Filed 9/25/23 P. v. Conchas CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND FRANK CONCHAS,

Defendant and Appellant.

 B320546

 (Los Angeles County

 Super. Ct. No. GA094259)

APPEAL from an order of the Superior Court of 

Los Angeles County, Drew E. Edwards, Judge. Affirmed.

Paul Couenhoven, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

In 2013, appellant Raymond Conchas devised a plan with 

fellow gang members Peter Parra and Kevin Cabrera to rob drug 

dealer Zane Goldstein1 under the guise of buying marijuana from 

him. During the attempted robbery, Parra fatally shot Zane. All 

three defendants were convicted of first degree murder. The jury 

also found true the special circumstance allegation under Penal 

Code section 190.2, subdivision (a)(17)

2 that the defendants 

committed the murder while attempting to commit a robbery and 

that appellant and Cabrera, while not the actual killers, were

major participants in the attempted robbery and acted with 

reckless indifference to human life.

In 2019, appellant filed a petition for resentencing under 

section 1172.6 (former section 1170.95).

3 Following appointment 

of counsel and a hearing, the trial court denied the petition, 

finding that appellant was not eligible for relief because he was a 

major participant and acted with reckless indifference.

Appellant does not challenge on appeal that he was a major 

participant in the attempted robbery. He argues the evidence 

contradicts the court’s finding that he pointed a shotgun at Zane. 

Consequently, he contends that there was insufficient evidence to 

support a finding that he acted with reckless indifference under 

1 Zachary Goldstein, Zane’s brother, was present during the 

incident and testified at trial. We refer to Zane and Zachary by 

their first names to avoid confusion.

2 All further statutory references are to the Penal Code 

unless otherwise indicated.

3 Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. We hereafter 

refer to the statute as section 1172.6.
3

the factors outlined in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). We 

conclude substantial evidence supports the superior court’s 

findings and therefore affirm the denial of appellant’s petition for 

resentencing.

FACTUAL BACKGROUND

The underlying facts presented at trial are discussed in 

detail in this court’s prior opinion, People v. Parra (February 24, 

2017, B263792) [nonpub. opn.] (Parra). We summarize them 

here to provide context for the trial court’s ruling. We otherwise 

do not rely on this factual background in resolving the issues 

presented in this appeal. (See § 1172.6, subd. (d)(3).)

I. Prosecution Case

Appellant, Parra, and Cabrera were members of the North 

Side Pasadena (NSP) gang. On January 13, 2013, two days 

before the shooting, appellant received a text from another gang 

member with the contact information for Zane, “a white boy that 

sells weed.” Appellant made multiple calls to Cabrera and Parra 

on January 14 and 15, 2013. On January 15, the day of the 

shooting, appellant exchanged texts with Zane, asking to buy 

marijuana later that afternoon. Appellant asked Zane to meet 

him at an apartment complex on North Holliston Avenue in 

Pasadena. 

Zane drove his Jeep to the apartment complex accompanied 

by his brother Zachary. Zachary testified at trial that after they 

arrived, a heavy-set Hispanic man wearing a black sports jersey, 

whom he identified as Cabrera, approached the Jeep and asked 

Zane to drive into the driveway of the complex. Zane agreed. 

Directed by Cabrera, Zane drove down the driveway and 

turned into a parking stall at the end. He left the engine 
4

running. Cabrera entered the back seat of the Jeep behind the 

driver’s side, next to Zachary. As soon as he did so, Zachary saw 

a taller, lankier, Hispanic man approach the driver’s side of the 

Jeep carrying a single-barrel, sawed-off shotgun. Zachary also 

described this man as having a bald or shaved head, and wearing 

a white tank top and jeans; he did not recall seeing any tattoos on 

the man’s arm. Zachary identified this man at the preliminary 

hearing and trial as appellant, the tallest of the three defendants. 

He testified at trial that he got a good look at the person and he 

was certain that it was appellant who pointed the shotgun.

4 The 

man pointed the shotgun at Zane’s face, and said, “Don’t move or 

I’ll blast you.” Zane backed out of the parking space and sped 

forward out of the driveway, with Cabrera still in the backseat. 

Zane drove around the corner and stopped. Zane and 

Zachary yelled at Cabrera to get out. Cabrera refused and 

demanded the marijuana. Cabrera then said he had a gun, and 

told Zane, “Give me the weed. You want your homie [referring to 

Zachary] to get blasted?” 

Zachary testified that he saw no weapon and thought 

Cabrera might be bluffing. He began pushing Cabrera out of the 

Jeep, but Cabrera resisted. Zachary eventually was able to eject 

Cabrera from the Jeep. At that point, Zachary heard “the sound 

of a weapon going off” and the shattering of glass, but did not see 

4 It is undisputed that Parra was bald at the time of the 

incident; appellant had “buzzed” dark hair and tattoos on his 

right arm. Parra was wearing a white tank top and appellant 

was wearing a dark shirt. A neighbor testified at trial that he 

heard a voice say, “Get the fuck out.” He looked out his window, 

and saw two men next to an SUV. One of them had dark hair, 

and the second one was either bald or had a shaven head. 
5

a shooter because his view was obstructed by the driver’s seat. 

Zane’s head snapped back against the driver’s headrest, and 

Zachary was wounded in the forearm by a projectile. Zachary 

saw a four-door tan car stopped alongside the Jeep. Cabrera got 

in the rear passenger side of the car, and the car drove off. 

Zachary saw two other people in the car, seated in front. 

Zachary called 911, reporting that three Hispanic men tried 

to rob him and his brother, that one of them shot Zane in the 

head, that the men had a shotgun and a pistol, and that the 

shooter and his companions drove off in a tan car. 

Zane died of a single gunshot wound to the head. The 

windshield of his Jeep had an impact hole and pieces from a 

shotgun shell were found on the ground outside the Jeep on the 

driver’s side. Police recovered appellant’s cell phone from the 

back seat of Zane’s vehicle.

5

The prosecution played footage at trial of surveillance 

videos taken from nearby cameras on Holliston. The videos 

depicted events before and after the shooting, but were not clear 

enough to identify the faces of the people shown. The videos 

showed Zane’s Jeep stopping in the street at the apartment 

complex on Holliston. Three people were concealed behind a 

hedge at Tyler Alley, which opened onto Holliston. One person, 

identified by witnesses as Cabrera, approached the Jeep. The 

two others, identified as appellant and Parra, remained behind 

the hedge. The Jeep then pulled into the driveway of the 

5 Police also seized appellant’s tan Toyota Camry from an 

apartment complex where his mother and sister lived. The 

hubcaps had been removed, and the entire vehicle had been 

wiped down. 
6

complex. As soon as it did so, appellant and Parra walked from 

behind the hedge down Holliston and into the driveway where 

the Jeep had gone. 

The videos then depicted the Jeep exiting the driveway and 

turning right on Holliston. Appellant exited the driveway and 

ran back down Tyler Alley. Parra followed, taking the same 

route and walking with an apparent limp.6 Then a tan sedan 

backed out of Tyler Alley, and followed the Jeep. 

Ashley Ceballos, Cabrera’s girlfriend, was interviewed by 

police detectives on January 23, 2015. Ceballos said that she and 

Cabrera spent the night before the shooting at the home of a 

friend named Belin, which was walking distance from the crime 

scene. On the day of the shooting, sometime after 12:00 p.m., 

appellant, Parra, and appellant’s girlfriend, Stephanie Jacequez, 

arrived at Belin’s home. Ceballos gave appellant money to buy 

marijuana for her. He, Parra, and Cabrera left a short time later. 

Ceballos told police that she and Jacequez left and walked 

to the corner of Holliston. They saw appellant and Parra jogging 

toward appellant’s car, parked in Tyler Alley. The car backed 

quickly out of the alley and sped off down Holliston. Appellant 

was driving, and Parra was in the passenger seat. Ceballos 

walked down Holliston, then heard what sounded like a 

firecracker. 

Ceballos identified all three defendants in the surveillance 

footage. She identified Parra as the person walking with a limp 

and told police that Parra had not walked like that when she had 

seen him earlier in the day. 

6 It was suggested at trial that Parra was walking in this 

manner because he had a shotgun concealed in his pant leg.
7

II. Defense

Appellant testified on his own behalf. He admitted 

becoming an NSP member in 2012, but claimed he was never 

active in the gang. 

On January 13, 2013, fellow NSP member Cabrera asked 

appellant to drive him to buy marijuana. Appellant declined, but 

then heard from a friend about Zane, a local marijuana dealer. 

Appellant testified that Cabrera borrowed appellant’s cell phone 

on January 14, 2013 during a family party and failed to return it. 

The next day, the day of the incident, appellant went to Belin's 

house to retrieve his phone from Cabrera. Cabrera and Ceballos 

were there, and Ceballos asked appellant to drive her to a 

medical marijuana shop. Appellant declined, but gave Cabrera 

Zane’s contact information. Appellant testified that Cabrera used 

appellant’s phone to contact Zane and asked appellant to attend 

the meeting with him. While they were waiting, Parra arrived at 

Belin’s house. Appellant acknowledged that Parra was an NSP 

member, but testified at trial that he did not know Parra was 

going to be there that day. 

Cabrera, Parra, and appellant went to meet Zane. While in 

the alley near the street, Cabrera said he was going to “buy the 

weed real quick,” and told appellant and Parra to wait. The Jeep 

drove down a driveway out of sight with Cabrera walking 

alongside. Suspicious, appellant followed, as did Parra, and saw 

the Jeep pull into the carport. 

Before appellant reached the Jeep, it backed up and sped 

out of the driveway. As it did so, Cabrera’s leg and jacket were 

hanging out of the open rear passenger door. Concerned for 

Cabrera’s safety, appellant ran to his car in the alley and 
8

followed the Jeep. Parra also got into appellant’s car, sitting in 

the front passenger seat. 

Appellant testified that as he turned the corner, he saw 

Cabrera struggling with someone inside the Jeep. Appellant 

drove up to the Jeep, but “before [he] could put the car in park, 

[he] heard a pop.” Cabrera jumped into appellant’s car and 

appellant began to drive away. He looked back and saw “a big 

old hole in the windshield” of the Jeep. Appellant claimed that 

he never saw anyone with a gun that day. While driving back to 

Belin's house, however, Parra told appellant to keep his mouth 

shut or he and Jacequez would be hurt. 

On cross-examination, appellant admitted that when he 

stopped next to Zane’s Jeep, Parra exited the passenger side. 

Appellant then “heard a pop. [Parra] jumped back in. [Cabrera] 

jumped in the back seat, and I took off.” When Parra reentered 

the car, he was carrying a short barrel shotgun. Appellant 

claimed he had not seen Parra with the shotgun before the 

shooting. 

Appellant identified all three defendants in the 

surveillance videos. He admitted that the videos showed Parra 

walking “with a slight affect to his body,” when he walked from 

the carport after Zane’s Jeep left with Cabrera inside. But 

appellant denied noticing that Parra moved awkwardly during 

the incident, and denied that the reason Parra was walking in 

that manner was because he had concealed a shotgun in his 

pants. 

PROCEDURAL HISTORY

I. Conviction and Sentence

Appellant, Parra, and Cabrera were jointly tried. A jury 

convicted all three defendants of first degree murder (§ 187, subd. 
9

(a); count 1) and found true the attempted-robbery-murder 

special circumstance (§ 190.2, subd. (a)(17)). The jury also 

convicted defendants of attempted second degree robbery 

(§§ 664/211; count 2), and conspiracy to commit robbery (§ 182, 

subd. (a)(1); count 3). On the conspiracy count, the jury found 

true the overt act that appellant pointed a loaded shotgun at the 

victim. As to all counts, the jury found that a principal 

discharged a firearm (a shotgun) causing death 

(§ 12022.53, subds. (d) and (e)(1)), and that the crime was 

committed for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)(C)). 

The trial court sentenced appellant to life without the 

possibility of parole on count 1, plus 25 years to life for the 

firearm enhancement under section 12022.53, subdivisions (d) 

and (e)(1). The court also imposed terms of two years on count 2, 

life without parole on count 3, and 25 years to life for the firearm 

enhancement on each count, but stayed those sentences pursuant 

to section 654. 

A different panel of this court affirmed the convictions of 

appellant, Parra, and Cabrera on direct appeal.

7 As relevant 

here, appellant argued that the evidence was insufficient to 

support the jury’s true finding on the attempted robbery-murder 

special circumstance because it failed to prove that he acted with 

reckless indifference to human life in aiding and abetting the 

attempted robbery. (See People v. Parra, supra.) This court 

reviewed the factors under Banks, supra, 61 Cal.4th 788 and 

concluded there was “no question that substantial evidence 

7 The court remanded the matter for correction of several 

sentencing errors. (See People v. Parra, supra.)
10

showed” that appellant was a major participant who acted with 

reckless indifference.

8 (See People v. Parra, supra.) Citing the 

cell phone evidence, this court found that appellant “was the 

mastermind of the plan to rob Zane, the culmination of which 

was Zane’s death.” (People v. Parra, supra.)

In addition, the court relied on Zachary’s testimony 

identifying appellant as the one who pointed a shotgun at Zane in 

the carport and threatened to kill him. Notably, the court 

expressly rejected appellant’s contention that Zachary’s 

identification was unreliable. The court found that “Zachary’s 

identification of Conchas as the one who pointed the shotgun at 

Zane and threatened to kill him was not physically impossible: 

Conchas was present in the carport, and Zachary personally 

observed the assailant with the shotgun. Further, even though 

the evidence suggested that Parra carried the shotgun stuffed 

down a pant leg when he returned from the carport to Tyler 

Alley, and later used it when he shot Zane after the pursuit, it is 

not physically impossible that Conchas, after using the gun in the 

carport, gave it to Parra to conceal and carry after the robbery 

was interrupted. In short, Zachary's identification of Conchas as 

the person who used the shotgun in the carport constituted 

substantial evidence of that fact.” (See People v. Parra, supra.) 

8 The jury made the special circumstance finding prior to our 

Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and 

Clark, supra, 63 Cal.4th 522, which clarified the law regarding 

major participants in an underlying offense who act with reckless 

indifference to life. As such, on appeal this court independently 

analyzed whether the evidence supported the jury’s finding under 

section 190.2 under the standards established by Banks and 

Clark.
11

The court also noted that in convicting appellant of conspiracy, 

the jury found true the alleged overt act that he “pointed a loaded 

shotgun at the victim.” (People v. Parra, supra.)

The court also reasoned, “Considering Conchas’ awareness 

‘of particular dangers posed by the nature of the crime, weapons 

used, or past experience or conduct of the other participants’ 

(Banks, supra, 61 Cal.4th at p. 803), the jury could infer that 

Conchas knew the inherent danger involved when he and fellow 

NSP gang members planned to rob a marijuana dealer using a 

sawed-off shotgun after luring him to a place of seclusion.” 

(People v. Parra, supra.) Further, the court found that appellant 

was “‘present at the scene of the killing, in a position to facilitate 

or prevent the actual murder.’” (Id., quoting Banks, supra, 61 

Cal.4th at p. 803.) The court noted that after Zane drove out of 

the complex, appellant pursued him in his vehicle, “carrying 

Parra, who was then armed with a shotgun.” The court rejected 

as “unlikely” appellant’s testimony that he did not notice Parra 

was armed, particularly given the finding that appellant had 

pointed a weapon at Zane just moments before. (People v. Parra, 

supra.) The court also found that appellant “‘play[ed] a 

particular role in the death.’ ([Banks, supra, 61 Cal.4th at p. 

803].) He drove the shooter, Parra, to the scene of the shooting, 

and stopped next to Zane’s car, which allowed Parra to get out 

and shoot Zane. After the shooting, Parra got back in, Cabrera 

entered, and Conchas drove off with the two men he had 

recruited to rob Zane, leaving Zane fatally wounded.” (People v. 

Parra, supra.)
12

II. Section 1172.6 Proceedings

A. Petition and response

On January 14, 2019, appellant filed a form petition for 

resentencing under section 1172.6. He checked the boxes 

indicating that he was convicted of first or second degree murder 

pursuant to the felony murder rule or the natural and probable 

consequences doctrine, and that he could not now be convicted of 

first degree felony murder because he was not the actual killer, 

was not a major participant in the underlying felony, and did not 

act with reckless indifference to human life during the course of 

the felony. The court appointed counsel for appellant. 

In March 2019, the People filed an opposition to the 

petition, contending that the statute was unconstitutional. In 

June 2019, the People filed a supplemental opposition. The 

People conceded that appellant had been convicted under the 

felony-murder rule, but argued he was ineligible for relief on the 

grounds that he was a major participant in the underlying felony 

and acted with reckless indifference to human life. Citing the 

factors set forth in Banks, the People argued that all three 

defendants “planned and coordinated the robbery of Zane 

Goldstein,” and each “played a significant role,” in the criminal 

enterprise. The People cited the evidence that both appellant 

and Parra were armed with firearms, appellant pointed a 

shotgun at Zane and threatened to “blast” him, appellant and 

Parra pursued the vehicle after Zane resisted, and all three 

defendants fled together after Parra shot Zane. The People also 

requested that the court take judicial notice of the prior decision 

of this court in People v. Parra, supra. The court granted that 

request, with no objection by appellant. 
13

In March 2020, appellant filed a reply brief arguing that he

had established a prima facie case for resentencing, and 

requesting that the court issue an order to show cause and set 

the matter for an evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3). He asserted that he did not have a firearm 

during the attempted robbery and that there had not been any 

plan to kill anyone, and therefore that he did not act with 

reckless indifference to human life. 

B. Hearing and decision

The court issued an order to show cause, and held an 

evidentiary hearing on April 29, 2022. The People relied on the 

prior appellate decision, the preliminary hearing transcripts, and 

the evidence presented at trial. Appellant’s counsel conceded in 

his opening statement that appellant was a major participant in 

the attempted robbery, but argued that appellant’s petition 

should be granted because he did not act with reckless 

indifference to human life. 

Appellant testified and called Stephanie Jacequez as a 

witness on his behalf. He also submitted four exhibits—

surveillance video clips, two photographs of the apartment 

complex, and one photograph of the carport. 

Jacequez, who was not called as a witness during the trial, 

testified that in 2013 she was living with appellant and their 

children. On the day of the incident, she and appellant went to 

Cabrera’s residence around noon. To her knowledge, appellant 

was not armed. She also did not see Cabrera or Parra with any 

weapons that day. She testified that at the time, appellant had a 

“sleeve” of tattoos covering his right forearm. She reviewed the 

surveillance video, which she described as “blurry,” but identified 

Parra as the bald individual wearing a white shirt. She also 
14

identified appellant as the individual running down the driveway 

from the carport. Appellant testified that on the day of the 

incident, he and Jacequez went to Cabrera’s house and he and 

Cabrera discussed getting marijuana. He acknowledged that he 

was not completely truthful during his testimony at trial and 

that he lied about his “involvement in planning the robbery.” He 

previously testified that he had no intention to rob anyone, but in 

fact he and Cabrera planned to arrange to buy marijuana from 

Zane. When Zane arrived, “it was going to be a basic snatch and 

grab. . . . Show us the marijuana. One of us grabs the weed, 

runs, and after one would be a distraction in case there is a 

pursuit.” Appellant also admitted that he contacted Zane by text 

message and “basically put the plan into effect, and that he had 

lied at trial when he claimed he had given his phone to Cabrera. 

He said he lied at trial because his prior attorney told him that if 

he was involved in the robbery, he could be convicted for the 

murder. He claimed that Parra was not part of the plan. 

Appellant did not have a weapon at any point that day, nor did 

Cabrera; consequently, he did not think the attempted robbery 

would create any danger to human life. 

Viewing the video footage, appellant testified that he had a 

“buzzed cut” with short black hair, wearing a black short-sleeved 

shirt, black and white checkered shorts, white socks, and white 

shoes. He also had tattoos on his right forearm. He identified 

Cabrera as wearing blue jeans and a black and white jacket, and 

Parra as bald and wearing all white. On that day, he gave Zane 

the address of the apartment complex on Holliston to meet them. 

Parra arrived at the “last minute”; appellant and Cabrera 

informed Parra of the robbery plan while they were walking to 
15

meet Zane. He did not see Parra with a weapon when Parra 

arrived. 

Appellant explained that the plan was once the Jeep 

arrived, Cabrera would enter the car and ask to see the 

marijuana. Once the marijuana was shown, Cabrera was 

supposed to snatch the drugs and run through the alley. 

Appellant planned to stay in the alley and stop anyone who 

pursued Cabrera. They had not planned for the Jeep to pull into 

the driveway, so once it did, appellant and Parra walked after it 

to see what was happening. By the time appellant neared the 

Jeep, it was backing out rapidly. 

Appellant also testified that after the Jeep left with 

Cabrera inside, he pursued it to help Cabrera. Appellant was not 

armed. He acknowledged that the video showed Parra walking 

oddly, but insisted he did not see a gun on Parra. Appellant ran 

to his car and Parra got in the passenger side. Appellant did not 

see any weapon on Parra at that time and saw nothing to make 

him suspicious that Parra might have a gun. Appellant drove 

around the corner and saw the Jeep parked on the street. 

Appellant pulled his car in front of the Jeep. He testified that the 

following events happened “so fast.” As he pulled over, Parra 

jumped out of the car. Then appellant “heard a pop.” He 

“immediately hit the gas” out of fear after hearing the gunshot, 

and Parra and Cabrera jumped in the car as it was moving. As 

he was driving away, appellant looked back and saw a hole in the 

Jeep’s windshield. He did not see anyone get shot. He did see 

Parra with a single barrel shotgun, approximately 10 inches long, 

when Parra got back in the car. When Parra reentered the car, 

appellant realized that Parra had fired the shotgun, but 

appellant was not aware that Zane had been killed until later. 
16

During cross-examination, appellant acknowledged that 

Parra was a fellow NSP gang member. He also acknowledged 

that the plan was to “put up a fight” if anyone pursued Cabrera 

after he grabbed the marijuana. He agreed that drug dealing can 

be a dangerous business and he had no idea if Zane would be 

armed. 

At the continued hearing on May 4, 2022, the court 

admitted appellant’s exhibits without objection and took judicial 

notice of the transcript of testimony from the trial. Appellant’s 

counsel argued that there was insufficient evidence for the court 

to find beyond a reasonable doubt that appellant knew that Parra 

was armed. He also argued that appellant could not have done 

anything to stop Parra from shooting Zane. The court took the 

matter under submission. 

The court issued a written decision on May 6, 2022, 

denying appellant’s petition. The court discussed the Banks

factors, concluding that appellant was a major participant in the 

criminal enterprise that led to Zane’s death, and that appellant 

acted with reckless indifference to human life. 

Specifically, the court found that cell phone evidence 

introduced at trial established that appellant was “the 

mastermind of the plan to rob Mr. Goldstein, the culmination of 

which was Mr. Goldstein’s death.” The court also rejected as 

“not credible” appellant’s testimony during the evidentiary 

hearing that he was not armed at any point during the incident, 

noting that at trial, appellant “was identified by a witness as a 

person who pointed a shotgun at Mr. Goldstein during the 

attempted robbery and threatened to kill him.” The court 

continued, “[i]n considering whether [appellant] was aware of the 

particular dangers posed by the nature of the crime at issue in 
17

this case, it is quite reasonable to infer that [appellant] as a 

member of the North Side Pasadena street gang, knew the 

inherent dangers of the crimes at issue in this case when he and 

other members of his gang made a plan to rob an individual 

selling marijuana using a sawed off shotgun after luring the 

intended victim into a place of seclusion.”

The court also found that the evidence presented at trial 

established that appellant “was present at the scene of the 

killing, in a position to facilitate or prevent the actual murder. 

The jury heard testimony that [appellant] pursued Mr. Goldstein 

in his car with his co-defendant Mr. Parra, who was armed with a 

shotgun that ultimately fired the fatal shot.” The court again 

found appellant was not credible either at trial or during the 

hearing when he testified that he was not aware that Parra was 

armed, based on “a review of all the evidence in his case.” Thus, 

the court concluded that “[t]he totality of all the evidence 

produced both at the trial . . . and at the evidentiary hearing 

regarding this petition leads this Court to the conclusion that 

[appellant] was a major participant in the attempted robbery in 

this case, and that he acted with a reckless indifference to human 

life.” 

Appellant timely appealed. 

DISCUSSION

I. Governing Law

Section 189 was amended in 2019 to limit liability for 

murder under a felony-murder theory to a participant who (1) 

was “the actual killer,” (2) “with the intent to kill,” aided or 

abetted “the actual killer in the commission of murder in the first 

degree,” or (3) “was a major participant in the underlying felony 

and acted with reckless indifference to human life as described in 
18

subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)-(3); see 

People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) The 

language of section 189, subdivision (e)(3) tracks the language of 

the robbery-murder special provision in section 190.2, subdivision 

(d), both requiring a finding that a participant was a “major 

participant” in the underlying felony (here, an attempted 

robbery) and acted with “reckless indifference” to human life. 

(See §§ 189, subd. (e)(3), 190.2, subd. (d).) 

Section 1172.6 permits individuals who were convicted of 

felony murder or murder under a natural and probable 

consequences theory, but who could not be convicted of murder 

following the changes to section 189, to petition the sentencing 

court to vacate the conviction and resentence on any remaining 

counts. (§ 1172.6, subd. (a).) 

At the evidentiary hearing on a section 1172.6 petition, the 

People have the burden of proving 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.” (§ 1172.6, subd. (d)(3).) 

At the hearing, 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.” (Ibid.) Additionally, both the petitioner and the People 

“may also offer new or additional evidence to meet their 

respective burdens.” (Ibid.) “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 
19

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.” (Ibid.) Resentencing is 

unavailable if the petitioner was a major participant in the 

underlying felony and acted with reckless indifference to human 

life. (Strong, supra, 13 Cal.5th at p. 710.) The trial court acts as 

an independent factfinder and determines whether the 

prosecution has met its burden. (People v. Ramirez (2021) 71 

Cal.App.5th 970, 984 (Ramirez).)

II. Standard of Review

On appeal from an order denying a section 1172.6 petition 

after an evidentiary hearing, we review the trial court’s factual 

findings for substantial evidence. (People v. Richardson (2022) 79 

Cal.App.5th 1085, 1090; People v. Clements (2022) 75 Cal.App.5th 

276, 298 (Clements).) “The scope of our review for substantial 

evidence is well settled. The test is not whether the People met 

their burden of proving beyond a reasonable doubt that [a 

defendant in a section 1172.6 proceeding] was ineligible for 

resentencing, but rather ‘whether any rational trier of fact could 

have’ made the same determination, namely that ‘[t]he record ... 

disclose[s] . . . evidence that is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find [as did the 

superior court].’” (People v. Williams (2020) 57 Cal.App.5th 652, 

662-663, quoting People v. Zamudio (2008) 43 Cal.4th 327, 357; 

see also People v. Cody (2023) 92 Cal.App.5th 87, 111.) Thus, our 

job on review “is to determine whether there is any substantial 

evidence, contradicted or uncontradicted, to support a rational 

fact finder’s findings beyond a reasonable doubt.” (Clements, 

supra, 75 Cal.App.5th at p. 298.)
20

“‘In applying this test, we review the evidence in the light 

most favorable to the prosecution and presume in support of the 

[order] the existence of every fact the [superior court] could 

reasonably have deduced from the evidence. [Citation.]

“Conflicts [in the evidence] . . . subject to justifiable suspicion do 

not justify the reversal of a judgment, for it is the exclusive 

province of the trial judge . . . to determine the . . . truth or falsity 

of the facts upon which a determination depends.”’” (People v. 

Williams, supra, 57 Cal.App.5th at p. 663, citations omitted; 

People v. Cody, supra, 92 Cal.App.5th 87, 112-113 [“Our role is 

not to reweigh the evidence, nor is it our role to judge the 

credibility of witnesses.”].) “If the circumstances reasonably 

justify the findings made by the trier of fact, reversal of the 

judgment is not warranted simply because the circumstances 

might also reasonably be reconciled with a contrary finding.” 

(People v. Jennings (2010) 50 Cal.4th 616, 639.)

III. Banks and Clark

In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 

Cal.4th 522, our Supreme Court “clarified the meaning of the 

special circumstances statute” (In re Scoggins (2020) 9 Cal.5th 

667, 674) and set forth the factors relevant to determining 

whether a defendant is a major participant in a felony who acted 

with reckless indifference to life. The major participant and 

reckless indifference factors “significantly overlap” in that “‘the 

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

more likely that he acted with reckless indifference to human

life.’” (Clark, supra, 63 Cal.4th at pp. 614-615, quoting Tison v. 

Arizona (1987) 481 U.S. 137, 153 (Tison).)

In Clark, supra, 63 Cal.4th at pp. 618-623, the court set 

forth a nonexhaustive list of factors relevant to determining 
21

whether a defendant acted with reckless indifference to human 

life. The first factor relates to weapons: Was the defendant 

aware that weapons would be used in the felony? Did the

defendant use a weapon? How many weapons were used in the 

crime? (Clark, supra, 63 Cal.4th at p. 618.) The court cautioned 

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.; see also id. at p. 617, fn. 74 

[“A robbery in which the only factor supporting reckless 

indifference to human life is the fact of the use of a gun is what 

we meant by ‘a garden-variety armed robbery’ in Banks, supra, 

61 Cal.4th at p. 802.”].) The second factor is the defendant’s 

physical proximity to the murder and the events leading up to it, 

and the opportunities that proximity afforded to restrain the 

crime or aid the victim. (Clark, supra, 63 Cal.4th at p. 619.) The 

third factor is the duration of the felony, particularly the 

duration of the interaction between victims and perpetrators; 

more prolonged incidents provide “‘a greater window of 

opportunity for violence.’” (Id. at pp. 620-621.) The fourth factor 

is the defendant’s awareness of codefendants’ propensity for 

violence or likelihood of killing a victim. (Id. at p. 621.) The final 

factor is the defendant’s efforts to minimize the risk of violence 

during the felony, though the court cautioned that “some effort to 

minimize the risk of violence does not, in itself, necessarily 

foreclose a finding that defendant acted with reckless indifference 

to human life.” (Id. at pp. 621-622.) 

No single factor is determinative. (Clark, supra, 63 Cal.4th 

at pp. 618, 621–623.) Instead, courts must assess the totality of a 

defendant’s culpability along a spectrum. (See Strong, supra, 13 

Cal.5th at p. 705.) At the least culpable end of the spectrum is 
22

the defendant in Enmund v. Florida (1982) 458 U.S. 782, a 

getaway driver who was a “‘minor actor in an armed robbery, not 

on the scene, who neither intended to kill nor was found to have 

had any culpable mental state,’” and thus was minimally 

culpable for the murder that ensued. (Banks, supra, 61 Cal.4th 

at p. 800.). At the other, highly culpable, end of the spectrum are 

the defendants in Tison, supra, 481 U.S. 137, who “had broken 

convicted murderers out of jail, armed them, captured an 

innocent family, ‘held [the family] at gunpoint while the two 

murderers deliberated whether the family should live or die, 

[and] then stood by while all four members were shot.’” (Strong, 

supra, 13 Cal.5th at p. 705, quoting Banks, supra, 61 Cal.4th at 

p. 802.)

A defendant’s youth at the time of the crime “is a relevant 

factor in determining whether the defendant acted with reckless 

indifference to human life.” (Ramirez, supra, 71 Cal.App.5th at 

p. 987, citing In re Moore (2021) 68 Cal.App.5th 434, 453-454 

(Moore).) This is because children generally lack the experience, 

perspective, and judgment of adults, and are also generally less 

responsible and mature. (Moore, supra, 68 Cal.App.5th at p. 

453.) As with the other factors, youth alone is not dispositive. (In

re Harper (2022) 76 Cal.App.5th 450, 470.)

At bottom, “[r]eckless indifference to human life is ‘implicit 

in knowingly engaging in criminal activities known to carry a 

grave risk of death’” (In re Scoggins, supra, 9 Cal.5th at p. 676, 

quoting Tison, supra, 481 U.S. at p. 157), and “encompasses a 

willingness to kill (or to assist another in killing) to achieve a 

distinct aim, even if the [appellant] does not specifically desire 

that death as the outcome of his actions.” (Clark, supra, 63 

Cal.4th at p. 617.) Although recklessness has a subjective 
23

element, “it is the jury’s objective determination that ultimately 

determines recklessness”; “a defendant’s good faith but 

unreasonable belief that he or she was not posing a risk to 

human life in pursuing the felony does not suffice to foreclose a 

determination of reckless indifference to human life.” (Id. at p. 

622.)

IV. Analysis

Appellant does not challenge the trial court’s finding that 

he was a major participant in the attempted robbery. Instead, he 

argues only that there was insufficient evidence to support the 

finding that he acted with reckless indifference to human life. 

Applying the factors identified by Clark, and viewing the totality 

of the circumstances, we conclude the record contains sufficient 

evidence from which the trial court could conclude beyond a 

reasonable doubt that appellant acted with reckless indifference 

to human life.

Appellant’s central focus is on the trial court’s finding that 

appellant pointed the shotgun at Zane and threatened to “blast” 

him. Appellant argues that this finding is “contrary to the 

evidence,” pointing to Zachary’s testimony that the person with 

the shotgun was wearing a white shirt and jeans, was bald, and 

Zachary did not see any tattoos on the man’s arms. This 

evidence, he argues, unequivocally matches the description of 

Parra, not appellant. 

“While an appellate court can overturn a judgment when it 

concludes the evidence supporting it was ‘inherently improbable,’ 

such a finding is so rare as to be almost nonexistent. ‘“To 

warrant the rejection of the statements given by a witness who 

has been believed by a trial court, there must exist either a 

physical impossibility that they are true, or their falsity must be 
24

apparent without resorting to inferences or deductions.” 

[Citations.] Such cases are rare indeed.’” (People v. Ennis (2010) 

190 Cal.App.4th 721, 728–729.) Appellant recognizes this 

weighty standard, but suggests that this case is one such rarity. 

We disagree. 

As appellant notes, there was inconsistent evidence 

regarding the identity of the assailant who pointed the shotgun 

at Zane. These inconsistencies were presented at trial and the 

jury nevertheless found that appellant wielded the shotgun. In 

appellant’s direct appeal, this court found that substantial 

evidence supported the jury’s verdict and expressly rejected 

appellant’s argument that Zane’s identification was mistaken. 

Subsequently, following the evidentiary hearing on appellant’s 

resentencing petition, the same judge who presided over 

appellant’s trial found that appellant had pointed the shotgun at 

Zane. We find no basis to depart from these findings. Zachary 

testified at trial that he got a good look at the individual pointing 

the shotgun and that he was certain it was appellant; he made 

the same identification at the preliminary hearing. Further, 

Zachary’s testimony that the man had a shaved head and that he 

did not see any tattoos was not necessarily inconsistent with his 

identification of appellant. 

Appellant suggests, without authority, that the trial court 

was required to find that Zachary was mistaken in his 

identification of appellant, rather than in his description of the 

assailant’s clothing. We will not reweigh this evidence, and we 

disagree with appellant that it was physically impossible for 

appellant to have pointed the shotgun at Zane. The video 

surveillance footage showed that an individual later identified as 

Parra was dressed in a white shirt and jeans and that both 
25

appellant and Parra followed the Jeep after Zane drove into the 

apartment complex. The footage did not show, however, which 

defendant pointed the shotgun at Zane. Appellant was present 

near the Jeep at the time and Zachary identified him as the 

assailant with the shotgun. Further, as this court previously 

noted, even if Parra was subsequently carrying the shotgun in his 

pant leg, it was not physically impossible that appellant first 

pointed the gun at Zane, then gave the gun to Parra to conceal 

and carry as they pursued the Jeep. 

As such, the trial court’s finding that appellant pointed the 

shotgun at Zane was supported by substantial evidence. Thus, 

appellant’s use of a weapon and threat to shoot Zane during the 

attempted robbery weighs heavily in favor of the finding that he 

acted in reckless disregard for human life.9 (See Clark, supra, 63 

Cal.4th at p. 618.) 

Similarly, we conclude that the trial court’s finding that 

appellant was aware that Parra was armed during the course of 

the incident was supported by substantial evidence. The 

evidence demonstrated that Parra was carrying a 10-inch 

9 The court’s finding that appellant was armed 

distinguishes this case from those cited by appellant, in which 

the defendant was aware that his confederate was armed, but did 

not personally use a weapon. (See, e.g., Clark, supra, 63 Cal.4th 

at pp. 613, 618 [“The 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.”]; Ramirez, supra, 71 

Cal.App.5th at p. 988 [insufficient evidence of reckless 

indifference where “Ramirez was aware Rios had a gun and 

intended to use it during the carjacking”].)
26

shotgun when he entered the front passenger seat of appellant’s 

car. From that evidence, along with appellant’s own prior 

brandishing of the weapon, a factfinder could reasonably 

conclude that appellant was aware that Parra was armed as they 

began the pursuit of the Jeep. The trial court was entitled to 

reject appellant’s testimony to the contrary, and we will not 

disturb that credibility finding on appeal. 

The remaining Clark factors offer little support for 

appellant. He concedes that he was present at the scene of the 

shooting, but argues that there is no evidence that he knew Parra 

would shoot Zane, and that he pursued the Jeep only out of 

concern for Cabrera. The evidence demonstrated that appellant 

was present for the commission of the robbery and the shooting,

and did nothing to prevent the murder. (Clark, supra, 63 Cal.4th 

at p. 619 [“‘[i]f the defendant fails to act as a restraining 

influence, then the defendant is arguably more at fault for the 

resulting murders’”].) On the contrary, he drove his armed 

confederate in pursuit of the fleeing victims, then facilitated the 

murder by pulling his car in front of Zane’s vehicle. This allowed 

Parra to jump out of the car, shoot Zane, and quickly jump back 

in, at which point appellant sped away from the scene. He made 

no effort to restrain Parra or aid the victim, despite his testimony 

that he heard the gunshot and saw the large hole in the Jeep’s 

windshield. (See People v. Douglas (2020) 56 Cal.App.5th 1, 10 

[defendant “displayed no interest in moderating violence or in 

aiding his bloody and suffering victim”].)

Appellant contends that the brief duration of the incident 

weighs in his favor. (See Clark, supra, 63 Cal.4th at p. 620 

[prolonged incidents provide “a greater window of opportunity for 

violence”]; Ramirez, supra, 71 Cal.App.5th at p. 989 [appellant 
27

did not have a “meaningful opportunity” to intervene in sudden 

and unprovoked shooting by associate].) We disagree. As 

planned by appellant, he and his confederates laid in wait for the 

victims to arrive, directed their vehicle to a secluded area, then 

appellant threatened Zane with a shotgun. When the attempted 

robbery was thwarted by Zane’s decision to flee, appellant 

decided to continue the confrontation by pursuing the Jeep, 

accompanied by a fellow armed gang member, rather than taking 

the opportunity to de-escalate the situation. Appellant then 

pulled in front of the Jeep, preventing further escape and 

allowing Parra to confront the victims with the shotgun. As such, 

the incident had a more prolonged opportunity for violence than 

appellant suggests, which cuts against him. 

We also note that the trial court’s factual finding that 

appellant was a major participant in the underlying felony as the 

“mastermind” of the plan is itself supportive of the court’s further 

factual finding that he acted with reckless indifference to human 

life. (See People v. Cody, supra, 92 Cal.App.5th at p. 113; see also 

In re Scoggins, supra, 9 Cal.5th at p. 677 [“The greater the 

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

that he [or she] acted with reckless indifference to human life”]; 

Tison, supra, at p. 158, fn. 12 [a defendant’s status as a major 

participant in the underlying felony will “often provide significant 

support for . . . a [reckless indifference] finding”].)

Appellant cites his youth as another factor in his favor, as 

he was 23 years old at the time of the shooting. While the trial 

court could consider appellant’s age and maturity level along 

with the other factors, it was not required to treat it as the 

decisive factor. (See, e.g., People v. Oliver (2023) 90 Cal.App.5th 

466, 489 [finding harmless error in court’s failure to consider 23-
28

year-old defendant’s age and noting that “[p]resumably, the 

presumption of immaturity weakens as a defendant approaches 

26”]; see also In re Harper, supra, 76 Cal.App.5th at p. 470.)

Substantial evidence therefore supports the trial court’s 

finding beyond a reasonable doubt that appellant acted with 

reckless indifference to human life. He was ineligible for 

resentencing under section 1172.6, and the petition was correctly 

denied.

DISPOSITION

The order denying appellant’s petition for resentencing is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P.J.

ZUKIN, J.