Filed 9/17/26 P. v. Cervantes CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B343365
(Super. Ct. No. 2018000854)
Plaintiff and Respondent, (Ventura County)
v.
MARIO CERVANTES,
Defendant and Appellant.
Mario Cervantes was originally charged with murder
committed during the commission of an armed robbery.
Cervantes is not the actual killer, and it is undisputed that he did
not act with the intent to kill. Pursuant to a plea agreement,
Cervantes pleaded guilty to voluntary manslaughter (Pen. Code,1
§ 192, subd. (a)) and second degree robbery (§ 211) and admitted
1 Further unspecified statutory references are to the Penal
Code.
a prior strike conviction (§ 667, subd. (e)(1)). He was sentenced to
22 years in prison.
Cervantes appeals from an order denying his petition for
resentencing under section 1172.6. He contends the evidence is
insufficient to support he was a major participant who acted with
reckless indifference to human life. We agree and reverse with
directions.
FACTS AND PROCEDURAL HISTORY2
Cervantes and Jeffrey Aguilar were friends and members of
the Colonia Chiques gang in Oxnard. Aguilar’s gang moniker
was “Tripper” because of his reputation of being quick to take
action against a person who “c[a]me at him sideways or
anything.” Cervantes was “loyal” to Aguilar because he was his
friend and fellow gang member.
In August 2008, Aguilar asked Cervantes for a ride to a
branch of U.S. Bank in Oxnard. When they arrived at the bank,
Aguilar told Cervantes that he and his aunt, Maria Bucio,
planned to rob Gurmohinder Singh. Bucio knew Singh regularly
withdrew large amounts of money from the bank. Aguilar and
Cervantes waited in Cervantes’s parked car facing the bank
entrance. When Bucio arrived, she briefly spoke with Singh
before making a gesture identifying him. Aguilar said, “ ‘That’s
him right there.’ ”
After leaving the bank, Aguilar received a phone call from
Bucio. Aguilar told Cervantes that the robbery was going to
happen the next day. Aguilar said he needed a “gun” and asked
2 The facts are taken from the evidence presented at the
section 1172.6 proceedings including the trial transcript of
Cervantes’s direct examination in codefendant Jeffrey Aguilar’s
trial and the probation report.
2
Cervantes for a ride to obtain one. They made a few stops to
collect money and then went to another gang member’s house.
Aguilar got out of the car while Cervantes waited, and Aguilar
returned with a firearm. Aguilar also asked Cervantes to pick up
Christina DeLeon at her house and drive back to the U.S. Bank.
Once they arrived at the U.S. Bank, Aguilar told Cervantes
to park behind the bank near a dumpster area of a nearby
apartment building. Aguilar told DeLeon about the robbery plan
and asked her to be the getaway driver. According to the plan,
DeLeon would park her car in the dumpster area and leave the
trunk open, while Aguilar would jump the fence behind the bank
after the robbery, climb into the trunk, and the two would drive
away. DeLeon agreed to the plan. Aguilar asked Cervantes to
park in the alley behind U.S. Bank so he can “burn rubber” and
cause a distraction for the police. He agreed to do so.
Aguilar asked Cervantes, “ ‘What do you think I should do?
Should I shoot [Singh] or should I just rob him? Just take his
money and that’s it?’ ” Cervantes initially was quiet and Aguilar
started laughing. Cervantes then responded, “ ‘You know what,
go ahead and shoot him. I don’t care.’ ” Aguilar replied, “ ‘Nah,
I’m not gonna shoot him’ ” and “ ‘I’m just gonna ask him one time
to give me the money, and if he don’t give me the money, then I’m
just gonna let him have it.’ ”
Cervantes asked Aguilar why he wanted to commit this
robbery. Aguilar said he was “pissed off that . . . he didn’t have a
job, he didn’t have . . . money, . . . that the cops had towed his car
and that they were always on him.” Cervantes offered to talk to
his boss to help Aguilar get a job where he worked. All Aguilar
needed was a driver’s license. Aguilar replied, “ ‘Well, too bad. I
don’t got one.’ ”
3
The next morning, Cervantes got up around 8:00 am. He
received a call from Aguilar asking him, “[W]here you at?”
Cervantes told Aguilar, “ ‘I got my son with me right now. I can’t
make it.’ ” Cervantes could have left his son at the house with
other adults, but he told Aguilar he could not make it because he
“wasn’t trying to get involved with anything.” Aguilar did not
believe Cervantes and was “pissed off.” Cervantes told Aguilar
that he did not know if he wanted to be involved, but Aguilar told
him, “ ‘Come on, man. You don’t got to be involved with
anything.’ ” Cervantes replied that he was going to be there. He
took his son with him to show Aguilar that he was not lying.
Cervantes went to the Carl’s Jr. parking lot across from the
front of the bank. Aguilar called Cervantes on his drive over.
When Cervantes arrived at the Carl’s Jr., Aguilar called him
again and said, “ ‘I see you driving up’ ” and “ ‘What are you
doing? You’re supposed to go to the alley [behind the bank].’ ”
Cervantes replied, “ ‘I got my son with me’ ” and went into Carl’s
Jr. with his son. Aguilar saw them and said, “ ‘Oh, all right.’ ”
Cervantes understood this to mean that it was “okay” that he was
not behind the alley because Aguilar knew he was not going to
put his son at risk.
From the inside of the Carl’s Jr., Cervantes could see the
front of the U.S. Bank and Aguilar standing in front. Thereafter,
Cervantes walked out of Carl’s Jr. back to his car. He did not
look toward Aguilar’s direction as he was leaving, and he did not
see the victim. He “walked directly to [his] car” and “just drove
away.” He did not hear shots before he left. As he drove on one
of the adjoining streets, he “got caught in the traffic” and heard
sirens. He knew “something had happened.” Cervantes drove
back home.
4
Aguilar had shot Singh multiple times at close range.
Singh died at the scene. Aguilar called Cervantes while in the
trunk of DeLeon’s car and asked, “Hey man, did you see that?”
Cervantes responded, “ ‘Yeah, yeah, I seen that.’ ” Cervantes did
not know why he told Aguilar he saw what happened when he did
not see the robbery or murder happen.
Later, Cervantes drove to Aguilar’s house after Aguilar
called to say he wanted to meet with him. Aguilar told him he
shot and killed Singh. Aguilar gave Cervantes $1,000 and told
him, “to say nothing.” Aguilar’s girlfriend went to a car
dealership to buy Aguilar a car with the stolen money. Aguilar
also gave money to cohorts, spent money on other items, and
went to a casino.
Cervantes saw Aguilar on another day, and Aguilar
appeared nervous. Aguilar said his probation officer told him
there was a warrant out for his arrest for murder/robbery.
Aguilar asked Cervantes to find him another firearm. Cervantes
obtained one from his cousin and gave it to Aguilar. Later, when
Aguilar attempted to avoid arrest, he opened fire at police
officers.
Charges and plea agreement
The district attorney filed a complaint charging Cervantes
with the murder of Singh (§ 187, subd. (a)), voluntary
manslaughter (§ 192, subd. (a)), and second degree robbery
(§ 211). The complaint included two special circumstance
allegations that he committed murder during the commission of
the robbery (§ 190.2, subd. (a)(17)(A)), and that Cervantes, while
not the actual killer, was a major participant in the robbery who
acted with reckless indifference toward human life (§ 190.2, subd.
5
(d)). The complaint also alleged prior strike and prior prison
term allegations.
In 2009, Cervantes entered into a plea agreement with the
prosecution to testify against Aguilar in exchange for a guilty
plea to a reduced charge of voluntary manslaughter and second
degree robbery and a stipulated 22-year prison sentence. The
agreement stated that any statements Cervantes made in the
investigation and prosecution of Aguilar “will not be used against
[Cervantes].”
Cervantes cooperated with the prosecution and testified in
Aguilar’s case. In 2018, Cervantes pleaded guilty to voluntary
manslaughter and second degree robbery, admitted prior strike
and prior prison term allegations, and was sentenced to 22 years
in state prison. The murder count and special circumstance
allegations were dismissed.
Section 1172.6 petition proceedings
In April 2022, Cervantes filed a section 1172.6 resentencing
petition. The trial court denied the petition without holding an
evidentiary hearing. In May 2024, we reversed the denial of the
petition, concluding the trial court engaged in improper
factfinding at the prima facie stage. We directed the trial court
to hold an evidentiary hearing. (People v. Cervantes (May 7,
2024, B327343) [nonpub. opn.].)
Following remand, the prosecution opposed resentencing
and attached the trial transcripts of Cervantes’s direct
examination in Aguilar’s murder case and the probation report as
supporting exhibits. The trial court held an evidentiary hearing
in November 2024. At the hearing, the prosecution contended
that Cervantes was not entitled to resentencing because he was a
major participant who acted with reckless indifference to human
6
life under People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).
Cervantes argued he was entitled to relief because the
prosecution agreed in the plea agreement that it would dismiss
the special circumstance allegation that Cervantes was a major
participant who acted with reckless disregard for human life
(§ 190.2, subd. (d)). Thus, he should “be given the benefit” of the
agreement and not be punished as a major participant.
Cervantes also argued that the trial transcripts should not be
considered by the court because their use violated the plea
agreement, which stated that any statement Cervantes made in
the prosecution of Aguilar “will not be used against [him].” The
court took the matter under submission.
In January 2025, the trial court denied the resentencing
petition. The court did not make any finding on the Banks and
Clark factors or any other factual findings as to whether
Cervantes was a major participant who acted with reckless
indifference to human life. The court summarized defense
counsel’s argument that “the use of the plea and the agreement is
being used for a different purpose than what was initially agreed
to back when this plea was entered into.” The court said, “I agree
that it’s not the way it’s supposed to be, and there’s a fairness in
equity argument that has a lot of validity to it. [¶] The problem I
had was when you look at Penal Code Section 1172.6, it doesn’t
address that, and that’s where the connundrum [sic] was for the
Court.” The court further stated that it “believe[d] [Cervantes]
should be out . . . but, unfortunately, by the rule of law in the
Penal Code Section [1172.6], I can’t do it.” According to the
respondent’s brief, Cervantes is out of custody.
7
DISCUSSION
Cervantes contends he is entitled to relief under section
1172.6 because the evidence is insufficient to support a murder
conviction under current law. The Attorney General correctly
concedes that Cervantes could not be convicted as a direct aider
and abettor because there is no evidence he harbored an intent to
kill. Nonetheless, the Attorney General contends reversal of his
voluntary manslaughter conviction is not warranted because
substantial evidence supports a finding that Cervantes was a
major participant who acted with reckless indifference to human
life. For reasons we shall explain, we disagree.
Senate Bill No. 1437
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) to “amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who [was] not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony
who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) To accomplish these goals, Senate Bill
No. 1437 redefined “malice” in section 188, and narrowed the
classes of persons liable for felony murder under section 189.
(Stats. 2018, ch. 1015, §§ 2–3.) It also added what is now section
1172.6 to the Penal Code, which permitted those convicted of
felony murder or murder under a natural and probable
consequences theory to petition to have their murder convictions
vacated and be resentenced on any remaining counts. (Stats.
2018, ch. 1015, § 4; see also Stats. 2022, ch. 58, § 10
[renumbering former section 1170.95 as section 1172.6 without
substantive change].) Senate Bill No. 775 (2021–2022 Reg. Sess.)
8
subsequently extended this relief to persons convicted of
manslaughter. (See Stats. 2021, ch. 551, § 2.)
If a trial court determines that a petitioner has made a
prima facie case for relief, it “shall issue an order to show cause”
and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(1).) At
the evidentiary hearing, the prosecution bears the burden of
proving, beyond a reasonable doubt, that the petitioner is guilty
of murder under California law as amended by Senate Bill No.
1437. (§ 1172.6, subd. (d)(3).) The parties may offer evidence
from a prior trial or hearing or offer new or additional evidence.
(Ibid.) If the prosecution fails to carry its burden of proof, “the
prior conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid.)
Standard of review
We review the denial of a section 1172.6 petition following
an evidentiary hearing for substantial evidence. (People v.
Emanuel (2025) 17 Cal.5th 867, 885 (Emanuel).) “Under this
standard, ‘we review the record “ ‘ “in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact” ’ ” ’ could find
beyond a reasonable doubt” that Cervantes was a major
participant who acted with reckless indifference to human life.
(Ibid.) “Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
9
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298.)
For the purposes of our substantial evidence review, we
assume without deciding that the evidence the prosecution
proffered at the section 1172.6 hearing, including the trial
transcripts of Cervantes’s testimony in Aguilar’s trial and the
probation report, was properly admitted. We also assume the
court made an implicit finding that Cervantes was a major
participant who acted with reckless indifference to human life.
Nevertheless, we conclude there is no substantial evidence to
support the court’s implicit finding.
Banks and Clark factors
A person who did not kill or act with the intent to kill may
be liable for murder under the felony-murder doctrine only if they
were a “major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(3).) The
major participant and reckless indifference standards “did not
originate with Senate Bill No. 1437,” but rather “the Legislature
imported those standards from section 190.2, subdivision (d),
which governs the felony-murder special circumstance” that
renders a criminal act eligible for the death penalty or life
without parole. (Emanuel, supra, 17 Cal.5th at p. 881.) In
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
our high court interpreted section 190.2, subdivision (d) and
provided guidelines for the major participant and reckless
indifference standards. (Emanuel, at p. 883.) When “Senate Bill
No. 1437 amended Penal Code section 189 to incorporate major
participation and reckless indifference requirements, it codified
10
the understanding of those requirements elucidated in Banks and
Clark.” (People v. Strong (2022) 13 Cal.5th 698, 710.)
Banks identified factors relevant to determining whether a
defendant was a major participant in the underlying felony: (1)
the defendant’s role in planning the crime that led to the death;
(2) the defendant’s role in supplying or using deadly weapons; (3)
the defendant’s awareness of the particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct
of other participants; (4) whether the defendant was present at
the scene of the killing, in a position to facilitate or prevent it,
and whether the defendant’s own actions or inactions played a
particular role in the death; and (5) the defendant’s actions after
lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.)
Clark identified factors relevant to whether a defendant
acted with reckless indifference to human life: (1) the defendant’s
knowledge of weapons, and the use and number of weapons; (2)
the defendant’s physical presence at the scene of the crime and
opportunity to restrain the crime and/or aid the victim; (3) the
duration of the interaction between the perpetrator and the
victim; (4) the defendant’s knowledge of their cohort’s propensity
for violence or likelihood of killing; and (5) the defendant’s
attempts to minimize violence during the crime. (Clark, supra,
63 Cal.4th at pp. 618–622.) A defendant’s youth can also be a
relevant factor in the reckless indifference analysis. (People v.
Keel (2022) 84 Cal.App.5th 546, 558–559.)
No one of the Banks or Clark factors “is necessary, nor is
any one of them necessarily sufficient” to establish a defendant
was a major participant or acted recklessly indifferent to human
life. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th
at p. 618.) Moreover, there is often a “significant[] overlap”
11
between being a major participant and acting with reckless
indifference to human life, “ ‘for the greater the defendant’s
participation in the felony murder, the more likely that he acted
with reckless indifference to human life.’ ” (Clark, at p. 615.)
Major participant
Cervantes contends insufficient evidence supports a finding
he was a major participant under Banks. We agree.
First, Cervantes was not the mastermind who planned the
robbery. Aguilar and Bucio planned it. Cervantes learned about
the robbery plan for the first time after he had already driven
Aguilar to the U.S. Bank, where Bucio identified Singh. There is
no evidence Cervantes planned or orchestrated any part of it.
For instance, the evidence shows Aguilar planned the escape and
assigned roles to DeLeon as the getaway driver and Cervantes as
the distraction. And, it was Aguilar who made the arrangements
to obtain the firearm used in the robbery, while Cervantes drove
him to the location to retrieve it.
In cases where a major participant finding was
substantiated, there was evidence that the defendant played a
“ ‘substantial’ ” role or was a “mastermind who planned and
organized” the underlying offense and “orchestrat[ed] the events
at the scene.” (Clark, supra, 63 Cal.4th at p. 612; Tison v.
Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were
“actively involved in every element of the kidnaping-robbery and
w[ere] physically present during the entire sequence of criminal
activity culminating in the murder . . . and the subsequent
flight”]; see also People v. Mitchell (2022) 81 Cal.App.5th 575, 584
[defendant agreed to rob someone with his brother, helped pick
out the victim, and after the victim was injured, held the firearm
while his brother rifled through the victim’s pockets].) Unlike
12
these cases, the evidence does not establish Cervantes played a
prominent role in planning the robbery.
We turn to the second factor—Cervantes’s role in supplying
or using a firearm in the robbery. Cervantes knowingly and
willingly assisted Aguilar by driving him to the location where
Aguilar retrieved a firearm. But it was Aguilar who directed
Cervantes on where to drive and who personally retrieved the
firearm while Cervantes remained in his car.
The Attorney General asserts that Cervantes “encouraged
Aguilar to use lethal force.” The Attorney General is referring to
when Aguilar asked Cervantes if he should “ ‘shoot [Singh] or . . .
just rob him,’ ” and Cervantes responded, “ ‘You know what, go
ahead and shoot him. I don’t care.’ ” But, these statements in
context reflect general apathy rather than encouragement. In
contrast, in People v. Richardson (2022) 79 Cal.App.5th 1085,
1088, the defendant “yelled, ‘Shoot him. Shoot him,’ ” directing
his armed coparticipants to shoot a citizen who was following the
defendant’s car during the commission of the crime. Richardson
was a major participant in the underlying robbery, as his orders
to shoot showed he “took on—or already had—a role in directing
the robbery and the conduct of his coparticipants.” (Id. at pp.
1091–1092.) Unlike Richardson, Cervantes’s statements here did
not order Aguilar to do any act. And, in fact, Aguilar’s response
that he was “ ‘not gonna shoot [Singh]’ ” indicates that he did not
perceive Cervantes’s statements as an order or encouragement.
For the third factor, we examine what awareness
Cervantes had of the particular dangers posed by the nature of
the crime, weapons used, or past experience or conduct of the
other participants. Here, Cervantes was aware that Aguilar
planned an armed robbery. He also knew Aguilar had a
13
reputation for reacting quickly and acting against a person who
“c[a]me at him sideways.” Additionally, both Cervantes and
Aguilar were gang members, and Cervantes, himself along with
other gang members, had been previously involved in a robbery
in which he threatened the victim with an ice pick.
But the record is unclear as to whether Cervantes knew
Aguilar would shoot the victim. Aguilar expressly told Cervantes
that he was not going to shoot Singh. But Aguilar also said he
was “ ‘just gonna ask [Singh] one time to give me the money, and
if he don’t give me the money, then I’m just gonna let him have
it.’ ” Even if this factor weighs against Cervantes, it does not
establish he played a major role in the robbery.
As to the fourth factor, Cervantes was not present at the
scene of the killing or in an immediate position to facilitate or
prevent it; nor did his actions or inactions play a particular role
in the death. Cervantes was not at the bank with Aguilar. He
was inside the Carl’s Jr. with his son across from the front of the
bank. He did not see the robbery or shooting happen. Cervantes
left the restaurant and was driving away when he heard sirens
and realized “something had happened.” He was therefore not in
an immediate position to prevent the shooting or render
assistance. (See Banks, supra, 61 Cal.4th at p. 807 [the
defendant “did not see the shooting happen . . . and could not do
anything to stop the shooting or render assistance”]; see also
Enmund v. Florida (1982) 458 U.S. 782, 788 [death penalty
impermissible for a getaway driver who was not present at the
scene of the killings]; In re Ramirez (2019) 32 Cal.App.5th 384,
405 [petitioner was “in close proximity to the shooting, but it does
not show he was close enough to exercise a restraining effect on
the crime or his colleagues”].)
14
Lastly, we examine Cervantes’s conduct after Aguilar killed
Singh. Here, Cervantes left before the shooting occurred. He
only became aware “something had happened” after he had
already driven away and heard the ambulance coming to render
aid to Singh. Thus, his actions immediately after the murder do
not weigh against him.
Later, after Cervantes learned about the murder, he
accepted $1,000 of stolen money from Aguilar, obtained a second
firearm for Aguilar upon his request, and initially lied to law
enforcement to protect Aguilar. While this evidence shows that
Cervantes participated and assisted in the robbery, it does not
establish he played a major role. Moreover, the second firearm
was used, if at all, in a subsequent shooting between Aguilar and
the police. Cervantes was not charged with any crimes relating
to Aguilar’s subsequent acts.
In considering the totality of these factors, we conclude
there is no substantial evidence that Cervantes was a major
participant in the robbery. To be a major participant, a
“defendant’s personal involvement must be substantial, greater
than the actions of an ordinary aider and abettor to an ordinary
felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) While
Cervantes may have been aware of the dangers of the armed
robbery, the totality of evidence does not support his personal
involvement was “substantial.” He did not plan the robbery, was
not present at the time of the killing, and was not even aware of
the killing at the time it happened. But even if we assume
Cervantes was a major participant, the evidence is insufficient to
support that he exhibited reckless indifference to human life.
15
Reckless indifference
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.) “Examples [of reckless indifference] include ‘the
person who tortures another not caring whether the victim lives
or dies, or the robber who shoots someone in the course of the
robbery, utterly indifferent to the fact that the desire to rob may
have the unintended consequence of killing the victim as well as
taking the victim’s property.’ ” (In re Scoggins (2020) 9 Cal.5th
667, 676 (Scoggins).)
The reckless indifference standard has both a subjective
and an objective component. (Clark, supra, 63 Cal.4th at p. 617.)
Subjectively, the 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.) Objectively, “ ‘ “[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 law-abiding person would observe in
the actor’s situation.” ’ ” (Ibid.) “ ‘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.” (Ibid.)
16
“[P]articipation in a ‘ “garden-variety armed robbery,” ’ i.e.,
one in which the only factor supporting a reckless indifference
finding is that a participant was armed with a gun, is insufficient
without more to establish reckless indifference.” (Emanuel,
supra, 17 Cal.5th at p. 884; see also Scoggins, supra, 9 Cal.5th at
p. 677 [“ ‘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”]; see also Banks,
supra, 61 Cal.4th at p. 805 [“participation in an armed robbery,
without more, does not involve ‘engaging in criminal activities
known to carry a grave risk of death’ ”].)
With these principles in mind, we turn to the first Clark
factor—Cervantes’s knowledge of weapons and the use and
numbers of weapons. “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.” (Clark,
supra, 63 Cal.4th at p. 618.) While Cervantes knew Aguilar was
armed, Cervantes did not personally use a weapon. Aguilar was
the only person who had a weapon. As participation in an armed
robbery alone does not establish reckless indifference, this factor
does not weigh against Cervantes. (Emanuel, supra, 17 Cal.5th
at p. 884; see Clark, at p. 619 [factor did not weigh in favor of
reckless indifference finding where there was only one firearm at
the scene used by the codefendant].)
Second, we examine Cervantes’s presence at the scene of
the crime and opportunity to restrain the crime and/or aid the
victim. “Proximity to the murder and the events leading up to it
may be particularly significant where . . . the murder is a
culmination or a foreseeable result of several intermediate steps,
17
or where the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal
force. In such cases, ‘the defendant’s presence allows him to
observe his cohorts so that it is fair to conclude that he shared in
their actions and mental state. . . . [Moreover,] the defendant’s
presence gives him an opportunity to act as a restraining
influence on murderous cohorts. If the defendant fails to act as a
restraining influence, then the defendant is arguably more at
fault for the resulting murders.’ ” (Clark, supra, 63 Cal.4th at
p. 619.)
Here, Cervantes was not physically present at the scene of
the killing. Before the robbery, he was inside a restaurant with
his son across from the bank. He left without seeing the robbery
or killing occur. He was therefore not in a position to restrain
Aguilar nor render aid to Singh.
This case is like Scoggins, supra, 9 Cal.5th at pages 678–
679, where Scoggins’s lack of presence at the crime scene weighed
against a finding of reckless indifference. Scoggins planned for
his accomplices to assault and rob the victim, but did not plan for
his accomplices to shoot or kill the victim. Our high court
observed that Scoggins was “at a nearby gas station during the
course of the crime and did not arrive at the crime scene until
after the shooting occurred. Moreover, it is not clear whether
Scoggins could even see the confrontation between his
accomplices and [the victim] from his position at the gas station.”
(Id. at p. 678.)
Moreover, while Scoggins was in close contact with his
accomplices before the shooting, “he lacked control over their
actions once they arrived on the crime scene, especially given how
quickly the shooting occurred.” (Scoggins, supra, 9 Cal.5th at
18
p. 679.) Scoggins distinguished its facts from Tison, supra, 481
U.S. at pp. 139–141, where the Tison brothers broke two
convicted murderers out of prison, brought a chest full of guns
and armed the escapees, abducted a family of passing motorists
at gunpoint while the escapees decided whether to kill the family,
witnessed the escapees shoot and abandon the family in the
remote desert, and drove away in the victims’ car. Unlike
Scoggins, the Tison brothers were “physically present at the
scene where a long sequence of events culminated in murder” and
they had the opportunity to intervene before the shooting
occurred. (Scoggins, supra, 9 Cal.5th at p. 679.) Similar to
Scoggins, Cervantes had no such opportunity to intervene
because he was not present at the crime scene and lacked control
over Aguilar’s actions.
Scoggins also acknowledged that “ ‘physical presence is not
invariably a prerequisite to demonstrating reckless indifference
to human life,’ ” but the examples it provided highlighted a
defendant’s high level of culpability in the actual killing.
(Scoggins, supra, 9 Cal.5th at p. 679.) For example, where “ ‘a
defendant instructs other members of a criminal gang carrying
out carjackings at his behest to shoot any resisting victims, he
need not be present when his subordinates carry out the
instruction in order to be found to be recklessly indifferent to the
lives of the victims.’ ” (Ibid.) A “defendant who plans and directs
a murder from afar may be just as culpable as a defendant who is
physically present at the scene of the crime.” (Ibid.) But, like
Scoggins, there was no evidence here that Cervantes instructed
Aguilar to kill the victim. (Ibid.) The parties here concede that
Cervantes lacked the intent to kill.
19
The Attorney General asserts Cervantes could have taken
action to prevent Aguilar from moving forward with the plan once
he arrived near the scene. Emanuel rejected a similar argument
and vacated a first degree murder conviction in which Emanuel
and his codefendant Whitley attempted a robbery. When the
robbery did not go as planned and the victim and Whitley began
to fight, Whitley attempted to shoot the victim in the leg but
missed and fatally shot him in the neck. (Emanuel, supra, 17
Cal.5th at pp. 891, 878–879.) Emanuel rejected the argument
that the defendant’s failure to intervene and prevent Whitley
from shooting supported a finding of reckless indifference. Our
high court concluded the lower court discounted evidence of the
defendant’s attempts to abandon the crime and erroneously
focused on what more he could have done to prevent the shooting.
Emanuel stated, “Although we consider whether a defendant acts
as a restraining influence on his cohorts, it is not incumbent on a
defendant to actually prevent the violence or attempt to do so by
any means necessary.” (Id. at p. 891.) “The essential question
underpinning our analysis is not whether Emanuel did enough to
try to stop Whitley’s unplanned act of violence; it is whether
Emanuel acted with the requisite mens rea, i.e., reckless
indifference to human life. The focus should not be on the
ultimate efficacy of his actions, but on what his actions reveal
about his mental state.” (Ibid.)
Here, there is some evidence Cervantes attempted to
dissuade Aguilar from committing the robbery. When Cervantes
discovered the financial motive behind the robbery, he offered to
help Aguilar find a job. Cervantes’s other actions before the
robbery are also indicative of his state of mind. He did not
comply with Aguilar’s orders to be at the bank early in the
20
morning and attempted to get out of participating by using his
son as an excuse. He was ultimately persuaded to come after
Aguilar ensured him that he “ ‘don’t got to be involved with
anything.’ ” But even when he arrived, Cervantes did not follow
Aguilar’s plan to go to the back alley. Cervantes instead brought
his son with him to avoid involvement, and left before the
shooting occurred. Such evidence of Cervantes’s reluctance
supports he did not possess the requisite mens rea.
Nor can we infer that Cervantes’s failure to intervene
amounts to “intentional inaction indicative of reckless
indifference to human life.” (Emanuel, supra, 17 Cal.5th at
p. 891.) Cervantes left before the shooting occurred, and the
interaction between Aguilar and Singh was not prolonged. (See
post, at p. 23.) “This contrasts with cases like Tison, ‘where a
long sequence of events culminated in murder,’ giving the
defendants time to intervene.” (Emanuel, at p. 892, Tison, supra,
481 U.S. at pp. 139–141.)
Emanuel and Scoggins also recognized that a “defendant’s
conduct following the use of lethal force may be reflective of his or
her mental state during the offense.” (Emanuel, supra, 17
Cal.5th at pp. 893–894; Scoggins, supra, 9 Cal.5th at pp. 679–
680.) For example, in Tison, the Tison brothers abandoned the
victims in a remote desert after having disabled the only vehicle
available to them. (Tison, supra, 481 U.S. at pp. 141, 151–152.)
But, in cases where “different inferences may be drawn from the
circumstances, the defendant’s actions after the shooting may not
be very probative of his mental state.” (Scoggins, at p. 679.) In
Clark, for example, our high court observed that the defendant’s
act of fleeing the scene of the shooting could be subject to
different interpretations. A defendant’s motivation could be a
21
rejection of the shooter’s actions, or it could be indicative of the
defendant’s desire to leave the scene as quickly as possible
without regard to the shooter’s or the victim’s welfare. (Clark,
supra, 63 Cal.4th at p. 620.) It would be “difficult to infer [the
defendant’s] frame of mind concerning [the victim’s] death” from
the defendant’s postshooting conduct. (Ibid.; Emanuel, at p. 894;
Scoggins, at p. 680.)
Here, Cervantes’s postshooting conduct is not probative of
his mental state at the time of the robbery. Cervantes left before
the shooting occurred. Thus, his immediate actions after the
shooting is not probative of his state of mind at the time of the
robbery. And though Cervantes later went over to meet Aguilar,
accepted $1,000 of stolen money, and obtained a second firearm
at his behest, such conduct is “too attenuated” to shed light on
Cervantes’s state of mind at the time of the robbery. (Emanuel,
supra, 17 Cal.5th at p. 894 [“While postflight conduct may shed
light on a defendant’s state of mind, conduct temporally removed
from the violent act must clearly evince a culpable mental
state”].) While such conduct is “incriminating as a general
matter,” it “reveals little about whether he acted with the
requisite state of mind when the shooting occurred.” (Id. at p.
895.) “However contemptable [a court] may find a defendant’s
conduct following a killing, the governing standard is not
satisfied by evidence that the defendant was generally indifferent
to the fact that someone has been killed; it requires evidence that,
at the time of the shooting, the defendant acted with indifference
toward the grave risk that someone could be killed. Though the
former may be evidence of the latter, it is insufficient, standing
alone, to support murder liability.” (Ibid.)
22
The third factor, the duration of the interaction between
Aguilar and Singh, also does not support a finding of reckless
indifference. “Courts have looked to whether a murder came at
the end of a prolonged period of restraint of the victims by
defendant.” (Clark, supra, 63 Cal.4th at p. 620.) “Where a victim
is held at gunpoint, kidnapped, or otherwise restrained in the
presence of perpetrators for prolonged periods, ‘there is a greater
window of opportunity for violence’ [citation], possibly
culminating in murder. The duration of the interaction between
victims and perpetrators is therefore one consideration in
assessing whether a defendant was recklessly indifferent to
human life.” (Ibid.)
Here, the duration of the interaction between Aguilar and
Singh was short. Cervantes testified Aguilar called him when he
arrived at the Carl’s Jr. before the interaction with Singh.
Cervantes then left the Carl’s Jr., and the shooting occurred
shortly thereafter. Surveillance videos showed Cervantes
entered the Carl’s Jr. at 9:16 a.m., and the shooting at the bank
occurred around 9:30 a.m. Thus, the entire duration was about
15 minutes or less. (See e.g. Emanuel, supra, 17 Cal.5th at p. 886
[short duration lasted about 12 minutes]; Scoggins, supra, 9
Cal.5th at pp. 680–681 [“limited” interaction lasted between a
few seconds to three to five minutes].) There was no prolonged
interaction or period of restraint.
For the fourth factor, a “defendant’s knowledge of factors
bearing on a cohort’s likelihood of killing are significant to the
analysis of reckless indifference to human life. [A d]efendant’s
knowledge of such factors may be evident before the felony or
may occur during the felony.” (Clark, supra, 63 Cal.4th at
p. 621.) “A defendant’s willingness to engage in an armed
23
robbery with individuals known to him to use lethal force may
give rise to the inference that the defendant disregarded a ‘grave
risk of death.’ ” (Ibid.)
Here, Cervantes was aware of the armed robbery plan and
Aguilar’s reputation to react quickly. But as far as Cervantes
knew, Aguilar did not plan to shoot Singh because Aguilar
explicitly told him so. There is also no evidence in the record that
Cervantes knew Aguilar had previously killed or attempted to
kill someone. (See Tison, supra, 481 U.S. at p. 152 [awareness
that codefendant had previously killed was probative of the
defendant’s culpable mental state].) Furthermore, the fact that
the robbery occurred in broad daylight in public is relevant to the
likelihood of lethal force being used. As our high court
recognized, confrontations in a public location during daytime
when witnesses are more likely present “might reasonably be
thought to keep . . . accomplices within the bounds of the plan”
and avoid violence. (Scoggins, supra, 9 Cal.5th at p. 683;
Emanuel, supra, 17 Cal.5th at p. 887.)3 Indeed, Cervantes
expressed that he thought it was “crazy” to “rob[] someone in
broad daylight in front of the US Bank.”
While Cervantes knew of the possibility that Aguilar would
use lethal force, given Aguilar’s reputation and his statements
that he would “let [Singh] have it” if Singh resisted, that is not
enough to show reckless indifference. (See Scoggins, supra, 9
Cal.5th at p. 682 [Scoggins’s knowledge that his accomplices were
“prone to some degree of violence” and even though the planned
3 We recognize our high court discussed the time of day and
location in its analysis of the fifth factor, but we conclude these
facts are also relevant to Cervantes’s knowledge of Aguilar’s
likelihood to commit a killing.
24
assault of the victim necessarily contemplated the use of violence,
the evidence was not enough to establish reckless indifference].)
An “ ‘[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient’; reckless
indifference to human life requires ‘knowingly creating a “grave
risk of death.” ’ ” (Ibid.) “The degree of risk to human life is
crucial to the analysis. [Our high court] ha[s] said that any
person who plans or participates in an armed robbery can be said
to anticipate that lethal violence might be used, given that
‘roughly 1 in 200 [armed robberies] results in death.’ [Citation.]
But that fact, without more, does not establish reckless
indifference to human life.” (Ibid.)
We examine the fifth factor regarding Cervantes’s efforts to
minimize the risk of violence during the robbery. Emanuel
observed that the absence of efforts to minimize violence “does
not necessarily evince a subjective disregard for risk where the
objective circumstances of the planned crime suggest the risk of
violence posed is no more than that inherent in any violent
felony.” “In such a case, then, the absence of efforts to minimize
the risk of violence cannot be said to weigh in favor of a finding of
reckless indifference.” (Emanuel, supra, 17 Cal.5th at p. 888.)
Here, other than Cervantes’s attempt to dissuade Aguilar
from the robbery by offering to help him get a job, the record does
not disclose affirmative efforts to minimize the risk of violence at
the planning stage. But, under these circumstances—where
Cervantes did not plan the robbery, was not present at the scene
of the killing, left before the shooting, did not possess the intent
to kill, and was told Singh would not be killed—such absence of
efforts to minimize risk does not weigh in favor of reckless
indifference.
25
The Attorney General asserts Cervantes increased the risk
of violence by “encourag[ing]” Aguilar to shoot Singh when he
said, “ ‘[G]o ahead and shoot him. I don’t care.’ ” But, as we have
discussed, Aguilar did not perceive Cervantes’s comments as such
because he stated he was not going to shoot Singh. (Ante, p. 13.)
And, to the extent the Attorney General contends Cervantes’s
assent to create a distraction reflected his willingness to
endanger other lives, we are not persuaded. Cervantes may have
initially agreed to be a distraction, but he tried to get out of
participating on the morning of the robbery, did not obey
Aguilar’s request to be in the back alley, brought his son to avoid
involvement, and left before he could assist Aguilar in his
getaway.
Lastly, there is nothing in the record of Cervantes’s age or
youth that is relevant to the reckless indifference determination.
In sum, the record does not contain substantial evidence to
support a finding that Cervantes was a major participant who
acted with reckless indifference to human life. Because he is not
liable for murder under current law, the voluntary manslaughter
conviction must be vacated. Thus, we need not address
Cervantes’s other arguments that the trial court applied the
incorrect standard in denying the section 1172.6 petition, that
counsel rendered ineffective assistance for failing to object to the
admission of the probation report, and that the trial transcripts
of Cervantes’s testimony in Aguilar’s trial were inadmissible.
DISPOSITION
The order denying Cervantes’s section 1172.6 petition is
reversed and the matter is remanded to the trial court with
instructions to vacate his voluntary manslaughter conviction and
26
resentence him on the remaining charges. (See § 1172.6, subd.
(d)(3).)
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
CODY, P. J.
YEGAN, J.
27
Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Melanie Dorian,
Deputy Attorneys General, for Plaintiff and Respondent.