Filed 7/11/23 P. v. Johnson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE

,

Plaintiff and Respondent

,

v.

LA ’ MIN J OHNSON

,

Defendant and Appellant

. B3 20943

(Los Angeles County Super. Ct. No. GA030918 )

APPEAL from a judgme nt 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 allegatio ns 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 re sentencing under section 1172.6 (former secti on 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 rese ntence 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 s ustained its burden of showing beyond a reasonable doubt that appellant
was liable under a still

- valid theory of murder

, as he was a major part icipant in the burglary who acted with reckless
indifference to human life. We appointed counsel to represent ap pellant 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. Undesign ated 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 Background 2 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 includ ing the attempted murder of Christopher Ramirez. The jury found true the allegation s 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 n ot guilty of 38 coun ts 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 additi onal crimes, including the firs t 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).)
A ppellant was sentenced to a term of life without the possibility of parole, plus 19 years. On direct appeal, app ellant 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 ch anges m ade 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 ca use on the petition. On April 27, 2022, the trial court held an evidentiary hearing. At the hearing, the court all owed 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 fac ie case for relief. The court p ointed out5

the jury found that appellant was the actual shooter; as

su ch, 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 decli ned to present new evidence and, i ns tead, 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 resentenc ing 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 res entencing
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 Background 4 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 t he 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 A ppellant and C

o

D efendant Mency On July 31, 1995, Pasadena police stopped a car driven by appellant, wit h 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,
i ndicative of involvement in automobile burglaries where
windows were broken. Police also found stereo components, including stereo face plates

, inside the vehicle. On January 10, 1996, Pasadena police again stopped a car driven by appel lant, 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 dec ision 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 k nit 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, Rand olph 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, ph ones, 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 ), Cunnin gham

saw appellant and Mency le ave the home w earing dark clothing, da rk caps, backpacks

, and gloves.

2. Conviction for Crimes Occurring Prior to
Birch Murder
A t 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
, a nd a satellite T V control box. The m en 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 par ents ’ home on January 3, 1997. A jury found that appellant and Mency were the two

me n who committed the home invasion, and both were convicted of multiple count s 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 dur ing 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 o f hi s house when he notic ed two men walking towards his
mother ’ s van that was parked in the drivewa y

. Ramirez and
his friends exited the SUV

, and Ramirez asked the men9

what they wer e doing. 5 One man , the shorter of th e two, cocked a nine

- millimeter handgun by pulling back the slide
and pointed it in the air

. Ramirez ran

, a nd 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 re st of the group and ordered them back into
their SUV , with his weapon pointed at them

. The group got back into th e 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, “ T hey ’ 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

, “ D on ’ t call me a fool

, ” as Bushmeyer responded, “ I ’ m s orry. I ’ m sorry. ” Thereafter, a car came down the street and the suspect s 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 th eir masks (see fn., 7, post ).10

on December 22 nd

, after Krell saw a news article about appella nt 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 inc ident

. 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 in cident. Both men were convicted of all charges , with th e 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

c ocked 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, i t was further stipulated tha t 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 Ramir ez 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 pe rsonally used a firearm during any of the offenses

.

3. Murder of Marsha Birch (Count 1, S econd T rial)

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 shou lder and through the neck , which ul timately
caused he r death. Her husband heard t wo shots and ran
outside and found hi s wife laying on the sidewalk. Police found two expended casings and one expended bullet near
Birch ’ s body. Police also recovered a bul let 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 t he vehicle as if it had b een 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 ea rthquake kit

, and a flashlight. The earthquake kit and small briefcase were found in the bushes near the driveway a t 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 u ndercover
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

, an d each had dark clothing. The two men went into the home and five
minutes later came back out and walked up the s treet. 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 offic er immediately looked into the trash can
and found Birch ’ s purse and i dentification. The purse had a broken strap. The two men went back to Mency ’ s home. The taller of
the tw o men was identified as Mency. S everal 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 ma n was identified as appellant.
I nside 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,

“ P roperty of Jason Mency. ” Appellant ’ s hands were bagged
for gunshot residue (GSR) t esting

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

. At the time of his arrest, Mency was carrying a police scanne r and wore an earplug.

c. Investigation Police found a swamp cooler at Mency ’ s house that contained three handguns : a .45 calib er handgun with a loaded magazine and two nine

- millimeter Beretta handguns
with loaded magazines. One of the nine

- m illi m eter Beretta handguns was identified as the gun that was taken from
Robinson ’ s vehicle earlier that morning. 8 A firearms expert deter mined 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

gu n, but the expert could not say for sure. After his arrest, Mency also had pa per bags placed over
his hands. The GSR test for Mency reflected one particle unique to gunshot residue and three particles cons istent with gunshot residue. The GSR test for a ppellant showed two particles unique to gunshot primer resid u e, 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 f

ound at the Ramirez crime scene.14

particles alre ady 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

arm ed 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 veh icle (c ount 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 har bored 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 o ffense. The jury also found true the special circumstance allegation
that the murder was com mitted during the commission of a15

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
Becaus e 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 4 36. ( Delgad illo

, 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

, sup ra , at

p. 503.)
In his supplemental brief, appellant argues the trial

court erred in denying his section 1172.6 petition because
there was insufficient evide nce to support the finding he was a major participa nt with reckless indifference during the16

Birc h murder . A ppellant also renews several claims previous ly rejected by this court on direct appeal. For the

reasons explained below, w e discern no cognizable or
reversible error.

B

. Section 1172.6 and the P etitioning P rocedure Senate Bill No. 1437, whic h 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 o nly 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, as17

here, the petitione r 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 C al.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 conseq uences doctrine or manslaughter are also entitl e d 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 f

or Birch Murder Appel lant 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 a n evidentiary hearing will be affirmed if supported by substantial evidence. ( People v. Clements18

(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 mos t 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 determi ne 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 mo re 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 act ions or inactions played a particular role in the death, and what
he d id 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
crim e, how those weapons were used, the number of weapons19

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 d efendant ’ 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 necessa ry. ( Banks

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

, supra , 63 Cal.4th at pp. 61 8, 621

- 623). Instead, courts are to assess the totality of a defendant ’ s culpability within the “ spectrum ” established by t wo 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 [appell ant] 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 S i dney
Robinson , and not appellant, committed the vehicular
bu rglary with him and that Robinson murdered Birch. Appellant secondarily pointed to trial evidence indicating
that aro und the time Mency was arrested, Robinson was arrested down the street from Mency ’ s house and sought to flee from police

. Other than cl aiming 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 consider ation and would solely rely on th e 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 v ehicular 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, 9 47 [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 fa lsity of facts upon wh i ch a determination depends].)

2. Reckless Indifference to Human Life
A pplying the factors from Clark

, supra , 63 Cal.4th at

p. 522, an d considering the totality of the circumstances, we conclude the record demonstrates petitioner acted with reckless disregard for human life. First, t he 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 , a t p. 158, fn. 12.) This is so because a defendant ’ s “ [p]roximity to the22

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 al so 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 violen ce

. In September 1996, appellant and Mency invaded the Polwrek
residence

, and Mency used his firearm to strike John
Polwrek

, causing him to bleed

. A ppellant 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), appell ant 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 loaded23

firearm, with the intent to commit a felony. The evidence
further indicates tha t appellant , if not the actual shooter,

w as at the very least within three feet from the shooting and
did nothing to stop the murder or aid the v ictim 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 h ouse minutes after the murder and disposin g of

e vidence

. ( 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 t he other used weapons when conf ronted 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 f rom the evidence ” ] .)
E ven if the circumstances might also be reasonably reconciled with a contrary finding, substantial evidence24

review does not permit reversal. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Only where “‘ upon no hypothesis whatever
i s there sufficient substantial evidence to support ’” the j udgment 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) t he jury was unduly prejudiced by the admission of three uncharged prior detentions ( Johnson

, supra , 2002 Cal.App.Unpub.LEXIS at

p p

. *4

- 1 1); (2) t he trial court erroneously excluded impeachment evidence proffered in relation to witness Randolph Cunningham ( id. at p p

. *15

- 20); (3) t here 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 ). A ppellant ’ 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 t he evidence supporting the jury ’ s findings ” ].)25 In addition to having considered the issues raised in appellant ’ s supplemental brief, we have also independe ntly
examined the entire record and found no arguable issues in this section 1172.6 appeal

. 10 ( Smit h 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 in dependently 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:

C URREY, P. J.

ZUKIN, J.