Filed 2/9/23 P. v. Sambrano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

ARTHUR M. SAMBRANO,

Defendant and Appellant.

F082945

(Super. Ct. No. CF86346302)

OPINION

APPEAL from an order of the Superior Court of Fresno County. F. Brian 

Alvarez, Judge.

Hilda Scheib, 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, Eric L. Christoffersen and 

Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Appellant Arthur M. Sambrano appeals after the trial court declined to recall his 

felony murder conviction and resentence him under Penal Code1former 

section 1170.95.

2

 Appellant raises several issues with the evidentiary hearing held in this 

matter, arguing the court committed procedural errors in accepting and relying upon 

certain evidence and a substantive error in determining appellant acted with reckless 

indifference to human life in the commission of the underlying robbery. The parties also 

dispute the proper standard of review when resentencing hearings are considered 

exclusively on a paper record. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, appellant and a codefendant, David Avila, were charged with the murder 

and robbery of Michael Bergman (Bergman or the victim). Avila eventually pleaded 

guilty to first degree murder. After a jury trial, appellant was convicted of both murder 

and robbery. Appellant was sentenced to 25 years to life on the murder conviction and 

three years, stayed, on the robbery conviction.

In 2019, appellant filed a petition for resentencing under what is now 

section 1172.6. In subsequent briefing, the People conceded appellant could state a prima 

facie case for relief and was not the person that actually killed Bergman, but opposed 

resentencing on the ground that appellant was a major participant in the robbery who 

acted with reckless indifference to human life. They sought to prove this fact through 

three pieces of evidence, a transcript of the preliminary hearing in appellant’s case, a 

copy of this court’s opinion affirming appellant’s conviction on appeal, and a transcript 

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to 

section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at 

that time, although prior changes had been implemented effective January 1, 2022. There is no 

dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the 

statute as section 1172.6.
3.

of statements made by appellant in a recent parole board hearing. Each of these pieces of 

evidence is summarized below before we recount the court’s ruling.

The Preliminary Hearing Evidence

The preliminary hearing transcript shows that appellant was bound over for trial 

based primarily on the testimony of a witness to the crime, a man named Keith 

Thompson. Thompson admitted to having memory problems and being unable to read, 

write, and spell to the point of needing special education services. At the time of the 

incident, Thompson worked at an upholstery shop next door to the liquor store where the 

murder occurred and had spent the night at work with a coworker to protect the shop’s 

merchandise. Thompson testified that he was outside at around 10:30 p.m. and witnessed 

the attack on Bergman.

According to Thompson, appellant and Avila were standing outside the liquor 

store when Bergman arrived in his car. Thompson testified he heard someone say, “Let’s 

go,” when the car arrived and assumed it was appellant that made the statement but did 

not actually see who was speaking. Thompson claimed Bergman parked in the lot and 

was going through his wallet while sitting in his car when appellant approached and 

asked for change to buy cigarettes.3 When Bergman declined to give appellant money, 

appellant grabbed Bergman by the shirt, told Bergman to give appellant the wallet, and 

said something along the lines of either, “It’s your life or your death,” or “Give me your 

wallet or your life.” Bergman continued resisting, at one point, kicking appellant away, 

and the two struggled for a short period of time over Bergman’s wallet.

3 Notably, Thompson also stated he was aware Bergman went into the store and bought 

groceries before the incident. He claimed to know this based on conversations with the store 

clerk and information gleaned from a police report, which Thompson later stated he had not read 

but had seen some pages. Thompson denied seeing Bergman enter the store and consistently 

stated the robbery occurred after Bergman pulled into the parking lot and opened his car door.
4.

While this interaction was occurring, Avila remained back where he and appellant

had been previously been standing. After a few moments, Thompson saw Avila 

approach the vehicle carrying what appeared to be a knife. Avila came up to where 

Bergman and appellant were struggling and, in the course of a second or so, reached both 

hands into the car. At this point, appellant obtained control of the wallet and both 

appellant and Avila walked away. Thompson testified he heard someone say something 

like, “I got it. Let’s go,” when they gained control of the wallet. In the course of Avila’s 

actions, Thompson did not hear any conversations between appellant and Avila, did not 

see appellant gesture to Avila, and never saw appellant with a weapon. The entire 

robbery and stabbing was estimated to take somewhere between seven and nine seconds.4

Thompson testified that while it did not immediately appear that Bergman was 

hurt, Thompson saw Bergman drive away in an erratic fashion while holding his chest. 

Bergman’s girlfriend testified that she found Bergman dead in her driveway, a short 

distance from the store, around 10:00 p.m. The parties stipulated that Bergman died from 

a single stab wound to the left side of his chest that pierced his heart.

Thompson testified that he informed his coworker someone had been robbed and 

that his coworker responded by chasing after appellant and Avila with a baseball bat. 

While the two fled, Thompson stated he saw appellant search through Bergman’s wallet 

and throw paper from it into a bush. Thompson conceded he had searched the area with 

the police for whatever was thrown and did not find it.

With respect to the overall scene, Thompson noted it was not a busy night at the 

liquor store, that no one else arrived during the time of the robbery, and that traffic was 

generally light. Thompson explained this was not typical, as most nights the area was 

4

In later testimony, Thompson claimed Bergman’s car had been parked for close to 

20 minutes and that Bergman had been sitting in the car for nearly 10 minutes while sorting 

through something. Thompson later backtracked, suggesting it was more than three minutes and

anywhere from five to 20 minutes.
5.

busy and people were around. Thomson also provided an opinion that appellant appeared 

to be high on “dust” during the incident.

Although Thompson provided the core testimony, the People also tried to 

introduce evidence through appellant’s cousin and Avila’s girlfriend, Margaret Carlos. 

Carlos was generally uncooperative, claiming to recall very little because she had been 

under the influence of drugs. Carlos specifically denied making several statements to 

police about the incident. Carlos did eventually admit that appellant and Avila had gone 

to the liquor store to make a phone call and buy a soda the night of the robbery.

The People then called a police officer to testify to the statements Carlos claimed 

not to have made. In this testimony, the officer recounted that Carlos claimed appellant 

had arrived at her apartment with a wallet, a bloody knife, and blood on his hands. At 

that time, Carlos claimed appellant had admitted to stabbing someone. Carlos also 

claimed, however, that it was Avila who had the knife and wallet, and that Avila had 

admitted to stabbing someone after being kicked during a robbery.

The officer also spoke to appellant. In that conversation, appellant denied 

stabbing anyone and stated he did not see Avila stab anyone either. Appellant admitted 

to being at the liquor store but claimed it was Avila that approached Bergman first. 

Appellant stated he had gone over to Bergman’s car after Bergman kicked Avila to assist 

in what he thought was a fight between the two.

In its ruling, the trial court recognized that the evidence included two differing 

factual scenarios but found probable cause existed to hold over both appellant and Avila

on murder and robbery charges. It then noted it did not need to resolve the factual 

dispute with respect to an alleged enhancement for use of a knife because it “appear[ed]

that [the] Court [was] in a position to find sufficient probable cause based upon differing

versions of the evidence, that there [was] a basis for the People to charge that in Superior 
6.

Court in the alternative obviously based upon the facts both of them cannot be found to 

have had personal use of a knife based upon the evidence adduced here.”

The Conviction and Original Appeal

Appellant was eventually tried and convicted of murder and robbery. He appealed 

that conviction, and in a nonpublished opinion (People v. Sambrano (March 1, 1989, 

F008032)), this court affirmed. In the course of this court’s opinion, we provided a case 

and factual summary of the evidence adduced at trial. We repeat those summaries here.5

In the statement of the case, this court wrote:

“Appellant and David Avila were charged with murder with the use of a knife. 

(Pen. Code, §§ 187, 12022, subd. (b)) and with robbery (Pen. Code, § 211).

“Avila pleaded guilty to first degree murder.

“Appellant’s first trial ended in a mistrial following reports by potential jurors that 

prosecution witness Keith Thompson was making statements concerning the case.

“During the proceedings to impanel a new jury, appellant made a Wheeler motion 

(People v. Wheeler (1978) 22 Cal.3d 258), which was denied.

“The jury found appellant guilty of first degree murder and robbery. He was 

sentenced to 25 years to life for the murder and granted presentence custody credit for 

243 days time served and 121 days good time/work time. A three-year sentence imposed 

for the robbery was stayed.

5 Appellant challenges the use of this evidence in his resentencing proceedings. With 

respect to the facts provided, we include these facts only for background concerning the nature of 

appellant’s conviction and the proceedings below. (See People v. Clements (2022) 

75 Cal.App.5th 276, 292, quoting § 1172.6, subd. (d)(3) [“effective January 1, 2022, the

Legislature limited use of prior appellate opinions, allowing trial judges to ‘consider the 

procedural history of the case recited’ ”]; see also People v. Cooper (2022) 77 Cal.App.5th 393, 

400, fn. 9 [“Senate Bill [No.] 775 [(2021–2022 Reg. Sess.)] prevents a trial court from relying on 

facts recited in an appellate opinion to rule on a petition under section [1172.6].”].) By doing so, 

we take no position on the admissibility of these facts in light of the case law noted.
7.

“Appellant makes multiple contentions on appeal, none of which have merit with 

the exception of the question of presentence custody credits. We order the Director of 

Corrections to award appellant the correct number of days credit and affirm the 

judgment.” (Italics added & underlining omitted.)

For the statement of facts, we wrote:

“Keith Thompson testified that on the night Michael Bergman was killed, he saw 

two men standing near the ice machine in front of Jack’s Liquor Store. He stated that one 

man was taller than the other and that the taller man was wearing a blue shirt. Thompson 

was employed by an upholstery shop located next to the liquor store.

“Thompson stated that after the victim’s car drove up to the liquor store, he saw 

the taller man go over to the car, place the palm of his hand on the window and ask the 

victim if he had any loose change. He next heard the taller man say, ‘[W]ell, give me 

your wallet.’ The two men then struggled over the wallet.

“During this struggle, the second man left the ice machine and approached the 

driver’s door. The second or shorter man stuck his head inside the car. The shorter 

man’s left hand went inside the car. The taller man then pulled the wallet out and said, 

‘[W]e got it, let’s go.’

“Thompson went into the upholstery shop and told his coworker, Martin Gamez, 

that someone was being robbed. They ran outside and saw Bergman drive away at a high 

rate of speed. Gamez saw the two suspects across the street. After Gamez shouted at the 

two men, they started running. Gamez chased the suspects for several blocks before 

losing them in an apartment complex.

“Bergman’s body was found lying in front of his vehicle in his girlfriend’s 

driveway. He died from a single stab wound to his chest. Appellant’s left palm print was 

found on the driver’s door window of Bergman’s car.
8.

“Sophia Villarreal also observed the robbery take place. She testified she noticed 

two men by the ice machine in front of the liquor store. The taller man was counting 

money. After Bergman came out of the store, she saw the shorter man follow him to the 

car and lean inside. After a few minutes, the taller man approached the car and just stood 

there. Shortly thereafter, the two men took off running, and the car drove away quickly. 

Villarreal identified appellant as the taller man.

“Cruz Subia, appellant’s cousin, testified that he, appellant, appellant’s wife and 

Maria Reyna were staying at his cousin Margaret Carlos’s apartment along with Carlos’s 

boyfriend, Avila. Subia testified that Avila was the first to return to the apartment after 

he and appellant left to go to the store. Avila looked scared and was breathing hard. 

Avila went to the kitchen and began washing blood off a knife. A few minutes later, 

appellant returned also looking scared. Appellant asked Avila what happened, and Avila 

responded, ‘I stabbed some guy and took his wallet.’ Subia took the wallet from Avila 

and burned it. Subia testified that appellant told him he had not known what was going 

on. Appellant stated that when he told Avila he did not have enough money to buy beer, 

Avila asked someone for money and then started fighting with this person. Appellant did 

not say he was involved in the fight in any way.

“Maria Reyna was also present at the apartment when Avila and appellant

returned. Avila was the first to return and began washing blood off a knife and out of his 

shirt. She heard Avila say he stabbed someone and took his wallet. Reyna stated she 

never saw appellant with the wallet.

“Appellant testified that Avila followed him to the liquor store. After arriving at 

the store, appellant stood in front and counted his change. Avila asked him to buy a 40-

ounce beer[,] but appellant did not have enough money. When the victim walked out of 

the store, Avila approached him to ask for change. Avila and the victim started fighting. 

Appellant walked over to the car and put his hand on the window. He intended to either 
9.

break up the fight or help Avila out. However, as soon as he arrived[,] both Avila and 

Bergman left quickly. Appellant started running but then stopped, realizing there was no 

reason to run, and walked back to the apartment.

“Appellant stated that when he arrived at the apartment, Avila was washing blood 

off of his knife and his hands. When appellant asked Avila what happened, Avila replied, 

‘I stabbed and took that guy’s wallet.’ Avila pulled out the wallet and handed it to 

Margaret Carlos. Appellant refused to have anything to do with the wallet and 

disclaimed any involvement with it.”

On appeal, appellant raised issues with jury selection, two evidentiary rulings by 

the trial court, the sufficiency of the evidence, and the calculation of presentencing 

credits. One of the evidentiary rulings concerned appellant’s desire to cross-examine 

Thompson on the statements that led to the initial mistrial. Thompson believed these 

statements showed Thompson as the type that would “exaggerate and misstate facts to 

ingratiate himself to individuals whom he believes he can become important to.” This 

court found no error because other testimony regarding this point had been introduced 

through the prior juror’s themselves. With respect to the sufficiency argument, this court 

explained that “[a]ppellant testified that he was at the liquor store when the murder and 

robbery took place. Thus, the issue before the jury was whether appellant was involved 

in the crime. Keith Thompson’s testimony supported the jury’s determination that 

appellant was involved. Although Thompson’s testimony was contradicted by other 

witnesses and there was testimony that his reputation for truth was poor, the jury decided 

he was credible. The matters to which Thompson testified were neither physically 

impossible nor demonstrably false without resort to inferences or deductions. [Citation.] 

Therefore, the jury’s finding is binding on this court.” As, noted, this court ultimately 

affirmed the conviction but modified appellant’s presentence custody credit.
10.

The Parole Hearing Evidence

In 2018, appellant testified in a parole hearing.6 During that testimony, appellant 

made several statements about the crime underlying his conviction.

Initially, appellant indicated that he had gone to the store knowing he did not have 

enough money but figuring he could take by force what he needed from anyone that 

arrived. Appellant affirmed that he had gone to the store with Avila but stated he did not 

know Avila had a knife and that he had not made any plans with Avila regarding a 

robbery. Appellant acknowledged, “I robbed [Bergman], my crimie[, Avila,] stabbed 

him,” and conceded his admission of the robbery was a recent change in his statements. 

But appellant also explained, “[E]verything happened so quick it was just—it wasn’t 

planned, it just came—it just happened like that. And to this day I—I’m just like I 

could’ve done something else instead of that.” According to appellant’s various 

statements, he did not go to the store with a direct plan to rob anyone and did not have 

any previous discussion with Avila about doing so, but he did decide to get money from 

Bergman in the moment and conceded he “wasn’t going to take no for an answer.” 

Appellant conceded he would likely have assaulted Bergman even if Bergman did not 

have any money.

As the interview proceeded, appellant stated that Avila was the first to approach 

Bergman and that appellant only intervened after he thought the two were fighting. 

Appellant claimed he only learned of the stabbing once the two were back at Carlos’s

apartment and Avila told him what happened. He ultimately claimed he was guilty of 

being in the wrong place at the wrong time.

6 Appellant also challenges the use of this evidence in his resentencing proceedings. Our 

recitation of these facts is for background and context and does not indicate that they were 

properly admitted.
11.

The Resentencing Evidentiary Hearing and Ruling

After admitting the above evidence, the trial court heard argument from the parties 

and denied appellant’s petition for resentencing. During argument, the court 

acknowledged that Carlos “was all over the place and had to be impeached in order to 

elicit any testimony,” and that appellant was not charged with “malice murder.” In 

ruling, the court conceded it had read and relied upon the preliminary hearing transcript, 

the Court of Appeal opinion, and the parole hearing transcript that had been introduced. 

The court then identified several factors it can consider when determining whether a 

defendant acts with reckless indifference to human life and whether a defendant is a 

major participant in an underlying felony.

Following its identification of these factors, the court provided a thorough

recitation of the facts of the case, as found in the multiple documents it considered. 

Interspersed with its recitation of the facts were references back to several of the factors 

the court can consider for both the major participant and reckless indifference to human 

life considerations, along with commentary about how the court viewed certain witnesses 

and their testimony.

With respect to the major participant finding, the court found the evidence showed 

appellant’s “role and planning was manifest and apparent.” However, the court noted

that “[t]here was no evidence that [appellant] supplied or used a lethal weapon” and “no 

evidence about any dangers posed or past experience of conduct by the other participant, 

Mr. Avila.” Looking at the evidence concerning how Bergman was ultimately stabbed, 

the court determined appellant “was in a position to prevent the death” because while 

appellant “could have simply just waived off Mr. Avila,” he instead continued with his 

efforts to obtain the wallet when Avila approached. Similarly, the court focused on the 

fact appellant left with Avila after the stabbing, accepting Thompson’s testimony on this 

point despite the fact he was generally impeached based on memory issues. Overall, the 
12.

court focused on its findings that accosting Bergman in his car and preventing him from 

exiting meant appellant’s “actions acted as a resisting influence” that “played a particular 

role in Mr. Bergman’s death.”

The court then turned to the reckless indifference to human life element. Stating 

first this was the “closer issue for the Court,” the court began by noting “that there is no 

evidence that [appellant] knew a lethal weapon would be present during the robbery” and 

“no evidence that he knew that a lethal weapon was likely to be used.” The court then 

recited preliminary hearing evidence from Carlos concerning events before and after the 

attack, whom the court had found fully impeached, before reviewing conflicts between 

appellant’s version of the events and Thompson’s testimony that appellant had been the 

initial aggressor.

Finding there was “a lot of overlap with regards to the major participant aspect of 

this case,” the court specifically identified the fact appellant “was present at the scene,” 

accepted Thompson’s preliminary hearing testimony and appellant’s concession at the 

parole hearing that appellant was the initial aggressor, and recalled appellant’s statement 

to Bergman of, “It’s your life or your death,” in the face of Bergman’s refusal to provide 

his wallet. The court reasoned these facts demonstrated “a mental state above and 

beyond merely a passive participant,” one “approaching reckless indifference to human 

life.” Reviewing the general scope of Thompson’s preliminary hearing testimony, the 

court determined appellant did not “try to minimize the possibility of violence” but rather 

said, “ ‘Give me your wallet or your life.’ ” Likewise, the court found appellant “put Mr. 

Bergman in a vulnerable position” when he “essentially trapped Mr. Bergman in the 

driver’s seat of his vehicle during the robbery[,] ensuring that Mr. Bergman would not 

escape as [appellant] stood by in the doorway of the car.” Summarizing the scope of its 

findings, the court found appellant acted with reckless indifference to human life by 

“noting that there was no evidence that [appellant] knew of this objective knowledge of a 
13.

knife being used, but also noting that he was present there during the time and he was in a 

position [to] see and facilitate the underlying robbery.”

This appeal timely followed.

DISCUSSION

Although several disputes over the procedural processes for reviewing a trial 

court’s ruling following an evidentiary hearing exist between the parties, underlying 

those issues is a fundamental question whether the evidence introduced by the 

prosecution is adequate to demonstrate appellant could have been convicted of felony 

murder under the standards currently employed. We note these underlying disputes at the 

outset because, upon review of the record, we conclude the evidence was sufficient to 

convict appellant of felony murder under any potential standard of review and regardless 

of the scope of evidence that could be properly considered. We therefore focus primarily 

on the preliminary hearing evidence offered to show appellant was a major participant 

who acted with a reckless indifference to human life and do not reach those procedural 

disputes raised by the parties which are not ultimately necessary to resolving this matter.

Standard of Review and Applicable Law

Section 1172.6, subdivision (a) provides that one convicted of felony murder or 

murder under the natural and probable consequences doctrine or other theory under 

which malice is imputed to a person based solely on that person’s participation in a crime 

may file a petition to have the conviction vacated and to be resentenced on any remaining 

counts when (1) an information was filed against the petitioner that allowed the 

prosecution to proceed under a theory under which malice is imputed to a person based 

solely on that person’s participation in a crime, (2) the petitioner was convicted of murder 

after either a trial or accepting a plea offer in lieu of a trial, and (3) the petitioner could 
14.

not presently be convicted of murder or attempted murder because of changes to 

section 188 or 189.

Relevant here, “section 189, as amended, now limits liability under a felonymurder theory principally to ‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those 

who, ‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in 

the first degree’ (id., subd. (e)(2)). Defendants who were neither actual killers nor acted 

with the intent to kill can be held liable for murder only if they were ‘major participant[s] 

in the underlying felony and acted with reckless indifference to human life, as described 

in subdivision (d) of [Penal Code] Section 190.2’—that is, the statute defining the felonymurder special circumstance.” (People v. Strong (2022) 13 Cal.5th 698, 708.)

Returning to the resentencing statute, if a petitioner makes a prima facie showing 

for relief, the trial court “shall issue an order to show cause.” (§ 1172.6, subd. (c).) At 

this point, the court must “hold a hearing to determine whether to vacate the murder ... 

conviction and to recall the sentence and resentence the petitioner on any remaining 

counts.” (§ 1172.6, subd. (d)(1).)

Several procedural rules are specifically provided for the show cause hearing. As 

set out in section 1172.6, subdivision (d)(3): “At the hearing to determine whether the 

petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder 

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

January 1, 2019. 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 
15.

Section 872 shall be excluded from the hearing as hearsay, unless the evidence is 

admissible pursuant to another exception to the hearsay rule. The prosecutor and the 

petitioner may also offer new or additional evidence to meet their respective burdens. A 

finding that there is substantial evidence to support a conviction for murder, attempted 

murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and enhancements attached to the 

conviction, shall be vacated and the petitioner shall be resentenced on the remaining 

charges.”

Under the existing rubric used in these matters, we “review the trial judge’s 

factfinding for substantial evidence. [Citation.] We ‘ “examine the entire record in the 

light most favorable to the judgment to determine whether it contains substantial 

evidence—that is, evidence that is reasonable, credible, and of solid value that would 

support a rational trier of fact in finding [the defendant guilty] beyond a reasonable 

doubt.” ’ [Citation.] Our job on review is different from the trial judge’s job in deciding 

the petition. While the trial judge must review all the relevant evidence, evaluate and 

resolve contradictions, and make determinations as to credibility, all under the reasonable 

doubt standard, our job is to determine whether there is any substantial evidence, 

contradicted or uncontradicted, to support a rational fact finder’s findings beyond a 

reasonable doubt.” (People v. Clements, supra, 75 Cal.App.5th at p. 298, second 

bracketed insertion in original.)7

7 Appellant, relying on the analysis contained in People v. Vivar (2021) 11 Cal.5th 510, 

argues this standard rubric is improper where the underlying evidence is a paper record 

recounting events from many year’s past. Although this court considers Clements as the 

controlling law, we have also independently reviewed the evidence. As our opinion would not 

change regardless of the standard of review, we take no position on the effect Vivar may have on 

paper-record cases that require no in-person credibility determinations.
16.

Major Participant Finding

As noted above, under the current statutory scheme, “[d]efendants who were 

neither actual killers nor acted with the intent to kill can be held liable for murder only if 

they were ‘major participant[s] in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of [Penal Code] 

Section 190.2’—that is, the statute defining the felony-murder special circumstance.” 

(People v. Strong, supra, 13 Cal.5th at p. 708, first bracketed insertion added.)

To be a major participant in the underlying felony, “a defendant’s personal 

involvement must be substantial, greater than the actions of an ordinary aider and abettor 

to an ordinary felony murder.” (People v. Banks (2015) 61 Cal.4th 788, 802.) “The 

ultimate question pertaining to being a major participant is ‘whether the defendant’s 

participation “in criminal activities known to carry a grave risk of death” [citation] was 

sufficiently significant to be considered “major” [citations].” ’ ” (People v. Clark (2016) 

63 Cal.4th 522, 611 (Clark).) The following factors may be relevant to a determination 

of whether a defendant was a major participant in a felony murder: “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?” (Banks, at p. 803, fn. omitted; accord, Clark, at p. 611.) 

“No one of these considerations is necessary, nor is any one of them necessarily 

sufficient.” (Banks, at p. 803.)

Appellant raises a challenge to the trial court’s finding that he was a major 

participant in the underlying robbery. Focusing on evidence appellant argues shows a 
17.

lack of connection between appellant and Avila and a lack of knowledge Avila was 

armed or dangerous, appellant argues that “the court erred in concluding beyond a 

reasonable doubt that appellant was a major participant in the incident resulting in 

Bergman’s murder.” We do not agree.

We readily conclude that appellant was a major participant in the underlying 

felony, a robbery. The evidence shows he initiated the robbery, actively engaged in 

attempts to complete it, and participated in retrieving and leaving with Bergman’s wallet. 

Appellant was therefore far removed from a standard aider and abettor. Rather, he was 

the primary actor in the underlying felony up until the point the murder occurred and 

continued to participate after the murder.

While appellant’s argument infers that he must be a major participant in not only 

the robbery but also the actual killing, this requirement is not in the statutory language 

and we see no evidence such a specific finding is required by the case law. Rather, the 

major participant analysis often overlaps with and is related to the reckless indifference to 

human life analysis, which focuses on determining culpability for a killing that occurred 

because of choices and conduct made in effectuating the underlying felony. (See Clark, 

supra, 63 Cal.4th 522 at p. 615 [although the requirements are stated separately, “ ‘they 

often overlap’ ”].) We further develop the reckless indifference point, below. In doing 

so, our conclusions strongly support not only finding that appellant was a major 

participant in the robbery generally, but also that he knowingly engaged in a cooperative 

robbery with Avila which raised the inherent risk of harm to human life. Accordingly, 

we find no error in the trial court’s determination appellant was a major participant in the 

underlying robbery.

Reckless Indifference to Human Life Finding

What it means to be a major participant who acts with a reckless indifference to 

human life under section 189 is a heavily analyzed issue. Our Supreme Court provided 
18.

an excellent summary of the law as part of In re Scoggins (2020) 9 Cal.5th 667. The 

general framework for analyzing the issue is well settled, a point recognized by the trial 

court, but turns on a “fact-intensive, individualized inquiry” for the case. (Id. at p. 683.) 

We therefor provide a general review of the analytical framework for this issue before 

considering the facts of this case.

The reckless indifference analysis considers the totality of the circumstances 

surrounding the crime to determine whether the accused acted in a manner that created a 

grave risk of death. As explained by our Supreme Court, in general, a reckless 

indifference to human life “is ‘implicit in knowingly engaging in criminal activities 

known to carry a grave risk of death.’ [Citation.] Examples include ‘the person who 

tortures another not caring whether the victim lives or dies, or the robber who shoots 

someone in the course of the robbery, utterly indifferent to the fact that the desire to rob 

may have the unintended consequence of killing the victim as well as taking the victim’s 

property.’ [Citation.] Reckless indifference ‘encompasses a willingness to kill (or to 

assist another in killing) to achieve a distinct aim, even if the defendant does not 

specifically desire that death as the outcome of his actions.’ ” (In re Scoggins, supra, 

9 Cal.5th at pp. 676–677.) However, “ ‘[a]wareness of no more than the foreseeable risk 

of death inherent in any [violent felony] is insufficient’ to establish reckless indifference 

to human life; ‘only knowingly creating a “grave risk of death” ’ satisfies the statutory 

requirement. [Citation.] Notably, ‘the fact a participant [or planner of] an armed robbery 

could anticipate lethal force might be used’ is not sufficient to establish reckless 

indifference to human life.” (Id. at p. 677, first & third bracketed insertions added.)

The test considers the facts from both objective and subjective perspectives, 

considering both as relevant elements in the analysis. “As to the subjective element, 

‘[t]he defendant must be aware of and willingly involved in the violent manner in which 

the particular offense is committed,’ and he or she must consciously disregard ‘the 
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significant risk of death his or her actions create.’ [Citations.] As to the objective 

element, ‘ “[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.” ’ ” (In re Scoggins, supra, 9 Cal.5th at 

p. 677, second bracketed insertion added.)

When considering the evidence in its totality, from both objective and subjective 

perspectives, our Supreme Court has identified several questions that explore relevant 

factors in the analysis. No one of these questions is dispositive of the issue, nor is any 

necessarily sufficient to prove a reckless indifference to human life existed. However, 

given their usefulness, we begin by reviewing them in the context of the evidence of this 

case.

The questions are: “Did the defendant use or know that a [weapon] would be used 

during the felony? How many weapons were ultimately used? Was the defendant 

physically present at the crime? Did he or she have the opportunity to restrain the crime 

or aid the victim? What was the duration of the interaction between the perpetrators of 

the felony and the victims? What was the defendant’s knowledge of his or her 

confederate’s propensity for violence or likelihood of using lethal force? What efforts 

did the defendant make to minimize the risks of violence during the felony?” (In re 

Scoggins, supra, 9 Cal.5th at p. 677.)8 We therefore consider the facts of this case in 

8 An additional potential factor, identified in In re Moore (2021) 68 Cal.App.5th 434, 439, 

is the defendant’s youth at the time of the offense. Appellant argues this factor weighs in favor 

of finding no reckless indifference to human life. However, the defendant in In re Moore was 

only 16 years old (id. at p. 454), while appellant in this case was 21 years old at the time of the 

robbery and thus not an adolescent. In re Moore draws a clear line between “juvenile” offenders 

and “adult” offenders that is not triggered by appellant’s age. (Ibid. [noting evidence sufficient 

to find reckless indifference for an adult insufficient for less mature children].) Accordingly, 

although In re Moore was not decided at the time of appellant’s evidentiary hearing, we conclude 

a remand is not necessary for consideration of this potential factor. (Contra, People v. Jones 

(2022) 86 Cal.App.5th 1076, 1093 [remanding in the interest of justice only].) Appellant’s 
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light of these guiding questions to determine whether the evidence supports a conclusion 

that appellant acted with a reckless indifference to human life.

As the trial court recognized, some of these factors counsel against a finding that 

appellant acted with a reckless indifference to human life. For example, there is no direct

evidence that appellant was aware Avila had a knife

9 or was likely to use a knife in the 

course of the robbery, and no evidence appellant knew of any propensity for violence 

from Avila.

Other factors are generally neutral given the evidence submitted to the trial court. 

For example, evidence regarding the duration of the robbery does not directly support 

either side of the reckless indifference to human life analysis. While the evidence

indicates the entire interaction was relatively brief, the testimony does show that there 

was an initial verbal indication from appellant that he was going to engage in a robbery, a 

period of time in which appellant walked over to Bergman, spoke with him, and actively 

tried to obtain Bergman’s wallet—a time period which included sufficient time for Avila 

to potentially hear appellant’s “your wallet or your life” comment and travel from his 

location to the robbery—and a brief period where both engaged in robbing Bergman. 

citation to section 3051, which grants parole hearings to youthful offenders under the age of 

26 years, does not convince us otherwise. Appellant cites no authority that persuades us we 

should extend the assumption that a minor’s maturity and judgment is undeveloped to persons 

beyond the age of 18 years. Rather, the age of 18 years is generally considered “ ‘the point 

where society draws the line for many purposes between childhood and adulthood.’ ” (Graham 

v. Florida (2010) 560 U.S. 48, 74.) Accordingly, we assume the court properly considered 

appellant’s age and maturity in the totality of the circumstances analysis typically required in this 

case. (See In re Julian R. (2009) 47 Cal.4th 487, 499 [trial court is presumed to have been aware 

of and followed the applicable law].)

9 The only indication that appellant knew of a knife came from Carlos’s internally 

inconsistent testimony that it was appellant who returned with a bloody knife and bloody hands, 

indicating he had been the attacker. No party argues this testimony was true, and it was 

contradicted not only by Carlos but by all other evidence in the case. The trial court recognized 

the problems in Carlos’s testimony and did not appear to consider it reliable. We, likewise, 

would also discount Carlos’s testimony in an independent review.
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Although the time involved was not prolonged, it was sufficient to provide a greater 

opportunity for violence, as strongly evidenced by the fact Avila could observe the 

interaction and then choose to intercede while it was still occurring. (See In re Scoggins, 

supra, 9 Cal.5th at pp. 680–681 [finding a three-to five-minute period is not a prolonged 

period but noting the relevant question is whether the period of time provides a greater 

window of opportunity for violence, possibly culminating in murder].)

Based on these factors, the core question in this case is how to view the remaining 

factors related to appellant’s presence and actions during the robbery with the generally 

neutral or exculpatory factors discussed above. The trial court’s analysis concluded that 

appellant’s presence and actions during the robbery were sufficient to show a reckless 

indifference to human life. Upon review, when looking at appellant’s presence at the 

robbery, his opportunity to restrain the crime or aid the victim, and his efforts to 

minimize the risks of violence, we agree with the trial court’s conclusion.

The trial court’s recognition that appellant was present at the scene of the stabbing 

is well supported by the record, as there is no meaningful dispute appellant was engaged 

with Bergman at the time Avila acted. This fact differentiates this case from many of 

those finding no reckless indifference, which typically include facts suggesting that the 

defendant was across the street or otherwise meaningfully removed from the conduct 

when the killing occurred. (See In re Scoggins, supra, 9 Cal.5th at pp. 678–679 [noting

the defendant was across the street at time of shooting and contrasting that with cases 

where the defendant was present during the entire sequence of events]; In re Ramirez

(2019) 32 Cal.App.5th 384, 405 [the defendant was several feet away, with cars between

him and the shooting]; In re Moore, supra, 68 Cal.App.5th at p. 452 [the defendant sat in 

car during shooting].) As our Supreme Court has recognized, the case law stresses “the 

importance of presence to culpability” particularly because proximity to the murder and 
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events leading up to it can demonstrate the murder is a culmination or foreseeable result 

of several intermediate steps. (Clark, supra, 63 Cal.4th at p. 619.)

The preliminary hearing evidence in this case contains meaningful evidence 

supporting the conclusion that Bergman’s death was a foreseeable consequence of several 

intermediate steps. The record shows appellant present at the scene with Avila before the 

robbery. Upon the start of the robbery, a witness heard communication between 

appellant and Avila, the comment, “Let’s go.” Appellant then proceeded to Bergman’s 

car and attempted to take his wallet. When that initially failed, appellant stated, loud 

enough to be heard, something similar to “Give me your wallet or your life.” After this 

comment, appellant reengaged with Bergman and struggled to obtain his wallet. As this 

struggle continued, Avila, who had remained behind during the “Let’s go” and “Give me 

your wallet or your life” comments, left his position and came to appellant’s aid. In 

doing so, Avila reached into the car where appellant had cornered Bergman and stabbed 

him. Immediately after, the two communicated again through the comment, “I got it. 

Let’s go,” before the two fled together, with appellant looking through Bergman’s wallet 

as they left.

The evidence permits the reasonable inferences that appellant and Avila were 

engaged in a coordinated robbery, that appellant’s actions and comments throughout 

increased the risk that Avila would engage as well as the risk of lethal action occurring, 

and that Avila’s eventual participation was not only predictable but welcomed by 

appellant. Such inferences are sufficient to demonstrate substantial evidence supports the 

trial court. (People v. Grant (2020) 57 Cal.App.5th 323, 330 [“ ‘Substantial evidence 

includes circumstantial evidence and any reasonable inferences drawn from that 

evidence.’ ”].) Coupled with the evidence discussed above, this court is also 

independently convinced that appellant exhibited a reckless disregard for human life in 

the course of the robbery. Appellant did not act as if Avila’s participation was 
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unexpected or unwelcome and, coupled with his express threat to Bergman’s life, did not 

seek to limit the potential for violence by ceasing his conduct when it initially failed, 

calling off Avila when he interceded, or breaking away from Avila after his interjection 

allowed appellant to obtain Bergman’s wallet. His extensive, cooperative conduct 

throughout the robbery showed a conscious disregard of a substantial risk of death 

occurring in the robbery.

In line with this analysis, the factor considering appellant’s efforts to minimize the 

risks of violence also tends toward finding a reckless indifference to human life. Even 

accepting that the evidence does not demonstrate appellant knew Avila was armed, the 

overall evidence generally shows a plan to engage in a cooperative robbery in a public 

space. The cooperative nature of the plan, appellant’s conduct in confronting the victim 

in the enclosed and controllable space of his car while threatening his life, and the fact 

the robbery occurred at night all work to increase the risk of violence over other possible 

robbery plans. This is particularly so given the unpredictable nature of a cooperative 

robbery in a public place, where discovery of the criminal act could immediately increase 

the likelihood of being caught and thus the need to engage in reckless conduct to succeed.

Regardless of how this court conducts its review of the record, the end result is 

that the evidence submitted to the trial court demonstrates appellant acted with a reckless 

indifference to human life. There is substantial evidence tying appellant to a cooperative 

plan to commit an unarmed robbery and to specific steps in the course of the robbery that 

increased the risk of death, such as the manner in which appellant confronted the victim 

and the statements made just before and during the robbery. Ultimately, the analysis in 

these cases consists of a “fact-intensive, individualized inquiry.” (In re Scoggins, supra, 

9 Cal.5th at p. 683.) Here, appellant actively led the robbery, made threats to Bergman’s 

life, was present for the stabbing, and fled with his partner. While some of the factors 

weigh in appellant’s favor, the overall facts concerning the robbery planned and executed 
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in this case demonstrate the reckless indifference to human life required to affirm the trial 

court’s order.

Evidentiary Issues

Having concluded that the evidence supports the trial court’s order, we briefly 

consider and reject appellant’s argument the trial court erred by relying upon the 

preliminary hearing transcript to support its conclusion. The cases cited by appellant 

which reject reliance on the preliminary hearing transcript to reject a petition for 

resentencing arise in the context of the prima facie eligibility determination, where the 

trial court is generally not permitted to resolve factual disputes. (See People v. 

Davenport (2021) 71 Cal.App.5th 476, 481–482 [although preliminary hearing transcript 

is part of the record of conviction, the trial court engages in impermissible factfinding at 

the prima facie stage if it resolves factual disputes by relying on unstipulated facts from 

the hearing].) At the following evidentiary hearing the trial court is not precluded from 

weighing evidence and making factual findings. In that context, the statutory scheme 

specifically permits use of the preliminary hearing transcript with some restrictions and 

this court is aware of no authority precluding the trial court from considering properly 

admitted evidence. (See § 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.... 

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.”]; People v. 

Davenport, supra, 71 Cal.App.5th at p. 485 fn. 3 [“the prosecution may, at the 

section [1172.6] hearing that will occur upon remand, rely on the preliminary hearing 

transcript to sustain its burden of establishing that he is not entitled to relief”].)
25.

We also reject appellant’s claims of error in admitting this court’s prior 

unpublished opinion and statements made in appellant’s parole hearing. We evaluate the 

erroneous admission of evidence at a section 1172.6 evidentiary hearing under the 

harmless error standard for state law error articulated in People v. Watson (1956) 

46 Cal.2d 818, 836. (People v. Myles (2021) 69 Cal.App.5th 688, 706 [considering 

potential error in admitting parole hearing transcript].) “ ‘Under the Watson harmless 

error standard, it is the burden of appellants to show that it is reasonably probable that 

they would have received a more favorable result at trial had the error not occurred.’ ” 

(Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447.) Even if we assume the opinion and 

transcript were improperly admitted, any error was harmless. The evidence submitted 

from the preliminary hearing was sufficient, standing alone, to support the trial court’s 

ruling on all relevant issues. In fact, to the extent these additional documents were 

submitted, the facts contained within them tended to benefit appellant by minimizing his 

connection to Avila or implying he never intended to commit anything other than an 

unarmed robbery. It was thus not reasonably probable a different result would have

occurred had the additional evidence not been admitted.

DISPOSITION

The order denying appellant’s petition is affirmed.

HILL, P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.