Filed 9/23/26 P. v. Hall CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A173450
v.
ANTHONY D’SHAWN HALL, (Solano County
Super. Ct. No. VCR11177)
Defendant and Appellant.
Defendant Anthony D’Shawn Hall appeals the denial of his petition to
vacate his murder conviction and obtain resentencing under Penal Code1
section 1172.6 after an evidentiary hearing. He argues the trial court erred
in finding him ineligible for relief on the ground that he was a major
participant in an attempted robbery who acted with reckless indifference to
human life. (§ 189, subd. (e)(3).) We affirm.
BACKGROUND
The Charges
In 2011, an amended information was filed, charging defendant with
murder (§ 187, subd. (a); count 1), accompanied by an allegation that he
personally and intentionally discharged a firearm in the commission of the
1 Undesignated statutory references that follow are to the Penal Code.
1
murder (§ 12022.53, subds. (a)–(d)); and attempted robbery (§§ 211, 664;
count 2), also accompanied by a personal firearm use allegation (§ 12022.52,
subds. (a), (b)). The amended information also alleged defendant had
suffered a prior serious or violent felony conviction. (§§ 667, subds. (a)(1), (b),
1170.12, subd. (a).)
The Evidence at Trial
The Killing
Early in the morning of April 30, 2011, Everett Brown was found dead
in Vallejo. The prosecution presented, among other evidence, testimony from
Omri Williams (Brown’s friend) and Kevin Cooper (defendant’s cousin)2
regarding the circumstances surrounding the attempted robbery and murder.
Omri Williams
Williams testified that on the evening of April 29, 2011, he, Brown, and
their girlfriends were socializing at his house in Vallejo. A few minutes later,
Williams went out to talk to him, and Brown said he wanted to stay the
night. They drove in Brown’s car to his grandmother’s house to get his
clothes. The car was a blue Oldsmobile.
Brown and Williams then drove to a Valero gas station to get gas. As
Brown got out of the car to pay for the gas, Williams noticed another car
parked at the station, a car that had “Rest in Peace Ether” painted on the
back window. Two men, later identified as defendant and Cooper, got out of
that car, and stood behind Brown at the cashier’s window.
After a brief conversation, Brown, along with Cooper and defendant,
walked back to the Oldsmobile and got in, with Cooper behind Brown in the
driver’s seat and defendant behind Williams in the passenger’s seat. After a
2 Cooper was charged with murder but later pled guilty to voluntary
manslaughter.
2
couple of seconds of silence, Williams asked Brown, “What is going on? Who
are they?” Brown did not respond, and defendant said they were going
around the corner. Williams again asked Brown, “What is going on?”; again,
he did not answer. At this point, defendant asked Williams if he had a gun
on him, and then pulled out a gun, held it to Williams’s neck, and said he was
robbing them: “[I]t’s a jack move and give me everything out your pockets.”
Williams said he wasn’t giving him anything, and defendant said, “You don’t
think I will kill you?” Defendant told Brown to start the car, and make a left
turn out of the parking lot, still holding the gun to Williams’s neck.
As they were driving along slowly, Williams told defendant he knew
who “Little ‘E’ ” was, the person whose name was spray painted on the back
of the car. At that point, defendant said, “Okay. Okay. I’m not going to rob
you,” before telling Brown to drop off defendant and Cooper around the
corner. Williams did not want to do that and said, “No.” Williams “did not
trust” the two men, because Williams “knew the area that they wanted to go
in,” “[i]t was real late,” and they just “tried to rob [him]” and “had a gun to
[his] neck.” Williams told Brown, “No. I’m not dropping them off. We can let
them out right here, or we can both get out and let them have the car . . . .”
Brown disagreed and said everything would be all right. As Williams
described it, Brown “told me ‘It’s okay. We’re going to drop them off.’ [¶] And
I told him, ‘No. I’m not dropping them off. We can let them out right here, or
we can both get out and let them have the car, but we’re not dropping them
off.’ ” Brown and Williams continued “going back and forth,” “kind of like
arguing,” as Brown continued to slowly drive the car. Williams opened the
door and put his foot out, and said to Brown: “I’m getting out. I’m not
driving down here. You can get out with me.” Brown replied, “No. It’s all
right. It’s all right. I’m going to drop them off. They’re just going to go
3
home.” Williams got out and started walking back to the Valero station. He
looked back, and saw Brown’s car make a right turn onto Taper Street.
Williams called his girlfriend and told her what just happened and to
come pick him up. Williams called Brown’s phone about two to three times
but there was no answer.
Williams then saw police cars speeding down the street towards Taper
Street with their lights and sirens on. At that point, his girlfriend arrived to
pick him up, and they followed the police cars to Taper Street, where they
saw Brown’s body lying in the street surrounded by police cars and an
ambulance. Shortly afterwards, Williams went with police officers to the
police station where he gave a statement.
Kevin Cooper
Kevin Cooper, defendant’s first cousin, testified that late in the evening
on April 29, 2011, he and defendant went to a house party in Vallejo. After
spending a few hours at the party, defendant, Cooper, James Bondoc, and
another friend drove in Bondoc’s car to a nearby Valero gas station. The car
was a white Pontiac Bonneville, with “RIP Lil’ E” painted on the back
window. As they pulled up to the pump, Cooper and defendant exited the
car. Cooper recalled that he was wearing a green “Polo” baseball cap and
that defendant was wearing a bright turquoise t-shirt.
The men walked to the front of the gas station, where they encountered
Brown and Williams standing outside of their own car, a blue Oldsmobile.
Cooper had never seen either Brown or Williams before. Defendant and
Brown had a brief conversation in front of the gas station, but Cooper did not
recall what they were talking about. Cooper and defendant then followed
Brown to the blue Oldsmobile. Cooper got in the backseat on the driver’s
side, while defendant got into the back on the passenger’s side seat. Brown
4
was in the driver’s seat, while Williams was seated in the front passenger’s
seat.
Brown drove toward “The Crest,” a neighborhood in Vallejo. Defendant
ordered Brown to drive them around the corner. Defendant then pulled a
gun out of his pocket and told Cooper, “Let’s rob these niggas.” Defendant
had shown Cooper the gun earlier when they were at defendant’s apartment.
Williams responded that they knew Montrell Austin, the host of the house
party on Cynthia Street. Williams and Brown discussed whether they should
drop off the two men, and Brown said he would drive around the corner as
defendant had instructed.
Brown turned right out of the gas station. As he was driving, Williams
and Brown got into an argument. Brown stopped the car, and Williams got
out and walked away. Defendant moved from the back seat of the car to the
front passenger’s seat. As Brown began driving again, defendant put the gun
to Brown’s head and pulled the trigger. Cooper was shocked; he did not
expect defendant to shoot anyone.
Cooper then jumped out of the car and ran, dropping his green “Polo”
hat as he fled. Defendant also got out of the car and ran. Cooper saw
defendant throw the gun in a garbage can as they ran. After initially fleeing
into a nearby backyard, the two men made their way back to the party at
Montrell Austin’s house. Eventually Austin drove Cooper and defendant
back to defendant’s home. When they returned home, Cooper confronted
defendant, angry that he had shot Brown and upset to have been involved in
the incident.
The Investigation
Just before 3:00 a.m. on April 30, 2011, Vallejo Police Officer Steven
Cheatham responded to a 911 call reporting shots being fired near the corner
5
of Taper and Janice Streets, which was “right up the street” from the Valero
gas station in Vallejo. He saw Brown lying down on the street. He could see
a blue Oldsmobile stopped in the middle of the road farther up the street.
The engine was still running, the headlights were on, and the passenger’s
side door was open. The window on the driver’s side door was shattered.
There were bullet holes in the interior of the driver’s side door, near the
handle. Officer Cheatham later found a green baseball hat on the street,
lying between the car and the victim. The hat had an orange “Polo” logo on
it. DNA on the hat was later found to match that of Cooper.
Vallejo Police Detective Jason Potts arrived on the scene approximately
4:00 a.m. Detective Potts observed Brown’s body lying in the street with a
gunshot wound on his right cheek. Potts observed “stippling” near the
wound, meaning the gunshot had been fired at close range. He also observed
a gunshot wound on the victim’s back.
Forensic examination of the Oldsmobile revealed three bullets in the
driver’s side door, one in the door pillar, and two in the interior of the door. A
trajectory analysis was able to be conducted on one of the bullet holes, which
analysis indicated the bullet was shot from inside the vehicle, specifically
from the front toward the backseat at a downward angle. The positioning of
the shooter could not be determined, however.
A forensic pathologist determined Brown’s cause of death was two
gunshots wounds, one to the head and one to the chest. The pathologist
opined that the gun was fired at a distance of more than six inches but less
than three feet.
Police obtained surveillance footage from the Valero gas station. The
video showed two cars at the gas station at 2:45 a.m., the blue Oldsmobile
later found in the street near the victim, and a silver Pontiac, with “RIP
6
Little Ether” painted on the back window. The video also showed a man
matching defendant’s description: he was wearing a turquoise blue shirt in
the back passenger’s seat of the Oldsmobile as it drove away from the gas
station. He appeared to be leaning forward towards the person in the front
passenger’s seat. The video also showed a man wearing a green hat getting
into the blue Oldsmobile. The video then depicted the Oldsmobile leaving the
gas station at 2:49 a.m. with a person matching defendant’s description in the
right rear passenger seat.
The police also obtained defendant’s cell phone records. The records
showed multiple calls placed between 1:27 a.m. and 3:17 a.m. that were
connected through a cell phone tower located about 0.6 miles from the Valero
gas station and 0.9 miles away from Taper and Janice Streets. These calls
included one placed at 2:59 a.m., which was near the time that police received
the 911 call about shots being fired.
In the morning of April 30, 2011, Detective Potts showed Williams a
photographic lineup. Williams identified defendant as the gunman.
The Verdict and the Sentence
In 2013, the jury found defendant guilty of first degree felony murder
and attempted robbery. The jury found not true the personal firearm use
allegation accompanying the murder count. However, it found true the
personal firearm use allegation accompanying the attempted robbery.
Defendant waived jury trial on the prior conviction allegation, which the trial
court found true.
The trial court sentenced defendant as follows: on count 1, 25 years to
life, doubled pursuant to the Three Strikes law, plus five years for the section
667, subdivision (a)(1) enhancement, for a total of 55 years to life; on count 2,
16 years consecutive.
7
In 2016, we affirmed defendant’s judgment of conviction. (People v.
Hall (April 13, 2016, A140033) [nonpub. opn.].)
The Petition for Resentencing
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), which “significantly narrowed the
scope of the felony-murder rule.” (People v. Strong (2022) 13 Cal.5th 698, 703
(Strong).) As amended by Senate Bill 1437, section 189, subdivision (e) now
provides that a person may be liable for felony murder pursuant to three
theories of liability: (1) “[t]he person was the actual killer” (§ 189, subd.
(e)(1)); (2) “[t]he 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” (id.,
subd. (e)(2)); and (3) “[t]he person was a major participant in the underlying
felony and acted with reckless indifference to human life” (id., subd. (e)(3)).
“Senate Bill 1437 also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended.” (Strong, supra, 13 Cal.5th at p. 708.) Pursuant to section 1172.6,
when a petition complies with the statutory requirements, the court assesses
whether the petitioner has made “a prima facie case for relief.” (§ 1172.6,
subd. (c).) If the trial court determines that a prima facie showing for relief
has been made, the trial court issues an order to show cause, and then must
hold a hearing to determine whether to vacate the conviction and resentence
the petitioner. (§ 1172.6, subd. (d)(1).) At the hearing, the prosecution has
the burden to prove beyond a reasonable doubt that the petitioner is guilty of
murder under the amended murder statutes. (Id., subd. (d)(3).)
In 2024, defendant filed a petition for resentencing pursuant to section
1172.6. The trial court found that a prima facie showing of eligibility for
8
relief was made and set the matter for an evidentiary hearing. The parties
submitted briefs
At the evidentiary hearing on May 5, 2025, the parties relied on the
submitted documents and did not present any new testimony or evidence.
The court heard argument, after which it denied defendant’s petition.3 In
reaching its conclusion, the court first explained that because the jury found
not true the personal firearm use enhancement as to the murder count, the
court was precluded from finding that defendant was the actual killer. The
court, however, found the People proved beyond a reasonable doubt that
defendant was guilty of murder under the current law as a major participant
in the attempted robbery who acted with reckless indifference to human life.
In making that determination, the court conducted a detailed analysis of the
factors that our Supreme Court set forth in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (See Banks,
supra, 61 Cal.4th at p. 803 [factors for determining whether a defendant was
a major participant in an underlying felony]; Clark, supra, 63 Cal.4th at pp.
618–623 [factors for determining whether a defendant acted with reckless
indifference to human life].)
In evaluating the Banks factors, the court noted it was defendant who
had ordered the victim to drive around the corner and concluded, “it is the
defendant who is leading here in terms telling people where to go and taking
charge. And that to me shows evidence of planning as well as leadership.”
Additionally, the court noted that defendant supplied the weapon and
initiated the robbery. Defendant was also the one who threatened to kill the
3 It does not appear that the court expressly issued an order to show
cause. However, the proceeding at which it denied the petition was plainly
an evidentiary hearing conducted pursuant to section 1172.6, subdivision (d).
9
victim and Williams, stating, “ ‘You don’t think I will kill you?’ ” Also, in
assessing whether defendant was in a position to facilitate or prevent the
murder, the court found the evidence supported “a reasonable inference that
the defendant was present at the scene from beginning to end,” as there was
“no evidence that the other has fled.” The court observed that defendant
“could have, at some point, put the gun away and says to drop us off for the
evening, and that would’ve ended this. But he pulls the gun out and keeps it
pointed at Mr. Williams’[s] neck saying, you know, ‘We’re gonna rob you’ or
jack you, and making comments ‘You don’t think I’ll kill you,’ I think that can
certainly facilitate the ultimate killing here.” Further, the court noted that
defendant did not render aid to Brown after he was shot.
In analyzing the Clark factors, the court found that, as the person who
supplied the gun, defendant would have been aware that a gun would be used
during the felony. Also, defendant’s statement, “You don’t think I’ll kill
you?,” was “highly probative evidence of knowing what particular dangers are
associated with the nature of the crime here, and clear understanding of the
dangerousness of the conduct that they’re engaging in.” The court further
found, “this was not a rash incident where something’s said and someone
pulls a gun out and shoots”; rather, “there was some level of planning and
direction here, and the gun was out at Mr. Williams’[s] neck while in the car
for, at least, some period of time here.” Additionally, because defendant had
control of the weapon for the majority of the interaction, the court noted that
“the defendant could have stopped this robbery by putting the gun away and
ask[ing] to be dropped off.” He did not. Thus, “there’s nothing to show that
the defendant actively tried to prevent or stop what would be the killing
here.” The court also noted that although at one point defendant told
Williams that he was not going to rob him, he did not get out of the car at
10
that point and end the interaction. Instead, he told Brown to drop them off
around the corner. The court found it “noteworthy” that despite defendant’s
statements he would not rob them, Williams did not trust defendant and “had
significant concern about continuing to go around the corner; ultimately
causing him to flee the car.”
Based on all of the above, the court concluded the People proved beyond
a reasonable doubt that defendant was a major participant in the attempted
robbery who acted with reckless indifference to human life.
This appeal followed.
DISCUSSION
The Law
As noted above, the felony murder rule was amended by Senate Bill
1437 and currently provides, in section 189, subdivision (e), three theories of
liability. We are only concerned with the third theory: “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.”
(§ 189, subd. (e)(3).) Through Senate Bill 1437, the Legislature imported the
major participant and reckless indifference standards from section 190.2,
subdivision (e), which governs the felony-murder special circumstance.
(People v. Emanuel (2025) 17 Cal.5th 867, 881 (Emanuel).) “Section 190.2,
subdivision (d), by its text, 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.)
In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, the
California Supreme Court “endeavored to elucidate the contours of the major
participant and reckless indifference standards” (Emanuel, supra, 17 Cal.5th
at p. 882): “Banks elucidated what it means to be a major participant and, to
11
a lesser extent, what it means to act with reckless indifference to human life,
while Clark further refined the reckless indifference inquiry.” (Strong, supra,
13 Cal.5th at pp. 706–707.)
In Banks, our Supreme Court identified a list of nonexclusive factors to
consider in determining whether a defendant acted as a major participant in
the underlying felony. (Banks, supra, 61 Cal.4th at p. 803.) These factors
are: “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?” (Ibid.,
fn. omitted.) “No one of these considerations is necessary, nor is any one of
them necessarily sufficient.” (Ibid.)
As for the reckless indifference component, our Supreme Court has
explained, “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.) Reckless indifference to human life
encompasses both subjective and objective elements. (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.’ [Citations.] As to the objective element, ‘ “[t]he risk [of
death] must be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to him [or her],
12
its disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor’s situation. ” ’ ” (Ibid.)
“[A]s in Banks, [Clark] set out a nonexhaustive list of considerations
relevant to this determination, including use of or awareness of the presence
of a weapon or weapons, physical presence at the scene and opportunity to
restrain confederates or aid victims, the duration of the crime, knowledge of
any threat the confederates might represent, and efforts taken to minimize
risks. [Citation.] Because the major participant and reckless indifference
elements often ‘ “significantly overlap” ’ [citation], this list of factors also
overlapped with those [the Supreme Court] had identified in connection with
the major participation inquiry in Banks.” (Strong, supra, 13 Cal.5th at p.
694, citing Clark, supra, 63 Cal.4th at pp. 618–623.) Like the Banks factors,
“ ‘[n]o one of these considerations is necessary, nor is any one of them
necessarily sufficient.’ ” (Clark, at p. 618.)
“ ‘It is undisputed that when Senate Bill 1437 amended Penal Code
section 189 to incorporate major participation and reckless indifference
requirements, it codified the understanding of those requirements elucidated
in Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.) “We are therefore
guided in this case by [the] pronouncements in Banks and Clark . . . .”
(Emanuel, supra, 17 Cal.5th at p. 883.)
Standard of Review
We review for substantial evidence the trial court’s factual findings in
its ruling on the resentencing petition. (See People v. Underwood (2024)
99 Cal.App.5th 303, 313–314.) Under the substantial evidence standard,
“[w]e ‘ “examine the entire record in the light most favorable to the judgment
to determine whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value that would support a rational trier
13
of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ”
(People v. Clements (2022) 75 Cal.App.5th 276, 298.) We presume in support
of the judgment or order the existence of every fact the trier of fact could
reasonably infer from the evidence. (People v. Edwards (2013) 57 Cal.4th
658, 715.) We do not resolve credibility issues or evidentiary conflicts.
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.” (Id. at p. 358.)
To the extent our review calls for statutory interpretation, that is a
question of law we review de novo. (People v. Morris (2026) 19 Cal.5th 671,
682 (Morris).)
The Trial Court Properly Denied Defendant’s Petition
In his opening brief, defendant asserts two main arguments, the first of
which is asserted in the following heading: “There Was Insufficient Evidence
to Find Beyond a Reasonable Doubt That [He] Was Guilty of First Degree
Felony Murder Under Penal Code Section 189, Subdivision (e)(3).” According
to defendant, “The evidence did not establish any causal connection between
the attempted robbery of Omri Williams and the death of Everett Brown.”
Defendant appears to develop this argument in his reply brief, exemplified by
the following: “the validity of [the trial court’s] finding required proof beyond
a reasonable doubt that the attempted robbery and the subsequent shooting
of Brown were a continuous transaction.” And this: “It bears emphasis that
the dispositive question is not whether [he] was a major participant in an
attempted robbery who committed that earlier crime with reckless
indifference to human life. The dispositive question is whether the attempted
robbery and the subsequent fatal shooting were a continuous transaction.
14
[Citation.] A participant in attempted robbery is not guilty of felony-murder
unless the felony and the homicide constitute a single, unbroken sequence of
events. The evidence in this case did not prove beyond a reasonable doubt
that they were.” He argues that “the evidence shows that the attempted
robbery had ended by the time Williams left the car.” We reject this
argument for several reasons.
In the first place, defendant did not raise any argument concerning the
purported lack of a “continuous transaction” between the attempted robbery
and the killing in the underlying section 1172.6 proceedings. As such, the
argument is forfeited. (See People v. Mitchell (2012) 209 Cal.App.4th 1364,
1370 [“a defendant’s failure to present an issue to the trial court’s generally
forfeits it on appeal”].)
Even if not forfeited, defendant fails to show how his argument falls
within the scope of a section 1172.6 inquiry. Section 1172.6 is limited to
providing relief only to a defendant who could no longer “be convicted of
murder . . . . because of changes to sections 188 and 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(3), italics added.) The “because of”
language of section 1172.6, subdivision (a)(3) requires “that the changes in
murder liability arising from Senate Bill 1437 be a basis for the claim” for
relief, though those changes need not “be the sole basis.” (People v. Lopez
(2026) 19 Cal.5th 639, 663, citing Strong, supra, 13 Cal.5th at p. 712.) “The
mere filing of a section [1172.6] petition does not afford the petitioner a new
opportunity to raise claims of trial error or attack the sufficiency of the
evidence supporting the jury’s findings” when the claims are not based at all
on the changes made by Senate Bill 1437. (People v. Farfan (2021)
71 Cal.App.5th 942, 947; accord, Strong, supra, 13 Cal.5th at p. 715 [§ 1172.6
does not “permit wholesale relitigation of findings supporting murder
15
convictions” in resentencing proceedings].)
Consistent with the applicable law at the time, at defendant’s trial the
court instructed the jury that “[i]n order for the People to prove that the
defendant is guilty of murder under a theory of felony murder, the People
must prove that the attempted robbery and the act causing the death were
part of one continuous transaction.” (Former CALCRIM No. 549; see People
v. Wilkins (2013) 56 Cal.4th 333, 340 [“ ‘Under the felony-murder
rule, . . . what is required is proof beyond a reasonable doubt that the felony
and murder were part of one continuous transaction.’ ”].) This was repeated
to the jury in other instructions. (Former CALCRIM Nos. 540A and 540B.)
Ultimately, the jury found defendant guilty of first degree felony murder.
This verdict implies the jury found that the attempted robbery and the act
causing death were part of one continuous transaction.
Here, defendant seeks to relitigate that factual determination already
made by the jury. But he does not explain how the existence of a continuous
transaction is made relevant by the changes to sections 188 and 189 made by
Senate Bill 1437. In short, defendant’s sufficiency of the evidence claim falls
outside the scope of a section 1172.6 inquiry.
In any event, the argument fails. In arguing the evidence was
insufficient to establish the attempted robbery and killing were part of one
continuous transaction, defendant relies on the evidence that during the
course of the attempted robbery, Williams brought up the name of a shared
acquaintance in an apparent attempt to diffuse the situation, after which
defendant said, “I’m not going to rob you,” before then instructing Brown to
drop off both him and Cooper around the corner. According to defendant, his
“words meant he abandoned any attempt to commit robbery, and that that
felony ended before the subsequent events that resulted in the fatal
16
shooting.” However, the jury could reasonably draw a contrary inference
from the evidence, and its guilty verdict implies that it did. As Williams
testified, he did not trust defendant and there were reasons not to under the
circumstances. Williams said he did not trust defendant because defendant
had just pulled out a gun on him and tried to rob him; it was late at night;
and he “knew the area” that defendant wanted to be taken to. Williams did
not trust defendant to the point he urged Brown not to drop defendant and
Cooper off, insisted that they instead get out of the car together and just
leave the car with the two men, and jumped out of the car while it was still
moving when Brown decided to heed defendant’s instructions. Viewing the
evidence in the light most favorable to the trial court’s ruling, and resolving
all conflicts and drawing all inferences in favor of that ruling, there was
substantial evidence from which to conclude that the attempted robbery had
not ended when defendant said, “I’m not going to rob you.”
Further, as the Attorney General asserts, the evidence supports a
reasonable inference that defendant had not reached a temporary place of
safety by the time Brown was killed. (See People v. Debose (2014) 59 Cal.4th
177, 205 [“the commission of a robbery [or attempted robbery] is ongoing
‘ “until the robber has won his way to a place of temporary safety.” ’
[Citation.] . . . [A]s long as a robber holds the victim captive, the robber’s
safety is ‘continuously in jeopardy’ during the period of captivity if at ‘any
unguarded moment, the victim might . . . escape or signal for help.’ ”]; People
v. Johnson (1992) 5 Cal.App.4th 552, 559 [“When the robber is still in flight,
he or she has not yet achieved a place of temporary safety”]; see also People v.
Haynes (1998) 61 Cal.App.4th 1282, 1292 [“ ‘Where . . . the robber is content
to remain at the scene and the infliction of great bodily injury is close to the
robbery in terms of time or distance, the robbery is not ‘over’ ”].) In this case,
17
when Williams last saw Brown alive, Brown was driving his car with
defendant and Cooper in the backseats, evidently following defendant’s order
to drop him and Cooper off around the corner. Williams saw Brown make a
right on Taper Street. Minutes later, Williams discovered Brown’s body near
the intersection of Taper and Janice streets. The 911 caller reported that
shots were fired in that area and that the decedent had been pushed out of
the car. There was no indication that defendant had fled or disposed of the
gun before Brown was killed. Additionally, defendant’s cell phone records
placed him in the vicinity of the scene of the shooting near the time that
police received the 911 call. Given the totality of these circumstances, the
jury could reasonably infer that Brown was with defendant and Cooper, and
remained under the control of one or both of them, at the time he was shot;
that defendant thus had not reached a temporary place of safety by the time
Brown was killed; and that therefore the attempted robbery and lethal
shooting were all part of one continuous transaction.
We turn to defendant’s second argument, which is that “section 189,
subdivision (e)(3) should be construed to require proof that a defendant
alleged to be an aider and abettor of first degree felony murder assisted the
actual killer in the homicide itself. And in this case there was no such proof.”
This argument, too, was not raised in the trial court, as defendant
acknowledges. Thus, it is forfeited. (See People v. Mitchell, supra,
209 Cal.App.4th at p. 1370.) Forfeiture aside, defendant’s argument lacks
merit.
At the time defendant filed his opening brief, and the Attorney General
filed the respondent’s brief, there was a split among the Courts of Appeal on
whether section 189, subdivision (e)(2) requires proof that a person who is not
the actual killer aided or abetted the actual killer in the lethal act itself, and
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not just the underlying felony. (See Morris, supra, 19 Cal.5th at p. 681
[discussing cases].) As defendant notes in his reply brief, the Supreme Court
in Morris, supra, 19 Cal.5th 671, recently resolved that split, holding that
“the statutory language . . . mean[s] just what is says: the phrase
‘aided . . . or assisted the actual killer in the commission of murder in the
first degree’ [citation], requires proof the defendant aided or abetted the
actual killer in the lethal act itself, and not just the underlying felony.”
(Morris, at pp. 678, 686, 693.) Citing Morris, defendant argues that like
section 189, subdivision (e)(2), section 189, subdivision (e)(3) should be
interpreted to also “limit[ ] liability for felony-murder to defendants who
aided and abetted the fatal act, and that absent proof that a non-killer
defendant did that, he is not guilty of felony-murder simply because he was a
major participant who acted with reckless disregard for human life in
committing an underlying, non-homicidal felony.” We disagree. The plain
language of section 189, subdivision (e)(3), when viewed in context, easily
refutes defendant’s argument.
“ ‘ “ ‘ “ ‘ “As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] We begin by examining the statute’s
words, giving them a plain and commonsense meaning.” ’ ” ’ ” ’ . . . “ ‘ “We
must harmonize “the various parts of a statutory enactment . . . . by
considering the particular clause or section in the context of the statutory
framework as a whole.” ’ ” ’ [Citation.] ‘ “ ‘If the language is clear, courts
must generally follow its plain meaning . . . .’ ” ’ ” (Morris, supra, 19 Cal.5th
at pp. 682, 695.)
As noted above, the relevant statutory language states: “The person
was a major participant in the underlying felony and acted with reckless
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indifference to human life . . . .” (§ 189, subd. (e)(3), italics added.) The
person being “a major participant in the underlying felony” means just that.
The commonsense meaning is that the person must be a major participant in
the underlying felony, not necessarily the lethal act.
This interpretation is reinforced by a reading of section 189,
subdivision (e)(3) in context with the remainder of subdivision (e), in
particular subdivision (e)(2) concerning aiding and abetting. As noted,
section 189, subdivision (e)(2) states in relevant part: “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.” (Italics added.) As defendant
acknowledges, this language is in contrast with subdivision (e)(3), which
specifies the actus reus is “the underlying felony.” And as Morris explains:
“The fact that the Legislature used the phrase ‘underlying felony’ elsewhere
in section 189, but did not do so in subdivision (e)(2), shows that the
Legislature knows how to use the term ‘underlying felony’ in section 189
when that is the intent. Subdivision (e)(3) provides for felony-murder
liability when the defendant ‘was a major participant in the underlying
felony and acted with reckless indifference to human life.’ (§ 189, subd. (e)(3);
see also id., subd. (e) [‘a felony’].) Thus, the actus reus in subdivision (e)(3)
clearly specifies the ‘underlying felony,’ while the language in subdivision
(e)(2) merely refers to aiding or abetting ‘the commission of murder in the
first degree.’ The use of different phrases signals the Legislature intended to
define different acts necessary to prove guilt under each theory. [Citations.]
Looking at section 189, subdivision (e) in its entirety, “it is clear the
Legislature intended to draw a distinction between assisting first degree
murder and assisting the underlying felony.” ’ ” (Morris, at pp. 683–684, fn.
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omitted.)
Accordingly, we conclude that with respect to the actus reus, section
189, subdivision (e)(3) does not require that the defendant be a major
participant in the lethal act itself, but rather in the underlying felony.
Essentially, defendant’s arguments ask us to depart from the standard
for determining liability under section 189, subdivision (e) that has been set
forth in Banks and Clark and cases interpreting them. Indeed, nowhere in
his briefing does he attempt to analyze the Banks and Clark factors, much
less argue that the trial court’s analysis of those factors was incorrect or
unsupported by the evidence. Thus, not only has defendant forfeited any
claim that the court’s analysis of the Banks and Clark was erroneous (see
Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295; Doe v. California Dept. of
Justice (2009) 173 Cal.App.4th 1095, 1115), but he also has effectively
conceded the correctness of that analysis. (See Westside Center Associates v.
Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party “effectively
concedes” issue by failing to address it in brief]; Glendale Redevelopment
Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [parties “impliedly
concede” an issue by failing to address it].)4
In any event, we have independently reviewed the record and conclude
that substantial evidence supports the trial court’s analysis of the Banks and
Clark factors and its ultimate conclusion that the People proved beyond a
reasonable doubt that defendant was a major participant in the attempted
robbery who acted with reckless indifference to human life.
In sum and in short, the trial court properly denied defendant’s petition
4 Indeed, in a footnote in his reply brief, defendant concedes the People’s
assertion that substantial evidence supported a finding that he was a major
participant in the attempted robbery.
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for resentencing under section 1172.6.
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
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RICHMAN, J.
We concur.
STEWART, P. J.
DESAUTELS, J.
(A173450N)
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