Filed 7/11/23 P. v. Johnson CA2/4

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

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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.

LA’MIN JOHNSON, 

Defendant and Appellant.

 B320943

 (Los Angeles County

 Super. Ct. No. GA030918)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. 
2

In 1999, a jury convicted appellant La’Min Johnson of

numerous crimes, including one count of first degree murder,

and found true special circumstance allegations that the 

murder was committed during the commission of a burglary. 

Appellant was sentenced to life imprisonment without the 

possibility of parole, plus 19 years. 

In 2019, appellant filed a petition for resentencing 

under section 1172.6 (former section 1170.95),1 which 

provides that persons who were convicted under theories of 

felony murder or murder under the natural and probable

consequences doctrine, and who could no longer be convicted 

of murder following the enactment of Senate Bill No. 1437 

(S.B. 1437), may petition the sentencing court to vacate the 

conviction and resentence on any remaining counts. (Stats. 

2018, ch. 1015, § 1, subd. (f).) 

The trial court denied the petition after an evidentiary 

hearing. The court found the prosecution had sustained its 

burden of showing beyond a reasonable doubt that appellant 

was liable under a still-valid theory of murder, as he was a 

major participant in the burglary who acted with reckless

indifference to human life.

We appointed counsel to represent appellant on appeal,

and after examination of the record, counsel filed an opening 

brief raising no issues and requesting that we follow the 

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

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

ch. 58, § 10). We hereafter cite to section 1172.6 for ease of reference. 

Undesignated statutory references are to the Penal Code.
3

procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 

216 (Delgadillo). Thereafter, appellant filed his own

supplemental brief, in propria persona, raising several 

issues. For the reasons set forth below, we affirm the trial 

court’s order.

BACKGROUND

A. Procedural Background2

Appellant and his codefendant, Jason Mency, were 

charged and tried together, with separate juries, for 88 

offenses and various firearm enhancements. (People v. 

Johnson (June 18, 2002, B137441) 2002 

Cal.App.Unpub.LEXIS 5467, *2-3 [nonpub. opn.] (Johnson).) 

On January 19, 1999, appellant’s jury convicted him of 

multiple crimes including the attempted murder of 

Christopher Ramirez. The jury found true the allegations

that appellant “personally used” a handgun and that a 

principal was armed with a handgun in the commission of 

the offense. The jury found appellant not guilty of 38 counts

and was unable to reach a verdict on seven counts, including 

Count 1 — the special circumstance murder of Marsha Lee 

Birch. (Johnson, supra, 2002 Cal.App.Unpub.LEXIS at

p. *3.) 

2 We cite to the opinion in appellant’s direct appeal in 

summarizing the procedural history of the case, which section 1172.6, 

subdivision (d)(3) expressly permits.
4

On October 25, 1999, after retrial, appellant was found 

guilty of additional crimes, including the first degree murder 

of Marsha Birch (§ 187, subd. (a)). The jury found true the 

special circumstance allegation that the murder was 

committed while appellant was aiding and abetting the 

commission of a burglary (§ 190.2, subds. (a)(17), (d)), and 

further found true that a principal was armed with a firearm 

during the commission of the murder (§ 12022, subd. (a)(1).) 

Appellant was sentenced to a term of life without the 

possibility of parole, plus 19 years.

On direct appeal, appellant argued, among other 

things, that there was insufficient evidence to support his 

murder and attempted murder convictions. This court 

concluded otherwise and affirmed appellant’s convictions in 

an unpublished decision. (Johnson, supra, 2002 

Cal.App.Unpub.LEXIS at pp. *34-41, 46-50.) 

On February 6, 2019, appellant filed a petition for 

resentencing under section 1172.6, indicating he had been 

convicted of first degree felony murder and alleging he could 

not now be convicted based on the statutory changes made 

by S.B. 1437. Counsel was appointed, and the trial court 

found a prima facie case had been made and issued an order 

to show cause on the petition. 

On April 27, 2022, the trial court held an evidentiary 

hearing. At the hearing, the court allowed appellant to 

orally amend his petition to include the attempted murder 

conviction (of victim Ramirez) but found he had failed to 

make out a prima facie case for relief. The court pointed out 
5

the jury found that appellant was the actual shooter; as 

such, appellant had not been convicted under (the now 

impermissible) natural and probable consequence theory of 

liability. Trial counsel for appellant did not object to the 

court’s conclusions on this issue. 

As to the felony murder conviction concerning victim 

Marsha Birch, the parties declined to present new evidence 

and, instead, made legal arguments based on the existing 

record of conviction, including the transcripts from 

appellant’s two criminal trials.3 The court took the matter 

under submission to issue a written decision. 

On May 13, 2002, after considering argument and the 

evidence submitted by the parties, the resentencing court 

denied the petition. The court found “the [P]eople have 

proven beyond a reasonable doubt that petitioner was a 

major participant and acted with reckless indifference to 

human life” and he was therefore ineligible for resentencing 

under section 1172.6.

Appellant timely appealed. 

3 The trial court admitted into evidence a compact disc containing 

the trial and clerk’s transcripts of the underlying criminal proceedings. 
6

B. Factual Background4 

Testimony at both trials demonstrated a close 

relationship between appellant and co-defendant Mency. In 

our summary below, we set forth uncharged acts admitted

during trial to establish the connection between appellant 

and Mency, as well as two crimes (of which they were both 

convicted) that took place prior to the Birch murder. The 

trial court summarized these incidents in its written 

decision, as did the parties in their briefing arguments 

before the trial court.

1. Uncharged Acts Involving Appellant and CoDefendant Mency

On July 31, 1995, Pasadena police stopped a car driven 

by appellant, with Mency in the passenger seat. Inside the 

car was a scanner set to frequencies used by the Pasadena 

Police Department. Appellant and Mency had shards of 

glass on their clothing, and Mency had blood on his forearm, 

indicative of involvement in automobile burglaries where 

windows were broken. Police also found stereo components, 

including stereo faceplates, inside the vehicle.

On January 10, 1996, Pasadena police again stopped a 

car driven by appellant, with Mency as a passenger. An 

4 In its written decision, the court indicated it had relied on the 

reporter’s transcripts from both of appellant’s criminal trials in 

rendering its decision on the section 1172.6 petition but did not 

consider any evidence pertaining to counts of which appellant was 

actually acquitted. 
7

officer searched the car and found a police scanner, gloves,

screwdrivers, a slim-jim, a black knit cap, and a radio face 

plate. Two weapons were also recovered, a nine-millimeter 

handgun and a .380 handgun. 

From November 1996 through January 1997, Mency’s 

uncle, Randolph Cunningham, lived with Mency. 

Cunningham saw appellant and Mency together on either a 

daily basis or four times a week, late at night at Mency’s 

house. Cunningham often saw the men change into dark 

clothing and dark ski caps before leaving the house at night. 

On one occasion, Cunningham saw them return with a 

computer, radios, phones, a television, and a VCR.

On January 2, 1997, at around 11:00 pm or 12:00 a.m. 

(a few hours before Birch’s murder, see post), Cunningham 

saw appellant and Mency leave the home wearing dark 

clothing, dark caps, backpacks, and gloves. 

2. Conviction for Crimes Occurring Prior to 

Birch Murder

At appellant’s first trial, appellant and Mency were

convicted of charges arising out of the following two 

incidents that predated the Birch murder. 

a. Polwrek Home Invasion (Counts 51-59)

On September 18, 1996, John Polwrek was asleep in 

his Pasadena home when he was awakened by two armed, 

male intruders wearing dark clothing, masks, and gloves. 
8

The men told Polwrek they had disabled the home alarm and 

cut the phone lines. 

The men used duct tape to tie Polwrek’s hands and 

legs. His wife and young children, who were sleeping in 

another room, were similarly tied up. When Polwrek told 

the assailants to leave his son alone, he was struck on the 

head with a gun, causing blood to run down his head. The 

house was ransacked after multiple threats and demands for 

money. The men stole money, a television, a VCR, a 

computer, and a satellite TV control box. The men also stole 

the family van. The van was recovered a few hours later in 

Altadena. The satellite TV control box was recovered from 

appellant’s parents’ home on January 3, 1997. 

A jury found that appellant and Mency were the two 

men who committed the home invasion, and both were 

convicted of multiple counts arising out of the incident. The 

jury further found true that Mency personally used a firearm 

during the home invasion, but not true that appellant 

personally used a firearm during the incident. 

b. Attempted Murder of Christopher Ramirez

(Counts 22-27)

On December 22, 1996, Christopher Ramirez was 

sitting with friends in his Suburban SUV outside of his 

house when he noticed two men walking towards his 

mother’s van that was parked in the driveway. Ramirez and 

his friends exited the SUV, and Ramirez asked the men 
9

what they were doing.5 One man, the shorter of the two,

cocked a nine-millimeter handgun by pulling back the slide

and pointed it in the air. Ramirez ran, and the shorter man

ran after him and shot him in the back of his upper right leg 

as he attempted to hop over a fence. Ramirez saw the man

trying to work his weapon, but the gun appeared jammed.

As Ramirez was being chased, the other man 

approached the rest of the group and ordered them back into 

their SUV, with his weapon pointed at them. The group got 

back into the SUV, and the man broke the driver’s side 

window with his gun and got into the driver’s seat. The 

shorter man returned and climbed into the passenger seat.

The men asked “where are the keys. Where are the fucking 

keys?” One of the victims, Michael Bushmeyer (who was 

intoxicated) responded, “They’re right there, fool.” One of 

the men responded, “[d]on’t call me a fool,” and the shorter 

man, who was in the passenger seat, pulled Bushmeyer out 

of the SUV and threw him on the ground. While Bushmeyer 

was rolled into a fetal position, the shorter man held his gun 

near Bushmeyer’s head saying, “Don’t call me a fool,” as 

Bushmeyer responded, “I’m sorry. I’m sorry.” Thereafter, a 

car came down the street and the suspects ran. 

In January 1997, one of the victims, Bernard Krell, 

reported that appellant was the person who chased Ramirez 

5 When Ramirez saw the men, they had masks on their faces; 

however, two victims saw the men before they rolled down their masks 

(see fn., 7, post). 
10

on December 22nd, after Krell saw a news article about 

appellant and Mency’s arrest for a series of crimes that 

included their photos. At trial, Krell identified appellant as 

the person who chased Ramirez and as the person who stood 

over Bushmeyer with a gun.6 Mency later admitted he was 

involved in the Ramirez incident.

7

Appellant and Mency were charged with the attempted 

murder of Ramirez, as well as additional counts of vehicular 

burglary, attempted carjacking, and false imprisonment 

arising out of this incident. Both men were convicted of all 

charges, with the exception of a false imprisonment count 

regarding victim Pedro Diaz, who testified he ran from the 

scene early during the incident. The jury further found true 

6 On the night of the shooting, police arrested a man named Leon 

Ladmirault near the scene. Krell and Diaz identified Ladmirault as a 

suspect. At Ladmirault’s trial, Krell identified Ladmirault as the 

person who smashed the car windshield and got into the driver’s seat 

while Ramirez was being chased by the other man. Consistent with 

Krell, Diaz testified that Ladmirault was one of the two men he saw in 

the driveway before Diaz ran from the scene, but not the person who 

cocked his gun and chased Ramirez. The parties stipulated 

Ladmirault was convicted of attempted murder, attempted carjacking, 

assault with a firearm, and false imprisonment related to the 

December 22, 1996, incident. However, it was further stipulated that 

Ladmirault was not accused of actually firing a gun, and Ladmirault 

was tested for GSR and received negative results.

7 In addition to the two men initially spotted walking towards 

Ramirez’s mother’s van, there was a third suspect involved in the 

Ramirez incident. Two of the victims (Diaz and Bushmeyer) testified 

there was a third person across the street, or in the background, acting 

as a lookout during the incident. 
11

that appellant personally used a firearm during the offenses

but found not true that Mency personally used a firearm 

during any of the offenses.

3. Murder of Marsha Birch (Count 1, Second Trial)

a. The Shooting

On January 3, 1997, Marsha Birch left for work at 

around 5:00 a.m. As she went to her car, she was shot in the 

front right shoulder and through the neck, which ultimately 

caused her death. Her husband heard two shots and ran 

outside and found his wife laying on the sidewalk. Police 

found two expended casings and one expended bullet near 

Birch’s body. Police also recovered a bullet from Birch’s 

clothing while she was at the hospital. 

When police arrived, they noticed there was damage to 

a blue Honda parked across the street from where Birch was 

shot, as the rear passenger window had been broken and 

items were scattered inside the vehicle as if it had been 

ransacked and burglarized. Alfred Robinson, who lived 

across the street from the Birch family and was the owner of 

the blue Honda, had parked and locked his vehicle the 

previous night, with the window intact. Missing from the

car were a small briefcase, a nine-millimeter Beretta

handgun, an earthquake kit, and a flashlight. The 

earthquake kit and small briefcase were found in the bushes 

near the driveway at the Birch home. 
12

b. Police Arrest Appellant and Co-defendant 

Mency

On January 3, 1997, the same morning Birch was 

murdered, police were conducting an undercover 

surveillance of Mency’s home located on Olive Street in 

Monrovia. At 5:14 a.m., two men were seen running toward 

Mency’s home. One was taller than the other, and each had 

dark clothing. The two men went into the home and five 

minutes later came back out and walked up the street.

At 5:19 a.m., the men were seen at a nearby trash can 

where one man held the lid while the other leaned inside. A 

surveillance officer immediately looked into the trash can 

and found Birch’s purse and identification. The purse had a 

broken strap. 

The two men went back to Mency’s home. The taller of 

the two men was identified as Mency. Several minutes later, 

they reemerged from the home, and the shorter of the two 

men got into a gold Hyundai and drove up the street and 

into a gas station. Police followed the man into the gas 

station at approximately 5:30 a.m. and subsequently 

arrested him. The man was identified as appellant. 

Inside appellant’s vehicle, police observed a handheld 

scanner on the right front passenger seat, two bolt cutters,

and a pair of gloves. The handheld scanner was marked, 

“Property of Jason Mency.” Appellant’s hands were bagged 

for gunshot residue (GSR) testing. 
13

Police arrested Mency at approximately 6:30 a.m. At 

the time of his arrest, Mency was carrying a police scanner 

and wore an earplug. 

c. Investigation 

Police found a swamp cooler at Mency’s house that 

contained three handguns: a .45 caliber handgun with a 

loaded magazine and two nine-millimeter Beretta handguns 

with loaded magazines. One of the nine-millimeter Beretta 

handguns was identified as the gun that was taken from 

Robinson’s vehicle earlier that morning.8

A firearms expert determined the expended bullet 

recovered from Birch at the hospital and the bullet found 

near her body were fired from the .45 caliber handgun 

recovered from the swamp cooler. The two shell casings 

found at the crime scene may have been fired from that same 

gun, but the expert could not say for sure. 

After his arrest, Mency also had paper bags placed over 

his hands. The GSR test for Mency reflected one particle 

unique to gunshot residue and three particles consistent

with gunshot residue. The GSR test for appellant showed 

two particles unique to gunshot primer residue, four 

particles consistent with gunshot residue, and three 

particles of spherical lead, which a criminalist opined could 

only have come from firing a gun, handling a gun with the 

8 The other nine-millimeter firearm was found to have fired a 

bullet and a casing found at the Ramirez crime scene. 
14

particles already on it, or having been in very close 

proximity (i.e., less than three 3 feet) when the gun was 

fired. 

d. Jury Verdicts and Findings Regarding 

Appellant and Co-Defendant Jason Mency

At appellant’s first trial, in which he was jointly tried 

with Mency, the jury was unable to reach a verdict with 

regard to appellant but found Mency guilty of all counts 

charged in relation to the Birch murder: (1) first degree 

murder of Marsha Birch, with a finding that a principal was 

armed during the offense (Count 1), with true special 

circumstance findings that the murder was committed 

during the commission of a burglary and that it was 

committed during the commission of a robbery; (2) robbery of 

Marsha Birch (count 2); (3) vehicular burglary of Alfred 

Robinson’s vehicle (count 3); and (4) grand theft of the 

firearm belonging to Robinson (count 4). Mency was also 

found guilty of the crime of armed criminal action (count 11), 

meaning the jury found that on January 3, 1997, Mency was 

armed with a loaded firearm and harbored the intent to 

commit a felony (specifically, either robbery or burglary)

(count 11).

After retrial, appellant was convicted of the first degree 

murder of Marsha Birch, and the jury found true the 

allegation that a principal was armed during the offense.

The jury also found true the special circumstance allegation 

that the murder was committed during the commission of a 
15

burglary, but found not true the special circumstance 

allegation that the murder was committed during the 

commission of a robbery. The jury further convicted 

appellant of the vehicular burglary (count 3) and grand theft 

firearm (count 4), but was unable to reach a verdict on count 

2, the robbery of Birch. Finally, the jury found appellant 

guilty of armed criminal action (previously count 11, 

renumbered as count 5), which, as indicated above, means 

the jury found appellant was armed with a loaded firearm on 

the day of the Birch murder, with the intent to commit a 

felony (robbery or burglary). 

DISCUSSION

A. Delgadillo Review

Because the instant appeal is from an order denying 

postconviction relief rather than a first appeal of right from 

a criminal conviction, defendant is not entitled to our 

independent review of the record pursuant to People v. 

Wende (1979) 25 Cal.3d 436. (Delgadillo, supra, 14 Cal.5th 

at pp. 221-222; People v. Serrano (2012) 211 Cal.App.4th 

496, 503 (Serrano)). He is, however, entitled to appellate 

consideration of the contentions raised in his supplemental 

brief. (See Delgadillo, supra, at p. 221; Serrano, supra, at 

p. 503.)

In his supplemental brief, appellant argues the trial 

court erred in denying his section 1172.6 petition because 

there was insufficient evidence to support the finding he was 

a major participant with reckless indifference during the 
16

Birch murder. Appellant also renews several claims 

previously rejected by this court on direct appeal. For the 

reasons explained below, we discern no cognizable or 

reversible error.

B. Section 1172.6 and the Petitioning Procedure

Senate Bill No. 1437, which took effect on January 1, 

2019, limited accomplice liability under the felony-murder 

rule and eliminated the natural and probable consequences 

doctrine as it relates to murder to ensure that a person’s 

sentence is commensurate with his or her individual 

criminal culpability. (People v. Gentile (2020) 10 Cal.5th 

830, 842-843 (Gentile); see also People v. Lewis (2021) 11 

Cal.5th 952, 957, 971 (Lewis).) To that end, and as relevant 

here, Senate Bill No. 1437 amended the felony-murder rule 

by adding section 189, subdivision (e), which now provides 

that a participant in the perpetration of qualifying felonies is 

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

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

kill, acted as a direct aider and abettor; or (3) was a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in section 190.2, 

subdivision (d). (Gentile, supra, at p. 842.)

Senate Bill No. 1437 also added section 1170.95 (now 

section 1172.6), which created a procedure whereby persons 

convicted of murder under a now-invalid felony-murder (or 

natural and probable consequences) theory may petition to 

vacate their convictions and for resentencing. Where, as 
17

here, the petitioner has made a prima facie showing of 

entitlement to relief, the trial court must issue an order to 

show cause and then hold a hearing to determine whether to 

vacate the murder conviction and recall the sentence. 

(§ 1172.6, subd. (d)(3); (Lewis, supra, 11 Cal.5th at p. 960.) 

In making that determination, the prosecutor and the 

petitioner may rely on the record of conviction or offer new or 

additional evidence. (§ 1172.6, subd. (d)(3); Lewis, at p. 960.) 

At the subdivision (d) hearing, the prosecution has the 

burden to prove the petitioner’s ineligibility beyond a 

reasonable doubt. (§ 1170.95, subd. (d)(3).) 

In 2021, the Senate amended section 1172.6 to make 

clear that defendants convicted of attempted murder under 

the natural and probable consequences doctrine or 

manslaughter are also entitled to seek resentencing relief. 

(Sen. Bill No. 775 (2021–2022 Reg. Sess.); Stats. 2021, ch. 

551, §§ 1–2, eff. Jan. 1, 2022.) 

C. Sufficiency of Evidence to Support Denial of 

Resentencing for Birch Murder 

Appellant contends there was insufficient evidence to 

support the trial court’s denial of his section 1172.6 petition

regarding the Birch murder. We disagree. 

1. Standard of Review

The trial court’s decision to deny a section 1172.6

petition following an evidentiary hearing will be affirmed if 

supported by substantial evidence. (People v. Clements 
18

(2022) 75 Cal.App.5th 276, 298; People v. Williams (2020) 57

Cal.App.5th 652, 663-664.) Under that familiar standard, 

“we review the record ‘in the light most favorable to the 

judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, 

credible, and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable 

doubt.’” (People v. Westerfield (2019) 6 Cal.5th 632, 713.) 

2. The Banks and Clark Factors

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

People v. Clark (2016) 63 Cal.4th 522 (Cark), the California 

Supreme Court set forth the factors relevant to determine 

whether a defendant is a major participant in a felony who 

acted with reckless indifference to life. 

The Banks factors, pertaining to major participant 

status, include the role the defendant had in planning the 

criminal enterprise leading to one or more deaths, his role in 

supplying or using lethal weapons, his awareness of the 

dangers posed by the nature of the crime (the weapons used 

or the past experience of the other participants), whether he 

was present at the scene of the killing, whether his actions 

or inactions played a particular role in the death, and what 

he did after lethal force was used. (Banks, supra, 61 Cal.4th 

at p. 803.)

The Clark factors, describing reckless indifference, 

include the defendant’s knowledge of weapons used in the 

crime, how those weapons were used, the number of weapons 
19

used, the defendant’s proximity to the crime, his opportunity 

to stop the killing or aid the victim[s], the duration of the 

crime, the defendant’s knowledge of the killer’s propensity to 

kill, and the defendant’s efforts, if any, to minimize the 

possibility of violence during the crime. (Clark, supra, 63 

Cal.4th at pp. 616-623.)

No single factor is determinative—or even necessary. 

(Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th 

at pp. 618, 621-623). Instead, courts are to assess the 

totality of a defendant’s culpability within the “spectrum”

established by two United States Supreme Court cases: on 

one end, Enmund v. Florida (1982) 458 U.S. 782, in which 

defendant was the classic getaway driver for an armed 

robbery, and on the other, Tison v. Arizona (1987) 481 U.S. 

137 (Tison), in which defendants helped convicted murderers 

escape from prison, providing weapons, and stood by as their 

confederates debated killing, then killed, an innocent family 

of four. (Banks, supra, at pp. 801-803; Clark, supra, at 

pp. 632; People v. Strong (2022) 13 Cal.5th 698, 705 

[discussing the Tison-Edmund spectrum of culpability].) 

At its core, “[r]eckless indifference to human life is 

‘implicit in knowingly engaging in criminal activities known 

to carry a grave risk of death’” (In re Scoggins (2020) 9 

Cal.5th 667, 676, quoting Tison, supra, 481 U.S. at p. 157), 

and “encompasses a willingness to kill (or to assist another 

in killing) to achieve a distinct aim, even if the [appellant] 

does not specifically desire that death as the outcome of his 

actions.” (Clark, supra, 63 Cal.4th at p. 617.)
20

3. Analysis

a. Major Participant

In his evidentiary brief below, appellant argued that 

“the evidence shows [appellant] was not present at the scene 

of the murder on January 3, 1997.” Appellant’s primary 

support for this assertion was a written declaration, signed 

by Mency in 2003, stating that a man named Sidney

Robinson, and not appellant, committed the vehicular 

burglary with him and that Robinson murdered Birch.

Appellant secondarily pointed to trial evidence indicating 

that around the time Mency was arrested, Robinson was 

arrested down the street from Mency’s house and sought to 

flee from police. 

Other than claiming that Robinson, not he, committed 

the burglary with Mency, appellant provided no other 

argument on the “major participant” requirement and 

instead conceded that if appellant was with Mency, then 

“there is no issue [appellant] was a major participant” and 

that the “front and center issue is whether [appellant] acted 

in reckless indifference to human life.”

At the evidentiary hearing on appellant’s section 

1172.6 petition, counsel informed the court he was 

withdrawing Mency’s declaration from consideration and 

would solely rely on the evidence presented at trial.9 In light 

9 In his appeal, appellant does not refer to the declaration in his 

supplemental brief either.
21

of the trial evidence and the jury’s findings that appellant 

committed the burglary with Mency, the court reasonably 

found that appellant was a major participant in the 

underlying vehicular burglary that formed the basis for 

appellant’s murder conviction. (People v. Williams (2020) 

57 Cal.App.5th 652, 559-664 [a resentencing hearing under 

section 1170.95 is not a trial de novo]; see also People v. 

Farfan (2021) 71 Cal.App.5th 942, 947 [section 1172.6 

petition does not afford litigants retrial on issues already 

previously determined by jury under settled law]; cf. 

People v. Zamudio (2008) 43 Cal.4th 327, 357 [noting that 

conflicts in evidence subject to “justifiable suspicion” do not 

justify the reversal of a judgment as it is for the trier of fact 

to determine the truth or falsity of facts upon which a 

determination depends].) 

2. Reckless Indifference to Human Life

Applying the factors from Clark, supra, 63 Cal.4th at 

p. 522, and considering the totality of the circumstances, we 

conclude the record demonstrates petitioner acted with 

reckless disregard for human life.

First, the major participant and reckless indifference 

elements “‘significantly overlap’” (Clark, supra, 63 Cal.4th 

at p. 615, quoting Tison, supra, 481 U.S. at p. 153), and 

therefore a defendant’s status as a major participant in the 

underlying felony will “often provide significant support for 

[] a [reckless indifference] finding.” (Tison, supra, at p. 158, 

fn. 12.) This is so because a defendant’s “[p]roximity to the 
22

murder and the events leading up to it” may allow him to 

observe another participant’s willingness to use lethal force 

and, absent the defendant’s intervention, suggest that he 

shared in his cohort’s actions and mental state. (Clark, 

supra, at p. 619; Tison, supra, at p. 158.) 

Second, substantial evidence review permits 

reasonable inferences to be drawn from circumstantial 

evidence. (People v. Sinclair (1974) 36 Cal.App.3d 891, 898-

899; see also People v. Manibusan (2013) 58 Cal.4th 40, 87 

[noting that “‘[e]vidence of a defendant’s state of mind is 

almost inevitably circumstantial, but circumstantial 

evidence is as sufficient as direct evidence to support a 

conviction’”].)

Here, appellant and Mency were involved in multiple 

theft related offenses in which they employed violence. In 

September 1996, appellant and Mency invaded the Polwrek

residence, and Mency used his firearm to strike John 

Polwrek, causing him to bleed. Appellant did not stop or 

deter Mency from engaging in that type of violent conduct, 

but instead continued with the burglary and helped tie up 

Polwrek’s wife and children, including their six-year-old son. 

In late December 1996 (and only two weeks before Birch’s 

murder), appellant fired a weapon at Christopher Ramirez 

and most likely would have continued to fire at Ramirez, but

for his gun jamming. Thereafter, appellant threatened 

Michael Bushmeyer, holding the gun near his head.

On the day of Birch’s murder, January 2, 1997, 

appellant (as the jury found) was armed with a loaded 
23

firearm, with the intent to commit a felony. The evidence 

further indicates that appellant, if not the actual shooter, 

was at the very least within three feet from the shooting and 

did nothing to stop the murder or aid the victim after she 

had been shot. Instead, appellant immediately left with 

Mency (as he was not present when Birch’s husband came 

out of the home), and both men were seen returning to 

Mency’s house minutes after the murder and disposing of 

evidence. (People v. Williams, supra, 57 Cal.App.5th at 

p. 664 [upholding denial of resentencing petition where 

evidence showed that even if appellant was not the shooter, 

he handled the gun before or after the murder and did 

nothing to render aid to victim or call for assistance]; see 

also People v. Douglas (2020) 56 Cal.App.5th 1, 10 

[defendant “displayed no interest in moderating violence or 

in aiding his bloody and suffering victim” and “expressed no 

surprise or remorse when death was the result”].)

As the trial court reasonably found, the confrontation 

with Birch, her broken purse strap, and firing of multiple 

shots, are all consistent with the behavior of both appellant 

and Mency during prior burglaries or attempted burglaries, 

wherein one or the other used weapons when confronted or 

resisted by victims. (People v. Zamudio, supra, 43 Cal.4th at 

pp. 357-358 [substantial evidence review requires courts to 

“presume . . . the existence of every fact the [trial court] 

could reasonably have deduced from the evidence”].) 

Even if the circumstances might also be reasonably 

reconciled with a contrary finding, substantial evidence 
24

review does not permit reversal. (People v. Rodriguez (1999) 

20 Cal.4th 1, 11.) Only where “‘upon no hypothesis whatever 

is there sufficient substantial evidence to support’” the

judgment is reversal warranted. (People v. Bolin (1998) 18 

Cal.4th 297, 331.) Appellant cannot meet that standard, and 

we must therefore affirm the trial court’s denial of his 

resentencing petition.

D. Other Claims

In his supplemental brief, appellant renews several 

claims we rejected in his direct appeal: (1) the jury was 

unduly prejudiced by the admission of three uncharged prior 

detentions (Johnson, supra, 2002 Cal.App.Unpub.LEXIS at

pp. *4-11); (2) the trial court erroneously excluded 

impeachment evidence proffered in relation to witness 

Randolph Cunningham (id. at pp. *15-20); (3) there was 

insufficient evidence to support his convictions in “counts 51-

59, the Polwrek crimes” (id. at pp. *50-52); and (4) there was 

insufficient evidence to support his convictions in “counts 22 

through 27 involving Christopher Ramirez & friends” (Id. at

pp. * 45-50). Appellant’s challenges directed at his original 

trial, however, are not cognizable in this section 1172.6 

appeal. (See People v. Farfan, supra, 71 Cal.App.5th at 

p. 947 [“The mere filing of a [prior Penal Code] section 

1170.95 petition does not afford the petitioner a new 

opportunity to raise claims of trial error or attack the 

sufficiency of the evidence supporting the jury’s findings”].) 
25

In addition to having considered the issues raised in 

appellant’s supplemental brief, we have also independently 

examined the entire record and found no arguable issues in 

this section 1172.6 appeal.

10 (Smith v. Robbins (2000) 528 

U.S. 259, 278-279; Delgadillo, supra, 14 Cal.5th at pp. 232-

233.) 

10 Because the notice provided to defendant in this case was 

“suboptimal” under Delgadillo, we exercised our discretion to 

independently review the record. (Delgadillo, supra, 14 Cal.5th at 

pp. 232-233.) 
26

DISPOSITION

The order denying appellant’s resentencing petition is 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J.

We concur:

CURREY, P. J. 

ZUKIN, J.