Filed 6/18/24 P. v. Martin CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LUCIEN MARTIN,

Defendant and Appellant.

B327394

(Los Angeles County

Super. Ct. No. KA005658)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County. Mike Camacho, Judge. Affirmed.

Nancy L. Tetreault, 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, Noah P. Hill and Stephanie A. 

Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Lucien Martin appeals the denial of his petition for 

resentencing under Penal Code1 section 1172.6 (former 

§ 1170.952) following an evidentiary hearing. Appellant contends

there is insufficient evidence to support the superior court’s 

conclusion that appellant acted with reckless indifference to 

human life. We disagree. The record of appellant’s trial contains 

substantial evidence to support the superior court’s analysis 

under Banks and Clark3 that appellant acted with reckless 

indifference to human life; he is therefore ineligible for relief 

under section 1172.6. In light of this conclusion, we do not reach 

appellant’s further contention that the superior court committed 

reversible error by suggesting that appellant could also be liable 

for first degree murder as a member of an uncharged conspiracy 

to commit a series of robberies, the natural and probable 

consequence of which was murder.

FACTUAL AND PROCEDURAL BACKGROUND4

A. The robberies and murder

In the early morning hours of July 17, 1990, appellant and 

his cousin, Paul Watkins, engaged in a string of armed robberies 

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text. (Stats. 2022, 

ch. 58, § 10.)

3 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. 

Clark (2016) 63 Cal.4th 522 (Clark).

4 The following factual summary is based on the clerk’s and 

reporter’s transcripts from appellant’s trial, which were lodged 

with this court in connection with respondent’s request for 

judicial notice of the records in People v. Lucien Martin, Second 

Appellate District No. B069142.
3

during which one of the victims was shot and killed. Appellant 

supplied the large nine-millimeter semiautomatic pistol with a 

magazine containing over 17 live rounds, which Watkins wielded 

in each of the robberies.

Around 3:30 a.m., appellant and Watkins approached 

Anthony Orosco and Juan Gallegos, who were sitting in Orosco’s 

black Nissan pickup truck in the parking lot of an AM-PM MiniMart in Riverside. Watkins went to the driver’s side and told 

Orosco to “get the fuck out of the truck.” When Orosco turned his 

head, Watkins struck him on the temple with the gun. Leaving 

the keys in the ignition, Orosco exited the truck as Watkins

continued to point his gun at him. Watkins then told Orosco to 

“get the hell out of here.”

In the meantime, appellant went to the passenger side of 

the truck where Gallegos was seated. After Gallegos exited the 

vehicle, appellant took Gallegos’s wallet and a gold chain with an 

engraved heart. Orosco and Gallegos then watched as Watkins 

jumped into the truck bed and appellant got into the driver’s seat 

and drove away. Appellant stopped at a gas station to allow

Watkins to get into the passenger seat in the cab before 

continuing on the freeway to the next robbery.

Shortly before 5:00 a.m., appellant pulled the truck into a 

Greyhound bus station in Claremont where Jihad Muhammed 

was standing alone waiting for a bus. Appellant stopped next to 

Muhammed. Without exiting the vehicle, Watkins pulled out the 

gun, pointed it at Muhammed, and demanded his money. 

Muhammed threw about $12 in cash into the truck, and 

appellant drove away.

Appellant then drove to a Holiday Inn in West Covina 

where he and Watkins had decided to commit another robbery. 
4

As they pulled into the driveway sometime after 5:00 a.m., they 

saw Raymond Shield and his family in front of the hotel 

unloading luggage from a car to the sidewalk. Appellant parked 

the truck nearby and popped the hood. As he and Watkins 

quickly hopped out, Watkins tucked the gun into his waistband. 

They hurried to the front of the truck, opened the hood, and 

looked inside as if they were having engine trouble.

Watkins waved at Shield, who nodded and smiled. Shield 

walked over to the truck and offered to help. He stood with 

appellant and Watkins for about a minute as he appeared to look 

at the engine. Shield then hurried away from the truck toward 

his family. Fearing that Shield was going to call the police, 

appellant and Watkins immediately put the hood down and 

rushed to the cab of the truck. Appellant returned to the driver’s 

seat as Watkins got in on the passenger side. The passenger door 

remained open. Before pulling both legs into the truck, Watkins 

took the gun from his waistband and fired a single fatal gunshot 

at Shield, who was about four or five steps away from the truck. 

Shield fell to the ground, and the truck sped away, tires 

screeching, with appellant at the wheel. The passenger door 

closed as the truck was accelerating.

After fleeing the scene of the murder, appellant drove to 

Gardena, a 35-minute drive from West Covina. There, they 

decided to commit another robbery. Appellant entered Steve’s 

Market around 8:45 a.m., approached the counter, and asked 

Kyung Lee, the store’s owner, for a pack of cigarettes. Lee told 

appellant they cost $1.95 and put a pack on the counter. Saying 

he needed to get another dollar, appellant walked out to a truck 

parked in front of the store. Lee watched appellant speak to 

Watkins in the truck, and then saw Watkins load a magazine 
5

into a gun. Lee hid behind a counter as appellant and Watkins 

returned to the market. Appellant took money from the cash 

register and picked up the cigarettes while Watkins stood at the 

store entrance pointing his gun toward the register. Lee then 

pulled out his own handgun and fired. Watkins dropped the 

gun’s magazine on the floor before appellant and Watkins fled in 

opposite directions.

B. Appellant’s conviction

Appellant was convicted by jury in 1992 of the first degree 

murder (§ 187, subd. (a), count 1) and attempted robbery 

(§§ 664/211, count 2) of Shield, the second degree robbery of 

Muhammed (§ 211; count 3), the second degree robbery of Lee 

(§ 211; count 4), and the second degree robberies of Orosco (§ 211; 

count 5) and Gallegos (§ 211; count 6). The jury found that the 

murder occurred during the commission of an attempted robbery. 

(§ 190.2, subd. (a)(17).) As to all counts, the jury found true the 

allegation that a principal was armed with a firearm in the 

commission of the crime. (§ 12022, subd. (a)(1)). The trial court 

sentenced appellant to state prison for a term of life without the 

possibility of parole plus one year for the murder, to be served 

consecutively with the determinate term of nine years eight 

months on counts 3, 4, 5, and 6.

This court affirmed the judgment in appellant’s direct 

appeal.

C. The section 1172.6 evidentiary hearing and the 

superior court’s findings

Appellant filed a petition for resentencing pursuant to 

section 1172.6. The superior court found a prima facie case for 

relief had been made, issued an order to show cause, and held an

evidentiary hearing in accordance with section 1172.6, 
6

subdivision (d). At the hearing, the superior court noted that the 

prosecution had the burden of proving beyond a reasonable doubt 

that appellant could be convicted of murder on a theory that 

remains valid under current law. It further recognized its duty to 

sit as an independent trier of fact. To that end, the court stated 

it had “spent substantial time reviewing the record in the case,” 

and had “a good grasp of the facts” and the evidence.

The prosecution argued appellant is liable for murder 

under current law as a direct aider and abettor to the murder 

and also under a felony-murder theory as a major participant in 

the attempted robbery of Shield who acted with reckless 

indifference to human life. When the defense argued, the court 

asked counsel to focus on why appellant should not be found 

liable under a felony-murder theory as a major participant who 

acted with reckless indifference to human life pursuant to Banks

and Clark. The defense conceded that appellant was a major 

participant in the attempted robbery of Shield as well as the 

other robberies, but asserted there was no evidence appellant 

acted with reckless indifference to human life: Appellant did not 

encourage Watkins to shoot or otherwise actively participate in 

the murder; given Watkins’s nonviolent conduct during the 

previous robberies, appellant could not have anticipated that 

Watkins would shoot anyone when the men attempted to rob 

Shield; and “the only thing [appellant] did . . . was leave the 

scene, get in the driver’s seat, and drive away” with his cousin in 

the car.

The superior court denied the petition. It rejected the 

People’s argument that appellant could be convicted of the 

murder under a theory of direct aiding and abetting, but 

analyzing the evidence under Banks and Clark, the court found 
7

appellant guilty of felony murder under current law. In so ruling, 

the court emphasized appellant’s role in supplying the weapon 

used to kill Shield, Watkins’s use of this very large, loaded gun to 

threaten the victims in each of the robberies, appellant’s failure 

to do anything in the aftermath of the shooting but help Watkins 

to escape, and appellant’s commission of yet another robbery 

using the same loaded firearm immediately after the murder. On 

the strength of this evidence, the court declared, “[A]pplying the 

Banks and Clark analysis, it was clear[ ] that [appellant] was a 

major participant, [and] acted with reckless indifference to 

human life.” Finding appellant ineligible for relief under section 

1172.6, the superior court denied appellant’s petition for 

resentencing.

DISCUSSION

I. Substantial Evidence Supports the Superior 

Court’s Finding that Appellant Acted with 

Reckless Indifference to Human Life as a Major 

Participant in the Attempted Robbery of Shield

A. Applicable legal principles

Effective January 1, 2019, Senate Bill No. 1437 was 

enacted by the Legislature “ ‘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).) In addition to substantively amending 

sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 

added section [1172.6], which provides a procedure for convicted 

murderers who could not be convicted under the law as amended 
8

to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 

952, 959.) Specifically with regard to felony-murder liability, 

Senate Bill No. 1437 amended section 189, subdivision (e) to add 

the requirement that a defendant who was not the actual killer or 

a direct aider and abettor with the intent to kill must have been a 

major participant in the underlying felony who acted with 

reckless indifference to human life. (People v. Strong (2022) 13 

Cal.5th 698, 707–708.)

Once a defendant convicted of murder under the old law 

has filed a facially sufficient resentencing petition under section 

1172.6, the superior court must determine whether the petitioner

has made a prima facie showing of eligibility for relief, and, if so, 

issue an order to show cause. (§ 1172.6, subd. (c); People v. 

Wilson (2023) 14 Cal.5th 839, 869 (Wilson); People v. Nieber

(2022) 82 Cal.App.5th 458, 469–470 (Nieber).)

The superior court then conducts an evidentiary hearing to 

determine whether the petitioner is entitled to relief. (§ 1172.6, 

subd. (d)(1).) At that hearing, the superior court sits as the trier 

of fact, and the burden of proof rests with the prosecution “ ‘to 

prove, beyond a reasonable doubt, that the petitioner is guilty of 

murder or attempted murder’ under the law as amended by 

Senate Bill [No.] 1437 (§ 1172.6, subd. (d)(3)).” (Wilson, supra, 14 

Cal.5th at p. 869.) “[T]he 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.” (§ 1172.6, subd. (d)(3).) “In 

addition to evidence admitted in the petitioner’s prior trial, both 

‘[t]he prosecutor and the petitioner may also offer new or 

additional evidence to meet their respective burdens.’ ([§ 1172.6, 

subd. (d)(3)].) ‘If the prosecution fails to sustain its burden of 
9

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.)” (Wilson, at p. 869; People v. Hill (2024) 100 Cal.App.5th 

1055, 1065–1066 (Hill).)

B. Substantial evidence supports the superior court’s 

finding that appellant acted with reckless indifference to 

human life

Appellant does not challenge the superior court’s finding 

that he was a major participant in the attempted robbery of 

Shield and the other robberies, but asserts there is no substantial 

evidence that he acted with reckless indifference to human life 

within the meaning of the Supreme Court’s decisions in Banks, 

supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522. We 

disagree.

“On appeal from the denial of a section 1172.6 petition after 

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

findings for substantial evidence and the court’s application of 

the law to those facts de novo. (People v. Wilson (2023) 90 

Cal.App.5th 903, 916.) In conducting our review, we consider the 

whole record in the light most favorable to the superior court’s 

findings (People v. Rivera (2019) 7 Cal.5th 306, 323), and we 

presume ‘ “ ‘every fact in support of the judgment the trier of fact 

could have reasonably deduced from the evidence.’ ” ’ (Id. at 

p. 331.)” (Hill, supra, 100 Cal.App.5th at p. 1066.) Our task is to 

determine “whether substantial evidence, defined as reasonable 

and credible evidence of solid value, has been disclosed, 

permitting the trier of fact to find guilt beyond a reasonable 

doubt.” (People v. Vargas (2020) 9 Cal.5th 793, 820.)
10

“ ‘Substantial evidence includes circumstantial evidence 

and any reasonable inferences drawn from that evidence.’ ” 

(People v. Brooks (2017) 3 Cal.5th 1, 57.) Reviewing the whole 

record, we must “determine whether any rational trier of fact 

could have found the essential elements of the crime . . . beyond a 

reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 

357; People v. Montanez (2023) 91 Cal.App.5th 245, 270.) And 

“whether the prosecutor relied upon direct or circumstantial 

evidence, if the trier of fact’s determination is supported, reversal 

is not warranted, even where ‘ “ ‘the circumstances might also 

reasonably be reconciled with a contrary finding.’ ” ’ ” (Hill, 

supra, 100 Cal.App.5th at p. 1066.)

In Banks, our Supreme Court identified several factors to 

be considered when a court must determine whether a defendant

was a major participant “ ‘in criminal activities known to carry a 

grave risk of death.’ ” (Banks, supra, 61 Cal.4th at p. 803.) A 

year after Banks, the high court handed down another list of 

factors to consider in determining whether a defendant acted 

with reckless disregard for human life. (Clark, supra, 63 Cal.4th 

at pp. 618–623.) Our Supreme Court has described the mental 

state of reckless indifference to human life as “ ‘knowingly 

engaging in criminal activities known to carry a grave risk of 

death.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676 (Scoggins), 

quoting Tison v. Arizona (1987) 481 U.S. 137, 157 [107 S.Ct. 

1676, 95 L.Ed.2d 127].) This mental state “ ‘encompasses a 

willingness to kill (or to assist another in killing) to achieve a 

distinct aim, even if the defendant does not specifically desire 

that death as the outcome of his actions.’ ” (Scoggins, at pp. 676–

677, quoting Clark, at p. 617.)
11

The court explained that “[r]eckless indifference to human 

life has a subjective and an objective element. (Clark, supra, 63 

Cal.4th at p. 617.) 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.’ (Banks, supra, 61 Cal.4th at p. 801; see Clark, at 

p. 617.) 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.” ’ (Clark, at p. 617, quoting Model Pen. 

Code, § 2.02, subd. (2)(c).)” (Scoggins, supra, 9 Cal.5th at p. 677.)

The relevant factors to consider in determining reckless 

indifference to human life (which overlap significantly with the 

major participant factors identified in Banks) include: “(1) The 

defendant’s use of, or awareness of the presence of a weapon or 

weapons; (2) The defendant’s physical presence at the crime, and 

the opportunities to limit it and/or to aid the victim(s); (3) The 

duration of the felony and restraint of the victim(s); (4) The 

defendant’s awareness that an associate is likely to kill; and 

(5) The defendant’s efforts to minimize the risk of violence during 

the course of the felony.” (Hill, supra, 100 Cal.App.5th at 

pp. 1074–1075; Clark, supra, 63 Cal.4th at pp. 618–623.) In both 

Banks and Clark, our Supreme Court emphasized that “ ‘[n]o one 

of these considerations is necessary, nor is any one of them 

necessarily sufficient.’ ” (Clark, at p. 618, quoting Banks, supra, 

61 Cal.4th at p. 803.) Rather, what matters is the totality of the 

circumstances. (Scoggins, supra, 9 Cal.5th at p. 677.)
12

Based on the totality of the circumstances and applying the 

Clark factors to the case at bar, we conclude that substantial 

evidence supports the superior court’s finding that appellant

acted with reckless indifference to human life as a major 

participant in the attempted robbery of Shield.

Appellant’s use of or awareness of the presence of a weapon.

Appellant was obviously aware of the presence of the 

weapon and knew that it would be used. Indeed, as the superior 

court found, appellant set the whole criminal enterprise in 

motion by supplying the weapon that was used in all four of the 

robberies as well as the attempted robbery which resulted in 

Shield’s murder. The weapon was a big “scary” gun that “looked 

like an Uzi.” It had a magazine containing at least 17 live 

rounds, and the court reasonably inferred that appellant knew 

the gun was loaded. Both men handled the gun prior to the 

murder, passing it back and forth between them. There was no 

evidence appellant and his cousin even contemplated committing 

this string of robberies before appellant came up with a “proper 

gun” they could use to “jack some people.” But as soon as 

Watkins suggested committing the robberies, appellant agreed.

Appellant’s physical presence at the crime, and 

opportunities to limit its scope, minimize the risk of violence,

and/or aid the victim.

Appellant was physically present and actively facilitated 

the entire string of robberies leading up to and continuing after 

the fatal shooting. He personally robbed Gallegos while Watkins 

held the victims at gunpoint, struck Orosco in the face with the 

gun, and forced the victims out of their truck. Despite Watkins’s

aggressive use of the gun during the first robbery, appellant 

facilitated the hunt for the next victim, driving the stolen truck
13

from Riverside to Claremont where he and Watkins committed 

another robbery using the gun. After that robbery, appellant 

drove on to West Covina with Watkins in the passenger seat 

holding the gun in his lap.

Intent on committing another robbery, appellant pulled 

into the driveway of the Holiday Inn and parked the truck near 

the Shield family. Appellant popped the hood, and as he and 

Watkins quickly exited the truck, Watkins tucked the gun into 

his waistband. They both hurried to the front of the truck and 

opened the hood to make it appear they had engine trouble. 

Watkins waved to Shield, drawing Shield over to the truck and 

away from his family. As soon as Shield began to walk hurriedly 

back toward his family, appellant and Watkins closed the hood 

and rushed to get back into the truck, fearing that Shield was 

going to call the police. With the passenger door still open and 

one foot hanging outside the vehicle, Watkins fired the gun at 

Shield, who was only about four or five steps away. The truck 

then immediately took off, tires screeching, with appellant at the 

wheel. The passenger door closed as the truck started to peel 

away.

In light of appellant’s presence and active participation in 

the robberies of Orosco, Gallegos, and Muhammed, his presence 

and conduct during the attempted robbery and killing of Shield 

was particularly suggestive of his mental state. Indeed, as our 

Supreme Court in Clark observed, “Proximity to the murder and 

the events leading up to it may be particularly significant where

. . . the murder is a culmination or a foreseeable result of several 

intermediate steps.” (Clark, supra, 63 Cal.4th at p. 619; People v. 

Mitchell (2022) 81 Cal.App.5th 575, 592 (Mitchell) [the fact that 

defendant “was physically present at every stage of the crime: 
14

planning, execution, dividing the spoils, and flight” supported 

finding of reckless indifference].)

Even more revealing of appellant’s reckless indifference to 

human life was his conduct following the homicide. After the 

failed robbery and killing of Shield, appellant drove Watkins to 

Gardena, a 35-minute drive from the Holiday Inn in West 

Covina. Upon reaching a safe distance from the scene of the 

killing, appellant and Watkins decided to commit another 

robbery using the same weapon, and drove to Steve’s Market. 

Appellant went inside and asked for a pack of cigarettes. On the 

pretense of going to get more money to pay for the cigarettes, 

appellant returned to the truck where Watkins was waiting. 

After inserting a magazine into the gun, the two men walked to 

the store together, whereupon Watkins stood at the door pointing 

the gun as appellant broke into the cash register.

Stressing “the importance of presence to culpability,” our 

Supreme Court has observed that a defendant who is present has

“ ‘an opportunity to act as a restraining influence on murderous 

cohorts. If the defendant fails to act as a restraining influence, 

then the defendant is arguably more at fault for the resulting 

murders.’ ” (Clark, supra, 63 Cal.4th at p. 619; In re Loza (2017) 

10 Cal.App.5th 38, 53–54 (Loza).) Here, despite many 

opportunities to do so, appellant did nothing to minimize the 

potential for violence or limit the scope of the crime spree, even

after Watkins had used violence during the first robbery and then 

shot and killed Shield. Instead, after participating in the ruse 

that lured Shield to the truck, and knowing that his cousin had 

shot the man at close range, appellant rendered no aid, but drove 

Watkins away from the scene as fast as possible. After reaching 
15

a place of safety, he fully participated with Watkins in yet 

another robbery using the same weapon.

Appellant’s conduct easily satisfies the Clark standard for 

demonstrating reckless indifference to human life. (Clark, supra,

63 Cal.4th at p. 619 [United States Supreme Court and “[o]ther 

appellate courts have considered relevant a defendant’s failure to 

provide aid while present at the scene” in finding reckless 

indifference to human life]; see also Nieber, supra, 82 Cal.App.5th 

at p. 479 [defendant’s failure to render aid supported finding of 

reckless indifference]; People v. Bradley (2021) 65 Cal.App.5th 

1022, 1034–1035 [immediate flight after shooting without 

rendering aid supports finding of reckless indifference]; In re 

Parrish (2020) 58 Cal.App.5th 539, 544 (Parrish) [petitioner “took 

no steps to reduce risks or to alleviate harm,” nor did he so much 

as pause “to aid or comfort the victim”]; Loza, supra, 10 

Cal.App.5th at p. 53 [“As with petitioner’s role as a major 

participant, we find particularly significant in concluding that 

petitioner acted with reckless indifference his physical presence 

at the scene and his failure to make any attempt to prevent the 

shootings or to assist the victims”].)

The duration of the crime.

Given that Shield was shot out of fear that he was going to 

call the police, the brief duration of the attempted-robberyturned-murder does not weigh in appellant’s favor. (See Parrish, 

supra, 58 Cal.App.5th at p. 544 [“the brevity of the robbery and 

the speed of the murder arose because Parrish told the gunmen a 

witness was calling the police, at which point one gunman shot a 

witness. The rapidity of this sequence does not make Parrish less 

blameworthy”]; Mitchell, supra, 81 Cal.App.5th at p. 594 

[duration of the crime was brief, not because the defendant 
16

showed compassion or regard for the victim, but because the 

frightened victim tried to flee].)

Moreover, the attempted robbery that led to Shield’s death 

was not a quick one-off event, but one of many crimes committed 

over a five and a half-hour period. Appellant had ample time 

during the drive from one robbery to the next to reason with 

Watkins and seek to minimize violence. Instead, even after 

fleeing the Shield murder, appellant drove to Steve’s Market and 

again participated in a potentially lethal robbery.

Appellant’s awareness of Watkins’s propensity for violence

Appellant argues there is no evidence he could have known

his cousin would use lethal force in committing any of the 

robberies. He further suggests his expression of surprise after 

the shooting shows he had not anticipated Watkins would fire the 

gun. To the contrary, appellant became aware during the very 

first robbery that Watkins was willing to do more than just 

brandish the weapon when he struck Orosco in the face with the 

gun. And as set forth above, appellant’s active participation in 

another robbery after the shooting demonstrated that appellant 

was aware of the potential for deadly violence and accepted that

risk. Not only did appellant drive Watkins to Steve’s Market 

after the Shield killing, but he knew that Watkins had just 

loaded the magazine into the gun and went on with the robbery

anyway. (See Mitchell, supra, 81 Cal.App.5th at pp. 593–594 

[defendant did nothing to distance himself from his brother’s 

violent actions, but instead continued to help rob the victim]; see 

also Loza, supra, 10 Cal.App.5th at p. 55 [“petitioner’s 

participation in and presence during the armed robbery exhibited 

a reckless indifference to human life, notwithstanding any 

surprise he may have exhibited after the fact”].)
17

The defendant’s efforts to minimize the risk of violence

It bears repeating that appellant did nothing to minimize 

the risk of violence during this string of armed robberies. Quite 

the opposite: Appellant procured the loaded weapon used in the 

robberies, appellant actively participated in every one of the 

robberies, appellant joined in the deception which drew Shield to 

the truck to facilitate robbing him, and appellant enabled 

Watkins to escape after Watkins shot Shield. Then appellant 

facilitated another robbery which presented an even greater 

likelihood of lethal violence.

The totality of the circumstances support the superior court’s 

finding of reckless indifference

The subjective component of reckless indifference to human 

life is a mental state which is rarely subject to proof by direct 

evidence. In assessing the sufficiency of the evidence supporting 

the superior court’s conclusion that appellant acted with reckless 

indifference to human life, we accept, as we must, the logical 

inferences the court as trier of fact drew from the circumstantial 

evidence presented at appellant’s trial. (People v. Combs (2004) 

34 Cal.4th 821, 849 [“An appellate court must accept logical 

inferences that the [trier of fact] might have drawn from the 

evidence even if the [reviewing] court would have concluded 

otherwise”].) We therefore conclude that substantial evidence 

supports the superior court’s finding that appellant acted with 

reckless indifference to human life as a major participant in the 

attempted robbery that resulted in the death of the victim.
18

C. The superior court’s apparent failure to consider 

appellant’s youth at the time of the offense does not require 

remand for a determination of the impact of youth-related 

factors on appellant’s culpability for murder

Since the Supreme Court’s decisions in Banks, Clark, and 

Scoggins, appellate courts have considered whether and to what 

extent a defendant’s relative youth—which various statutes refer 

to as being under the age of 26 (§§ 3051, subd. (a)(1), 4801, subd. 

(c))—is relevant to assessing whether a defendant has satisfied 

the subjective component of the reckless indifference test. These 

courts have reached the general consensus that the defendant’s 

age at the time of the offense is an additional factor a court may 

consider in determining whether the defendant acted with 

reckless indifference to human life. (See, e.g., People v. Harris

(2021) 60 Cal.App.5th 939, 960 (Harris); In re Moore (2021) 68 

Cal.App.5th 434, 439 (Moore); People v. Ramirez (2021) 71 

Cal.App.5th 970, 990 (Ramirez); Mitchell, supra, 81 Cal.App.5th 

at p. 595; In re Harper (2022) 76 Cal.App.5th 450, 468–470 

(Harper); People v. Keel (2022) 84 Cal.App.5th 546, 558–559

(Keel); People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

(Jones); People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 

(Oliver); People v. Pittman (2023) 96 Cal.App.5th 400, 416–418

(Pittman).)

Appellant was 18 years old when he committed the string 

of robberies that resulted in the murder in this case. Although 

appellant did not raise any issue regarding his youth at the time 

of the offenses during the evidentiary hearing in the superior 

court, he now argues that the court erred in failing to consider 

appellant’s “cognitive development and the hallmark features of 

youth” in determining whether appellant acted with reckless 
19

indifference to human life. According to appellant, the error 

requires reversal and remand to permit the superior court to 

consider the impact of youth-related factors on appellant’s 

culpability for murder. In response, the Attorney General asserts 

appellant forfeited any claim regarding the consideration of his 

youth by failing to raise the issue in the superior court, but in 

any event, the court’s failure to consider appellant’s youth was 

harmless.

Appellant counters that it was not until after the 

evidentiary hearing in this case that the court in Jones 

definitively held that “[i]n addition to the Banks and Clark

factors, a defendant’s youthful age must be considered.” (Jones, 

supra, 86 Cal.App.5th at p. 1088, fn. 7.) Because the law in this 

area was unsettled at the time of the hearing, appellant argues it 

is unlikely the court or the parties knew consideration of 

appellant’s age and maturity level would become “a mandatory 

consideration.”

To the contrary, the relevance of youth to the reckless 

indifference inquiry was well established by the time of the 

November 4, 2022 evidentiary hearing on appellant’s section 

1172.6 petition. Harris, supra, 60 Cal.App.5th 939, the first case

on this issue, was decided on February 16, 2021, nearly two years 

before the hearing in this case. After Harris five other cases⎯all 

decided before November 2022⎯held that youth is a relevant 

factor in the reckless indifference analysis: Moore, supra, 

68 Cal.App.5th 434 (decided Aug. 31, 2021), Ramirez, supra, 71 

Cal.App.5th 970 (decided Nov. 23, 2021), Mitchell, supra, 

81 Cal.App.5th 575 (decided July 22, 2022), Harper, supra, 76 

Cal.App.5th 450 (decided Mar. 17, 2022), and Keel, supra,

84 Cal.App.5th 546 (decided Oct. 21, 2022).
20

Thus, unlike Jones, where the evidentiary hearing was held 

less than a month after Harris and before any other cases 

addressed the issue, the hearing in this case occurred well after

numerous courts had decided that the defendant’s youth should 

be considered as part of the reckless indifference inquiry. In 

general, we presume the superior court knew and applied the 

relevant law in exercising its duties. (In re Julian R. (2009) 47 

Cal.4th 487, 499 [“ ‘we apply the general rule “that a trial court is 

presumed to have been aware of and followed the applicable 

law” ’ ”].) But even if the superior court did not consider this 

factor in its reckless indifference analysis, we find any error 

harmless under People v. Watson (1956) 46 Cal.2d 818, 836.

(Oliver, supra, 90 Cal.App.5th at p. 489, fn. 8 [applying Watson

harmless error analysis]; Pittman, supra, 96 Cal.App.5th at 

pp. 417–418 [same].)

There is no evidence in the trial record that suggests

appellant lacked the maturity to act with reckless indifference to 

human life. To the contrary, the evidence showed appellant to be 

a mature young man who was able to appreciate the risk his 

crime spree posed to human life. Appellant had gotten married 

in 1991 and had good and loving relationships with his wife and 

stepson. He had worked for his brother-in-law, assisting with 

painting, plumbing and carpentry in his brother-in-law’s 

residential construction business, and his brother-in-law 

considered him to be a “[v]ery good worker.” Appellant and his 

daughter also lived with the brother-in-law for about six months. 

The brother-in-law described appellant’s relationship with his 

daughter as “[b]eautiful.” He observed appellant to be a caring 

and involved father, “[b]athing the child, comb[ing] her hair,” and 

“provid[ing] for her.”
21

Significantly, appellant’s conduct before, during and after

the robberies and attempted robbery that resulted in the victim’s 

death did not demonstrate an immaturity that would suggest he 

was not acting with reckless indifference to human life. As the 

court in Oliver explained, “[T]he case law discussing the 

differences in brain development among youthful offenders (in 

contrast to their adult counterparts) stress two areas of 

divergence: (1) their relative impulsivity; and (2) their 

vulnerability to peer pressure.” (Oliver, supra, 90 Cal.App.5th at 

p. 489.) Here, there is nothing to indicate appellant’s 

participation in this crime spree was due to peer pressure, nor 

did the evidence suggest he behaved “like an immature, naïve, or 

impulsive adolescent.” (Harper, supra, 76 Cal.App.5th at p. 472.)

Rather, appellant and his cousin planned and carried out a 

series of robberies using a loaded firearm supplied by appellant. 

Not only was appellant an active participant in each of the 

robberies, he also took part in the ruse which drew Shield over to 

the truck, and then immediately drove Watkins away from the 

scene after the fatal shooting. Following a 35-minute drive from 

West Covina to Gardena, appellant and Watkins assessed their 

gains from the robberies they had committed and realized they 

had not had much success. After discussion they decided to 

commit one more robbery in hopes of coming out ahead for the 

night.

The evidence in this case thus shows appellant making a 

series of reasoned, if ill-advised, decisions to commit a string of 

robberies after discussion and planning with his cousin. 

Appellant actively facilitated every stage of the crime spree. 

There is simply no evidence to suggest appellant’s participation 

in the attempted robbery which resulted in the victim’s death 
22

was the product of youthful impulsivity or an inability to assess 

the consequences of his actions.

While “[y]outh can distort risk calculations,” we also 

recognize that “[t]he fact of youth cannot overwhelm all other 

factors.” (Mitchell, supra, 81 Cal.App.5th at p. 595.) As set forth 

above, the consideration of appellant’s youth in this case “is 

overborne here by the Banks-Clark-Scoggins factors that show 

[appellant’s] indifference to his victim’s life.” (Ibid.) Accordingly,

we conclude that any error in the superior court’s failure to 

consider appellant’s youth was harmless.

DISPOSITION

The order denying appellant’s petition for resentencing 

under Penal Code section 1172.6 is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.