1

Filed 4/27/22 In re Richardson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re EUGENE RICHARDSON

on Habeas Corpus.

 A162474

 (Alameda County

 Super. Ct. No. C164916)

This case is before us following the California Supreme Court’s order to 

show cause before this court why petitioner is not entitled to relief on his writ 

of habeas corpus. Petitioner claims his counsel rendered ineffective 

assistance by failing to argue that petitioner’s youth at the time of the offense 

should be one of the factors considered during the hearing under Penal Code 

section 1170.951 to determine if he was eligible for resentencing.

The People filed a return, and petitioner filed a traverse and lodged 

exhibits. Pursuant to our request, the parties submitted supplemental 

briefing regarding the propriety of consideration of exhibits submitted with 

the traverse.

We grant the petition and remand for a new hearing under section 

1170.95 where the trial court shall consider petitioner’s youth at the time of 

1 All statutory references are to the Penal Code unless otherwise 

stated.
2

the offense as one of the factors in determining whether petitioner acted with 

reckless indifference to human life.

FACTUAL AND PROCEDURAL BACKGROUND

I. Trial, Verdict, and Sentence

We incorporate the facts from our prior opinion in petitioner’s direct 

appeal (People v. Richardson (June 4, 2013, A134783) [nonpub. opn.] pp. 2–3 

(Richardson I)), which stated as follows:

“On the evening of October 15, 2009, Wayl Al Junaidi’s mother gave 

him $20 and sent him to buy milk at a [store] near their residence. When he 

left home, he had a brown trifold wallet and a diamond ring. Later that 

evening, a police officer . . . discovered the wounded Al Junaidi in a parking 

lot . . . in Oakland. Al Junaidi later died at [a hospital], and a forensic 

pathologist testified that the cause of death was a gunshot wound. No 

money, wallet, or jewelry were [sic] recovered from the location at which the 

victim was found.

“At trial, [R.C.] testified that on the night of October 15, 2009, he was 

cleaning up in the parking lot when he saw a red van pull up. Three men got 

out of the van and ran past him. [R.C.] saw the victim walking along Foothill 

Boulevard and then heard a loud pop. He saw the victim fall, and then the 

three men ran back to the red van. One man carried a silver pistol about six 

to eight inches in length. The red van then drove away. [R.C.] approached 

the victim, who was bloody but still alive. The entire incident lasted only 

three to five minutes.

“[R.C.] later repeated his story to a police investigator. He told the 

investigator he saw three men come out of a red van . . . and walk past him as 

he was cleaning up the parking lot. [R.C.] identified Richardson and another 

suspect from photo lineups. [R.C.] had identified the same two suspects at 
3

the preliminary examination. He said Richardson stood over the victim and 

was carrying the gun when the men returned to the van.

“[M.A.’s] bedroom window looked out over the parking lot. She was 

home on October 15, 2009[,] before 11:00 p.m., and when she looked out at 

her car in the parking lot, she saw the tops of three men’s heads. She heard a 

loud bang and looked out the window again. [M.A.] saw one man running 

away toward the red van, one man standing by a dumpster, and a third man 

struggling and arguing with the victim. The man struggling with the victim 

was trying to ‘put his hands into the victim’s sides’ and ‘was putting his hand 

in one area and another as if he were looking for something[.]’ The man was 

bent over the victim, and it looked as though he was trying to take something 

from him. The man with the victim wore dark pants and a dark jacket and 

had shoulder-length braids. After about a minute the man with the victim 

and the man near the dumpster ran to the red van where the third man had 

the engine running. [M.A.] saw the victim take a step and then fall to the 

ground.

“[M.A.] later identified Richardson as the man struggling with the 

victim. At trial she remembered his face although his hairstyle was different 

from the braids he had worn on the night of the murder. Her identification 

was based on Richardson’s face, which she had seen clearly when he passed 

by her window.

“[S.R.] testified she knew Richardson for about two months because he 

was dating her sister. She could not identify Richardson in court, but she 

had identified him earlier from a police photograph. [S.R.] said Richardson 

had showed her a large man’s ring with multiple diamonds on it and had 

asked her opinion about its value. He told [S.R.] he had gotten the ring in a 

robbery when he killed ‘an Arabian boy.’ ”
4

The jury found Richardson guilty of first degree felony murder (§ 187, 

subd. (a); former § 189) and found true the allegation that he personally used 

a firearm (§ 12022.53, subd. (b)). It found not true the allegations that he 

“ ‘personally and intentionally discharged a firearm and caused great bodily 

injury or death to [Al Junaidi]’ ” and that he “personally and intentionally 

discharged a firearm” (§ 12022.53, subds. (c), (d)). The trial court sentenced 

Richardson to 25 years to life for murder and to a consecutive 10-year term 

for the firearm use enhancement. In June 2013, we affirmed the judgment. 

(Richardson I, supra, A134783, at pp. 1, 4–5, 16.)

II. Section 1170.95 Petition and Appeal from Denial of Petition

In January 2019, Richardson filed a petition for writ of habeas corpus,

citing section 1170.95, which the trial court treated as a petition for 

resentencing. Petitioner argued he could not be convicted of felony murder 

under current law and was entitled to resentencing under section 1170.95. 

The trial court found petitioner made a prima facie showing he was entitled 

to relief under section 1170.95. The People’s written response attached our 

decision in Richardson I and argued that Richardson was a major participant 

in the robbery and acted with reckless indifference to human life. The People 

focused on the facts that petitioner was armed with a gun and actively robbed 

the victim after the victim had been shot and never sought aid for the victim. 

The People’s response also argued that Richardson, who was the only person 

observed with a gun, was likely the actual killer.

Richardson’s counsel filed a brief in support of resentencing in which he 

relied upon the witness testimony of M.A., R.C., and S.R. He argued that the 

jury’s not true findings on the two allegations of intentional discharge of a 

firearm (§ 12022.53, subds. (c), (d)) established that he was not the actual 

killer. He further argued that under the standards outlined in People v. 
5

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 

522 (Clark), the People cannot prove beyond a reasonable doubt that 

Richardson acted with reckless indifference to human life.

In advance of the evidentiary hearing, the People filed a memorandum 

arguing that the evidence in the trial record established beyond a reasonable 

doubt that Richardson was the actual killer and/or that he acted with 

reckless indifference to human life as a major participant in the robbery. The 

People asked the trial court to review the trial testimony of R.C., M.A., S.R., 

Sergeant Tony Jones and Detective Jason Andersen.

At the hearing, the People argued Richardson was ineligible for 

resentencing because the trial record evidence established Richardson was 

the actual killer despite the not true findings on the section 12022.53, 

subdivisions (c) and (d) allegations. In support of this argument, the People 

pointed to evidence that Richardson was the only person seen with a gun and 

to S.R.’s testimony that Richardson admitted to her that he was the shooter. 

The People also argued the evidence supported a finding that Richardson was 

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

Richardson’s counsel responded that there was insufficient evidence to find 

Richardson was the actual killer because of the jury’s not true findings on the 

intentional discharge allegations and that Richardson’s comment to S.R. may 

have been “a 16-year-old bragging . . . .” He further argued that Richardson’s 

acquittal on the allegations that he intentionally discharged a firearm

established that the jury did not believe S.R. Richardson’s counsel conceded

that Richardson was a major participant in the robbery, but he argued that 

the facts did not support a finding of reckless indifference to human life. 

Other than counsel’s comment that Richardson’s statement to S.R. may have

been “a 16-year-old bragging,” counsel did not reference Richardson’s age. 
6

Nor did he offer any evidence or argument as to how Richardson’s youth 

impacted the determination of whether he acted with reckless indifference to 

human life.

The trial court stated it read the testimony of M.A., R.C., and S.R., and 

portions of the testimony of Sergeant Jones and Detective Andersen. The

trial court found that the facts supported a verdict beyond a reasonable doubt 

that Richardson was the actual killer. In addition, it noted that the parties 

agreed Richardson was a major participant in the robbery, then found that 

the evidence also proved Richardson demonstrated reckless indifference to 

human life.2 However, the record is silent as to whether the trial court 

considered Richardson’s age as a factor. The trial court concluded that “the 

prosecution has proved beyond a reasonable doubt under one theory or the 

other that Mr. Richardson is ineligible under this statute for resentencing,” 

and it denied the petition.

Richardson appealed from the denial of his petition, and we affirmed 

the trial court’s decision on the grounds that the trial court correctly found 

Richardson to be a major participant in the felony who acted with reckless 

indifference to human life. (People v. Richardson (May 12, 2021, A159828) 

[nonpub. opn.] pp. 1–2, 15 (Richardson II).) One of the issues raised in 

Richardson II was that the trial court should have considered Richardson’s 

age at the time of the crime in determining whether he acted with reckless 

indifference to human life. Our decision found that Richardson forfeited this 

2 Specifically, the trial court referenced the following factors: “He is 

present. He is there with a gun. He is involved with planning activity with 

the robbery. He is the person who makes off with the loss. He is the person 

who immediately has the ability to seek help for the person who has been 

shot, but instead he continues to fight that person and struggle with that 

person and go through that person’s pockets, allowing that person to go down 

to the ground and die, essentially.”
7

claim by failing to raise the issue of his age in the trial court. (Richardson II, 

supra, A159828, at p. 13.)

III. Habeas Corpus Petition

While the appeal in Richardson II was pending, Richardson filed a 

petition for a writ of habeas corpus arguing that his counsel rendered 

ineffective assistance regarding his section 1170.95 petition. Among other 

claims, Richardson asserted his counsel “failed to raise the fact petitioner was 

only 16 years old and should not be held to the same standard of ‘reckless 

indifference’ as a fully mature adult offender . . . .” We issued an order 

summarily denying Richardson’s petition.

On July 12, 2021, Richardson filed a petition for writ of habeas corpus

in the California Supreme Court asserting the same arguments as in his 

earlier habeas corpus petition filed with this court. The California Supreme 

Court issued an order to show cause stating: “The Secretary of the 

Department of Corrections and Rehabilitation is ordered to show cause before 

the Court of Appeal, First Appellate District, Division Five, when the matter 

is placed on calendar, why petitioner is not entitled to relief based on his 

claim that trial counsel rendered ineffective assistance by failing to argue 

that petitioner’s youth at the time of the offense should be one of the factors 

considered during the resentencing hearing under Penal Code section 

1170.95, when determining whether petitioner was a major participant in the 

robbery who acted with reckless indifference to human life. (People v. Banks 

(2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522; In re Scoggins 

(2020) 9 Cal.5th 667.)”3

3 Richardson also filed a petition for review of our decision in 

Richardson II affirming the trial court’s denial of his resentencing petition. 

The California Supreme Court denied review of our decision in Richardson II.
8

DISCUSSION

The Supreme Court’s order to show cause limits the issue for our 

consideration to whether Richardson’s counsel rendered ineffective assistance 

by failing to argue during the section 1170.95 hearing that Richardson’s

youth should be considered in determining whether he acted with reckless 

indifference to human life.4 In order to prevail, Richardson must establish 

that his counsel’s performance was deficient and that the deficient 

performance was prejudicial, meaning that there is a reasonable probability 

that but for counsel’s failings the result would have been more favorable to 

Richardson. (People v. Rices (2017) 4 Cal.5th 49, 80.)

To provide context for our decision as to whether Richardson’s counsel 

rendered ineffective assistance during the section 1170.95 hearing, we first 

explain the legislative changes regarding felony murder and the procedures 

for resentencing eligibility. Then we address recent case law regarding the 

impact of youth in determining whether a defendant acted with reckless 

indifference to human life.

I. Senate Bill No. 1437

“Under the felony-murder rule as it existed prior to Senate Bill 1437, a 

defendant who intended to commit a specified felony could be convicted of 

murder for a killing during a felony . . . without further examination of his or 

her mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–

248.) Senate Bill No. 1437, which became effective on January 1, 2019, 

restricted the application of the felony murder rule by amending sections 188 

4 The parties agreed in the trial court that Richardson was a major 

participant in the robbery, and Richardson does not argue otherwise in his 

habeas corpus petition. Accordingly, only the “reckless indifference to human 

life” prong of section 189, subdivision (e)(3)’s requirement for felony murder is 

at issue here. (§ 189, subd. (e)(3).)
9

and 189. (Lamoureux, at pp. 248–249.) “Section 189, subdivision (e), as 

amended, provides that a participant in a specified felony is liable for murder 

for a death during the commission of the offense only if one of the following is 

proven: ‘(1) The person was the actual killer. [¶] (2) The person . . . , with the 

intent to kill, aided, abetted . . . , or assisted the actual killer . . . . [¶] (3) The

person was a major participant in the underlying felony and acted with 

reckless indifference to human life . . . .’ ” (Id. at p. 248.)

Section 1170.95 provides a procedure for offenders previously convicted 

of felony murder to obtain the benefits of the changes to sections 188 and 189,

retroactively. (§ 1170.95; People v. Bascomb (2020) 55 Cal.App.5th 1077, 

1086.) A petitioner must first make a prima facie showing that: (1) the

prosecutor proceeded under a felony-murder theory; (2) the petitioner was 

convicted of first degree murder; and (3) the petitioner could not be convicted 

of first degree murder under current law because of changes to section 188 or 

189. (§ 1170.95, subd. (a)(1)–(3).) If a petitioner meets this prima facie

threshold, then the trial court holds a hearing to determine whether to vacate 

the murder conviction and to recall the sentence. (§ 1170.95, subd. (d)(1).) 

The prosecution bears the burden to prove beyond a reasonable doubt that 

the petitioner is guilty of murder under amended section 188 or 189. 

(§ 1170.95, subd. (d)(3).)5

II. Youth at the time of the offense is a factor to be considered in

deciding whether a defendant acted with reckless indifference to 

human life.

As discussed in Richardson II, supra, A159828, at page 2, California 

Supreme Court authority has defined “reckless indifference to human life” as 

5 Senate Bill No. 775 (2021–2022 Reg. Sess.) further amended section 

1170.95 and took effect on January 1, 2022. None of those amendments 

affect our decision.
10

having “a subjective and an objective element. [Citation.] As to the 

subjective element, ‘[t]he defendant must be aware of and willingly involved 

in the violent manner in which the particular offense is committed,’ and he or 

she must consciously disregard ‘the significant risk of death his or her actions 

create.’ [Citations.] As to the objective element, ‘ “[t]he risk [of death] must 

be of such a nature and degree that, considering the nature and purpose of 

the actor’s conduct and the circumstances known to him [or her], its 

disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor’s situation.” ’ [Citation.] 

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

[violent felony] is insufficient’ to establish reckless indifference to human life; 

‘only knowingly creating a “grave risk of death” ’ satisfies the statutory 

requirement. [Citation.] Notably, ‘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.” (In re Scoggins (2020) 9 

Cal.5th 667, 677 (Scoggins).)

Whether a defendant acted with reckless indifference to human life 

depends upon the totality of the circumstances. (Scoggins, supra, 9 Cal.5th 

at p. 677.) “Relevant factors include: 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? 
11

[Citation.] ‘ “[N]o one of these considerations is necessary, nor is any one of 

them necessarily sufficient.” ’ [Citation.]” (Ibid.)

Youth is not a factor explicitly mentioned in the Scoggins decision, or in 

Banks or Clark, on which Scoggins relies. (Scoggins, supra, 9 Cal.5th at pp. 

667–678; Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp. 

618–623.) However, several recent Court of Appeal decisions have addressed 

this issue. In re Moore (2021) 68 Cal.App.5th 434 (Moore), which involved a 

defendant who was 16 years old at the time of the offense, held that “a 

defendant’s youth is a relevant factor in determining whether the defendant 

acted with reckless indifference to human life” and reasoned that “the 

‘hallmark features’ of youth—‘among them, immaturity, impetuosity, and 

failure to appreciate risks and consequences’—are arguably more germane to 

a juvenile’s mental state than to his or her conduct. [Citation.]” (Id. at p. 

454.)

In People v. Harris (2021) 60 Cal.App.5th 939, review granted April 28, 

2021, S267802, the court reversed the trial court’s denial of a section 1170.95 

petition without issuing an order to show cause and remanded with 

directions to the trial court to issue an order to show cause. (Harris, at p. 

945.) In discussing the application of the Banks and Clark factors, the court 

stated that “given Harris’s youth at the time of the crime [age 17], 

particularly in light of subsequent case law’s recognition of the science 

relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 

560 U.S. 48 [citations]; Miller v. Alabama (2012) 567 U.S. 460 [citations]; 

People v. Gutierrez (2014) 58 Cal.4th 1354 [citations]), it is far from clear that 

Harris was actually aware ‘of particular dangers posed by the nature of the 

crime, weapons used, or past experience or conduct of other participants.’ ” 

(Harris, supra, 60 Cal.App.5th at p. 960.)
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People v. Ramirez (2021) 71 Cal.App.5th 970 reversed the denial of a 

section 1170.95 petition after an evidentiary hearing and found that the 

defendant’s youth (age 15) at the time of the carjacking was a significant 

factor to be considered in determining whether he acted with reckless 

indifference to human life. (Ramirez, at p. 990.) “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.” ’ [Citations.]” (Id. at p. 991.)

We agree with the Moore, Harris, and Ramirez decisions insofar as they 

find that a defendant’s age is a relevant factor to consider in determining 

whether a defendant acted with reckless indifference to human life. 

However, as the California Supreme Court has stated, in making such a 

determination, a court must consider the totality of the circumstances and no 

one factor is controlling. (Scoggins, supra, 9 Cal.5th at p. 677.) Thus, a

defendant’s age should be considered, along with the multiple other factors 

discussed in Scoggins, as part of the totality of the circumstances used to 

determine whether a defendant acted with reckless indifference to human 

life. (Ibid.)

6

6 In re Harper (Mar. 17, 2022, E076045) ___ Cal.App.5th ___ [p. 26]

(Harper) reads Moore to mean that youth is the “decisive” factor in 

determining whether a defendant acted with reckless indifference to human 

life. We disagree that Moore should be read so broadly. Moore analyzed the 

various Clark factors and found that many suggested Moore did not act with 

reckless indifference to human life. (Moore, supra, 68 Cal.App.5th at pp. 

451–453.) It further specifically stated that “youth is a relevant factor” and 

then concluded that under the totality of the circumstances of the case, 

including the defendant’s youth, a rational trier of fact could not find that 
13

III. Richardson received ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Richardson 

must demonstrate that his counsel’s performance was deficient because it fell 

below an objective standard of reasonableness and that his counsel’s 

deficiencies resulted in prejudice. (People v. Rices, supra, 4 Cal.5th at p. 80.) 

To establish prejudice, Richardson must show a “ ‘ “reasonable probability 

that, but for counsel’s failings, the result would have been more favorable to 

the defendant.” ’ ” (Ibid.)

A. Deficient Performance

The People do not dispute that Richardson’s counsel’s performance was 

deficient because he failed to argue Richardson’s youth is a factor to be 

considered in determining whether he acted with reckless indifference to 

human life. Instead, the People contend Richardson was not prejudiced by 

his counsel’s failure to assert youth as a factor. Richardson’s petition 

includes a declaration from his counsel stating that he had no tactical reason 

for not raising the issue of the effect of youthful cognitive immaturity on the 

determination of reckless indifference to human life. As discussed ante, and 

as the People appear to concede, youth is a relevant factor to be considered as 

part of the totality of the circumstances in determining whether a defendant 

acted with reckless indifference to human life.

The record before the trial court at the evidentiary hearing on the 

section 1170.95 petition included several references to petitioner’s age at the 

time of the crime. The section 1170.95 petition states, as one of the facts 

supporting the petition, that Richardson “was 16 when the crime was 

committed.” The section 1170.95 petition also refers to the direct appeal in 

Moore acted with reckless indifference to human life. (Moore, at pp. 454–

455.)
14

Richardson I as involving issues of “[i]nability of a minor to form the 

requisite intent.” The trial court also stated it had reviewed portions of the 

testimony of Detective Andersen, who testified that Richardson was 16 years 

old at the time of the crime. Further, during argument on the section 

1170.95 petition, defense counsel noted that Richardson’s statement to S.R. 

regarding the robbery may have been “a 16-year-old bragging to [S.R.].”

However, counsel did not argue either in his written submission or 

during the evidentiary hearing that the resentencing court must consider 

Richardson’s youth in determining whether he acted with reckless 

indifference to human life. The mere reference to Richardson’s age in his 

petition and in counsel’s comment regarding “a 16-year-old bragging” are not 

equivalent to a reasoned argument regarding the possible impact of 

Richardson’s youth on the issues before the resentencing court. (See People v. 

Guerrero (Mar. 14, 2022, B311548) ___ Cal.App.5th ___ [pp. 10–12] [finding 

trial court failed to consider youth-related mitigating factors under §§ 190.3

& 190.5 despite trial court’s singular statement on record that defendant was 

16].)

We acknowledge counsel’s statement in his declaration that at the time 

of the resentencing hearing there was no appellate case law discussing the 

effect of youth on a finding of reckless indifference to human life. However, 

the science relating to adolescent brain development and the concept that a 

defendant’s age should be considered in sentencing decisions is not new. 

(See, e.g., Miller v. Alabama (2012) 567 U.S. 460, 470–473, 477–480; Graham 

v. Florida (2010) 560 U.S. 48, 68; People v. Gutierrez (2014) 58 Cal.4th 1354, 

1388–1390.) Given the body of law holding that youth matters in sentencing 

decisions, it follows that youth is a relevant factor in determining a 

defendant’s eligibility for resentencing under section 1170.95. We find that 
15

Richardson’s counsel’s performance at the section 1170.95 hearing was 

deficient based on his failure to raise Richardson’s youth as a factor to be 

considered in determining whether he acted with reckless indifference to 

human life.

B. Prejudice

Next, we consider whether Richardson was prejudiced by his counsel’s 

deficiencies. That is, whether there is a “ ‘ “reasonable probability that, but 

for counsel’s failings, the result would have been more favorable to the 

defendant.” ’ ” (People v. Rices, supra, 4 Cal.5th at p. 80.)

1. The People’s “No Prejudice” Arguments

The People offer two arguments in support of their position that 

Richardson was not prejudiced by his counsel’s failure to argue youth factors 

during the section 1170.95 hearing. First, they argue Richardson was not 

prejudiced based on our decision in Richardson II, which deemed forfeited 

Richardson’s argument that the resentencing court should have considered 

Richardson’s youth. (Richardson II, supra, A159828, at p. 13.) Richardson 

asserts our prior decision then “analyze[d] the effect of petitioner’s age on the 

resentencing court’s finding.” (See Richardson II, at p. 13.) Richardson II

inferred that the judge at the section 1170.95 hearing was aware of

Richardson’s age based on references in the record. (Richardson II, at p. 15.) 

We stated that given the numerous other factors supporting the trial court’s 

reckless indifference to human life finding, even if the trial court had more 

explicitly addressed Richardson’s age, this factor would not have tipped the 

scales in Richardson’s favor. (Ibid.)

Second, the People contend that Richardson was not prejudiced because 

the trial court found beyond a reasonable doubt that Richardson was the 

actual killer. Under sections 189, subdivision (e) and 1170.95, 
16

subdivision (d)(1), a defendant who is the actual killer is not eligible for 

resentencing. Accordingly, the People assert that the trial court’s actual 

killer finding provides a separate, independent basis for its denial of the 

section 1170.95 petition and, therefore, Richardson was not prejudiced by his 

counsel’s failure to rely on youth as a factor to show he did not act with 

reckless indifference to human life.

We find the People’s arguments unpersuasive given the Supreme 

Court’s order to show cause, which specifically instructs us to determine “why 

petitioner is not entitled to relief based on his claim that trial counsel 

rendered ineffective assistance by failing to argue that petitioner’s youth at 

the time of the offense should be one of the factors considered during the 

resentencing hearing under Penal Code section 1170.95 . . . .” (Italics added.) 

“ ‘Issuance of an OSC . . . indicates the issuing court’s preliminary 

assessment that petitioner would be entitled to relief if his factual allegations 

are proved.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 475.) By issuing the 

order to show cause, the Supreme Court determined petitioner made a 

prima facie case for relief. (Ibid.) At the very least, the Supreme Court’s 

issuance of the order to show cause requires that we reconsider our statement 

in Richardson II that further consideration of Richardson’s youth would not 

have altered the trial court’s determination that he acted with reckless 

indifference to human life.

Further, the petition filed with the Supreme Court attached our 

decision in Richardson II, which includes in the procedural background that 

(1) the jury did not find that Richardson intentionally discharged a firearm 

(§ 12022.53, subds. (c), (d)) but did find he used a firearm (§ 12022.53, subd. 

(b)) and (2) the trial court’s denial of the section 1170.95 petition was based 

on both its finding that Richardson was the actual killer and its finding that 
17

he was a major participant in the robbery and acted with reckless 

indifference to human life. Thus, the Supreme Court was aware of the 

potentially inconsistent findings by the jury and the trial court at the section 

1170.95 hearing regarding whether Richardson was the actual killer. 

However, the Supreme Court’s order focuses solely on the impact of youth 

factors on the major participant/reckless indifference findings. We infer that 

the Supreme Court questioned the validity of the trial court’s actual killer 

finding on this record. It instructed us to focus only on the youth issue as it 

impacts the finding of reckless indifference to human life. We shall do as 

instructed.

2. Impact of Youth Factors on Finding of Reckless Indifference 

to Human Life

The habeas corpus petition argues defense counsel should have 

presented evidence of petitioner’s “ ‘immaturity, vulnerability and lack of true 

depravity’ ” at age 16, by showing petitioner had no history of violence before 

the offense and no violence since he has been incarcerated. It further states 

that it “appears [petitioner was] the only juvenile involved in this crime” and 

suggests that defense counsel should have brought this to the trial court’s 

attention. According to the habeas corpus petition, Richardson’s codefendant, 

Davon Young, was an adult offender who pleaded no contest to robbery with 

an enhancement for committing the offense while on bail.7 The 

habeas corpus petition further asserts, “The brother of [S.R.], who owned and 

likely drove the van that was seen to be involved in this robbery, was also an 

adult.” The supporting evidence cited in the habeas corpus petition does not 

state who owned or drove the van at the time of the crime, or that S.R.’s 

7 We grant petitioner’s request that we take judicial notice of the record 

in Richardson I and Richardson II.
18

brother was an adult, although it suggests a connection between the van and 

a relative of S.R.

8 The petition states, without any evidentiary support, 

“Petitioner was introduced to this family because he became sexually 

involved with the adult sister of [S.R.] and her brother.” Finally, the petition 

argues that petitioner was following the directions of his codefendant to leave 

the scene after the victim was shot. Petitioner cites to M.A.’s testimony that 

when she looked out the window after she heard the gunshot, she heard one 

of the coparticipants say, “ ‘[L]et’s go, go, go.’ ”

Petitioner submitted additional declarations with his traverse, 

including one from his maternal grandmother, who raised him, and one from 

a church pastor who knew Richardson and his family. Richardson’s 

grandmother’s declaration attests to his good character, evidenced by his 

helping his grandmother after she became disabled. She asserts Richardson 

was friends with the younger brother of S.R. and L.R. and became sexually 

involved with L.R., who was then in her mid-20’s. She further declares that 

Richardson committed the robbery “with members of the [R.] household.” 

The church pastor’s declaration also attests to Richardson’s good character;

describes him as respectful, loving, and caring; and states he volunteered to 

help clean up streets in his neighborhood. Additional exhibits petitioner 

submitted with his traverse are the probation officer’s report and 

recommendations; records of his successful completion of prison educational 

8 The habeas corpus petition cites to testimony of Detective Andersen

stating that he had seen the van before, when “there was an arrest made out 

of that vehicle in which [A.R., J.O., and C.S.] were stopped in that van.” 

Detective Andersen confirmed that A.R. was related to S.R. He further 

testified that the arrest of the individuals in the van related to another 

incident. Only two individuals were arrested for Al Junaidi’s murder, and 

Detective Andersen testified he was not ever able to identity the third 

individual involved.
19

programs; codefendant Young’s criminal record; and copies of two 

neuroscience articles discussed in Miller v. Alabama, supra, 567 U.S. 460, 

Roper v. Simmons (2005) 543 U.S. 551, and Graham v. Florida, supra, 560 

U.S. 48.

9

According to petitioner, had the trial court been given evidence of 

petitioner’s “ ‘immaturity, impetuosity, and failure to appreciate risks and 

consequences,’ ” it would have changed the court’s analysis of petitioner’s 

capacity for subjective awareness of the risk created.

Richardson argues the facts of his case are “remarkably close” to those 

in Moore, supra, which granted a habeas corpus petition challenging the 

sufficiency of the evidence supporting a felony-murder special-circumstance

finding. (68 Cal.App.5th at p. 439.) We find Moore readily distinguishable.

In Moore, the 16-year-old defendant and two coparticipants stole a car from a 

mall and then drove around the mall parking lot looking for a carjacking 

target. (Id. at p. 440.) One of the coparticipants got out of the car alone and 

robbed a family at gunpoint and then, without provocation, shot one of the 

victims. The shooter then got back into the car the defendant was driving,

and they left the scene. (Id. at p. 441.) Moore admitted he stole a car and 

that the robbery and shooting occurred while he was driving a stolen car. (Id.

at p. 443.) However, Moore never left the car during the robbery and 

9 Following the petitioner’s submission of multiple exhibits with his 

traverse, we requested supplemental briefing regarding the propriety of 

considering evidence submitted with a traverse. The People’s supplemental

brief conceded that a traverse and accompanying exhibits may provide 

additional facts to support claims made in the petition for writ of 

habeas corpus, as long as they do not add new claims to the petition. The 

People objected only to certain exhibits that postdated Richardson’s March 2, 

2020 resentencing hearing because such exhibits were not available for 

Richardson’s counsel to present at the resentencing hearing. Richardson 

withdrew the exhibits that postdated March 2, 2020, and we disregard them.
20

shooting, and he did not use a gun. (Id. at p. 452.) In contrast, Richardson 

was an active participant in the robbery who wielded a firearm. Although 

both Richardson and Moore were 16 years old when they committed their 

respective crimes, their roles and their actions toward their victims differed 

significantly. “[D]efendants who have shown their culpability was too slight 

under Banks and Clark ‘are those who were not wielding guns themselves 

and also not present for the shooting (either because they were acting as 

getaway drivers or because they were involved in the planning of the crime 

only).’ [Citations.]” (People v. Bascomb, supra, 55 Cal.App.5th at p. 1090.)

More recently, Harper considered whether a jury’s robbery-murder 

special-circumstance finding must be vacated because under Banks and 

Clark the evidence did not establish that the defendant, who was 16 years old 

at the time of the offense, was a major participant in the robbery or acted 

with reckless indifference to human life. (Harper, supra, ___ Cal.App.5th ___

[p. 2].) The defendant was present during the robbery of a shopkeeper known 

to the defendant and his coparticipants, although he stayed in the front 

section of the store while his coparticipants handcuffed the victim and took 

him into a bathroom, where they cut him with a knife, shot him, and robbed 

him of his wallet. (Harper, supra, ___ Cal.App.5th ___ [pp. 3–4].) The 

defendant interacted with his coparticipants during the robbery; stole 

merchandise from the store; heard pounding and yelling coming from the 

bathroom, indicating the victim was struggling; and heard the gunshot. 

(Harper, supra, ___ Cal.App.5th ___ [pp. 4, 16, 19].) The court found 

sufficient evidence that defendant was a major participant in the robbery and 

acted with reckless indifference to human life based on the Banks and Clark

factors. (Harper, supra, ___ Cal.App.5th ___ [pp. 10–22].) It then addressed 

whether the defendant’s youth should be considered to decrease his 
21

culpability. (Harper, supra, ___ Cal.App.5th ___ [p. 22].) It assumed, without 

deciding, that youth is a proper factor that may be considered under the 

totality of the circumstances. (Harper, supra, ___ Cal.App.5th ___ [pp. 22–

23].) The court found the defendant’s youth did not warrant a different result 

where the evidence showed defendant, who was only a few days shy of his 

17th birthday and held himself out as a 19-year-old, willingly participated in 

the robbery of the shopkeeper despite knowing there was a very high risk the 

victim would die, gave a shotgun to a coparticipant as they entered the store, 

told another coparticipant where she could find knives during the robbery, 

took merchandise from the store, and made statements during and after the 

robbery that reflected a callous indifference to whether the victim lived or 

died. (Harper, supra, ___ Cal.App.5th ___ [pp. 30–32].)

The facts of this case fall somewhere between those in Moore and 

Harper. Richardson actively participated in the robbery from start to finish 

and used a gun during the robbery, and his response to the shooting was to 

physically struggle with the injured victim to complete the robbery before 

leaving him to die. However, the duration of the crime was short, and there 

is no information regarding Richardson’s knowledge of his coparticipants’ 

propensity for violence. (Scoggins, supra, 9 Cal.5th at p. 677.)

The trial court’s ruling references the multiple Clark–Scoggins factors

supporting its determination. However, it does not address how Richardson’s 

youth may have impacted these factors. Given that Richardson’s counsel 

made no such argument, it is understandable that the trial court’s ruling is 

silent on the issue. However, as noted ante, we agree with Moore, Ramirez, 

and Harris that youth should be considered in determining whether a 

defendant acted with reckless indifference to human life. A defendant’s 

youth has particular relevance to the subjective element of “reckless 
22

indifference to human life,” which requires that “ ‘[t]he defendant must be 

aware of and willingly involved in the violent manner in which the particular 

offense is committed,’ and he or she must consciously disregard ‘the 

significant risk of death his or her actions create.’ ” (Scoggins, supra, 9 

Cal.5th at p. 677.)

We cannot say there is no reasonable probability that the trial court 

would have ruled differently if defense counsel had explicitly argued and 

presented evidence that Richardson’s youth should be considered in 

determining whether Richardson acted with reckless indifference to human 

life. Therefore, we remand for a new hearing at which Richardson’s counsel 

may present evidence and argument regarding the impact of Richardson’s 

youth. We do not hold that Richardson’s age is the deciding factor. Nor do 

we decide whether Richardson acted with reckless indifference to human life 

when his age, combined with the other Clark–Scoggins factors, is considered. 

Rather, we leave it to the trial court to determine on remand, with the benefit 

of evidence and argument regarding the impact of Richardson’s youth at the 

time of the offense, whether Richardson’s actions at the age of 16 constituted

reckless indifference to human life such that he is ineligible for resentencing 

under section 1170.95.

DISPOSITION

The order denying Richardson’s section 1170.95 petition is vacated, and 

the matter is remanded for a new evidentiary hearing at which Richardson 

may argue, and the trial court shall consider, the impact of Richardson’s 

youth at the time of the offense as a factor in determining whether 

Richardson acted with reckless indifference to human life.
23

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Needham, J.

_________________________

Burns, J.

A162474/In re Eugene Richardson on Habeas Corpus