Filed 7/20/23 P. v. Jones CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS JONES,

Defendant and Appellant.

 B320040

 (Los Angeles County

 Super. Ct. No. YA037935)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura C. Ellison, Judge. Affirmed.

Tracy Dressner, 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, Assistant 

Attorney General, Charles S. Lee and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Appellant Marcus Jones and his cousin, Melvin Jones 

(Melvin), robbed a small store when they were teenagers. During 

the robbery, the owner of the store was shot and killed.

Appellant and Melvin were both convicted of robbery and 

murder.

Appellant subsequently filed a petition for resentencing 

pursuant to Penal Code section 1172.6 (former section 1170.95), 

which the trial court denied after an evidentiary hearing.

1

Appellant contends the trial court’s findings that he was a major 

participant in the crime and acted with reckless indifference to 

human life are not supported by substantial evidence. We 

disagree and affirm.

FACTUAL BACKGROUND

We draw the facts below from the evidence admitted at 

appellant’s section 1172.6, subdivision (d)(3) evidentiary hearing 

pursuant to the parties’ stipulation. That evidence consisted of: 

(1) a transcript of percipient witness Antonio Ochoa’s trial 

testimony; (2) an investigatory police report from the Inglewood 

Police Department (police report); (3) a transcript of a 

surreptitiously recorded conversation between appellant and 

Melvin following their arrest shortly after the crime; (4) a 

psychiatric report prepared in 1996 to determine appellant’s 

fitness for juvenile court treatment (psychiatric report); (5) a 

transcript of appellant’s trial testimony; (6) a probation report 

prepared when appellant was sentenced; (7) the Supreme Court’s 

1 Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. We hereafter 

refer to the statute as section 1172.6. All further statutory 

references are to the Penal Code unless otherwise indicated.
3

opinion in People v. Superior Court (Jones) (1998) 18 Cal.4th 667; 

and (8) the opinion a different panel of this court issued in 

appellant’s direct appeal, People v. Jones (Sept. 25, 2001, 

B143098) [nonpub. opn.].2

I. Ochoa’s Trial Testimony

Around 7:45 p.m. on May 23, 1996, Ochoa was sweeping 

outside his workplace, the Park Avenue Market in Inglewood. 

The store’s owner, Won Hee Lee, was seated behind the counter 

inside the store, near the two cash registers. There was only one 

way into and out of the small store, and only one way to get 

behind the counter. 

Ochoa saw two black males who appeared to be about 16 or 

17 years old, later identified as appellant and Melvin, emerge 

from a “small alcove” and walk toward the store. One was 

wearing dark blue pants, and the other was wearing green pants. 

As they neared Ochoa, they covered their faces with beanies or 

masks. Ochoa said the person in the green pants drew a revolver 

from his waistband, and then both individuals “backed up and 

went inside the store.” Ochoa “had a feeling” that they “were 

robbing the store.” 

While still outside but only about four or five feet from the 

person with the gun, Ochoa looked into the store and saw that 

the person with the gun “had it on Mr. Lee, facing Mr. Lee,” with 

an outstretched arm. Ochoa lost sight of the person in the blue 

pants when he went around a freezer. Ochoa heard one of them 

say, “Okay. This is –.” As he turned to another person outside 

and told them to call the police, Ochoa heard a gunshot. About 

2 The witness testimony and psychiatric report were the only 

pieces of this evidence also admitted at appellant’s trial. 
4

30 seconds later, Ochoa saw the two males walk out of the store, 

cross the street, then start running away together. 

Ochoa saw a police officer nearby and yelled that his boss 

had been shot. He then got into his car and followed appellant 

and Melvin as they fled. After he saw them jump a fence 

surrounding an elementary school, Ochoa drove around the 

school and saw them walking into “some apartments.” By that 

time the police had arrived, and Ochoa drove back to the store, 

where he spoke to additional police officers and saw money lying 

in the doorway of the store. The police later drove Ochoa back to 

the apartments, where he identified appellant and Melvin as the 

people he had seen in the store. At trial, he identified appellant 

as the person who did not have the gun. 

II. Police Report

The police report contains the statements of several 

percipient witnesses. Three witnesses reported seeing two Black 

male teenagers near the store before the incident. Two of the 

witnesses recognized Melvin and said he was wearing black 

pants; one said she knew him to be a gang member. Another 

witness said one of the males was wearing black, and the other, 

who wore green, was “doing something near his waistband.” All 

three witnesses saw the same teens running away from the store 

a short time later. A fourth witness who lived next to the store 

heard a gunshot and then saw two Black males running away 

from the store. He said one of them was wearing green pants and 

carrying a gun. All four witnesses identified appellant and 

Melvin as the people they had seen during a field show-up. 

The police report also contains statements from officers. 

Around the time of the shooting, police officers Goodro and 

Vaselenko were near the store making an unrelated arrest. 
5

Goodro heard a gunshot and turned to see two suspects run out of 

the Park Avenue Market. One of them was holding a revolver. 

Goodro heard witnesses yelling that someone had been shot. 

Goodro chased the suspects on foot, and Vaselenko pursued them 

in the officers’ vehicle. Vaselenko saw the suspects run down a 

driveway toward an apartment building; they were detained at 

the top of the building’s staircase. 

Investigating officer and report author Harkins responded 

to the Park Avenue Market around 10:00 p.m. on May 23, 1996. 

Harkins “observed an unknown amount of U.S. paper currency on 

the floor, located west of the store’s entrance/exit.” Officer Flores, 

who was one of the first to arrive on the scene and had located 

five witnesses, told Harkins that two suspects had entered the 

store that evening, and one of them was armed with a revolver. 

Flores said the armed suspect shot Lee in the head, and “[t]he 

suspect’s [sic] then removed paper currency from the cash 

register and left the store running n/b on Park Ave.” Flores also 

reported that the suspects dropped or discarded “numerous pieces 

of evidence” between the store and the location where they were 

detained. Other officers showed Harkins a dollar bill and green 

button on the sidewalk, a green scarf and a “blue rubber masklike object” in a nearby front yard, a gray sweatshirt by the 

school, and a revolver lying in the front yard of the home next to 

the apartments where the suspects were apprehended. 

When he was arrested, appellant was wearing a gray tshirt and green sweatpants. Melvin was wearing a white t-shirt 

and black pants. The booking officer recovered $31 in cash from 

appellant’s pants pockets: two $5 bills from the left front pocket, 

and two $10 bills and one $1 bill from the right front pocket. 
6

When he was asked how much money he had, appellant told the 

officer he “should have ten dollars.” 

After he was advised of his rights under Miranda v. 

Arizona (1966) 384 U.S. 436, appellant told officers that he and 

Melvin went to Melvin’s apartment after school that day. Around 

5:00 p.m., he and Melvin went to a liquor store and got someone 

to buy them a bottle of vodka, which they shared. They then

walked around the area of the Park Avenue Market, which 

Melvin had been talking about robbing since that morning, 

“because they could get away with it here.” Appellant told 

Melvin “he wasn’t ready to do this” and tried to persuade Melvin 

not to rob the store. He also said, however, that he did not want 

Melvin to go in alone “because he didn’t want him to get shot.” 

The plan was to go into the store, tell everyone in there to 

get down on the floor, “rush the cash register,” get the money, 

and leave. Appellant “figured Melvin wouldn’t rob a liquor store 

without” a gun, and, indeed, Melvin withdrew a revolver from his 

sock right before they entered the store. Appellant did not know 

where Melvin got the gun, and he stated that “[t]he plan wasn’t 

to shoot anyone.” He also told the officers, “It never works like 

you plan.” 

Before they entered the store, appellant “put a black facial 

thing around his head” and donned one black glove. Appellant 

thought Melvin “might have put a blue beanie or something on 

his head.” Melvin then entered the store, and appellant followed, 

standing “between the doorway and the front counter.” Appellant 

“‘heard the blam’ and saw the victim fall back.” He thought 

Melvin “reached over the counter and took the money out of the 

register.” Melvin gave the money to appellant, who had about 

$17 before entering the store. Melvin and appellant then left the 
7

store and ran to Melvin’s house, hopping the fence of a nearby 

school on the way. 

Harkins attended Lee’s autopsy a few days later. The 

coroner concluded that Lee died of a single gunshot wound to the 

head. The bullet entered the left corner of Lee’s mouth and 

traveled through his teeth, tongue, and brain before coming to 

rest near his right ear. The coroner observed “stifling [sic]” and 

black powder near Lee’s mouth and concluded he was shot at 

close range “of less than eighteen inches and probably as close as 

six inches.” 

III. Surreptitious Recording

After arresting appellant and Melvin, the police placed 

them in the back of a police cruiser that had a tape recorder 

running. Appellant and Melvin proceeded to have an expletiveladen conversation about the incident. 

Appellant repeatedly told Melvin that he should not have 

“blasted” or “busted” Lee in the face. Melvin said several times 

that he “didn’t try to,” though he also said to appellant, “I don’t 

know why you even busted him, dude.” At one point, appellant 

told Melvin, “you shot that n***** in cold blood, though, cuz.” 

Later, appellant said, “I knew I shouldn’t do this shit. I tried to 

do a fuckin’ favor, ... like n***** don’t do it. You still made me go 

in there, and I couldn’t even stop you from busting that n*****. 

Fucked my life up.” Appellant also stated, “I saw you went into 

the store. I saw you blastin’ on that n***** like bam, I was like 

damn, you know what I’m saying? We can’t do shit but grab 
8

money, man, we fuckin’ just sweatin’ like . . . .” Melvin 

responded, “We got like 20 bucks, n*****.”3

Appellant said, many times in many ways, that Melvin had 

“fucked up.” He also said, however, that he did not “blame” 

Melvin, once adding, “That’s why I got hell fuckin’ drunk, so you 

can be like – you know what I’m saying, no, I don’t do that shit. I 

know you shouldn’t have fuckin’ held the gun, man. I know you 

fuckin’ shouldn’t have.” Appellant made a similar remark earlier

in the conversation, after Melvin said he “dumped” the gun “in 

the yard and shit.” Appellant responded, “n*****, we just get 

away, man. I’m on the run now, you shouldn’t have fucked up 

like that and blasted on that n***** man. I told you to give me 

the heat in the first place.” Appellant also made an additional 

comment suggesting he became intoxicated for the purpose of 

committing the robbery: “I didn’t want to do that shit, man, 

that’s why we got faded out like a mother fucker.” 

Appellant suggested several times that he and Melvin 

would not have been caught if Melvin had not lost his apartment 

3 Appellant points out in his briefing that the Supreme Court 

opinion addressing appellant and Melvin’s suitability for juvenile 

court, discussed infra, also quoted Melvin as saying, “I wouldn’t 

have shot, man I was like fuck it. I just grabbed for the cash and 

ran.” (See People v. Superior Court (Jones), supra, 18 Cal.4th at 

p. 673.) The transcript of the surreptitious recording admitted 

into evidence at the evidentiary hearing does not contain that 

statement. It quotes Melvin as saying, “I know I did, too, then I 

wouldn’t have shot, man. I was like fucked up. I just grabbed 

the [unintelligible].” The court also attributes to Melvin the 

statement, “‘That’s why I got hell fuckin’ drunk,’” which is 

attributed to appellant in the transcript. (Ibid.) We note that the 

recording itself is not in the appellate record and was not 

admitted at either appellant’s trial or the evidentiary hearing.
9

keys, and said they should “break” or “run” from the police car, 

“first chance we get.” He also stated several times that he and 

Melvin would get life in prison or “the electric chair.” At one 

point, he added, “I bet we can’t get off on a fuckin’ first offense, 

n*****”; he later reiterated, “If you wouldn’t have shot him in the 

face it would have been our first offense.” He also stated, “You 

should have never did this shit on me. If you wouldn’t have shot 

that n***** in the face, we’d be out clean. Cause I would have 

dumped it on somebody else. But we about to go to jail, n*****.

You shot that n***** in the face.” He and Melvin both remarked 

that there would be “[n]o more dank” or “weed” for them while 

they were in “the penn [sic].” 

IV. Psychiatric Report and Supreme Court Opinion

In July 1996, about two months after the incident, 

psychiatrist Jack Rothberg, M.D., Ph.D., evaluated appellant at 

his attorney’s request. The purpose of the exam “was to assess 

his mental state, and determine whether he is amenable to the 

procedures, treatment and programs available through the 

Juvenile Court system.” 

According to Rothberg’s report, appellant stated during the 

exam that Melvin wanted to rob the store for cash. Appellant 

was reluctant to participate, “but was concerned that Melvin 

might get hurt, and so he came along, in essence to protect him.” 

Appellant “insist[ed] that he does not use drugs,” but admitted 

that he and Melvin consumed alcohol—wine and vodka—before 

the incident. Appellant said he had previously seen Melvin with 

a gun, but also said neither he nor Melvin had experience using a 

gun; the report noted,“[w]hen loading it they had apparently 

cocked the trigger, but had no idea how to uncock it.” 
10

When appellant and Melvin entered the store, it “seemed 

only a matter of seconds before [appellant] heard ‘pow.’” 

Appellant maintained that Melvin did not intend to shoot anyone, 

and that the gun “simply discharged while he was pointing it at 

the store owner.” The report continued, “Marcus explains that 

after that he ‘did something stupid’ emptying the register and 

running out.” Appellant said he was “‘not in my right mind,’ 

apparently because he had some alcohol to drink.” 

Rothberg noted that appellant “expressed considerable 

remorse about the crime, both with respect to the victim and the 

victim’s family.” He concluded that appellant would be an 

appropriate candidate for juvenile court.

The Supreme Court ultimately disagreed. It determined 

that the juvenile court’s findings that appellant and Melvin were 

suitable for treatment under the juvenile court law were not 

supported by substantial evidence. (See People v. Superior Court

(Jones), supra, 18 Cal.4th 667.) In its opinion, which was issued 

before appellant and Melvin were tried, the Supreme Court made 

two statements that appellant cites as facts in his briefing: (1) 

the quotation noted above about “grabbing the money” and its

attribution to Melvin, and (2) “The minors waited in an alcove 

near the store for customers to leave.” (Id. at p. 672.) We note 

that the Supreme Court also said, (3) “About 6 or 7 p.m., after 

returning to Melvin’s home, the minors continued a discussion 

they had begun earlier in the day about getting some money for 

the school prom by robbing someone . . . . According to Melvin, he 

and his friends frequently talked about ‘jacking’ someone for 

money,” and (4) “The minors brought masks, apparently obtained 

from the school lost-and-found, and two gloves.” (Ibid.) We also 
11

note that none of these statements appears elsewhere in the 

record. 

After the Supreme Court issued its opinion, appellant and 

Melvin were tried together in criminal court. The jury convicted 

Melvin of first degree murder and robbery, but the court declared 

a mistrial as to appellant. Appellant was later retried separately. 

(People v. Jones (Sept. 25, 2001, No. B143098) [nonpub. opn.].) 

V. Appellant’s Trial Testimony

At his retrial, appellant “relied on an intoxication defense” 

and testified on his own behalf. (People v. Jones (Sept. 25, 2001, 

No. B143098) [nonpub. opn.].) He testified that he and Melvin 

were both 15 at the time of the shooting; appellant was one 

month older than Melvin and therefore was “over-protective” of 

him. Melvin was like a brother to him; they spent the night at 

each others’ homes, went to the same school and church, and 

played on the same basketball team. 

On May 23, 1996, appellant wore his “green Nike sweats” 

to school. During homeroom, appellant saw Melvin, who was 

wearing “blue dark pants.” Melvin told appellant he wanted to 

“do something to get some money,” which appellant understood to 

mean “[r]obbery, stealing something, something illegal.” Melvin 

had made similar comments “in the past,” “like a little here, a 

little there,” but appellant “shoved it off” because he had never 

known Melvin to actually do anything like that before. Appellant 

did not see Melvin again until lunch time; appellant again 

ignored Melvin when he raised the issue of trying to get money.

After school, appellant and Melvin went to a friend’s house 

to play video games. They also smoked marijuana and shared a 

pint of vodka with the friend. On the way home from the friend’s 

house, appellant and Melvin stopped at the liquor store and got 
12

someone to buy them another pint of vodka. Appellant and 

Melvin shared the bottle as they walked toward Melvin’s house. 

On the way, they stopped at a nearby elementary school where 

they often hung out. Appellant felt very drunk by that point; he 

vomited twice. 

While appellant and Melvin were sitting at the school, 

Melvin pulled a gun out of his sock and told appellant “he wanted 

to rob Mr. Lee’s store.” Melvin said it would be “easy”: they 

would “go in there and get the money and get out.” Appellant 

said he did not want to do it, and that it was wrong. Melvin used 

“peer pressure words” and taunted appellant, telling him that he 

was “acting like a punk” and was “fat-ass scared.” Appellant 

testified that he was indeed scared of “the whole situation,”

because he “didn’t want to get killed” and “didn’t want to go to 

jail.” Appellant refused to participate, and Melvin eventually 

said, “Fuck it. I’m going with or without you.” When Melvin got 

up and started walking away, appellant felt “like that was the 

last time I was gonna see my cousin, my brother, alive again,” 

because he thought Melvin “was gonna get himself killed.” 

Appellant decided to go with Melvin to prevent him from getting 

hurt and “[k]eep him from hurting anyone.” 

Appellant tried to talk Melvin out of it the whole way to the 

store. The pair stopped in an alcove near the store, and Melvin 

put on a mask and handed appellant a glove. Appellant put the 

glove in his pocket because he “wasn’t going to touch nothing,” 

but he wrapped his basketball bandana around his face because 

he did not want anyone to think he was “doing what Melvin was 

thinking about doing.” Appellant added that “wasn’t the correct 

thing to do. I was intoxicated. I wasn’t thinking rationally.” 

Appellant gave the same explanation for why he did not call his 
13

mother, Melvin’s parents, or the police to attempt to prevent the 

crime. Appellant did not try to take the gun away from Melvin 

because he “didn’t know if the gun was loaded” and “wasn’t about 

to risk me accidentally getting shot or him accidentally getting 

shot. Both of us drunk, tussling with a gun. No. No.” 

Melvin and appellant left the alcove, and Melvin entered 

the store. Appellant testified that he did not go into the store.

Instead, he stood in the doorway. He thought his presence there 

would help prevent anyone from getting hurt. Melvin ran to the 

counter and “bark[ed] a couple words” before appellant heard a 

gunshot. Appellant then saw Melvin reach over the counter 

toward the cash register. Appellant said, “What the fuck you 

doing?” and wondered why Melvin was grabbing money when 

someone had just been shot. From the doorway, appellant 

reached for Melvin as Melvin was getting the money and tried to 

pull him out of the store. Melvin handed money to appellant, 

who “snatched” it and put it in his pocket before pushing Melvin 

out the door ahead of him. 

Appellant ran with Melvin back toward the elementary 

school. As they were running, Melvin asked for appellant’s 

bandana; appellant “snatched it off and gave it to him.” 

Appellant did not know what Melvin did with the bandana or his 

own ski mask. When appellant and Melvin reached the school, 

they climbed the fence; appellant said he “almost fell down” 

because he was “still fuzzy a little bit.” He and Melvin then ran 

through the schoolyard and climbed over another fence. They 

then walked to Melvin’s apartment. 

Appellant and Melvin climbed the stairs to the apartment. 

“Not very long” after that, police arrived, pulled them down the 

stairs, and detained them. In the police car, appellant 
14

“express[ed] [his] true feelings” to Melvin, “that I felt like he 

fucked up our life personally.” Appellant said he felt “helpless” at 

the time, because he had seen someone get shot and “couldn’t 

stop it.” 

On cross-examination, appellant admitted that he lied to 

Rothberg about using drugs, though on redirect he said that he 

thought Rothberg had been referring to hard drugs, not 

marijuana. He said he did not recall telling Rothberg that he had 

previously seen Melvin with a gun. Appellant also said that he 

told Rothberg that Melvin had cocked the trigger, because “both 

of us can’t cock the trigger.” Appellant denied telling Rothberg, “I 

did something stupid” by emptying the register. On redirect, he 

explained that he told Rothberg that Melvin did something stupid 

by emptying the register. 

Appellant stated that he watched Melvin load the gun 

while they were sitting at the elementary school, contradicting 

his earlier testimony that he did not know if the gun was loaded. 

When pressed by the prosecutor about his understanding of the 

plan and awareness that Melvin was loading the gun, appellant 

explained that he was drunk but not “pissy drunk.” He further 

agreed that he “knew at that time that in the course of robbing 

that store, somebody could get killed.” 

Appellant said he “wasn’t scared of” Melvin and “[d]idn’t 

feel pressure” from Melvin’s taunts and use of what he called “the 

usual peer pressure.” He took Melvin seriously when Melvin said 

he would do it with or without appellant, however, and agreed

with the prosecutor’s characterization that he thought Melvin

“had a death wish” when Melvin started walking away from him.

Appellant nevertheless “lazily dragged up and I followed him.” 

He reiterated that he tried to talk Melvin out of the plan, and 
15

that he put the bandana on because he “didn’t want nobody 

seeing me, thinking I was part of what Melvin was doing.” 

Appellant denied ever touching the gun or even “paying 

attention” to it during the robbery. Because he had “less 

maturity” at the time, he never tried to take the gun away from 

Melvin or yell that he was armed; he thought his mere “presence” 

in the doorway would help the situation. After the shooting, 

appellant did not shout for help or check on Lee; he did not “want 

to see if Mr. Lee was alive” because he had “never seen a dead 

body before, and I didn’t want to see one.” 

PROCEDURAL HISTORY

I. Conviction and Direct Appeal

On February 11, 1999, the People filed an information 

charging appellant and Melvin with the murder (§ 187, subd. (a))

and robbery (§ 211) of Lee.4 The information also alleged as to 

both counts that a principal was armed with a handgun (§ 12022, 

subd. (a)(1)). A robbery-murder special circumstance (§ 190.2, 

subd. (a)(17)) was alleged but appears to have been stricken. 

On May 22, 2000, a jury found appellant guilty of first 

degree murder and second degree robbery and found the firearm 

allegations true. On July 13, 2000, the court sentenced him to 25 

years to life for the murder conviction, plus one year consecutive 

for the related firearm enhancement. The court stayed sentence 

on the robbery conviction under section 654. A different panel of 

this court affirmed appellant’s convictions and sentence on direct 

4 The People filed the information in superior court after the 

Supreme Court determined the juvenile court’s findings that 

appellant and Melvin suitable for treatment under the juvenile 

court law were not supported by substantial evidence. (See 

People v. Superior Court (Jones), supra18 Cal.4th 667.) 
16

appeal. (See People v. Jones (Sept. 25, 2001, No. B143098) 

[nonpub. opn.].) The factual summary portion of the opinion, 

summarized appellant’s testimony, including his assertions that 

he tried to dissuade Melvin, participated reluctantly in an effort 

to prevent anyone from getting hurt, and did not shoot Lee. 

II. Section 1172.6 Proceedings

A. Petition 

On May 15, 2019, appellant, through counsel, filed a 

petition for resentencing pursuant to section 1172.6. In his 

petition, appellant made the representations required by section 

1172.6, subdivisions (a) and (b). Appellant also characterized the 

factual summary of his testimony in the direct appeal opinion as

specific findings “that Mr. Jones did not personally kill the 

victim, that the victim was shot by Mr. Jones’s co-defendant, and 

that Mr. Jones did not want to participate in the underlying 

robbery, tried to dissuade his co-defendant, and only 

accompanied his co-defendant because he hoped his presence 

would prevent anyone from getting hurt.” “Based on the 

aforementioned,” appellant asserted that he was entitled to 

resentencing. 

B. Initial Briefing and Hearing 

The People filed a response5 arguing that appellant was 

ineligible for resentencing because he was a major participant in 

5 The People’s response and attachments thereto are not 

included in the record on appeal, nor are the materials appellant 

originally filed in reply. On our own motion, we take judicial 

notice of the appellate record in appellant’s previous section 

1172.6 appeal, People v. Jones, No. B304692, which contains 

those documents. (See Evid. Code, §§ 452, subd. (d), 459.) We 

note that the record on appeal does include the reply brief and 

attachments appellant filed after we remanded the matter.
17

the crime under People v. Banks (2015) 61 Cal.4th 788 (Banks) 

and acted with reckless indifference toward human life under 

People v. Clark (2016) 63 Cal.4th 522 (Clark). The People

attached our opinion from appellant’s direct appeal, as well as 

some transcripts from appellant’s trial. Appellant filed a reply, to 

which he attached several documents. He argued that he was 

entitled to resentencing because “[t]he People failed to prove 

beyond a reasonable doubt that Mr. Jones was both a major 

participant and acted with reckless indifference to human life.” 

Appellant further contended that he was not a major participant 

and did not act with reckless indifference to human life under

Banks and Clark.

After a hearing, the court found that appellant was a major 

participant in the crime and acted with reckless indifference

toward Lee’s life and accordingly denied the motion. Appellant 

timely appealed.

C. Previous Appeal

On appeal, appellant contended the court erred by making 

factual findings at the prima facie stage of the case. A different 

panel of this court agreed and reversed the trial court’s order 

denying the petition. The opinion remanded the matter with 

directions to issue an order to show cause and proceed 

consistently with section 1172.6, subdivision (d). (See People v. 

Jones (Apr. 22, 2021, No. B304692) [nonpub. opn.].)

D. Evidentiary Hearing and Ruling 

On remand, appellant filed a second reply brief. He again 

argued that he was not a major participant in the crime and did 

not act with reckless indifference to human life. He also asserted 

that his age at the time of the crime decreased his culpability. 

Appellant provided a statement of facts based on the eight 
18

exhibits that were attached to his brief and ultimately were 

admitted at the evidentiary hearing. It does not appear that the 

People made any additional filings. 

At the evidentiary hearing, the parties stipulated to the 

admission of all the exhibits attached to appellant’s second reply 

brief, which are listed above in the Factual Background.

6 The 

matter then proceeded to argument. 

The People began by incorporating the arguments in their 

“original moving papers,” which we understand to mean their

response to the petition. They contended that appellant was a 

major participant who acted with reckless indifference to human 

life, emphasizing evidence suggesting he took money from the 

store after Melvin shot Lee in the face and his post-arrest 

statements that Melvin should not have had the gun in the first 

place. The People further asserted that various portions of 

appellant’s trial testimony were not credible, including his 

assertion that he never entered the store during the crime. They 

acknowledged that at least one of the Clark factors favored

appellant, but urged the court to find that he was a major 

participant who acted with reckless indifference to human life. 

Appellant contended the People failed to carry their burden 

of proving beyond a reasonable doubt that he was a major 

participant who acted with reckless indifference to human life. 

He emphasized that he was only 15 at the time and was not the 

actual killer. Despite repeatedly asserting that “the basic facts of 

6 Three of those exhibits, Ochoa’s trial testimony, appellant’s 

trial testimony, and the transcript of the surreptitious recording, 

were also offered by the People. The parties also stipulated that 

Ochoa was legally unavailable to testify at the evidentiary

hearing. 
19

this case are generally agreed upon by both parties,” appellant 

maintained that he never entered the store and that Melvin took 

the money. Appellant argued that all the Banks factors indicated 

he was not a major participant; he asserted that his involvement 

in the planning and execution of the crime was minimal, and that 

he intended only to “persuade Melvin out of it” and “keep Melvin 

from getting killed or hurting anyone.” Appellant also argued 

that all the Clark factors indicated that he did not act with 

reckless indifference to human life. Appellant acknowledged that 

fleeing the scene without aiding Lee was “not the most admirable 

course of action he could have taken,” but asserted that it did not 

“tip the scales in favor of him being convicted on murder on this 

case, and it’s not probative of reckless disregard.” He also 

reiterated that neither he nor Melvin had a history of violence, he 

“thought that his presence during the robbery would minimize” 

the risk of violence, and the shooting happened moments after 

Melvin entered the store. 

In rebuttal, the People argued that the “youth factor” did 

not prevent appellant from “reaching over and taking the money,” 

or making statements and engaging in conduct indicating that he 

“clearly understood the consequences of his actions.” In 

surrebuttal, appellant argued that his knowledge that Melvin 

had a loaded gun was insufficient to establish reckless 

indifference. He also reiterated that he was in the doorway of the 

store, but asserted that even if he was inside the store, he did not 

have an opportunity to prevent the shooting because it happened 

quickly. Finally, appellant asserted that his age at the time 

limited his ability to appreciate the consequences of his actions. 

The court began its oral ruling by noting that it was “very 

important to consider . . . the defendant’s age at the time of this 
20

incident.” It found, however, that the transcript of the postarrest conversation evinced appellant’s “sophistication,” “fears . . . 

for himself,” and awareness that Melvin “shot the person in the 

face.” The court also noted that appellant “lament[ed] the fact 

that he didn’t have the gun instead of his younger cousin.” The 

court said “[t]hose facts are very important to the court for two 

reasons: one, they come directly from the defendant himself, the 

petitioner himself. This is what the petitioner has in his mind 

immediately after this heinous act; two, it shows that he is not an 

unsophisticated typical 15 year old. He’s talking about the 

money, . . . he talks about being in the pen for some while. He’s 

very aware of the nature of what happened.” 

After incorporating by reference “in my findings here all of 

the factors” the People outlined,7 the court found that appellant 

and Melvin planned the incident over a full day, that appellant 

was present when the gun was being loaded, and that appellant 

knew that an armed robbery “presents a whole other level of 

dangerousness to a typical robbery.” The court further found 

that appellant “was immediately interested in the money,” that 

he and Melvin took steps to conceal their identities before the 

robbery, and that they ran away together afterward rather than 

rendering aid to Lee. 

The court ultimately concluded: “I think from all of the 

factors it’s pretty clear that the People have proven beyond a 

reasonable doubt that the defendant was a major participant, not 

only in the planning and the execution of this crime, but in the 

7 The court did not clarify whether it intended to incorporate 

the People’s oral argument, written argument, or both. The 

People asserted in both arguments that appellant entered the 

store and took the money. 
21

getting away safely afterwards of the crime, and he acted with 

absolutely reckless disregard for the life of Mr. Lee. Both before 

when he planned the crime he had no fear about the fact that 

they were going in with an armed gun, a loaded gun, and 

afterwards he showed that he was absolutely indifferent to 

whether or not Mr. Lee lived or died. His only concern at that 

point was getting away, splitting the money, avoiding a life 

sentence. So for that reason the motion is denied. The court does 

find beyond a reasonable doubt that the People have met their 

burden in proving that the defendant did act with reckless 

disregard, that he was a major participant, and he could still 

today be convicted of murder.” 

Appellant timely appealed. 

DISCUSSION 

I. Section 1172.6

The Legislature enacted Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (SB 1437) “to amend the felony murder rule and the 

natural and probable consequences doctrine, as it relates to 

murder, to ensure that murder liability is not imposed on a 

person who is not the actual killer, did not act with the intent to 

kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.” (Stats. 2018, ch. 

1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis (2021)

11 Cal.5th 952, 959 (Lewis).) As amended by SB 1437, section 

189 now limits liability under a felony-murder theory to “actual 

killer[s]” (§ 189, subd. (e)(1)) and those who, “with the intent to 

kill,” aid or abet “the actual killer in the commission of murder in 

the first degree” (id., subd. (e)(2)). Individuals who do not fall 

into those categories can be held liable for murder only if they 

were “major participant[s] in the underlying felony and acted 
22

with reckless indifference to human life, as described in 

subdivision (d) of [Penal Code] Section 190.2” —the statute 

defining the felony-murder special circumstance. (Id., § 189, 

subd. (e)(3); see People v. Strong (2022) 13 Cal.5th 698, 708

(Strong).)

SB 1437 also added section 1172.6 to the Penal Code, 

permitting individuals who were convicted of felony murder or 

murder under a natural and probable consequences theory, but 

who could not be convicted of murder following SB 1437’s changes 

to sections 188 and 189, to petition the sentencing court to vacate 

the conviction and resentence on any remaining counts. 

(§ 1172.6, subd. (a).) When a petitioner files a “complying 

petition,” the court must appoint counsel if requested, “the issue 

is briefed[,] and then the court makes one (not two) prima facie 

determination.” (Lewis, supra, 11 Cal.5th at p. 966.) In the 

limited prima facie inquiry, the court issues an order to show 

cause if the petitioner’s factual allegations, if true, would 

demonstrate an entitlement to relief. (See id. at p. 971.) 

Once an order to show cause issues, the matter proceeds to 

an evidentiary hearing at which the People have the burden of 

proving beyond a reasonable doubt “that the petitioner is guilty of 

murder or attempted murder under California law as amended 

by the changes to Section 188 or 189 made effective January 1, 

2019.” (§ 1172.6, subd. (d)(3).) At the hearing, the court “may 

consider evidence previously admitted at any prior hearing or 

trial that is admissible under current law, including witness 

testimony, stipulated evidence, and matters judicially noticed. 

The court may also consider the procedural history of the case 

recited in any prior appellate opinion.” (Ibid.) Additionally, both 

the petitioner and the People “may also offer new or additional 
23

evidence to meet their respective burdens.” (Ibid.) “A finding 

that there is substantial evidence to support a conviction for 

murder, attempted murder, or manslaughter is insufficient to 

prove, beyond a reasonable doubt, that the petitioner is ineligible 

for resentencing. If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and 

the petitioner shall be resentenced on the remaining charges.” 

(Ibid.) Resentencing is unavailable if the petitioner was a major 

participant in the underlying felony and acted with reckless 

indifference to human life. (Strong, supra, 13 Cal.5th at p. 710.)

The trial court acts as an independent factfinder and determines 

whether the prosecution has met its burden. (People v. Ramirez

(2021) 71 Cal.App.5th 970, 984 (Ramirez).)

II. Standard of Review

The trial court concluded that appellant was a major 

participant who acted with reckless indifference to human life. 

Appellant contends the record does not support this conclusion. 

On appeal from an order denying a section 1172.6 petition after 

an evidentiary hearing, we review the trial court’s factual 

findings for substantial evidence. (People v. Richardson (2022) 79 

Cal.App.5th 1085, 1090; People v. Clements (2022) 75 Cal.App.5th 

276, 298 (Clements).) “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, supra, 75 Cal.App.5th at p. 298, quoting 

People v. San Nicolas (2004) 34 Cal.4th 614, 657-658.) “Our job 

on review is different from the trial judge’s job in deciding the 
24

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.” 

(Clements, surpa, at p. 298.)

As particularly relevant here, we do not reweigh evidence

or revisit credibility determinations made by the trial court. (See 

People v. Cody (2023) 92 Cal.App.5th 87, ___. Thus, appellant’s 

repeated contentions that he did not enter the store and that

“[t]he bulk of the evidence actually supports that Melvin took the 

money” are not well-taken. We are not concerned with the “bulk” 

of the evidence; so long as substantial evidence supports the trial 

court’s implicit or explicit findings, we are obligated to accept 

those findings. 

Reversal on insufficiency of the evidence is unwarranted 

unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the ruling].” (People v. 

Redmond (1969) 71 Cal.2d 745, 755.) “If the circumstances 

reasonably justify the findings made by the trier of fact, reversal 

of the judgment is not warranted simply because the 

circumstances might also reasonably be reconciled with a 

contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 

639.)

III. The Banks and Clark Factors

In Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 

Cal.4th 522, the California Supreme Court set forth the factors 

relevant to determining whether a defendant is a major 

participant in a felony who acted with reckless indifference to 
25

life. The major participant and reckless indifference factors 

“significantly overlap” in that “‘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 pp. 614-615, quoting Tison v. Arizona (1987) 481 U.S. 

137, 153 (Tison).)

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

a nonexhaustive list of considerations relevant to whether a 

defendant’s participation in criminal activities known to carry a 

grave risk of death is sufficiently significant to render him or her 

a “major participant” in the crime. (See Strong, supra, 13 Cal.5th 

at p. 705, citing Banks, supra, 61 Cal.4th at pp. 705-706.) Those 

considerations are: “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.) 

Clark, supra, 63 Cal.4th at pp. 618-623, similarly set forth 

a list of considerations relevant to determining whether a 

defendant acted with reckless indifference to human life. The 

first factor relates to weapons: was the defendant aware that 

weapons would be used in the felony? Did the defendant use a 

weapon? How many weapons were used in the crime? (Clark, 

supra, 63 Cal.4th at p. 618.) The court cautioned that “[t]he mere 
26

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.” (Ibid.; see also id. at p. 617, fn. 74 [“A robbery in which the 

only factor supporting reckless indifference to human life is the 

fact of the use of a gun is what we meant by ‘a garden-variety 

armed robbery’ in Banks, supra, 61 Cal.4th at p. 802.”].) The 

second factor is the defendant’s physical proximity to the murder 

and the events leading up to it, and the opportunities that 

proximity afforded to restrain the crime or aid the victim. (Clark, 

supra, 63 Cal.4th at p. 619.) The third factor is the duration of 

the felony, particularly the duration of the interaction between 

victims and perpetrators; more prolonged incidents provide “‘a 

greater window of opportunity for violence.’” (Id. at pp. 620-621.) 

The fourth factor is the defendant’s awareness of his or her 

codefendants’ propensity for violence or likelihood of killing a 

victim. (Id. at p. 621.) The final factor is the defendant’s efforts 

to minimize the risk of violence during the felony, though the 

court cautioned that “some effort to minimize the risk of violence 

does not, in itself, necessarily foreclose a finding that defendant 

acted with reckless indifference to human life.” (Id. at pp. 621-

622.) The court further cautioned that although recklessness has 

a subjective element, “it is the jury’s objective determination that 

ultimately determines recklessness”; “a defendant’s good faith 

but unreasonable belief that he or she was not posing a risk to 

human life in pursuing the felony does not suffice to foreclose a 

determination of reckless indifference to human life.” (Id. at p. 

622.) At bottom, reckless indifference “encompasses a willingness 

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

if the defendant does not specifically desire that death as the 

outcome of his [or her] actions.” (Id. at p. 617.) 
27

No single Banks or Clark factor is determinative. (Clark, 

supra, 63 Cal.4th at pp. 618, 621–623.) Instead, courts must

assess the totality of a defendant’s culpability along a spectrum 

spanning from Enmund v. Florida (1982) 458 U.S. 782

(Enmund), in which defendant, a classic getaway driver for an 

armed robbery, was minimally culpable for the murder that 

ensued, to Tison, supra, 481 U.S. 137, in which the very culpable

defendants helped convicted murderers escape from prison, 

provided weapons, and stood by as their confederates debated 

killing, then killed, an innocent family. (See Banks, supra, 61 

Cal.4th at pp. 794, 801–803; Clark, supra, 63 Cal.4th at pp. 609, 

612-614, 618; Strong, supra, 13 Cal.5th at p. 705 [discussing the 

Enmund-Tison spectrum of culpability].)

A defendant’s youth at the time of the crime is a 

circumstance that may be relevant to his or her placement on the 

culpability spectrum. (See In re Moore (2021) 68 Cal.App.5th 

434, 453-454 (Moore); Ramirez, supra, 71 Cal.App.5th at p. 987.) 

This is because children generally lack the experience, 

perspective, and judgment of adults, and are also generally less 

responsible and mature. (Moore, supra, 68 Cal.App.5th at p. 

453.) Further, children tend to act more immaturely or 

impetuously than adults and may fail to appreciate the risks and 

consequences of their actions. (Id. at p. 454.) Like all the other 

factors, youth alone is not dispositive. (In re Harper (2022) 76 

Cal.App.5th 450, 470.)

IV. Analysis

Before proceeding to our analysis of the Banks and Clark 

factors, we note that appellant complains that the trial court “did 

not discuss any factors or any case law before denying appellant’s 

petition nor did the court distinguish between major participant 
28

and reckless indifference to human life” and instead “focused on 

how appellant and Melvin spoke to each other in the police car 

after their arrest.”8 Appellant contends this constituted an 

impermissible imposition of the court’s own views “without any 

reference to or application of relevant case law.” He further 

asserts that the court “did not reveal what parts of the evidence it 

had considered beyond the secret recording from the police car,” 

and, even with regard to that piece of evidence, “did not fully 

examine what appellant and Melvin actually revealed in their 

conversation.” However, on appeal we review the correctness of 

the lower court’s decision, not its rationale. (See People v. Zapien

(1993) 4 Cal.4th 929, 976; People v. Chism (2014) 58 Cal.4th 

1266, 1295, fn. 12; see also US Ecology, Inc. v. State of California

(2005) 129 Cal.App.4th 887, 909 [“We do not review the rationale 

for the court’s decision. Rather, if there is substantial evidence to 

support the result under the correct standard, we will affirm.”].)

8 Appellant also asserts the court “acknowledged that it had 

not read all of the exhibits that constituted the evidence at the 

hearing before denying appellant’s petition.” The court actually 

said, “I appreciate the exhibits, I’ve gone through most of them 

before today’s hearing. I’m going through, again, the transcript 

of the recording of your client’s statements after, immediately 

following the shooting, and I’ve refreshed my memory about the 

facts inside of that transcript.” Reading this language in the 

light most favorable to the ruling suggests the court had 

refreshed its recollection of some of the exhibits immediately 

before the hearing. There is no evidence in the record suggesting 

the court failed to review all the exhibits, which were provided 

with multiple filings. “In the usual case, the fact that a court did 

not specifically mention certain evidence does not mean that the 

court ‘ignored’ that evidence.” (People v. Jones (2022) 86 

Cal.App.5th 1076, 1092.) 
29

Moreover, the major participant and reckless indifference factors 

“significantly overlap” (Clark, supra, 63 Cal.4th at p. 615); 

separate discussion of those factors may not be necessary in every 

case, though we discuss them separately here for clarity.

A. Major Participant (Banks) 

We apply the Banks factors and consider the totality of the 

circumstances. We conclude substantial evidence supports a 

finding that appellant was a major participant in the robbery. 

With regard to the first factor, appellant’s role in planning, 

appellant asserts that the only evidence “came from appellant’s 

statements” that Melvin was the mastermind and appellant’s

only role was, essentially, trying to talk Melvin out of it. “Thus, 

this factor does not support that appellant had a role in planning 

the robbery.” We disagree. Appellant’s testimony, originally 

offered in support of his defense at trial, indeed minimizes his 

planning role. Other evidence in the record suggests he was more 

actively involved, however. The Supreme Court opinion—on 

which we again note that appellant relies to support factual 

assertions—indicates that appellant and Melvin frequently 

talked about “jacking” someone for money, engaged in an ongoing 

“discussion” about the robbery throughout the day, and took the 

preparatory step of acquiring facial coverings from the lost-andfound at their school. Even setting aside those statements, the 

psychiatric report suggests appellant and Melvin jointly loaded

and cocked the gun. More telling are appellant’s surreptitiously 

recorded statements, which indicate that he “got hell fuckin’ 

drunk” and “faded out like a mother fucker” to build himself up 

for the robbery hours before his testimony indicated that he knew 

of the full plan. Appellant also stated twice that he knew Melvin 

should have given him the gun, from which it can reasonably be 
30

inferred that he was more extensively involved in planning the 

logistics of the robbery than his self-serving testimony indicated. 

As to the second factor, his role in supplying or using lethal 

weapons, appellant contends he was uninvolved in either aspect. 

We agree the evidence indicates that Melvin procured the gun 

and fired at Lee. As noted above, however, the psychiatric report 

indicates that appellant was involved in loading and cocking (and 

then unsuccessfully attempting to uncock) the gun. Additionally, 

eyewitness Ochoa said he saw the person in green pants remove a 

gun from his waistband before the two males entered the store. 

Another eyewitness said the person in green pants was carrying 

the gun as the two males ran from the store. This substantial 

evidence suggests appellant had some involvement with the 

lethal weapon. 

The third factor is appellant’s awareness of particular 

dangers posed by the crime, weapons used, or past experience or 

conduct of other participants. Appellant acknowledges that he 

“knew that an armed robbery was illegal and dangerous,” but 

asserts that neither he nor Melvin had prior experience with 

crimes, violence, or guns, and appellant “had no reason to even

suspect that Melvin might actually fire the gun.” Respondent 

Attorney General points out that the psychiatric report states 

that appellant previously had seen Melvin with a gun. 

Respondent also suggests, and we agree, that appellant’s postarrest comments that he should have been the one to hold the 

gun evince an awareness that Melvin posed a danger with the 

weapon.9 Respondent’s suggestion that Melvin’s possible status 

9 Appellant maintains that the People and respondent “have 

taken appellant’s comment out of context,” because he “said this 
31

as a gang member rendered him more dangerous is less welltaken; gang membership alone does not demonstrate a propensity 

to commit lethal violence. (See Banks, supra, 61 Cal.4th at pp. 

810-811; In re Ramirez (2019) 32 Cal.App.5th 384, 405.) More 

relevant in our view is appellant’s testimony that he did not try 

to take the gun from Melvin because he did not want to “risk me 

accidentally getting shot or him accidentally getting shot. Both of 

us drunk, tussling with a gun.” It is reasonable to conclude from 

all this evidence that appellant recognized that the robbery posed 

a particular danger. 

The fourth factor considers whether appellant was present 

at the scene and in a position to facilitate or prevent the murder, 

and whether his actions or inaction played a particular role in the 

death. Appellant concedes he was at the scene, but asserts the 

shooting happened so quickly that he had no realistic opportunity 

to prevent it. He also emphasizes Melvin’s post-arrest comments 

suggesting the shooting was unintended. Respondent argues 

that appellant was “actively involved in the execution of the 

robbery, including the wearing of masks,” but it is unclear what 

relevance appellant’s attire had to his presence or ability to 

prevent Melvin from shooting. What is clear is that appellant 

was not only present but very close to Melvin throughout the 

incident. Ochoa testified that he (Ochoa) was only four or five 

right after asking Melvin what he did with the gun,” such that 

the “implication is that appellant was referring to the time 

during which they were fleeing.” Even if we were to accept this 

inference, which the standard of review precludes here, we note 

that appellant omits any mention of the other time he said “I 

know you shouldn’t have fuckin’ held the gun, man. I know you 

fuckin’ shouldn’t have,” which is nowhere proximate to any 

statements about fleeing. 
32

feet away from the shooter, despite being outside the store, which 

means appellant necessarily was close enough to exercise a 

restraining effect. (See In re Ramirez, supra, 32 Cal.App.5th at 

p. 405 [suggesting that proximity of “feet away” may be “close 

enough to exercise a restraining effect on the crime”].) Appellant 

also had ample opportunity to scuttle the plan or take the gun 

prior to arriving at the store. On the other hand, as discussed 

more fully below, courts have recognized that defendants may 

have limited opportunity to intervene at the scene when a 

shooting occurs quickly. In short, this factor is somewhat mixed. 

The final factor is what appellant did after lethal force was 

used. Appellant contends that he simply fled the scene with 

Melvin; he disputes the People’s assertion that he disposed of 

evidence. Elsewhere in his briefing, indeed throughout it, he also 

maintains that the “bulk of the evidence” shows that Melvin was 

the one who took the money after Lee was shot. As discussed 

above, we do not weigh the evidence on appeal. Instead, we 

consider whether substantial evidence supports the court’s

adopted finding that appellant took the money after Lee was 

shot. We conclude it does. Appellant’s self-serving trial 

testimony indicated that Melvin took the money, but the money 

was found in appellant’s pocket, not Melvin’s, when they were 

arrested. The psychiatric report also noted that appellant said he 

“‘did something stupid’ emptying the register and running out,” 

and appellant remarked during the post-arrest conversation that 

after the shooting, “We can’t do shit but grab money, man . . . .” A 

reasonable factfinder certainly could conclude from this evidence 

that appellant took the money after Lee was shot, rather than 

rendering aid or even simply fleeing. We thus agree with 

respondent that “[t]his factor does not help appellant.” 
33

In sum, the record contains substantial evidence to support 

the conclusion that appellant was a major participant in the 

robbery.

B. Reckless Indifference (Clark)

As we observed above, there is significant overlap between 

being a major participant and having a reckless indifference to 

human life, and “‘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 pp. 614-

615.) Applying the Clark factors and considering the totality of 

the circumstances, we conclude the record contains sufficient 

evidence from which the trial court could conclude beyond a 

reasonable doubt that appellant acted with reckless indifference

to the life of Lee. 

The first Clark factor overlaps with the second Banks 

factor: what did the defendant know about the weapons used in 

the felony? Did the defendant use a weapon? How many 

weapons were used in the crime? (Clark, supra, 63 Cal.4th at p. 

618.) We agree with appellant that mere knowledge a weapon 

would be used is not sufficient to establish reckless indifference. 

(See Clark, supra, 63 Cal.4th at p. 618.) The evidence suggests, 

however, that appellant had more than “mere knowledge” that a 

weapon was present. At a minimum, he knew the weapon was 

not only loaded with multiple rounds but also cocked, and two 

witnesses testified they saw him with the weapon before and/or 

after the robbery. (Contra People v. Keel (2022) 84 Cal.App.5th 

546, 559 (Keel) [no evidence that defendant knew codefendant’s 

gun was loaded].) Appellant’s assertion that he “did not have any 

reason to believe Melvin would fire the gun” is also not 

persuasive on this record. As discussed above, appellant stated 
34

multiple times that he should have been the one to wield the gun, 

suggesting an awareness that the weapon posed more risk in 

Melvin’s hands. Appellant also recognized that the risk of an 

accidental shooting was heightened because both he and Melvin 

were intoxicated; that recognition prevented him from disarming 

Melvin so as to protect himself, but not from moving forward with 

the robbery and placing others at risk.

The second Clark factor, the defendant’s physical proximity 

to the murder and the events leading up to it, and the 

opportunities that proximity afforded to restrain the crime or aid 

the victim, is similar to the fourth Banks factor. As already 

discussed, appellant was with Melvin for several hours prior to 

the robbery, present throughout the robbery and murder, and 

fled with Melvin afterward. Despite his contentions that he did 

not enter the store or take money from the register, substantial 

evidence—Ochoa’s testimony and the money in his pockets at the 

time of his arrest—supports the opposite conclusion. Appellant 

also had ample opportunity prior to the robbery to alert someone 

or undertake more active efforts to stop the crime. 

Appellant nevertheless argues that this factor weighs

against a finding of reckless indifference because the shooting 

happened quickly and unexpectedly. (See, e.g., In re Scoggins

(2020) 9 Cal.5th 667, 679 (Scoggins) [“although Scoggins was in 

close contact with his accomplices before the shooting, he lacked 

control over their actions once they arrived on the crime scene, 

especially given how quickly the shooting occurred”]; Moore, 

supra, 68 Cal.App.5th at p. 452 [the “short duration of the 

robbery and the sudden and unprovoked nature of the shooting 

reinforce” the conclusion that a defendant present in a car near 

the robbery did not act with reckless indifference]; Ramirez, 
35

supra, 71 Cal.App.5th at p. 989 [“[t]he attempted carjacking was 

executed quickly, providing Ramirez no realistic opportunity to 

intervene before Rios opened fire”].) While the cases appellant

cites support the proposition that a defendant may not have an 

opportunity to intervene if a shooting happens quickly, they are 

distinguishable in that the defendants were far less proximate to 

the shooting. In Scoggins, the defendant “was not physically 

present at the crime scene,” and it was “not clear whether 

Scoggins could even see the confrontation between his 

accomplices and [the victim] from his position.” (Scoggins, supra, 

9 Cal.5th at p. 678.) In Moore, the defendant “likely saw Russell 

rob and shoot [the victim] while he sat in the stolen Mazda,” but 

“he never left the car” and thus was “not ‘close enough to exercise 

a restraining effect on the crime.’” (Moore, supra, 68 Cal.App.5th 

at p. 452.) In Ramirez, the defendant was at the scene but on the 

opposite side of the car from the codefendant who began shooting. 

(Ramirez, supra, 71 Cal.App.5th at p. 989.) Here, appellant was 

not only at the scene but was mere feet from Melvin the entire 

time. He was thus sufficiently proximate to “exercise a 

restraining effect on the crime,” yet according to his own 

testimony instead chose to not pay attention. This factor 

accordingly is more mixed than in the cases appellant cites, 

notwithstanding the short duration of the crime.

The duration of the crime is, incidentally, the third Clark 

factor. “[C]rimes of longer duration present greater risk of 

violence and therefore evince more reckless indifference.” (People 

v. Saibu (2022) 81 Cal.App.5th 709, 740.) Here, there is no real 

dispute that the robbery was brief; even respondent concedes this 

factor “was at best neutral as the shot was fired not long after the 
36

two entered the store.” We agree with appellant that the short 

duration of the crime suggests a lack of reckless indifference. 

The fourth factor is whether the defendant is aware of his 

or her codefendants’ propensity for violence or likelihood of 

killing a victim. (Clark, supra, 63 Cal.4th. at p. 621.) This factor 

overlaps the third Banks factor, and we incorporate our previous 

discussion of the substantial evidence from which a reasonable 

factfinder could conclude that appellant knew the robbery posed 

a particular danger. Appellant contends that “[m]ore telling was 

the shock and surprise appellant expressed at the shooting 

during his conversation with Melvin in the police car after their 

arrest,” which “shows that appellant did not harbor a reckless 

indifference to human life.” We are disinclined to ascribe 

particular emotions to the cold record of the transcript or give 

such emotions controlling weight in our analysis; “the cold record 

seldom captures indications like facial expressions, tones of voice, 

or hesitancy.” (People v. Poore (2022) 13 Cal.5th 266, 297.)

Appellant’s words speak for themselves, and they support the 

inference that appellant recognized it was dangerous for Melvin 

to handle the gun and proceeded with the crime regardless.

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

the risk of violence during the felony. In Clark, such efforts 

included planning to use an unloaded gun and scheduling the 

robbery when the store was closed to minimize risks to 

employees. (See Clark, supra, 63 Cal.4th at pp. 621-622.) 

Appellant contends his efforts to minimize violence included 

trying to talk Melvin out of committing the robbery and taking no 

action “that increased the risk of violence beyond the risk 

inherent in Melvin carrying a loaded gun into the store to obtain 

money.” He also points to the Supreme Court’s statement that he 
37

and Melvin “waited near the store for customers to leave” before 

entering, reiterates his contention that Melvin stole the money, 

and asserts that his immediate flight from the scene did nothing 

to heighten the danger to Lee. Even crediting appellant’s 

testimony about his efforts to persuade Melvin not to go through 

with the robbery and the Supreme Court’s statement that he and 

Melvin actively waited for customers to leave, sufficient evidence 

supports a finding that appellant did not take steps to minimize

the risk of violence. He and Melvin committed the robbery when 

the store was open and employees and numerous bystanders 

were present. Indeed, their plan expressly accounted for the 

presence of bystanders. Rather than insisting that no gun be 

used or that the gun be unloaded, appellant helped Melvin load 

and cock the gun. Appellant also got “hell fuckin’ drunk” and 

“faded” before accompanying Melvin, who he said should not have 

been the one to carry the weapon and was fearful of disarming. 

Appellant contends there was no evidence that Lee could 

have survived if he had stayed at the scene, and that he “could 

have believed that help would arrive,” given the numerous other 

people near the store. However, the police report indicates that 

Lee was not pronounced dead until he arrived at the hospital, 

from which it can be inferred that he remained alive at the scene. 

Appellant’s speculation about his own possible beliefs is not 

persuasive, particularly given the extensive amount of his 

testimony in the record. Neither is his reliance on In re Taylor

(2019) 34 Cal.App.5th 543, 559, in which “there was no evidence 

that Taylor appreciated how badly [the victim] was wounded” and 

apparently “knew help was arriving.” Here, appellant’s postarrest statements indicate he was well aware that Lee had been 

shot in the face and was grievously wounded, and he testified at 
38

trial that he did not “want to see if Mr. Lee was alive” because he 

feared Lee would not be. 

At trial, appellant cited his lack of “maturity” as a reason 

he believed he could prevent injury by accompanying Melvin 

during the robbery. In his appellate briefing, he characterizes 

himself as “a scared and angry 15-year-old who, having joined his 

15-year old cousin in a planned robbery after failing to talk him 

out of it, saw his cousin inexplicably shoot the store owner in the 

head seconds after entering the store.” He contends his “youth 

significantly undercuts any argument that appellant acted with 

reckless indifference to human life.” He finds support for this 

contention in Moore, supra, 68 Cal.App.5th 434, Keel, supra, 84 

Cal.App.5th 546, and Ramirez, supra, 71 Cal.App.5th 970. 

As we acknowledged above, appellant’s age at the time of 

the offense is relevant to whether he acted with reckless 

indifference. Case law in this area recognizes that youth are 

relatively more impulsive than adults and may be vulnerable to 

peer pressure. (People v. Oliver (2023) 90 Cal.App.5th 466, 489.)

The trial court expressly considered appellant’s age and

concluded that the totality of the circumstances, including

appellant’s post-arrest statements, demonstrated an appreciation 

of the risks akin to that of an adult. Although the evidence could 

perhaps be viewed differently, substantial evidence supports the 

trial court’s conclusion. 

Appellant testified that he did not succumb to peer 

pressure from his younger cousin Melvin. Substantial evidence 

also showed he was aware of the risks posed by the loaded, 

cocked gun in the hands of his intoxicated cousin: he testified 

that he feared being accidentally shot before the robbery even 

commenced. He also testified that he was aware of the risk that 
39

he or Melvin might die during the robbery, or face substantial 

consequences if they were caught. Immediately after the 

incident, appellant stated that he “got faded out like a mother 

fucker” for the purpose of engaging in the crime, “thought Melvin 

was gonna get himself killed,” knew Melvin “shouldn’t have 

fuckin’ held the gun,” and recognized they could not “do shit but 

grab money” and faced life in prison after Lee was shot. Evidence 

of this type of self- and situational awareness shows that

appellant acted with a mental state “encompass[ing] 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, supra, 63 

Cal.4th at p. 617.) Analogous evidence is notably absent from the 

cases appellant cites.

DISPOSITION 

The order of the trial court is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P.J.

ZUKIN, J.