetrators parked, stated the time lapse 

between the perpetrators leaving the parking lot and subsequently returning after 

committing the offense was “minutes.” (Id. at p. 1024.) Thus, Bennett is distinguishable 

from the instant case on its facts.

In sum, substantial evidence supports the court’s finding that petitioner acted with 

reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 618–623.) 

16 The body of the opinion states that police arrived at 11:24 p.m., while a footnote 

states police arrived at 11:34 p.m. (Bennett, supra, 26 Cal.App.5th at p. 1009; see id. at 

p. 1024, fn. 8.) This difference, while significant, does not alter our analysis.
33.

DISPOSITION

The March 17, 2023 order denying the petition is affirmed.

DETJEN, Acting P. J.

WE CONCUR:

PEÑA, J.

SNAUFFER, J.