1

Filed 11/14/22 In re W right CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

( Sacramento )

----

In re CHEVAL SHANNON WRIGHT

o n Habeas Corpus. C0 9 4514 (Super. Ct. No. 20HC00287 )

D efendant Cheval Shannon Wright ’s 1995 convictions included murder, attempted murder and robbery. Various subsequent proceedings have modified defendant’s legal accountability f or his involvement in the robbery , during which two people were shot

. The instant matter involves the People’s appeal from the trial court’s ruling granting defendant’s petitio n for writ of habeas corpus and vacating the robbery

- murder special

circumstance finding

. T

he People argue that the trial court erred in applying the wrong
standard of review by relying on the jury’s negative finding on the personal use of a firearm allegation to discount evidence that defendant was the shooter and, in doing so,
reached a conclu sion not supported by the record. In response, defendant argues that the jury’s verdicts point to only one conclusion ; defendant’s actions in restraining the actual2

shooter do not demonstrate a reckless disregard for human life

. Because under our
deferen tial standard of review, substantial evidence supports the jury’s true finding on the special circumstance allegation at issue here, w e shall reverse

.

FACTUAL AND PROCEDURAL HISTORY
This c ourt first affirm ed the conviction s of defendant and codefendant C hristian Abernathy in People v. Wright (1996) 52 Cal.App.4th 203 . Four years later, a federal trial court adopted the findings of its magistrate who sustained defendant ’s petition for habeas corpus , set aside defendant’s convictions and granted a new tria l . On retrial, a jury again convicted defendant of first degree murder and attempted second degree robbery of Kevin Brown , and second degree robbery of Marlin Moore . (Pen. Code, §§ 187

- 189, 211

- 212.5, 664

. ) 1 In contrast with the previous jury, however, it acquitted
defendant of the attempted murder and the lesser included offenses of attempted voluntary manslaughter and assault with a firearm of Moore (§§ 187, 192, 245, 664) , rejected all allegations that defe ndant personal ly use d a firearm (§ 12022.5, subd. (a)) and
instead sustain ed lesser included allegations that a principal was armed during the crimes (§ 12022, subd. (a)(1))

. It also found the murder occurred during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The trial court again sentenced defendant to prison without the possibility of parole. On appeal, this court affirmed defendant’s convictions. While we did not address the sufficiency of the evidence supporting the special
circumstan ces finding, we did note that the jury resolved the issue of the identification of
the shooter in favor of defendant. ( People v. Wright (Dec. 11, 2002, C039121 ) [nonpub. opn.].) 2

1 Unspecified statutory references are to the Penal Code.

2 We granted the People’s request to incorporate by reference the appellate record in People v. Wright

, supra , C039121.3

After defendant’s conviction became final, the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 ( Banks ) , People v. Clark (2016) 63 Cal.4th 522 ( Clark ), and later In re Scoggins (2020) 9 Cal.5th 667 ( Scoggins ) , which clarified the

mean ing of the special circumstance statute. That statute provides that a person who is not the actual killer but “who, with reckless indifference to human life and as a major participant” aids or abets an enumerated felony that results in a death may be conv icted of special circumstance murder and sentenced to death or life imprisonment without parole. (§ 190.2, subd. (d).) Banks and Clark clarified that fact finders must examine an aider and abettor’s personal culpability that led to a death during the com mission of a felony before imposing a sentence of death or life without parole, and the Supreme Court provided guidance on how to make that evaluation. ( Banks , at pp. 800

- 803; Clark , at
pp. 618

- 623.) Also subsequent to defendant’s conviction, the Legislat ure adopted Senate Bill
No. 1437 (2017

- 2018 Reg. Sess.; Stats. 2018, ch. 1015, eff. Jan. 1, 2019) (Senate Bill 1437). Senate Bill 1437 limited felony

- murder liability to those who in the course of committing an enumerated felony w ere the actual killer , ai ded and abetted the actual killer with the intent to kill, or w ere major participant s in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).) Senate Bill 1437 also provided in former section 1170.95 , 3 a procedure for defendants previously convicted of felony murder to petition for resentencing if they could not have been convicted under the amended felony

- murder statute.
D efendant unsuccessfully sought relief under the resentencing provisions of
former section 1170.95. We affirmed the trial court’s denial of the postjudgment motion, concluding that a prerequisite to relief f o r defendants who, like Wright, are convicted of

3 Effective June 30, 2022, Assembly Bill No. 200 (2021

- 2022 Reg. Sess.) renumbered section 1170.95 as section 1172.6 with no change in text

. (Stats. 2022, ch. 58, § 10.)4

murder with a special circumstance finding that the murder was committed in the course of the robbery is to have the special circumstance finding vacated through a habeas
corpus proceeding. ( People v. Wright (Sept. 28, 2021, C091633 ) [nonpub. opn.] , revie w granted Dec. 15, 2021, S271574 , vacated & trans. for reconsideration in light of People v. Strong (2022) 13 Cal.5th 698 Oct. 26, 2022 .) 4
Defendant has done so , and we now review that ruling. Because there was no evidentiary hearing in the habeas corp us proceeding, we are bound by the facts
established at the second trial. Like the trial court, w e rely on the relevant facts recounted
in the appellate opinion from defendant’s second trial , clarifying with evidence from the
record where we deem appropriate

. In 1993, defendant drove a Hyundai to the home of acquaintances, where he joined a group drinking alcohol and smoking marijuana. Five of the part i ers, including defendant, departed in the Hyundai to buy more alcohol. D efendant was too inebriated,
so he asked someone else to drive. Codefendant was also high. Prior to this, another partier saw codefendant with a gun. The two victims were among the four occupants of an Oldsmobile convertible that was dropping off one of the passengers in the North Highlands area. As the convertible neared the passenger’s home, it passed the Hyundai, which was heading the opposite
direction. D efendant told the Hyun dai driver to make a U

- turn. As the convertible began
its own U

- turn to drop off the passenger, the Hyundai stopped in front of it.

4 The nature of the question on review in the direct appeal from the denial of defendant’s petition for relief under former section 1170.95 is distinct from th e before us and review of the instant habeas corpus proceeding will not interfere with th at matter while the People exercise their right under section 1506. (See France v. Superior Court (1927) 201 Cal. 122, 126

- 127 [ t he writ of habeas corpus is an action independent of the underlying criminal prosecution ].)5

According to a bystander who witnessed the crimes, a man got out of the Hyundai and approached the convertible. The Oldsm obile’s convertible top was lowered or open. The man from the Hyundai yelled at the occupants in the Oldsmobile , then pointed a gun at them. A second man got out of the Hyundai and attempted to restrain the first. The first man (who was darker

- complecte d) broke free and fired two or three shots. The bystander identified defendant as the second man, based primarily on his lighter complexion and physical appearance in comparison with codefendant. In 1993, the bystander was not able to identify either cod efendant or defendant in photo lineups. A deputy assigned to the jail in October 1994 testified that he conducted a random search of codefendant’s mail. He found an outgoing letter bearing codefendant’s return address and signature in which was written, “Just ‘cause I got out of the car with the [gun], that don’t prove shit.”
Victim Accounts
A. Marlin Moore
The convertible driver , Marlin Moore, was deceased by the time of the retrial. His testimony from the first trial was read to the jury in the retrial. Moore testified that he and some of his passengers smoked marijuana and drank alcohol that day, but he was not high at the time of the incident. 5 On their way to take someone home, a Hyundai pulled in front of him, stopped and cut him off . Two men simultaneously got out of the Hyundai. Both of them wore blue colored rags at their waists, which suggested gang membership. The first, who was dark

- complected and later identified as codefendant , walked up to the convertible and asked where the occupants lived. He was holding a

5 The effects of marijuana on Moore’s ability to perceive, interpret and remember events
w ere explored on cross

- examination.6

gun. 6 Moore said he was from Oakland and did not “gang bang.” Codefendant then demanded money and nudged or tapped Moore on the forehead with the gun. The other

man , who had a lighter complexion and was later identified as defendant, hung back , did

not say anything or take any money , but also did not try to stop the robbery

. Moore was in the process of offering the $10 or so in cash he had in his pocket when he heard gunfire.
Moore looked behind him and saw that Kevin Brown, the murder victim , was grimacing. Defendant looked “shocked,” “startled” and “stunned.” Defendant grabbed codefendant from behind in a bear hug and said something to the effect of “stop , ” “cut it

out , ” “you already shot him

. ” Moore grabbed at the gun

. Defendant pulled at codefendant , pull ing him back. Codefendant waived the gun around and tr ied to point it

at Moore’s head. Moore got hold of the gun, but as the barrel began to slip out o f his hand, he pushed it away and floored the accelerator. From the rearview mirror, Moore

saw codefendant fire a shot in the direction of the convertible as it drove off. After traveling about half a block, Moore discovered he had be en shot. He had a b ullet wound
in his stomach. A couple of weeks later, Moore viewed two photo lineups. He identified codefendant as the shooter, but could not recall making the recorded statement “he’s the one that shot at me, that looks like the fool right there, I’m sur e.” As to defendant, Moore
testified that he recognized defendant’s photo in the lineup but told the officer he did not recognize anyone. He explained, “I felt he tried to stop it, and I didn’t feel as though he should get in any trouble for anything he did.” He credit ed defendant for saving his life and the lives of the rest of the people in his car.

6 Moore said that because he did not imm ediately see the gun, it was possible that defendant handed the gun to codefendant but it was a “guess” and he did not see it passed.7

Moore was an unwilling witness ; he did not wish to testify because he was facing the start of his own prison term and did not want to be known as a snitch for testifying

. Before his initial testimony at the preliminary hearing, he found himself in the same holding cell as defendant, with whom he spoke. 7 He immediately recognized defendant as the person who grabbed the shooter and he testified that he wanted to help defendant with his testimony. While Moore was willing to adhere to his identification he made at the preliminary hearing of defendant as the person who attempted to restrain the shooter, he would not identify codefendant a s the shooter even though he had picked his photo in a lineup a few weeks after the shooting. However, Moore had admitted to both defense and prosecution investigators in interviews before and after the preliminary hearing that
codefendant was the shooter

. B. Joe Jones The surviving male convertible passenger , Joe Jones , also testified that codefendant approached the car, gun in hand, and questioned them before demanding
money. One of the men, believed to be codefendant, said “this is North Highlands,
cuzz.” Jones saw codefendant shoot at the murder victim and Moore . Someone then grabbed codefendant, and they struggl ed for the gun. After the second gunshot injuring the driver, somebody, maybe defendant, grabbed the gun and said “you trippin.” He
could not remember if defendant walked up with a gun; he only remembered that defendant had the gun when he grabbed codefendant after the second shot and struggle. A third person walked up at the time of the first shooting ; this all happened within
seconds. When confronted with his testimony at the preliminary hearing that someone had grabbed the gun from the first man, he corrected his recollection. He believed

7 During his appearances as a witness in the previous trial, he was in the same holding area with defendant and codefenda nt on at least 10 occasions. Norwood Armstrong, another Hyundai passenger, w ere also in the holding area.8

codefendant was the second person to approach the car, at which point he took the gun from the first p erson and immediately fired it at them. Whatever his confusion, he was
still certain that codefendant was the shooter. When asked if he remembered his testimony at the preliminary hearing whether he was certain that both codefendant and
defendant had their hands on the gun, Jones said “ yes. ” He did not identify codefendant in a photo lineup, but the Jones attributed his difficulty due to the poor quality of the picture of codefendant.
C. Nakisha Woods The female convertible passenger , Nakis ha Woods , testified that the car containing defendant and codefendant pulled up in front of their car and blocked them and they could not get out of their car

. Wood testified that codefendant approached the car, and aggressively questioned them about thei r places of residence. Codefendant was familiar
to her from the neighborhood , but she did not know him. D efendant then approached the car. He was wearing a colored bandana and had a gun in his hand. None of the occupants of the convertible were wearing red or blue gang colors. Woods heard someone say “break yourself,” which meant for her group to give them money or anything of value. She was not sure which one of the defendants demanded money. She thought the murder victim pulled a dollar out of his pocket. She did not see who fired shots and could not recall if codefendant had the gun in his possession at any time (although she acknowledged testifying in the first trial that he held it at some point). In interviews with the police shortly after the shooting, Woods said three men got out of the Hyundai and ran toward the convertible, but she could not now recall the interviews. She
made other statements in which she contradicted herself as to whether defendant or codefendant held the gun , the possibility there was a third person who approached from the Hyundai, and as to their physical appearances , but she was consistent in her statement that she was not sure who fired the gun.9

Hyundai Occupant Accounts The occupants in the Hyundai riding with defendant were close friends and members or associates of the same gang faction as codefendant. The female Hyundai
passenger and codefendant were also family members and she admitted there was a lot of pressure to not “snitch

. ” D efendant, on the oth er hand, was from a different neighborhood faction of the gang. The other occupants had only recently met defendant and did not owe any particular loyalty to him.
A. Lovia Richardson The female Hyundai passenger , Lovia Richardson, testified that the plan was to buy more alcohol , and the occupants of the car pooled their money to do so. No one talked about robbing anyone and she never saw a gun in the car

. When they encountered the second car, s he did not see either defendant or co defendant with a gun . She could not hear what they said to the convertible occupants. When she heard a gunshot, she and the fourth Hyundai occupant got out of the ca r. S he sa w defendant with the gun in his hand. Defendant argued with codefendant , there was a scuffle that also involved the fourth Hyundai occupant, and a second shot was fired

. She yelled “let’s go, what are you guys doing, let’s get out of here.” There was a lot more yelling, the men ran back to the Hyundai, got in and they drove away

. Richardson testified she never saw a gun in codefendant’s hand.
B. Raymond Rice The Hyundai driver , Raymond Rice, testified that as they were driving to the liquor store, there was no discussion about committing a rob bery and he did not see a gun until after the shooting. Somebody told him to pull over. He could not remember who said it, although he admitted that at the first trial he testified it was defendant who waived to the people in a convertible as if he knew them and directed Rice to stop. Rice testified he pulled up in front of the convertible but did not block the path of the other car. He
claimed that after he stopped, all of his passengers got out of the car. He heard someone10

say, “break yourself , ” but did not remember who said it. He heard two gunshots , with not too much time between them, but could not tell who fired the gun. Rice testified that he did not see anybody with a weapon and did not remember telling an investigator that he

s aw defendant with a gun in his hand. After the shot was fired, Rice saw Richardson and
the other male Hyundai passenger , Norwood Armstrong, pulling defendant back to the

car

. After the shooting, they returned to Mar s ell Hobb’s house. While at the house there was discussion about what happened , and Rice saw defendant pull $10 out of his pocket
and say, “All I got is ten dollars.”
C. Norwood Armstrong The other male Hyundai passenger , Norwood Armstrong, testified that as they were driving to the liquor store, defendant made a motion to do a U

- turn. After defendant and codefendant got out of the car, he heard defendant say, “ break you all yourselves,” meaning give up the money, and he then heard a shot. He heard defendant say, “you all mother fuckers think I’ m playing.” He got out of the Hyundai and saw defendant fire a second shot at the convertible driver, after which he helped codefendant to restrain defendant and pull him back to the Hyundai. He did not see a gun in the car prior t o the shooting. Aftermath Everyone in the Hyundai returned to the house where they had been partying. They parked the car around the corner. People were agitated and talking about the shooting. Defendant looked shocked and asked for a change of clothes ; he w as pacing

. Somebody attributed the shooting to defendant; though present, he remained silent and did not deny it. 8 Rice said d efendant p ull ed money out of his pocket and said “all I got was ten dollars from it.”

8 The witness testifying to this adoptive admission had not mentioned it in the earlier trial.11

Defendant’s girlfriend at the time of th e shooting testified that defendant borrowed the Hyundai from her roommate. Shortly after the shootings, defendant phoned his girlfriend and said she should report that the car was stolen. He would not elaborate. Later that night, defendant met with his girlfriend around the corner from her apartment and returned the keys. He then moved to Fairfield with his girlfriend, where he cut his hair and attempted to find a job. Defendant’s videotaped interview by law enforcement was played for the jury. He

sa id that he let someone borrow the car, and that person left the car at a house that was raided. Defendant told his girlfriend that she should report the car stolen. At some point, the car keys were returned to defendant. Defendant said he did not know a nything about
a gun. Hearing of defendant’s August 1993 arrest, the murder victim’s widow came to see him in jail accompanied by her teenage niece. She identified herself and asked why
he had killed her husband. D efendant said he was sorry for what happ ened, and he would trade his life for her husband’s if he could. She claimed the visit lasted 10 to 15 minutes. The widow did not mention this conversation at the first trial, nor did she tell the prosecutor retrying the case about it until one or two da ys after meeting the prosecutor

. She could not explain the omission, other than having been “emotionally stressed out . . . and I just didn’t think about telling anybody.” She also thought that perhaps it was improper to have visited him. The jail records show a visit from the widow, accompanied by a minor, on September 2, 1993, at 1:06 p.m., and both an in and out time for defendant of 1:12 p.m. One cannot necessarily determine from these records either the length of a visit, or if an inmate refused to speak with a visitor. There wa s nothing otherwise to corroborate her
conversation with defendant.12

Gang Evidence
The evidence suggest ed defendant was in a gang, including owning a blue bandana as well as a blue Georgetown University baseball cap. Another gang member
testified defen dant was a member of his gang , although in a different subset. 9 A gang expert testified to general behavior from gang members. For example, he said it was common practice for gang members to stop unknown people for identification because neighborhoods a re “territory” and those people may have to pay a toll for being there. The gang expert also testified that a gang member may elevate his own status within the gang by doing something ruthless, like committing an assault, robbery or homicide. The
driver of the Hyundai, a self

- proclaimed gang member, agreed with that assessment. The driver said once you are in the gang, “th e dirt comes natural. That is part of being in a
ga n g, selling dope, fighting, whatever .” He also said that , if a person was “living that lifestyle,” it would not be bizarre for that person to stop somebody in the neighborhood and find out who they are or to tell a stranger “this is North Highlands, cuzz” to claim a territory. Closing Arguments The prosecutor argued that if the jury believed defendant had a gun at any time during the robbery, it should find the personal use allegation true. Yet t he prosecut or also emphasized that the jury did not need to find that defendant ever held the gun or was the shooter to find him guilty of robbery and murder. The prosecutor stated his theory of defendant’s culpability was felony murder. He continued with the following argument : Under the felony

- murder theory of culpa bility , “ [ t ] here are certain crimes that if you
commit them and a dea th occurs durin g t he commission of those crimes, you are guilty of
murder.

. . . [¶] .

. . [¶] That’s because robbery is an inherently dangerous crime. ” As a

9 The gang expert testified that defendant was not l isted as a gang member and he did not know if codefendant was a gang member.13

result, even if the jury believed that defendant grabbed codefendant from behind, it d id

not ma tter because defendant participated in the robbery and the victim was killed. As for the special circumstance finding, the prosecution did not discuss what it meant to
have reckless indifference to human life or how defendant’s purported actions in grabbi ng codefendant should be considered in the jury’s analysis

. Jury Instructions and Verdicts The jury instructions included CALJIC No. 17.19, regarding personal use of a firearm, and CALJIC No. 17.15, regarding whether a principal was armed with a firearm. The jury was also instructed on CALJIC No. 8.8 0. 1, which provides in part, that if the jury was unable to decide whether defendant was the actual killer or an aider and abettor, the jury could not find the special circumstance to be true as to defendant unless the jury
either found beyond a reasonable doubt that defendant , with the intent to kill , aided and
abetted the shooter in the commission of the first degree murder , or with reckless indifference to human life and as a major participant, aided and abetted in the commission of the crime of robbery which resulted in the death of the victim. The jury
was further told that a “ defendant acts with reckless indifference to human life when that
defendant knew or was aware that his ac ts involved an extreme likelihood that such acts could result in the death of an innocent human being.” As mentioned, t he jury found defendant guilty of first degree murder, second degree robbery and attempted second degree robbery. It found defendant not guilty of attempted murder of the Oldsmobile driver , Moore, and rejected allegations that defendant personally used a firearm

. I nstead , the jury sustained lesser

- included allegations that a principal was armed during the crimes. It also found the murder occurred during the commission of a robbery. The trial court sentenced defendant to life
in prison without the possibility of parole.14 HABEAS CORPUS PETITION In his petition for writ of habeas corpus, d efendant alleged that the evidence was insufficient to sustain the special circumstance finding in light of Banks , supra , 61 Cal.4 th 788 and Clark , supra , 63 Cal.4 th 532

. In its ruling, t he trial court stated there were two competing versions of the incident presented at trial: one version where in
defendant was the shooter and if anyone grabbed and restrained him, it was codefendant , and one where in codefendant was the shooter , and it was defendant who grabbe d and
restrained him. The trial court found that the jury clearly believed the driver of the
convertible who testified that codefendant was the shooter and did not believe the people who were with defendant in the Hyundai and who testified that defendant was the
shooter

. The court reasoned that b y finding the personal use gun enhancement allegation
not true, it was reasonable to infer that the jury must have rejected all the testimony that placed a gun in defendant’s hands and, instead, believed that defendant tried to prevent codefendant from firing the weapon again by physically restraining codefendant

. The
trial court also relied upon the jury’s acquittal of the attempted murder charge to find that it was “readily apparent” that the jury did not be lieve that defendant shot the driver or intended that anyone should die, and that the court could infer that the jury actually believed that defendant acted to prevent codefendant from firing any more shots from the
gun. The trial court acknowledged that t he jury found defendant guilty of robbery and found true the robbery

- murder special

- circumstances allegation. In terms of the robbery, the trial court found that the verdict meant the jury found defendant aided and abetted the robbery. The trial court wa s not confident, however, that the robbery

- murder special

circumstance finding meant that the jury properly found defendant was a ctually a major participant with reckless indifference to human life . The trial court noted that neither the jury instructions nor the parties’ argument explained that the jury would have to find15

defendant acted with reckless indifference to human life in all his actions , including his actions in restraining codefendant. After analyzing the factors as established in Banks and Cla rk , with its interpretation of the evidence shaped by the jury’s verdicts and its extrapolation thereof,
the trial court concluded that defendant did not act with reckless indifference to human
life , the true finding on the robbery

- murder special circumsta nces was not supported by
substantial evidence , and vacated that finding. Under section 1506, the People are entitled to an appeal from a trial court’s grant of relief through habeas corpus, and this court has appellate jurisdiction to review those proceed ings. ( In re Schiering (1979) 92 Cal.App.3d 429, 433

- 434.) DISCUSSION
I Standard of Review The parties agree that a review for substantial evidence is the proper standard of review in challenges to the sufficiency of the evidence supporting a special circumstance finding. Although “sufficiency of the evidence claims are generally not cognizable on habeas corpus,” an exception to th i s rule applies when a new decision “clarifies the kind of conduct proscribed by a statute” and shows the court ha s acted in excess of its jurisdiction. ( Scoggins, supra , 9 Cal.5th at p p

. 673

- 674.) A defendant in Wright’s position is entitled to habeas corpus relief “ ‘ “if there is no material dispute as to the facts relating to his conviction and if it appears tha t the statute under which he was convicted did not prohibit his conduct.” ’ ” ( Id . at p. 674.) A postconviction challenge to a special circumstance finding under Banks and
Clark presents a legal question for the reviewing court. ( In re Miller (2017)
1 4 Cal.App.5th 960, 979

- 980 ( Miller ) ; see also Banks , supra , 61 Cal.4th at p. 804.) In addition, because the trial court granted relief without an evidentiary hearing, there are no16

disputed issues of fact and the usual deference that would apply to the review of a trial

court ’ s ruling based on its superior ability to resolve factual questions (e.g., the credi bility of witnesses appearing before it) is unwarranted , rendering o ur review of the trial court ’ s decision de novo. (

In re Rosenkrantz (2002) 29 Cal.4th 616, 677 [where trial court granted a habeas corpus petition “based solely upon documentary evidence, ” appellate court will “independently review the record”]; In re Zepeda (2006) 141 Cal.App.4th 1493, 1496

- 1497 [when a superior court grants habeas corpus relief without an evidentiary hearing the question presented on appeal is a question of law].)
Face d with a challenge to the sufficiency of the evidence claim as to a special circumstance, our review of the record is deferential. The question is “whether, when
evidence that is reasonable, credible, and of solid value is viewed ‘in the light most
favora ble to the prosecution, any rational trier of fact could have found the essential elements of the [special circumstance] allegation beyond a reasonable doubt.’ [Citations

. ]

. . . [Citation.] We presume, in support of the judgment, the existence of

ever y fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial.” ( Clark, supra , 63 Cal.4th at p. 610.) To answer this question, we must first determine whether, and to what extent, the scope of the evidence is limited by the jury’s verdicts.
II Impact of the Jury’s Verdicts Under statutory and constitutional law, the jury was required to determine the ultimate fact as to whether defendant personally used a firearm during the commission of the offense. (See §§ 1150, 1152, 1158a; Apprendi v

. New Jersey (2000) 530 U.S. 466, 490 [“any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”].) The jury found the allegat ion not true, and this is the equivalent of an acquittal. (See §§ 1155, 1165.) Because the burden of proof was on the prosecution, an acquittal will usually17

mean only that the jury was not convinced beyond a reasonable doubt of a fact advanced by the pro secution. ( People v. Harrison (2021) 73 Cal.App.5th 429, 440; see also In re Coley (2012) 55 Cal.4th 524, 554 [“numerous federal and California decisions .

. . uniformly hold that a jury verdict acquitting a defendant of a charged offense does not constit ute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true”].) As defendant’s jury was
instructed that the “term ‘personally used a firearm’

. . . means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it,” the not true finding means that the jury found the People failed to prove those facts beyond a reason able doubt. (CALJIC
No. 17.19

. ) The jury found true, however, that a principal was armed with a firearm

. (CALJIC No. 17.15

. ) We conclude from these verdicts only that the People failed to prove beyond a reasonable doubt that defendant personally used a firearm, as defined in the jury instruction

. The parties dispute to what extent the jury’s not true finding on the personal use allegation should be considered in our analysis. The People ask us to review the matter in complete ignorance of the jury’s finding 10 and defendant asks us to adopt the position ,

as did the trial court, that the jury’s finding not only meant that he was not the shooter, and had never touched the gun, but that the jury believed he physically restrained the

10 The People’s failure to raise the issue below deprived the parties and the trial court the opportunity to appropriately shape and respond to this legal argument. Generally, a party’s “ ‘ “ failure to make a timely and specific objection ” ’ ” on the ground asserted on appeal makes that ground not cognizable on appeal. ( People v. Partida (2005) 37 Cal.4th 428, 434.) However, because this argument relates to a challenge to the pr oper standard of review and we are aware of no authority holding a party may forfeit application of the proper standard of review by failing to object in the trial court , and in light of our de novo review, we will address the issue . (See Russell v. Department of Corrections & Rehabilitation (2021) 72 Cal.App.5th 916, 936.)18

shooter in an attempt to prevent him from firing the weapon again , and thus “sav ed
lives

. ” While there is a dearth of authority explaining the impact of a jury finding , on appellate review , of the sufficiency of the evidence for a special circumstance from a grant of habeas corpus relief , an examination of analogous cases leads us to conclude
b oth parties ask too much. (See , e.g., People v. Cooper (2022) 77 Cal.App.5th 393 ( Cooper ) [and cases cited therein]

. ) In rejecting both positions, we explain the factual and legal influence a jury’s finding has on a sufficiency of the evidence analysis in this

context

. C onsidering the evidence through the lens offered by the People would equalize the evidentiary value of all the trial evidence

. In conducting our deferential review of whether substantial evidence support s the special circumstance finding, we would be able

to consider any facts that substantially support the special circumstance finding without pause for consideration as to whether the jury already determined a contested fact or settled evidentiary or credibility conflicts

. The People argue that this type of analysis is routinely conducted in cases reviewing the suff iciency of the evidence . In doing so they rely on cases that conducted this type of analysis in the face of inconsistent verdicts. (See , e.g., People v. Price (2017) 8 Cal.App.5th 409, 452

- 45 ; People v. Brugman (2021)
62 Cal.App.5th 608, 633

- 634.) 11 Under those circumstances, a review for s ufficiency of

11 At oral argument, the People relied on People v. Price as an example of a case that rejected a contention of inconsistent verdic ts

. Although the People did not specify which Price decision they referenced, w e presume this refers to People v. Price , supra , 8 Cal.App.5 th 409 ( Price ) , as cited in their opening brief , as opposed to a subsequent appeal in the same case, People v. Price ( A159 439, app. pending ) , review granted February 9, 2022, S272572, vacated and transferred for reconsideration in light of People v. Strong, supra , 13 Cal.5th 698 on Sept ember 28, 2022

. We disagree that Price rejected a contention of inconsistent verdicts

. The d efendant argued the special circumstance could not be affirmed on the basis that she was the actual killer because the jury found the allegation the defendant personally used a firearm causing great bodily injury to the victim not true . The court analyzed the claim in the context of inconsistent verdicts and19

the evidence involves an assessment of whether the trial evidence could support any rational determination of guilt beyond a reasonable doubt , “ independent of the jury’s
determination that evidence on another count was insufficient

. ” ( People v. Lewis (2001)
25 Cal.4th 610, 656 , citing United States v. Powell (1984) 469 U.S. 57, 67 .)
Here , however , we do not have inconsistent verdicts, as the not true personal use finding is not clearly antagonistic t o, and absolutely irreconcilable with , the other verdicts under any rational view of the evidence. (See People v. Taylor (2004) 118 Cal.App.4th 11, 23

- 24, citing Lowen v. Finnila (1940) 15 Cal.2d 502, 504 .) Defendant’s participation in the robbery or felony murder did not require him to personally use a firearm , so there is no inconsistency between the guilty verdicts holding defendant accountable for those offenses and the not true finding on the persona l use of a firearm allegation

. Nor are those guilty verdicts irreconcilable with the jury’s acquittal of the charges relating to the attempted murder of Moore

. The People present no argument to the contrary and do not offer any other authority for why wh olly disregarding the negative finding in the absence
of inconsistent verdicts , is required

. Indeed, if we were to rely on the theory that defendant personally used a firearm in reviewing the sufficiency of the evidence of the special circumstances find ing, such reliance would be inconsistent with the jury’s finding , and effectively turn the jury’s acquittal and not true finding into their opposites . (See Cooper, supra , 77 Cal.App.5th at
p

. 413, citing People v

. Arevalo (2016) 244 Cal.App.4 th 836, 841 & People v. Piper (2018) 25 Cal.App.5th 1007

. ) This would also violate the well

- settled rule that “courts must make every effort to interpret a jury’s verdict as being consistent.” ( People v. Taylor , supra , 118 Cal.App.4th at p. 23.)

rejected it. Price did not address whether the jury’s finding on the firearm use allegation constituted a credibility determination as to whether the defendant was the sho oter, and thus foreclosed that factual consideration for purposes of Banks/Clark

.20

Moreover, the reason why a reviewing court disregard s inconsistent jury findings when conducting a sufficiency of the evidence analysis does not justify disregarding the jury finding in this case

. Generally, i f a not true finding of an enhancement allegation is
inconsistent with a conviction of the substantive offense, effect is given to both, because “it is unclear whose ox has been gored” by the jury’s verdicts. ( United States v. Powell (1984) 469 U.S. 57, 65.) The jury may have been convinced of guilt but arrived at an
i nconsistent acquittal or not true finding “through mistake, compromise, or lenity

. . . . ” ( Ibid .) Because the defendant is given the benefit of an acquittal, “ it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted. ” ( Id . at p. 69.) Here, the jury rejected the allegations that defendant personally used a gun or attempt ed to kill the driver of the convertible but found him responsible for the robberies and murder that took place during th ose robberies. In our view, those findings reflect either a considered culpability determination , or a proof problem with the prosecution’s case , but are not irreconcilable with each other. 12 ( Cf. People v. Gonzalez (2018) 5 Cal. 5th 186, 208 [ where the verdicts and findings are reconcilable, the jury’s willingness to acquit a defendant of a firearm

- related charge and find the gun

- related allegations not true provides some indication the jury carefully weighed the evidence ; the fir earm

- related findings constitute the jury ’ s determination that
it could not be confident beyond a reasonable doubt ab out the veracity of certain facts ]

. ) We are therefore not convinced that this finding must be entirely disregarded. This is especially true where, as here, there was no evidentiary hearing in the habeas corpus proceedings, and thus no credibility determination , other than those made by the jury, to

12 We note the jury in the original trial also rejected allegations that codefendant was a principal armed with a handgun or personally used a firearm during the commission of the crimes, which leads us to suspect each jury found the evidence insufficient to determine the identity of the shooter. ( People v

. Wright , supra , 52 Cal.App.4th at p. 205

. )21

which we can defer. (See In re Long (2020) 10 Cal.5th 764, 774 [“ ‘ The central reason for referring a habeas corpus claim for an evidentiary hearing is to obtain credibility
determinations ’ ”].) Defendant also argues that the doctrine of collateral estoppel, which “precludes relitigation of issues argued and decided in prior proceedings” prevents consideration of facts supporting defendant’s use of the firearm in any way. 13 (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 , fn

. 3 [in modern usage, collateral estoppel is described as “issue preclusion”] .) Collateral es toppel applies if certain conditions are met, including where the issue decided is identical to the one which is sought to be relitigated . ( People v. Santamaria (1994) 8 Cal.4th 903, 910

- 913.) Here, the allegation that defendant personally used the gun i s not being relitigated

. Rather, the question before us is whether the facts of the case operate to preserve the special circumstances finding. Thus, collateral estoppel does not appl y here. (Cf. People v. Myles (2021) 69 Cal.App.5th 688, 704 [in a former § 1170.95 proceeding, “double jeopardy principles are not at stake because defendant is voluntarily seeking to vacate her prior conviction, not subjecting herself to a new trial or the possibility of increased punishment”] .)

13 Defendant cites to People v. Strong , supra , 13 Cal.5th at page 720 , a decision in which the California Supreme Court considered the preclusive effect of a special circumstance finding on obtaining relief under section 1172.6. The c ourt held that neither a jury’s special circumstances findings nor a court’s later suffici ency of the evidence review necessarily precludes relief under section 1172.6 because, although the requirements for collateral estoppel were met, the change in law regarding felony murder rendered the doctrine inapplicable. ( Strong , at p. 717.) Under se ction 1172.6, that defendant could have an evidentiary hearing, with additional fact finding , because “changes in the law mean there is now ‘a different apple.’ [Citation.]” ( Strong , at p. 718.) Strong provides no guidance on how to use the facts relati ng to an allegation the jury rejected , in reviewing a collateral proceeding held without the benefit of an evidentiary hearing and additional fact finding.22

D efendant’s cha llenge to the special circumstance finding does not involve resolution of disputed facts ; in fact, he is only entitled to habeas corpus relief if there is no material dispute as to the facts relating to his conviction and the statute under which
he was con victed did not prohibit his conduct. ( Scoggins , supra , 9 Cal.5th at p. 674.)
U nder a substantial evidence review, we must accept the reasonable inferences supporting the verdict over any inferences (even if reasonable) proffered by the party seeking to c hallenge it. ( People v. Shamblin (2015) 236 Cal.App.4th 1, 15 ; s ee also People v. Rundle (2008) 43 Cal.4th 76, 137 [if there is substantial evidence supporting the verdict, it is insufficient for a defendant to cite to “various items of evidence in
isolation

. . . ”] , disapproved of on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn

. 22 .) Thus, we con clude that t he “totality of the circumstances” required for reviewing the sufficiency of the evidence must be derived from the evidence presented in defendant’s trial and necessarily framed by the jury’s resolution of evidentiary conflicts
and determinatio n of the credibility of witnesses , including the jury’s rejection of the allegation that defendant personally used a gun

. ( See Banks, supra , 61 Cal.4th at p. 802 [ requiring a reviewing court to look at the totality of the circumstances ] .) We find support for our conclusion in cases addressing various resentencing

statutes. In Cooper, supra , 77 Cal.App.5th at p age 417 , the issue before the court was the defendant’s resentencing petition pursuant to former section 1170.95 , which had recently been amended by S enate B ill 1437. The defendant was convicted at trial of first degree murder and kidnapping but acquitted of being a felon in possession of a firearm (while the jury found a principal was armed) and subsequently filed a petition for relief under
former section 1170.95

. The People argued that the acquittal only meant that the jury did not find him guilty beyond a reasonable doubt. The d efendant argued that the acquittal should be treated as a finding that he did not h ave a gun on that day. ( Cooper , at p. 407.) After an evidentiary hearing, the trial court denied the petition , finding that the defendant possessed and fired a gun on the day in question and was therefore a major participant23

with reckless indifference to human life . ( Id

. at p p

. 408

- 409 .) On appeal, the appellate

court considered the preclusive effect of the defendant’s acquittal of a firearm possession charge in considering his eligibility for relief under former section 1170.95

. The court
concluded th at the previous acquittal of the firearm possession charge constituted a finding inconsistent with the trial court’s theory that he was a major participant because
the trial court heavily relied on the theory, rejected by the jury, that the defendant was armed throughout the event. ( Cooper , at p. 417.) The appellate court reversed the trial court’s order denying the petition and remanded the cause for a new hearing under former
section 1170.95 , subd ivision (d) , without consideration of evidence that the defendant possessed the gun. ( Cooper , at p p

. 418

- 4 1 9 .) Cooper concluded that through former section 1170.95 , the Legislature created a “parallel structure” to ensure that first degree murder co nvictions meet the requirements under amended sections 188 and 189, regardless of whether the defendant was convicted prior to or after the amendments. ( Cooper, supra , 77 Cal.App.5 th at p. 415 .) T he

a ppellate court held that a trial court could not deter mine , in a proceeding under former
section 1170.95 , subd ivision (d) , whether the prosecution had proven beyond a
reasonable doubt that the defendant could be convicted of murder under the amended law by considering evidence that the jury previously found not true beyond a reasonable doubt. ( Cooper , at p. 414 .) In this way, former section 1170.95 is similar to the resentencing provision in Proposition 36, as set forth in section 1170.126. ( Cooper , at
pp. 414

- 415 [noting similarity in the parallel structures of resentencing provisions of Prop

. 36 and former § 1170.95 ].) In fact, Cooper relied upon the reasoning in cases involving resentencing eligibility under Proposit ion 36 in reaching its conclusion. For example , in People v. Arevalo , supra , 244 Cal.App.4th 836 , the defendant was convicted at trial of a third strike but acquitted of a charge of possession of a firearm by a
felon , and an allegation that he was armed with a firearm was found not true. The
d efendant subsequently petitioned for resentencing under Proposition 36, but the trial24

court found him ineligible based on its own review of the trial evidence that supported
the conclusion that the defendant was arm ed with a firearm or deadly weapon. ( Arevalo , at pp. 843

- 844.) The trial court justified doing so by noting that the original trial court found the “ ‘ armed with a firearm ’ allegation ” not true, but that “ ‘ [a] finding of an allegation of “ not true ” does not mean the nonexistence of guilt, factual innocence, or incredulity of testimony given at trial. ’ ” ( Id. at p. 844.) The appellate court concluded that any factor precluding eligibility for resentencing u nder Proposition 36 must be proven beyond a reasonable doubt and because that standard was not met at trial, the trial court was precluded from finding otherwise. The court explained that otherwise, “nothing would prevent the trial court from disqualifyin g a defendant from resentencing eligibility consideration by completely revisiting an earlier trial, and turning acquittals
and not

- true enhancement findings into their opposites.” ( Arevalo , at p. 853. ) Similarly, i n People v. Piper , supra , 25 Cal.App.5 th 100 7, the appellate court concluded that on a resentencing petition under section 1170.126, the trial court may not make an eligibility determination contrary to the jury’s verdict and findings at trial. To do so would allow the People to “ ‘ compensate for any potential evidentiary shortcoming
at a trial

. . . . ’ ” ( Piper , at p. 1015.) We acknowledge that we are not dealing with a parallel structure between a resentencing provision, like former section 1170.95 and section 1170.126, and an
amended law where each require proof beyond a reasonable doubt. Rather, this case
involves a defendant who was initially denied access to the ameliorative parallel structure of the resentencing provision in former section 1170.95 and the amended l aw by virtue of his pre

- Banks/Clark special

- circumstance finding. Seeking to challenge this finding through a habeas corpus petition, h e is required to carry the burden as to whether there is substantial evidence to support the finding

. Nevertheless, thr ough Senate Bill 1437, the Legislature intended “ ‘ to ensure our state’s murder laws “ fairly address[] the culpability of the individual and assist[] in the reduction of prison overcrowding, which partially25

results from lengthy sentences that are not comme nsurate with the culpability of the
individual. ” [Citations.] ’ ” ( People v. Nash (2020) 52 Cal.App.5th 1041, 1082

- 1083.) Thus, the goal of Senate Bill 1437, just as in Proposition 36, is to seek a better fit between punishment and culpability. (See Coo per, supra , 77 Cal.App.5th at p. 415.) It would be contrary to that goal to require the defendant to labor under the burden of a theory that was rejected by the jury at trial , when doing so would invite inconsistencies in the deliberative process

. Thus, w e find it appropriate, when determining the sufficiency of the evidence of the special circumstance finding, to give defendant the benefit of the jury’s finding that he did not personally use a firearm in the commission of the offenses for which he was

con victed.
It is through this lens that we view the evidence.
III Analysis The terms “major participa nt ” and “reckless indifference to human life” in section 190.2, subdivision (d) are drawn from the United States Supreme Court ’ s jurisprudence
on the constitutionality of the death penalty in cases of felony murder , ultimately concluding that if a defendant was not the actual killer but was a major participant in the underlying felony and acted with reckless indifference to human life, the Eighth
Amendm ent does not prohibit the imposition of the death penalty as disproportionate. ( Tison v. Arizona (1987) 481 U.S. 137 , 158 ( Tison ) .) Because section 190.2 incorporates the standard established in Tison , California
courts have looked to Tison for guidance in defining the concepts of major participation
and reckless indifference to human life. (See Scoggins, supra , 9 Cal.5th at p. 675; B anks , supra , 61 Cal.4th at p. 798.) Our California Supreme Court has viewed Tison , in conjunction with Enmund v. Florida (1982) 458 U.S. 782 ( Enmund ) as “represent[ing] points on a continuum.” ( Banks , at p. 802.) The defendants in Tison were sufficiently26

culpable to justify the application of the death penalty, but the defendant in Enmund was
not. “Somewhere between them, at conduct less egregious than the Tisons’ but more culpable than Earl Enmund ’ s, lies the constitutional minimum for death eligibility.” ( Ibid .)
In Enmund , the defendant and two others rob bed an elderly couple at their home. When the couple resisted, one or both of Enmund ’ s cohorts shot and killed the couple. Enmund, who was waiting in a car nearby, drove his cohorts a way and helped them dispose of the murder weapons. ( Enmund, supra , 458 U.S. at p. 784.) The c ourt held that the imposition of the death penalty was an unconstitutionally disproportiona te punishment as to Enmund, who had not intended for a killing to take place and was not present for the murders. ( Id. at p. 788.)
In contrast, the imposition of the death penalty in Tison was affirmed on appeal

. Th r e e brothers “assembled a large arsenal of weapons” to break their father and another inmate, both convicted murderers, out of prison. ( Tison, supra , 481 U.S. at p. 139.) The brothers armed the two prisoners, locked up the prison guards, and helped the prisoners
escape. ( Ibid .) A few days later, the group got a flat tire and flagged down a passing car for help. (

Id . at pp. 139

- 140.) They kidnapped the family that was i n the car and robbed
them. ( Id . at p. 140.) T

wo brothers then guarded the family while their father considered
what to do next. ( Ibid .) Eventually, the father shot all of the family members, and the group of perpetrators left the victims to die without rendering aid. ( Id . at p. 141 ; Scoggins, supra , 9 Cal.5th at p. 675.)
In Banks and Clark , the California Supreme Court sought to provide further guidance for determining a felony murder aider and abettor’s eligibility for the death sentence or life impri sonment without parole, in light of section 190.2 and the
Tison / Enmund continuum. (

Banks, supra , 61 Cal.4th at pp. 800

- 801.) Noting that the statute “imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life,” the court27

determined that a sentencing body “must examine the defendant ’s personal role in the crimes leading to the victim’s death and weigh the defendant’s individual responsibility
for the loss of life , not just his or her vicarious responsibility for the underlying crime.” ( Id. at p p

. 798, 801.) In Banks , the court established a list of factors relevant to determining whether a particular defendant was a major participant in the underlying felony and in Clark , the court considered the second requirement for the special circumstance, reckless indifference to human life. We now apply the Banks / Clark factors to determine whether substantial evidence supports the jury ’ s finding that defendant was a major participant in the robber y and
acted with reckless indifference to human life , taking each question in turn

. In conducting our analysis, we note that we take the jury’s not true finding on the personal use of a firearm allegation only for what it is, that defendant did not intentionally display a firearm in a menacing manner, intentionally fire it, or intentionally strike or hit a human being with it. We do no t extend such finding to necessarily include, as the trial court did, the conclusion that the jury determined defendant had acted to prevent codefendant from continued firing , and thereby saved lives. We review the entirety of the evidence, in
deference t o the jury’s finding in support of the special circumstance allegation, and as we have indicated, are required to accept the reasonable inferences supporting such
verdict.
A. Major Participant
To be a major participant , a defendant’s participation in crimina l activities known to carry a grave risk of death must be sufficiently significant to be considered “major.” ( Clark , supra , 63 Cal.4th at p. 611.) In answering that question, we consider the totality
of the circumstances. Relevant considerations include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of partic ular dangers posed by the nature of the crime, weapons used, or past28

experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her

own a ctions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient.” ( Banks, supra , 61 Cal.4th at p. 803, fn. omitted. ) Considering these Banks factors , we conclude substantial evidence supports the jury’s finding that defendant was a major participant in the robbery. First, there was
evidence that defendant initiated the encounter leading to the robbery with codefendant

. D efendant directed the driver to make a U

- turn, and immediately got out of the car to approach the convertible with codefendant. Almost immediately, the robbery was instigated and a weapon was presented

. The evidence demonstrates defendant was a willi ng participant in the robbery from its inception. Indeed, the jury’s finding defendant guilty of the robbery and attempted robbery charges, reflect s this interpretation.
N ext , we consider whether defendant was aware of the “particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants” of the robbery. ( Banks, supra , 61 Cal.4th at p. 803.) W e conclude the manner in which the robbery was conducted and the way it unfolded do support a finding

t hat defendant was aware of the danger presented here. Notably, the gun was brandished in close proximity to the convertible passengers, codefendant demanded to know where they were from, and the driver was tapped on the head with the gun. As this transpi red,
defendant gained knowledge of the particular dangers posed by the nature of the armed robbery and, although there is some evidence that after shots were fired defendant may have intervened, he did not appear surprised by the brazen nature of the robbe ry itself and the violent and dangerous manner in which it occurred after he himself had initiated the encounter leading to the robbery by flagging down the victims’ car. Additionally, there was testimony that defendant was the one who demanded money, tel ling the occupants in
the victims ’ car to “break yourself

. ”29

The People argue that it can also be reasonably inferred from defendant’s purported gang membership and knowledge of violence in the gang culture that codefendant would be willing to resort to vio lence. In other words, defendant should have expected codefendant to commit a violent felony at any time, solely due to his gang membership status. A s defendant notes, courts have rejected such efforts to substitute generic evidence about the general dan gerousness of gangs for actual proof that a given defendant was aware that the specific perpetrator was likely to employ fatal force. (See,
e.g., Banks, supra , 61 Cal.4th at pp. 810

- 811 [where no evidence indicated the codefendants who belonged to the same gang had ever participated in shootings, murder, or attempted murder, or even that any member of their clique had, there could be no
reasonable inference that the defendant knew the co defendants would be likely to kill] ; Miller , supra , 14 Cal.App.5th at p. 976 [no reasonable inference the defendant knew codefendant was likely to kill where membership in the same gang and commission of
follow

- home robberies together in the past did not s ubstitute for the lack of evidence that they had ever participated in shootings, murder, or attempted murder].) Although there is no evidence defendant knew the Hyundai passengers well or had any knowledge regarding codefendant’s criminal history, past g un use, or details regarding his propensity for violence at the time of the shooting, when this evidence is weighed against the manner in which the robbery was conducted, the balance weighs in favor of concluding defendant was aware of the particular dange rs of the crime

. We also consider whether defendant was present at the scene of the murder and in a position to prevent it , whether his own actions or inactions played a role in the death , and what defendant did after lethal force was used

. As our Suprem e Court explained,

“ ‘ “ the defendant ’ s presence allows him to observe his cohorts so that it is fair to
conclude that he shared in their actions and mental state.

. . . [Moreover,] the defendant ’ s presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more30

at fault for the resulting murders. ” ’ [Citation.] ” ( Scoggins, supr a , 9 Cal.5th at p. 678.) First, there is no dispute that defendant was present at the scene of the murder, and actively involved in the robbery when the murder occurred. He was clearly in a position to prevent the murder, had he taken action when the gun was first produced during the robbery ; instead, defendant failed to intervene or to stop the escalation of the crime

. In fact, his presence could arguably be seen as bolstering codefendant’s confidence to act in
a more reckless and cavalier manner. Second, as discussed above, defendant’s actions and inactions both played a role in the death, as he initiated the violent encounter, and emboldened codefendant by assisting him

. After the lethal force was used, he ran away , changed his appearance , and attempted to hide the evidence, as we discuss in more detail below when discussing
reckless indifference

. Defendant argues that the record demonstrates that he took actions after the first shot was fired to prevent additional harm. In particular, h is display of shock after the first
gun shot suggests th at he was surprised the gun was actually used , and at that point, he
argues the evidence suggests that he physically restrained codefendant in an attempt to prevent further use of the gun

. The People acknowledge the evidence indicated that defendant restrained the shooter but argue that the jury could have inferred those actions

were really an attempt to flee. Defendant responds that this is not a reasonable inference from the evidence in light of the fact that several people testified that defendant yelled at the shooter to get him to stop either before or while he restrained codefendant

. Like much of the testimony in this case, the evidence as to who grabbed who and for what purpose , is inconsistent and unclear

. The time between the first and second shot was not very long, possibly as short as a couple of seconds. The driver of the convertible , Moore , t estified that after codefendant fired the gun at the murder victim, Brown,
defendant grabbed codefendant from behind in a bear hug and said something to the effect of “stop” or “cut it out ,” “ you already shot him” or “leave him alone

. ” At the same31

time, or very close in temporal proximity, the female Hyundai passenger , Richardson, yelled “let’s go

. . . let’s get out of here.” There was also testimony by Armstrong that after the shots were fired, it was defendant who was restrained and pulled back to the car. Overall, t h is evidence c ould support a n inference either that defendant restrai ned the shooter in an effort to stop bloodshed , as defendant argues, or that he did so in an effort to
flee , as the People argue

. Notably, the jury verdicts do not assist us in determining which version the jury believed. In reaching its verdicts , 14 t he jury could have found that, even if defendant did restrain codefendant and whatever his intent in doing so , he did so after he acted as a major participa nt in the robbery , which lead to the murder

. Reviewing the totality of the evidence in the light mo st favorable to the prosecution , without reliance on the People’s theory that defendant used a firearm, there
is substantial evidence to support a finding that defendant was a major participant in the robbery that resulted in the murder

. B. Reckless Indifference
We next consider whether defendant acted with reckless indifference to human
life. “ Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, ‘ [t]he defendant must be aware of an d willingly involved in the violent manner in which the particular offense is committed, ’ and he or she must consciously disregard ‘ the significant risk of death his or her actions create. ’ [Citation s .] As to the objective element, ‘ “ [t]he risk [of death ] must be of such a nature and degree that, considering the nature and purpose of the actor ’ s conduct and the
circumstances known to him [or her] , its disregard involves a gross deviation from t h e

14 Specifically, guilty of first degree murder and attempted second degree robbery of Brown, second degree robbery of Moore, but acquitting defendant of attempted murder and the lesser included offenses of attempted voluntary manslaughter and assault with a firearm of Moore.32

standard of conduct that a law

- abiding person would observe in the actor ’ s situation. ” ’ [Citation.] ‘ Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient ’ to establish reckless indifference to human life; ‘ only knowingly creating a “ grave risk of death ” ’ satisfies the statutory requirement. ” ( Scoggins, supra , 9 Cal.5th at p. 677.) To determine whether defendant had the requisite mental state, “ [w]e analyze the totality of the circumstances ” in a manner that largely overlaps with our major participant discussion. ( Ibid

. ) Specifically , we turn to several considerations our Supreme Court found relevant
in determining whether a defendant acted with reckless disregard to human life: “ Did the defendant use or know that a gun would be used during the felon y? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the
defendant ’ s knowledge of his or her confederate ’ s propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony? ” ( Scoggins , supra , 9 Cal.5 th at p. 677.) Just as with consideration of major participant, these factors are not exhaustive, sufficient, or necessary to establishing whether the defendant ’ s conduct met the standard for the special
circumstance.
T he People argue that defenda nt should be subject to the special circumstance finding because the armed robbery was gang related , took place in a residential neighborhood with bystanders nearby, the shooting was not an accident, and defendant later expressed dismay that all he got was $10. The People also seemingly admit that codefendant was the shooter, yet still maintain that the evidence supported the conclusion that defendant used the gun. As covered in our major participant discussion, we do not rely on the People’s theory that d efendant personally used a firearm, as that would be inconsistent with the33

jury’s finding the personal use allegation not tru e . ( Cooper, supra , 77 Cal.App.5th at
pp. 416

- 418.) We also acknowledge “[t]he intent to commit an armed robbery” or “[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.” ( Banks, supra , 61 Cal.4th at p. 799;
Cl ark, supra , 63 Cal.4th at p. 618.) Notwithstanding such, we find there is substantial evidence supporting the conclusion that defendant acted with reckless indifference

. T he presence of a gun and the manner in which the gun was intended to be used
are fa ctors we may permissibly consider. ( Banks, supra , 61 Cal.4th at p. 801; see Clark,

supra , 63 Cal.4th at p p

. 617

- 618 .) Here, defendant instigated the encounter with the
convertible by directing the driver to turn around. Two passengers in the convertible
testified that t he Hyundai stopped near the victims ’ vehicle , b locking off the ir escape
route. Defendant and codefendant then immediately approached the victims ’ car as a pair
whil e one of them wield ed a gun and threatened the occupants of the convertible with it. Defendant not only knew about the presence of the gun, but tacitly approved of the use of the gun as a threat of force behind the robbery. The use of the gun posed an increased level of danger under these circumstances

. I t is reasonabl e to conclude that the gun was critical to enforce compliance with the robbery and that defendant , having directed the confrontation with the driver of the Hyundai, consciously disregarde d the significant risk of death created by the use of the gun in those circumstances. Additionally, after the gun was used, defendant did not attempt to aid the murder victim. Defendant argues that the evidence supports the conclusion that he tried t o prevent bloodshed by restraining the shooter

. As previously stated, there is conflicting
evidence on this , and this factor thus does not benefit defendant. In the end , however, defendant fled without rendering aid to, or inquiring on the condition of, the murdered
victim. Instead, d efendant returned to the party, changed into different clothes, expressed disappointment over the proceeds from the robbery, then attempted to concoct a story about the Hyundai being stolen in an attempt to distance himself from the robbery and34

murder

. T

his evidence supports the jury’s finding that defendant acted with reckless
indifference and satisfies the requirements of Banks and Clark

. Generally, d efendants who have been successful in petitioning for a writ of habeas corpus to have their special circumstance findings vacated under Banks and Clark are those who were not present for the shooting (either because they were acting as getaway
drivers or b ecause they were involved in the planning of the crime only). (See, e.g., Miller, supra , 14 Cal.App.5th at p. 965 [ the defendant select ed the robbery target and was not at the scene of the robbery/murder]; In re Bennett (2018) 26 Cal.App.5th 1002, 1019

- 10 20 [ the defendant was involved in planning the robbery but was not at the scene of the murder]; In re Ramirez (2019) 32 Cal.App.5th 384, 404

- 406 [ the defendant acted as getaway driver and was not at the scene of the murder]; In re Taylor (2019)
34 Cal.App. 5th 543, 559 [same].) Defendant’s conduct is clearly distinguishable. Considering the totality of the circumstances, we conclude the special circumstance finding was supported by substantial evidence.
DISPOSITION The trial court’s order granting defendant’s habeas corpus relief is reversed

.

/s/ EARL, J.

We concur:

/s/ HULL, Acting P. J.

/s/ DUARTE, J.