Filed 1/9/23 P. v. Jackson CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL EARL JACKSON,

Defendant and Appellant.

 B316630

 (Los Angeles County

 Super. Ct. No. A377082)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark Hanasoso, Judge. Affirmed.

Joanna Rehm, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael C. Keller and John Yang, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Forty years ago, when Michael Earl Jackson was 22 years 

old, a court convicted him on one count of first degree murder and 

two counts of robbery and found true a firearm allegation. The 

court sentenced him to a prison term of 25 years to life. We

affirmed Jackson’s convictions. (People v. Jackson (Oct. 15, 1984,

B001322) [nonpub. opn.].) 

In 2018 the Legislature enacted Penal Code section

1170.951 (now section 1172.6), which, as amended effective 

January 1, 2022, authorizes certain individuals convicted of 

murder under the felony-murder rule or murder, attempted

murder, or voluntary manslaughter under the natural and 

probable consequences doctrine to petition for resentencing. 

Jackson filed a petition for resentencing under section 1172.6, 

alleging facts that made him eligible for relief. After finding 

Jackson had made a prima facie showing he was entitled to relief, 

the superior court issued an order to show cause, held an 

evidentiary hearing, and denied the petition. Jackson argues

substantial evidence did not support the court’s finding beyond a 

reasonable doubt he acted with reckless indifference to human 

life, within the meaning of section 190.2, subdivision (d). We 

affirm.

1 Statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. A Court Convicts Jackson on One Count of Murder

and Two Counts of Robbery

One afternoon in February 1982, while driving a stolen car 

with companions nicknamed “Cal,” “Binky,” and “Rossi,” Jackson

began to follow the car in front of him. Binky suggested they 

steal the car’s hubcaps, and Cal said he wanted to take the 

hydraulics. Jackson followed the car for approximately 25 blocks, 

waiting for the car to stop, but when Jackson saw his car was 

running low on gasoline, he came up with the idea to “bump” the 

car to get the driver to stop. Jackson executed his plan by rearending the car, and the car stopped. The driver, Javier Razo, got 

out of the car, and Cal, Binky, and Rossi got out of Jackson’s car. 

Cal walked to the rear of Razo’s car, and Binky and Rossi walked 

up to the passenger side. Cal had a .22 caliber revolver, Binky 

had a .32 or .38 caliber gun (of some unspecified kind), and Rossi 

had a .22 or a .32 caliber revolver. Cal fired a shot in the air and 

said to Razo, “I am taking your car.” Razo moved closer to Cal 

and reached for Cal’s gun. Cal shot Razo in the chest, and Razo

fell into the street. 

Razo’s wife, Angelita Razo, got out of the car. Binky 

pushed her away and got into Razo’s car through the passenger 

side. Cal and Rossi jumped back into Jackson’s car. Binky drove 

Razo’s car away from the scene of the shooting, and Jackson 

followed.

The four men reconvened at an abandoned church next to

the house of Jackson’s girlfriend. Binky and Cal began to discuss 

how much money they hoped to make selling the parts of Razo’s 

car. Jackson said, “Man, come on, leave that car alone. If you’re 
4

going to do anything to that car, you best get it away from here.” 

When Binky began to look through Angelita’s credit cards, 

Jackson told him to put all of Angelita’s items in a plastic bag 

and get rid of them because, Jackson explained, “you don’t leave 

evidence behind, just in case the police might come.” Jackson 

decided his companions should take Razo’s car “across town” if 

they wanted to strip it. Jackson and Cal went to a nearby liquor 

store. When they returned, Binky gave Jackson $15 he found in 

Angelita’s purse. 

Jackson later learned Razo had died. Jackson asked his 

friends to bring his bags to the airport, and Jackson took a flight 

to Chicago. 

Eight months later, Jackson returned to Los Angeles

because he was trying to “do good.” Arturo Zorrilla, the detective 

who investigated the crimes in this case, arrested Jackson and 

interviewed him at the police station. After Zorrilla advised him

of his constitutional rights under Miranda v. Arizona (1966) 384 

U.S. 436, Jackson signed and dated a Miranda advisement form. 

Detective Zorrilla then questioned Jackson about the events in 

February 1982, wrote down Jackson’s responses, and read the 

responses back to Jackson. Jackson signed “each and every page 

after [his] statement was read back to him.” 

The People charged Jackson with one count of first degree 

murder and two counts of robbery. The People also alleged that 

Jackson committed the murder while he was engaged in the 

commission of robbery, within the meaning of section 190.2, 

subdivision (a)(17), and that a principal was armed with a 

firearm in the commission of the robberies, within the meaning of 

section 12022, subdivision (a). 
5

At the nonjury trial the trial court reviewed Jackson’s

written statement and the preliminary hearing transcript. The 

preliminary hearing transcript included the testimony of 

Detective Zorrilla, who described the procedure he followed to 

record Jackson’s statement and related what Jackson told him in 

the interview. The preliminary hearing transcript also included 

the testimony of Angelita, who testified that, when Razo stopped 

at a red light, “another car came and crashed into ours from the 

back.” Angelita stated Razo put the car in park, got out, and 

walked to the rear of his car, toward Jackson’s car. Angelita 

testified one of the passengers in Jackson’s car got out and began 

to speak with Razo. Angelita said she “saw that it was taking [a]

long [time]” and decided to get out of the car with her baby. She 

heard Jackson’s passenger, who had a gun, say a “bad word” to 

Razo. Angelita stated she saw a second passenger get out of 

Jackson’s car with a “pistol” in his hand, point it at Razo, and 

shoot him. Angelita recalled that the shooter, after shooting 

Razo, fired a shot into the air. Angelita said that she saw 

Jackson’s passengers drive off in Razo’s car and that Jackson 

“was laughing” as he followed them in his car.

The court found Jackson guilty of first degree murder but 

found not true the special circumstance allegation under section 

190.2, subdivision (a)(17).2 The court also found Jackson guilty 

on two counts of robbery and found true the firearm allegation 

2 At the time of Jackson’s trial, the felony-murder special 

circumstance “required an intent to kill.” (People v. Banks (2015) 

61 Cal.4th 788, 798; see Carlos v. Superior Court (1983) 35 Cal.3d 

131, 135, overruled on another ground in People v. Anderson

(1987) 43 Cal.3d 1104.)
6

under section 12022, subdivision (a). The court sentenced 

Jackson to prison for a term of 25 years to life for the murder of 

Razo and a concurrent term of five years for the robbery of 

Angelita. The court also imposed and stayed execution of a fiveyear term for the robbery of Razo, plus one year for the firearm 

enhancement. 

B. Jackson Files a Petition Under Section 1172.6, and 

the Superior Court Denies It

In January 2019 Jackson filed a petition for resentencing 

under section 1172.6. Using a preprinted form, Jackson alleged 

that he was convicted of first or second degree murder under the 

felony-murder rule or the natural and probable consequences 

doctrine and that he “could not now be convicted of 1st or 2nd 

degree murder because of changes made to Penal Code §§ 188 

and 189, effective January 1, 2019.” Jackson alleged that he “was 

not a major participant in the felony” and that he “did not act 

with reckless indifference to human life during the course of the 

crime or felony.” 

The People filed an informal response, arguing Jackson 

devised the plan to “crack” Razo’s car, knew there were firearms 

in the car, was present at the scene of the shooting, “made good 

the escape of the actual killer,” accompanied the other 

participants to a location where they stripped (or made plans to 

strip) the car, and did nothing to prevent the shooting or assist 

Razo or his family. The superior court issued an order to show 

cause. 

At the evidentiary hearing, the court admitted the 

transcript of the preliminary hearing, the transcript of the 

sentencing hearing, minute orders from the court’s file, Jackson’s 
7

1982 statement as recorded by Detective Zorrilla, the probation 

officer’s report, and the opinion from Jackson’s direct appeal.

3

The prosecutor argued, among other theories, Jackson could still 

be convicted of felony murder as a major participant who acted 

with reckless indifference to human life under People v. Banks

(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark).4 Counsel for Jackson questioned the 

reliability of Jackson’s statement to Detective Zorrilla and argued 

the prosecutor failed to prove beyond a reasonable doubt Jackson 

was ineligible for resentencing. 

The superior court denied Jackson’s petition. The court 

considered each of the factors in Banks, supra, 61 Cal.4th 788 

and Clark, supra, 63 Cal.4th 522 and found beyond a reasonable 

3 Jackson does not argue the superior court erred in 

admitting any of these documents.

4 In Banks, supra, 61 Cal.4th 788 the Supreme Court held 

the special circumstance allegation under section 190.2, 

subdivision (d), which provides for increased punishment for 

certain aiders and abettors of first degree felony murder, requires 

that 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, at p. 801.) The Supreme 

Court also held the defendant’s “personal involvement must be 

substantial” and listed several factors courts should consider in 

determining whether a defendant was a “major participant” in 

the commission of a crime. (Id. at p. 802.) In Clark, supra, 

63 Cal.4th 522 the Supreme Court listed factors to “aid [the] 

analysis” of whether the defendant “exhibited ‘reckless 

indifference to human life’ within the meaning of section 190.2, 

subdivision (d).” (Id., at p. 618.)
8

doubt Jackson could still be convicted of first degree murder 

because he “was a major participant in the robbery underlying 

the felony murder of Razo and acted with reckless indifference to 

human life.” Jackson timely appealed. 

DISCUSSION

A. Section 1172.6

Effective 2019, the Legislature substantially modified the 

law governing accomplice liability for murder, eliminating the 

natural and probable consequences doctrine as a basis for finding 

a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 

830, 842-843) and significantly narrowing the felony-murder 

exception to the malice requirement for murder (§§ 188, subd. 

(a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 

707-708; People v. Lewis (2021) 11 Cal.5th 952, 957).5 Section 

188, subdivision (a)(3), now prohibits imputing malice based 

solely on an individual’s participation in a crime and requires 

proof of malice to convict a principal of murder, except under the 

revised felony-murder rule in section 189, subdivision (e). The 

latter provision requires the People to prove specific facts relating 

to the defendant’s individual culpability: The defendant was the 

actual killer (§ 189, subd. (e)(1)); the defendant, though not the 

5 The Legislature subsequently amended former section 

1170.95, subdivision (a), to allow persons convicted of attempted 

murder under the natural and probable consequences doctrine to 

petition for resentencing. (See People v. Coley (2022) 

77 Cal.App.5th 539, 544.) The Legislature later renumbered 

section 1170.95 to section 1172.6 without changing the text of the 

statute. (See People v. Strong, supra, 13 Cal.5th at p. 708, fn. 2.)
9

actual killer, with the intent to kill assisted in the commission of 

the murder (§ 189, subd. (e)(2)); or the defendant was a major 

participant in a felony listed in section 189, subdivision (a), and 

acted with reckless indifference to human life, “as described in 

subdivision (d) of Section 190.2,” the felony-murder specialcircumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708; 

Gentile, at pp. 842-843.)

Section 1172.6 authorizes an individual convicted of felony 

murder or murder based on the natural and probable 

consequences doctrine to petition the superior court to vacate the 

conviction and be resentenced on any remaining counts if he or 

she could not now be convicted of murder because of the changes 

the Legislature made in 2018 to the definitions of the crime. (See 

People v. Strong, supra, 13 Cal.5th at p. 708; People v. Lewis, 

supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at 

p. 843.) As the Supreme Court clarified in Lewis, and as 

amendments to the statute made explicit, if a section 1172.6

petition contains all the required information, the court must 

appoint counsel to represent the petitioner if requested. (Lewis, 

at pp. 962-963; see § 1172.6, subds. (b)(1)(A), (3).) The prosecutor 

must then file a response to the petition, the petitioner may file a 

reply, and the court must hold a hearing to determine whether 

the petitioner has made a prima facie showing he or she is 

entitled to relief. (§ 1172.6, subd. (c).)

Where, as here, the petitioner has made the requisite 

prima facie showing he or she is entitled to relief under section 

1172.6, the court must issue an order to show cause and hold an 

evidentiary hearing to determine whether to vacate the murder 

conviction and resentence the petitioner on any remaining 

counts. (§ 1172.6, subd. (d)(1).) At that hearing the court may 
10

consider evidence “previously admitted at any prior hearing or 

trial that is admissible under current law,” including witness 

testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the 

prosecutor may also offer new or additional evidence. (Ibid.; see

Gentile, supra, 10 Cal.5th at pp. 853-854.)

On appeal from an order denying a petition under section 

1172.6, we review the trial court’s factual findings for substantial 

evidence. (People v. Richardson (2022) 79 Cal.App.5th 1085, 

1090; People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) 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.’” [Citation.] 

Our job on review is different from the trial judge’s job in 

deciding the petition. While the trial judge must review all the 

relevant evidence, evaluate and resolve contradictions, and make 

determinations as to credibility, all under the reasonable doubt 

standard, our job is to determine whether there is any 

substantial evidence, contradicted or uncontradicted, to support a 

rational fact finder’s findings beyond a reasonable doubt.” 

(People v. Clements (2022) 75 Cal.App.5th 276, 298; see 

Richardson, at p. 1090.) “‘Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence.’” (People v. Brooks (2017) 3 Cal.5th 1, 57; see 

People v. Nieber (2022) 82 Cal.App.5th 458, 476.)
11

B. Determining Whether a Defendant Was a Major 

Participant and Acted with Reckless Indifference to 

Human Life

As discussed, section 189, subdivision (e)(3), provides that a 

participant in one of the felonies listed in section 189, 

subdivision (a), may be liable for murder if the prosecution proves 

he or she “was a major participant in the underlying felony and 

acted with reckless indifference to human life,” within the 

meaning of section 190.2, subdivision (d). (See People v. Strong, 

supra, 13 Cal.5th at p. 708; Gentile, supra, 10 Cal.5th at pp. 842-

843.) The Supreme Court in Banks, supra, 61 Cal.4th 788 and 

Clark, supra, 63 Cal.4th 522 “clarified the meaning of the special 

circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 676 

(Scoggins); see People v. Ramirez, supra, 71 Cal.App.5th at 

p. 986.)

Considerations that “may play a role in determining 

whether a defendant’s culpability is sufficient” for a finding he or 

she was a major participant under section 190.2, subdivision (d), 

include: “What role did the defendant have in planning the 

criminal enterprise that led to one or more deaths? What role did 

the defendant have in supplying or using lethal weapons? What 

awareness did the defendant have of 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, supra, 61 Cal.4th at p. 803, 

fn. omitted; see People v. Mitchell (2022) 81 Cal.App.5th 575, 591
12

(Mitchell); People v. Ramirez, supra, 71 Cal.App.5th at p. 986, 

fn. 10.) 

“Reckless indifference to human life has a subjective and 

an objective element. [Citation.] As to the subjective element, 

‘[t]he defendant must be aware of and willingly involved in the 

violent manner in which the particular offense is committed,’ and 

he or she must consciously disregard ‘the significant risk of death 

his or her actions create.’ [Citations.] As to the objective 

element, ‘“[t]he risk [of death] must be of such a nature and 

degree that, considering the nature and purpose of the actor’s 

conduct and the circumstances known to him [or her], its 

disregard involves a gross deviation from the standard of conduct 

that a law-abiding person would observe in the actor’s 

situation.”’” (Scoggins, supra, 9 Cal.5th at p. 677.)

To determine whether a defendant exhibited reckless 

indifference to human life under section 190.2, subdivision (d),

courts consider, among other factors, the following: “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?” (Scoggins, 

supra, 9 Cal.5th at p. 677; see Clark, supra, 63 Cal.4th at 

pp. 618-623.) 

The requirements for finding major participation and 

reckless indifference to human life “‘significantly overlap . . . in 
13

general, for the greater the defendant’s participation in the felony 

murder, the more likely that he acted with reckless indifference 

to human life.’” (Clark, supra, 63 Cal.4th at p. 615; see People v. 

Owens (2022) 78 Cal.App.5th 1015, 1023.) “No one of these 

considerations is necessary, nor is anyone one of them necessarily 

sufficient.” (Banks, supra, 61 Cal.4th at p. 803; see Clark, at 

p. 618.) “We analyze the totality of circumstances” (Scoggins, 

supra, 9 Cal.5th at p. 677; see Mitchell, supra, 81 Cal.App.5th at 

p. 592) to determine whether Jackson acted with reckless 

indifference to human life. 

C. Substantial Evidence Supported the Superior Court’s 

Finding Jackson Acted with Reckless Indifference to 

Human Life

Jackson does not challenge the superior court’s finding he 

was a major participant, within the meaning of section 190.2, 

subdivision (d).6 The only issue is whether substantial evidence 

supported the court’s finding Jackson acted with reckless 

indifference to human life. And substantial evidence supported

that finding.

Virtually all of the factors under Clark, supra, 63 Cal.4th at 

pages 618 to 623 supported the court’s finding Jackson acted with 

6 In his reply brief, Jackson suggests his actions “were no 

more than acts of an ordinary aider and abettor to an armed 

robbery.” (See Banks, supra, 61 Cal.4th at p. 802 [“a defendant’s 

personal involvement must be substantial, greater than the 

actions of an ordinary aider and abettor to an ordinary felony 

murder”].) To the extent Jackson may be arguing for the first 

time on reply he was not a major participant, he has forfeited the 

argument. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218-

1219.) 
14

reckless indifference to human life; none supported a contrary 

finding. First, as Jackson’s 1982 statement demonstrated, even 

before Jackson crashed into Razo’s car, he knew his accomplices 

were armed. He identified for Detective Zorrilla the type of guns

Cal, Binky, and Rossi were carrying, from which the superior 

court could reasonably infer Jackson knew they were armed

when they got out of his car. By the time Cal fired a warning 

shot, Jackson undoubtedly knew not only that Cal had a gun, but 

also that he was willing to use it. Jackson, sitting in the driver’s 

seat, had a clear view of Cal and Razo, who stood on the driver’s 

side of Razo’s car, directly in front of him. (See In re McDowell

(2020) 55 Cal.App.5th 999, 1013 (McDowell) [the first factor for 

determining reckless indifference to human life “cut[ ] against” 

the defendant because the evidence showed he knew, “no later 

than the warning shot,” his accomplice “was both carrying and 

willing to fire a gun”].) That his companions ultimately used 

more than one firearm to rob Razo and Angelita further

supported the superior court’s finding. (See People v. Bradley

(2021) 65 Cal.App.5th 1022, 1033 [“defendants were aware they 

all had firearms and used them during the attempted robbery”]; 

cf. Clark, supra, 63 Cal.4th at p. 619 [evidence “showed only that 

there was one gun at the scene”].) 

Second, Jackson was physically present at the scene of the 

crime. He had an opportunity to prevent the shooting, and later 

an opportunity to come to the aid of Razo; he did neither. 

Jackson did not yell out the window or get out of his car to 

encourage his confederates to retreat from the escalating 

confrontation. Jackson did not intervene after he heard Cal’s

warning shot or Cal’s statement to Razo that he was going to 

take his car. And Jackson remained at his post, behind the 
15

steering wheel, when Angelita got out of Razo’s car with her

baby. According to Angelita, Razo put his car in park after the 

collision, so that Jackson was no more than a few feet from Cal 

and Razo and in a prime position to intercede. Jackson, however,

did nothing. (See Mitchell, supra, 81 Cal.App.5th at pp. 592-593 

[defendant “could have rejected the planned crime or could have 

adjusted the method to take victim welfare into account,” and his 

failure to do either supported the finding he acted with reckless 

indifference to human life]; McDowell, supra, 55 Cal.App.5th at 

p. 1014 [after the defendant’s accomplice fired a warning shot, 

“there was a brief but critical opportunity” for the defendant “to 

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

remained silent”]; In re Loza (2017) 10 Cal.App.5th 38, 53 

[defendant’s companion “made clear his intent to shoot” by 

counting down from five, which afforded the defendant “the time 

to observe and react before the murder”]; see also Clark, supra, 

63 Cal.4th at p. 619 [“where the participant who personally 

commits the murder exhibits behavior tending to suggest a 

willingness to use lethal force,” 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’”].) 

Third, Jackson was callously indifferent to the fact a man 

had been shot, in the chest, in front of his wife and child. 

Jackson did not call 911, try to get or render aid, or drive Razo to 

a hospital. Instead, Jackson laughed as he drove off with his 

confederates, leaving Razo to die in the street, and reconvened

with his companions to collect his share of the robberies’ 

proceeds. And by stealing Razo’s car, Jackson increased the risk 

Razo would die from his wounds by depriving Angelita of the

means to take Razo to a hospital. (See In re Loza, supra, 
16

10 Cal.App.5th at p. 54 [defendant’s failure to aid the victim after 

the shooting and his subsequent flight supported the finding he 

acted with reckless indifference to human life].)

Fourth, Jackson knew his confederates were likely to 

commit a violent crime and use lethal force. “A defendant’s 

knowledge of factors bearing on a cohort’s likelihood of killing” 

may be “evident before the felony or may occur during the 

felony.” (Clark, supra, 63 Cal.4th at p. 621.) As discussed, 

Jackson saw Cal brandish his weapon before shooting Razo. (See 

People v. Owens, supra, 78 Cal.App.5th at p. 1024 [“even if 

appellant did not know of [his confederate’s] proclivity for 

violence before the robbery, it is reasonable the trial court could 

have inferred that knowledge became evident to appellant during

the robbery”].) Jackson also knew the specific calibers and kinds

of firearms Cal, Binky, and Rossi carried that day, from which 

the superior court could reasonably infer that carrying firearms 

was the norm for all four men. During the robberies, Jackson 

remained in his car, ready to flee with his companions, and 

watched as the violence unfolded. And after the shooting, 

Jackson reacted, not with surprise, outrage, panic, or remorse, 

but with laughter. 

Fifth, Jackson made no effort to minimize the risks of 

violence during the robbery. Jackson did not suggest his 

companions leave their firearms in the car, nor did he get out of 

the car to try to defuse the situation. To the contrary, Jackson 

provoked the confrontation with Razo by deliberately crashing 

his car into Razo’s car. (Cf. Scoggins, supra, 9 Cal.5th at p. 679 

[defendant “had planned for the beating and robbery to be 

unarmed”]; Clark, supra, 63 Cal.4th at pp. 621-622 [“there were 

not supposed to be any bullets in the gun”].) In addition, even 
17

after Angelita got out of the car with her baby, Jackson stayed in

his seat, positioned to make a quick getaway with his friends. 

Jackson’s failure to restrain Cal at that point confirms he was not 

concerned about the increased danger and risk of death to Razo 

and his family. (See In re Harper (2022) 76 Cal.App.5th 450, 466 

[although the defendant “may not have had the opportunity to 

minimize the risk of violence during the planning stage, he did 

nothing to minimize the risk of violence when it became clear the 

original plan had unraveled”].)7 In sum, substantial evidence 

supported the superior court’s findings that, under the totality of 

the circumstances, Jackson consciously disregarded “‘the 

significant risk of death’” his actions created and that his conduct 

grossly deviated from the standard of conduct of a law-abiding 

person. (See Scoggins, supra, 9 Cal.5th at p. 677.) 

Jackson asserts there was no evidence “he had the ability 

to intervene in time to stop a shooting.” But there was. Unlike 

the defendants in other cases who could not have intervened 

because they were not present at the scene of the shooting, 

Jackson was at the scene, no more than a car’s length away from

Cal and Razo. (Cf. Scoggins, supra, 9 Cal.5th at p. 678 

7 The sixth factor, the duration of the robbery, does not 

necessarily support or undercut the superior court’s finding 

Jackson acted with reckless indifference to human life. (See 

Clark, supra, 63 Cal.4th at p. 620 [“Where a victim is held at 

gunpoint . . . in the presence of perpetrators for prolonged 

periods, ‘there is a greater window of opportunity for violence’ 

[citation], possibly culminating in murder.”].) It is not clear from 

the record how much time elapsed between the traffic collision 

and Cal’s fatal shot. The evidence indicates the initial encounter 

between Cal and Razo lasted, in Angelita’s words, “a long time,” 

but it is not clear when Cal and Binky drew their weapons. 
18

[defendant, who remained at a nearby gas station during the 

course of the crime, “was not in a position to restrain” the 

shooter]; Banks, supra, 61 Cal.4th at p. 807 [defendant “did not 

see the shooting happen, did not have reason to know it was 

going to happen, and could not do anything to stop the shooting

or render assistance”]; In re Taylor (2019) 34 Cal.App.5th 543, 

559 [defendant “could not even see” the shooter’s interaction with 

the victim]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025-1026 

[defendant “was across the street” and “did not see or know if 

anyone was shot or hurt”].) Jackson had the opportunity and 

ability to intervene; he just chose not to.

In re Moore (2021) 68 Cal.App.5th 434, cited by Jackson, is 

distinguishable. In that case the defendant and his cohorts

planned to steal an unoccupied car in a parking lot. (Id. at 

pp. 440-441.) After the group stole the car, one of the defendant’s 

companions accosted three people passing through the parking 

lot, robbed them at gunpoint, and killed one of them. (Ibid.) 

There was no evidence the defendant planned to commit these

additional crimes, and the record suggested there was at least 

some distance between the defendant, who sat in the driver’s 

seat, and the deadly encounter, which occurred outside on the 

passenger’s side of the car. (Ibid.) Here, the evidence showed the 

confrontation between Cal and Razo occurred directly in front of 

Jackson, on the driver’s side of Razo’s car.

Referring to two cases decided by the United States 

Supreme Court, Jackson asserts he “lies closer to the Enmund

end of the spectrum, and not the Tison end.” In Enmund v. 

Florida (1982) 458 U.S. 782 [102 S.Ct. 3368] the only evidence 

implicating the defendant in two murders during the course of a 

robbery was “the inference” he “was the person in the car by the 
19

side of the road at the time of the killings, waiting to help the 

robbers escape.” (Id. at p. 788.) The United States Supreme 

Court held the Eighth Amendment did not allow a court to 

impose the death penalty on a defendant “who does not himself 

kill, attempt to kill, or intend that a killing take place or that 

lethal force will be employed.” (Id. at p. 797.) In Tison v. Arizona

(1987) 481 U.S. 137 [107 S.Ct. 1676] the United States Supreme 

Court described two “subsets” of felony murders, one (as in 

Enmund) where the defendant is a “minor actor in an armed 

robbery, not on the scene, who neither intended to kill nor was 

found to have had any culpable mental state,” and the other 

where the defendant is “the felony murderer who actually killed, 

attempted to kill, or intended to kill.” (Id. at pp. 149-150.) For 

the defendants in between those two “poles,” the Supreme Court 

stated that “major participation in the felony committed, 

combined with reckless indifference to human life, is sufficient to 

satisfy the Enmund culpability requirement.” (Id. at p. 158.) 

The Supreme Court in Tison concluded each of the defendants in 

that case “was actively involved in every element of the 

kidnapping-robbery and was physically present during the entire 

sequence of criminal activity culminating in the murder of the 

[victims] and the subsequent flight.” (Id. at p. 158.)

Jackson’s substantial involvement in the robberies, his 

proximity to the shooting, and his opportunity to reduce the risk 

of a fatal shooting made him more like the defendants in Tison

than the defendant in Enmund. As discussed, Jackson provided 

direction during key moments of the armed robbery: He

masterminded the plan to cause a traffic collision to force Razo to 

stop, which left Razo and his family vulnerable to Jackson’s 

armed confederates; he sat in the driver’s seat, ready to facilitate 
20

his confederates’ flight, and watched the encounter escalate from 

a robbery to a killing without making any effort to intervene; 

instead of making an attempt to render aid to Razo, he drove 

away laughing and took his companions to a safe location to 

discuss splitting up the proceeds of the robberies; and he 

instructed his companions on how to properly dispose of the 

stolen goods and destroy incriminating evidence. Jackson, “[f]ar 

from merely sitting in a car away from the actual scene of the 

murders” (Tison, supra, 481 U.S. at p. 158), participated in every 

step of the crime and engaged in conduct “‘known to carry a grave 

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

Finally, Jackson argues the superior court erroneously 

“dismissed [his] youth as bearing on his culpability.” As the court 

correctly found, however, Jackson did not introduce any evidence

he lacked the maturity to comprehend the risks of the crimes he 

committed. (Cf. People v. Ramirez, supra, 71 Cal.App.5th at 

p. 991 [that the defendant “was influenced by peer pressure” and 

“was afraid” of the consequences if he did not aid the shooter 

“may well have affected his calculation of the risk of death posed 

by using the firearm in the carjacking”].) In fact, the record

reflects Jackson demonstrated sophistication and leadership by 

formulating the plan to force Razo to stop and instructing his 

companions on how to reduce suspicion by law enforcement. And 

unlike the defendants in the cases on which he relies (Ramirez, at 

p. 975 [15-year-old defendant]; In re Moore, supra, 68 Cal.App.5th 

at p. 453 [16-year-old defendant]; People v. Harris (2021) 

60 Cal.App.5th 939, 944 [17-year-old defendant]), Jackson was 

not a teenager; he was 22 years old. Jackson’s decision to flee the

scene (and later the state) after the crime and his subsequent 

interview with Detective Zorrilla showed he was sufficiently 
21

mature and aware that he appreciated the risks to human life his 

criminal conduct created. (See Mitchell, supra, 81 Cal.App.5th at

p. 595 [“every 18 year old understands bullet wounds require 

attention”].) As the superior court stated, “Age alone is 

insufficient to negate a mental state.” (See In re Harper, supra,

76 Cal.App.5th at p. 472 [“it is one thing to say petitioner should 

eventually be eligible for a parole hearing because he was a 

minor at the time of the offense, and quite another to say he did 

not have the maturity to have acted with reckless disregard for 

human life”].)

DISPOSITION

The order denying Jackson’s petition under section 1172.6 

is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.