Filed 3/14/24 P. v. Griffin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DEJON VINCENT GRIFFIN,

 Defendant and Appellant.

 G061875

 (Super. Ct. No. 16NF2053)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Gregg L. 

Prickett, Judge. Affirmed.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall 

Einhorn and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury found appellant Dejon Vincent Griffin guilty of murder and found 

true the special circumstance that the murder was committed during an attempted 

robbery. After he was sentenced to life, appellant timely noticed an appeal. On appeal, 

he contends the trial court erred in denying his requested special instruction. We 

conclude there was no error because the special instruction was duplicative and 

potentially confusing. Alternatively, any error was harmless beyond a reasonable doubt. 

Appellant also contends there was insufficient evidence to support the jury’s finding he 

was a major participant who acted with reckless indifference to human life. We conclude 

there was ample evidence in the record to support the jury’s finding. Finally, appellant 

contends his murder conviction should be reduced to second degree murder because the 

jury did not make a finding as to the degree of the murder. We conclude this argument is 

foreclosed by People v. Mendoza (2000) 23 Cal.4th 896, 908 (Mendoza), in which our 

high court held there is no degree of murder where the killing occurred during the 

commission of a robbery or burglary because all such murders are of the first degree. 

Accordingly, we affirm the judgment.

FACTS

I. Procedural History

In a first amended information, appellant and Aaron Jackson were charged 

with the murder and attempted robbery of Maher Yousef on July 1, 2016. It was alleged 

as a special circumstance that the murder was committed during the attempted robbery, 

and that the defendants each personally used a firearm during the commission of the 

attempted robbery. It was further alleged both defendants suffered a prior strike 

conviction under the Three Strikes law and a prior serious felony conviction. The case 

against appellant and Jackson was consolidated with the case against Jeffrey Tuli, who 

was charged with the same crimes in a separately filed information. The consolidated 

case was tried before two juries.
3

On March 24, 2022, an Orange County jury found appellant guilty of 

murder and found true the allegation he was a “major participant with reckless 

indifference to human life while engaged in the commission or attempted commission” of 

robbery. It found appellant guilty of attempted robbery and found true the personal 

firearm use enhancement. The jury made the same findings with respect to Jackson. A 

different jury convicted Tuli of first degree murder, and found true the special 

circumstance allegation and the personal firearm use allegation. The court sentenced 

both appellant and Jackson to 25 years to life, doubled for the prior strike, consecutive to 

15 years for the firearm use and prior conviction enhancements. Tuli was sentenced to 

life without the possibility of parole consecutive to 25 years to life. 

II. Trial Testimony

The victim Yousef was the owner of a check cashing services business in 

Buena Park. Before Yousef’s business closed for the day, nearby security video showed 

a man wearing “a lighter-colored shirt over dark pants” exit a Chevy HHR vehicle and 

walk over to Yousef’s Dodge Charger. The man crouched down and made a “jabbing 

motion” before running back to the Chevy, which then left the scene. 

A.H., a coworker and close friend of Yousef, testified that on July 1, 2016, 

at around 10:00 p.m., he and Yousef left the business in Yousef’s vehicle. Yousef was 

driving A.H. to his home when Yousef noticed the car was veering to the right. They 

pulled over into a gas station and noticed a flat tire. Because there were no tools to 

change the tire, A.H. suggested Yousef call his brother, who lived nearby, to bring them 

some tools. While waiting for Yousef’s brother, A.H. went inside the gas station market

to purchase some drinks while Yousef remained in the vehicle. 

Security video showed a Chevy HHR vehicle following Yousef’s vehicle to 

the gas station. When A.H. was in the gas station market, appellant, Jackson, and Tuli 

approached Yousef’s vehicle. Appellant arrived first. He drew his gun and pointed it at 

Yousef and shouted something at Yousef. Later, he took Yousef’s cellphone. 
4

When A.H. exited the store, he saw three armed men around Yousef’s 

vehicle. Two men were on the driver’s side, one of whom was talking to Yousef. A.H. 

identified the two men as appellant and Jackson. The other man, who A.H. later 

identified as Tuli, was on the passenger side. Tuli pointed his gun at A.H. before 

“put[ting] it down.” Appellant also pointed his gun at A.H. before asking him, “Where’s 

the money?” After A.H. stated they did not have money, appellant repeated his question 

before going to the trunk and checking under the spare tire. Appellant then asked,

“Where is the shop money?” which caused A.H. to “trip[ ] out” and feel it was a robbery. 

Tuli then searched under the passenger seat before firing a single shot at Yousef.1 All 

three men then ran into the alley. 

A motorist who was stopped at a traffic light near the gas station testified 

he observed three men around Yousef’s vehicle, which had its trunk open. One of the 

men had the front passenger door open, and he was leaning into the vehicle and arguing 

with someone inside the car. A second man was “digging around” inside the trunk, and 

the third man was at the driver’s side of the car. The motorist saw the person by the front 

passenger door draw a gun and fire into the vehicle. He heard a “terrible scream” before 

observing the three men fleeing down an alley. The motorist drove into the gas station 

and parked. A.H. asked him to help, and the motorist observed that Yousef was 

“breathing really heavy” and noticed Yousef had been shot in the head. His girlfriend, 

who had remained inside their vehicle, called 9-1-1. 

When police officers responded to the scene, they observed Yousef in the 

front seat. He was alive and making breathing sounds, but was unresponsive. 

Paramedics arrived about five to 10 minutes later. Yousef died from the single gunshot 

wound to the right side of his head. 

1 Although A.H. testified Tuli shot Yousef before rummaging under the 

passenger seat, the security video of the shooting shows Tuli searched under the 

passenger seat before shooting Yousef. 
5

After police released video of the shooting to the public, appellant’s 

coworker contacted the police and identified appellant as one of the suspects. 

Subsequently, police obtained warrants for Facebook and cellphone records for all three 

defendants. A June 11, 2016 livestream video on Jackson’s Facebook page showed

appellant and Jackson hanging out together. Jackson and Tuli were “Facebook Friends.”

The cellphone records showed Jackson and Tuli exchanged 12 phone calls 

and 48 text messages the day before the shooting. On the day of the shooting, Jackson 

and Tuli exchanged nine phone calls. That same day, appellant and Jackson exchanged 

nine phone calls and six text messages. There were no phone communications between 

appellant and Tuli. 

Several weeks later, Jackson was apprehended in Las Vegas, Nevada. 

Appellant was arrested in Washington state. Tuli was arrested in Riverside, California,

for unrelated burglaries. 

After Tuli was arrested, he was interviewed by police and the video

recording of the interview was played for the jury. In the interview, Tuli stated he was 

high on drugs the night of the shooting. That day, Jackson and appellant picked up Tuli 

at his house. Jackson told Tuli about the plan to rob Yousef. It was appellant who 

flattened the tire of Yousef’s car. Appellant had his own gun. Tuli was given a gun that 

Jackson had on him. Tuli thought the gun was a BB gun. He claimed he never planned 

to shoot anyone but “panicked” when Yousef tried to get out of the car via the passenger 

side. After the shooting, they drove back to Tuli’s house and got rid of their clothing “off 

the 91” freeway on the way. 

At trial, Tuli testified in his own defense. Tuli and Jackson were friends 

and coworkers. Before the shooting, Tuli had met appellant twice. Tuli denied 

participating in the shooting, claiming the three persons involved were appellant, 

Jackson, and a man named “Nick.” Tuli testified he lied when he told police that 

appellant slashed Yousef’s tire and that they got rid of their clothing on the 91 freeway. 
6

Tuli stated he took responsibility for the shooting because he was already facing a life 

sentence for the Riverside robberies. 

DISCUSSION

I. Appellant’s Murder Conviction Under the Felony-Murder Rule 

A. Applicable Law

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4), 

which took effect January 1, 2019, amended Penal Code sections 188 and 1892to 

“eliminate[ ] natural and probable consequences liability for murder as it applies to aiding 

and abetting, and limit[ ] the scope of the felony-murder rule.” (People v. Lewis (2021) 

11 Cal.5th 952, 957.) As relevant to this case, section 189, subdivision (e) now provides: 

“A participant in the perpetration or attempted perpetration of a [robbery] in which a 

death occurs is liable for murder only if one of the following is proven: [¶] (1) The person 

was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to 

kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the 

actual killer in the commission of murder in the first degree. [¶] (3) The person was a 

major participant in the underlying felony and acted with reckless indifference to human 

life, as described in subdivision (d) of Section 190.2.” (Italics added.)

Section 190.2, subdivision (d), provides “every person, not the actual killer, 

who, with reckless indifference to human life and as a major participant, aids, abets, 

counsels, commands, induces, solicits, requests, or assists in the commission of a felony 

enumerated in paragraph (17) of subdivision (a) which results in the death of some person 

or persons, and who is found guilty of murder in the first degree therefor, shall be 

punished by death or imprisonment in the state prison for life without the possibility of 

parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been 

2

All further statutory references are to the Penal Code, unless otherwise 

indicated.
7

found to be true.” (Italics added.) Among the felonies listed in section 190.2, 

subdivision (a)(17) is robbery. (§ 190.2, subd. (a)(17)(A).) 

The major participant and reckless indifference phrases were “derive[d] 

verbatim” from United States Supreme Court precedent concerning the permissible scope 

of capital punishment for felony murder. (People v. Estrada (1995) 11 Cal.4th 568, 575

(Estrada).) As the California Supreme Court has explained: “It is undisputed that when 

Senate Bill 1437 amended Penal Code section 189 to incorporate major participation and 

reckless indifference requirements, it codified the understanding of those requirements 

elucidated in Banks[

3]

and Clark.

[

4]

” (People v. Strong (2022) 13 Cal.5th 698, 710

(Strong).) “Banks elucidated what it means to be a major participant and, to a lesser 

extent, what it means to act with reckless indifference to human life, while Clark further 

refined the reckless indifference inquiry.” (Strong, at pp. 706–707.) 

In Banks, the high court addressed “under what circumstances an 

accomplice who lacks the intent to kill may qualify as a major participant” for purposes 

of the felony-murder special circumstance under section 190.2, subdivision (d). (Banks, 

supra, 61 Cal.4th at p. 794.) Because the phrase major participant derived from U.S. 

Supreme Court precedent, the high court analyzed Tison v. Arizona (1987) 481 U.S. 137 

(Tison) and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), “which articulate[ ] the 

constitutional limits on executing felony murderers who did not personally kill.” (Banks, 

at p. 794.) Tison and Enmund “place conduct on a spectrum, with felony-murder 

participants eligible for death only when their involvement is substantial and they 

demonstrate a reckless indifference to the grave risk of death created by their actions.” 

(Banks, at p. 794.) Toward one end of the spectrum was the getaway driver the high 

court found constitutionally ineligible for death in Enmund: a “‘minor actor in an armed 

3

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

4

People v. Clark (2016) 63 Cal.4th 522 (Clark).
8

robbery, not on the scene, who neither intended to kill nor was found to have had any 

culpable mental state.’” (Banks, at p. 800, quoting Tison, supra, 481 U.S. at p. 149.) 

Toward the other end of the spectrum were the Tison brothers, who had broken convicted 

murderers out of jail, armed them, captured an innocent family, “held [the family] at 

gunpoint while the two murderers deliberated whether the family should live or die, [and] 

then stood by while all four members were shot.” (Banks, at p. 802.) “Somewhere 

between them, at conduct less egregious than the Tisons’ but more culpable than Earl 

Enmund’s, lies the constitutional minimum for death eligibility.” (Ibid.)

The Banks court proposed certain factors a jury should consider “in 

determining whether a defendant’s culpability is sufficient to make him or her death 

eligible, these are: What role did the defendant have in planning the criminal enterprise 

that led to one or more deaths? What role did the defendant have in supplying or using 

lethal weapons? What awareness did the defendant have of particular dangers posed by 

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

participants? Was the defendant present at the scene of the killing, in a position to 

facilitate or prevent the actual murder, and did his or her own actions or inaction play a 

particular role in the death? What did the defendant do after lethal force was used? No 

one of these considerations is necessary, nor is any one of them necessarily sufficient. 

All may be weighed in determining the ultimate question, whether the defendant’s 

participation ‘in criminal activities known to carry a grave risk of death’ [citation] was 

sufficiently significant to be considered ‘major.’” (Banks, supra, 61 Cal.4th at p. 803, fn. 

omitted.)

The Banks court also addressed the reckless indifference element, holding 

that “knowing participation in an armed robbery, standing alone, is insufficient to 

establish a defendant’s reckless indifference to human life.” (Strong, supra, 13 Cal.5th at 

p. 706.) The California Supreme Court further elucidated on “reckless indifference to 

human life” in Clark, supra, 63 Cal.4th at p. 615. There, the high court noted that the 
9

elements of being a “major participant” and “having reckless indifference to human life”

significantly overlapped, “‘for the greater the defendant’s participation in the felony 

murder, the more likely that he acted with reckless indifference to human life.’” (Ibid., 

quoting Tison, supra, 481 U.S. at p. 153.) The high court concluded that “reckless 

indifference” “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.” (Clark, supra, 63 Cal.4th at p. 617.)

The Clark court set forth a list of non-exclusive factors for consideration in 

determining whether a defendant acted with reckless indifference to human life. These 

factors include: “(1) Knowledge of Weapons, and Use and Number of Weapons”; 

“(2) Physical Presence at the Crime and Opportunities to Restrain the Crime and/or Aid 

the Victim”; “(3) Duration of the Felony; (4) Defendant’s Knowledge of Cohort’s 

Likelihood of Killing”; and “(5) Defendant’s Efforts to Minimize the Risks of Violence 

During the Felony.” (Clark, supra, 63 Cal.4th at pp. 618–622.)

B. There Was No Reversible Instructional Error

The trial court instructed the jury with CALCRIM No. 540B as follows:

“Defendants Griffin and/or Jackson may be guilty of murder, under a 

theory of felony murder, even if another person did the act that resulted in the death. I 

will call the other person the perpetrator.

“To prove that the defendant Griffin or Jackson is guilty of first degree 

murder under this theory, the People must prove that:

“1. The defendant committed or attempted to commit robbery;

“2. The defendant intended to commit robbery;

“3. If the defendant did not personally commit or attempted to commit 

robbery, then a perpetrator, committed or attempted to commit robbery;

“4. While committing or attempting to commit robbery, the perpetrator 

caused the death of another person;
10

“5. The defendant was a major participant in the attempted robbery;

“AND

“6. When the defendant participated in the attempted robbery, he acted with 

reckless indifference to human life.

“To decide whether the defendant and the perpetrator committed or 

attempted to commit robbery please refer to the separate instructions that I will give you 

on that crime (CALCRIM 1600 and 460.) You must apply those instructions when you 

decide whether the People have proved first degree murder under a theory of felony 

murder.

“The defendant must have intended to commit the felony of robbery before 

or at the time that he caused the death.

“It is not required that the person die immediately, so long as the cause of 

death and the felony are part of one continuous transition.

“It is not required that the defendant be present when the act causing the 

death occurs.

“When you decide whether the defendant Griffin or Jackson acted with 

reckless indifference to human life, consider all the evidence. No one of the following 

factors is necessary, nor is any one of them necessarily enough to determine whether a

defendant acted with reckless indifference to human life. Among the factors you may 

consider are:

“Did the defendant know that lethal weapons would be present during the 

robbery?

“Did the defendant know that lethal weapons were likely to be used?

“Did the defendant know that lethal weapons were used?

“Did the defendant know the number of weapons involved?

“Was the defendant near the person killed when the killing occurred?
11

“Did the defendant have an opportunity to stop the killing or to help the 

victim?

“How long did the crime last?

“Was the defendant aware of anything that would make a coparticipant 

likely to kill?

“Did the defendant try to minimize the possibility of violence?

“When you decide whether the defendant Griffin or Jackson was a major 

participant, consider all the evidence. No one of these factors is necessary, nor is any 

one of them necessarily enough, to determine whether the defendant was a major 

participant. Among the factors, you may consider are:

“What was the defendant’s role in planning the crime that led to the death?

“What was the defendant’s role in supplying or using lethal weapons?

“What did the defendant know about dangers posed by the crime, any 

weapons used, or past experience or conduct of the other participants?

“Was the defendant in a position to facilitate or to prevent the death?

“Did the defendant’s actions or inaction play a role in the death?

“What did the defendant do after lethal force was used?” 

In giving this instruction, the trial court rejected giving appellant’s 

counsel’s alternate special jury instruction. The special instruction states:

“Evidence of a defendant’s actions after a murder betraying an indifference 

to the loss of life does not, standing alone, establish that the defendant knowingly created 

a grave risk of death. [Citation.]

“‘No one of these considerations is necessary, nor is any one of them 

necessarily sufficient.’ [Citation.]

“Risk of death alone is insufficient to prove reckless [indifference]. 

Evidence must show the defendant engaged in conduct that is known to carry a grave risk 

of death. [Citation.]
12

“Agreeing to participate in armed robbery insufficient as a matter of law. 

[Citation.]

“Presence of firearm alone is insufficient. [Citations.]

“Major participation means more than active participation.

“Whereas callousness reflects insensitivity and lack of compassion, 

reckless indifference is only established when the defendant knowingly creates a serious 

risk of death. [Citation.]

“Reckless indifference requires proof that the defendant was aware of and 

willingly involved in the violent manner in which the particular offense is committed, 

demonstrating reckless indifference to the significant risk of death his or her actions 

create. [Citation.]

“To establish the major participant requirement, ‘a defendant’s personal 

involvement must be substantial, greater than the actions of an ordinary aider and abettor 

to an ordinary felony murder.’ [Citation.]

“‘Awareness of no more than the foreseeable risk of death inherent in any 

armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the 

constitutional minimum’ to prove accomplice liability for felony-murder. [Citations.]

“Callous behavior after the fact is not the same as reckless indifference to 

human life. [Citation.]

“Reckless indifference encompasses both subjective and objective 

elements. The subjective element is the defendant’s conscious disregard of risks known 

to him or her. But recklessness is not determined merely by reference to a defendant’s 

subjective feeling that he or she is engaging in risky activities. Rather, recklessness is 

also determined by an objective standard, namely what ‘a law-abiding person would 

observe in the actor’s situation.’ The question is whether the defendant’s disregard of the 

risk of death involved a gross deviation from the standard of conduct that a law-abiding 

person in the actor's situation would observe. [Citation.]
13

“RIHL DEFINED

“A person acts with reckless indifference to human life when that person 

knowingly engages in criminal activity that he or she knows involves a grave risk of 

death. However, the defendant’s participation in an armed robbery does not, in itself, 

constitute engaging in a criminal activity known to carry a grave risk of death. Rather, to 

find that the defendant acted with reckless disregard of human life you must determine 

that the defendant was aware of and willingly involved in the violent manner in which the 

crime was committed, demonstrating reckless indifference to the significant risk of death 

his or her actions created. Put another way, to find the defendant guilty under this theory 

you must find that his or her conduct demonstrated a willingness to kill (or to assist 

another in killing) to achieve a distinct aim, even if the defendant did not specifically 

desire that death as the outcome of his or her actions.

“OR

“‘The defendant must be aware of and willingly involved in the violent 

manner in which the particular offense is committed, demonstrating reckless indifference 

to the significant risk of death his or her actions create.’ [Citation.] ‘[I]t 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.’ 

[Citation.]”

The court observed the proposed special instruction contained “almost 

verbatim quotes from various appellate opinion[s],” and that “the vast majority of these 

would be appropriate for argument.” The court, however, noted the “strong[ ] caution” 

against using language from appellate opinions in jury instruction. The court also 

concluded many of the factors in the special instruction already were covered in the 

model CALCRIM instruction. The court declined to modify CALCRIM No. 703, the 

jury instruction on the special circumstance finding, with the proposed language. 

The jury was instructed with CALCRIM No. 703 as follows:
14

“If you decide that a defendant is guilty of first degree murder but was not 

the actual killer, then, when you consider the special circumstance of felony murder 

during the commission of an attempted-robbery, you must also decide whether the 

defendant acted either with intent to kill or with reckless indifference to human life.

“In order to prove this special circumstance for a defendant who is not the 

actual killer but who is guilty of first degree murder as a co-participant, the People must 

prove that the defendant Griffin or Jackson intended to kill, or the People must prove all 

of the following:

“1. The defendant's participation in the crime began before or during the 

killing;

“2. The defendant was a major participant in the crime;

“AND

“3. When the defendant participated in the crime, he acted with reckless 

indifference to human life.

“A person acts with reckless indifference to human life when he knowingly 

engages in criminal activity that he knows involves a grave risk of death.

“The People do not have to prove that the actual killer acted with intent to 

kill or with reckless indifference to human life in order for the special circumstance of 

felony murder robbery and/or attempted robbery to be true.

“If you decide that the defendant is guilty of first degree murder, but you 

cannot agree whether the defendant was the actual killer, then, in order to find this special 

circumstance true, you must find that the defendant Griffin or Jackson acted with reckless 

indifference to human life and was a major participant in the crime.

“When you decide whether the defendant acted with reckless indifference 

to human life, consider all the evidence. No one of the following facts is necessary, nor is 

any one of them necessarily enough, to determine whether defendant Griffin or Jackson 

acted with reckless indifference to human life.” 
15

The 15 Banks and Clark factors were then set forth, as in CALCRIM No. 

540B.

On appeal, appellant argues the trial court erred in denying his request to 

include the definitions for “major participant” and “reckless indifference to human life.” 

We disagree. Here, appellant did not specifically request language defining “major 

participant” and “reckless indifference to human life,” but requested a two-page special 

instruction which included numerous quotes taken verbatim from appellate court opinions 

and where the 15 Banks and Clark factors were already covered under the model 

CALCRIM instruction. The court did not err because the proposed special instruction 

was duplicative and potentially confusing. When the trial court denied the request to give 

the full special instruction, appellant did not narrow the requested instruction only to the 

definitions. Thus, he forfeits any claim based on a special instruction narrowly tailored to 

the definitions of “major participant” and “reckless indifference to human life.” 

Even if not forfeited, any error is harmless beyond a reasonable doubt. 

First, “reckless indifference” was defined in another jury instruction (CALCRIM No. 703 

on special circumstance finding) as, “A person acts with reckless indifference to human 

life when he knowingly engages in criminal activity that he knows involves a grave risk 

of death.” This is almost identical to the proposed instruction that “A person acts with 

reckless indifference to human life when that person knowingly engages in criminal 

activity that he or she knows involves a grave risk of death.” (See People v. Clark (2011) 

52 Cal.4th 856, 975 [“The court properly may refuse a proposed instruction, however, 

when the point is covered in another instruction”].) More importantly, the high court has 

held that the phrases “major participant” and “reckless indifference to human life” have 

ordinary meaning that are commonly understood without need for further amplification. 

(See Estrada, supra, 11 Cal.4th at p. 578 [“[W]e conclude the generally accepted 

meaning of the phrase, ‘reckless indifference to human life,’ in common parlance amply 

conveys to the jury the requirement of a defendant’s subjective awareness of the grave 
16

risk to human life created by his or her participation in the underlying felony”]; Banks,

supra, 61 Cal.4th at p. 800–801 [“there is no reason to think either the United States 

Supreme Court in Tison or the drafters of Proposition 115 had in mind a specialized or 

technical meaning for ‘major participant’”]; People v. Proby (1998) 60 Cal.App.4th 922,

933 [“we believe the phrase ‘major participant’ is commonly understood and is not used 

in a technical sense peculiar to the law”].) It is undisputed the jury was properly 

instructed on the Banks and Clark factors that should be considered in determining 

whether a defendant is “a major participant” who acts with “reckless indifference to 

human life.” Thus, the jury’s findings on these elements were properly supported, and it 

is beyond a reasonable doubt that the omission of the definitions did not contribute to the 

jury’s verdict.

C. Sufficient Evidence Supports the Murder Conviction

Appellant contends there was insufficient evidence to support his murder 

conviction for the death of Yousef. Stated differently, he argues no substantial evidence 

supports the jury’s finding that he was a major participant who acted with reckless 

indifference to human life. “When reviewing a challenge to the sufficiency of the 

evidence, we ask “‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” [Citations.] Because the sufficiency of the evidence is 

ultimately a legal question, we must examine the record independently for “‘substantial 

evidence — that is, evidence which is reasonable, credible, and of solid value’” that 

would support a finding beyond a reasonable doubt. [Citation.] These same standards 

apply to challenges to the evidence underlying a true finding on a special circumstance. 

[Citation].” (Banks, supra, 61 Cal.4th at p. 804.)

Here, substantial evidence supports the jury’s finding that appellant was a 

major participant. A reasonable jury can infer from the phone calls and texts between 

appellant and Jackson on the day of the shooting that appellant was involved in planning 
17

the armed robbery. Appellant brought his own gun, which he pointed at Yousef and A.H.

Based on Tuli’s testimony, appellant and Jackson picked him up and supplied him with a 

loaded weapon. A jury can infer appellant was aware that all three robbers would be 

armed instead of just one robber, and that any participant who was unarmed would be 

supplied with a weapon. Appellant was present throughout the entire crime. The trial 

evidence established appellant slashed the tire on Yousef’s car, which not only allowed 

the robbery to occur, but also placed Yousef in danger of a vehicular accident. The 

robbers approached Yousef after his companion had left to enter the gas station market, 

indicating the plan was to isolate Yousef. Appellant was the first person to confront 

Yousef and the first person to point a gun at him. He took Yousef’s cellphone, which 

prevented the victim from calling for help or recording the incident. Appellant was 

present when Tuli fired the shot, but did not call 9-1-1 or provide any assistance to 

Yousef. Instead, appellant fled with his companions, ditched his clothing along the 

freeway, and later left the state. The record amply supports the jury’s finding that 

appellant was a major participant.

Likewise, there is substantial evidence to support the finding of reckless 

indifference to human life. Appellant used his own weapon, and as discussed above, it 

can be inferred he was aware all three robbers would be armed. He was the first to point 

a gun at Yousef and A.H. (See Clark, supra, 63 Cal.4th at p. 618 [“A defendant’s use of 

a firearm, even if the defendant does not kill the victim or the evidence does not establish 

which armed robber killed the victim, can be significant to the analysis of reckless 

indifference to human life”].) He also was present throughout the entire duration of the 

crime, but did not aid Yousef. There is no evidence he minimized the risk of violence, 

such as ensuring the guns were unloaded. A reasonable jury also could conclude the only 

reason appellant put away his weapon after pointing it at A.H. was so his hands could be 

free to unlock and then search the trunk. Finally, appellant was a major participant in the 

crime. (Id. at p. 615 [“‘the greater the defendant’s participation in the felony murder, the 
18

more likely that he acted with reckless indifference to human life’”].) On this record,

substantial evidence supported the jury’s finding that appellant acted with reckless 

indifference to human life. 

II. Degree of Murder

Appellant argues that because the jury’s verdict did not contain an express 

finding the murder was in the first degree, his murder conviction must be reduced to 

second degree murder. We disagree. 

Section 1157 states: “Whenever a defendant is convicted of a crime or 

attempt to commit a crime which is distinguished into degrees, the jury, or the court if a 

jury trial is waived, must find the degree of the crime or attempted crime of which he is 

guilty. Upon the failure of the jury or the court to so determine, the degree of the crime 

or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser 

degree.” However, section 1157 does not apply to a conviction for a killing committed 

during a robbery or burglary because “there are no degrees of such murders; as a matter 

of law, a conviction for a killing committed during a robbery or burglary can only be a 

conviction for first degree murder.” (Mendoza, supra, 23 Cal.4th at p. 908.) 

Appellant argues Mendoza is distinguishable because in that case, the jury 

was not instructed on first and second degree malice murder whereas in this case, the jury 

was instructed regarding first and second degree malice murder, although the instruction 

only referenced Tuli. Those facts do not distinguish this case from Mendoza because we 

presume the jury understood and followed the instructions which limited the finding of 

first or second degree of murder to Tuli’s crime. (See People v. Hovarter (2008) 44 

Cal.4th 983, 1005 [“‘We presume that jurors understand and follow the court’s 

instructions’”].) Moreover, even if the jury had been instructed mistakenly about the 

degree of appellant’s crime, “the only guilty verdict a jury may return is first degree 

murder.” (Mendoza, supra, 23 Cal.4th at p. 908.) Accordingly, Mendoza applies and we 

reject appellant’s argument that the jury was required to find the degree of the murder. 
19

(See Auto-Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Under the 

doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to 

follow decisions of courts exercising superior jurisdiction”].) 

DISPOSITION

The judgment is affirmed. 

DELANEY, J.

WE CONCUR: 

MOORE, ACTING P. J. 

MOTOIKE, J.