Filed 9/30/26 P. v. Lopez-Castillo CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A171789
v.
JUAN RAMON LOPEZ-CASTILLO, (Sonoma County
Super. Ct. No. SCR6089832)
Defendant and Appellant.
Juan Ramon Lopez-Castillo pleaded no contest to first degree murder
in connection with the murder of Jose Manuel de Jesus. He sought
resentencing pursuant to Penal Code section 1172.61 and now appeals the
denial of his petition. We affirm.
1 All further statutory references are to the Penal Code.
1
BACKGROUND
I.
Procedural Background
Lopez-Castillo and codefendants Fernando Lopez-Castillo (Fernando),2
Alberto Lopez-Barraza and Jose Carraballo-Mejias (Mejias)3 were charged
with murder (§ 187, subd. (a)), conspiracy to commit robbery (§§ 182,
subd. (a)(1), 211) and robbery (§ 211), with allegations including that the
murder was committed while the three codefendants were engaged in the
commission of a robbery (§ 190.2, subd. (a)(17)), that Fernando personally
used and discharged a firearm (§ 12022.53, subds. (b), (c) & (d)) and that a
principal was armed with a firearm (§ 12022, subd. (a)(1).) Lopez-Castillo
pleaded no contest to first degree murder and was sentenced to a prison term
of 25 years to life.
On January 4, 2019, Lopez-Castillo filed a petition for resentencing
pursuant to section 1172.6.4 The court issued an order to show cause on
October 5, 2020 and held an evidentiary hearing on July 26 and 31, 2024.
The court filed its order denying the petition on September 20, 2024.
Lopez-Castillo filed a timely notice of appeal on October 21, 2024.
2 Fernando is Lopez-Castillo’s brother. We refer to him by first name
in the interest of clarity and mean no disrespect by doing so.
3 Carraballo-Mejias was generally referred to as Mejias in the trial
court proceedings and we continue to refer to him by this name.
4 At the time, the governing statute was numbered section 1170.95. It
was amended in 2021 in ways that do not affect the issues here and
renumbered section 1172.6 in 2022. (Stats. 2021, ch. 551, § 2; Stats. 2022,
ch. 58, § 10; People v. Emanuel (2025) 17 Cal.5th 867, 880, fn. 4 (Emanuel).)
We refer to the current statute number for clarity.
2
B.
Factual Background5
According to the preliminary hearing testimony of Elias Alfaro, in
October 2011, he arranged for the victim, Jose Manuel de Jesus, to meet
Lopez-Castillo because de Jesus wanted to sell marijuana and Alfaro had
heard that Lopez-Castillo wanted to buy it. Alfaro and Lopez-Castillo had
worked together at a meat market and were friends.
Alfaro spoke with Lopez-Castillo and arranged a meeting at the
Starbuck’s in Santa Rosa. Alfaro and de Jesus met Lopez-Castillo, who was
with Mejias. De Jesus stated a price of $1200-1300 per pound, Mejias asked
if he could get a larger quantity and de Jesus said he would find out. They
arranged to speak on the phone to set a time to meet for the sale.
After the Starbuck’s meeting, de Jesus told Alfaro to tell Lopez-Castillo
he could get the marijuana but Lopez-Castillo said they were going to stay
with the original amount. Alfaro called Lopez-Castillo after de Jesus tried to
call to arrange the meeting and Lopez-Castillo did not answer. De Jesus had
wanted to meet near his home, but Lopez-Castillo wanted to meet at the
meat market and de Jesus agreed. Lopez-Castillo told Alfaro he wanted to
meet at the meat market because “it could be a quiet place.”
On the afternoon of October 6, 2011, Sergeant Carlos Basurto
responded to a reported shooting at the meat market, where he found de
Jesus, deceased, in the trunk of a car parked “towards the end of the parking
lot near a tree.” The trunk was open and de Jesus was on his back, his head
and arms inside the trunk, his legs hanging over the edge of the trunk and a
5 The evidence at the hearing consisted of the transcripts of the
preliminary hearing and Lopez-Castillo’s police interviews, testimony of
Sergeant Carlos Basurto, telephone records for the various individuals
involved in the events and the charging and plea documents.
3
gunshot wound to his head. There was a cell phone on the ground near the
trunk area of the car. According to one of the other officers at the scene, the
area of parking lot where the car was parked was not visible from inside the
market.
Two days later, Lopez-Castillo and Lopez-Barraza, Lopez-Castillo’s
cousin, were arrested together at a motel in San Mateo. Fernando and
Mejias were arrested subsequently.
Basurto testified that he began Lopez-Castillo’s interview by asking if
what happened was an accident or “done because they were monsters, so to
speak” and Lopez-Castillo said it was “[r]eally bad.” Lopez-Castillo told
Basurto that Alfaro introduced him to de Jesus, the three of them and Mejias
met at the Starbucks and they agreed to meet the next day for him to
purchase 20 pounds of marijuana.6 Lopez-Castillo said that although he told
de Jesus he was going to purchase the marijuana, in reality he and the others
planned to “just take it from him” and split the proceeds. He admitted the
plan was his idea. He told Basurto they first planned to do the exchange at
de Jesus’s house but on reflection Lopez-Castillo thought there might be
women or children there and decided it would be better to do it at the meat
market.
Lopez-Castillo drove to the meat market with Fernando, Mejias and
Lopez-Barraza. They arrived at the meat market ahead of de Jesus and
backed the car in so they could leave quickly. Lopez-Castillo directed Lopez-
Barraza and Fernando to hide behind the market so they could surprise de
Jesus, in case de Jesus did not come alone. He said they planned to use their
weapons to scare the victim. De Jesus arrived, backed his car in next to
6Lopez-Castillo told Basurto that the amount they actually got was
10 pounds.
4
theirs and parked. Lopez-Castillo was surprised de Jesus had come alone
and now thought it would be easy to take the marijuana from him.
Lopez-Castillo, Mejias and de Jesus got out of their cars and went to
trunk of de Jesus’s, in which Lopez-Castillo saw cardboard boxes. Lopez-
Castillo saw Fernando and Lopez-Barraza running toward them “fast like
hell” from behind the market. Fernando was either holding the gun as they
emerged or drew it as he approached the victim. Lopez-Castillo tried to stop
them because there was no longer a need to scare de Jesus. Fernando did not
notice Lopez-Castillo’s “attempts to be waved off.” Fernando grabbed de
Jesus, de Jesus grabbed at the gun, the gun went off and Fernando began
yelling, “ ‘I killed him.’ ” The group loaded the boxes of marijuana in the car
and fled. Lopez-Castillo said Fernando threw the gun and cell phones out the
window as they fled.7
Lopez-Castillo told Basurto he felt guilty about what happened. He
said he knew Fernando had a gun with him, in his waistband at his back, and
knew that Fernando always kept it loaded and this was dangerous. He told
Basurto the gun belonged to Fernando but at one point said the gun was
“ours.” Lopez-Castillo knew a gun could go off “whether you’re using it to hit
someone or otherwise” but they did not take any precautions. He said that
“when someone has you with a gun, you have to surrender.” He told Basurto
he had engaged in two prior marijuana robberies; to Basurto’s knowledge
these did not involve violence and Lopez-Castillo told Basurto he did not use
a gun.
7 At the preliminary hearing, Basurto testified that Lopez-Castillo also
said they also threw the marijuana out the window. At the section 1172.6
hearing Basurto did not remember Lopez-Castillo referring to marijuana. No
marijuana was found.
5
Fernando told the police in his interview that he did not want to shoot
de Jesus; the gun went off when he tried to pull his arm back after de Jesus
grabbed it. After the shot, he and the others immediately loaded the last box
of marijuana, got into the car and left. He said all of the participants had
guns and Mejias “ ‘was the one who issued the guns out,’ ” then later said
only three guns were used. Fernando said he had committed robberies of
marijuana with Lopez-Castillo twice before but had never had to “hit
anybody.” He showed the officers the approximate locations where the guns
were discarded. In that area, about two miles from the meat market, officers
recovered two cell phones, a bullet and two guns in overgrown vegetation
about a foot from the roadway.
DISCUSSION
Lopez-Castillo pleaded no contest to first degree murder prior to 2018
legislative changes that “significantly narrowed the scope of the felony-
murder rule” and “created a path to relief for defendants who had previously
been convicted of murder on a felony-murder theory but who could not have
been convicted under the new law.” (People v. Strong (2022) 13 Cal.5th 698,
703.) Resentencing is available to such defendants if the defendant was not
the actual killer; did not, acting with intent to kill, aid and abet the actual
killer in committing first degree murder; and was not a major participant in
the underlying felony acting with reckless indifference to human life as
described in section 190.2. (§ 189, subd. (e)(1)–(3); see § 1172.6.) The murder
here occurred in the course of a robbery, Lopez-Castillo was not the actual
killer and he does not dispute the trial court’s finding that he was a major
participant. The only issue is whether substantial evidence supports the trial
court’s finding that he acted with reckless indifference to human life.
6
A. Governing Principles
“ ‘[R]eckless 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, quoting Tison [v. Arizona (1987)]
481 U.S. [137], 157.)” (Emanuel, supra, 17 Cal.5th at p. 883.) It
“ ‘encompasses a willingness to kill (or to assist another in killing) to achieve
a distinct aim, even if the defendant does not specifically desire that death as
the outcome of his actions.” (Ibid., quoting People v. Clark (2016) 63 Cal.4th
522, 617 (Clark).) “ ‘ “Awareness of no more than the foreseeable risk of
death inherent in any [violent felony] is insufficient” to establish reckless
indifference to human life; “only knowingly creating a ‘grave risk of death’ ”
satisfies the statutory requirement.’ (Scoggins, at p. 677 quoting [People
v. ]Banks [(2015) 61 Cal.4th 788,] 808.)” (Emanuel, at p. 884.)
“[R]eckless indifference encompasses both subjective and objective
elements. [Citations.] ‘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], its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in the
actor’s situation.’ ” ’ ” (Emanuel, supra, 17 Cal.5th at p. 884.)
The California Supreme Court has identified a number of
considerations to “guide the ‘fact-intensive, individualized inquiry’ into where
a defendant’s conduct falls on the spectrum of culpability.” (Emanuel, supra,
17 Cal.5th at p. 883, quoting People v. Scoggins, supra, 9 Cal.4th at p. 683
7
(Scoggins).)8 With respect to reckless indifference, Clark “ ‘set out a
nonexhaustive list of considerations . . . , 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.’ ” (People v. Strong, supra, 13 Cal.5th at p. 706, citing
Clark, supra, 63 Cal.4th at pp. 618–623.)9 “ ‘ “[N]o one of these
8 As Emanuel explained, the parameters articulated by the California
Supreme Court to guide this inquiry derive from two decisions of the United
States Supreme Court that address the constitutional limits of capital
punishment for accomplices to felony murder and “ ‘collectively place conduct
on a spectrum’ of culpability, ‘with felony-murder participants eligible for
death only when their involvement is substantial and they demonstrate a
reckless indifference to the grave risk of death created by their actions.’ ”
(Emanuel, supra, 17 Cal.5th at p. 882; see People v. Banks, supra, 61 Cal.4th
at p. 807 (major participant) (Banks); Clark, supra, 63 Cal.4th 522 (reckless
indifference].) Enmund v. Florida (1982) 458 U.S. 782 held that “a minor
participant in an armed robbery (the getaway driver), who neither intended
to kill nor had any other culpable mental state, was ineligible for the death
penalty.” (Emanuel, at p. 882; Enmund, at pp. 799, 801.) Tison v. Arizona,
supra, 481 U.S 137 (Tison) found sufficient culpability for death penalty
eligibility—major participation in the felony combined with reckless
indifference to human life—where the defendants “broke two convicted
murderers out of prison, armed the escaped prisoners, captured and then
held a family of passing motorists at gunpoint while the escapees deliberated
whether to kill them, and then abandoned the victims in the remote desert
after the escapees shot them.” (Emanuel, at p. 882; Tison, at pp. 139-141,
158.) While Enmund and Tison “mark opposite ends of the spectrum [of
culpability] for ‘nonkiller felony murders,’ Enmund’s actions do not represent
‘the outer limit of conduct immune from death eligibility,’ any more than the
Tisons’ actions represent ‘the constitutional minimum level of culpability for
death eligibility.’ ” (Emanuel, at pp. 882-883, quoting Banks, at p. 811.)
9 As Clark noted, the factors relevant to whether a defendant acted
with reckless indifference to human life “ ‘significantly overlap’ ” with those
for being a major participant. (Clark, supra, 63 Cal.4th at pp. 614-615.)
Banks identified the latter as including the defendant’s role in “planning the
8
considerations is necessary, nor is any one of them necessarily sufficient.” ’
(Clark, at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.) The ‘totality of
the circumstances’ must be analyzed to determine whether the defendant
acted with reckless indifference. (Scoggins, supra, 9 Cal.5th at p. 677.)”
(Emanuel, at p. 885.)
We review the trial court’s denial of the petition 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—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of
fact” ’ ” ’ could find beyond a reasonable doubt that Emanuel acted with
reckless indifference.” (Ibid., quoting People v. Reyes (2023) 14 Cal.5th 981,
988.) “We must accept factual inferences in favor of the trial court’s ruling.”
(People v. Mitchell (2022) 81 Cal.App.5th 575, 591; see People v. Brooks (2017)
3 Cal.5th 1, 57.)
“ ‘Our job on review is different from the trial judge’s job in deciding the
petition. While the trial judge must review all the relevant evidence, evaluate
and resolve contradictions, and make determinations as to credibility, all
under the reasonable doubt standard, our job is to determine whether there
is any substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.’ ” (People v. Davis
criminal enterprise” and in “supplying or using lethal weapons”; the
defendant’s awareness of “particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other participants”;
the defendant’s presence at the scene of the killing, opportunity to “facilitate
or prevent the actual murder,” whether the defendant’s “own actions or
inaction play[ed] a particular role in the death”; and the defendant’s actions
“after lethal force was used.” (Banks, supra, 61 Cal.4th at p. 803.)
9
(2024) 107 Cal.App.5th 500, 509.) “ ‘A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the [fact finder]’s verdict.’ ” (Id.
at p. 510, quoting People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Analysis
Analyzing the Clark factors, the trial court first found Lopez-Castillo
knew Fernando was armed with a loaded gun and the evidence indicated
Lopez-Castillo was also armed, as Fernando told the police that others in the
group were armed and “it is reasonable to conclude that [Lopez-Castillo]
would have been armed with a gun since the plan was for [Lopez-Castillo] to
confront and rob the victim. Since [Lopez-Castillo] would not have known
whether the victim himself was armed with a weapon, it is reasonable to
conclude that [Lopez-Castillo] had a firearm for purposes of effectuating the
robbery. This was a planned robbery.” Second, Lopez-Castillo was present at
the scene and played a “substantial role in the execution of the robbery.” The
court found that although Lopez-Castillo knew the dangerousness of an
armed robbery, he never told Fernando to leave the gun in the car or use an
unloaded gun, and there was significant time for Lopez-Castillo to “reconsider
a plan that included Fernando possessing a loaded gun.” Once de Jesus was
shot, Lopez-Castillo left the scene with the group, made no efforts to render
or summon aid or confirm whether de Jesus was still alive. Third, the court
found the duration of the robbery was not prolonged once de Jesus arrived.
Fourth, Lopez-Castillo “knew that Fernando was a regular user of
methamphetamine who had a loaded gun with chambered bullet” and “[a]t
minimum, [Lopez-Castillo] would have known that Fernando posed a
heightened risk of acting erratically and using lethal violence.” Finally,
Lopez-Castillo was the “mastermind and director of the planned robbery,”
10
“made no effort to discourage anyone else from having a loaded firearm” and
“came up with the plan of having Fernando and Lopez-Barraza hid[e] behind
the building to emerge if needed, which heightened the risk of violence
occurring.”
Lopez-Castillo contends the evidence is insufficient to support the trial
court’s findings. He relies primarily on Emanuel, supra, 17 Cal.5th 867. As
here, Emanuel involved a fatal shooting during a daytime robbery of a
marijuana dealer. (Id. at pp. 877-879.) Emanuel and his codefendant
Whitley met the victim at a park after arranging to purchase marijuana from
him. (Id. at pp. 875-876.) When the victim resisted giving up the marijuana,
Emanuel told Whitley, “ ‘let’s go’ ” and began to walk away, but Whitley hit
the victim in the head with a gun. (Id. at pp. 878-879.) The victim started
fighting back and Whitley pointed the gun at him. (Id. at p. 879.) According
to Whitley, he aimed “ ‘down’ ” but the victim hit Whitley’s hand, the gun
“ ‘went up,’ ” and Whitley pulled the trigger, shooting the victim in the neck.
(Ibid.)
Emanuel found the evidence insufficient to establish reckless
indifference to human life. After discussing each of the Clark factors,
Emanuel summarized the totality of the circumstances: “[T]he evidence
shows Emanuel set out to commit a robbery in a public place in the middle of
the afternoon. He was not armed, and the trial court found he did not know
Whitley was armed or likely to use lethal force. Accordingly, there was
nothing in the plan that ‘elevated the risk to human life beyond those risks
inherent in any armed robbery,’ much less a planned unarmed robbery.
(Clark, supra, 63 Cal.4th at p. 623.) The crime unfolded without a prolonged
period of restraint. When met with unexpected resistance, Emanuel told
Whitley, ‘let’s go,’ and began to walk away. This tends to show that Emanuel
11
was unwilling to engage in further violence to accomplish the aims of the
robbery. Whitley, on the other hand, pulled out a gun, hit Sonenberg with it,
and fatally shot him in the neck.” (Emanuel, supra, 17 Cal.5th at pp. 895-
896.)
Lopez-Castillo maintains Emanuel is “undistinguishable . . . in any
meaningful way” from the present case. We do not agree.
With respect to use or awareness of the presence of weapons and
knowledge of coparticipants’ likelihood of killing, Emanuel did not use a
weapon and the trial court found there was no evidence he knew Whitley
would bring the gun or was likely to use lethal force. (Emanuel, supra,
17 Cal.5th at p. 885.) Here, Lopez-Castillo knew Fernando was armed with a
loaded firearm and the evidence supports the trial court’s finding that Lopez-
Castillo and the others were armed as well, consistent with Fernando’s
statement in his police interview.”10
10As indicated above, the trial court also relied on the fact that Lopez-
Castillo knew Fernando regularly used methamphetamine and therefore was
aware he would tend to act erratically or, at least, that he “posed a
heightened risk of acting erratically and using lethal violence.” Lopez-
Castillo argues the court’s conclusion went too far, as many people use
methamphetamine without committing murder and Lopez-Castillo knew
Fernando had not used violence in the robberies they had committed
previously. The People urge, without elaboration, that this factor supports
the court’s finding of reckless disregard.
Although the parties do not raise the point, it is not clear to us that
evidence of Fernando’s methamphetamine was presented at the
section 1172.6 hearing. The parties’ only citations to the record are to the
trial court’s findings and we see no reference to Lopez-Castillo’s awareness of
Fernando’s methamphetamine use, or even the fact of such use, in the
testimony at the preliminary hearing or at the section 1172.6 hearing. There
was testimony at the trial of Lopez-Barraza and Mejias that Fernando used
methamphetamine around the time of the murder, including on the day
before, which the People include in a summary of the trial evidence in their
motion to dismiss Lopez-Castillo’s section 1172.6 petition for lack of eligibility
12
As the trial court recognized, the duration of the crime was not
prolonged and therefore does not point toward reckless indifference. “A
lengthy interaction between perpetrators and victims of a felony may
increase the risk of resistance, conflict, and violence.” (Emanuel, supra,
17 Cal.5th at p. 886.) In Emanuel, the relatively brief duration of the
encounter with the victim, and the even briefer period of violent
confrontation, “did nothing to heighten the risk of violence beyond that
inherent in the robbery itself.” (Ibid.) Accordingly, Emanuel held the
duration of the crime was a “neutral” factor. (Ibid.) The same is true here.
As to efforts to minimize the risk of violence in commission of the
robbery, in Emanuel there was no evidence of a plan for an armed robbery or
that Emanuel knew Whitley had a propensity for violence; rather, Emanuel
planned to participate in a robbery in a public place during daylight hours, in
view of the park, passing vehicles and residences. (Emanuel, supra,
17 Cal.5th at p. 887.) The robbery here was also planned for a public place
during daylight hours, and Lopez-Castillo’s refusal to meet at de Jesus’s
home because women and children might be present supports an inference
that he was trying to minimize danger. The choice not to meet at de Jesus’s
home, however, also demonstrates Lopez-Castillo’s awareness that the
robbery posed a risk of violence, and this was the inference drawn by the trial
and the trial court also would have been aware of from presiding over the
trial. But Lopez-Castillo was not a defendant in that trial, having pleaded no
contest before it, and the trial testimony was not part of the evidence for his
section 1172.6 hearing. Lopez-Castillo does not question the fact of
Fernando’s methamphetamine use or his knowledge of it, only its significance
for the reckless disregard analysis. Nevertheless, we question whether it was
properly part of the analysis and we do not include it in ours.
13
court. The alternative location Lopez-Castillo chose was considerably less
public than the one in Emanuel: The group met “towards the end of the
parking lot near a tree,” in an area that was not visible from inside the
market. Unlike Emanuel, Lopez-Castillo and at least three if not all of his
companions were armed and Lopez-Castillo specifically knew Fernando’s
weapon was loaded. Lopez-Castillo claimed the guns were meant to be used
only to scare de Jesus and anyone he brought with him, but if Lopez-Castillo
had wanted to minimize the risk of actual violence by ensuring the weapons
were used only for this purpose, he could have urged Fernando and the others
to keep them unloaded.
In fact, Lopez-Castillo devised a plan and took action that increased the
risk involved in the robbery. The record supports the trial court’s findings
that Lopez-Castillo was the “mastermind and director of the planned
robbery,” he was fully aware that Fernando and others were armed and at
least Fernando’s firearm was loaded, he made no effort to discourage any of
the participants from having loaded firearm, and he conceived the plan for
Fernando and Lopez-Barraza to hide behind the market in order to surprise
de Jesus and help if needed, thus heightening the risk of violence by
purposefully including an element of surprise in the plan as a hedge against
difficulty effectuating the robbery. Lopez-Castillo’s anticipation of the
possibility de Jesus might bring other people with him is consistent with the
fact that the transaction involved a large quantity of marijuana. Whereas
Emanuel intended to purchase one pound of marijuana, Lopez-Castillo
expected to purchase 20 pounds (although in the end the amount was
10 pounds). As the trial court observed, given the value of such a large
quantity of drugs, it would be reasonable to expect the seller to respond with
force to an attempted robbery.
14
The next factor, presence at the scene and opportunity to restrain the
crime or aid the victim, also distinguishes the present case from Emanuel.
Emanuel “attempted to act as a restraining influence” by telling Whitley,
“let’s go” and starting to walk away. (Emanuel, supra, 17 Cal.5th at p. 891.)
And Lopez-Castillo argues he similarly tried to restrain the crime by
attempting to “wave [Fernando] off.” But while Emanuel, “[w]hen met with
resistance . . . abandoned the plan rather than resort to greater violence”
(ibid.), here there is no indication in the evidence that Lopez-Castillo tried to
distance himself from what was happening. On the contrary, immediately
after the shooting, he and the others took the marijuana and fled together,
Lopez-Castillo driving.
Emanuel rejected the lower court’s reasoning that Emanuel could have
done more to prevent the shooting, finding the evidence insufficient to
support a finding that his failure to intervene reflected intentional inaction
indicative of reckless indifference to human life because the shooting
occurred so quickly after Emanuel first became aware of the gun that he had
little opportunity to prevent it. (Emanuel, supra, 17 Cal.5th at p. 891.)
Emanuel explained, “We do not suggest that a rapidly unfolding crime may
never allow for a finding of reckless indifference to human life. But where a
crime unfolds quickly, this factor—the failure to restrain a cohort—cannot be
said to weigh in favor of a finding of reckless indifference without some
evidence in the record indicating that the defendant had a meaningful
opportunity to do so. [Citation.] This requires some awareness of the risk of
impending lethal violence and time to react.” (Id. at p. 892.)
Emanuel was unaware that Whitley even had a gun and thus caught
off guard by Whitley’s actions. (Emanuel, supra, 17 Cal.5th at p. 892.)
Lopez-Castillo, by contrast, orchestrated a plan in which Fernando, armed
15
with a loaded firearm, was waiting out of sight of the victim for the express
purpose of helping if anything went wrong with the robbery. Having devised
the circumstances creating the risk of exactly what happened, Lopez-Castillo
had reason to anticipate and be alert for the possibility he would need to act
quickly to avoid lethal consequences. As Emanuel emphasized, in
determining whether the defendant acted with reckless indifference to
human life, the focus is on “what his actions reveal about his mental state.”
(Id. at p. 891.) Lopez-Castillo saw Fernando running “fast like hell” toward
de Jesus, holding a gun, but did nothing more than attempt to “wave him off.”
Although the events unfolded quickly, Lopez-Castillo knew Fernando had not
noticed his wave and could have yelled or taken some other more obvious
action to catch Ferando’s attention.
Emanuel also rejected the lower courts’ reliance on Emanuel’s failure to
render aid to the victim after the shooting, finding it “difficult to infer his
frame of mind concerning [the victim’s] death” because, while it supported an
inference that Emanuel lacked regard for the victim’s welfare, it also
supported an inference that his motivation was to avoid arrest, especially
since the presence of other people nearby made it more likely the victim
would receive aid without Emanuel’s intervention. (Emanuel, supra,
17 Cal.5th at pp. 894, 896.) Here, too, there were people nearby, in the meat
market, who could come to de Jesus’s assistance upon hearing the gunshot.
In this case, however, the evidence that the group finished loading the
marijuana into their car before fleeing adds some weight to the inference that
Lopez-Castillo lacked concern for de Jesus’s welfare in that it suggests Lopez-
Castillo was determined to complete the robbery regardless of the
16
consequences.11 As the People note, Lopez-Castillo was the driver and
therefore in control of when to leave the scene. It is true that Lopez-Castillo’s
failure to provide aid after the shooting does not necessarily demonstrate
reckless disregard for de Jesus’s welfare beforehand, but the decision to finish
moving the marijuana before fleeing the scene tends to support the inference
that he acted with reckless disregard during the robbery rather than fleeing
only to avoid apprehension after the fact.
Lopez-Castillo cites several cases as further examples of courts finding
insufficient evidence to show reckless indifference where a shooting occurred
unexpectedly, even where the defendant was present at the scene and/or
11 Lopez-Castillo argues the record is unclear as to whether the
marijuana was moved after the shooting, pointing to Basurto’s testimony at
the preliminary hearing that Lopez-Castillo told him only that the group
“had taken” the marijuana before leaving, and that Lopez-Barraza said he
started moving the boxes before the shooting and afterward the group got
into the car and drove off. Neither of the statements Lopez-Castillo relies on
is inconsistent with Basurto’s express testimony that both Lopez-Castillo and
Fernando said marijuana was moved after the shooting.
As to Lopez-Castillo’s statement, the substance of Basurto’s testimony
came from the question he was asked, which was ambiguous as to timing.
Basurto was asked, “did he tell you whether they had taken the marijuana
before they left” and Basurto answered, “Yes, they did.” The testimony at the
section 1172.6 hearing expressly addressed the timing: Basurto was asked
whether Lopez-Castillo told him “what they did after the shooting” and
responded, “Yes. They loaded the boxes of marijuana in the car, and they
fled, and they drove back to the East Bay, I believe.”
Lopez-Barraza gave Basurto two versions of the events, at first not
mentioning that he and Fernando hid behind the market. In both versions,
he said he heard the gunshot as he was taking the first box from de Jesus’s
car to Lopez-Castillo’s. Both versions supported an inference that some of the
marijuana was moved after the shooting because there were multiple boxes
in de Jesus’s car, Lopez-Barraza said he was moving the first box when he
heard the shot and no marijuana was found at the scene.
17
knew their codefendants were armed. (In re Taylor (2019) 34 Cal.App.5th
543, 557, 559 [plan to quickly grab money from lone employee late at night
after store closed reduced risk of violence; defendant unarmed and
inconclusive evidence of knowledge shooter had gun, getaway driver, never
left car, did not see interaction with victim, was unaware of likelihood of
resistance and need to respond with lethal force, had no opportunity to
prevent shooting, knew help arriving when he left scene]; In re Miller (2017)
14 Cal.App.5th 960, 964-965, 976–977 [defendant involved in planning,
identified victim for confederates to follow and rob but did not know gun
would be used, was not at scene, did not see shooting or have reason to know
it would happen, had no opportunity to stop it or render assistance]; In re
Ramirez (2019) 32 Cal.App.5th 384, 390-391, 404-405 [defendant agreed to
“ ‘ “go jacking” ’ ” with companions he knew were armed and facilitated
getaway after shooting but waited across street during confrontation, not
close enough to restrain crime, no evidence killing was planned or
contemplated, defendant only followed others’ directions]; In re Bennett
(2018) 26 Cal.App.5th 1002, 1023-1024 [defendant instrumental in plan to
rob drug dealer under guise of purchasing two ounces of cocaine, contacted
dealer to summon him to meeting, knew confederates were armed, facilitated
getaway, failed to render aid, but no plan to use violence, defendant not
present when shots fired, not close enough to prevent shooting]; In re Moore
(2021) 68 Cal.App.5th 434, 452 [defendant participated in car theft in
shopping center parking lot, then remained in car when codefendant got out,
robbed victim and shot him without provocation, fled with codefendants
afterward but not close enough to prevent shooting, others with victim to
provide aid, public location reduced risk of lethal violence, defendant’s youth
reduced culpability].)
18
These cases involve “garden-variety” armed robberies in which “nothing
in the plan . . . elevated the risk to human life beyond those risks inherent in
any armed robbery” (Clark, supra, 63 Cal.4th at p. 623) and the defendants
did not have reason to” “anticipate the potential for loss of human life beyond
that which usually accompanies an armed robbery” or do anything “on the
ground” to “ ‘elevate[] the risk to human life beyond those risks inherent in
any armed robbery.’ ” (In re Bennett, supra, 26 Cal.App.5th at p. 1026.)
Viewing his case as akin to these, Lopez-Castillo argues that cases finding
reckless indifference “invariably involve something more than a mere armed
robbery.” This statement is necessarily true, as our Supreme Court has
admonished that “participation in a ‘ “garden-variety armed robbery,” ’ i.e.,
one in which the only factor supporting a reckless indifference finding is that
a participant was armed with a gun, is insufficient without more to establish
reckless indifference.” (Emanuel, supra, 17 Cal.5th at p. 884.) But we cannot
accept Lopez-Castillo’s suggestion that the present case involved nothing
more than “a mere armed robbery.”
Lopez-Castillo did not just “participat[e] in a ‘ “garden-variety armed
robbery” ’ ” in which the only factor supporting a reckless indifference finding
is his knowledge that a codefendant was armed. (Emanuel, supra, 17 Cal.5th
at p. 884.) As we have said, Lopez-Castillo planned an armed robbery of the
dealer in a drug transaction expected to be worth over $24,000; went to the
meeting with three other men, at least three if not all of whom were armed;
anticipated the potential for resistance and protected against it by directing
Fernando and Lopez-Barraza to hide behind the market in case they were
needed, thus increasing the risk of a violent confrontation; did no more than
try to “wave [Fernando] off” when he saw Fernando running toward the
victim with his gun; and, after the shooting, drove the group away only after
19
they finished loading the marijuana into their car. The totality of the
circumstances shows an armed robbery planned with full awareness of a high
risk of violence (see Emanuel, at p. 889 [contrasting facts of that case with
facts supporting inference that the “objective risk of violence posed by the
crime and reasonably anticipated by the perpetrator is graver than the risk of
violence inherent in any violent felony”]),12 executed at Lopez-Castillo’s
direction in a manner that further increased the risk and accomplished with
apparent indifference to the death of the victim. Substantial evidence
supports the trial court’s finding that Lopez-Castillo acted with reckless
indifference to human life.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
12 Emanuel explained, “Where a defendant plans to commit an armed
home invasion robbery at 3:00 a.m., with knowledge of several armed
occupants and a methamphetamine operation within, for example (see [In re]
McDowell [(2020)] 55 Cal.App.5th [999,] 1005), a trier of fact might
reasonably conclude that the objective risk of violence posed by the crime and
reasonably anticipated by the perpetrator is graver than the risk of violence
inherent in any violent felony. By contrast, where a defendant plans to
commit an unarmed robbery of a marijuana dealer at a public park in the
middle of the afternoon, the objective risk of violence posed by the crime and
reasonably anticipated by the perpetrator is far less grave.” (Emanuel,
supra, 17 Cal.5th at p. 889.)
20
STEWART, P. J.
We concur.
RICHMAN, J.
DESAUTELS, J.
People v. Lopez-Castillo (A171789)
21