Filed 9/23/21 P. v. Maldonado CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LARENZO RICARDO 

MALDONADO,

Defendant and Appellant.

 B308300

 (Los Angeles County

 Super. Ct. No. A364611)

APPEAL from an order of the Superior Court of Los 

Angeles County, William C. Ryan, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriquez, Acting 

Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Susan Sullivan Pithey, Assistant Attorney General, 

Amanda Lopez and Chung L. Mar, Deputy Attorneys General, for 

Plaintiff and Respondent.

——————————
2

In 1981, Larenzo Ricardo Maldonado pleaded guilty to

second degree murder based on a codefendant’s fatal shooting of 

a pizza delivery man during the commission of an armed robbery. 

In 2019, Maldonado filed a petition for resentencing pursuant to

newly-enacted Penal Code section 1170.95.1 The trial court 

denied the petition based on a finding that Maldonado was not 

entitled to relief under section 1170.95 because he was a major 

participant in the robbery and acted with reckless indifference to 

human life. On appeal, Maldonado argues the trial court erred 

in denying the petition because principles of double jeopardy

precluded a finding that he could be convicted of first degree 

felony murder under current law. Maldonado also asserts the 

evidence was insufficient to support the trial court’s factual 

finding that he was not entitled to resentencing. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The 1980 robbery and murder2

On October 10, 1980, seven juvenile members of the 

Avenues gang, including Maldonado, decided to rob a pizza 

delivery man to obtain money to go to a county fair. The plan 

1 Unless otherwise stated, all further statutory references 

are to the Penal Code.

2 The description of the robbery and murder set forth in 

this opinion is based on a January 1981 probation report, an 

October 1980 police report, and a November 1980 transcript of

the prosecuting attorney’s interview with Lisa Gandara, one of 

the co-participants in the crimes. These records were attached as 

exhibits to the People’s response to Maldonado’s section 1170.95 

petition, and were considered by the trial court in ruling on the 

petition. 
3

initially was devised by Rudy Zamorano, Martha McRae, and 

Lisa Gandara. They then gathered with Maldonado, Manual 

Marin, Ralph Garcia, and Pete Herrera at Maldonado’s house 

where they worked out the details of the plan. All seven 

individuals “were for it.” The plan was to drive to a secluded 

street, order pizzas for delivery to an address on that street, and 

then wait for the delivery man to arrive to rob him. While the 

group agreed that “nobody was supposed to get hurt,” they also 

decided to use a gun in the robbery “in case the pizza man 

decided to pull a gun” on them. Zamorano told the group that if 

the delivery man pulled out a gun or tried to defend himself, 

“they were going to shoot him.” 

The group drove in Marin’s car to a fellow gang member’s 

house where Zamorano retrieved a rifle and ammunition. They 

then chose a house on Raber Street as the location for the robbery 

because it was the darkest street in the area. After dropping off

McRae and Herrera at a pay phone booth so that they could order 

the pizzas, the group parked the car down the street from the 

Raber Street house. While Marin stayed in the car, the rest of 

the group waited near the house for the delivery man. 

Maldonado and Gandara stood in front of the house while 

Zamorano and Garcia hid behind a car across the street.

When the delivery man, Phillip Ares, arrived on Raber 

Street, Gandara directed him to follow her to the house. As Ares

was walking toward the house, Zamorano approached him from 

behind, placed the rifle against his back, and said, “Hold it, 

motherfucker, or I’ll shoot you.” Gandara grabbed the pizzas 

from Ares’s hands. Maldonado and Garcia then searched Ares for 

money. Maldonado removed change from one of Ares’s pockets 

while Garcia took bills from another pocket. 
4

After the men took Ares’s money, Zamorano directed him 

to turn around. When Ares did not comply, Zamorano warned

him, “If you don’t turn around, I’ll shoot you through the back.” 

Ares again did not comply, and instead stood silently with his 

back to Zamorano. After Zamorano told Ares to turn around a 

third time, Maldonado grabbed Ares by his arm and turned him 

toward Zamorano. At that point, the rifle was pointed at Ares’s 

stomach. Zamorano told Ares, “I know you’re going to snitch.” 

Zamorano then walked around Ares and shot him three times in 

the back. Ares died at the scene from his gunshot wounds. 

Immediately after the shooting, Maldonado and the rest of 

the group ran back to Marin’s car. When Gandara asked 

Zamorano why he shot the delivery man, Zamorano “[j]ust

laughed.” According to Gandara, “we all laughed, just laughed,” 

and “we didn’t expect that he died.” After the group picked up 

McRae and Herrera, they drove to an alley, where they hid the 

rifle and split the proceeds from the robbery. The group then 

parked on a nearby street and ate the pizza. 

Maldonado’s 1981 guilty plea

Maldonado, Zamorano, and Marin were each charged with 

murder and robbery with robbery-murder special circumstance 

and firearm enhancement allegations. On January 7, 1981, 

Maldonado pleaded guilty to second degree murder pursuant to a 

plea agreement. He was sentenced to a term of 15 years to life in 

state prison. 

Maldonado’s 2019 petition for resentencing

On January 2, 2019, Maldonado filed a petition for 

resentencing pursuant to section 1170.95. He asserted he was 

entitled to relief under the statute because he pleaded guilty to 
5

murder pursuant to the felony-murder rule or natural and 

probable consequences doctrine, he was not the actual killer, he 

did not aid or abet a murder with the intent to kill, and he was

not a major participant in the underlying felony or acted with 

reckless indifference to human life. On March 11, 2019, the trial 

court appointed counsel to represent Maldonado in his section 

1170.95 petition. 

On July 2, 2019, the People filed a response to Maldonado’s

petition. The People contended the petition should be denied 

because section 1170.95 was unconstitutional. The People also 

argued Maldonado was ineligible for resentencing because he

was a major participant in the robbery and acted with reckless 

indifference to human life. On November 12, 2019, the trial court 

issued an order to show cause, finding that section 1170.95 was 

constitutional, and that Maldonado had made a prima facie 

showing of entitlement to relief. 

On September 14, 2020, following a hearing on the order to 

show cause, the trial court denied Maldonado’s petition. In a 

detailed memorandum of decision, the trial court found that

Maldonado was not entitled to relief under section 1170.95 

because the evidence showed, beyond a reasonable doubt, that 

Maldonado was a major participant in the underlying felony and 

acted with reckless indifference to human life. In finding that 

Maldonado was a major participant in the felony, the court relied 

on “his later, but actual, participation in the planning, his 

participation in the robbery, his lack of action when it became 

apparent his co-perpetrator believed the victim needed to be 

killed, and his lack of aid to the victim.” In finding that 

Maldonado had acted with reckless indifference to human life, 

the court cited “his role as a late-stage planner and a participant 
6

in the armed robbery who was in a position to prevent the 

violence but did not.”3 

Following the denial of his petition, Maldonado filed a 

timely appeal.

DISCUSSION

Overview of section 1170.95

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill 1437) amended murder liability under 

the felony murder rule and natural and probable consequences 

doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. 

Gentile (2020) 10 Cal.5th 830, 842–843.) Prior to Senate Bill 

1437’s enactment, under the felony murder rule, “a defendant 

who intended to commit a specified felony could be convicted of 

murder for a killing during the felony, or attempted felony, 

without further examination of his or her mental state.” (People 

v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) Similarly, 

under the natural and probable consequences doctrine, a 

defendant was “liable for murder if he or she aided and abetted 

the commission of a criminal act (a target offense), and a 

principal in the target offense committed murder (a nontarget 

offense) that, even if unintended, was a natural and probable 

consequence of the target offense.” (Id. at p. 248.) 

Senate Bill 1437 amended the felony murder rule by adding 

section 189, subdivision (e), which provides that a participant in 

3 At the hearing on the order to show cause, Maldonado 

was represented by counsel, but he did not appear in court, did 

not present any live or written testimony, and did not offer any 

additional documentary evidence in support of his petition. 
7

the perpetration or attempted perpetration of qualifying felonies 

is liable for felony murder only if the person: (1) was the actual 

killer; (2) was not the actual killer but, with the intent to kill, 

acted as a direct aider and abettor in the murder; or (3) the 

person was a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in 

section 190.2, subdivision (d). (See People v. Gentile, supra, 

10 Cal.5th at p. 842.) It amended the natural and probable 

consequences doctrine by adding section 188, subdivision (a)(3), 

which states that malice shall not be imputed to a person based 

solely on his or her participation in a crime. (Id. at p. 843.)

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a nowinvalid felony murder or natural and probable consequences 

theory may petition the sentencing court to vacate the murder

conviction and resentence the petitioner on any remaining 

counts. (See People v. Lewis, supra, 11 Cal.5th at p. 959; People 

v. Gentile, supra, 10 Cal.5th at p. 843.) A petitioner is eligible for

relief if he or she: (1) was charged with murder by means of 

a charging document that allowed the prosecution to proceed 

under a theory of felony murder or murder under the natural 

and probable consequences doctrine, (2) was convicted of first or 

second degree murder, and (3) could no longer be convicted of 

first or second degree murder due to the changes to sections 188 

and 189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)

Once a petitioner makes a prima facie showing that he 

or she is entitled to relief, the sentencing court must issue an 

order to show cause (§ 1170.95, subd. (c)), and hold a hearing 

to determine whether to vacate the murder conviction and 

resentence the petitioner (§ 1170.95, subds. (d)(1)). At that 
8

hearing, the prosecution has the burden of proving beyond a 

reasonable doubt the petitioner is ineligible for resentencing 

(§ 1170.95, subd. (d)(3))—that is, the People must prove beyond a 

reasonable doubt that the petitioner is guilty under a theory that 

remains valid after Senate Bill 1437’s enactment. (See People v. 

Clements (2021) 60 Cal.App.5th 597, 615, review granted Apr. 28, 

2021, S267624; People v. Rodriguez (2020) 58 Cal.App.5th 227, 

230, review granted Mar. 10, 2021, S266652; People v. Lopez

(2020) 56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, 

S265974.) Both the prosecution and the petitioner may rely on 

the record of conviction or offer new or additional evidence to 

meet their respective burdens. (§ 1170.95, subd. (d)(3).) If the 

prosecution fails to sustain its burden of proof, the court must 

vacate the murder conviction and any allegations and

enhancements attached to it, and resentence the petitioner on 

the remaining counts. (§ 1170.95, subd. (d)(3).)

On appeal from an order denying a section 1170.95 petition 

following an evidentiary hearing, we review the superior court’s 

factual findings for substantial evidence. (People v. Clements, 

supra, 60 Cal.App.5th at p. 618; People v. Rodriguez, supra, 

58 Cal.App.5th at p. 238.) “We ‘ “examine the entire record in the 

light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value that would support a 

rational trier of fact in finding [the defendant guilty] beyond a 

reasonable doubt.” ’ ” (Clements, at p. 618.) 

Double jeopardy principles do not apply to 

Maldonado’s section 1170.95 proceeding

On appeal, Maldonado first argues that the constitutional 

prohibitions against double jeopardy precluded the trial court 
9

from finding that he could be convicted of first degree felony 

murder under current law because Maldonado previously was 

convicted of second degree murder. Maldonado further asserts

that, to the extent he may have forfeited this claim on appeal, 

his counsel in the section 1170.95 proceeding was ineffective by

failing to object on double jeopardy grounds in the trial court. 

We conclude Maldonado’s claim lacks merit.

The double jeopardy clauses of the Fifth Amendment to 

the United States Constitution and article I, section 15, of the 

California Constitution provide that no person may be tried 

more than once for the same offense. (People v. Aranda (2019)

6 Cal.5th 1077, 1083.) The double jeopardy clause accordingly

“ ‘protects against a second prosecution for the same offense 

following an acquittal or conviction, and also protects against 

multiple punishment for the same offense.’ ” (People v. Anderson

(2009) 47 Cal.4th 92, 103–104.) A defendant must affirmatively 

raise a claim of double jeopardy in the trial court to preserve the 

issue for appeal. (People v. Gurule (2002) 28 Cal.4th 557, 646.)

Contrary to Maldonado’s argument, the constitutional 

protections afforded by the double jeopardy clause do not apply 

to a section 1170.95 proceeding. As our colleagues in Division 

Seven explained in People v. Hernandez (2021) 60 Cal.App.5th 94,

111, an “evidentiary hearing under section 1170.95 . . . does not 

implicate double jeopardy because section 1170.95 ‘involves a 

resentencing procedure, not a new prosecution.’ [Citation.] The 

retroactive relief provided by section 1170.95 is a legislative ‘act 

of lenity’ intended to give defendants serving otherwise final 

sentences the benefit of ameliorative changes to applicable 

criminal laws and does not result in a new trial or increased 

punishment that could implicate the double jeopardy clause. 
10

[Citations.] And even if a section 1170.95 evidentiary hearing 

were akin to a ‘reprosecution’ [citation] for purposes of the double

jeopardy clause, prohibitions against double jeopardy do not 

prevent a retrial where ‘a conviction is not reversed on appeal for 

insufficient evidence but because of a retroactive change in the 

law [such as section 1170.95].’ ” (See People v. Lopez (2019) 

38 Cal.App.5th 1087, 1115–1116, review granted on another 

ground Nov. 13, 2019, S258175 [double jeopardy inapplicable to

section 1170.95 resentencing procedure].) 

Accordingly, double jeopardy principles did not preclude 

the trial court from finding that Maldonado was ineligible for 

resentencing because he could be convicted of first degree murder 

under a valid felony murder theory. Because Maldonado’s section 

1170.95 proceeding did not implicate the double jeopardy clause,

his counsel was not ineffective in failing to object on such grounds 

before the trial court. (See People v. Bell (2019) 7 Cal.5th 70, 127 

[counsel not ineffective in failing to raise futile objections]; People 

v. Maury (2003) 30 Cal.4th 342, 419 [same].)

Substantial evidence supported the trial court’s 

finding that Maldonado was not entitled to 

section 1170.95 relief

Maldonado also challenges the sufficiency of the evidence 

supporting the trial court’s finding that he was not entitled to

relief under section 1170.95 because he could be convicted of 

first degree felony murder under current law. Maldonado does 

not dispute that there was sufficient evidence to support the trial 

court’s finding that he was a major participant in the robbery. 

Rather, he contends the evidence was insufficient to support its

finding that he acted with reckless indifference to human life. 

For the reasons set forth below, we conclude that substantial 
11

evidence supported the trial court’s finding that Maldonado acted 

with reckless indifference to human life, and thus, that he could

be convicted of first degree murder under a felony murder 

theory.4

Section 189, subdivision (e)(3), provides that a participant 

in certain felonies, including robbery, in which a death occurs is

liable for murder if 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,” the felonymurder special circumstance statute. Section 190.2, subdivision 

(d), in turn states that “every person, not the actual killer, 

who, with reckless indifference to human life and as a major 

participant” aids or abets an enumerated felony, including 

robbery, that results in death may be convicted of special 

circumstance murder and sentenced to death or imprisonment 

for life without parole. “The statute, by its text, imposes an actus 

reus requirement, major participation in the enumerated felony, 

and a mens rea requirement, reckless indifference to human life.” 

(In re Scoggins (2020) 9 Cal.5th 667, 674.)

4 Maldonado also argues he could no longer be convicted 

of second degree murder under current law because there was 

insufficient evidence that he acted with actual malice. In light 

of our conclusion that the evidence was sufficient to support the 

trial court’s finding that Maldonado was ineligible for relief 

because he could be convicted of first degree felony murder, 

we need not consider whether Maldonado was also ineligible

because he could be convicted of second degree malice murder.
12

More than 30 years after Maldonado’s conviction, the 

California Supreme Court in People v. Banks (2015) 61 Cal.4th 

788 and People v. Clark (2016) 63 Cal.4th 522 clarified the 

meaning of the “major participant” and “reckless indifference” 

requirements of section 190.2, subdivision (d). In Banks, the 

Supreme Court identified a nonexclusive list of factors for 

determining whether an aider and abettor was a major

participant in the underlying felony: “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 particular dangers posed by the nature of the 

crime, weapons used, or past 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 actions or inaction play a particular role 

in the death? What did the defendant do after lethal force was 

used?” (Banks, at p. 803, fn. omitted.) With respect to the 

reckless indifference element, the court explained that “[r]eckless 

indifference to human life ‘requires the defendant be “subjectively

aware that his or her participation in the felony involved a grave 

risk of death.” ’ ” (Id. at p. 807.) “Awareness of no more than 

the foreseeable risk of death inherent in any armed crime is 

insufficient; only knowingly creating a ‘grave risk of death’

satisfies” the mens rea requirement. (Id. at p. 808.)

Applying these principles, People v. Banks, supra, 

61 Cal.4th at pages 805 to 807 held the evidence was insufficient 

to establish the defendant, a getaway driver in an armed robbery 

that resulted in a fatal shooting, was a major participant in the 

robbery or acted with reckless indifference to human life. The
13

defendant did not qualify as a major participant because there

was no evidence that he planned the robbery, had any role in

procuring weapons, knew whether his confederates had 

committed prior violent crimes, was present at the scene of the 

crime, or could have prevented the shooting from occurring. (Id. 

at p. 805.) The defendant’s awareness of the risk of death 

inherent in an armed robbery was insufficient to show reckless 

indifference because there was no evidence that he “knew his own 

actions would involve a grave risk of death.” (Id. at p. 807.)

The following year, in People v. Clark, supra, 63 Cal.4th at 

pages 616 to 618, the Supreme Court further elaborated on the 

mental state required to demonstrate reckless indifference to 

human life. As the court explained, the reckless indifference 

element of a felony-murder special circumstance finding 

“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.” (Id.

at p. 617.) The requisite state of mind is “ ‘implicit in knowingly 

engaging in criminal activities known to carry a grave risk of 

death.’ ” (Id. at p. 616.) Reckless indifference to human life thus 

has both a subjective and objective component. (Id. at p. 617.) 

Subjectively, the defendant must consciously disregard risks 

known to him or her. (Ibid.) Objectively, recklessness is 

determined by “what ‘a law-abiding person would observe in the 

actor’s situation,’ ” that is, whether the defendant’s conduct 

“ ‘involved a gross deviation from the standard of conduct that a 

law-abiding person in the actor’s situation would observe.’ ” 

(Ibid.) The fact that a robbery involved a gun, by itself, is 

insufficient to support a finding of reckless indifference to human 

life. (Id. at p. 617.)
14

People v. Clark, supra, 63 Cal.4th 522 also provided a 

nonexclusive list of factors to consider in evaluating whether a 

defendant acted with reckless indifference to human life: “Did 

the defendant use or know that a gun would be used during the 

felony? 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?” (In re 

Scoggins, supra, 9 Cal.5th at p. 677 [listing factors set forth in 

Clark, at pp. 618–623].) Like the Banks factors, “ ‘[n]o one of 

these considerations is necessary, nor is any one of them 

necessarily sufficient.’ ” (Clark, at p. 618.)

Applying these factors, People v. Clark, supra, 63 Cal.4th at 

pages 612 and 614 held there was insufficient evidence to support 

a finding that the defendant, the “mastermind” who planned and 

organized a store robbery that ended in a fatal shooting, acted 

with reckless indifference to human life. Despite the defendant’s

significant involvement in planning the crime, the evidence 

showed he attempted to minimize the likelihood of violence by 

timing the robbery to occur after the store was closed and 

planning the use of one unloaded gun. (Id. at pp. 621–622.) At 

the time of the shooting, the defendant was not present in the 

store, was unaware that the shooter had loaded the gun with a 

single bullet, and had no prior knowledge that the shooter was 

likely to engage in violence. (Id. at pp. 619–621.) The court thus

concluded that there was “nothing in the plan that one can point 
15

to that elevated the risk to human life beyond those risks 

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

More recently, our Supreme Court considered the reckless 

indifference element of section 190.2, subdivision (d) in In re 

Scoggins, supra, 9 Cal.5th 667. The Scoggins court held the 

evidence was insufficient to establish that the defendant acted 

with reckless indifference to human life where he planned an 

unarmed assault and robbery and one of his accomplices deviated 

from the plan and killed the victim. (Id. at p. 676.) The victim 

previously had swindled the defendant in a sales transaction, and 

to exact revenge, the defendant recruited two friends to ambush 

the victim, “ ‘beat the shit’ ” out of him, and retrieve the 

defendant’s money. (Id. at p. 671.) As planned, the attack took 

place in a strip mall parking lot while the defendant waited at a 

nearby gas station. When the victim arrived, however, one of the

defendant’s accomplices unexpectedly pulled out a gun and shot 

him. (Id. at pp. 671–672.) The defendant had no knowledge a 

gun would be used in the attack or that his accomplices were 

likely to engage in lethal force, was not present at the scene of 

the shooting or in a position to restrain the shooter, and had 

attempted to minimize the risk of death by planning for the 

assault to occur in a public place in broad daylight. (Id. at 

pp. 677–678, 681–683.) Based on these facts, the court concluded 

the defendant “did not ‘knowingly creat[e] a “grave risk of 

death.” ’ ” (Id. at p. 683.)

In challenging the trial court’s finding that he acted with 

reckless indifference to human life, Maldonado argues that the 
16

evidence merely reflected a plan to commit a garden-variety 

armed robbery of a pizza delivery man in which no one was 

supposed to be injured or killed. Maldonado further asserts that 

he had no prior knowledge that any of his cohorts were likely to 

engage in violence, and that he had no opportunity to intervene 

because the shooting occurred impulsively after he had already

walked away. Maldonado thus contends that there was nothing 

about his own actions in planning or carrying out the robbery

that contributed to a heightened risk of death. We disagree. 

Based on the totality of the evidence before the trial court, its 

finding that Maldonado acted with reckless indifference to 

human life was supported by substantial evidence.

The evidence showed that Maldonado participated in 

the planning of an armed robbery during which the potential

for deadly force was expressly contemplated. While Maldonado 

did not conceive of the idea to rob a pizza delivery man, he was 

present when the details of the plan were formulated and the 

roles in the robbery were assigned. As described by Gandara, all 

seven members of the group, including Maldonado, were in favor 

of the plan, and further agreed that a rifle should be used. 

Although Zamorano at one point said that no one was supposed 

to get hurt, he also told the group that, if the pizza delivery man 

“pulls out a gun or he tries to . . . defend himself, they were going 

to shoot him.”

The evidence further demonstrated that Maldonado was 

physically present at the robbery during the entire sequence of

events that resulted in the victim’s death. After lying in wait for 

the victim on a secluded street, Maldonado actively participated 

in the robbery by searching the victim’s pockets and taking his 

money while Zamorano held him at gunpoint. When the victim 
17

refused to comply with Zamorano’s repeated demands to turn 

around, Maldonado grabbed the victim by his arm and turned 

him so that he was directly facing Zamorano. Maldonado was 

also present when Zamorano walked around the victim, told the

victim that he knew he was “going to snitch,” and then shot the 

victim three times in the back. While Maldonado contends that 

he had already walked away from the scene when Zamorano fired 

the shots, the record does not support his claim. Rather, 

Gandara recounted that both Maldonado and Garcia “were 

standing there” as Zamorano shot the victim, and the victim fell 

to the ground. 

As the Supreme Court observed in People v. Clark, supra, 

63 Cal.4th at page 619, “[p]roximity to the murder and the events 

leading up to it may be particularly significant where . . . the 

murder is a culmination or a foreseeable result of several 

intermediate steps, or where the participant who personally 

commits the murder exhibits behavior tending to suggest a 

willingness to use lethal force. In such cases, ‘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 more at fault for the resulting murders.’ ”

In this case, Maldonado’s presence at the scene gave him 

an opportunity to observe Zamorano’s escalating violence and to 

intervene by either restraining Zamorano or rendering aid to the 

victim. Maldonado did neither. When Zamorano threatened to 

shoot the victim in the back if he did not turn around and face 

him, Maldonado did not try to calm Zamorano down or dissuade 
18

him from carrying out his threat. Instead, Maldonado forced the 

victim to turn around. While Maldonado asserts that he was 

trying to minimize the risk of violence by making the victim 

comply with Zamorano’s demand, a rational factfinder could

conclude otherwise. Given the sequence of events, it reasonably 

could be inferred that Maldonado placed the victim at greater 

risk of harm by turning him around because it forced the victim 

to come face to face with the perpetrator holding the firearm, 

and increased the likelihood that the victim could identify him. 

Indeed, once the victim was facing Zamorano with the rifle 

pointed at his stomach, Zamorano appeared to become more 

agitated because he believed the victim was “going to snitch.” 

Maldonado again did nothing to intervene, and instead stood by 

as Zamorano continued to act in a menacing manner toward the 

victim before shooting him in the back. 

Maldonado’s conduct after the shooting further supported 

a finding that he consciously disregarded the grave risk of death 

that resulted from his actions. Although he was present at the 

scene when Zamorano shot the victim, Maldonado did not call for 

assistance or attempt to render aid. Instead, Maldonado fled 

with his companions in the getaway car. Maldonado argues that

he reasonably could have believed there was nothing he could do

to help given that the victim had been shot three times at close 

range. According to Gandara, however, “[n]obody thought [the 

victim] was dead.” Moreover, there was no evidence that 

Maldonado expressed any concern for the victim’s welfare after 

the shooting. To the contrary, the evidence showed that everyone 

in the group laughed about the shooting as they fled the scene, 

and that they spent the next few hours splitting the proceeds of 

the robbery and eating the pizza that they had taken from the 
19

victim. As described by Gandara, “[a]ll of us were in the car, and 

we all knew what happened. And we were eating the pizzas, and 

we were all laughing about it.” 

From this evidence, the trial court reasonably could find 

that Maldonado exhibited a reckless indifference to human life. 

The cases on which Maldonado relies in challenging the reckless 

indifference finding are readily distinguishable. In each of those 

cases, the defendant was not present at the scene of the killing 

or in a position to act as a restraining influence. (See, e.g., In re 

Taylor (2019) 34 Cal.App.5th 543, 559 [although defendant “was 

parked on the street near where the killing occurred, he never got 

out of the car and had no opportunity to prevent the shooting”]; 

In re Ramirez (2019) 32 Cal.App.5th 384, 404, 405 [defendant 

“was not at the immediate location of the killing,” and was not

“close enough to exercise a restraining effect on the crime or his 

colleagues”]; In re Bennett (2018) 26 Cal.App.5th 1002, 1024

[where defendant was across the street from the shooting, he 

“was never in close enough proximity to act as a restraining 

influence”]; In re Miller (2017) 14 Cal.App.5th 960, 975

[defendant was “absent from the scene of the killing, and 

therefore had no opportunity to stop it or to help” the victim].) 

In contrast, Maldonado was present at the scene and in 

close proximity to Zamorano as the events leading to the victim’s 

death unfolded, which allowed him to observe how the risk of 

violence was escalating. Maldonado also had an opportunity to 

intervene as Zamorano considered whether to kill the victim, but 

he never made any attempt to stop the shooting or to assist the 

victim. In that critical respect, Maldonado is more akin to the 

defendants whose failure to act as a restraining influence on 

their cohorts supported a finding of reckless indifference to 
20

human life. (See, e.g., In re Parrish (2020) 58 Cal.App.5th 539, 

544 [although defendant “had the opportunity . . . to restrain [his] 

murderous partners and to help the victim,” he “did not take 

these opportunities”]; In re McDowell (2020) 55 Cal.App.5th 999, 

1014 [“there was a brief but critical opportunity for [defendant] to 

say or do something to deescalate the situation,” but instead “he 

remained silent”]; People v. Law (2020) 48 Cal.App.5th 811, 825, 

review granted July 8, 2020, S262490 [where defendant was “at 

the scene of the shooting, he could have tried to stop his 

accomplice’s violent behavior or to help the victim once he had 

been shot, but he did neither”]; In re Loza (2017) 10 Cal.App.5th 

38, 54 [defendant “neither intervened to dissuade [his cohort] 

from shooting either [victim] nor came to either [victim]’s aid 

after the shooting”].) 

Considering the totality of the record in this case, the 

evidence was sufficient to support the trial court’s finding that 

Maldonado was a major participant in the robbery and acted with 

reckless indifference to human life. Because Maldonado was not 

entitled to relief under section 1170.95, the trial court did not err 

in denying his petition. 
21

DISPOSITION

The order denying Larenzo Ricardo Maldonado’s Penal 

Code section 1170.95 petition is affirmed. 

NOT TO BE PUBLISHED. 

HILL, J.*

We concur:

EDMON, P. J.

EGERTON, J.

* Judge of the Superior Court of Santa Barbara County, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.