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Filed 10/20/23 P. v. Mayes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

STEDVIENO MAYES,

Defendant and Appellant.

C097314

(Super. Ct. Nos. STK-CR-FE2011-0007803, SF119150A)

Defendant Stedvieno Mayes appeals from a post-judgment order denying his 

petition, filed under Penal Code former section 1170.95 (now § 1172.6 (Stats. 2022, 

ch. 58, § 10); statutory section citations that follow are found in the Penal Code unless 

otherwise stated), to have his murder conviction vacated and to be resentenced on his 

remaining convictions. 

In 2013, a jury found defendant guilty of numerous crimes, including first degree 

murder, two counts of kidnapping for purposes of robbery, and one count of first degree 
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robbery. The relevant facts may be briefly stated. Defendant and another man, Xavier 

Spivey, kidnapped two young women at gunpoint and forced them into a house where 

one of the women lived. Inside the house, Spivey and defendant ordered the women onto 

the kitchen floor. Spivey then ransacked the place and took various items from the 

women while defendant stood guard over them in the kitchen. Spivey was armed with a 

.45-caliber assault weapon; defendant was armed with a smaller caliber handgun, but did 

not point it at the women, and reassured them they would not be harmed as long as they 

did what they were told. Defendant and Spivey left the house about 20 minutes later. 

While apparently on his way to a nearby waiting vehicle, Spivey got into an argument 

over “some gang shit” with a group of young men who were hanging out in front of a 

house down the street. Spivey then fired a single round, killing one of the men, Br.W. 

On appeal from the denial of his resentencing petition, defendant contends the 

evidence is insufficient to support the trial court’s finding that he acted with reckless 

indifference to human life under the factors set forth by our Supreme Court in People v. 

Clark (2016) 63 Cal.4th 522 (Clark). We agree and shall remand the matter to the trial 

court with directions to vacate defendant’s murder conviction and resentence him on his

remaining convictions. 

FACTS AND HISTORY OF THE PROCEEDINGS

At the hearing on defendant’s resentencing petition, the matter was submitted on 

the trial transcript in the underlying matter. The following summary of relevant facts is 

based on that transcript. 

A. Defendant’s Participation in the Kidnappings and Robbery

On the night of June 18, 2011, B.W. and her close friend, B.A., were at B.W.’s 

house in Stockton. They left the house at around 11:00 p.m. to get something to eat. 

When they got to B.W.’s car, which was parked a short distance away, Spivey and 
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defendant approached them on foot wearing dark hooded sweatshirts. Both men were 

armed. 

As defendant explained in this police interview, he and Spivey had been dropped 

off in the area to “get stuff” and “try to bust some knocks.” A neighbor, M.D., who lived 

down the street, saw defendant and Spivey make their approach. He testified that a truck 

he had never seen before was parked on the corner and two men walked towards B.W.

and B.A. from the direction of that truck. 

B.W. testified that M.D. also approached her at the same time as defendant and 

Spivey. B.W. paused before opening her driver’s side door to say something to M.D., but 

was interrupted by Spivey, who stepped in between the two, pointed a gun at M.D., and 

said, “back up.” The gun was a black .45-caliber assault weapon with a long black clip, 

similar to a MAC-10. M.D. complied with Spivey’s command and returned to his house. 

Spivey then turned the gun on B.W. and said, “be quiet, don’t scream, turn around and go 

open the door,” referring to the front door of her house. Spivey turned B.W. towards the 

house, pressed the gun into her back, and started following her to the house. As Spivey 

made contact with B.W. on the driver’s side of the car, defendant made contact with B.A.

on the passenger’s side of the car. The record does not reveal whether defendant 

displayed his gun at this point in the encounter, or whether he said anything to B.A., but 

they did follow B.W. and Spivey back to the house. 

Inside the house, Spivey and defendant told B.W. and B.A. to lie face down on the 

kitchen floor. As B.W. explained, “they were both kind of barking orders.” B.W. tried to 

do so, but was “too scared to stay down” and “kept sitting up.” At this point, B.W. saw 

that defendant also had a gun, which she described as a silver .22-caliber handgun. He 

was not pointing the gun at them but was “[j]ust holding it” and “resting his arm on the 

countertop with it.” Defendant told them to “be quiet” and “calm down,” and reassured 

them that, as B.W. put it, “after they are done getting what they are getting, they will 

leave, that they are not going to hurt us.” While defendant stood guard over B.W. and 
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B.A. in the kitchen, Spivey was “[t]earing up the house,” saying: “Where is the money? 

Where’s the gun[?] This is not all the money. Be quiet. Don’t look at me. Put your face 

down.” 

Spivey ransacked the house for about 20 minutes while defendant continued 

reassuring B.W. and B.A. that they were not going to be hurt as long as they “let [Spivey] 

finish doing what he’s doing.” Spivey took various items from the women, including 

their purses and cell phones. Eventually, defendant told B.W. and B.A. to go to the 

bathroom, get in the bathtub, and count to a certain number before coming out. B.W.

believed defendant would shoot them if they came out too soon, so she counted to the 

prescribed number and then went to the front door to lock it. 

B. Spivey Murders Br.W. While Fleeing

Meanwhile, after leaving B.W.’s house, Spivey got into an argument with 

someone in front of M.D.’s house. M.D. testified that he was hanging out on the porch in 

front of the house that night with his younger brother, Br.W., and two friends. While 

M.D.’s testimony omits any reference to an argument, defendant stated in his police 

interview that Spivey was arguing with “the dudes across the street” about “some gang 

shit.” According to defendant, he was not in Spivey’s immediate presence during this 

argument because defendant claimed he turned left after leaving B.W.’s house, whereas 

M.D.’s house was a short distance away in the other direction. Defendant claimed he saw 

a truck drive by, there was “a big ass flash, pow,” and then Spivey was no longer in the 

street. Defendant speculated that Spivey might have known the person in the truck and 

got inside as it drove off. 

Returning to M.D.’s testimony, he claimed he left the front porch area to throw 

away some cans on the side of the house and then heard “a firecracker sound.” When 

M.D. returned to the front, he “heard a truck going down the street” and saw his brother 

“laid out on the porch” saying he was hit. M.D. assumed the shooter was one of the men 
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who were just inside B.W.’s house, so he and one of his friends ran over to her house to 

see if she knew who they were. They got there just after B.W. and B.A. emerged from 

the bathroom. 

Br.W. was hit in his right pelvis by a .45-caliber bullet. The bullet perforated two 

large blood vessels, causing him to bleed to death. 

We finally note that B.W. identified Spivey and defendant in separate photo 

lineups as the people who kidnapped and robbed her and also identified them at trial. 

When defendant’s apartment was searched by police five days after the shooting, various 

items taken during the robbery were found strewn about the apartment. The .45-caliber 

assault weapon Spivey used during the kidnapping and robbery was also found in a 

closet. 

C. Procedural History

A jury found defendant guilty of first degree murder, two counts of kidnapping for 

purposes of robbery, and one count of first degree robbery; the jury also found true 

allegations that defendant personally used a firearm during the commission of the 

kidnappings and robbery. The trial court subsequently found defendant was previously 

convicted of a strike offense within the meaning of the Three Strikes law and sentenced 

him to an aggregate prison term of 98 years to life, plus 25 years 4 months. 

On appeal from this underlying judgment, we remanded the matter to correct a 

sentencing error but otherwise affirmed the judgment. (People v. Mayes (July 7, 2015, 

C073853) [nonpub. opn.].) On remand, defendant was sentenced to an aggregate prison 

term of 98 years to life, plus 10 years. 

In 2019, defendant filed a petition under former section 1170.95 to have his 

murder conviction vacated and to be resentenced on his remaining convictions. Despite 

the fact that defendant made a prima facie showing of entitlement to relief in his petition, 

the trial court found defendant ineligible for resentencing in a written order, entered 
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without appointing counsel for defendant or eliciting additional briefing. On appeal from 

that order, we held the trial court erred by summarily denying the petition. We therefore 

reversed the order and remanded the matter to the trial court with directions to appoint 

counsel for defendant and proceed in accordance with the requirements of former section 

1170.95. (People v. Mayes (June 28, 2021, C090622) [nonpub. opn.].) 

On remand, the trial court appointed counsel for defendant, set a briefing schedule, 

and ultimately denied the petition after holding a hearing. The trial court’s reasoning will 

be set forth in the discussion portion of this opinion. 

Defendant contends the evidence is insufficient to support the trial court’s finding 

that he acted with reckless indifference to human life under the factors set forth by our 

Supreme Court in Clark, supra, 63 Cal.4th 522. The People disagree, arguing there is 

substantial evidence supporting the reckless indifference finding. We agree with 

defendant. 

DISCUSSION

I

Recent Changes to the Murder Statutes

Before assessing the sufficiency of the evidence supporting the trial court’s 

finding of reckless indifference, we briefly set forth the recent changes to California’s

murder statutes made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). 

(Stats. 2018, ch. 1015, § 2.) 

“Murder is the unlawful killing of a human being . . . with malice aforethought.” 

(§ 187, subd. (a).) As amended by Senate Bill 1437, effective January 1, 2019, section 

188 provides, in relevant part: “[M]alice may be express or implied. [¶] (1) Malice is 

express when there is manifested a deliberate intention to unlawfully take away the life of 

a fellow creature. [¶] (2) Malice is implied when no considerable provocation appears, 

or when the circumstances attending the killing show an abandoned and malignant heart. 
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[¶] (3) Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought. Malice shall not be 

imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. 

(a).)

Section 189 describes a number of unlawful killings that are statutorily defined as 

“murder of the first degree,” including a killing “committed in the perpetration of, or 

attempt to perpetrate, [certain listed felonies, including] robbery [and] kidnapping.” 

(§ 189, subd. (a).) This form of first degree murder, known as first degree felony murder, 

does not require malice. At the time of defendant’s trial, prior to Senate Bill 1437, “ ‘the 

only criminal intent required [was] the specific intent to commit the particular felony.’ ” 

(People v. Dillon (1983) 34 Cal.3d 441, 475.) 

Senate Bill 1437 amended the felony-murder rule to provide, in relevant part: “A 

participant in the perpetration or attempted perpetration of a felony listed in subdivision 

(a) in which a death occurs is liable for murder only if one of the following is proven: [¶]

(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, 

with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of murder in the first degree. [¶] 

(3) The person was a major participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, 

subd. (e).)

Thus, at the time of defendant’s trial, as long as the jury concluded Br.W. was 

killed during the commission of either the kidnapping or the robbery perpetrated against 

B.W. and B.A., the only mental state required for conviction of first degree felony 

murder was defendant’s intent to commit the underlying felony. Now, since defendant 

was not the actual killer and did not intend to kill Br.W., in order to convict him of the 

murder on a felony-murder theory, the prosecution would be required to prove that he 
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was a major participant in the kidnapping/robbery and acted with reckless indifference to 

human life. 

Finally, Senate Bill 1437 created a mechanism for a defendant convicted of felony 

murder under the prior law to seek the ameliorative benefits of the new law. The current 

provision setting forth that mechanism, section 1172.6, provides in relevant part: “A 

person convicted of felony murder . . . may file a petition with the court that sentenced 

the petitioner to have the petitioner’s murder . . . conviction vacated and to be 

resentenced on any remaining counts when all of the following conditions apply: [¶]

(1) A complaint, information, or indictment was filed against the petitioner that allowed 

the prosecution to proceed under a theory of felony murder . . . . [¶] (2) The petitioner 

was convicted of murder . . . . [¶] (3) The petitioner could not presently be convicted of 

murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1172.6, subd. (a).)

II

Banks, Clark, and Scoggins

The trial court denied defendant’s petition to vacate his murder conviction and for 

resentencing on the remaining counts, concluding he could be convicted of felony murder 

under the new law because he was a major participant in the underlying felonies who 

acted with reckless indifference to human life, as those statutory phrases were clarified by 

our Supreme Court in People v. Banks (2015) 61 Cal.4th 788 (Banks), Clark, supra, 

63 Cal.4th 522, and In re Scoggins (2020) 9 Cal.5th 667 (Scoggins). Because defendant 

challenges the sufficiency of the evidence only with respect to the reckless indifference 

finding, we limit our discussion of these cases to the mens rea requirement. 

In Banks, supra, 61 Cal.4th 788, our Supreme Court explained that section 190.2, 

subdivision (d), requiring both major participation in the underlying felony and reckless 

indifference to human life in order for a felony-murder special circumstance to apply to a 

nonkiller, “was designed to codify the holding of Tison v. Arizona (1987) 481 U.S. 137
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[], which articulates the constitutional limits on executing felony murderers who did not 

personally kill. Tison and a prior decision on which it is based, Enmund v. Florida

(1982) 458 U.S. 782 [], collectively place conduct on a spectrum, with felony-murder 

participants eligible for death only when their involvement is substantial and they 

demonstrate a reckless indifference to the grave risk of death created by their actions.” 

(Banks, at p. 794.) 

At one end of the spectrum is a defendant like Enmund, who was the getaway 

driver in a planned armed robbery that resulted in the unplanned murder of the robbery 

victim and his wife. The Enmund court “found a broad consensus against imposing death 

in cases ‘where the defendant did not commit the homicide, was not present when the 

killing took place, and did not participate in a plot or scheme to murder.’ [Citation.]” 

(Banks, supra, 61 Cal.4th at p. 799.) At the other end of the spectrum are “actual killers 

and those who attempted or intended to kill.” (Id. at p. 800.) In between these extremes, 

but falling on the permissible side of the constitutional line, are defendants like the Tison 

brothers, who “helped plan and carry out the escape of two convicted murderers from 

prison,” including their father, who “was serving a life sentence for killing a guard in the 

course of a previous escape.” (Banks, at p. 802.) The Tison brothers brought “a cache of 

weapons to prison, arm[ed] both murderers, and [held] at gunpoint guards and visitors 

alike.” (Banks, at p. 802.) During their subsequent escape, they carjacked and kidnapped 

a family of four, took the family’s possessions, and the convicted murderers “then killed 

all four family members.” (Id. at p. 799.) While the Tison brothers did not kill or intend 

to kill, their “ ‘major participation in the felony committed, combined with reckless 

indifference to human life, [was] sufficient to satisfy the Enmund culpability 

requirement.’ [Citation.]” (Banks, at p. 800.)

Elaborating on the mens rea requirement, our Supreme Court explained that 

“Tison, and in turn section 190.2[, subdivision ](d), look to whether a defendant has 

‘ “knowingly engag[ed] in criminal activities known to carry a grave risk of death.” ’ 
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[Citations.] The defendant must be aware of and willingly involved in the violent manner

in which the particular offense is committed, demonstrating reckless indifference to the 

significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801, 

italics added.) Holding the evidence was insufficient to establish this mental state, the 

Banks court explained: “There was evidence from which the jury could infer [the 

defendant] knew he was participating in an armed robbery. But nothing at trial supported 

the conclusion beyond a reasonable doubt that [he] knew his own actions would involve a 

grave risk of death. There was no evidence [he] intended to kill or, unlike the Tisons, 

knowingly conspired with accomplices known to have killed before. Instead, as in 

Enmund, [the shooter’s] killing of [the victim] was apparently a spontaneous response to 

armed resistance from the victim.” (Banks, at p. 807, italics added.) 

In Clark, supra, 63 Cal.4th 522, our Supreme Court vacated special circumstance 

findings where the defendant was “the mastermind who planned and organized the 

attempted robbery and who was orchestrating the events at the scene of the crime.” (Id. 

at p. 612.) There, the defendant and his brother and cousin conducted surveillance of a 

computer store, studying the number of employees and their activities around closing 

time. The defendant also secured use of a U-Haul truck by having another person rent 

the truck using a false driver’s license the defendant helped her procure. (Id. at pp. 536, 

612.) The plan was for one man, Ervin, to enter the store around closing time with a gun

thatwas “apparently [supposed] to be unloaded,” and handcuff the remaining employees 

in the restroom so no one could call the police. (Id. at p. 613.) Then, while the defendant 

sat in the parking lot in a BMW, his brother and another man, who apparently believed 

the store belonged to the defendant, were to help Ervin remove computers from the store 

and load them into the U-Haul, which was parked nearby. However, before any 

computers could be removed, the mother of one of the handcuffed employees came into 

the store. Ervin shot her in the head and fled to the defendant’s car. The defendant drove 

away, leaving Ervin to be arrested in the parking lot by an officer who heard the gunshot 
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while on patrol near the store. The gun Ervin used to murder the victim had been loaded 

with one bullet. (Id. at pp. 536-538, 613.) 

The Clark court concluded “the evidence was insufficient to support that [the 

defendant] exhibited reckless indifference to human life.” (Clark, supra, 63 Cal.4th at 

p. 614.) While noting that the “defendant had a prominent, if not the most prominent, 

role in planning the criminal enterprise that led to the death of [the victim]” (id. at 

p. 613), and acknowledging that the two elements are interrelated such that “ ‘the greater 

the defendant’s participation in the felony murder, the more likely that he acted with 

reckless indifference to human life’ ” (id. at p. 615, quoting Tison v. Arizona, supra, 481 

U.S. at p. 153), the court went on to explain that even significant participation in an 

armed robbery does not necessarily entail possession of the requisite mental state. 

(Clark, at p. 617.) Instead, the reckless indifference defined in Tison “encompasses a 

willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the 

defendant does not specifically desire that death as the outcome of his actions.” (Clark,

at pp. 616-617.) 

The Clark court then applied the following factors to the facts before it in 

determining whether or not the defendant was recklessly indifferent to human life: Did 

the defendant know a gun would be used and/or personally use a gun during the robbery? 

Was the defendant physically present at the scene of the murder, and therefore provided 

with an opportunity to restrain the murderer or aid the victim? What was the duration of 

the interaction between the perpetrators and the victims? Did the defendant have 

knowledge of his or her cohort’s likelihood of killing? Did the defendant apparently take 

steps to minimize the risk of violence? The first four factors were culled from case law; 

the fifth was added as a matter of first impression. (Clark, supra, 63 Cal.4th at pp. 618-

622.) 

Applying these factors, the Clark court held the evidence did not support a 

conclusion the defendant was recklessly indifferent to human life. The court explained 
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while the defendant knew a gun would be used, that fact alone is insufficient to establish 

reckless indifference. The only gun used during the attempted robbery was carried by 

Ervin, not the defendant, and that gun was loaded with only one bullet. (Clark, supra, 

63 Cal.4th at pp. 618-619.) Unlike Tison, where the Tison brothers were “physically 

present during the entire sequence of events culminating in the murders,” and were 

therefore presented with “an opportunity to act as a restraining influence on murderous 

cohorts,” the defendant in Clark was in his car in the parking lot when the victim was 

shot and was not provided with such an opportunity. (Clark, at p. 619.) Acknowledging 

“[t]he jury may have inferred that [the defendant] was aware [the victim] had been shot 

when he drove from the scene,” indicating a “desire to flee the scene as quickly as 

possible, without regard for [the] welfare . . . of the shooting victim,” the court 

nevertheless distinguished this level of culpability from that of the Tison brothers 

because, “unlike in [Tison], defendant would have known that help in the form of police 

intervention was arriving.” (Clark, at p. 620.) 

With respect to duration of the interaction between victims and perpetrators, the 

court noted the defendant planned the robbery for closing time, when most employees 

would be gone, and those who remained would be handcuffed in the bathroom. Thus, 

while the robbery would take some time to complete, “the period of interaction between 

perpetrators and victims was designed to be limited.” (Clark, supra, 63 Cal.4th at 

p. 620.) At the same time, the court explained, “Because the robbery was planned for a 

public space and involved the prolonged detention of employees, the crime did involve 

the risk of interlopers, such as [the murder victim]. But overall, the evidence was 

insufficient to show that the duration of the felony under these circumstances supported 

the conclusion that defendant exhibited reckless indifference to human life.” (Id. at 

pp. 620-621.) There was no evidence that Ervin was known to have a propensity for 

violence or that the defendant had any knowledge of such a propensity. (Id. at p. 621.) 
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Finally, the court considered the defendant’s “apparent efforts to minimize the 

risks of violence,” i.e., (1) the robbery was planned for closing time when most 

employees would be gone, (2) the gun was apparently supposed to have been unloaded, 

and (3) the gun was loaded with only one bullet (Clark, supra, 63 Cal.4th at pp. 621-

622), and concluded: “[T]here is evidence that defendant planned the crime with an eye 

to minimizing the possibilities for violence. Such a factor does not, in itself, necessarily 

preclude a finding of reckless indifference to human life. But here there appears to be 

nothing in the plan that one can point to that elevated the risk to human life beyond those 

risks inherent in any armed robbery.” (Id. at p. 623.) 

Our Supreme Court also held the evidence was insufficient to establish reckless 

indifference to human life in Scoggins, supra, 9 Cal.5th 667. We need not provide as 

detailed an overview of the “fact-intensive, individualized inquiry” (id. at p. 683) in that 

case. It will suffice to recount the concise description provided by our colleagues at the 

First Appellate District in In re Moore (2021) 68 Cal.App.5th 434: “Although [Scoggins] 

planned the robbery [citation], knew about his confederates’ violent tendencies [citation], 

and instructed them ‘to “beat the shit out of” ’ the victim [citation], he did not ‘know that 

a gun would be used’ [citation], ‘was not physically present at the crime scene’ [citation], 

and never instructed his confederates to kill the victim [citation]. Given these mitigating 

circumstances, the ‘limited’ duration of the interaction between the shooter and the 

victim [citation], and the location of the robbery ‘in a public parking lot during the 

daytime’ [citation], our high court held that ‘the evidence . . . “does not suggest an 

elevated risk to human life beyond those risks inherent in an unarmed beating and 

robbery” ’ [citation].” (Id. at p. 450.)

III

Sufficiency of the Evidence Regarding Reckless Indifference

We conclude consideration of the Clark factors similarly preclude a reckless 

indifference finding in this case. 
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The first Clark factor admittedly works against defendant, as the trial court found. 

Defendant knew a gun would be used by Spivey and personally used a gun of his own, 

although the evidence does not establish whether defendant’s gun was loaded. As the 

Clark court observed, while “[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[,]” the 

“use of a firearm . . . can be significant to the analysis.” (Clark, supra, 63 Cal.4th at 

p. 618.) Thus, the first factor supports a finding of reckless indifference, although we 

consider defendant’s use of the gun in this case to be somewhat mitigated by the fact that 

he never pointed it at either B.W. or B.A. and repeatedly attempted to keep them calm. 

Moreover, defendant did not use his gun after leaving B.W.’s house, when the actual 

shooting of Br.W. took place. The trial court did not mention these mitigating 

circumstances in its ruling, but did note that defendant was in possession of the murder 

weapon, as well as other firearms, when his apartment was searched five days later, and 

he was prohibited from possessing any weapons due to his status as a convicted felon. 

While true, these additional facts do not shed any light on whether defendant’s personal 

use of the smaller caliber handgun during the kidnapping and robbery created a 

significant risk of death beyond that inherent in any armed robbery. (See Clark, supra, 

63 Cal.4th at p. 623 [defendant’s personal conduct must have “elevated the risk to human 

life beyond those risks inherent in any armed robbery”].) Nevertheless, we accept that 

this factor supports the trial court’s ruling. 

The second factor does not support a finding of reckless indifference. The trial 

court concluded it did, noting defendant was personally present and actively participated 

in the kidnapping and robbery. This is true. The trial court also stated that defendant 

“threatened to harm the women and shoot them if they basically got in the[] way of their 

escape.” The record does not support this statement. B.W. testified that defendant 

repeatedly reassured her and B.A. that they would not be harmed as long as they followed 

instructions. He later told them to get in the bathtub and count to a specific number, 
15

adding that he and Spivey “would be waiting outside to make sure [they] did count.” He 

did not threaten to shoot them if they left too soon. B.W. assumed he would do so and 

followed his instructions. This assumption was reasonable given the circumstances, but 

defendant did not threaten to shoot them if they interfered with their escape. 

Defendant was, however, present during the kidnapping and robbery, as the trial 

court found. But the murder happened down the street in front of M.D.’s house. The 

relevant consideration is whether defendant was physically present at the scene of the 

murder, and therefore provided with an opportunity to restrain the murderer or aid the 

victim. The trial court disbelieved defendant’s statement that he and Spivey went 

separate directions when they left B.W.’s house, saying it “doesn’t make sense when they 

arrive together, they commit the crime together, . . . and then ultimately [defendant] 

ended up with the .45-caliber handgun.” We are also skeptical of defendant’s account of 

what happened after they left B.W.’s house. Defendant might have turned right instead 

of left when he left B.W.’s house. He and Spivey might have passed by M.D.’s house 

together, on their way to a waiting truck, which may have been the same truck that 

apparently dropped them off before they kidnapped B.W. and B.A. And if so, then 

defendant would probably have been close enough to Spivey when he got into the 

argument with the men in front of M.D.’s house to be considered present at the scene of 

the murder. But this is speculation. There is no actual evidence that defendant was 

present at the scene of the murder. Disbelieving defendant’s statement that he was down 

the street does not equal affirmative evidence that he was actually close enough to have 

intervened in the murder. 

Again, presence at the scene of the murder is the relevant consideration. As the 

Clark court explained, physical presence is “particularly significant” in a case like Tison, 

where the murder was “a culmination or a foreseeable result of several intermediate steps, 

or where the participant who personally commits the murder exhibits behavior tending to 

suggest a willingness to use lethal force. In such cases, ‘the defendant’s presence allows 
16

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 more at fault for the resulting murders.’ 

[Citation.]” (Clark, supra, 63 Cal.4th at p. 619.) 

Here, again, there was no evidence that defendant was close enough to act as a 

restraining influence, making this case more like Scoggins, supra, 9 Cal.5th 667, where 

the evidence did not support a finding that Scoggins was any closer than an adjacent 

parking lot when the shooting occurred, with an obstructed view of the robbery as it 

unfolded, and therefore had no control over the shooter’s actions, “especially given how 

quickly the shooting occurred.” (Id. at pp. 678-679.)

The Scoggins court also “emphasize[d] that ‘physical presence is not invariably a 

prerequisite to demonstrating reckless indifference to human life.’ [Citation.] ‘Where, 

for example, a defendant instructs other members of a criminal gang carrying out 

carjackings at his behest to shoot any resisting victims, he need not be present when his 

subordinates carry out the instruction in order to be found to be recklessly indifferent to 

the lives of the victims.’ [Citations.] Especially in light of emerging technologies, a 

defendant who plans and directs a murder from afar may be just as culpable as a 

defendant who is physically present at the scene of the crime.” (Id. at p. 679.) But here, 

as in Scoggins, there is no evidence that defendant directed Spivey to kill under any 

scenario. 

Moreover, also like Scoggins, the murder was sudden and unexpected. Spivey and 

the men in front of M.D.’s house exchanged gang-related words, during which Spivey 

fired a single round at the men, hitting and killing Br.W., and then apparently fled in the 

truck that passed by. This must have happened in a matter of seconds because all of it—

from defendant and Spivey leaving B.W.’s house, to the argument and shooting, to M.D.

and a friend running over to B.W.’s house—happened in the amount of time it took B.W.
17

and B.A. to finish counting. Thus, aside from there being no actual evidence that 

defendant was present at the scene of the murder, there also is no evidence that he would 

have been in any position to act as a restraining influence on Spivey even if he was there. 

We do acknowledge that presence and failure to render aid to the victim was also 

noted in Tison. Regardless of which way defendant turned when he left B.W.’s house, he 

was present enough to have heard the shot and seen the muzzle flash, and he certainly 

fled, either with Spivey in the truck or on foot in the opposite direction. However, given 

the unexpected nature of the shooting, defendant’s flight from the scene is as easily 

reconcilable with shock as it is with callous indifference. Moreover, defendant could 

have reasonably assumed that there were multiple people in front of M.D.’s house, any of 

whom could call for medical assistance. Thus, like Clark, and unlike Tison, it is 

“difficult to infer [defendant’s] frame of mind concerning [Br.W.’s] death” from the fact 

that he ran when Spivey pulled the trigger. (Clark, supra, 63 Cal.4th at p. 620.) 

The third factor, duration of the felony, does support the trial court’s ruling. 

Defendant and Spivey were inside B.W.’s house for about 20 minutes, during which 

defendant stood guard over B.W. and B.A. while holding a gun. This “prolonged period 

of restraint” by defendant created “ ‘a greater window of opportunity for violence’ 

[citation], possibly culminating in murder.” (Clark, supra, 63 Cal.4th at p. 620.) 

However, we also consider this factor somewhat mitigated by the fact that defendant 

never pointed the gun at the women and simultaneously attempted to keep them calm. At 

the same time, however, the evidence reasonably supports a conclusion that M.D. knew 

Spivey and defendant kidnapped B.W. and B.A. at gunpoint and took them into B.W.’s 

house. While M.D. denied approaching B.W. at her car, and further denied seeing any 

weapons or interacting with Spivey, B.W. testified that M.D. did approach her, at which 

point Spivey stepped between them, pointed his gun at M.D., and told him to “back up.” 

The evidence therefore supports a conclusion that Spivey and defendant knew that at 

least one person knew they kidnapped B.W. and B.A. and brought them inside the house. 
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Despite this knowledge, they spent 20 minutes inside robbing the women, plenty of time 

for M.D. to have summoned assistance. He did not do so. But the trial court could have 

reasonably concluded that the length of time defendant and Spivey spent inside the house, 

notwithstanding having been seen going inside, increased the risk of violence. 

The fourth factor is whether defendant possessed knowledge of Spivey’s 

likelihood of killing. In support of this factor, the trial court relied on the fact that Spivey 

“was armed with an assault weapon and used it to kidnap and rob two women” and that 

“Spivey had no issues with [defendant] threatening the women with murder if they 

interfered with the escape.” We have already addressed the latter assertion. With respect 

to the former, we cannot conclude that merely by participating in an armed kidnapping 

and robbery, where Spivey was armed with an assault weapon, defendant must have 

known Spivey was likely to use that weapon to kill. This factor does not support the trial 

court’s ruling. 

The final Clark factor is defendant’s efforts to minimize the risks of violence 

during the kidnapping and robbery. The trial court found no evidence to support this 

factor. We disagree. Defendant’s personal behavior during the robbery supports a 

reasonable conclusion that his conduct was designed to reduce the risk of violence. 

Again, he did not point his gun at either B.W. or B.A. and repeatedly reassured them that 

they would be fine as long as they let Spivey complete the robbery. His personal conduct 

was apparently designed to turn down the temperature in the room, not increase the risk 

of violence. 

In sum, defendant knew a gun would be used by Spivey during the kidnapping and 

robbery, although there is no evidence that he knew Spivey was likely to kill someone 

with it. Defendant also used a gun of his own during the robbery, although whether 

defendant’s gun was loaded is unknown and defendant did not point his gun at the 

robbery victims. Defendant was present during the kidnapping and robbery, but whether 

he was also present when Spivey killed the murder victim down the street is unknown, 
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but even if he was, the events escalated too quickly for us to conclude defendant could 

have done anything to intervene. And while the robbery took a significant amount of 

time to complete, defendant repeatedly tried to keep the robbery victims calm during that 

time in an apparent effort to minimize the risk of violence. On these facts, we cannot 

conclude the trial court’s finding of reckless indifference to human life is supported by 

substantial evidence. As our Supreme Court has made clear, it is the defendant’s

“individual culpability” (Banks, supra, 61 Cal.4th at p. 801) that is at issue here. The 

question is whether defendant personally possessed “a willingness to kill (or to assist 

[Spivey] in killing)” (Clark, supra, 63 Cal.4th at pp. 616-617) or personally “elevated the 

risk to human life beyond those risks inherent in any armed robbery.” (Id. at p. 623.) We 

conclude the answer, given the evidence, is he did not.

Finally, In re McDowell (2020) 55 Cal.App.5th 999 (McDowell) is also 

instructive. Indeed, this case is perhaps the most instructive because it goes in the other 

direction, finding sufficient evidence of reckless indifference to human life, in a case the 

court acknowledged “may be close to the line.” (Id. at p. 1015.) There, McDowell and 

Hutchison planned and executed a home invasion robbery of a drug dealer, Meehan. 

McDowell was armed with a knife and Hutchison was armed with a handgun when they 

entered Meehan’s home and demanded money and/or drugs. When Meehan said he did 

not have anything, Hutchison fired a warning shot into the floor. Meehan then told 

Hutchison to go ahead and kill him. Two guests were also at Meehan’s home at the time. 

One of them told Hutchison not to hurt Meehan, while the other picked up an object and 

struck McDowell, knocking him down. Meehan then tried to grab Hutchison’s gun, 

causing Hutchison to shoot him twice in the chest. (Id. at p. 1005.) 

Concluding the evidence supported a finding that McDowell acted with reckless 

indifference to human life, the court first accepted McDowell’s statement that he did not 

know Hutchison had a gun, but pointed out McDowell himself was armed with a knife, 

and he necessarily knew Hutchison had a gun at least by the time the warning shot was 
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fired. (McDowell, supra, 55 Cal.App.5th at p. 1013.) The court also emphasized that 

McDowell both planned and actively participated in “a crime with a particularly high risk 

of violence—a home invasion robbery of a drug dealer.” (Ibid.) The court further found 

McDowell took no steps to minimize the “obvious risks of lethal violence” such a plan 

entailed. (Id. at pp. 1013-1014.) Finally, the court also relied on McDowell’s presence at 

the scene of the murder and failure to take any steps to prevent it. Specifically, when 

Hutchison fired the warning shot and Meehan responded with a dare, “there was a brief 

but critical opportunity for McDowell to say or do something to deescalate the situation,” 

but he did not. (Id. at p. 1014.) However, as we have already noted, the court also 

acknowledged “this case may be close to the line” given how fast the events unfolded 

once McDowell and Hutchison entered the home and the lack of any evidence that 

McDowell knew Hutchison had a violent past. (Id. at pp. 1014-1015.) 

Three important factors that existed in McDowell do not exist in this case. First, 

there is no evidence that defendant participated in planning the kidnapping and robbery in 

this case. He seemed to be following Spivey’s lead from the start. Second, the 

kidnapping and robbery in this case does not carry the same “particularly high risk of 

violence” as a home invasion robbery of a drug dealer, where it is “foreseeable that 

customers or others could be present . . . and that either the dealer himself or his 

customers might be armed or high and thus more likely to resist.” (McDowell, supra, 

55 Cal.App.5th at p. 1013.) Third, the murder and robbery in this matter did not occur at 

the same location. While defendant was present at the scene of the robbery, there is only 

speculation he was also present at the scene of the murder down the street. But again, 

even if he was, unlike McDowell, the evidence does not support a conclusion that there 

was a window of opportunity for defendant to have interceded to prevent Spivey from 

shooting Br.W. 

We acknowledge the existence of some factors that might favor affirmance. But 

we have already explained why those factors, while they admittedly exist, are 
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significantly mitigated. This case, like McDowell, is close. In our view, however, on the 

unique facts of this case, defendant’s individual culpability has not been shown to be 

sufficient to satisfy what is currently required under the law.

DISPOSITION

The order denying defendant’s resentencing petition under Penal Code section 

1172.6 is reversed and the matter is remanded to the trial court with directions to vacate 

defendant’s murder conviction and resentence him on his remaining convictions. 

 

HULL, J.

We concur:

 

EARL, P. J.

 

MESIWALA, J.