1

Filed 6/21/23 P. v. Faumui CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

VAVAO POLO FAUMUI,

Defendant and Appellant.

E075801

(Super.Ct.No. FBV3726)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, 

Judge. Affirmed.

Vavao P. Faumui, in pro. per.; Dwyer and Kim and John P. Dwyer for Defendant 

and Appellant.

No appearance by Plaintiff and Respondent.
2

In 2007, a jury convicted Vavao Faumui of first degree murder with true findings 

on the robbery and burglary felony-murder special circumstances. (Pen. Code, § 190.2, 

subds. (a)(17)(A), (a)(17)(G), (d).)

1

In 2019, Faumui filed a petition to vacate his murder 

conviction under section 1172.6 (formerly § 1170.95).

2

After an evidentiary hearing, the 

trial court found Faumui was “a major participant” in the underlying felonies and acted 

“with reckless indifference to human life” within the meaning of section 189, subdivision 

(e)(3) and denied the petition. (§ 1172.6, subd. (d).)

Faumui appealed the order denying his petition, and we dismissed the appeal as 

abandoned because neither he nor appointed counsel raised any arguable issues. The 

California Supreme Court subsequently granted review of our dismissal order and 

transferred the matter back to us with directions to vacate our order and reconsider the 

appeal under the Wende3 guidance it articulated in People v. Delgadillo (2022) 14 Cal.5th 

216 (Delgadillo). Having done so, we affirm the order denying Faumui’s petition.

1 Unlabeled statutory citations refer to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 

1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer 

to whichever of the two statutes was in effect at the relevant time.

3 People v. Wende (1979) 25 Cal.3d 436 (Wende).
3

I

BACKGROUND

At trial, the prosecution presented evidence that, late in the evening on September 

8, 2003, Faumui and three other men attempted a home invasion robbery during which 

the victim was shot multiple times and later died from his injuries.

4

Many of the details of 

the incident came from Faumui’s own admissions to law enforcement. He told police he 

had approached the home with two accomplices while the lookout, Robin Sherwood,

waited in the car. Faumui said he carried a flashlight and his accomplices carried guns. 

They knocked on the door, and when the victim answered, they pushed their way into the 

house. Faumui struggled with the victim “[f]or a minute, not even that,” and then “bee 

lined” for the door when he heard a gunshot.

Sherwood’s friend, Jaramillo, testified he had let Sherwood borrow his 

grandmother’s car that evening. He said that when Sherwood returned the car, around 

2:00 a.m. the following morning, Sherwood told him they had just done “something” and 

“[s]omebody got shot.” Later that day, when Jaramillo was at Sherwood’s apartment, 

Sherwood proceeded to recount the details of the botched robbery while Faumui listened 

and nodded in agreement. Sherwood recounted how, when the victim opened the door, 

Faumui hit him with the flashlight and tried to wrestle him to the ground. When it 

became clear the victim was starting to gain the upper hand, Faumui told his friends to

4 We take our factual summary from our unpublished opinion in Faumui’s direct 

appeal, People v. Faumui (Oct. 20, 2008, E043981).
4

“shoot him.” Faumui testified in his own defense and denied the conversation with 

Jaramillo had taken place.

The prosecution tried Faumui for first degree murder under the alternate theories 

of felony murder and direct aiding and abetting. The jury found him guilty of first degree 

murder, first degree burglary, and attempted first degree robbery in concert. As to each 

count, the jury found true the armed principal allegation (§ 12022, subd. (a)(1)), and as to 

the murder, they found true the robbery and burglary felony-murder special circumstance 

allegations (§ 190.2, subds. (a)(17)(A), (a)(17)(G), & (d)). Before sentencing, San 

Bernardino County Superior Court Judge John M. Tomberlin found Faumui had suffered 

four strike priors, four prior serious felony enhancements, and eight prison prior 

enhancements. For those priors and his current convictions, Faumui received a sentence 

of life without parole plus 25 years.

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), 

which, among other things, amended the definition of felony murder in section 189 and 

created a procedure for vacating murder convictions predating the amendment that could 

not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.) Following this 

procedure, Faumui filed a petition to vacate his murder conviction in 2019. He alleged he

had been convicted of first degree murder under a felony-murder theory and could not be 

convicted of murder under the new law because he was not a major participant in the 

felony and did not act with reckless indifference to human life during its commission.
5

At the evidentiary hearing on Faumui’s petition, Judge Tomberlin concluded the 

evidence the People submitted established that Faumui “was the first person through the 

door, attacked the [victim] and urged his compatriot to kill the [victim] or at least to shoot 

him.” Based on that evidence, the judge found Faumui was a major participant in the 

underlying felonies and acted with reckless indifference to human life within the meaning 

of section 189, subdivision (e)(3) and denied the petition.

Faumui appealed the denial of his petition, but we dismissed the appeal as 

abandoned when appointed counsel filed a no-issue brief under Wende and Faumui

declined to file a supplemental brief when invited to do so. Faumui petitioned for review 

of our dismissal order, and on June 9, 2021, the California Supreme Court granted his 

request pending its decision in Delgadillo. Several months later, the Court issued 

Delgadillo, in which it held that appellate courts may dismiss Wende appeals of denials 

of section 1172.6 petitions when the defendant has been informed of their right to file a 

supplemental brief and both counsel and appellant have identified no arguable issues on 

appeal. (Delgadillo, supra, 14 Cal.5th at p. 232.) The Court advised that, as a best 

practice, appellate courts should expressly notify defendants that their appeals may be 

“dismissed as abandoned” if counsel files a no-issue brief and they fail to file a 

supplemental brief “raising any argument [they] wish[] the court to consider.” (Id. at 

p. 222.)

On March 22, 2023, the Court transferred this matter back to us with directions to 

vacate our dismissal order and reconsider whether to exercise our discretion to conduct 
6

an independent review of the record “or provide any other relief” in light of Delgadillo.

Because our order informing Faumui that his counsel had filed a no-issue brief and 

inviting him to file a supplemental brief did not expressly notify him that we could 

dismiss his appeal as abandoned if he failed to identify any arguable issues, we issued 

two orders. In one order, we invited the parties to file supplemental briefs in light of 

Delgadillo. In the other, we notified Faumui that his counsel had filed a no-issue brief

and invited him once again to file a supplemental brief. We informed him that we would 

“evaluate the specific arguments presented” in his supplemental brief. We also notified 

him that “[f]ailure to timely file a supplemental brief may result in the dismissal of the 

appeal as abandoned.”

Neither the People nor appointed counsel filed additional briefing, but Faumui 

filed a supplemental brief raising one argument for our consideration. We turn now to 

consider the merits of his argument. (See Delgadillo, supra, 14 Cal.5th at p. 232 [where a 

defendant files a supplemental brief, the appellate court is “required to evaluate the 

specific arguments presented in that brief and to issue a written opinion” but “[t]he filing

of a supplemental brief . . . does not compel an independent review of the entire record to 

identify unraised issues”].)

II

DISCUSSION

Faumui argues that he did not know his accomplice would in fact shoot the victim

and, as a result, the judge denied his petition in error. This argument amounts to a 
7

challenge to the sufficiency of the evidence supporting the judge’s finding that he was “a 

major participant” in the underlying felonies and acted “with reckless indifference to 

human life” within the meaning of section 189, subdivision (e)(3). When addressing such 

a challenge, “we review the whole record in the light most favorable to the judgment to 

determine whether it discloses substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Cravens (2012) 53 Cal.4th 500, 

507.)

Under section 189, “[a] participant in the perpetration or attempted perpetration of 

[qualifying felonies] in which a death occurs is liable for murder” if “[t]he 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), italics added.)

In this context, a major participant is someone whose “personal involvement” in 

the qualifying felony is “substantial” and “greater than the actions of an ordinary aider 

and abettor” (People v. Banks (2015) 61 Cal.4th 788, 802 (Banks)), but they “need not be 

the ringleader” (People v. Williams (2015) 61 Cal.4th 1244, 1281). The factors for 

evaluating whether a defendant qualifies as a major participant include: (1) the

defendant’s role in planning the felony; (2) their role in “supplying or using lethal 

weapons”; (3) their awareness of the “particular dangers posed by the nature of the crime, 

weapons used, or past experience or conduct of the other participants”; (4) their presence

“at the scene of the killing” and thus whether they were “in a position to facilitate or 
8

prevent the actual murder”; (5) whether their “own actions or inaction play[ed] a 

particular role in the death”; and (6) their actions after the use of lethal force. (Banks, at 

p. 803.)

A person acts with reckless indifference to human life when they “‘knowingly 

engag[e] in criminal activities known to carry a grave risk of death.’” (People v. Clark

(2016) 63 Cal.4th 522, 616.) Participating in an armed burglary or armed attempted 

robbery, on its own, is insufficient to show a reckless indifference to human life. (In re 

Scoggins (2020) 9 Cal.5th 667, 678.) The factors for evaluating whether a defendant 

meets this standard include: (1) their awareness that a lethal weapon would be used, 

whether they personally used a lethal weapon, and the number of lethal weapons used; 

(2) their “[p]roximity to the murder and the events leading up to it”; (3) the length of time 

they or their confederates restrained the victim; (4) their knowledge of a confederate’s 

likelihood of killing; and (5) whether they made an effort to minimize the risk of 

violence. (Clark, at pp. 618-622.) In regard to both standards, no single one of these 

factors is necessary, nor is any one necessarily sufficient. (Banks, supra, 61 Cal.4th at 

p. 803; Clark, at p. 618.)

Here, the record supports a finding that Faumui was a major participant in the 

burglary and attempted robbery because the People produced evidence that Faumui had 

taken part in the home invasion and was the one who fought with the victim before the 

victim was shot. The record also supports a finding that Faumui acted with reckless 
9

indifference to human life because the People presented evidence that, during his struggle 

with the victim, he urged his accomplices to fire their weapons.

Even if we assume, for the sake of argument, that the record contains some

evidence to support a finding that Faumui didn’t know his armed accomplices would in 

fact discharge their weapons, the judge was free to discount that evidence and credit 

instead the evidence that Faumui told his accomplices to “shoot him” while knowing full 

well that they were armed and the victim was an easy target. When the record contains 

evidence to support more than one inference, we defer to the fact finder’s resolution of 

credibility issues so long as their decision is supported by substantial evidence. (People v. 

Young (2005) 34 Cal.4th 1149, 1181.) Because that is the case here, we reject Faumui’s

claim that the record compels a different result.

III

DISPOSITION

We affirm the order denying Faumui’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

CODRINGTON

Acting P. J.

MENETREZ

J.