Filed 4/28/22 In re Reese CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 This opinion has not been certified for publication or ordered published for 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 THREE

In re CLARENCE ERVIN REESE,

on Habeas Corpus. 

B312440

(Los Angeles County

Super. Ct. No. BA230274)

PETITION for writ of habeas corpus, Superior Court of Los 

Angeles County, George G. Lomeli, Judge. Granted in part.

Nancy J. King, under appointment by the Court of Appeal, 

for Petitioner.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

________________________
2

In 2004, a jury convicted petitioner Clarence Ervin Reese of 

first degree felony murder, attempted carjacking, and burglary, 

and found felony-murder special circumstance allegations true. 

Thereafter, in People v. Banks (2015) 61 Cal.4th 788 (Banks) and

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

Supreme Court clarified under what circumstances a Penal Code

section 190.21special circumstance may be found true when the

defendant is not the actual killer. Reese petitioned this court for

a writ of habeas corpus, and we issued an order to show cause. 

We now conclude that the evidence was insufficient to prove

Reese acted with reckless indifference to human life, and the

special circumstance findings must be reversed. 

FACTUAL AND PROCEDURAL BACKGROUND2

1. People’s evidence

a. The murder 

In January 2002, petitioner was 16 years old. Juan 

Roberto Saucedo was approximately 20, and went by the 

nickname “Negro.” Both Reese and Saucedo were members of the 

Culver City gang.

Vuthipong Sanguansukdikosol and his family lived in a Los 

Angeles apartment building with a gated garage. On the 

afternoon of January 30, 2002, Sanguansukdikosol picked up his 

two sons, 11-year-old D. and 12-year-old K., from school and 

1 All further undesignated statutory references are to the 

Penal Code.

2 At Reese’s request, we have taken judicial notice of the 

records in People v. Reese (Mar. 2, 2007, B186147, nonpub. 

opinion) and People v. Reese (April 30, 2021, B301473, nonpub. 

opn.) (See Evid. Code, §§ 451, 452, 459.)
3

drove them home. He used a remote control to open the garage 

gate. The boys saw two males, identified through other evidence 

as Reese and Saucedo, standing on the sidewalk outside the 

garage, wearing hoods or hats. They entered the garage through 

the gate as or after Sanguansukdikosol drove in. D. and K. saw 

the youths go to the apartment manager’s van, which was parked 

in its usual spot in the garage. K. saw one of the men take 

something out of his pocket.

Sanguansukdikosol dropped the boys off at the garage 

elevator and told them to go upstairs and call their mother to let 

her know he was coming to pick her up. Sanguansukdikosol 

began to turn his car around to exit the garage, and the boys took 

the garage elevator to the second floor. 

Just after riding up the elevator, D. and K. heard a crash. 

K. looked out the window and saw the two youths running out of 

the garage. He went to the manager’s apartment and told the 

manager about the men near the van. The apartment manager, 

D., and K., went down to the garage, where the boys discovered 

their father lying in the car, which had crashed against the 

garage gate. The driver’s side door was closed, but the window 

was down. K. tried to talk to his father, but he did not respond.

His seat belt was still on and the car was still running. An 

ambulance was summoned for what was initially believed to be a 

heart attack. Paramedics discovered Sanguansukdikosol had 

been shot.

The People presented evidence demonstrating Reese’s and 

Saucedo’s escape route, including the testimony of two 

eyewitnesses who observed portions of their flight.

Jose R., Rosemarie A., and Rosemarie’s younger sister were 

driving in the area in Jose’s white, two-door, convertible 
4

Mustang, with the top down. When Jose stopped the car to drop 

Rosemarie and her sister off at their home, Reese and Saucedo 

approached the vehicle’s passenger side. Saucedo patted his 

pockets and clothing as if to indicate he was unarmed. The 

youths then jumped in the car, with Saucedo in the front 

passenger seat and Reese in the back. Reese had a sweater 

wrapped around his arm, but neither Jose nor Rosemarie could 

tell if he was carrying anything under the sweater. 

Saucedo demanded that Jose give them a ride for two 

blocks, because they had gotten in some trouble. He said he was 

looking for one of his homeboys. As Jose drove them away, Reese 

lay down in the back seat and asked him to put up the 

convertible’s top. Saucedo told Jose where to drive. Jose asked 

where the men were from, and Saucedo replied that they were 

from the Culver City gang. When Saucedo saw a dark car 

nearby, he waved to it and the men exited Jose’s vehicle.

b. The investigation

Sanguansukdikosol was killed by a single gunshot to his 

upper abdominal region, causing him to bleed to death. The 

trajectory of the wound was consistent with the shooter standing 

outside the car and aiming from above.

The victim’s glasses were found on the ground in the 

garage. An expended casing found in the garage suggested the 

murder weapon was a semiautomatic firearm. 

Rosemarie identified Reese as one of the men in a pretrial 

photographic lineup, at the preliminary hearing, and at trial. 

Jose tentatively identified Reese in court as one of the men with 

50 percent certainty. At the preliminary hearing, he testified he 

was certain Reese was one of the men.
5

c. Reese’s statement to detectives

Two detectives interviewed Reese on April 12, 2002. The 

interview was not recorded, but one of the detectives took 

detailed notes. Reese’s account of events was as follows. On the 

date of the murder, Reese, Saucedo, and a fellow Culver City 

gang member with the nickname “Chubbs,” met up in Culver 

City. Reese told detectives he “ran with [Saucedo] a lot,” and had 

known him for a couple months. That afternoon, Chubbs drove 

Reese and Saucedo to Hollywood in Chubbs’s girlfriend’s black 

Honda. On the way to Hollywood the trio stopped at a mall and 

Reese purchased a video of the movie “The Fast and the Furious.” 

Chubbs then dropped Saucedo and Reese off at the victim’s 

garage.

Reese admitted that he and Saucedo were “on a mission” to 

steal a vehicle, and intended to take the stolen car back to their 

neighborhood. Reese was armed with a screwdriver to use to 

steal the car. Saucedo was to act as the lookout. Prior to or 

during the drive to Hollywood, Saucedo told Reese that he had a 

firearm in the car.

Reese and Saucedo entered the garage and discovered that 

some or all of the vehicles parked inside, including a van, had 

alarms. Saucedo said they could not be stolen. They then left the 

garage, but reentered when the victim drove in.3 Saucedo said 

“let’s get another car” or similar words, which Reese understood 

to mean Sanguansukdikosol’s vehicle. Reese saw the two 

children at the elevator. He believed the victim had noticed him, 

3 Some of Reese’s statements alternatively suggested that he 

and Saucedo entered the garage only once, when 

Sanguansukdikosol opened the gate.
6

and wanted to leave. However, Saucedo instructed him to take 

the victim’s car.

Saucedo then approached Sanguansukdikosol with the gun 

in his right hand, held down by his leg. At that point, the car was 

facing outward toward the gate. Saucedo demanded that 

Sanguansukdikosol give him the car. Sanguansukdikosol asked 

if Saucedo and Reese lived in the apartments. When Saucedo 

demanded that Sanguansukdikosol get out of the car, 

Sanguansukdikosol said no, honked the horn, and yelled for the 

police. Reese heard a gunshot. Either before or after the shot, 

Saucedo unsuccessfully attempted to pull the victim from the car, 

and Sanguansukdikosol’s glasses fell off. Reese claimed he 

heard, but did not see, the actual shooting. He stated that when 

Saucedo fired, he (Reese) was near the garage gate, and was 

leaving. Saucedo told Reese to run, and the youths fled from the 

garage. 

After the shooting Saucedo had the gun in his right hand 

and then put it in his waistband; Reese never took possession of 

it. Reese described their escape route consistently with the two 

eyewitnesses who had observed them fleeing. When they saw the 

white convertible, they jumped in, with Reese in the back. 

Saucedo gave the driver instructions. When they saw Chubbs’s 

car they exited and the group drove back to their neighborhood.

At some point, Reese threw the screwdriver in the trash. 

Saucedo, who still had the gun, told him not to talk to anyone 

about what had happened. After arriving home, Reese went to a 

girl’s house and watched the movie he had purchased.

Reese also gave a written statement to detectives, that 

read: “Me and Negro had went into a driveway and I was going 

to steal a van with a screwdriver, and me and Negro was 
7

confronted by a Chinese-looking man in [a] car. Then we were 

going to leave when Negro told me to go. Then I heard a shot and 

he said run, then we ran. Negro had the gun, and then it [sic]

says give me the car.”

2. Procedure 

A jury convicted Reese of first degree murder (§ 187, 

subd. (a)), attempted carjacking (§§ 664, 215, subd. (a)), and first 

degree burglary (§ 459). It found true special circumstance 

allegations that the murder was committed while Reese was 

engaged in the commission of attempted carjacking and burglary. 

(§ 190.2, subd. (a)(17)(G), (L).) It also found true allegations that 

a principal personally and intentionally used and discharged a 

firearm during the offenses, proximately causing the victim’s 

death. (§ 12022.53, subds. (b), (c), (d), (e)(1).)4 

The trial court exercised its discretion pursuant to section 

190.5, subdivision (b), to sentence Reese to 25 years to life in 

prison rather than life without parole (LWOP).5 It reasoned that, 

although there was “significant and substantial evidence” to 

support the verdicts, mitigating factors existed. Reese had 

turned 16 only 16 days before the murder; he was not the actual 

shooter; he was not “the architect of this plan and plot”; and his 

criminal history was nonviolent.

4 Section 12022.53 enhancements apply to a principal only if 

a gang enhancement is found true. (§ 12022.53, subd. (e)(1)(A).) 

Because the People dismissed the gang enhancement allegations, 

the court vacated the jury’s findings on the section 12022.53 

allegations.

5 The sentences on the other counts were stayed pursuant to 

section 654.
8

In 2007, a different Division of this court affirmed Reese’s 

judgment in a nonpublished opinion. (People v. Reese, supra,

B186147.) Among other things, the court concluded that 

sufficient evidence supported the first degree murder verdict and 

the special circumstance findings. The California Supreme Court 

denied review. 

On March 8, 2019, Reese filed a section 1170.95 petition in 

the superior court, seeking vacation of his murder conviction and 

resentencing. He argued that he had been tried on a felonymurder theory; he was not the actual killer and did not have the 

intent to kill; he was not a major participant in the crimes who 

acted with reckless indifference to human life; and he could not 

now be convicted of murder in light of amendments to sections 

188 and 189. The trial court denied the petition. On April 30, 

2021, in case No. B301473, a divided panel of this court affirmed 

the trial court’s order, reasoning that the jury’s true findings on 

the special circumstance allegations made Reese categorially 

ineligible for section 1170.95 relief.6 (People v. Reese (Apr. 30, 

2021, B301473) [nonpub. opn.].) We noted, however, that if Reese 

believed the evidence on the special circumstance findings was 

insufficient, his remedy was to bring a petition for writ of habeas 

corpus. (See In re Scoggins (2020) 9 Cal.5th 667, 673–674

(Scoggins).) We denied Reese’s petition for rehearing without

6 Our Supreme Court subsequently granted review in case 

No. B301473. (July 14, 2021, S269236.) The court deferred 

further action pending resolution of People v. Strong (S266606, 

review granted Mar. 10, 2021), in which the court is considering 

whether a felony-murder special circumstance that predates 

Banks and Clark precludes a defendant from making a prima 

facie showing of eligibility for section 1170.95 relief.
9

prejudice to his right to file a new section 1170.95 petition,

should he obtain habeas relief. 

On May 17, 2021, Reese filed the instant habeas petition. 

DISCUSSION

Reese contends that, under Banks and Clark, the evidence 

was insufficient to prove he was a major participant in the 

underlying felony who acted with reckless indifference to human 

life. He seeks vacation of the special circumstance findings, 

remand for a hearing pursuant to section 1170.95, and vacation 

of his first degree murder conviction.

1. The special circumstance statute, the Enmund-Tison 

continuum, and Banks, Clark, and Scoggins

Section 190.2 “identifies the circumstances under which 

murderers and accomplices can be punished by death or life 

imprisonment without parole.” (People v. Douglas (2020) 56 

Cal.App.5th 1, 7.) Participating in a murder during an attempted 

carjacking or a burglary are two such circumstances. (§ 190.2, 

subd. (a)(17)(G), (L).) “For defendants who did not kill and lacked 

the intent to kill, section 190.2, subdivision (d) permits such 

punishment only if they acted ‘with reckless indifference to 

human life and as a major participant’ [in] a qualifying felony 

like robbery.” (Douglas, at p. 7; see Scoggins, supra, 9 Cal.5th at 

p. 674.) Section 190.2, subdivision (d) codifies the holdings of 

Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. 

Arizona (1987) 481 U.S. 137 (Tison), which brought California 

law “into conformity with prevailing Eighth Amendment 

doctrine.” (In re Ramirez (2019) 32 Cal.App.5th 384, 393; Banks,

supra, 61 Cal.4th at p. 794.) 

Enmund held that the death penalty could not 

constitutionally be imposed on an armed robbery getaway driver 
10

who was a minor participant in the crime, was not present when 

the murder was committed, and had no intent to kill. (Enmund,

supra, 458 U.S. at pp. 798, 801; Scoggins, supra, 9 Cal.5th at

p. 675.) 

Tison, in contrast, did not preclude imposition of the death 

penalty for two defendants, brothers who had helped their father 

and his cellmate—both convicted murderers—escape from prison, 

and provided them with guns. (Tison, supra, 481 U.S. at p. 139.) 

When the group got a flat tire, one of the brothers flagged down a 

passing car for help. The group kidnapped at gunpoint the family 

of four that was in the car, robbed them, and drove them into the 

desert. The Tisons’ father debated whether to kill the family. 

The sons stood by while the father and cellmate shot the victims 

repeatedly. The perpetrators left the family—which included a 

toddler and a teenager—to die in the desert, and drove off in the 

family’s car. (Id. at pp. 139–141.) Tison held the Eighth 

Amendment does not prohibit imposition of the death penalty on 

a nonkiller who lacked the intent to kill, but whose “participation 

[in the crime] is major and whose mental state is one of reckless 

indifference to the value of human life.” (Id. at pp. 152, 157–158.)

In Banks and Clark, our Supreme Court clarified the

meaning of the “major participant” and “reckless indifference to

human life” requirements. Banks considered “under what

circumstances an accomplice who lacks the intent to kill may

qualify as a major participant[.]” (Banks, supra, 61 Cal.4th at

p. 794.) The court listed various factors that should be 

considered in making that determination: “What role did the 

defendant have in planning the criminal enterprise that led to 

one or more deaths? What role did the defendant have in 

supplying or using lethal weapons? What awareness did the 
11

defendant have of particular dangers posed by the nature of the 

crime, weapons used, or past experience or conduct of the other 

participants? Was the defendant present at the scene of the

killing, in a position to facilitate or prevent the actual murder,

and did his or her own actions or inaction play a particular role in

the death? What did the defendant do after lethal force was

used?” (Id. at p. 803, fn. omitted.) 

Banks found insufficient evidence to show the defendant 

there—a getaway driver for an armed robbery—was a major 

participant or acted with reckless indifference. (Banks, supra,

61 Cal.4th at pp. 805, 807–808.) No evidence established his role 

in planning the robbery or procuring the weapons; during the 

robbery and murder he was absent from the scene, sitting in a 

car and waiting; and no evidence showed he had any role in 

instigating the shooting, or could have prevented it. (Id. at 

p. 805.) He was “no more than a getaway driver,” like Enmund. 

(Ibid.)

In Clark, the court turned its attention to the “reckless 

indifference” determination. (Clark, supra, 63 Cal.4th at p. 611.) 

Reckless indifference to human life is “ ‘implicit in knowingly 

engaging in criminal activities known to carry a grave risk of 

death.’ [Citation.]” (Clark, at p. 616, quoting Tison, supra, 481 

U.S. at p. 157.) It “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.” (Id. at p. 617.) Recklessness has both a subjective and

an objective component. Subjectively, the defendant must

consciously disregard risks known to him. Objectively,

recklessness is determined by “what ‘a law-abiding person would

observe in the actor’s situation,’ ” that is, whether defendant’s
12

conduct “ ‘involved a gross deviation from the standard of conduct

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

[Citation.]” (Ibid.) The fact a robbery involved a gun or carried a

risk of death is insufficient, by itself, to support a finding of

reckless indifference. (Id. at pp. 617–618.)

Clark, like Banks, listed various factors to be considered

when determining whether reckless indifference existed: “Did 

the defendant use or know that a gun would be used during the 

felony? How many weapons were ultimately used? Was the 

defendant physically present at the crime? Did he or she have 

the opportunity to restrain the crime or aid the victim? What 

was the duration of the interaction between the perpetrators of 

the felony and the victims? What was the defendant’s knowledge

of his or her confederate’s propensity for violence or likelihood of

using lethal force? What efforts did the defendant make to

minimize the risks of violence during the felony?” (Scoggins,

supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark,

supra, 63 Cal.4th at pp. 618–623].)

Based on these factors, Clark concluded that the defendant 

there did not act with reckless indifference. (Clark, supra, 63 

Cal.4th at p. 623.) Although he was the “mastermind” who 

planned a computer store robbery during which a victim was shot 

and killed, he was not armed, was not physically present in the 

store when the shooting occurred, and had attempted to minimize 

the likelihood of violence by timing the robbery for a time when 

fewer people would be present, and planning on use of an 

unloaded gun. (Id. at pp. 612, 618–623.) 

Our Supreme Court again considered the reckless

indifference inquiry in Scoggins, supra, 9 Cal.5th 667. Scoggins

found an insufficient showing of reckless indifference where the
13

defendant planned an unarmed assault and robbery, in which one

of his accomplices deviated from the plan and unexpectedly killed

the victim. Scoggins was not present at the scene, was not in a

position to restrain his accomplices, did not know a gun would be

used or plan that the victim would be killed, attempted to

minimize the risk of death by ordering the assault to occur in a

public place in broad daylight, and acted ambiguously after the

shooting. (Id. at pp. 677–683.)

2. Scope of review

A defendant whose special circumstance determination 

predated Banks and Clark may challenge the sufficiency of the 

evidence of the finding by means of a habeas corpus petition. 

(Scoggins, supra, 9 Cal.5th at pp. 673–674.) “Where a decision 

clarifies the kind of conduct proscribed by a statute, a defendant 

whose conviction became final before that decision ‘is entitled to 

post-conviction relief upon a showing that his [or her] conduct 

was not prohibited by the statute’ as construed in the decision. 

[Citation.] ‘In such circumstances, it is settled that finality for 

purposes of appeal is no bar to relief, and that habeas corpus or 

other appropriate extraordinary remedy will lie to rectify the 

error[.]’ ” (Ibid.) 

“When a defendant seeks habeas corpus relief, the

underlying judgment is presumed valid” (In re Bennett (2018) 26

Cal.App.5th 1002, 1018), and we view the facts favorably to the

prosecution (In re Parrish (2020) 58 Cal.App.5th 539, 541). “In a

habeas corpus challenge to the sufficiency of the evidence to

support a special circumstance finding, the ‘standard of review

. . . is whether, when evidence that is reasonable, credible, and of

solid value is viewed “in the light most favorable to the

prosecution, any rational trier of fact could have found the
14

essential elements of the allegation beyond a reasonable doubt.” 

[Citations.] The standard is the same under the state and federal

due process clauses. [Citation.] We presume, in support of the

judgment, the existence of every fact the trier of fact could

reasonably deduce from the evidence, whether direct or

circumstantial.’ ” (In re Bennett, at p. 1018; In re McDowell

(2020) 55 Cal.App.5th 999, 1008.)

Determination of whether the evidence demonstrates

reckless indifference and major participation is a “fact-intensive

and individualized inquiry” (In re Parrish, supra, 58 Cal.App.5th

at p. 542) in which we consider the totality of the circumstances

(Scoggins, supra, 9 Cal.5th at p. 677). The Banks and Clark

factors overlap, and “ ‘[n]o one of these considerations is

necessary, nor is any one of them necessarily sufficient.’ ” (Clark,

supra, 63 Cal.4th at pp. 615, 618; Banks, supra, 61 Cal.4th at

p. 803.) Reese “is entitled to habeas corpus relief ‘ “if there is no 

material dispute as to the facts relating to his conviction and if it 

appears that the statute under which he was convicted did not 

prohibit his conduct.” ’ [Citation.]” (Scoggins, at p. 676.) 

Because this court’s 2007 opinion was issued without the 

benefit of Banks, Clark, and Scoggins, we do not limit our review 

to the facts stated in our prior opinion, but consider the entire 

record. (In re Taylor (2019) 34 Cal.App.5th 543, 556–557.) 

3. Reese’s petition is not procedurally barred

We first address the People’s contention that Reese’s

habeas petition is procedurally barred because of his unjustified 

delay in filing it.

A criminal defendant mounting a collateral attack on a

final judgment of conviction must do so in a timely manner, that

is, without substantial delay. (In re Reno (2012) 55 Cal.4th 428, 
15

459; In re Taylor, supra, 34 Cal.App.5th at p. 555.) California

law does not set a specific time limit; instead, we apply a general

reasonableness standard to determine timeliness. (In re Reno, at 

p. 461.) The “basic issue is whether [the petition] was ‘ “ ‘filed as 

promptly as the circumstances allow.’ ” ’ ” (In re Taylor, at 

p. 555.) “Substantial delay is measured from the time the 

petitioner or his or her counsel knew, or reasonably should have 

known, of the information offered in support of the claim and the 

legal basis for the claim.” (In re Robbins (1998) 18 Cal.4th 770, 

780.) A claim that is substantially delayed will nevertheless be

considered on the merits if the petitioner can demonstrate good

cause for the delay. (Id. at p. 805; In re Reno, at p. 460.)

The People argue that Reese’s judgment was final in 2007. 

Banks and Clark were issued on July 9, 2015 and June 27, 2016, 

respectively. Reese’s habeas petition was filed on May 17, 2021. 

Therefore, the People contend, the delay between—at the very 

latest—the Clark decision and the instant petition was 

unreasonable. Reese counters that Senate Bill No. 1437 (2018–

2019 Reg. Sess.) (Senate Bill 1437) did not take effect until 

January 1, 2019 and, because the law is unsettled regarding 

whether a special circumstance may be challenged via a section 

1170.95 petition, any delay is justified.

Reese has the better argument. While procedural bars 

protect society’s interest in the finality of criminal judgments, 

“[t]his purpose loses some of its force in cases, such as 

petitioner’s, that may be affected by the Legislature’s enactment 

. . . of section 1170.95.” (In re Ramirez, supra, 32 Cal.App.5th at 

p. 406, fn. 11.) As a practical matter, Reese’s claim does not arise

solely from Banks and Clark. The function of the special 

circumstance findings in Reese’s case was to allow for an LWOP 
16

sentence. But, because of Reese’s age, the trial court exercised its 

discretion not to impose an LWOP sentence. Instead, it imposed 

a term of 25 years to life, the same sentence Reese would have 

received even had the special circumstance been found not true. 

(See § 190, subd. (a).) Thus, until passage of Senate Bill 1437, 

reversal of the special circumstance findings would have had no 

effect on Reese’s sentence and no practical effect on his judgment. 

Senate Bill 1437 limited accomplice liability under the

felony-murder rule and eliminated the natural and probable

consequences doctrine as it relates to murder. (People

v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lewis (2021)

11 Cal.5th 952, 957, 959.) Prior to Senate Bill 1437’s enactment, 

under the felony-murder rule “a defendant who intended to 

commit a specified felony could be convicted of murder for a 

killing during the felony, or attempted felony, without further 

examination of his or her mental state.”7 (People v. Lamoureux 

(2019) 42 Cal.App.5th 241, 247–248.) Senate Bill 1437 added 

section 189, subdivision (e). As amended, “section 189 limits the 

first degree felony-murder rule by imposing new requirements for 

its application. The statute provides that, unless the victim is a 

peace officer killed in the line of duty, a defendant cannot be 

liable for first degree felony murder unless the defendant was the 

actual killer, acted with intent to kill, or was a major participant 

in the underlying felony and acted with reckless indifference to 

human life.” (People v. Eynon (2021) 68 Cal.App.5th 967, 974.) 

Senate Bill 1437 also added section 1170.95, which created 

7 Reese’s case was tried on this theory and his jury was so 

instructed.
17

a procedure whereby persons convicted of murder under a nowinvalid felony-murder or natural and probable consequences 

theory may petition for vacation of their convictions and 

resentencing. A defendant is eligible for relief if he could no 

longer be convicted of murder due to changes to sections 188 and 

189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).) 

Where a court determines in a habeas proceeding that the 

evidence was insufficient to prove major participation/reckless 

indifference, the defendant is entitled to relief under section 

1170.95, subdivision (d)(2). That subdivision imposes “a 

mandatory duty on the court to vacate defendant’s sentence and 

resentence him whenever there is a prior finding of this court 

that the defendant was not a major participant in the underlying 

felony and did not act with reckless indifference to human life.” 

(People v. Ramirez (2019) 41 Cal.App.5th 923, 932.) 

The thrust of Reese’s habeas petition is that, because the

evidence was insufficient to prove he was a major participant who

acted with reckless indifference, he can no longer be convicted of

first degree murder under current law as amended by Senate Bill

1437.

8

 Only after enactment of Senate Bill 1437 could Reese

have known that Banks and Clark, in combination with newly

enacted section 1170.95, gave rise to a legal basis for the relief he

8 Reese’s petition states that his claims are based on the 

record on appeal in both the original case and in the subsequent

appeal of the denial of his section 1170.95 petition. He seeks 

reconsideration of his section 1170.95 petition as well as vacation 

of the special circumstance findings and his murder conviction,

arguing that because the evidence is insufficient to support the 

special circumstance findings, it is also insufficient to support his 

murder conviction under current law. 
18

seeks. Any delay must therefore be measured from January 1,

2019. (See In re Robbins, supra, 18 Cal.4th at p. 780.) 

Reese filed a section 1170.95 petition on March 8, 2019, less 

than three months after Senate Bill 1437’s effective date. Thus, 

he promptly sought relief under the new law. The instant habeas 

petition was not filed until May 17, 2021. But, there is a split of 

authority regarding whether a major participant/reckless 

indifference finding may be challenged in a section 1170.95 

petition, or only in a habeas petition. (See, e.g., People v. Price 

(2021) 71 Cal.App.5th 1128, 1146–1147, review granted on 

another point on Feb. 9, 2022, S272572.) As noted ante, the issue 

is currently being considered by our California Supreme Court. 

(People v. Strong, supra, S266606.) Given this unsettled state of 

the law, we cannot say Reese unreasonably delayed by initially 

choosing to pursue relief via a section 1170.95 petition, rather 

than via a habeas petition. 

Moreover, a court will consider the merits of a claim 

presented after substantial delay even without good cause if it

falls within certain narrow exceptions. Two such exceptions are 

relevant here: (1) the petitioner is actually innocent of the crime 

or crimes of which he was convicted; and (2) the petitioner was 

convicted or sentenced under an invalid statute. (In re Reno, 

supra, 55 Cal.4th at p. 460; In re Robbins, supra, 18 Cal.4th at 

pp. 780–781.) Reese’s claims are that under current law, he is 

actually innocent of the crime of murder, and that the former 

felony-murder rule is now invalid.

In sum, the petition is not procedurally barred.
19

4. The evidence was insufficient to establish Reese acted 

with reckless indifference to human life

Considering the totality of the circumstances in the light 

most favorable to the prosecution, we cannot conclude, given our 

Supreme Court’s clarifications in Banks and Clark, that the 

evidence was sufficient to show Reese acted with reckless 

indifference to human life.9 As we have observed, the Banks and 

Clark factors overlap. (Clark, supra, 63 Cal.4th at pp. 614–615.) 

Accordingly, we consider both. First, while Reese admittedly 

planned to burglarize the garage and steal a car using a 

screwdriver, there was no evidence he planned a carjacking. 

Instead, the carjacking seems to have been a spontaneous, spur 

of the moment deviation from the original scheme by Saucedo, 

once the youths discovered the manager’s van—and possibly 

other vehicles in the garage—had alarms. As the trial court 

opined at sentencing, “I do not believe the defendant was the 

architect of this plan and plot. I think the evidence has 

established that the defendant was a soldier. He was a 

lieutenant.” For purposes of establishing reckless indifference, 

there is a significant difference between planning to steal an 

unoccupied car, and planning to carjack one occupied by a victim. 

The People argue that Reese told detectives he and Saucedo 

examined the vehicles in the garage, left the garage, and then 

reentered when the victim opened the gate. From this they infer 

that the carjacking was not spontaneous. We disagree. The 

victim’s children testified that they saw both youths around the 

manager’s van after their father drove through the gate, 

9 We therefore do not address whether the evidence was 

sufficient to prove Reese was a major participant.
20

suggesting that Reese and Saucedo were still attempting to find 

an unoccupied vehicle to steal at that point and the carjacking 

was an impulsive reaction when that endeavor failed. But, even 

if Reese and Saucedo had already determined that the cars in the 

garage were not attractive theft targets, and reentered thereafter

to take Sanguansukdikosol’s car, this does not amount to 

evidence that Reese, as opposed to Saucedo, planned or instigated 

the carjacking. 

The evidence regarding weapon use likewise provides little 

support for a finding of reckless indifference. Reese was equipped 

with a screwdriver, not a gun. While a screwdriver can be used 

as a stabbing instrument, no evidence showed that was Reese’s 

intention here. His statements to the detectives suggested he 

intended to use it to break into a car, and there was no evidence 

he attacked or menaced the victim with it. Only one gun—that 

wielded by Saucedo—was used, and there was no evidence Reese

supplied it. Nor was there any evidence that Reese instructed 

Saucedo to use lethal force. (See People v. Ramirez (2021) 71 

Cal.App.5th 970, 988; In re Moore (2021) 68 Cal.App.5th 434, 452 

[although defendant was aware that his accomplice had a gun, 

defendant did not supply it and did not use a gun himself].) 

Certainly, Reese knew Saucedo had a gun; Saucedo told 

him so at least by the time they were driving to Hollywood. But 

there was no evidence Reese knew Saucedo planned on actually 

using it. Indeed, since Reese’s plan was to steal an unoccupied 

car, there would have been little reason to expect violence. (See 

In re Taylor, supra, 34 Cal.App.5th at pp. 557–558 [even 

assuming there was substantial evidence defendant knew his 

accomplice was armed, “there is little about [defendant’s] use or 

knowledge of firearms that suggests he appreciated the planned 
21

robbery posed a heightened risk of death”]; Scoggins, supra, 9 

Cal.5th at p. 677 [fact Scoggins did not know his accomplice 

would use a gun suggested he was “far less culpable” than the 

Tison brothers].) Until moments before the murder, Saucedo did 

nothing to indicate he was contemplating using lethal force. (See 

Scoggins, at p. 678 [where “ ‘the participant who personally 

commits the murder exhibits behavior tending to suggest a 

willingness to use lethal force,’ ” the “ ‘ “defendant’s presence 

allows him to observe his cohorts so that it is fair to conclude that 

he shared in their actions and mental state . . . .” ’ ”].) 

And, most significantly, “ ‘the fact a participant [or planner

of] an armed robbery could anticipate lethal force might be used’

is not sufficient to establish reckless indifference to human life.” ’ 

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

p. 618 [“The mere fact of a defendant’s awareness that a gun will

be used in the felony is not sufficient to establish reckless

indifference to human life.”]; Banks, supra, 61 Cal.4th at p. 809

[awareness that confederates are armed and armed robberies

carry a risk of death does not by itself demonstrate reckless

indifference]; People v. Ramirez, supra, 71 Cal.App.5th at p. 988

[defendant’s awareness that accomplice had a gun and intended

to use it during a carjacking was not sufficient to prove reckless

indifference]; People v. Bascomb (2020) 55 Cal.App.5th 1077,

1088 [“knowledge of the possible risk of death inherent in certain

felonies like armed robbery does not satisfy the reckless

indifference standard.”]; In re Bennett, supra, 26 Cal.App.5th at

p. 1016.) Thus, even assuming Reese knew Saucedo intended to 

commit a carjacking with a gun when they entered or reentered 

the garage, this fact does not, by itself, establish the requisite 

mental state. 
22

Moving to the next factor, there was no evidence Reese 

knew Saucedo was prone to violence or was likely to use lethal 

force. Reese told detectives he had known Saucedo for a couple 

months and “ran with” him a lot. But nothing suggested he and 

Saucedo had previously committed crimes together, or that 

Saucedo had previously committed a shooting or other violent 

offense. The youths were members of the same gang, but there 

was no evidence of the gang’s activities and no showing Saucedo 

had engaged in gang-related violence. (See Banks, supra, 61 

Cal.4th at pp. 810–811 [although some of getaway driver’s 

cohorts in armed robbery were gang members, there was no 

evidence they had participated in shootings, murder, or 

attempted murder]; In re Miller (2017) 14 Cal.App.5th 960, 976

[although defendant and the killer belonged to the same gang 

and had committed follow-home robberies together, no evidence 

indicated they had ever participated in shootings, murder, or 

attempted murder]; In re Taylor, supra, 34 Cal.App.5th at p. 558 

[no evidence defendant was aware of his accomplice’s propensity 

for violence, despite knowledge of accomplice’s involvement in 

illegal activity including drug sales]; In re Ramirez, supra, 32 

Cal.App.5th at p. 405.)

The “duration of the crime also counsels against finding 

defendant exhibited reckless indifference to human life.” (In re 

Miller, supra, 14 Cal.App.5th at p. 975.) “Where a victim is held 

at gunpoint, kidnapped, or otherwise restrained in the presence 

of perpetrators for prolonged periods, ‘there is a greater window 

of opportunity for violence’ [citation] possibly culminating in 

murder.” (Clark, supra, 63 Cal.4th at p. 620; Scoggins, supra,

9 Cal.5th at p. 680 [prolonged restraint of the victim can indicate 

reckless indifference to human life, because it provides a greater 
23

opportunity for violence].) Here, the duration of the incident was 

extremely brief. K. testified that only two or three minutes 

elapsed between the time he entered the garage elevator until he 

heard the crash that indicated the fatal shot had been fired. (See 

Scoggins, supra, 9 Cal.5th at p. 681 [fact interaction with victim 

lasted only up to five minutes, rather than a prolonged period, 

did not weigh in favor of reckless indifference finding].) 

Evidence that a defendant had the opportunity to act as a 

restraining influence on his murderous cohort, but failed to do so, 

provides support for a reckless indifference finding. (See 

Scoggins, supra, 9 Cal.5th at p. 678; In re Loza (2017) 10 

Cal.App.5th 38, 53–54.) But there is weak evidence Reese had 

such an opportunity here. The entire incident transpired rapidly

and the carjacking was a spontaneous deviation from the planned 

auto theft. Reese told detectives that, believing that the victim 

had seen him, he was near the gate and leaving the garage when 

Saucedo approached the victim, holding the gun down by his side. 

Reese claimed he did not see the actual shooting and was not by 

Saucedo’s side when Saucedo fired the fatal shot. Thus, although 

Reese was in close proximity to the shooting, it does not appear 

he was close enough, nor was there sufficient time, for him to act 

as a meaningful restraining influence. (See People v. Ramirez, 

supra, 71 Cal.App.5th at p. 989 [defendant lacked meaningful 

opportunity to intervene when he and the shooter were on 

opposite sides of the carjack victim’s vehicle, and the attempted 

carjacking was quickly executed].)

Clark and other authorities have also considered a 

defendant’s efforts to minimize the risks of violence during the 

felony. (Clark, supra, 63 Cal.4th at pp. 621–622.) Here, this 

factor appears neutral. Reese planned for a car theft, a crime 
24

that does not generally involve violence. The carjacking was 

carried out on the spur of the moment, by Saucedo. The People 

argue that the carjacking transpired in the afternoon, when 

children were getting out of school. But the crime occurred in an 

apartment garage, not a school parking lot; other than the 

victim’s sons, there were no children and no other persons in the 

garage when Reese and Saucedo entered. And, Saucedo waited to 

commit the carjacking until the children had gotten into the 

elevator. The evidence suggests Reese neither took steps to 

minimize the risk of violence, nor heighten it. 

Two factors provide some support for a finding of reckless 

indifference. Courts have relied on a defendant’s failure to aid a 

wounded victim as a factor showing reckless indifference. (See 

Clark, supra, 63 Cal.4th 619; In re Parrish, supra, 58 Cal.App.5th 

at p. 544 [reckless indifference shown in part by fact petitioner 

“did not pause . . . to aid or comfort the victim”]; People v. 

Douglas, supra, 56 Cal.App.5th at p. 10 [petitioner “displayed no 

interest in moderating violence or in aiding his bloody and 

suffering victim,” and instead picked his pocket].) Here, Reese 

did nothing to aid Sanguansukdikosol. But, this failure is 

mitigated somewhat because it is unclear whether Reese knew 

Sanguansukdikosol had actually been shot, or how badly he was 

hurt. Reese claimed he did not see the actual shooting, and 

simply ran on Saucedo’s command. An ambulance was 

summoned for Sanguansukdikosol for a heart attack, not a 

gunshot wound, indicating the nature of the wound was not 

immediately obvious. (See In re Taylor, supra, 34 Cal.App.5th at 

p. 559 [failure to assist victim did not support reckless 

indifference finding where there was no evidence defendant 

appreciated how badly the victim was wounded].) The fact Reese 
25

later watched the movie he had purchased is not sufficiently 

callous to reliably demonstrate recklessness. 

The strongest factor weighing in favor of a reckless 

indifference finding is Reese’s presence at the crime scene. 

“Presence at the scene of the murder is a particularly important 

aspect of the reckless indifference inquiry.” (People v. Garcia

(2020) 46 Cal.App.5th 123, 148; People v. Murillo (2020) 54 

Cal.App.5th 160, 172–173, review granted on another ground 

Nov. 18, 2020, S264978.) Indeed, in the majority of cases finding 

an absence of reckless indifference, the defendant was not 

present. (See Murillo, at pp. 172–173 [“In Banks and Clark, and 

in other cases in which a court has overturned a special 

circumstance finding, the defendant either was not present at the 

scene of the killing, or at least was not capable of preventing his 

cohort from acting.”].) 

However, this factor is not always dispositive. (See People 

v. Ramirez, supra, 71 Cal.App.5th at pp. 975, 978, 989

[concluding defendant who was present when accomplice shot the 

victim did not act with reckless indifference]; In re Moore, supra,

68 Cal.App.5th at p. 452 [although petitioner saw accomplice rob 

and shoot the victim, petitioner was sitting in a stolen car at the 

scene and was not close enough to exercise a restraining effect].) 

People v. Ramirez is analogous. There, the 15-year-old 

defendant and two fellow gang members, Rios and Gallardo, set 

out to carjack a victim. Ramirez knew the leader, Rios, was 

armed with a gun. (People v. Ramirez, supra, 71 Cal.App.5th at 

pp. 977, 979.) When the victim of the carjacking declined to exit

his car at Rios’s command, Rios shot and killed him. Ramirez 

admitted to police that he knew Rios was planning the 

carjacking. Ramirez also admitted approaching the car and 
26

telling the passenger to get out. He had not wanted to 

participate in the carjacking but felt he had to or Rios would tell 

his fellow gang members and he would be killed. (Id. at pp. 978–

979, 981.) The court reasoned: “Ramirez did not provide the 

murder weapon, instruct his confederate to shoot, or know of his 

confederate’s propensity toward violence, and the shooting

occurred quickly without Ramirez having a meaningful 

opportunity to intervene. Although Ramirez was aware his 

confederate had a gun and intended to use it in the carjacking, as 

a 15 year old he may well have lacked the experience and 

maturity to appreciate the risk that the attempted carjacking 

would escalate into a shooting and death, and he was more 

susceptible to pressure from his fellow gang members to 

participate in the carjacking. Thus, there is not substantial 

evidence Ramirez acted with reckless indifference to human life.” 

(Id. at p. 975.) Similar circumstances are present here, and 

likewise are insufficient to demonstrate reckless indifference. 

Finally, as in Ramirez, Reese’s youth weighs against a 

finding of reckless indifference. At the time of the murder, Reese 

was barely 16 years old, his birthday having occurred only 16 

days earlier. Youth was not one of the factors expressly listed by 

Banks and Clark, but those opinions did not purport to set forth 

an exclusive list. (In re Harper (2022) 76 Cal.App.5th 450, 466–

467.) Several courts have concluded that a defendant’s youth is a 

relevant factor in the major participant or reckless indifference 

inquiry. In the context of reviewing a denial of a section 1170.95 

petition at the prima facie stage, People v. Harris concluded the 

evidence did not show, as a matter of law, that the 17-year-old 

arson defendant was actually aware of the particular dangers of 

throwing firebombs into a residence, “particularly in light of 
27

subsequent case law’s recognition of the science relating to 

adolescent brain development [citations].” (People v. Harris 

(2021) 60 Cal.App.5th 939, 959–960, review granted on another 

point Apr. 28, 2021, S267802.) 

In In re Moore, supra, 68 Cal.App.5th 434, the court found 

age was a determinative factor in the reckless indifference 

inquiry. (Id. at pp. 453–454.) There, the petitioner was 16 years 

old when the murder was committed. The court concluded that 

even if the evidence showing reckless indifference would have 

been sufficient for an adult, it did not suffice for the petitioner 

due to his age. The court reasoned that children are generally 

less mature and responsible than adults, and the law has 

historically assumed that they lack the capacity to exercise 

mature judgment. Accordingly, the court concluded the 

petitioner lacked the experience, perspective, and judgment to 

adequately appreciate the risk of death posed by his participation 

in a robbery-homicide. (Ibid.) 

People v. Ramirez, supra, 71 Cal.App.5th 970, similarly 

concluded that a “juvenile’s immaturity and failure to appreciate 

the risks and consequences of his or her actions bear directly on 

the question whether the juvenile is subjectively ‘ “aware of and 

willingly involved in the violent manner in which the particular 

offense is committed” ’ and has ‘consciously disregard[ed] “the 

significant risk of death his or her actions create.” ’ ” (Id. at 

p. 991.) The court pointed out that both the California and 

United States Supreme Courts have observed that the hallmark 

features of youth include immaturity, impetuosity, and the 

failure to appreciate risks and consequences, and juveniles are 

more susceptible to peer pressure than adults. (Ibid.) The court 

concluded, “Ramirez’s youth at the time of the shooting greatly 
28

diminishes any inference he acted with reckless disregard for 

human life by participating in the attempted carjacking knowing 

Rios was armed.” (Id. at pp. 990–991.) 

In In re Harper, the court criticized In re Moore for 

suggesting, “with little or no analysis,” that “the defendant’s 

youth, by itself, was the decisive factor in determining whether 

the defendant acted with reckless disregard for human life.” (In 

re Harper, supra, 76 Cal.App.5th at p. 468.) Harper declined to 

follow Moore “to the extent it can be read to suggest that youth is, 

by itself, a decisive factor whenever the defendant was a minor at 

the time of the offense.” (Id. at p. 470.) Assuming, without 

deciding, that youth was a factor that might be considered, 

Harper concluded it was not dispositive in that case. (Id. at 

p. 466.)

We need not weigh in on whether Harper’s criticism of 

Moore is warranted. In evaluating the evidence, we must 

examine the totality of the circumstances (Scoggins, supra, 9 

Cal.5th at p. 677), and it cannot be denied that a defendant’s 

youth is potentially relevant to his mental state and his 

assessment of the risks involved in a criminal endeavor. Here, 

Reese was barely 16 years old when he committed the offenses. 

The evidence suggested that 20-year-old Saucedo, who was a 

member of the same gang, was the leader and gave the 

considerably younger Reese directions: Saucedo told Reese which 

cars were undesirable theft targets, and directed Reese to take 

the victim’s car. When the duo fled, Saucedo, not Reese, did all 

the talking and gave directions to Jose. There was little, if 

anything, about the planned vehicle theft and even the carjacking 

that would have suggested to a person as young as Reese that the 

crimes involved a heightened risk of death. As Ramirez
29

explained, the defendant’s “age may well have affected his 

calculation of the risk of death posed by using the firearm in the 

carjacking, as well as his willingness to abandon the crime.” 

(People v. Ramirez, supra, 71 Cal.App.5th at p. 991.) Accordingly, 

Reese’s age cuts against a finding that he was subjectively aware 

his actions created a grave risk of death beyond that inherent in 

any violent felony.

In sum, viewing the evidence in the light most favorable to 

the People and taking into consideration Banks, Clark, Scoggins,

and their progeny, we cannot say the evidence was sufficient to 

prove Reese acted with reckless indifference to human life.10

The People argue that Reese’s statements to police were 

internally contradictory and self-serving, supporting the 

conclusion that he was minimizing his own involvement in the 

crimes. They contend that evidence he had a sweater wrapped 

around his hand when he entered Jose’s convertible supports an 

inference he was hiding the gun, which in turn supports an 

inference that he had it because he fired the fatal shot. But 

assuming the gun was under the sweater, this is too slender a 

reed upon which to base a conclusion that Reese was the shooter. 

The only evidence regarding what transpired in the garage after 

the children went upstairs came from Reese, and he consistently 

10 This Division’s 2007 opinion concluded the evidence was 

sufficient to prove Reese acted as a major participant with 

reckless indifference, based primarily on the fact Saucedo was 

armed with a firearm. But, as we have discussed, our Supreme 

Court has since made clear that the mere presence of a firearm—

and, indeed, the foreseeable risk of death in an armed robbery—

is insufficient to prove reckless indifference. (Scoggins, supra, 9 

Cal.5th at p. 677; Banks, supra, 61 Cal.4th at p. 808; Clark,

supra, 63 Cal.4th at pp. 617–618.)
30

claimed Saucedo was the shooter. One of the eyewitnesses who 

observed Reese and Saucedo running from the scene saw that the 

taller man—i.e., Saucedo—had his hand in his pants pocket and 

was running clumsily.

11 When Reese and Saucedo reached Jose’s 

convertible, Saucedo patted his clothing as if to demonstrate he 

was unarmed, and Reese had the sweater wrapped around his 

arm. From this evidence the jury could perhaps have inferred 

that Saucedo gave the gun to Reese to hold during their flight. 

But the inference that Reese was therefore the shooter is simply 

too speculative to amount to substantial evidence. As the

prosecutor told the jury during opening statement, “you may 

never know exactly what happened,” except that “one of the two 

of them shot and killed” the victim. The trial court, at 

sentencing, stated, “I do not believe the defendant was the 

shooter . . . .” Certainly, Reese’s statements to detectives may not 

have been entirely truthful. But given that there was no 

significant circumstantial evidence contradicting Reese’s claim 

that Saucedo was the shooter, the fact he may have been 

partially dishonest does not equate to sufficient evidence on this 

question. 

11 Reese was approximately five foot five inches tall. Saucedo 

was approximately six feet tall.
31

DISPOSITION

The petition for writ of habeas corpus is granted in part. 

The special circumstance findings are vacated. The matter is 

remanded to the trial court for consideration of a new section 

1170.95 petition, should Reese file one. Upon consideration of 

such a petition, the court is directed to vacate Reese’s murder 

conviction pursuant to section 1170.95, subdivision (d)(2), and 

resentence him on the attempted carjacking and burglary 

convictions in accordance with section 1170.95. 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.