Filed 1/3/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHELLE GUIFFREDA,

Defendant and Appellant.

 D079834

 (Super. Ct. No. SCD172677)

APPEAL from a judgment of the Superior Court of San Diego County, 

Albert T. Harutunian, III, Judge. Reversed and remanded.

Donna L. Harris, for Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General,

Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff 

and Respondent. 

Michelle Lynn Guiffreda appeals from an order denying her petition for 

resentencing on a 2004 conviction for second-degree murder under Penal 
2

Code section 1170.95 (now section 1172.6).1 After an evidentiary hearing, 

the trial court found there was insufficient evidence of malice aforethought to 

establish Guiffreda’s liability as a direct aider and abettor to murder. 

However, the court denied her petition based on a felony murder theory after

finding beyond a reasonable doubt under current law that: (1) Guiffreda was 

a major participant in the underlying robbery which led to the victim’s death;

and (2) she acted with reckless indifference to human life. (§ 189, subd. 

(e)(3).)

Guiffreda contends on appeal that the record does not support the trial 

court’s major participant and reckless indifference findings. Viewing the 

evidence in the light most favorable to the trial court’s ruling, we conclude 

that there is insufficient evidence to support its finding that Guiffreda acted 

with reckless indifference to human life. Accordingly, we need not resolve 

whether she was a major participant. We reverse and remand the matter to 

the trial court with directions to vacate her murder conviction and conduct 

further proceedings consistent with this opinion. 

FACTUAL AND PROCEDURAL BACKGROUND

A. M.B.’s Killing

According to preliminary hearing testimony, in the early afternoon on

January 29, 2003, 19-year-old Guiffreda and codefendants Matthew Peace

and Eric Oie, Guiffreda’s husband, were at a motel where they had stayed the 

previous night. When they could not pay the $45 rate for an additional night, 

1 Guiffreda brought her petition under former section 1170.95, which 

was amended effective January 1, 2022, and then renumbered as section 

1172.6 without substantive change on June 30, 2022. (See Stats. 2022, 

ch. 58, § 10, (Assem. Bill No. 200).) We refer to the subject statute by its 

current number throughout this opinion. Further statutory references are to 

the Penal Code unless otherwise stated.
3

the motel manager evicted them from their room around 2:15 p.m. and took 

their room key. Guiffreda, Oie, and Peace took their belongings outside and 

sat down next to a soda machine. 

Meanwhile, M.B. checked in to room 103 at around 1:30 p.m. There is 

no evidence of any prior relationship or acquaintance between M.B. and 

Guiffreda, Oie, or Peace. Another motel resident observed that M.B. had a 

thick bank envelope protruding from his back pocket, and the envelope was 

still visible when M.B. was later seen talking with Guiffreda in front of the 

soda machine with Oie and Peace nearby. After their conversation, Guiffreda 

went with M.B. into his room, leaving the door ajar. At that time, Oie and 

Peace got up and walked over to a truck parked in the motel parking lot. 

They placed their bags in the back of the truck, got inside the truck’s cabin

briefly, and then went into room 103 (M.B.’s room), closing the door behind 

them. 

At the preliminary hearing, the truck’s owner testified that he thought 

he had locked the truck’s doors after parking it at the motel. But after the 

police arrived, he noticed that the doors were unlocked. The truck’s owner

also kept a heavy flashlight inside the vehicle. After retrieving the truck 

from impound, he noticed the flashlight was missing. He did not give anyone 

permission to use or access his truck while it was parked at the motel. 

Sometime after Oie and Peace entered room 103, a couple in the 

neighboring room heard a door open and saw Guiffreda hurry past their 

window towards the street. Oie and Peace then exited room 103 and walked 

over to the truck to retrieve their bags. One of them accessed the truck’s 

cabin again briefly, then they walked away in the direction Guiffreda went. 

About ten minutes later, another motel resident asked the couple in the 

neighboring room to check on room 103 because he was concerned something 
4

was “going on” in there. No one answered when they knocked on the locked

door, and the couple noticed that the window next to the door was open. 

After one of the motel residents took the screen off the window and pulled the 

curtain aside, they saw M.B. fully dressed and lying on the bed, which was 

still made. He was moving at the time and trying to speak. 

The motel manager arrived at the room soon after, around 2:35 p.m.,

and went inside. He called 911 to report that M.B. was unconscious and 

bleeding heavily from his head. The operator instructed the manager to put 

a towel over M.B.’s face, and as he did so, the manager noticed M.B. was still 

breathing. 

Eventually paramedics arrived to transport the victim to a nearby 

hospital, where he later died. One of the responding paramedics told law 

enforcement that no wallet or keys were found in the room, and there were no 

visible papers. The room was also well-kept, it did not look like a struggle

had occurred, and no weapon was found inside. 

After police officers secured the crime scene, a homicide detective 

collected a white bank envelope from the room’s floor that had Guiffreda’s 

and Peace’s fingerprints on it. Officers also inspected the truck that 

witnesses had seen Oie and Peace access that day, and they found what was 

presumed to be blood on the gearshift. When detectives interviewed 

witnesses after the incident, one witness who was at the motel told detectives 

that he saw Oie physically abusing Guiffreda and grabbing her by the hair. 

A medical examiner conducted an autopsy and concluded that M.B.’s

cause of death was “multiple blunt-force head injury.” M.B. had five scalp 

lacerations and bruises on his hands, head, and shoulders. The medical 

examiner noted that the bruises on his hands may have been defensive 
5

wounds. M.B.’s skull had several fractures, and his brain was swollen and

bruised. 

The night of the incident, the defendants paid for a room at the Westin 

Hotel at Horton Plaza in San Diego, spending around $500 in cash. A couple

of weeks later, on February 14, 2003, Guiffreda, Peace, and Oie were arrested 

in Rosarito, Mexico, after someone reported them to Mexican authorities. 

B. Conditional Examination of Gerardo Mancillas

In May 2004, the People conducted a conditional examination of 

Gerardo Mancillas, who testified about his encounters with the defendants in 

Mexico after M.B.’s death. On the night of February 1, 2003, a few days after 

the incident, Mancillas was working in reception at a hotel in Rosarito, 

Mexico. A security guard told Mancillas that he suspected some guests were 

selling drugs in one of the hotel rooms, so Mancillas called the police. After

hotel security guards knocked on the room’s door, Oie and Peace attempted to 

run away, but police officers arrived and arrested them. The police did not 

arrest Guiffreda and left her at the hotel, but Mancillas’s manager did not 

want her staying there, so Mancillas let her stay in a room for employees. 

Mancillas said that he wanted to help Guiffreda because she was crying and 

seemed afraid. 

When Mancillas checked on Guiffreda the following morning at the end 

of his shift, Guiffreda asked for information about Oie and Peace. She also 

told him that they could not go back to the United States because they had 

done something “very serious, something wrong.” Mancillas moved Guiffreda

to another hotel, where he knew the owners, and at that point Guiffreda told 

Mancillas that they had murdered someone. Guiffreda said that she, Oie, 

and Peace planned for her to get a man into a hotel room “to have sex,” and

then Oie and Peace were going to come in, assault him, and take his money. 
6

If the police arrived, the plan was to tell them that the man was raping or 

kidnapping Guiffreda. According to Mancillas, Guiffreda said Oie beat the 

victim with a baseball bat while Peace hit and kicked him. Guiffreda also 

told Mancillas that “they don’t want to be -- to be too much, you know, to hit 

too much, and they hit a lot and the guy is -- is in the floor, bleeding.” 

After Mancillas located the jail where Oie and Peace were being held, 

Guiffreda gave him money for bail. Mancillas posted their bail and they went 

back to the hotel where Guiffreda was staying. Guiffreda then recounted the 

events leading up to the killing again, and when Oie and Peace seemed 

nervous that she was talking about it, she assured them that Mancillas 

already knew what happened. According to Mancillas, Oie and Peace did not 

contradict Guiffreda’s narrative. Mancillas and the defendants parted ways a 

couple of days later. 

About a week afterwards, Mancillas saw in the local paper that the 

defendants had been arrested. He said that in total, he received about $800

in cash from the defendants during their interactions to cover expenses like 

gas, food, lodging, and bail. 

C. Guiffreda’s Statements to Probation

In September 2004, Guiffreda pled guilty to second-degree murder 

(§ 187, subd. (a); count 1) and the People agreed to dismiss the remaining 

robbery charge. The parties stipulated to using the preliminary hearing 

transcript as the factual basis for the plea. Around that time, Oie pled guilty 

to first-degree murder and Peace pled guilty to second-degree murder. 

In her interview with probation before sentencing, Guiffreda denied 

that the incident was pre-planned and denied taking the victim’s money. She 

said that she entered M.B.’s room and asked him if she could borrow money 

to pay for her room at the hotel. He propositioned her and she refused, but 
7

she believed she could still use her charm to get money from him. Guiffreda 

told the probation officer that after Oie and Peace followed her into the room, 

Peace began punching M.B. Oie then threatened M.B. and demanded money

from him, but when he refused to comply, Oie struck him with a metal pipe. 

Guiffreda said she yelled for Oie to stop, but he continued to beat the victim. 

Afterwards, the defendants took the cash from the bank envelope and made 

their way to Mexico, where they spent the money on hotels, clothes, and food. 

Guiffreda said she did not understand why Oie hit the victim so hard because 

it was unnecessary to do so. 

D. Guiffreda’s Petition for Resentencing

In October 2004, the court sentenced Guiffreda to an indeterminate 

term of 15 years to life. In 2019, Guiffreda filed a petition for resentencing

under amended section 1172.6. After appointing counsel, finding that 

Guiffreda had established a prima facie case of entitlement to relief, and 

issuing an order to show cause, the trial court held an evidentiary hearing in 

September 2021 to determine whether Guiffreda was entitled to relief. 

At the hearing, the court and the parties relied on the preliminary 

hearing transcript, Mancillas’s conditional examination transcript,

Guiffreda’s change of plea form, and Guiffreda’s probation report. After 

hearing the parties’ arguments, the trial court issued a written opinion and 

order finding there was insufficient evidence of malice aforethought to 

establish Guiffreda’s liability as a direct aider and abettor to murder. 

However, the court denied her petition on a felony murder theory after

finding beyond a reasonable doubt under current law that: (1) Guiffreda was 

a major participant in the underlying robbery which led to M.B.’s death; and

(2) she acted with reckless indifference to human life. 
8

The court found that Guiffreda was a major participant in the 

underlying robbery because “[t]he plan centered around her luring the victim 

into his room, leading him to believe she would have sex with him, getting his 

guard down, making sure the co-defendants could enter the room, and then 

pretending she was being raped to justify the assault by the co-defendants.” 

The court noted that Guiffreda’s fingerprints were on the bank envelope and

that she fled the scene with her codefendants, using the stolen money to 

escape apprehension. 

The court also found that Guiffreda acted with reckless indifference to 

human life because the context of the planned assault, which was a scenario 

involving “an outraged husband finding his wife being raped[,] . . . carries 

with it an inherent extreme likelihood of an intent to administer a severe 

beating, not just a battery to achieve compliance in case of victim resistance.” 

The court reasoned that “[t]here was no need to manufacture a situation 

justifying extreme violence if [the defendants’] intention had been to use only 

the force necessary to dispel any resistance by the victim.” The court noted

that Guiffreda’s statements to Mancillas that they had murdered someone, 

and the fact that she did not seem to distance herself from the incident or 

absolve herself of responsibility, reflected her consciousness of guilt. 

The court further found that Guiffreda exhibited reckless indifference 

to the victim’s life because she “was personally present and stood by as her 

co-defendants severely beat the victim in the head with a bat or similar 

instrument.” The court acknowledged in a footnote that “[t]here is no direct 

evidence that she believed they had obtained a flashlight to use as a weapon.” 

However, the court found it significant that she did not attempt to intervene 

in the beating or render aid afterwards, and the court found her probation 

interview statements—about telling Oie to stop beating the victim—lacking 
9

in credibility. Accordingly, the trial court denied Guiffreda’s petition for 

resentencing. 

Guiffreda timely appealed the order.

DISCUSSION

Guiffreda contends on appeal that the record does not support the trial 

court’s findings that she was a major participant in the underlying robbery 

and that she acted with reckless indifference to human life. We agree that 

there is insufficient evidence to support the court’s finding that Guiffreda 

acted with reckless indifference beyond a reasonable doubt, so we reverse on 

that ground without deciding whether there is sufficient evidence that she

was a major participant. (See People v. Keel (2022) 84 Cal.App.5th 546, 557, 

fn. 2 (Keel) [declining to decide major participant issue and reversing denial 

of section 1172.6 petition based on insufficient evidence of reckless 

indifference].)

A. Governing Law

Effective January 1, 2019, Senate Bill No. 1437 significantly limited

the scope of the felony-murder rule and eliminated liability for murder under

the natural and probable consequences doctrine through two key provisions.

(Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong (2022) 13 Cal.5th

698, 707–708 (Strong).) First, Senate Bill No. 1437 amended section 189 so

that “[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[.]’ ”

(Strong, at p. 708, citing § 189, subd. (e)(3).) Second, it amended section 188

to provide that, when the felony-murder rule does not apply, a principal in

the crime of murder can only be convicted where she acted “with malice

aforethought,” and “[m]alice shall not be imputed to a person based solely on
10

his or her participation in a crime.” (§ 188, subd. (a)(3); see People v. Gentile 

(2020) 10 Cal.5th 830, 842–843.)

Senate Bill No. 1437 also established a new procedure to allow

defendants who could not have been convicted under the new law to petition

the sentencing court to vacate their murder convictions and resentence them

on any remaining counts. (See § 1172.6, subd. (a); Strong, supra, 13 Cal.5th

at p. 708.) After receiving a petition containing the required information,

“the court must evaluate the petition ‘to determine whether the petitioner

has made a prima facie case for relief.’ ” (Strong, at p. 708, citing § 1172.6,

subd. (c).) If the defendant makes a prima facie showing of entitlement to

relief, the court must issue an order to show cause and hold an evidentiary

hearing to determine whether relief should be granted. (§ 1172.6, subds. (c), 

(d)(3).)

Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.)

(Senate Bill No. 775) amended section 1172.6 to clarify certain aspects of the

law, including that (1) the burden of proof at a resentencing hearing under

this section is “on the prosecution to prove, beyond a reasonable doubt, that

the petitioner is guilty of murder” under California law as amended by

Senate Bill No. 1437 and (2) “[a] finding that there is substantial evidence to

support a conviction for murder . . . is insufficient to prove, beyond a

reasonable doubt, that the petitioner is ineligible for resentencing.”

(§ 1172.6, subd. (d)(3); see also Stats. 2021, ch. 551, § 1, subd. (c).) Senate

Bill No. 775 clarified that the trial court’s role in a section 1172.6 proceeding

is to act as an independent fact finder and determine, in the first instance,

whether the petitioner committed murder under the law as amended by

Senate Bill No. 1437. (People v. Clements (2022) 75 Cal.App.5th 276, 294,

297 (Clements); see also People v. Garrison (2021) 73 Cal.App.5th 735, 745,
11

fn. omitted [the trial court acts as “an independent fact finder, to determine

beyond a reasonable doubt whether defendant is guilty of murder under a

valid theory of murder”].)

Under the amended felony-murder rule, a defendant who was not the 

actual killer and did not act with the intent to kill can only be liable for 

murder if she was a major participant in the underlying felony and acted 

with reckless indifference to human life. (Strong, supra, 13 Cal.5th at p. 708, 

citing § 189, subd. (e)(3).) “[T]he standard under section 189, subdivision 

(e)(3) for holding . . . a defendant liable for felony murder is the same as the 

standard for finding a special circumstance under section 190.2(d), as the 

former provision expressly incorporates the latter.” (In re Taylor (2019) 34 

Cal.App.5th 543, 561.) Accordingly, death penalty cases interpreting section 

190.2, subdivision (d), including People v. Banks (2015) 61 Cal.4th 788

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), are controlling 

here. 

In Banks, a defendant was convicted of first-degree murder with a 

felony-murder special circumstance based on his actions as the getaway 

driver for an armed robbery in which a codefendant shot and killed one of the 

robbery victims while escaping. (Banks, supra, 61 Cal.4th at pp. 794, 797.) 

The Supreme Court concluded that the defendant was “no more than a

getaway driver, guilty . . . of ‘felony murder simpliciter’ [citations] but 

nothing greater,” and that the evidence was insufficient to show he knew his 

own actions would involve a grave risk of death. (Id. at pp. 805, 807.)

In Clark, a defendant was convicted of first-degree murder with 

robbery-murder and burglary-murder special circumstances found true, 

based on his liability as an aider and abettor to an accomplice’s fatal shooting 

of a victim during an attempt to rob an electronics store. (Clark, supra, 63 
12

Cal.4th at p. 610.) The Supreme Court vacated those special circumstance 

findings based on insufficient evidence that the defendant was recklessly 

indifferent to human life after considering “the case-specific factors that this 

court and other state appellate courts have considered in upholding a 

determination of reckless indifference to human life in cases involving

nonshooter aiders and abettors to commercial armed robbery felony 

murders.” (Id. at pp. 618, 623–624.) 

The holdings in those cases dictate that to determine whether a 

defendant acted with reckless indifference to human life, courts should look

to whether a defendant “ ‘knowingly engag[ed] in criminal activities known to 

carry a grave risk of death.’ ” (Banks, supra, 61 Cal.4th at p. 801, internal 

quotations omitted.) “The defendant must be aware of and willingly involved 

in the violent manner in which a particular offense is committed, 

demonstrating reckless indifference to the significant risk of death his or her 

actions create.” (Ibid.) Although “there are some felonies as to which one 

could properly conclude that any major participant necessarily exhibits 

reckless indifference to the value of human life,” such as “ ‘the manufacture 

and planting of a live bomb,’ ” armed robbery is not among them. (Clark,

supra, 63 Cal.4th at p. 615, quoting Banks, at p. 810, fn. 9.) 

In Clark, supra, 63 Cal.4th at pages 618–622, the court enumerated a 

five-factor test to determine whether a defendant acted with reckless 

indifference to human life, clarifying that no one factor is necessary, nor is 

any sufficient by itself. The first factor is the defendant’s knowledge of 

weapons used, her own use of weapons, and the number of weapons involved. 

(Id. at p. 618.) The court noted that “[t]he mere fact of a defendant’s 

awareness that a gun will be used in the felony is not sufficient to establish 

reckless indifference to human life.” (Ibid.) The second factor is whether the 
13

defendant was physically present at the crime scene and whether she had 

opportunities to restrain the crime or aid the victim(s). (Id. at p. 619.) A 

defendant’s presence may be particularly significant where “the murder is a 

culmination or a foreseeable result of several intermediate steps, or where 

the participant who personally commits the murder exhibits behavior tending 

to suggest a willingness to use lethal force.” (Ibid.)

The third factor is the duration of the felony; crimes of longer duration 

present greater risk of violence and therefore evince more reckless 

indifference. (Clark, supra, 63 Cal.4th at p. 620.) The fourth factor is the 

defendant’s knowledge of his or her coparticipants’ likelihood of killing. 

(Id. at p. 621.) A defendant who knows a coparticipant has previously used 

lethal force is more culpable than one unaware of that person’s propensity for 

violence. (Ibid.) Finally, the fifth factor is whether the defendant made any 

efforts to minimize the risk of violence during the felony. (Ibid.) Such efforts 

may include planning the felony to occur at a time or location where 

bystanders are unlikely to be present or using unloaded firearms. (See id. at 

pp. 621–622.)

Both the “magnitude of the objective risk of lethal violence and a 

defendant’s subjective awareness of that risk” are relevant to the reckless 

indifference inquiry. (Clark, supra, 63 Cal.4th at p. 623.) “Awareness of no 

more than the foreseeable risk of death inherent in any [violent felony] is

insufficient” to demonstrate reckless indifference to human life. Instead, 

“knowingly creating a ‘grave risk of death’ ” is necessary to establish the 

requisite mindset. (Banks, supra, 61 Cal.4th at p. 808.) As relevant here, 

“ ‘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.” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins), quoting 
14

Banks, at p. 808 [alteration in original].) “The defendant must be aware of 

and willingly involved in the violent manner in which the particular offense 

is committed,” and must then consciously disregard “the significant risk of 

death his or her actions create.” (Banks, at p. 801.)

B. Standard of Review

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

(Clements, supra, 75 Cal.App.5th at p. 298.) “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.” (Ibid.) We will not reverse unless there is no

hypothesis upon which sufficient substantial evidence exists to support the

trial court’s decision. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must

“presume in support of the judgment the existence of every fact the trier

could reasonably deduce from the evidence.” (People v. Jones (1990) 51

Cal.3d 294, 314.) “The same standard applies when the conviction rests

primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978,

1053.) “An appellate court must accept logical inferences that the [trier of

fact] might have drawn from the circumstantial evidence.” (People v.

Maury (2003) 30 Cal.4th 342, 396.)

C. Analysis

Analyzing the totality of the circumstances and applying the relevant 

Clark factors to this case, we conclude that substantial evidence does not 

support the trial court’s finding that Guiffreda acted with reckless 
15

indifference to human life.2 First, Guiffreda did not use a weapon, nor is 

there any evidence that she knew a weapon of any kind would be used during 

the robbery. (Clark, supra, 63 Cal.4th at p. 618.) Although Guiffreda 

knowingly participated in the robbery, there is no evidence that she was part 

of any preconceived plan to beat M.B. with a fatal instrument, or that she 

knew of any such plan before entering M.B.’s room, or that she had advance 

knowledge or any reason to suspect that one of her accomplices would use a 

bat, flashlight, pipe, or other lethal weapon to beat the victim. None of the 

witnesses saw Guiffreda’s accomplices with any weapon before she entered 

the victim’s room, and there was no direct or circumstantial evidence that she 

knew Oie would arm himself. (See In re Bennett (2018) 26 Cal.App.5th 1002, 

1025 [“There was also no evidence presented that [defendant] observed 

anything before the events leading up to the robbery that would have 

indicated his other codefendants were likely to engage in lethal violence.”].)

Assuming that the People’s theory at the preliminary hearing was 

correct, and that the weapon Oie used to beat M.B. was a flashlight he took 

from the parked truck, witness testimony shows that he likely obtained the 

flashlight just before entering the room, outside of Guiffreda’s presence. The

2 As noted, the trial court found beyond a reasonable doubt that 

Guiffreda acted with reckless indifference to human life, but also found 

insufficient evidence that Guiffreda acted with the malice aforethought

required for direct aider and abettor liability for second degree murder. 

These findings are difficult for us to reconcile. The “reckless indifference” 

standard actually “requires subjective awareness of a higher degree of risk 

than the ‘conscious disregard for human life’ required for conviction of second 

degree murder based on implied malice.” (People v. Johnson (2016) 243 

Cal.App.4th 1247, 1285, italics added.) On appeal, the People do not 

challenge the trial court’s finding of insufficient evidence of malice or explain 

how these findings may be reconciled. We need not resolve this apparent 

inconsistency, however, because we find insufficient evidence to support the 

trial court’s finding of reckless indifference. 
16

People point to no evidence that Guiffreda knew Oie would arm himself by 

stealing a flashlight from an apparently unlocked truck in the parking lot 

when she was already inside M.B.’s room. Even the trial court 

acknowledged, “[t]here is no direct evidence that she believed they had 

obtained a flashlight to use as a weapon.” Accordingly, this factor weighs 

heavily in favor of finding Guiffreda did not act with reckless indifference.

Second, we consider whether Guiffreda was physically present at the 

crime scene and whether she had opportunities to restrain the crime or aid 

the victim. (Clark, supra, 63 Cal.4th at p. 619.) Here, as just noted, even 

though Guiffreda was present when the beating started, she was not present 

when Oie obtained the murder weapon. There is no substantial evidence that 

Guiffreda could have intervened to prevent the beating given that she was 

outnumbered by her codefendants, she was herself unarmed, she may not 

have known that Oie was armed with a weapon for any appreciable period of 

time before he began using it to bludgeon M.B., there was no sign of a 

struggle (thus suggesting that M.B. was disabled quickly), and as discussed 

post, the evidence shows the assault began and ended within a span of 

minutes. (See Scoggins, supra, 9 Cal.5th at p. 679 [defendant “lacked control 

over [his accomplices’] actions once they arrived on the crime scene, especially 

given how quickly the shooting occurred[]”]; Keel, supra, 84 Cal.App.5th at 

p. 560 [defendant who was present and armed with revolver during robbery 

nevertheless did not have a “meaningful opportunity to restrain” his armed 

accomplice who committed the shooting where robbery was spontaneous and 

decision to shoot made quickly].)

Although Guiffreda could have tried to aid M.B. after the beating by 

calling 911, the Supreme Court in Scoggins noted “that when different 

inferences may be drawn from the circumstances, the defendant’s actions 
17

after the shooting may not be very probative of [her] mental state.” 

(Scoggins, supra, 9 Cal.5th at p. 679.) Here, the evidence shows that 

Guiffreda walked quickly from the room after the assault without waiting for 

her accomplices, which could suggest “either that [Guiffreda] rejected [her]

accomplice’s actions” in committing the lethal assault “or that [s]he wanted to 

flee the scene as quickly as possible to avoid arrest. [Citation.]” (Ibid.) 

Guiffreda may also have chosen not to call 911 out of loyalty to her husband 

or fear that it would result in them being apprehended for the crime. As 

in Clark, the ambiguity in Guiffreda’s actions after the beating “make[s] it 

difficult to infer [her] frame of mind concerning” M.B.’s death. (Clark, supra, 

63 Cal.4th at p. 620.) In the absence of any other evidence that Guiffreda 

knew a weapon would be used to commit the robbery, her actions 

immediately after the beating do not establish that she was “ ‘aware of and 

willingly involved in the violent manner’ ” in which the crime was committed. 

(Scoggins, at p. 677.) Overall, this factor does not weigh substantially in 

favor of a finding of reckless indifference to human life.

Third, courts have considered “whether a murder came at the end of a 

prolonged period of restraint of the victims by defendant” in analyzing the 

defendant’s culpability. (Clark, supra, 63 Cal.4th at p. 620.) Because 

extended restraint of victims provides “ ‘a greater window of opportunity for

violence’ [citation], possibly culminating in murder,” it can indicate that the 

defendant exhibited reckless indifference to human life. (Ibid.) Here, the 

evidence indicates that the duration of the entire interaction between the 

defendants and the victim was less than ten minutes. The motel manager 

testified that the defendants were evicted from their room at 2:15 p.m., and 

he observed the victim bloodied and alone in the room at 2:35 p.m. Other 

witnesses testified that ten minutes elapsed between when they saw the 
18

defendants leave the victim’s room and when the witnesses and the manager

discovered the victim. 

Based on this evidence, in the approximately ten minutes between

2:15 p.m. and 2:25 p.m., Guiffreda spoke with M.B. outside before entering 

his room with him; Oie and Peace brought their belongings to the truck and

Oie acquired the murder weapon; the two men entered the room and 

assaulted M.B.; the defendants went through the victim’s belongings and 

took his cash; and then the defendants exited the room. The evidence shows 

the entire sequence of events occurred rapidly within a short timeframe, and 

that the defendants were in the room with the victim for mere minutes. 

Moreover, the robbery appears to have been a purely spontaneous crime of 

opportunity committed simply because M.B. was walking around the motel

with a bank envelope sticking out of his back pocket. This factor thus weighs 

against finding that Guiffreda exhibited reckless indifference to human life. 

(See Keel, supra, 84 Cal.App.5th at pp. 560–561 [third Clark factor 

“significantly reduce[d]” defendant’s culpability where robbery was 

“unexpected and unplanned” and “events unfurled in rapid succession once 

the encounter began”].) 

Fourth, there is no substantial evidence that Guiffreda knew Oie was 

likely to use lethal force. (Clark, supra, 63 Cal.4th at p. 621.) As already 

noted, there is no evidence that Guiffreda knew Oie would use a weapon 

during the assault. There is also no evidence that Guiffreda knew Oie had

any violent past convictions or had committed violent crimes. One witness 

did testify that he saw Oie being physically abusive to Guiffreda. However, 

even if Guiffreda knew that Oie was “prone to some degree of violence, and 

even though the planned assault of [M.B.] necessarily contemplated the use 

of violence, the evidence does not support a finding that [Guiffreda] acted 
19

with reckless indifference to human life” because no evidence shows she knew 

he was likely to use lethal force. (See Scoggins, supra, 9 Cal.5th at p. 682.) 

“Awareness of no more than the foreseeable risk of death inherent in any 

[violent felony] is insufficient”; reckless indifference to human life requires 

“knowingly creating a ‘grave risk of death.’ ” (Banks, supra, 61 Cal.4th at 

p. 808; see also In re Ramirez (2019) 32 Cal.App.5th 384, 406 [concluding 

defendant did not act with reckless indifference to human life because there 

was no evidence “that he anticipated the potential for loss of human life 

beyond that usually accompanying an armed robbery[]”].) 

“The degree of risk to human life is crucial to the analysis.” (Scoggins,

supra, 9 Cal.5th at p. 682.) The context here is a far cry from situations in 

other cases where, for example, defendants had advance knowledge that their 

cohorts were convicted murderers (see, e.g., Tison v. Ariz. (1987) 481 U.S. 

137, 151), or knew from prior robberies that their cohorts would be armed 

(see, e.g., People v. Proby (1998) 60 Cal.App.4th 922, 929). As was the case in 

Scoggins, the record here does not show that Guiffreda knew her accomplices 

were likely to deviate from the plan and use weapons of any kind, let alone 

lethal force. (See Scoggins, at p. 682.) 

Fifth, a defendant’s efforts to minimize the risk of violence in the 

commission of a felony are relevant to assessing reckless indifference to 

human life. (Clark, supra, 63 Cal.4th at pp. 621–622.) In this case, while it 

is true that the defendants’ plan included violence, “the need to minimize the 

risk of violence when planning an unarmed beating is less pressing than the 

need to minimize the risk of violence when planning an armed robbery.” 

(Scoggins, supra, 9 Cal.5th at p. 683.) The record includes no indication that 

Guiffreda knew the beating would involve the use of weapons. “This fact is, 

by itself, a significant step towards minimizing the likelihood that the plan 
20

would result in a ‘grave risk of death.’ ” (Ibid.) Planning an unarmed 

robbery, in certain scenarios, could potentially show reckless indifference to 

human life. But under the circumstances here, neither this factor nor any of 

the other Clark factors weighs significantly in favor of finding that Guiffreda 

acted with reckless indifference to human life. Considering all of the 

evidence in its totality, we conclude that it is insufficient to support such a 

finding beyond a reasonable doubt.3

We are not persuaded by the trial court’s reasoning that Guiffreda 

acted with reckless indifference to human life because the scenario she and 

her accomplices concocted of an “outraged husband” discovering someone 

raping his wife “carrie[d] with it an inherent extreme likelihood of an intent 

to administer a severe beating . . . .” Even assuming there was a plan to 

stage a rape, Guiffreda’s accomplices were both in on the plan; Guiffreda had 

no reason to believe that her husband would use the same degree of force as if 

he were genuinely outraged at discovering someone actually raping his wife. 

Moreover, according to the evidence, the rape story was not invented to 

justify the use of extreme force against M.B.; it was invented to have a cover 

story to tell the police if necessary. In fact, it is questionable whether this 

plan was even carried out because M.B. was fully clothed when he was 

discovered after the beating.

We are also not persuaded by the trial court’s finding that Guiffreda’s 

statements to Mancillas reflected “a consciousness of guilt for homicide.” By 

that time, Guiffreda knew she had willingly participated in a robbery that 

3 Both of the cases the trial court relied on in finding that Guiffreda 

acted with reckless indifference (People v. Smith (2005) 135 Cal.App.4th 914

and People v. Lopez (2011) 198 Cal.App.4th 1106, disapproved in Banks, 

supra, 61 Cal.4th at p. 809, fn. 8), are of limited value because they were 

decided before Banks and Clark. 
21

resulted in a fatal beating committed by her accomplices. Though her 

statements may have reflected a consciousness of guilt for the killing after 

the fact, nothing she said to Mancillas suggested that she participated in the 

robbery knowing that the violent manner in which it would be committed 

carried a grave risk of death. (Banks, supra, 61 Cal.4th at p. 801.) In fact, at 

least one of her statements to Mancillas suggested that the original plan was 

not “to hit too much.” 

The People rely on In re Harper (2022) 76 Cal.App.5th 450 (Harper),

People v. Douglas (2020) 56 Cal.App.5th 1 (Douglas), People v. Mora (1995) 39 

Cal.App.4th 607 (Mora), and People v. Bustos (1994) 23 Cal.App.4th 1747

(Bustos), to argue that Guiffreda’s inaction during the robbery, and her 

actions afterwards, displayed reckless indifference to human life. However, 

each of those cases is distinguishable. 

In Harper, a defendant went with two cohorts to rob a store, knowing 

that one of them was armed with a shotgun. (Harper, supra, 76 Cal.App.5th 

at pp. 456–457.) The defendant acted as a lookout while his codefendants 

took the store’s owner to the bathroom. (Id. at p. 454.) When one 

codefendant emerged to ask the defendant where the knives were, the 

defendant directed her to the correct aisle, even though he wondered at that 

time if she was getting a knife to stab the victim. (Id. at pp. 454–455.) When 

the defendant heard pounding and yelling coming from the bathroom, he did 

nothing, and even joked about the robbery afterwards. (Id. at pp. 461, 462–

463.) Unlike in this case, the Harper defendant knew or suspected that his 

accomplices intended to use lethal force, facilitated the use of that force by 

directing his codefendant to the knives, and declined opportunities to restrain 

his accomplices. While Guiffreda did take the victim’s money and fled the 

scene afterwards, there is no evidence that she acted with a level of 
22

callousness similar to that of the defendant in Harper, who joked after the 

murder that he and his cohorts could do laundry with all the quarters he took 

from the cash register. (See id. at p. 455.)

In Douglas, the Court of Appeal concluded that the defendant acted 

with reckless indifference to human life because he planned the armed 

robbery of a video store, supplied a loaded gun to his cohort, and was in 

charge while the crime was carried out. (Douglas, supra, 56 Cal.App.5th at 

pp. 3–4.) After his codefendant shot the store clerk, the defendant not only 

emptied the cash register, but also “emptied [the clerk’s] pockets while [he] 

lay on the ground with blood pooling around his head.” (Id. at p. 4.) Two 

days later, he and the shooter committed another armed robbery. (Ibid.)

Here, Guiffreda did not plan an armed robbery, nor did she supply any 

weapon, take charge of the assault, or commit additional robberies 

afterwards. And again, there is no evidence she acted with the same degree 

of indifference or callousness as the defendant in Douglas.

In Mora, a case which predates Banks and Clark, the defendant went 

with his codefendant—who he knew was armed—to a drug dealer’s home at 

night to rob him. (Mora, supra, 39 Cal.App.4th at p. 617.) The defendant

knew the drug dealer, so he knocked on the door and was let inside. (Id. at 

p. 611.) While the defendant smoked marijuana with the dealer and another 

person in the house, his codefendant entered with a high-powered rifle and 

fatally shot the drug dealer. (Ibid.) The Court of Appeal concluded that the 

Mora defendant acted with reckless indifference to human life because he 

“admitted planning to go to a drug dealer’s home at night to rob him by 

having [the codefendant] enter with a rifle which fired three-inch bullets. 

Defendant had to be aware of the risk of resistance to such an armed invasion 

of the home and the extreme likelihood death could result.” (Id. at p. 617.) 
23

In this case, Guiffreda did not plan a home invasion, and there is no evidence 

that she knew Oie would be armed at all.

Finally, Bustos is also distinguishable. In Bustos, three young 

codefendants robbed a woman and stabbed her to death in a women’s 

restroom on a beach in Malibu. (Bustos, supra, 23 Cal.App.4th at p. 1751.) 

The Court of Appeal concluded one of the defendants acted with reckless 

indifference to human life, even though he did not personally stab the victim, 

because he admitted to planning the robbery with his cohorts and admitted to 

knowing about the knife his codefendant used in the murder. (Id. at p. 1754.) 

The defendant also admitted to hitting the victim himself, and it was 

reasonable to infer that the defendant engaged in a struggle with the

resisting victim. (Ibid.) Again, the Bustos defendant stands in stark contrast 

to Guiffreda because there is no evidence that she herself assaulted M.B.,

that she engaged in a struggle with him, or that she knew about any planned 

use of weapons. 

As this court recently stressed in finding insufficient evidence of 

deliberate indifference on the part of another participant in an armed 

robbery, “[w]e are mindful that the substantial evidence standard of review is 

a deferential one, which often results in an affirmance of the judgment or 

order rendered by the trial court.” (Keel, supra, 84 Cal.App.4th at p. 557.) In

this case, however, the totality of the evidence shows that Guiffreda

knowingly participated in a plan to commit an unarmed assault and robbery, 

and one of her accomplices deviated from that plan by arming himself after 

the plan was in motion. The evidence does not establish that Guiffreda knew 

her cohorts were likely to use lethal force. On the facts here, there is 

insufficient evidence that Guiffreda “knowingly creat[ed] a ‘grave risk of 
24

death’[,]” and therefore, her petition for resentencing must be granted.

(Banks, supra, 61 Cal.4th at p. 808.)

DISPOSITION

The order denying Guiffreda’s section 1172.6 petition is reversed and 

remanded with directions to grant the petition, vacate the murder conviction, 

and conduct further proceedings on the prosecution’s request (made in its 

formal return to the petition) for resentencing on the underlying robbery 

under section 1172.6, subdivision (d). We express no view on the validity or 

propriety of the prosecution’s request for resentencing on the underlying 

robbery. Following the conclusion of proceedings on remand, the trial court 

shall amend the abstract of judgment as necessary and forward copies of the

amended abstract to the appropriate law enforcement and custodial officials.

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P.J.

DO, J.