Filed 9/9/26 P. v. Chapman CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B340565
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. XSONA009550-01)
RONALD JOE CHAPMAN,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles
County, Richard M. Goul, Judge. Affirmed.
Diane E. Berley, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
This is Ronald Joe Chapman’s third appeal. In 1992 a jury
convicted him of first degree murder, robbery, and burglary and
found true the allegation a principal (Chapman’s codefendant
Haiji Whitsey) was armed with a firearm while committing the
offenses. The trial court sentenced Chapman to a prison term of
25 years to life on his murder conviction, plus one year for the
firearm enhancement, and concurrent terms on his robbery and
burglary convictions. Chapman appealed, and we affirmed the
judgment as modified. (People v. Whitsey (Sept. 22, 1993,
B070694) [nonpub. opn.] (Chapman I).)
In 2019 Chapman filed a petition under Penal Code
section 1172.6,1 which among other things allows certain
defendants convicted of felony murder to petition the court to
vacate their convictions and resentence them. The superior court
found Chapman failed to make a prima facie showing for relief
and summarily denied the petition without issuing an order to
show cause. Chapman appealed, and we reversed and directed
the superior court to issue an order to show cause and conduct an
evidentiary hearing under section 1172.6, subdivision (d). (People
v. Chapman (B310488, Dec. 8, 2021) [nonpub. opn.]
(Chapman II).)
On remand the superior court found the People proved
beyond a reasonable doubt Chapman was guilty of murder under
a still-viable theory of felony murder under section 189,
subdivision (e)(3). Chapman argues substantial evidence did not
support the superior court’s findings that he was a major
1 Undesignated statutory references are to the Penal Code.
2
participant who acted with reckless indifference to human life
and that, under People v. Morris (2026) 19 Cal.5th 671, a case the
Supreme Court decided after the superior court’s ruling, the
evidence “was insufficient to prove [he] aided and abetted the
lethal act.” We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Chapman of First Degree Murder
and Other Crimes, and We Affirm
Early one morning in December 1991 Chapman and
Whitsey went to the apartment of Frank Jackson, the boyfriend
of Whitsey’s sister Alayne Bard, and robbed him. During the
robbery, Whitsey shot and killed Jackson.
At trial Bard testified that, the evening before the shooting,
she, her children, and Whitsey went to Jackson’s apartment for a
social visit.2 After the visit Jackson took Bard, the children, and
Whitsey to Bard’s apartment, where Whitsey stayed for an hour.
Approximately 15 minutes before Jackson left Bard’s apartment,
Whitsey left with Chapman.3
Los Angeles County Sheriff’s Deputy John Smith testified
he interviewed Chapman three weeks after Jackson’s murder.
Smith testified Chapman stated that he had been drinking on the
night of the shooting and that Whitsey told him to drive to
2 We granted Chapman’s request to augment the record with
the reporter’s transcript of Chapman’s trial. (Cal. Rules of Court,
rules 8.155(a)(1)(A), 8.340(c).)
3 Bard did not indicate when Chapman arrived at her
apartment.
3
Jackson’s apartment. When they arrived, Chapman said,
Whitsey knocked on the door, Jackson opened it, and after
Whitsey went inside, Whitsey motioned for Chapman to come
into the apartment and introduced him to Jackson as “Ron.”
Chapman stated he began to play a video game in the
living room and saw Whitsey and Jackson arguing in a back
room. Whitsey came out of the room and told Chapman to take
the stereo equipment out of the apartment. Chapman proceeded
to remove various items from Jackson’s apartment, including a
guitar and a rifle, and put them into his car. Chapman could not
remember how many trips he made to his car with Jackson’s
belongings.4 After one of Chapman’s trips from the apartment to
his car, Chapman returned to Jackson’s apartment and saw
Whitsey pointing a nine-millimeter gun at Jackson and heard
Whitsey say, “I will kill you.” Chapman tried to dissuade
Whitsey from shooting Jackson. After another trip to his car,
Chapman returned to Jackson’s apartment and saw Whitsey
pointing a second gun, a .25 caliber “semi-auto,” at Jackson.
Whitsey threatened to shoot Jackson with the semiautomatic
weapon by “activating the slide.”
4 At the preliminary hearing Deputy Smith testified
Chapman told him that he made “three or four trips to carry
items out and put them in the car.” We augment the record to
include the transcript of the preliminary hearing, which the
superior court stated it would review before ruling on Chapman’s
petition. (Cal. Rules of Court, rules 8.155(a)(1)(A), 8.340(c); see
People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [“Although
section 1172.6, subdivision (d)(3) does not contain express
language stating that a preliminary hearing transcript is
admissible at the evidentiary hearing, a plain reading of the
statute compels this conclusion.”].)
4
Chapman stated that he asked Whitsey what he was doing
and that Whitsey said, “‘This fool got some money. He won’t tell
me where it is.’” Chapman said to Whitsey several times, “‘Don’t
shoot him’” and “‘Whatever you do, don’t shoot him.’” Whitsey
continued to threaten Jackson: “Where your stuff at? I could just
blow your brains out.” Chapman stated he punched Jackson in
the face to show Whitsey that Jackson “was scared” and that
there was no reason to shoot him because “the guy was too scared
to tell.”
Chapman stated he continued carrying out Jackson’s stereo
equipment so Whitsey “wouldn’t shoot” Jackson. Whitsey told
Chapman, “‘I’m going to have to kill him. I’m going to have to kill
this dude.’” Chapman again told Whitsey not to kill Jackson.
Whitsey said, “I got to kill him,” and Chapman said, “‘Man, don’t
kill him. Come on. Let’s go.’” Chapman went to get the car.
Jackson’s neighbor testified that, on the day of the
shooting, she heard a car backing out of the driveway in front of
her apartment building shortly after 5:00 a.m. and that a minute
or two later she heard multiple gunshots and the sound of
someone running. The neighbor stated that, for “that time of
morning,” it was unusual to hear a car backing out. When the
neighbor went inside Jackson’s apartment, she saw Jackson
sitting on the floor of his kitchen, “seriously hurt.” The neighbor
asked Jackson, “Who did this to you?” Jackson spelled, “A-J-H-A-
J-I-E.”
Sergeant Richard Adams of the Los Angeles County
Sheriff’s Department testified that, when he arrived at Jackson’s
apartment to investigate the shooting, he saw a large “wall unit”
with wires and plugs, some of which “had been cut.” Sergeant
Adams also saw “cutters” on the coffee table in front of the wall
5
unit, along with some games and other electronic items. A glass
door “that was sitting on the floor” appeared to have been
knocked off or taken off, and a nine-millimeter pistol, a
.25 caliber semiautomatic gun, and a rifle were missing.
Chapman’s cousin Robert Magee testified that, the day
after the shooting, Chapman told him that he and Whitsey went
to see Jackson the prior evening because “they were going to
jack” (rob) him. Chapman told Magee that he “was drunk” and
“didn’t know much of what was going on,” that he left the
apartment with “some property,” that he “had no idea” Whitsey
was going to shoot Jackson, and that he was outside in a car
during the shooting.
Whitsey’s girlfriend testified that, a few days after the
shooting, Whitsey told her “he had killed” his sister’s boyfriend
“for the money.” Whitsey said that he had two guns, one in each
hand, and that “he just shot him.”
The jury convicted Chapman of first degree murder,
robbery, and burglary and found true the allegation a principal
was armed with a firearm while committing the offenses. The
trial court sentenced Chapman to 25 years to life on his murder
conviction, plus one year for the firearm enhancement, and
concurrent terms on the robbery and burglary convictions.
Chapman appealed, and we affirmed the judgment as modified.
(Chapman I, supra, B070694.)
6
B. Chapman Petitions for Resentencing and Successfully
Appeals from the Order Summarily Denying His
Petition; The Superior Court Holds an Evidentiary
Hearing and Denies Chapman’s Petition
In 2019 Chapman filed a petition under section 1172.6.
Checking boxes on a form petition, Chapman alleged all the facts
necessary to state a prima facie case for relief, including that he
was convicted of first degree felony murder and that he could not
now be convicted of murder after changes to section 189, effective
January 1, 2019, because he was not the actual killer, did not
with the intent to kill aid or abet the actual killer in committing
murder in the first degree, and was not a major participant in the
felony or act with reckless indifference to human life during the
course of the felony. The superior court appointed counsel to
represent Chapman and, after briefing and a hearing, summarily
denied the petition. We reversed the order summarily denying
Chapman’s petition and directed the superior court to issue an
order to show cause and hold a hearing under section 1172.6,
subdivision (d). (Chapman II, supra, B310488.)
At the evidentiary hearing the prosecutor argued the
evidence at the trial showed Chapman was a major participant
who acted with reckless indifference to life. The prosecutor
argued that Chapman knew Whitsey intended to kill Jackson
(Chapman said he saw Whitsey repeatedly threaten Jackson with
a gun); that Chapman took Jackson’s rifle from the apartment,
which Jackson could have used to defend himself; and that,
“rather than doing anything to de-escalate” the situation, such as
staying with Jackson, pointing the rifle at Whitsey to stop him, or
simply walking away, Chapman complied with Whitsey’s
“directive, which was to steal everything that they could.” The
7
prosecutor questioned whether (as Chapman claimed) hitting
Jackson aided Jackson and stated that, just when Whitsey was
about to kill Jackson, Chapman went to the car, waited for
Whitsey, and drove him away from the murder scene.
Counsel for Chapman argued that, under the factors in
Tison v. Arizona (1987) 481 U.S. 137, Chapman was not a major
participant in the robbery or burglary: Chapman did not supply
a weapon, and the “mere fact” Chapman participated in the
robbery or burglary did not make him a major participant.
Counsel also stated that there was no evidence Chapman
encouraged Whitsey and that, rather than encourage Whitsey to
shoot Jackson, Chapman told Whitsey not to. Counsel also
asserted that, because Chapman was 21 years old at the time he
committed the crimes, the court should apply the “youthful
factors” of People v. Clark (2016) 63 Cal.4th 522 and find he did
not act with reckless indifference to human life.
The superior court found Chapman “was clearly a major
participant,” as demonstrated by the evidence he drove Whitsey
to Jackson’s home, hit Jackson in the face, took Jackson’s
property from his home, returned “multiple times” while Whitsey
was threatening to kill Jackson at gunpoint, and by taking
Jackson’s rifle “arguably” prevented Jackson from defending
himself. The court also found Chapman acted with reckless
indifference to human life, stating Chapman “was acutely aware
of the threat to Jackson, yet [he] continued to participate in the
robbery . . . when he could have abandoned the plan, driven
away, and called the police.” The court also stated that, after
Chapman heard gunshots, he waited for Whitsey before driving
away with him. The court concluded Chapman was “guilty of
8
murder under a still viable theory of homicide” and denied
Chapman’s petition for resentencing. Chapman timely appealed.
DISCUSSION
A. Substantial Evidence Supported the Superior Court’s
Findings Chapman Was a Major Participant Who
Acted with Reckless Indifference to Human Life
1. Applicable Law and Standard of Review
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder by eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder and significantly narrowing the
felony-murder exception to the malice requirement for murder.
(People v. Oyler (2025) 17 Cal.5th 756, 835; People v. Patton
(2025) 17 Cal.5th 549, 558; People v. Arellano (2024) 16 Cal.5th
457, 467-468.) Section 188, subdivision (a)(3), now prohibits
imputing malice based solely on a person’s participation in a
crime and requires proof of malice to convict a defendant of
murder, except under the revised felony-murder rule. (§§ 188,
subd. (a)(3), 189, subd. (e); Patton, at p. 558; Arellano, at pp. 467-
468.) The Legislature also “created a resentencing procedure for
defendants who had previously been convicted of murder under
prior law.” (People v. Lopez (2026) 19 Cal.5th 639, 648; see
former § 1170.95, added by Stats. 2018, ch. 1015, § 4,
subsequently renumbered as § 1172.6 by Stats. 2022, ch. 58,
§ 10.)
Section 1172.6 authorizes a person convicted of felony
murder, murder under the natural and probable consequences
9
doctrine, or attempted murder under the natural and probable
consequences doctrine, to petition the superior court to vacate the
conviction and resentence the defendant on any remaining counts
if he or she could not now be convicted of murder or attempted
murder because of the legislative changes to the definitions of
murder. (People v. Lopez, supra, 19 Cal.5th at p. 648; People v.
Oyler, supra, 17 Cal.5th at p. 835; People v. Arellano, supra,
16 Cal.5th at pp. 468-469.) If the petitioner makes the requisite
prima facie showing, the superior court must issue an order to
show cause and hold an evidentiary hearing to determine
whether to vacate the challenged conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subds. (c) & (d)(1);
see People v. Morris, supra, 19 Cal.5th at p. 680; Patton, supra,
17 Cal.5th at p. 559.)
Section 1172.6, subdivision (d)(3), provides that at the
evidentiary hearing “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (See People v. Emanuel (2025)
17 Cal.5th 867, 880 (Emanuel); People v. Patton, supra,
17 Cal.5th at p. 559.) The court may consider evidence previously
admitted at any prior hearing or trial that is admissible under
current law, including “witness testimony, stipulated evidence,
and matters judicially noticed,” and “[t]he prosecutor and the
petitioner may also offer new or additional evidence to meet their
respective burdens.” (§ 1172.6, subd. (d)(3); see People v. Diaz
(2026) 118 Cal.App.5th 545, 557.)
We review the superior court’s decision to deny a petition
under section 1172.6 after an evidentiary hearing for substantial
10
evidence. (Emanuel, supra, 17 Cal.5th at p. 885.) “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 the
defendant guilty beyond a reasonable doubt.” (People v.
Reyes (2023) 14 Cal.5th 981, 988-989, internal quotation marks
omitted; accord, People v. Lopez (2026) 121 Cal.App.5th 1171,
1185.) “In so doing, [we] presume[ ] in support of the judgment
the existence of every fact the trier could reasonably deduce from
the evidence. [Citations.] Substantial evidence also includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.” (People v. Grandberry (2025)
116 Cal.App.5th 934, 946; see People v. Davis (2024) 107
Cal.App.5th 500, 510; People v. Mitchell (2022) 81 Cal.App.5th
575, 593.) “[I]t is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends,” and “we
do not reweigh credibility issues or resolve evidentiary conflicts.”
(Davis, at pp. 509-510, 511; accord, Grandberry, at p. 946.)
2. Chapman Was a Major Participant Who Acted
with Reckless Indifference to Human Life
As amended by the Legislature, “the new felony-murder
rule sets forth three theories of liability.” (People v. Morris,
supra, 19 Cal.5th at p. 680; see Emanuel, supra, 17 Cal.5th at
p. 880.) Section 189, subdivision (e), provides: “A participant in
the perpetration or attempted perpetration of a felony listed in
11
subdivision (a)[5] in which a death occurs is liable for murder only
if one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of section 190.2.” Under the third theory (section 189,
subdivision (e)(3)), the one relevant to Chapman’s appeal, a
person “who did not kill or act with the intent to kill can be liable
for murder under the felony-murder doctrine only if he or she
‘was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.’” (Emanuel, at p. 880; see Morris, at p. 682.)
In People v. Banks (2015) 61 Cal.4th 788 (Banks) the
Supreme Court held that under section 190.2, subdivision (d),
“a defendant’s personal involvement must be substantial, greater
than the actions of an ordinary aider and abettor to an ordinary
felony murder” and that “[t]he defendant must be aware of and
willingly involved in the violent manner in which the particular
offense is committed, demonstrating reckless indifference to the
significant risk of death his or her actions create.” (Id. at pp. 802,
801.) The Supreme Court listed several factors courts may
consider in determining “whether the defendant’s participation
‘in criminal activities known to carry a grave risk of death’
5 Section 189, subdivision (a), provides that murder “that is
committed in the perpetration of, or attempt to perpetrate,”
burglary or robbery, among other felonies, “is murder of the first
degree.”
12
[citation] was sufficiently significant to be considered ‘major’”:
“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?” (Banks, at p. 803, fn. omitted; accord,
People v. Chhuon and Pan (2026) 19 Cal.5th 1018, 1068.) The
Supreme Court cautioned, however, that none “of these
considerations is necessary, nor is any one of them necessarily
sufficient.” (Banks, at p. 803.)
In People v. Clark, supra, 63 Cal.4th 522 the Supreme
Court listed factors courts may consider in determining whether
a defendant exhibited “reckless indifference to human life” within
the meaning of section 190.2, subdivision (d). (Clark, at p. 618,
internal quotation marks omitted.) “Relevant factors” a court
may consider in determining whether the defendant exhibited
reckless indifference to human life 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
13
minimize the risks of violence during the felony?” (In re Scoggins
(2020) 9 Cal.5th 667, 677, citing Clark, at pp. 618-623; see People
v. Chhuon and Pan, supra, 19 Cal.5h at p. 1068; Emanuel, supra,
17 Cal.5th at p. 884.) As with the Banks factors, none “‘of these
considerations is necessary, nor is any one of them necessarily
sufficient.’” (Clark, at p. 618.) The requirements for the two
elements of section 190.2, subdivision (d), “‘significantly
overlap . . . in general, 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;
accord, In re Harper (2022) 76 Cal.App.5th 450, 458.)
(a) Chapman Was a Major Participant
Though the record does not contain evidence that Chapman
planned the burglary or robbery or that he supplied weapons to
Whitsey, Chapman was acutely aware of Whitsey’s intent to kill
Jackson. Yet, his actions not only assisted in committing the
underlying felonies, his conduct encouraged and made it more
likely Whitsey would shoot Jackson. Chapman heard Whitsey
repeatedly threaten Jackson at gunpoint and saw Jackson
refusing to say where he hid his money. The standoff between
Whitsey and Jackson intensified when, on one of Chapman’s trips
back into Jackson’s apartment, Chapman saw Whitsey had two
guns, one in each hand, pointed at Jackson, with the slide on one
of the firearms activated. Nevertheless, Chapman, who could
have taken steps to thwart Whitsey’s plan to shoot Jackson
(including leaving the apartment and calling for help), continued
to rob Jackson, making multiple trips to the car and back (and
taking the time to cut the wires to the electronic equipment),
conduct that allowed Whitsey to continue threatening Jackson at
14
gunpoint and pressure Jackson to disclose where he hid his
money.
In addition, Chapman took Jackson’s rifle, which Jackson
could have used to defend himself; hit Jackson in the face, which
effectively weakened Jackson; and backed his car out of the
driveway to wait for Whitsey after he shot Jackson. The
neighbor’s testimony she heard the car back out supported the
reasonable inference Whitsey heard it too, a sound that
unquestionably signaled to Whitsey the getaway car was ready.
After Whitsey shot Jackson eight times Chapman waited for
Whitsey and drove him to safety. Chapman played an integral
role in enabling Whitsey to carry out the violent burglary and
robbery that ended in Jackson’s murder. (See Banks, supra,
61 Cal.4th at p. 800 [“‘major participation’ should be understood
as the phrase is used in common parlance, as including those
whose involvement is ‘“notable or conspicuous in effect or scope”’
and who are ‘“one of the larger or more important members . . . of
a . . . group”’”].)
Chapman argues he told Whitsey “several times not to kill
Jackson.” But as Chapman recounted to law enforcement,
Whitsey continued to insist on killing Jackson because Jackson
would not give Whitsey any money. Even if Chapman had tried
to dissuade Whitsey from shooting Jackson, Chapman saw that
Whitsey remained resolute in wanting to shoot Jackson when
Jackson refused to give in to Whitsey’s demands.
Chapman also asserts he “anticipated they were robbing
someone Whitsey knew well, raising the strong inference that he
believed the robbery would not turn fatal.” The superior court
did not err in making a contrary inference and concluding
Chapman and Whitsey did not commit a “garden-variety armed
15
robbery” (Banks, supra, 61 Cal.4th at p. 802) of a complete
stranger. The evidence supported the reasonable inference
Chapman was aware Jackson knew Whitsey well: Jackson let
Whitsey and Chapman into the apartment when Whitsey
knocked, and Chapman, Whitsey, and Jackson were at Bard’s
apartment the evening before the robbery. And the best way for
Whitsey and Chapman to clear out all the electronic equipment
from Jackson’s apartment, without risk of Jackson identifying
them, was to use deadly force. (See People v. Montanez (2023)
91 Cal.App.5th 245, 273 [defendant’s “presence at the crime scene
afforded him the opportunity to observe additional facts showing
the crimes posed a serious risk of danger” to the victim, who
could “see the assailants’ faces and later identify them, giving
[the shooter] . . . a motive to kill her to avoid detection for the
crimes”]; In re Harper, supra ,76 Cal.App.5th at pp. 462, 461
[where the plan “was not to rob a stranger or a victim who would
probably not report the crime,” the defendant “knew or
reasonably should have known from the start that the victim was
likely to be killed during the robbery”].)
(b) Chapman Acted with Reckless
Indifference to Human Life
The evidence did not indicate whether, before committing
the burglary and robbery, Chapman knew that Whitsey was
armed or that Whitsey had a propensity for violence, but the
evidence showed Chapman at least knew he and Whitsey were
going to Jackson’s apartment to rob Jackson (Chapman told
Magee they went to Jackson’s house to rob him). The evidence
also showed that, early on in the robbery, Chapman became
aware Whitsey had a gun and used it to threaten Jackson. Thus,
16
Chapman knew for a considerable amount of time Jackson’s life
was in jeopardy, and the length of the interaction between
Whitsey and Jackson increased the risk of violence; indeed, after
Jackson refused to give Whitsey what he wanted, Whitsey
escalated the risk by pointing a second gun at him. (See
Emanuel, supra, 17 Cal.5th at p. 886 [“‘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.’”]; In re Harper, supra, 76 Cal.App.5th at p. 461
[“Whatever petitioner may or may not have believed about the
plan for the robbery at the outset . . . , he was clearly aware of the
risk of death once the robbery was underway.”].) Chapman
disregarded the increasing danger to Jackson’s life by continuing
to remove Jackson’s personal property from the apartment while
Whitsey threatened to kill Jackson. (See People v. Clark, supra,
63 Cal.4th at p. 619 [“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.”].)
The prolonged interaction also gave Chapman
opportunities to intercede; he did not. Chapman claimed he
asked Whitsey not to shoot Jackson, but when Whitsey ignored
Chapman’s purported requests, Chapman, seemingly indifferent
to Jackson’s impending death, continued taking electronic
equipment from the apartment to his car. As the superior court
commented, though Chapman claimed he was afraid of Whitsey,
he did not explain “why he continued to take property and
reenter the house multiple times.” Chapman had time to react to
the escalating risk of deadly violence, but chose to continue
17
robbing Jackson, and he let Whitsey know (through the sound of
his car backing out) when it was time to escape. (See In re
McDowell (2020) 55 Cal.App.5th 999, 1014 [after the shooter filed
a “warning shot” that “would have indicated that [the shooter]
was likely to engage in lethal violence,” the defendant had “a
brief but critical opportunity . . . to say or do something to
deescalate the situation”]; In re Loza (2017) 10 Cal.App.5th 38, 53
[“any objective observer would have appreciated the grave risk to
life once [his confederate] entered the store and demanded money
from the clerk while counting down from five and threatening to
shoot,” conduct that “afforded petitioner the time to observe and
react before the murder”]; cf. Emanuel, supra, 17 Cal.5th at
p. 891 [“[i]n addition to saying ‘let’s go,’” the defendant “began
walking away from the robbery” and, when “met with resistance,”
the defendant “abandoned the plan rather than resort to greater
violence”].)
Chapman argues he tried to help Jackson by punching him
in the face to show Whitsey that “Jackson was already too scared
to tell anyone what happened and there was no need to kill him.”
The superior court, however, impliedly discredited Chapman’s
stated reason for punching Jackson and instead found Chapman’s
conduct in hitting Jackson supported the finding Chapman was a
major participant. We do not reweigh the superior court’s
credibility determination. (See People v. Grandberry, supra,
116 Cal.App.5th at p. 946.)
The court also did not give much weight to Jackson’s claim
he asked Whitsey not to kill Jackson. Even if Chapman told
Whitsey not to shoot Jackson and said they should leave,
Chapman’s actions belied his words. Chapman did not leave
18
Whitsey or seek help; he stayed until the end, loaded his car with
the stolen property, and helped Whitsey get away.
3. Chapman’s Youth at the Time He Committed
His Crimes Does Not Lessen His Culpability
Citing social science research and legislation that
“recognizes the factor of youth in special circumstances
prosecutions” and that authorizes offenders 25 years old and
younger who are convicted of certain offenses to receive an earlier
parole hearing, Chapman argues the court “failed to consider
that, at age 21, [he] was impaired by a lack of impulse control
and understanding of consequences.” Courts “have recognized
that ‘a defendant’s youth is a relevant factor in determining
whether the defendant acted with reckless indifference to human
life.’” (Emanuel, supra, 17 Cal.5th at p. 885, fn. 6; see People v.
Diaz, supra, 118 Cal.App.5th at p. 559, fn. 2.)
Though the superior court’s written decision did not discuss
Chapman’s age at the time he committed the crimes, we presume
the court considered this factor. Counsel for Chapman raised the
issue of Chapman’s relative youth in his brief in support of the
petition for resentencing and at the evidentiary hearing, and
nothing in the record suggests the court did not consider it. (See
People v. Jones (2022) 86 Cal.App.5th 1076, 1092 [“we presume
the trial court followed the law in exercising its duties and duly
considered the evidence presented to it”].)
Nor did the superior court err in impliedly finding
Chapman did not demonstrate he acted with “‘transient
rashness’” or had an “‘inability to assess consequences’” (People v.
Oliver (2023) 90 Cal.App.5th 466, 490) that outweighed the Clark
factors indicating he acted with reckless indifference to human
19
life. (See People v. Diaz, supra, 118 Cal.App.5th at p. 559, fn. 2
[“youth is not dispositive and courts have recognized that
youthful offenders can act with reckless indifference to human
life”]; People v. Mitchell, supra, 81 Cal.App.5th at p. 595 [“fact of
youth cannot overwhelm all other factors” showing the defendant
acted with reckless indifference to human life].) Chapman does
not cite any evidence in the record, other than his age at the time
he committed his crimes, to show he (as opposed to youth
offenders in general) “was influenced by peer pressure” (People v.
Ramirez (2021) 71 Cal.App.5th 970, 991) or failed “‘to appreciate
risks and consequences’” (In re Moore (2021) 68 Cal.App.5th 434,
454).6 (See Oliver, at p. 490 [defendant “failed to present on
appeal or in the court below any specific support for the
proposition that his level of maturity somehow lessened his
culpability for [the] murder”]; cf. People v. Jones, supra,
86 Cal.App.5th at p. 1091 [directing the superior court to consider
youth as a factor, where a report in the record “asserted that [the
defendant] had a traumatic and violent upbringing, had suffered
from under-diagnosed mental health issues and drug
abuse, . . . and appeared to be impulsive rather than criminally
sophisticated”].)
Moreover, Chapman’s account of the burglary and robbery
revealed he was aware Whitsey intended to shoot Jackson (he
repeatedly asked Whitsey not to shoot him). Despite this
6 Chapman’s probation report indicates that, at the time he
committed the crimes, he was one month from turning 22 years
old and already had a criminal record: two drug-related
convictions, a conviction for grand theft of an automobile, and a
conviction for assault with a deadly weapon. The probation
report also reflects Chapman was on parole at the time he
committed the crimes in this case.
20
awareness, Chapman continued to remove Jackson’s belongings
from the apartment and waited for Whitsey in his car. His
actions did not appear rash or impulsive. Nothing in the record
indicated Whitsey pressured Chapman to participate in
committing the crimes. Though Chapman claimed he feared
Whitsey, there was no evidence Whitsey ever threatened
Chapman. (See In re Harper, supra, 76 Cal.App.5th at p. 472
[defendant’s youth at the time of the offense (16 years old) “in no
way undermines” that “the record contains substantial evidence
he was a major participant in the robbery and he acted with
reckless disregard for human life”]; cf. People v. Keel (2022)
84 Cal.App.5th 546, 562 [“there was evidence suggesting
[a 15-year-old defendant’s] youth may have rendered him
especially vulnerable to outside pressures”: his association with a
street gang since he was a young child and “an expectation
among gang members that younger gang associates would
‘instantly go do’ their bidding”]; People v. Ramirez, supra,
71 Cal.App.5th at p. 991 [“‘evidence to support a finding that
[a 15-year-old defendant] was influenced by peer pressure’”
included the defendant’s statement that “‘he did not want to
approach the car, but [the shooter] insisted,’” and that he “‘was
afraid that if he did not help [the shooter], the neighborhood
would find out and someone might kill him later’”].) Under the
“totality of the circumstances” (In re Scoggins, supra, 9 Cal.5th at
p. 677), Chapman acted with reckless indifference to human life.
B. People v. Morris Does Not Apply
As discussed, the amended felony-murder rule under
section 189, subdivision (e), authorizes three theories of liability,
and the superior court found Chapman was “guilty of murder”
21
under the third theory (section 189, subdivision (e)(3)). In People
v. Morris, supra, 19 Cal.5th 671 the Supreme Court interpreted
“the meaning of the amended language” in the second theory of
liability (section 189, subdivision (e)(2)): “‘The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.’”
(Morris, at pp. 682, 680, italics added.) In Morris the jury
convicted the defendant of first degree murder and found true
special circumstance allegations under section 190.2,
subdivision (a)(17)(C) (rape), (a)(17)(A) (robbery), and
(a)(1) (murder for financial gain). (Morris, at p. 679.) The
defendant filed a petition for resentencing under section 1172.6,
and the parties agreed the record of conviction established “as a
matter of law” that the defendant “acted with the intent to kill”
and that he “aided and abetted the actual killer in the underlying
felonies.” (Morris, at p. 679.) The parties disagreed, however, on
“what acts are required to prove the actus reus under section 189,
subdivision (e)(2).” (Id. at p. 681.) The Supreme Court held that
liability for murder under section 189, subdivision (e)(2),
“requires proof the defendant aided or abetted the actual killer in
the lethal act itself.” (Morris, at p. 678.)
The phrase “in the commission of murder in the first
degree” in section 189, subdivision (e)(2), does not appear in
section 189, subdivision (e)(3), and the Supreme Court’s holding
in Morris did not involve the third theory of felony-murder
liability. The Supreme Court in Morris observed the Legislature
used the term “‘underlying felony’” in section 189,
subdivision (e)(3), to specify the conduct requirement under that
theory, in contrast to the phrase “‘the commission of murder in
22
the first degree’” the Legislature used in section 189,
subdivision (e)(2), and concluded the “use of different phrases
signals the Legislature intended to define different acts necessary
to prove guilt under each theory.” (Morris, at p. 684.) Contrary
to Chapman’s assertion, the Supreme Court in Morris did not
impose additional requirements under section 189,
subdivision (e)(3), and the Supreme Court’s interpretation of
section 189, subdivision (e)(2), in Morris does not apply to
Chapman.
DISPOSITION
The order denying Chapman’s petition under section 1172.6
is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
23