Filed 8/31/26 P. v. Gray CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C101484
Plaintiff and Respondent,
(Super. Ct. No. 00F07042)
v.
ADAM GRAY,
Defendant and Appellant.
Defendant Adam Gray appeals the denial of his petition for resentencing under
Penal Code section 1172.6.1 After an evidentiary hearing, the trial court found that Gray
was not entitled to relief because he was guilty of murder under two still-valid theories of
murder liability. On appeal, Gray contends that substantial evidence does not support
that he was an aider and abettor acting with intent to kill or that he was a major
participant in the underlying felony who acted with reckless indifference to human life.
Because there was sufficient evidence of his guilt under the latter theory, we affirm.
1 Undesignated statutory references are to the Penal Code. Gray filed his resentencing
petition under former section 1170.95. Effective June 30, 2022, the Legislature
renumbered former section 1170.95 to section 1172.6 without substantive change.
(Stats. 2022, ch. 58, § 10.) We cite to current section 1172.6 throughout this opinion.
1
BACKGROUND
I.
According to the evidence at trial, in the summer of 2000, Gray and codefendants
Joshua McLean and Billy Joe Jones worked as security guards for a private security
company. Gray and Jones were friends, and McLean was Gray’s best friend. Jones was
terminated as the acting guard supervisor at the end of July 2000 because he could not
obtain the necessary state-issued authorization. Gray replaced Jones as the acting guard
supervisor for a short time until the company hired Matthew Lenabat, the victim, as the
permanent guard supervisor in mid-August 2000. McLean was hired as a guard two days
before Lenabat was hired. McLean worked for the company for one week before
Lenabat fired him. Upon joining the company, Lenabat began trying to improve the
professional standards for the guards, including by imposing hair and grooming
standards. Gray, who wore his hair in a ponytail at the time, was upset by the changes.
On the night of August 21, 2000, after smoking marijuana, McLean and his
girlfriend visited Gray while he was working a shift outside a supermarket. Lenabat, who
was also present at the supermarket, walked up and spoke to Gray and then informed the
manager of the supermarket that Gray was with people who appeared to be intoxicated.
Gray and McLean were upset when they learned this and began talking about how they
wanted to “kick [Lenabat’s] ass.” At the end of Gray’s shift, Gray, McLean, and
McLean’s girlfriend left in Gray’s car, where Gray and McLean repeated that they would
like to “beat [Lenabat] up.” In a recorded statement played for the jury, McLean’s
girlfriend told law enforcement that Gray and McLean “ ‘had said something to the sense
of oh, um, you know, I’m going to kick that guy’s ass, you know, I’m going to kill that
guy, dah, dah, dah.’ ” They said this “ ‘like they were mad,’ ” but she could not recall
further details of who said what exactly, and she did not think they were being serious.
2
The next morning, Gray and McLean complained to a manager about Lenabat’s
actions the night before and about his intended changes to the grooming standards.
McLean was also upset that Lenabat had fired him without speaking to him directly.
That night, Gray failed to appear for his assigned security shift at another
supermarket, so Lenabat covered it. Lenabat was last seen by a supermarket employee
who left the building at around 1:10 a.m. The following morning, Lenabat’s remains
were found inside a burned vehicle at the bottom of a steep slope in a national forest.
Because the body was so badly charred, the forensic examiner was unable to determine
the cause of death. There was no soot in Lenabat’s respiratory tract, suggesting he was
not alive when he was burned. But the examiner could not rule out the possibility that
Lenabat had burned to death, as a particularly fast-moving fire would not have given time
to inhale smoke.
When law enforcement interviewed Gray, he denied being involved in the killing
of Lenabat but described how he had transported Lenabat’s body to the national forest
and how McLean and Jones had then set Lenabat in his own car, poured gasoline all over
it, lit the car on fire, and pushed it down the incline with Gray’s help. Gray also told
investigators about a conversation he had while smoking marijuana with McLean a
couple of months earlier, before meeting Lenabat. Gray recounted that they were talking
about how they would go about killing someone, if they were ever to do that. McLean
said that he would set fire to the car and/or the body to dispose of the evidence and “push
it off a cliff.”
Gray admitted that he had called Lenabat on the night he was killed to see if he
could meet Lenabat at his supermarket shift to tell him to scale back his changes to the
professionalism standards, but, according to Gray, the meet up never occurred. Instead,
McLean called Gray and asked to meet him “somewhere discrete,” and the two agreed to
meet at Jones’s house. McLean arrived driving Lenabat’s car, and Jones and McLean
placed Lenabat’s already dead body in the trunk of Gray’s car. Gray saw that Lenabat’s
3
hands were handcuffed behind his back and that a thick rope was wrapped around his
neck three or four times. Gray, McLean, and Jones then separately drove into the
national forest; Lenabat’s body was in Gray’s trunk.
Meanwhile, McLean told the investigating detectives a different account of events,
which the detectives recounted in their testimony at McLean’s preliminary hearing. Gray
relied on this preliminary hearing testimony in his briefing ahead of the section 1172.6
evidentiary hearing, asserting that it fell within the hearsay exception for statements
against interest. (See § 1172.6, subd. (d)(3) [excluding hearsay evidence from law
enforcement officers admitted in preliminary hearings under § 872, subd. (b), unless
made admissible by another hearsay exception]; Evid. Code, § 1230.)
According to the first detective to testify, McLean said that when he and his
girlfriend left with Gray after Gray’s shift on the night before the incident, McLean
“heard the words spoken that someone should kill [Lenabat] or [Lenabat] should be
killed.” McLean also told investigators that on the night of the incident, he and Gray
went to a store and purchased latex gloves and black tape. When asked about buying the
tape, McLean told the detective that he thought “maybe we’d tie somebody up and that
would be it.” In his own statements to investigators, Gray also described having made
these purchases with McLean but said that the gloves and tape were meant for working
on a car.
McLean further told investigators that he and Gray then headed to meet Lenabat at
the supermarket where Lenabat was working. On the way, Gray called Lenabat and
asked him to meet them behind the supermarket. Gray and McLean arrived at around
1:00 or 1:15 a.m. and waited for Lenabat behind the supermarket. When Lenabat arrived,
Gray “ ‘shot [him] with one of those mini woman tasers … .’ ” McLean then approached
Lenabat, who started running away. McLean chased him, took him down to the ground,
and sat on him. McLean wrapped the entire roll of tape around Lenabat’s head and
mouth, covering his whole head. Gray then handcuffed Lenabat, and he and McLean
4
walked Lenabat to the trunk of Gray’s car and placed him inside it. The detective asked
whether the plan was to kill Lenabat, and McLean responded that “ ‘[s]omething would
happen,’ ” though “ ‘[n]ot necessarily death.’ ” In describing the abduction, McLean told
another detective that “it was [Gray]’s idea.”
McLean described to investigators that he and Gray then drove to codefendant
Jones’s house, about 30 minutes away, with McLean driving Lenabat’s car and Gray
driving his own car carrying Lenabat inside the trunk. Phone records admitted at trial
showed that Gray called Jones at 11:54 p.m. and at 1:23 a.m. At trial, another detective
recounted that Jones stated in a separate interview that Gray called him at 1:25 a.m. and
arrived with McLean at his house about 10 minutes later. Jones said they stayed for 15 to
20 minutes.
According to McLean, at Jones’s house the trunk was opened, and Lenabat was
strangled to death with a rope. McLean said that the rope “was produced” from Jones’s
garage. After wrapping the rope around Lenabat’s neck, McLean held one end and
another person—ultimately identified as Jones—pulled on the other end.
The second detective to testify at the preliminary hearing stated that he asked
McLean what Gray was doing during the killing, and McLean said Gray was “staring.”
McLean said that at some point, Gray “got scared” and “didn’t have the nuts to do it.”
According to McLean, Gray said that “he couldn’t handle being a part of it.” McLean
recalled that “the people around [Gray] looked at him and went, ‘What the hell are you
doing? This was all your idea. This was all his plan.’ ” Later, the prosecution asked the
detective whether McLean said that he and Jones had “turned to [Gray] and said my God,
it’s your idea. You don’t want to take part of this aspect of it, some words to that effect?”
The detective responded: “Words to that effect, yes, sir.” The detective also recalled
McLean saying that Gray had been “ ‘bent on killing that dude for a while’ ” because
Gray did not want to cut his hair. McLean’s description of how he, Gray, and Jones
5
ultimately disposed of Lenabat’s body in the national forest was consistent with Gray’s
account.
At trial, Jones’s jury heard testimony that another security guard told one of the
detectives that Jones and Gray had made a plan to either murder or assault a former
coworker (not Lenabat) whom Jones believed had contributed to his being fired. The
guard reported that the plan, which he had heard secondhand, “involved abducting [the
intended victim], assaulting [him,] and then leaving [him] in a remote area.” The
detective’s report reflected that the guard later described the scheme as a plan to murder
the former coworker, not just to assault him. The testimony further reflected that Jones
soon lost interest in this plan, while Gray kept bringing it up.
Gray’s jury also heard an audio recording of a conversation between Gray and a
friend who visited him in jail a few days after his arrest. When the friend asked whether
Gray was being charged with premeditated murder, Gray responded that “it wasn’t a
premeditated thing, but they could see it as one.” Gray later indicated that it had been
McLean and Jones who actually killed Lenabat, stating, “I couldn’t do it.” He said,
“[T]hey wanted me to. I couldn’t.”
Gray was charged with murder (§ 187, subd. (a)), kidnapping (§ 207, subd. (a)),
and arson (§ 451, subd. (d)), and it was alleged that the murder was committed with the
special circumstances of lying in wait (§ 190.2, subd. (a)(15)) and during a kidnapping
(§ 190.2, subd. (a)(17)). McLean’s trial was severed, and Gray and Jones were tried
jointly but with separate juries. Gray’s jury convicted him on all charges and found the
special circumstances true. He was sentenced to life without parole plus a consecutive
term of two years. Gray appealed, and we affirmed the judgment. (People v. McLean
(Mar. 13, 2003, C039364, C039767, C040137) [nonpub. opn.].)
II.
In 2021, Gray filed a petition for resentencing under what is now section 1172.6.
The petition alleged that he was convicted of felony murder or murder under the natural
6
and probable consequences doctrine and could not now be convicted of murder because
of changes made to sections 188 and 189. The trial court denied the petition at the prima
facie stage. We reversed and remanded with directions for the trial court to issue an
order to show cause and hold an evidentiary hearing. (People v. Gray (June 26, 2023,
C096335) [nonpub. opn.].)
On remand, the prosecution filed a brief arguing that Gray’s murder conviction
was still valid because, at a minimum, he was a major participant in the kidnapping and
acted with reckless indifference to human life, although the record would also support
other still-valid theories of murder liability. In support, the prosecution submitted copies
of the reporter’s transcript and clerk’s transcript from the trial. Gray filed a brief
acknowledging that he was a major participant in the kidnapping but arguing that he did
not act with reckless indifference. Gray also attached to his brief exhibits containing
excerpts of the clerk’s transcript.
At the evidentiary hearing, the trial record was admitted, and no further evidence
was presented. Following argument by the parties, the trial court denied Gray’s petition.
The court concluded that Gray was not the actual killer but found, beyond a reasonable
doubt, that he aided and abetted the murder with the intent to kill. The court also
determined that Gray was a major participant in the kidnapping—in fact, “the major
participant.” The court found that there was a “scheme to kidnap and kill” Lenabat, with
the kidnapping being “simply one of the steps toward the killing.” As the trial court saw
the evidence, “[t]he goal was to kill.” The court explained: “Mr. Gray intended to kill
Mr. Lenabat from the start from when he was confronted about cutting his hair … .”
“Luring” Lenabat to the back of the store and lying in wait to “ambush him” was a “set-
up to kill,” and this “was [Gray’s] plan, his retribution.” While Gray did not ultimately
pull the rope and strangle Lenabat, Gray was present for the killing and in a position to
stop it.
7
Gray timely appealed. After the appeal was fully briefed, Gray requested
permission to file a supplemental brief addressing the California Supreme Court’s recent
decision in People v. Morris (2026) 19 Cal.5th 671. We granted his request, and both
parties filed briefs discussing that new authority.
DISCUSSION
I.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill No. 1437) amended sections 188 and 189 to narrow the scope of the felony-murder
rule and eliminate the natural and probable consequences doctrine as a basis for murder
liability. (People v. Curiel (2023) 15 Cal.5th 433, 448-449.) Under these amendments,
“[a] felony-murder conviction may no longer rest on the mere commission of and intent
to commit an underlying felony. If a defendant was not the actual killer or an aider and
abettor acting with intent to kill, the statute now requires that the defendant be a major
participant in the felony who acted with reckless indifference to human life. (Pen. Code,
§ 189, subd. (e)(3).)” (People v. Emanuel (2025) 17 Cal.5th 867, 875, fn. omitted
(Emanuel).)
Senate Bill No. 1437 “also created a vehicle for defendants previously convicted
of murder under the broader and now invalidated felony-murder rule” to seek
resentencing. (Emanuel, supra, 17 Cal.5th at p. 875.) Under that procedure, now
codified at section 1172.6, a person convicted of murder under prior law may file a
petition seeking resentencing. (People v. Curiel, supra, 15 Cal.5th at p. 449.) If the
petition makes a prima facie case that the defendant’s conviction was affected by the
substantive changes to the law, the trial court must issue an order to show cause and hold
an evidentiary hearing at which the prosecution bears the burden to “prove, beyond a
reasonable doubt, that the petitioner is guilty of murder” under current law. (§ 1172.6,
subds. (c), (d)(1) & (d)(3).) At this phase of the resentencing proceeding, “ ‘it is the
[trial] court’s responsibility to act as independent fact finder and determine whether the
8
evidence establishes a petitioner would be guilty of murder under amended sections 188
and 189 and is thus ineligible for resentencing under section [1172.6].’ ” (People v. Cody
(2023) 92 Cal.App.5th 87, 110.)
The admission of evidence at an evidentiary hearing under section 1172.6 is
governed by the Evidence Code, except “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.” (§ 1172.6,
subd. (d)(3).) “The prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens.” (Ibid.) “If the prosecution fails to sustain 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.)
We review the trial court’s denial of a section 1172.6 petition after an evidentiary
hearing for substantial 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 … 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.) “ ‘The test is not whether the People met their burden of proving
beyond a reasonable doubt that [a defendant in a section 1172.6 proceeding] was
ineligible for resentencing, but rather “whether any rational trier of fact could have” made
the same determination, namely that “[t]he record … disclose[s] … evidence that is
reasonable, credible, and of solid value … such that a reasonable trier of fact could find
[as did the superior court].” ’ ” (People v. Cody, supra, 92 Cal.App.5th at p. 111.)
II.
Gray contends that substantial evidence does not support either that he was an
aider and abettor acting with intent to kill or that he was a major participant in the
underlying felony who acted with reckless indifference to human life. We conclude there
9
was sufficient evidence of his guilt as a major participant acting with reckless
indifference to human life.
Section 189, subdivision (e)(3) provides for felony-murder liability when “[t]he
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.”
Section 190.2, subdivision (d) applies to “every person, not the actual killer, who, with
reckless indifference to human life and as a major participant” aids or abets an
enumerated felony, including kidnapping (§ 190.2, subd. (a)(17)(B)), that results in death.
The statute “imposes an actus reus requirement, i.e., major participation in the
enumerated felony, and a mens rea requirement, i.e., reckless indifference to human life.”
(Emanuel, supra, 17 Cal.5th at p. 882.) Here, Gray does not contest that he was a major
participant in the kidnapping. Indeed, he conceded the point in the trial court. We
therefore confine our analysis to the sufficiency of the evidence of reckless indifference.
“Reckless indifference to human life is ‘implicit in knowingly engaging in
criminal activities known to carry a grave risk of death.’ ” (In re Scoggins (2020)
9 Cal.5th 667, 676 (Scoggins).) “Reckless indifference ‘encompasses a willingness to
kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does
not specifically desire that death as the outcome of his [or her] actions.’ ” (Id. at pp. 676-
677.) “Reckless indifference to human life has a subjective and an objective element.”
(Id. at p. 677.) “As to the subjective element, ‘[t]he defendant must be aware of and
willingly involved in the violent manner in which the particular offense is committed,’
and he or she must consciously disregard ‘the significant risk of death his or her actions
create.’ ” (Ibid.) As to the objective element, the 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
10
[violent felony] is insufficient’ to establish reckless indifference to human life; ‘only
knowingly creating a “grave risk of death” ’ satisfies the statutory requirement.” (Ibid.;
see Emanuel, supra, 17 Cal.5th at p. 884 [“ ‘The degree of risk to human life is crucial to
the analysis’ ”].)
Determining whether a defendant had the mental state required to find reckless
indifference to human life requires a “fact-intensive, individualized inquiry” into “the
totality of the circumstances.” (Scoggins, supra, 9 Cal.5th at pp. 683, 677.) In People v.
Clark (2016) 63 Cal.4th 522 (Clark), our state high court identified a nonexhaustive list
of relevant considerations. (Emanuel, supra, 17 Cal.5th at p. 883; see ibid. [§ 189,
subd. (e)(3) imported reckless indifference standard from Clark].) Those considerations
include: (1) whether the defendant used a deadly weapon or knew that a deadly weapon
would be used during the felony, and how many weapons were ultimately used,
(2) whether the defendant was physically present at the crime and whether he or she had
“the opportunity to restrain the crime or aid the victim,” (3) “the duration of the
interaction between the perpetrators of the felony and the victims,” (4) “the defendant’s
knowledge of his or her confederate’s propensity for violence or likelihood of using
lethal force,” and (5) the efforts the defendant made to minimize the risks of violence
during the felony. (Scoggins, at p. 677, citing Clark, at pp. 618-623.) “ ‘ “[N]o one of
these considerations is necessary, nor is any one of them necessarily sufficient.” ’ ”
(Scoggins, at p. 677, quoting Clark, at p. 618.) Our supreme court has cautioned against
a mechanical application of these factors, directing instead that they be assessed in a
manner guided by “their animating principles.” (Emanuel, at p. 896; see ibid.
[“nonexhaustive list of factors identified as relevant to the reckless indifference inquiry
must not supplant the standard they are meant to elucidate”].)
Turning to those factors, first, Gray did not bring or use a gun or other deadly
weapon. (Emanuel, supra, 17 Cal.5th at p. 885; see Scoggins, supra, 9 Cal.5th at p. 677
[distinguishing case where defendants brought arsenal of “ ‘lethal weapons’ ”].) Nor did
11
McLean. There is evidence that Gray brought a taser to the abduction and used it to
shoot Lenabat, but McLean described it as a “mini” taser, and Lenabat’s ability to run
away immediately afterward suggests it was not capable of applying lethal force. The
People appear to argue that Gray understood that a weapon of some kind would be used
to kill Lenabat because, as the trial court found, Gray planned and then set the kidnapping
and murder in motion. Even so, they point to no evidence that Gray was aware, in
advance, that his confederates would produce a rope to kill Lenabat.
Second, Gray was physically present throughout the crime and had the opportunity
to restrain his confederates and help Lenabat. Our state high court has explained that
“ ‘[p]roximity 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, or where the [co]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 [or her] to observe his [or her] cohorts so that it is fair to
conclude that [the defendant] shared in their actions and mental state. … [Moreover,]
the defendant’s presence gives him [or her] 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.” ’ ” (Emanuel,
supra, 17 Cal.5th at p. 889, quoting Clark, supra, 63 Cal.4th at p. 619.)
Ample evidence supports Gray’s physical proximity for both Lenabat’s abduction,
in which he actively participated, and Lenabat’s subsequent murder and that the crime
involved a “long sequence of events culminat[ing] in murder.” (Scoggins, supra,
9 Cal.5th at p. 679.) Gray himself handcuffed Lenabat and drove him to Jones’s house,
bound and gagged in the trunk of his car. (See Tison v. Arizona (1987) 481 U.S. 137,
140, 151-152, 158 [reckless indifference shown when defendants kidnapped and robbed
victims and guarded them while knowing their father was debating whether to kill them];
see Scoggins, at p. 678 [discussing Tison].) Neither McLean nor Jones was in the car,
12
and Gray could have released Lenabat at any point during that 30-minute journey. (Cf.
Emanuel, supra, 17 Cal.5th at p. 894 [noting that defendant had no meaningful
opportunity to aid victim before the shooting].) Instead, Gray delivered Lenabat to his
confederates and remained present both for the ensuing discussion about who should kill
him and for the strangulation itself.
Despite being present throughout, there is no indication in the record that Gray
“attempted to act as a restraining influence.” (Emanuel, supra, 17 Cal.5th at p. 891.)
Gray made no attempt to restrain his confederates once the rope was produced at Jones’s
house. And this was not a “rapidly unfolding crime” where Gray lacked “a meaningful
opportunity” to intervene. (Id. at p. 892.) Based on McLean’s statements to law
enforcement and Gray’s own statements during the recorded jail visit, there was at least
some discussion of who should kill Lenabat with the rope as he lay in Gray’s trunk. Gray
said that the other two wanted him to do it, but he could not. McLean told law
enforcement that he and Jones expressed to Gray their disbelief that he would not
participate in the act of killing. Thus, there was evidence that Gray had “forewarning that
[his accomplices] would deploy lethal violence” and yet did not attempt to stop them.
(Cf. ibid. [“Without forewarning that [shooter] would deploy lethal violence,
[defendant]’s inaction is less probative”].) Put another way, Gray had “awareness of the
risk of impending lethal violence and time to react” (ibid.), but did not do so.
Gray argues that he lacked a meaningful opportunity to restrain McLean and Jones
because Jones looked strong enough to beat him up and because there were two of them
and only one of him. This argument fails to acknowledge the trial court’s finding that
Gray was, in fact, in a position to stop the killing. And in any event, the question is not
whether Gray would have succeeded in stopping his accomplices but whether he made
any effort to do so. (See Emanuel, supra, 17 Cal.5th at p. 891 [“focus should not be on
the ultimate efficacy of [the defendant’s] actions, but on what his [or her] actions reveal
about his [or her] mental state”].) The evidence that Gray simply stared instead of asking
13
or suggesting that McLean and Jones, two men whom he considered friends, not pull the
rope demonstrates a strong indifference to Lenabat’s survival. On the facts here, Gray’s
“failure to intervene reflected intentional inaction indicative of reckless indifference to
human life.” (Ibid.)
Gray’s actions after the strangulation support this conclusion as well. While it
appears that Gray believed Lenabat had died before taking him into the national forest, it
is still significant that Gray did not check for a pulse or heartbeat before taking him to a
remote location, far from where he might be found or otherwise aided. (Cf. Emanuel,
supra, 17 Cal.5th at p. 894 [noting that defendant “took no actions after the shooting that
might prevent or interfere with [the victim]’s ability to obtain or chances of receiving
aid”].) Once secluded in the mountains, Gray then helped McLean and Jones incinerate
Lenabat’s body by pushing his burning car down an incline—an act that ensured Lenabat
would not survive his encounter with Gray and his confederates.
Third, the duration of the incident was lengthy. “A lengthy interaction between
perpetrators and victims of a felony may increase the risk of resistance, conflict, and
violence. ‘Courts have looked to whether a murder came at the end of a prolonged period
of restraint of the victims by defendant. … 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.’ ” (Emanuel, supra, 17 Cal.5th at p. 886, quoting Clark, supra, 63 Cal.4th at
p. 620.) Here, Gray lured Lenabat to the back of the supermarket and tased him. After
McLean wrapped his head in tape, Gray handcuffed him and then drove him roughly
30 minutes to Jones’s house. These actions expanded the “ ‘ “window of opportunity for
violence” ’ ” against Lenabat and “heighten[ed] the risk of violence beyond that inherent”
in the kidnapping itself. (Ibid.)
Fourth, the record supports a finding that Gray knew of his confederates’
propensity for violence or likelihood of using lethal force. Prior to the incident, Gray had
14
conversations with both McLean and Jones, on separate occasions, in which each
expressed violent tendencies, up to and including killing. McLean detailed how he would
dispose of the body of a hypothetical victim, should he ever kill someone, and he spoke
with Gray just one night before the incident about wanting to kill, or at least assault,
Lenabat specifically. As for Jones, he and Gray made “an actual plan” to abduct and
murder another coworker and leave him in a remote location. Although Jones and Gray
never carried out that plan, and there was evidence that Jones was less attached to it than
Gray, Jones’s willingness to form such a plan in the first place would have reasonably
alerted Gray to some propensity for violence and killing. Further, even though McLean
brought no weapons to the kidnapping, he displayed extreme brutality toward Lenabat by
tackling and sitting on him and then wrapping an entire roll of tape around his head—
including his mouth. Witnessing this would have given Gray an even clearer view of
McLean’s propensity for violence. (See Clark, supra, 63 Cal.4th at p. 621 [“Defendant’s
knowledge of [factors bearing on a cohort’s likelihood of killing] may be evident before
the felony or may occur during the felony”].) Even with this knowledge, Gray drove
Lenabat to Jones’s house where he knew both Jones and McLean would be waiting.
Fifth, the evidence is mixed on Gray’s efforts to minimize the risks of violence
during the felony. This factor focuses on risk-mitigation efforts “at the planning stage.”
(Emanuel, supra, 17 Cal.5th at pp. 887-888.) The fact that Gray and McLean, between
them, brought to the kidnapping no weapons other than a small taser “ ‘ “is, by itself, a
significant step towards minimizing the likelihood that the plan would result in a ‘grave
risk of death.’ ” ’ ” (Id. at p. 887.) At the same time, the trial court found that there was
a cohesive “scheme to kidnap and kill,” organized by Gray, whose apparent preassigned
role was to lure Lenabat to the back of a store in the middle of the night, where there
would likely be no passersby, and then to bring him to a private location for further harm.
(Cf. ibid., quoting Scoggins, supra, 9 Cal.5th at p. 683 [“although an unarmed assault and
robbery contemplated the use of some violence, planning that it ‘take place in a public
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parking lot during the daytime, when the possible presence of witnesses might reasonably
be thought to keep [the defendant’s] accomplices within the bounds of the plan’ tended to
minimize the risk of lethal violence”].) Gray has not shown the trial court’s finding of
his orchestration of a kidnap-to-murder scheme to be unsubstantiated.
Finally, Gray notes that he was only 21 years old at the time of the offenses and
urges us to consider his youth as part of the totality of the circumstances. He is correct
that courts of appeal have concluded “that a defendant’s youth—defined, roughly, as
being 25 years of age and younger—is a factor within the totality of circumstances
relevant to the requisite mental state for felony murder.” (People v. Pittman (2023)
96 Cal.App.5th 400, 416; see Emanuel, supra, 17 Cal.5th at p. 885, fn. 6 [acknowledging
defendant’s youth but declining to address significance of this factor].)
“The cases discussing the role of youth in relation to criminal culpability ‘stress
two areas’: youthful offenders’ ‘relative impulsivity’ and ‘their vulnerability to peer
pressure.’ [Citation.] ‘ “[T]ransient rashness,” ’ ‘ “ ‘impetuosity,’ ” ’ and ‘ “ ‘failure to
appreciate risks and consequences’ ” ’ are hallmarks of an immature brain.” (People v.
Pittman, supra, 96 Cal.App.5th at p. 418.) Here, as for impulsivity, Lenabat’s abduction
was not borne of “ ‘transient rashness.’ ” (Ibid.) To the contrary, the record shows that
McLean and Gray strategically bought supplies and lured Lenabat to meet them after at
least a full day of ruminating on their displeasure with him. As to immaturity, at the time
of the offenses, Gray had maintained his security job for nearly one year and was a
caretaker (along with his girlfriend) for his young son, both of which suggest a degree of
responsibility. Nor does it appear that Gray was particularly vulnerable to peer pressure,
as he was able to refuse his confederates’ request to pull the rope to strangle Lenabat.
(People v. Oliver (2023) 90 Cal.App.5th 466, 489-490 [failure to consider youthfulness
of 23-year-old defendant was harmless because there was no evidence that defendant’s
behavior was motivated by “impulsivity” or “vulnerability to peer pressure”].)
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Considering the totality of all of these circumstances, there is substantial evidence
of Gray’s reckless indifference to human life. The evidence supports findings that Gray
coordinated a plan to kidnap Lenabat so that he could be killed and his body disposed of
in a remote location. While neither Gray nor McLean brought a deadly weapon to initiate
the kidnapping, the abduction turned brutal at its outset. McLean tackled Lenabat and
then covered his entire head, including his mouth, in tape. Gray then handcuffed Lenabat
and transported him, as he lay helpless in the trunk of Gray’s car, to a second location a
significant distance away. Although Gray was alone in the car with Lenabat, he never
checked on him or stopped to release him. Instead, he drove Lenabat to a distant location
to reconnect with McLean and Jones, both of whom had previously expressed a
willingness to kill. When it became clear at the second location that McLean and Jones
were preparing to kill Lenabat with a rope, Gray did nothing to attempt to dissuade them
or to come to Lenabat’s aid. After the strangulation, Gray took Lenabat an even greater
distance into the forest, never checking to see if he were still alive or could still be
resuscitated. Gray then helped to push Lenabat down an incline in his burning car where
he certainly could not be saved.
These facts together and our review of the Clark factors persuade us that there was
sufficient evidence for a reasonable trier of fact to find that Gray knowingly created a
grave risk of death for Lenabat. (Scoggins, supra, 9 Cal.5th at p. 677.) The evidence in
the record showed that Gray was aware of a risk of death exceeding “that inherent in any
violent felony” (Emanuel, supra, 17 Cal.5th at p. 888) and had “ ‘a willingness to kill (or
to assist another in killing) to achieve a distinct aim,’ ” whether or not he specifically
desired Lenabat’s death as the outcome of his actions (Scoggins, at pp. 676-677).
Because substantial evidence thus supports the trial court’s implied finding that Gray
acted with reckless indifference to human life and he has not contested that he was a
major participant, he remains liable for murder under section 189, subdivision (e)(3) and
is not entitled to relief under section 1172.6. Given this conclusion, we need not address
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the trial court’s finding that Gray also aided and abetted murder with the intent to kill or
the arguments in the parties’ supplemental briefing regarding People v. Morris, supra,
19 Cal.5th 671 and section 189, subdivision (e)(2).
DISPOSITION
The trial court’s order denying Gray’s section 1172.6 petition is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
BOULWARE EURIE, J.
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