Filed 10/31/23 P. v. Hatter CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLAUDELL HATTER,

Defendant and Appellant.

B322177

(Los Angeles County

Super. Ct. No. BA240172-03)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ronald S. Coen, Judge. Reversed with direction.

Law Office of Marc Eric Norton and Marc Eric Norton for 

Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, David E. Madeo and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Claudell Hatter participated in an armed robbery during 

which his accomplice shot and killed a security guard. A jury 

convicted Hatter of felony murder. Thereafter, he petitioned for 

resentencing under then recently enacted Penal Code1section 

1172.6,2 which limited accomplice liability for murder. After an 

evidentiary hearing under that section, the trial court denied 

Hatter’s petition, finding that he was a major participant in the 

felony who acted with reckless indifference to human life, and 

alternatively, that he committed implied malice murder. Hatter

now appeals the trial court’s order denying his petition. Because 

we find that there was insufficient evidence to support the 

finding that Hatter acted with reckless indifference to human life

or committed an implied malice murder, we reverse the order and 

remand for further proceedings.

BACKGROUND

I. The robbery and murder3

Hatter was jointly tried with Rollin Denem, Thomas 

Bridges, and Wardell Joe. 

“The evidence at their trial showed that in 1998, the men, 

assisted by Reginald Howard, Jesse Singleton, Amar Mobley, and 

1 All further undesignated statutory references are to the 

Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered 

to section 1172.6, with no change in text. (Stats. 2022, ch. 58, 

§ 10.)

3 The background is from People v. Denem (Feb. 21, 2023, 

B318106) [nonpub. opn.]. On our own motion, we take judicial 

notice of that opinion. (Evid. Code, § 452, subd. (d).) We have 

also taken judicial notice of the record in People v. Bridges (Jan. 

30, 2006, B176263) [nonpub. opn.]. (Evid. Code, § 452, subd. (d).)
3

Tiasha Croslin, committed an armed robbery at a market during 

store hours, when employees and customers were present. The

robbers were all members of 69 East Coast Crips, except Bridges, 

who was a member of a related gang, and Croslin, Bridges’s 

girlfriend, who had been a member of a San Diego gang. In the 

course of the robbery, Howard shot and killed the security guard, 

Juan Hernandez. The robbers also took Hernandez’s gun. 

Bridges robbed a cashier at gunpoint, obtaining money and food 

stamps. Leonard Jackson, a gang associate of the robbers, 

arrived at Hatter’s home just as the robbers returned from the 

crime scene.

“Eyewitness Gilbert Davis lived down the street from the 

market. He became suspicious when he saw a Buick Regal, an 

Oldsmobile Cutlass, and a Pontiac Trans Am in front of his home. 

Davis saw four men enter the market. Davis and his friends 

walked toward the market. The Cutlass’s driver, who was alone 

in the car, looked straight ahead. Someone then got into the 

Cutlass, and they took off.

“A market employee saw three men looking around the 

store. One man, identified as Denem, wore a hat and had long 

curly hair.4 Denem ordered everyone to get down, pointed a gun 

at the ceiling, and fired one shot. Thirty seconds later, the 

employee heard another shot.

“The market’s cashier saw the security guard struggling 

with two men. The cashier heard a gunshot and saw one of the 

men run from the market. The cashier ran to the manager’s 

office, but the manager locked the door before she could enter. 

4 There is no dispute that Denem had disguised himself with 

a hat and wig.
4

An armed man took her at gunpoint to the cash registers and 

forced her to empty their contents into a bag.

“The crime went unsolved for two years until Jackson 

offered to assist law enforcement in the hope of obtaining a 

reduction of a prison term he was serving. In 2001, Jackson 

identified six of the robbers and offered the name of the seventh, 

Denem. The detective then showed photographic lineups to the 

market employees. One identified Singleton and Bridges; a 

second identified Howard; and two others identified Singleton. 

The cashier could not identify anyone, although, at trial she 

thought that Bridges looked similar to the man who forced her at 

gunpoint to empty the cash registers.

“The neighbor who lived down the street, Davis, identified 

Hatter and Croslin as the individuals he had seen in the Regal 

outside the market and identified Joe as the driver of the 

Cutlass.

“Croslin, who was now incarcerated in connection with an 

unrelated bank robbery, admitted her role in the robbery and 

identified the participants.5 She and Jackson testified against 

Denem and his codefendants. At trial, Croslin testified that at 

the time of the crimes she lived with Bridges, and Jackson lived 

in the house in front of them. Through Bridges, Croslin met 

Hatter and Denem, both of whom were members of the 69th 

Street Crips. Hatter’s nickname was Doughboy and Denem’s 

5 Croslin initially faced a term of life without the possibility 

of parole for her involvement in the robbery. However, Croslin 

pleaded no contest to one count of voluntary manslaughter and 

two counts of robbery in exchange for a prison term of 12 years 

and her truthful testimony in this case.
5

nickname was Baby Doughboy, indicating the two had a close 

relationship.

“On the morning of the robbery, Bridges and Croslin went 

to Hatter’s home where Denem, Hatter, Joe, Bridges, Singleton, 

Howard, and Mobley discussed a robbery. Hatter said he needed 

money to get a car out of impound. When the conversation 

ended, Bridges told Croslin to get into a Regal with Hatter, who 

then drove them to the market. After Hatter and Croslin entered 

the market, Hatter said, ‘This is where we’re going to hit.’ Hatter 

and Croslin made a purchase, then left the store. They drove 

past a Cutlass driven by Joe and a parked Trans Am driven by 

Mobley. Shortly thereafter, Hatter and Croslin drove past the 

market and saw individuals running from it.

“After the robbery, the entire crime team returned to 

Hatter’s home. Howard was pacing and repeatedly said, in a 

scared manner, ‘I killed him, I killed him.’ They divided the 

money and food stamps obtained in the robbery.

“When Croslin later learned that the security guard had 

been killed, Bridges told her, ‘Howard was tussling with the 

security guard and shot him.’ Bridges indicated his role was to 

get the money from the safe in the office with Denem or 

Singleton, and Howard was supposed to distract the security 

guard. Bridges said Denem wore a disguise of a hat and a curly 

wig.

“Jackson testified that he was at Hatter’s home when the 

robbers returned from robbing the market. Denem had a hat and 

a wig. Once inside, they argued. Hatter asked where the money 

was, and Bridges said they only got food stamps and complained 

that they would have gotten more if Howard had not been ‘so 

trigger happy.’ They divided the food stamps among themselves 
6

and gave Jackson some. When they saw a news report[ ] of the 

robbery, Bridges and Denem said police sketches of the suspects 

did not look like them, and Denem laughed because the sketches 

depicted him as having long hair. 

“Two days after the robbery, Jackson was arrested for 

violating parole. Approximately five months after telling a 

detective what he knew about the robbery, Bridges and Jackson 

were incarcerated together. Bridges related details of the crime 

to Jackson, saying that Hatter and Croslin entered the store first 

to ‘check the move out[.]’ Bridges said he and Denem intended to 

force the manager to open the safe at the back of the store, but 

the manager locked himself in a room. When Bridges heard a 

shot, he ran with Denem to the front of the market and saw that 

Howard and Singleton already had fled. Bridges then took food 

stamps from the cash register. Bridges said Howard had a .45 

caliber handgun.” (People v. Denem, supra, B318106.)

II. Verdict and sentence

In 2004, a jury convicted Hatter of special circumstance 

murder (§§ 187, subd. (a), 190.2, subd. (a)(17); count 1) and of 

robbery (§ 211; counts 2 & 3) with true findings on principal gun 

use (§ 12022.53, subds. (c), (d) & (e)(1)) and gang (§ 186.22, subd. 

(b)(1)) allegations.

6 That same year, the trial court sentenced 

Hatter on count 1 to life without the possibility of parole plus 25 

years to life for the gun enhancement. The trial court imposed

concurrent sentences on counts 2 and 3.

This Division affirmed Hatter’s judgment of conviction on 

direct appeal. (People v. Bridges, supra, B176263.)

6 The jury found the gang allegations true as to counts 1 and 

3 only. 
7

III. Postconviction petition for resentencing

Thereafter, our legislature passed Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill 1437), which limited 

accomplice liability for murder and allowed eligible defendants 

convicted of murder to petition for resentencing. In 2021, Hatter

petitioned for vacation of his murder conviction and resentencing 

under that new law. The trial court issued an order to show 

cause and held an evidentiary hearing.

At the outset of the evidentiary hearing, the trial court 

stated it had read the case file, including minute orders and trial 

transcripts, and had considered People v. Bridges, supra, 

B176263 for its procedural history only. The People did not 

introduce any new or additional evidence. However, Croslin and 

Hatter testified for petitioner at the hearing.

Croslin testified that on the day of the robbery, all 

participants met beforehand at Hatter’s aunt’s house, where they 

discussed the plan, but Croslin did not know until after the 

robbery that the plan included holding a security guard at 

gunpoint. Hatter was the oldest of the participants. Croslin and 

Hatter then drove to the market and walked through it, and 

Hatter told her they were going to rob the market. Patrons and a 

security guard were in the store, but Croslin denied seeing the 

guard. Croslin and Hatter left the market and drove past the 

other participants, who were waiting in their cars. Croslin and 

Hatter then parked, and she saw individuals running out of the 

market with their faces covered. The robbers all returned to the 

house, where one of the men said he thought he had killed the 

security guard. Hatter told him to calm down, and not to worry, 

“ ‘They don’t have anything on you.’ ” The men split the money. 

At no time while Croslin was with Hatter did they discuss 
8

firearms. She did not learn that the security guard had been 

fatally shot until after the robbery.

Hatter testified that while planning the robbery they did 

not discuss using firearms, and Hatter was not personally armed 

with a gun. He first learned that firearms were used after the 

robbery, at the house. 

In ruling, the trial court said it was discounting much of 

Croslin’s testimony because it was “plainly unbelievable.” The 

trial court also did not believe Hatter’s testimony. It then found 

that Hatter was “the planner,” had motive to commit the crime 

(to get his car out of impound), and directed the plan by checking 

out the location. The trial court accordingly found that Hatter 

was a major participant who acted with reckless indifference to 

human life. Further, the trial court found that Hatter was guilty 

as a direct aider and abettor who acted with implied malice. 

Because Hatter was guilty of murder under current law, he was 

not entitled to resentencing.

DISCUSSION

I. Senate Bill 1437 and standard of review

Senate Bill 1437, which took effect on January 1, 2019,

limited accomplice liability under the felony-murder rule and 

eliminated the natural and probable consequences doctrine as it 

relates to murder, to the end of ensuring that a person’s sentence 

is commensurate with the person’s individual criminal 

culpability. (People v. Reyes (2023) 14 Cal.5th 981, 984 (Reyes); 

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

relevant here, Senate Bill 1437 amended the felony-murder rule 

by adding section 189, subdivision (e), which provides that a 

participant in the perpetration of qualifying felonies is liable for 
9

felony murder only if the person: (1) was the actual killer; (2) was 

not the actual killer but, with the intent to kill, acted as a direct 

aider and abettor; or (3) the person was a major participant in 

the underlying felony and acted with reckless indifference to 

human life, as described in section 190.2, subdivision 

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

Senate Bill 1437 also added section 1172.6, which created a 

procedure whereby persons convicted of murder under a nowinvalid theory of murder may petition for vacation of their 

convictions and resentencing. A defendant is eligible for relief 

under section 1172.6 if the defendant meets three conditions: the 

defendant (1) must have been charged with murder under a 

theory of felony murder, (2) must have been convicted of first or 

second degree murder, and (3) could no longer be convicted of first 

or second degree murder due to changes to section 189 

effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a 

petitioner makes a prima facie showing of entitlement to relief, 

the trial court shall issue an order to show cause (§ 1172.6, 

subd. (c)) and hold an evidentiary hearing at which the 

prosecution bears the burden of proving “beyond a reasonable 

doubt, that the petitioner is guilty of murder or attempted 

murder” under the law as amended by Senate Bill 1437 (§ 1172.6, 

subd. (d)(3)). The parties may offer new or additional evidence at 

the evidentiary hearing. (Ibid.) The trial court sits as an 

independent factfinder to determine beyond a reasonable doubt 

whether the defendant is guilty of murder under a valid theory of 

murder. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)

On appeal, we review the trial court’s findings for 

substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 

276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 
10

591.) Under that standard of review we “ ‘ “examine the entire 

record in the light most favorable to the judgment to determine 

whether it contains substantial evidence—that is, evidence that 

is reasonable, credible, and of solid value that would support a 

rational trier of fact in finding [the defendant guilty] beyond a 

reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in 

support of the judgment the existence of every fact that can be 

reasonably deduced from the evidence. (People v. Owens (2022) 

78 Cal.App.5th 1015, 1022.)

As an initial matter, we reject Hatter’s “object[ion] to the 

superior court denial on the grounds the court never found the 

People proved their case” beyond a reasonable doubt. The only 

basis Hatter asserts for this objection is the speed with which the 

trial court issued its decision. On appeal, however, we presume a 

trial court was aware of and followed applicable law in the 

absence of evidence to the contrary. (People v. Bryant, Smith and 

Wheeler (2014) 60 Cal.4th 335, 398.) Although the trial court

here did not expressly refer to the burden of proof, nothing in the 

record shows that the trial court misunderstood its role as an 

independent factfinder who had to find beyond a reasonable 

doubt that Hatter had the requisite mental state for murder. 

II. Sufficiency of the evidence Hatter was a major participant 

in the felony who acted with reckless indifference to human 

life

Hatter contends that the trial court erred by denying his 

section 1172.6 petition because there was insufficient evidence to 

support its conclusion that he was a major participant in the 

felony who acted with reckless indifference to human life. As we 

now explain, we agree that there is insufficient evidence Hatter 

acted with reckless indifference to human life.
11

A. What it means to be a major participant who acts with 

reckless indifference to human life

This area of law regarding what it means to be a major 

participant in a crime who acts with reckless indifference to 

human life has its genesis in two United States Supreme Court 

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

Arizona (1987) 481 U.S. 137. Enmund held that the death 

penalty could not constitutionally be imposed on an armed 

robbery getaway driver who was a minor participant in the crime, 

was not present when the murder was committed, and had no 

intent to kill. (Enmund, at pp. 798, 801.)

In contrast, Tison v. Arizona, supra, 481 U.S. at page 139, 

did not preclude imposing the death penalty for two defendants, 

brothers, who had helped their father and his cellmate—both 

convicted murderers—escape from prison. The defendants gave 

them guns, and the group later kidnapped a family of four. The 

defendants then stood by while their father debated whether to 

kill the family and proceeded to shoot the family, including a 

toddler and a teenager. (Id. at pp. 139–141.) The court held that 

the Eighth Amendment does not prohibit imposing 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 

p. 152; see also id. at pp. 157–158.)

Years later, in People v. Banks (2015) 61 Cal.4th 788 

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

Supreme Court addressed Enmund and Tison and substantially 

clarified the “major participant” and “reckless indifference to 

human life” requirements. Banks, at page 794, considered “under 

what circumstances an accomplice who lacks the intent to kill 
12

may qualify as a major participant.” 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 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.)

The court then turned its attention to “reckless indifference 

to human life” in Clark. Reckless indifference to human life is 

“ ‘implicit in knowingly engaging in criminal activities known to 

carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.) 

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. (Ibid.) 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

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

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

observe.’ ” (Ibid.)

Clark listed factors to consider when determining whether 

reckless indifference existed: “Did the defendant use or know 

that a gun would be used during the felony? How many weapons 
13

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?” (In re Scoggins (2020) 9 Cal.5th 667, 677 

[summarizing Clark factors].)

Cognizant that the Banks and Clark factors overlap, we 

next focus our analysis on whether Hatter acted with reckless 

indifference to human life, without deciding whether he was a 

major participant. (See, e.g., Clark, supra, 63 Cal.4th at p. 614 

[declining to decide whether defendant was major participant].) 

B. Reckless indifference to human life

In reaching its conclusion that Hatter was not entitled to 

relief, the trial court relied primarily on evidence Hatter planned

the robbery. To be sure, Hatter was intimately involved in 

planning the robbery: planning discussions took place at his 

home; Hatter’s motive for the robbery was to get his car out of 

impound; Hatter cased the market; Hatter greenlit the robbery 

after casing the market; and after the robbery, Hatter told an

accomplice to get rid of a car, apparently because it had been 

identified. 

Notwithstanding this evidence of Hatter’s leadership role 

in planning the robbery, Hatter is little different than the 

defendant in Clark, who was the robbery’s “mastermind,” having 

planned and organized the robbery and orchestrated the events 

at the scene. (Clark, supra, 63 Cal.4th at p. 612.) Even so, the 

Clark court found he did not act with reckless indifference to 
14

human life based on a consideration of other factors, including 

that the defendant planned for his accomplice to use an unloaded 

gun. (Id. at pp. 618–619.) 

Of course here, Croslin testified that the plan included 

pointing a gun at the security guard, and we will assume Hatter 

knew the guns were loaded, as there is no evidence to the 

contrary and the trial court disbelieved Hatter’s testimony he did 

not know guns would be used. While wielding a gun during a 

robbery certainly can weigh in favor of a reckless indifference to 

human life finding (see, e.g., People v. Bradley (2021) 65 

Cal.App.5th 1022, 1033 [personally wielding gun during robbery 

reflects reckless indifference to human life]; People v. Bascomb

(2020) 55 Cal.App.5th 1077, 1089 [defendant enabled murder by 

using gun to keep victims at bay during bank robbery]), it does 

not necessitate such a finding. Instead, Clark supra, 63 Cal.4th 

at page 617, instructs that a defendant’s mere knowledge his 

accomplices are armed is insufficient by itself to establish 

reckless indifference to human life. (Accord, In re Scoggins, 

supra, 9 Cal.5th at p. 682 [anyone who plans or participates in 

armed robbery anticipates lethal violence might be used, given 

that 1 in 200 armed robberies results in death; that alone does 

not establish reckless indifference to human life].) Therefore, 

Hatter’s knowledge that his accomplices would hold victims at 

gunpoint does not establish his reckless indifference to human 

life. 

We would find to the contrary if the evidence showed that 

the plan included Denem shooting at the ceiling or Howard 

shooting the security guard. Instead, the evidence suggests that 

use of lethal force was not planned. (Compare People v. Williams 

(2015) 61 Cal.4th 1244, 1281–1282 [defendant acted with reckless 
15

indifference to human life where he instructed fellow gang 

members carrying out carjackings to shoot resisting victims].) 

When the robbers regrouped at the house after the robbery, 

Howard was pacing back and forth, scared, repeating, “ ‘I shot 

him.’ ” There was a “lot of arguing,” and people were telling 

Howard to calm down and to shut up. Also, Jackson testified 

that after the men learned someone had died, they were “just 

saying it was messed up.” Bridges was unhappy that Howard 

shot Hernandez, because they would have gotten more money 

had Howard not been “trigger happy.” Thus, the robbers’

reactions to the murder were ones of surprise, fear, and upset 

that it precluded them from getting more money—all of which, 

while callous, shows that lethal force was unplanned. 

Next, although Hatter cased the market and approved it as 

the robbery’s target, he was not in the market during the robbery

and instead was outside, in a parked car. Hatter was therefore 

nowhere near Howard when Howard shot the security guard and 

in no position to restrain Howard. (See, e.g., In re Scoggins, 

supra, 9 Cal.5th at p. 679 [quickness of shooting suggested 

defendant lacked control over accomplices’ actions]; People v. 

Ramirez (2021) 71 Cal.App.5th 970, 989 [defendant lacked 

meaningful opportunity to intervene when he and shooter were 

on opposite sides of victim’s car, and attempted carjacking was 

quickly executed]; In re Moore (2021) 68 Cal.App.5th 434, 452 

[defendant present during robbery but not “ ‘close enough’ ” to 

restrain shooter].) Where, as here, there is no evidence lethal 

force was part of the agreed-upon plan, absence from the scene 

“may significantly diminish culpability for death.” (Banks, supra, 

61 Cal.4th at p. 803, fn. 5; accord, Clark, supra, 63 Cal.4th at 

p. 619 [proximity to murder and events leading to it “may be 
16

particularly significant where, as in Tison, the murder is a 

culmination or a foreseeable result of several intermediate 

steps”]; In re Bennett (2018) 26 Cal.App.5th 1002, 1008–1009, 

1023–1024 [defendant planned robbery but was not present 

during murder, so culpability was based on role as planner and 

driver for a robbery rather than on actions on the ground in 

events leading to murder].)

Although Hatter’s absence from the murder scene meant he 

had no control over the events once they started, there is

otherwise no evidence Hatter tried to minimize the risk of 

violence. Instead, he and Croslin cased the market, which 

suggests he would have seen the security guard and noted he was 

armed, as Hernandez wore a security belt with a gun holster.7

Yet, Hatter approved the market to rob8 and decided to rob it in 

the morning, when employees and customers were present. 

(Compare People v. Owens, supra, 78 Cal.App.5th at p. 1024 

[bank robbery posed high risk of violence because it occurred 

during business hours with 20 people present and robbers were 

armed], with Clark, supra, 63 Cal.4th at pp. 621–622 [plan to rob 

store after it was closed minimized risk of violence]; In re 

Scoggins, supra, 9 Cal.5th at p. 677 [defendant’s plan to beat 

victim and steal his money did not involve use of weapons].) That 

the plan included armed men entering a busy market could 

heighten the risk of violence, even if the plan did not include 

7 At trial and the evidentiary hearing, Croslin testified that 

she could not remember seeing a security guard. The trial court 

disbelieved this testimony.

8 After casing the market, Croslin and Hatter drove down 

58th Place, which signaled to the others to proceed with the 

robbery.
17

what in fact happened: Denem shooting at the ceiling, and 

Howard shooting Hernandez. 

The next factor we examine is the crime’s duration because 

there is generally a greater opportunity for violence when victims 

are held at gunpoint or restrained for prolonged periods. (Clark, 

supra, 63 Cal.4th at p. 620.) It is unclear how long the robbery 

lasted. But the plan included forcing the manager to open the 

safe at the back of the store. A robbery involving moving victims

and opening a safe could be one of some duration, certainly longer 

than a quick grab and go robbery. Still, it is unclear the planned 

duration of the robbery here increased the likelihood of violence 

beyond that in Clark, where the plan was to handcuff a computer 

store’s employees in a bathroom so that the robbers could load 

computers into a van. (Id. at pp. 620–621.) Although the Clark 

robbery was planned to be of “substantial duration” (id. at 

p. 620), the interaction between the robbers and victims was 

designed to be limited (id. at p. 621). So even though the robbery 

was in a public space and involved the prolonged detention of 

employees and risk of interlopers (indeed, the murder victim was 

an employee’s mother who had come to pick up her child from 

work), the duration of the felony was insufficient to support a 

conclusion the defendant acted with reckless indifference to 

human life. (Ibid.) 

Handcuffing victims and forcing them into a bathroom—

even in the absence of a loaded weapon—creates a volatile 

situation. The risk a victim might resist or fight back, prompting 

a violent response from the robbers, is just as likely in the Clark 

scenario as here, it seems to us. Moreover, because Hatter was 

not present during the robbery, this factor is nuanced as to him, 

as he had no immediate control over the events once they started
18

and could not, for example, call off the robbery once the violence 

escalated. Therefore, we cannot find the differences between the 

Clark robbery and this one significant enough to dictate a 

different finding on the reckless indifference to human life prong.

As for what Hatter knew about any propensity for violence 

his accomplices, and in particular Denem and Howard, might 

have had, there is no evidence on this factor, other than that all 

participants were gang members. But mere co-membership in a 

gang does not by itself establish knowledge of a propensity for 

violence. (See, e.g., In re Miller (2017) 14 Cal.App.5th 960, 976 

[although defendant and killer belonged to same gang and had 

committed follow-home robberies together, no evidence they had 

participated in shootings, murder, or attempted murder].)

Nor does the evidence show that Hatter callously failed to 

aid the wounded security guard. (See generally Clark, supra, 63 

Cal.4th at p. 619; In re Parrish (2020) 58 Cal.App.5th 539, 544 

[reckless indifference shown by failure to aid or comfort victim]; 

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

“displayed no interest in moderating violence or in aiding his 

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

Hatter saw his accomplices flee the store, but the evidence does 

not show he knew that Hernandez had been shot. The evidence 

suggests to the contrary, because when the men were back at the 

house, Howard informed the others that he had shot the security 

guard, while Hatter tried to calm the agitated Howard.

In evaluating the sufficiency of this evidence to support the 

trial court’s finding, we are mindful that no one Clark factor “ ‘is 

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

supra, 63 Cal.4th at p. 618.) Rather, we evaluate the factors 

under the totality of the circumstances to determine Hatter’s 
19

place on the culpability spectrum. (In re Scoggins, supra, 9 

Cal.5th at p. 675.) Ultimately, we cannot find that the factors 

weighing in favor of a reckless indifference finding—that the 

robbery occurred during regular business hours in a busy store 

where customers and employees were present and that the plan 

involved moving victims at gunpoint—outweigh those factors 

showing that Hatter did not knowingly create a grave risk of 

death. That is, there is no evidence the plan included lethal 

violence or that Hatter knew his accomplices had a propensity for 

violence. Hatter was not present when the robbery and murder

took place, and therefore he had no control over events on the 

ground and was in no position to restrain his accomplices or to 

help Hernandez. 

III. Sufficiency of the evidence of implied malice murder

The trial court alternatively found that Hatter was guilty of 

implied malice murder.9 Based on a similar rationale as 

expressed above, we cannot find there was substantial evidence 

to support Hatter’s murder conviction under this alternative 

theory.

Murder is the unlawful killing of a human being with 

malice aforethought. (§ 187, subd. (a).) Malice may be express or 

implied. (§ 188, subd. (a).) The primary difference between the

two is the former requires an intent to kill but the latter does not. 

(People v. Soto (2018) 4 Cal.5th 968, 976.) Implied malice murder 

requires the killing be proximately caused by an act, “ ‘ “ ‘the 

natural consequences of which are dangerous to life, which act 

was deliberately performed by a person who knows that his 

9

Implied malice murder is murder in the second degree. 

(§ 189, subd. (a).)
20

conduct endangers the life of another and who acts with 

conscious disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at 

p. 988.) Proximate causation thus requires the act to have been a 

substantial factor contributing to the death. (Ibid.) 

The guilt of an aider and abettor to a crime, including 

murder, is “based on a combination of the direct perpetrator’s 

acts and the aider and abettor’s own acts and own mental state.” 

(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “A person aids 

and abets the commission of a crime when [the person], (i) with 

knowledge of the unlawful purpose of the perpetrator, (ii) and 

with the intent or purpose of committing, facilitating or 

encouraging commission of the crime, (iii) by act or advice, aids, 

promotes, encourages or instigates the commission of the crime.” 

(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) 

Accordingly, for aiding and abetting liability on a theory of 

implied malice murder to be imposed, a direct aider and abettor 

must, by words or conduct, aid the perpetrator’s commission of a 

life-endangering act with the “knowledge that the perpetrator 

intended to commit the act, intent to aid the perpetrator in the 

commission of the act, knowledge that the act is dangerous to 

human life,” and the aider and abettor must act “in conscious 

disregard for human life.” (People v. Powell (2021) 63 

Cal.App.5th 689, 713, italics omitted, cited with approval by 

Reyes, supra, 14 Cal.5th at p. 991 [implied malice murder 

requires proof of aider and abettor’s “knowledge and intent with 

regard to the direct perpetrator’s life endangering act”].) In other 

words, under current law, “a direct aider and abettor of the 

killing who knew that his (or her) conduct endangered the life of 

another and acted with conscious disregard for life, may be guilty 

of second degree murder.” (People v. Langi (2022) 73 Cal.App.5th 
21

972, 979.) Implied malice remains a valid theory of second 

degree murder liability for an aider and abettor after Senate Bill 

1437’s enactment. (Reyes, supra, 14 Cal.5th at p. 991; Gentile, 

supra, 10 Cal.5th at p. 850.)

Here, the trial court never clearly identified what act or 

acts Hatter performed or aided and abetted that proximately 

caused the security guard’s death, although it appears the trial 

court relied on Hatter’s planning activities, i.e., scoping out the 

market and giving the greenlight for the robbery to proceed.10 

However, an act that merely creates a dangerous situation in 

which death is possible, depending on how circumstances 

unfolded, standing alone will not satisfy the proximate causation 

requirement of implied malice murder. (Reyes, supra, 14 Cal.5th 

at p. 989.) Rather, implied malice murder requires a high 

probability death will result; the danger to life cannot be merely 

vague or speculative. (Ibid.; People v. Cravens (2012) 53 Cal.4th 

500, 513 [probability of death cannot be remote or merely 

possible].)

In Reyes, supra, 14 Cal.5th at page 985, for example, the 

defendant Reyes was at a park with fellow gang members, one of 

whom openly displayed a gun. After someone in Reyes’s group 

called out to a passing car, the group chased the car, and 

someone (not Reyes) shot at the car, killing its driver. (Ibid.) 

Our California Supreme Court found that Reyes’s act of traveling 

with an armed fellow gang member into rival gang territory could 

result in a gang confrontation during which it was possible

someone could get hurt or killed, but the act did not by itself “give 

10 The People also do not identify what act or acts Hatter 

engaged in or aided and abetted that proximately caused the 

death. 
22

rise to a high degree of probability” death would result. (Id. at 

p. 989.) Further, there was no evidence Reyes’s “acts precipitated 

or provoked the shooting.” (Ibid.) And if the act of shooting was 

the dangerous act, there had to be evidence Reyes knew the 

shooter intended to shoot, to aid him in shooting, knew shooting

was dangerous to life, and acted in conscious disregard to life. 

(Id. at pp. 991–992.)

Similarly here, Hatter’s act of planning the armed robbery, 

including casing the market, certainly created a dangerous 

situation in which death was possible, depending on how 

circumstances unfolded. But it did not create a high probability 

of death, especially given the absence of evidence that the 

robbery plan included lethal violence. Indeed, what the Reyes 

defendant did could be viewed as just as dangerous as what 

Hatter did. The Reyes defendant was with fellow gang members, 

one of whom he knew was armed with a gun; they issued what 

inferentially was a gang challenge to the passing victim; and they 

pursued that victim. Therefore, some type of physical 

confrontation was planned or expected, even if there was not a 

high probability of death. In contrast, Hatter planned an armed 

robbery at which he was not present, and which did not include 

planned violence. Further, as in Reyes, even though the evidence 

supports a finding that Hatter knew his accomplices were armed, 

there is no evidence Hatter knew that either Denem or Howard 

intended to shoot. Rather, the evidence is to the contrary, that 

they were not supposed to use lethal force.

Thus, viewing the evidence in the light most favorable to 

the trial court’s order, the record does not contain substantial 

evidence that Hatter aided and abetted Hernandez’s murder with 

implied malice.
23

DISPOSITION

The order denying Claudell Hatter’s Penal Code section 

1172.6 petition is reversed with the direction to the trial court to 

vacate his murder conviction and to resentence him in accordance 

with section 1172.6.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.