Filed 9/29/26 P. v. Miller CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A172900
v.
RICHARD MILLER, (Solano County
Super. Ct. No. VCR186579)
Defendant and Appellant.
Defendant Richard Miller appeals from an order denying his petition
for resentencing pursuant to Penal Code section 1172.61 following an
evidentiary hearing. He contends the trial court applied an incorrect legal
standard and the case should be remanded for a new hearing. We affirm.
BACKGROUND
This is the third time this case has appeared on appeal following
resentencing.
In 2008, defendant pleaded no contest to one count of second degree
murder (§ 187, subd. (a)) and one count of robbery (§ 211), and the trial court
sentenced him to 20 years to life in prison.
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
Eleven years later, defendant filed a petition for resentencing under
now-section 1172.6. After an evidentiary hearing, the trial court determined
defendant was ineligible for resentencing because he was a major participant
in the crimes and acted with reckless indifference to human life. Defendant
appealed, and this court affirmed the trial court’s ruling. (People v. Miller
(Jan. 29, 2021, A159345) [nonpub. opn.].)
In May 2022, defendant filed another petition for resentencing. This
time, the trial court did not appoint counsel and ruled defendant failed to
make a prima facie case, stating the petition “ ‘does not cite new legal
authority which undermines the basis of the denial of the previous petition.’ ”
Defendant appealed, and this court concluded defendant did cite new
authority pertaining to the court’s finding that he acted with reckless
indifference to human life and remanded for further proceedings. (People v.
Miller (Dec. 12, 2023, A166303) [nonpub. opn.].)
Upon remand, the trial court held a second evidentiary hearing. After
hearing testimony and argument from counsel, the court denied the petition
for resentencing.
DISCUSSION
Testimony at First Evidentiary Hearing
“To provide context to the issue before us, we first summarize the
evidence adduced during the [first] evidentiary hearing on defendant’s prior
resentencing petition. The trial court heard testimony from defendant’s co-
perpetrators, one of the perpetrator’s girlfriends, and a police officer who
spoke to defendant the day after the shooting.
“Robert Thomas testified he, then 18-year-old defendant, and Michael
Mackey made a plan to rob Tomas Gonzalez of a pound of marijuana. Two
days before the murder, Thomas arranged with Gonzalez to make a purchase.
2
The day before the murder, Thomas contacted defendant, told him about the
robbery, and asked him to participate. Defendant agreed. Defendant asked
if he should get a gun, and Thomas said he should.
“On the day of the crime, Thomas picked up Mackey and defendant,
and the three discussed how the robbery would take place. Defendant had
obtained a firearm, which Thomas saw. Thomas was in communication with
Gonzalez on where to meet. While they were in the car, waiting for Gonzalez,
defendant gave the gun to Mackey. Thomas recalled Mackey stating he was
‘ “going to shoot him if anyone moves.” ’ Thomas replied, ‘ “[I]f you shoot him,
you going to have to kill him, and it’s going to be over with.” ’ Mackey stated,
‘ “Okay, I’m just gonna to rob—we just gonna to rob him, just gonna to get it
and go.” ’ Defendant heard this exchange. Thomas did not think Mackey was
‘serious’ but acknowledged he still ‘felt the need to warn [Mackey] about what
would happen if he did in fact shoot Gonzalez.’
“Once Gonzalez and another individual arrived, Thomas, Mackey, and
defendant got into the backseat of Gonzalez’s car. The five of them then went
to a different spot, about a half a mile away, because ‘there was a concern
about law enforcement.’ Once at the new location, Thomas got out of the
vehicle and left, leaving Mackey and defendant in the backseat of Gonzalez’s
car.
“About 10 minutes later, defendant called Thomas for a ride.
Defendant told Thomas, ‘ “Mike shot him. Mike shot him,” ’ and then said,
‘ “He didn’t have to shoot him.” ’ When the three returned to the room where
they had been staying, Mackey wiped down the gun and the three split the
stolen marijuana into thirds. Thomas took defendant back to Richmond.
Defendant took the gun with him.
3
“Mackey testified the incident was supposed to be a ‘[s]natch and grab,’
claiming he had the gun just as ‘[k]ind of protection.’ He said they only
‘vaguely’ talked about the robbery, and the gun . . . ‘was supposed to be used
for just protection only.’ They ‘had no intention of shooting individuals,’
although he ‘knew it was a possibility.’ He admitted he was ‘supposed to
bring’ a gun but did not do so; defendant gave him a gun. He only shot
because he thought one of the individuals ‘was reaching for a pistol.’ By that
point, defendant had already grabbed the marijuana and run. After the
shooting, Mackey ran after and caught up to defendant ‘within seconds.’
Thomas picked them up, and Mackey gave the gun back to defendant.
“Thomas’s girlfriend testified she was present when Thomas, Mackey,
and defendant ‘were talking about meeting an individual and robbing them.’
She saw defendant with a gun at that time, and she saw defendant give the
gun to Mackey. At some point, Thomas, Mackey, and defendant left in her
car. Thomas returned first, but got a phone call and left again. When he
returned, Mackey and defendant were with him, and they had a ‘large
amount’ of marijuana. Thomas and defendant were asking Mackey, ‘ “Why
would you do it?” ’
“Former Police Officer Matthew Meredith testified Thomas, Mackey,
and defendant were arrested the day after the shooting. Meredith met with
defendant, read him his Miranda2 rights, and spoke to him about the
shooting. Defendant stated his cousin, Thomas, had contacted him about
‘setting up . . . a lick,’ or a robbery, ‘where they were going to steal the
marijuana from the victims.’ Thomas and defendant spoke ‘a couple of times’
but ‘firmed’ up plans ‘the day before it happened.’ Defendant asked Thomas
if he should bring a gun, and Thomas said yes and also told defendant
2 Miranda v. Arizona (1966) 384 U.S. 436.
4
Mackey was coming and bringing a gun as well. On the day of the shooting,
Thomas and his girlfriend picked up defendant and took him to Vallejo where
they met with Mackey at a hotel to ‘go over . . . the plan.’ At that time,
defendant learned Mackey did not get a weapon, and he decided to give his
gun to Mackey. Defendant was supposed to grab the drugs. Thomas would
not be present during the robbery because the victims knew him and would
be able to identify him.
“As the three drove to the apartment where they were supposed to meet
the victims, they ‘clarified more what they were going to do.’ Mackey had the
gun and ‘indicated that he might have to shoot the people’ and then he and
defendant ‘were going to then run—run through the park.’ Thomas was
supposed to leave beforehand, get back to his car, and wait to pick them up.
Thomas told Mackey, ‘if he shoots them he’d better kill them.’
“After they met the victims for the supposed purchase, Thomas
introduced Mackey and defendant and then left. Mackey and defendant got
into the backseat of the victims’ car. The supposed deal was payment of
$4,000 for the marijuana, but Mackey only had $30 or $40 on him.
Defendant said Mackey ‘had the gun in his hand. It was out, pointed in the
direction of one of the victims.’ Because Mackey was in the backseat,
defendant ‘didn’t believe [the victims] saw the gun.’ It ‘appeared to
[defendant] Mackey was literally trying to pull the trigger, but the . . . safety
was on.’
“When Mackey produced the money, a conversation ensued about that
‘not being enough money.’ Defendant then asked for a cigarette and got out
of the car to smoke it. ‘[A]s he got out of the car to smoke the cigarette, he
knew that Mackey was psyching himself up to shoot them,’ so he got out
grabbed the marijuana, and ‘started running.’ As he ran, he heard gunshots,
5
and then Mackey came ‘running up behind him.’ Defendant told Mackey
‘that was not called for,’ and he ‘[h]oped they weren’t dead.’
“Thomas picked them up and took them back to the hotel. Someone
wiped the gun down and handed it back to defendant. They divided the
marijuana, though defendant complained he ‘didn’t get as large of amount as
the other two.’ Thomas gave him a ride back to Richmond with the firearm.
Defendant initially told Officer Meredith he threw the gun in a nearby lake.
But he later admitted that was untrue and that Mackey had given the gun
back to him.
“Defendant also told Officer Meredith that Mackey ‘had been hit in the
head as a child, and I guess he was more angry than other people.’ Mackey
had once gotten mad at defendant and had ‘threatened to fight him and steal
his car. And the reason [defendant] was bringing that up was pointing out to
me Mackey’s mental state or attitude.’ Defendant maintained the plan ‘was
to take the marijuana and run’ and not shoot anyone but for some reason ‘it
was in Mr. Mackey’s head to shoot the people’ but he ‘did not know why
Mr. Mackey had done that.’
“When defense counsel asked, ‘there was never any plan to shoot?’
Officer Meredith replied, ‘Well, [defendant] never planned to shoot them. He
made it clear that he didn’t want them to be shot. But the way he talked
about—about Mackey’s state of mind, he felt that Mackey was an issue.’
Defense counsel asked, ‘Well, he’s talking about Mackey’s state of mind when
they’re in the victim’s car, right?’ Officer Meredith, responded, ‘Well, he was
talking about Mackey’s state of mind then. And he was aware of how angry
Mackey was and how he acted towards himself about beating him up and
stealing his car. He’s aware of that. And he knows that they are going to
steal the—I mean, they’re going to steal the marijuana and not shoot them,
6
yet he gives Mackey the gun, and that’s the guy that he thinks is the most
edgy of all of them, I guess.’
“The court concluded defendant was a major participant in the robbery
and murder because he was involved in the planning of the crime, and he
brought the firearm used to kill the victim. The court further observed ‘[t]he
fact that there were going to be two weapons present does indicate
[defendant] knew that this could be a very dangerous situation.’ Defendant
was also present at the scene, which ‘meant he had the ability to facilitate or
prevent the killing.’
“With respect to reckless indifference to human life, the court
considered defendant’s knowledge of the presence of the weapon, which he
brought to the crime. ‘His proximity to the crime. He was in the vehicle right
next to Mr. Mackey when Mr. Mackey first tried to shoot. Then he, I think,
grabbed the property, the marijuana. And as he left, Mr. Mackey proceeded
to shoot and kill the victim in this case. That means he was in a position to
minimize the possibility of violence, but he did nothing other than leaving.
That indicated either that he was trying not to be part of it, but could also
indicate his indifference to what was going on.’ The court continued, ‘In
addition to that, I think there was evidence presented at this hearing that
[defendant] knew of Mr. Mackey’s tendency toward violence. He had been
threatened by Mr. Mackey himself, the [defendant] had, in the past,
[defendant] had. So I considered that as well. [¶] So not only did he bring the
weapon to this crime that was eventually used to kill the victim, he gave it to
an individual he knew that was violent, and there is some discussion about
whether or not someone would have been shot. But it looks to me that
[defendant] did act with reckless indifference to human life, in considering all
that.’ ” (People v. Miller, supra, A166303.)
7
Testimony at Second Evidentiary Hearing
At the second evidentiary hearing, defendant presented testimony from
Dr. Francesca Luizza, a clinical and forensic psychologist, who testified as an
expert on forensic psychology as well as defendant’s sister.
Dr. Luizza testified she reviewed defendant’s records and also met with
him twice to administer psychological testing and a risk assessment and to
conduct a comprehensive clinical and forensic interview. Defendant
identified being abused in his childhood, specifically he recalled being called
“mean names and being humiliated by . . . his cousins. And he also identified
being physically abused by family members, sexually abused by a family
friend,” and “physically and emotionally neglected by his caregivers.” His
father was “addicted to drugs and was in and out of prison for most of his
life,” and his mother had a “very extensive addiction history.” He witnessed
domestic violence between his mother and father and his mother and her
boyfriends. His mother engaged in “sex work to provide for her addiction,”
and he was left either unsupervised or in the care of his sisters. His cousins
introduced him to marijuana at the age of nine or 10. His cousin, and co-
perpetrator, Robert Thomas was his “only male role model” and introduced
him “to criminal activity and substances.” He stated he “never felt
pressured” by Thomas but was “influenced” by him.
Dr. Luizza opined adverse childhood experiences “can significantly
impact our brain development, specifically on areas of the brain that are
essential for emotional regulation, decision-making, and memory and
learning.” Additionally, defendant’s age at the time of the crime, 18 years
old, related to his decision-making because of “the underdeveloped prefrontal
cortex,” which has “an especially active and sensitive reward system, so that
also exacerbates [the] likelihood of engaging in risky behaviors.”
8
Defendant’s sister, who is three years older than defendant, described
their childhood. After their mother left, the siblings, along with two other
sisters, went to live with their father. She described the living conditions as
“[h]orrible,” with the electricity and water sometimes being out and a lack of
food. The children were often left unattended, and their father, who suffered
from a drug addiction, was in and out of prison. When defendant was around
three or four, they lived with their grandmother before being returned to
their mother’s care. However, their mother also used drugs and alcohol and
engaged in prostitution. When defendant was around 10 or 11, the children
moved in with their aunt and cousins, including Thomas who was about four
years older than defendant. She described defendant as a “follower” rather
than a “leader.”
After testimony, the court allowed the parties to submit post-hearing
briefing. Defendant asserted the evidence showed he was not a major
participant acting with reckless indifference, rather it showed he “was acting
at all times at the direction of Robert Thomas,” and that he “did not intend
for anyone to get shot, and the shooting was not part of the plan.”
Additionally, “[h]e procured the gun only to facilitate a robbery, not a
murder.” Finally, defendant’s youthfulness—defendant was described as
“ ‘young minded, a follower, naïve, immature’ ”—and childhood trauma
“undeniably contributed to his mental state and whether he acted with
reckless indifference at the time of the offense.”
Defendant noted the issue “is not whether defendant could have been
found guilty of felony murder, and not whether there is substantial evidence
to support a felony murder conviction, but rather, whether the People have
proven beyond a reasonable doubt that defendant was in fact guilty of felony
9
murder under the current law.” And here, asserted defendant, the People
had not met their burden.
At the continued hearing, the court heard argument from counsel.
Defense counsel reiterated defendant’s upbringing, his youthfulness, and that
his co-perpetrator and older cousin, Robert Thomas, was the “mastermind”
behind the incident. Counsel also argued it was “entirely unfair” that
Thomas “had a resentencing hearing several years ago, and at that time he
was released,” and he had planned the entire thing. Counsel asserted that
for “all those reasons,” she did not “believe that [defendant] could be found
guilty beyond a reasonable doubt of felony murder under the current law.
And again, the burden of proof is on the People. You know, it is not enough
to show that he could have been convicted of felony murder, or there was
substantial evidence. Rather, the People . . . [¶] . . . have to prove beyond a
reasonable doubt that he would not have been convicted of—or I’m sorry—
that he would have been subject to a conviction under the felony murder
rule.”
The People noted the court had previously denied defendant’s petition
and “the only thing that is different,” at this current hearing “is that
Dr. Luizza testified that sometimes people who are under 25 don’t make good
decisions. Well, I’ve reviewed both the argument from counsel and the briefs
that were submitted for the first hearing. And the fact that he was youthful,
under the influence of Mr. Thomas, 18 years old, was mentioned at least
three times. So there’s nothing really new. [¶] . . . [¶] So I think that it is
pretty clear that the evidence of what he did was not as simple as he just was
involved in a robbery.” Defendant “was the one of the three who knew where
to get [a gun]. He’s the one that got the gun. And it was at Mr. Thomas’s
suggestion only after a question was asked by [defendant]: Do we need a
10
gun? And Mr. Thomas said: Go get one. [¶] And he was there. He knew of
Mr. Mackey’s violent propensities and discussions about I might have to kill
him if I shoot him, et cetera. [¶] And maybe the most important fact was he
saw—[defendant] saw Mr. Mackey try to fire the gun with the safety on and
didn’t say, hey, don’t do it, don’t do it, watch that. So he had the opportunity
to prevent this.”
Before the court pronounced its ruling, defense counsel reiterated the
standard, stating “it is very clear that the burden of proof is on the People” to
“establish beyond a reasonable doubt” that defendant “would be convicted of
felony murder under the changes to the felony murder rule.”
The court began by looking at the 2025 version of the Penal Code,
stating, “Subdivision (d)(3) says: At the hearing to determine whether the
petitioner is entitled to relief, the burden of proof shall be on the prosecution
to prove beyond a reasonable doubt that the petitioner was guilty of murder
or attempted murder under California law as amended by the changes to
Section 188 or 189 made effective January 1st, 2019. [¶] It does specifically
say after that: A finding that there is substantial evidence to support a
conviction for a murder, attempted murder, or manslaughter insufficient to
prove, et cetera. [¶] So it talks about how a lower burden is not sufficient. I
am not sure why they threw that in, but they chose to do that. But that is
the standard I am following.”
The court then noted it had to look at whether defendant was a major
participant, and unlike Thomas, defendant was present at the scene when
the robbery and the murder happened, which the court found significant as it
gave defendant the “opportunity” to “stop whatever might be happening.
That goes in this case more into the idea of reckless indifference.” Defendant
obtained the gun. Although Mackey was supposed to obtain one too, he did
11
not, and Mackey had a gun because defendant supplied it. Mackey and
defendant were both in the car when the robbery occurred. Defendant, as he
was leaving the car with the marijuana, observed Mackey trying to fire the
gun, and there are shots fired as he flees with the contraband. “So with all of
the evidence that I have, including what I have just talked about, I will find
that he was a major participant.”
As to whether he acted with reckless indifference, the court
acknowledged defendant’s age. The court noted the “planning of this
robbery,” and the “discussion at one point in [defendant’s] presence,” that
Thomas told Mackey, “if you are going to shoot someone, you have to kill
them. You need to make sure you kill them.” “[E]ven though [defendant] is
younger and less sophisticated, perhaps, than the other two, [he] does
manage to be able to produce a gun that is used in this situation. . . . There
was evidence that he knew of Mr. Mackey’s propensity for violence. I think at
one point he indicated that he had at least been threatened by
Mr. Mackey. . . . But he chose to give the gun to him anyways.” Thus,
continued the court, “[e]ven considering his youth, he was still able to do
something that really raised the level of this crime from just being a robbery
to what it ended up being, which was a felony murder.”
“[E]ven though the other folks who may have been, as you said, older
and more sophisticated, weren’t able to get the gun and bring it. And then
when this crime actually happened, he’s there in the car and he is distancing
himself from what Mr. Mackey is doing, not doing anything in the case of talk
about this to try to stop the violent behavior that occurs. [¶] And even
considering his youth, you know, that was his gun, or that was the gun that
he brought, and he just didn’t do anything. So I still think that even
considering his youth, he was a person who acted with reckless indifference.
12
And I would find based on what was presented at the hearing on this that the
People have proven beyond a reasonable doubt that the defendant could have
been sentenced under the law as it was amended in 2019. . . .” (Italics added.)
Defense counsel interrupted stating, “It is not that he could have been.
They have to prove beyond a reasonable doubt that he would be.”
The court replied, “Right. That he—I said they proved beyond a
reasonable doubt that he could have been convicted of murder under this
statute. Okay. That he would have been convicted of murder under that
statute. Is that how you would like me to put it?”
Defense counsel replied, “Yeah. Not ‘could have been.’ ”
The court responded, “Perfect. He was still eligible to be prosecuted and
there was sufficient evidence to find beyond a reasonable doubt that he was
both a major participant who acted with reckless indifference to human life.”
(Italics added.)
DISCUSSION
Legal Standard of Proof
Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended “ ‘ “the felony
murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)’ [Citation.] Senate Bill
[No.] 1437 did this by amending section 188, which defines malice, and
section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2,
3.) Amended section 188 states: ‘Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a person based
13
solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).) Amended
section 189 states: ‘A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death occurs is
liable for murder only if one of the following is proven: . . . (3) The person was
a major participant in the underlying felony and acted with reckless
indifference to human life. . . .’ (§ 189, subd. (e).)
“Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)] also established
resentencing relief for eligible defendants. [Citations.] Under former
section 1170.95 (now § 1172.6, subd. (a)), ‘[a] person convicted of felony
murder or murder under the natural and probable consequences theory may
file a petition’ with the sentencing court to have his or her murder conviction
vacated and to be resentenced on any remaining counts ‘when . . . “. . . the
petitioner has made a prima facie case for relief.” ’ [Citations.] If the
defendant makes a prima facie showing of entitlement to relief, the court
must issue an order to show cause and hold an evidentiary hearing.
(§ 1172.6, subds. (c), (d)(3).)” (People v. Didyavong (2023) 90 Cal.App.5th 85,
93–94 (Didyavong).)
At an evidentiary hearing to determine whether a petitioner is entitled
to relief under section 1172.6, “the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty of murder”
under current law. (§ 1172.6, subd. (d)(3).) “To sustain their burden, the
People may rely on the record of conviction ‘or offer new or additional
evidence.’ ” (People v. Clements (2022) 75 Cal.App.5th 276, 294 (Clements).)
“A finding that there is substantial evidence to support the conviction for
murder . . . is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) The trial
court must “act as an independent fact finder and determine, in the first
14
instance, whether the petitioner committed murder under the law as
amended by Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)].” (Didyavong,
supra, 90 Cal.App.5th at p. 95; People v. Guiffreda (2023) 87 Cal.App.5th 112,
123.)
Defendant contends the court applied an “incorrect legal standard” at
the hearing, “concluding that resentencing should be denied because Miller
‘was still eligible to be prosecuted,’ because Miller ‘could have been sentenced’
for murder, and because ‘there was sufficient evidence to find’ reckless
indifference to human life.” (Capitalization & boldface omitted.) Specifically,
defendant contends the court “facially misstated the standard that was at
issue several different ways” and showed “a failure to act as an independent
fact-finder and a misapprehension about the issue that needed to be
determined.”
The Attorney General asserts defendant’s claim of error has been
forfeited because he “did not object to the resentencing court’s ruling or
otherwise express a belief that the court had applied the wrong standard of
proof.” (See People v. Schell (2022) 84 Cal.App.5th 437, 444 [finding
forfeiture where claim that “so called ‘canon of constitutional doubt’
precluded trial court from finding guilt of second degree murder” at § 1172.6
resentencing hearing “on theory that was not presented at trial”].) In
response, defendant asserts “the most prominent category of claims that may
be raised without a predicate objection is exactly the sort of claim [he]
raises—i.e., a question of law that affected his substantial rights.”
Regardless of any issues of forfeiture, an issue we decline to decide, we
conclude defendant has failed to demonstrate the trial court misapplied the
standard of proof or misapprehended its role at the hearing.
15
We begin with the premise that “[a]bsent evidence to the contrary, we
presume that the trial court knew the law and followed it.” (People v.
Ramirez (2021) 10 Cal.5th 983, 1042.) The evidentiary hearing took place
years after the Legislature amended section 1172.6 to specify the beyond a
reasonable doubt standard and clarified the trial court’s role as an
independent finder of fact. Additionally, the court and defense counsel cited
this standard.
Moreover, we do not read the court’s three comments in the way urged
by defendant. That the court stated “the prosecution proved beyond a
reasonable doubt defendant could have been sentenced” for murder instead of
the prosecution proved beyond a reasonable doubt defendant “would be”
guilty appears to have been a misstatement by the court. Indeed, earlier in
an exchange between the court and counsel, defense counsel herself stated
the burden of proof in the same way now complained of on appeal. Counsel
noted the standard was, “Proof beyond a reasonable doubt that he could be
found guilty under the current status of the felony murder rule.”
Despite any such misstatements, it is clear the parties and the court
were aware of the applicable legal standard. Indeed, the court started its
ruling by clarifying the standard with counsel. The court subsequently read
the burden of proof directly from the statute, stating “Subsection (d)(3) says:
At the hearing to determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove beyond a reasonable
doubt that the petitioner was guilty of murder. . . .” After the court found the
People had proven beyond a reasonable doubt that the defendant “could have
been sentenced” under the law, defense counsel immediately corrected the
court stating, “not that he could have been. They have to prove beyond a
reasonable doubt that he would be.” The court then responded, “Right. . . . I
16
said they proved . . . that he could have been convicted. . . . Okay. That he
would have been convicted of murder under the statute. Is that how you
would like me to put it?” Defense counsel responded, “Yeah. Not ‘could have
been.’ ”
People v. Garrison (2021) 73 Cal.App.5th 735 (Garrison), on which
defendant relies, does not compel a different result. In that case, the trial
court ruled on the defendant’s resentencing petition before the 2022
amendments to section 1172.6, during a period of time when the trial court’s
role and the standard of proof were unsettled legal issues. In denying the
petition, the trial court stated, “ ‘I also find beyond a reasonable doubt that
Mr. Garrison could have been convicted as the actual shooter and actual
killer in this felony murder case.’ ” (Garrison, at p. 741.) On appeal, the
Attorney General conceded the trial court had applied an incorrect
substantial evidence standard. (Id. at p. 745, fn. 6.) However, the appellate
court did not expressly accept the concession and instead concluded
“[a]ssuming Garrison is correct that the trial court applied the wrong
standard of proof at the section 1170.95, subdivision (d)(3) hearing, Garrison
cannot demonstrate any prejudicial error.” (Id. at p. 745, italics added.) The
Garrison court thus did not decide whether the trial court’s language
indicated it applied the incorrect standard of proof. And, in any event, here
the trial court’s ruling occurred years after the Legislature enacted Senate
Bill No. 1437 (2017–2018 Reg. Sess.) and case law established the proper
standard of proof and the trial court’s role in the proceedings.
Nor does the court’s statement “there was sufficient evidence to find”
reckless indifference to human life demonstrate the court applied a
substantial evidence standard of review, as opposed to the required beyond a
reasonable doubt standard of proof. The phrase “sufficient evidence” merely
17
describes the quantity or quality of evidence the court determined supported
its particular finding or conclusion. Indeed, that phrase can be used by a
trier of fact when making a factual finding in the first instance under any
standard of proof, or it can be used by a reviewing court when applying a
standard of review. Additionally, the court reiterated it was applying a
beyond a reasonable doubt standard of proof during its ruling. (People v.
Oliver (2023) 90 Cal.App.5th 466, 481, fn. 6 [finding no error in “the court’s
passing reference to ‘sufficient evidence,’ ” which court concluded “could only
mean that there was ‘enough evidence’ to prove the required facts beyond a
reasonable doubt” where court started and ended hearing by indicated
burden of proof on prosecution and prosecutor repeated stated reasonable
doubt standard applied].)
Defendant contends the court’s comments that “it was ‘not sure why’
the [L]egislature ‘threw . . . in’ a prohibition on the use of the substantial
evidence standard,” did not “inspire confidence that the court ultimately
recognized its burden to act as the fact-finder, or that it understood what the
fact was that needed to be proven.” However, the court stated, “So it talks
about how a lower burden is not sufficient. I am not sure why they threw
that in, but they chose to do that. But that is the standard I am following.”
(Italics added.) Thus, the record shows the court was acutely aware of the
applicable standard and affirmatively stated it was following that standard.
Finally, the record establishes the court was aware of its role as fact
finder and that the court independently determined defendant was a major
participant who acted with reckless indifference to human life. The court
specifically stated it was “the trier of fact” and stated both that “I will find
that [defendant] was a major participant,” and “I still think even considering
his youth, he was a person who acted with reckless indifference.”
18
Although the court used somewhat inartful or imprecise language in
makings its ruling, the entirety of the ruling leaves us convinced the court
was aware of the applicable legal standard and understood its role as fact
finder. (See, e.g., People v. Price (1992) 4 Cal.App.4th 1272, 1276 [use of
inartful language “cannot be equated with having applied the wrong
standard”].)
Any Error Harmless3
Even assuming the resentencing court applied the wrong standard of
proof, any error was harmless. That is, it is not reasonably probable
defendant would have received a more favorable outcome had the court
applied the correct standard of proof because the evidence establishes,
despite defendant’s youth, he was a major participant in the underlying
robbery who acted with reckless indifference to human life. (People v. Vance
(2023) 94 Cal.App.5th 706, 716–717 [court’s use of wrong evidentiary
standard in § 1172.6 hearing evaluated for harmless error under “state law
‘reasonably probable’ standard]; Garrison, supra, 73 Cal.App.5th at p. 745
[“[a]ssuming [defendant] is correct that the trial court applied the wrong
standard of proof at the [former] section 1170.95, subdivision (d)(3) hearing,
[defendant] cannot demonstrate prejudicial error”].)
3 We review a trial court’s factual findings following a section 1172.6,
subdivision (d) hearing for substantial evidence. (Clements, supra,
75 Cal.App.5th at p. 298; Garrison, supra, 73 Cal.App.5th at p. 747.) We
“ ‘ “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 of
fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ”
(Clements, at p. 298; ibid. [on appeal, “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”].)
19
In People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 (Clark), our Supreme Court discussed several factors to
consider in determining whether a defendant was a major participant in the
underlying felony who acted with reckless indifference to human life. (Banks,
at p. 803 [discussing major participant factors]; Clark, at pp. 618–623
[discussing reckless indifference factors].)
In Clark, the court discussed the following reckless indifference factors:
(1) the defendant’s awareness that a gun or other weapon would be used
during the target offense; (2) the defendant’s presence at the crime and
whether he had an opportunity to prevent the crime or aid the victims; (3) the
duration of the felony, including how long the defendant and the victim
interacted before the killing; and (4) the defendant’s apparent efforts to
reduce the risk of violence during the commission of the target offense.
(Clark, supra, 63 Cal.4th at pp. 618–623.)4
Here, defendant was aware a gun was likely to be used during the
robbery. Though defendant contends Mackey promised he would not shoot,
Mackey himself testified he “ ‘knew it was a possibility’ ” that he would shoot.
Additionally, Mackey and Thomas discussed shooting the victims. And
Thomas felt it necessary to warn Mackey, “ ‘ “If you shoot him, you going to
have to kill him, and it’s going to be over with.” ’ ” Defendant also told police,
the plan was to take $4,000 worth marijuana and run and not shoot anyone
but for some reason “ ‘it was in Mr. Mackey’s head to shoot the people’ ” but
he did not know why Mr. Mackey had done that.”
Defendant also supplied the firearm for the murder. When defendant
discussed the crime with Thomas, it was he and not Thomas who suggested
4 Defendant does not challenge the court’s finding that he was a major
participant in the underlying felony.
20
getting a gun. Defendant carried through with procuring a firearm, despite
thinking Mackey was also getting a gun. After obtaining the weapon, he gave
it to Mackey, a man who defendant described as having been “hit in the head
as a child, and I guess he was more angry than other people.” Mackey had
once gotten angry at defendant and had “threatened to fight him and steal
his car.” While the crime seems to have happened over a relatively short
period of time, defendant was present at the crime and had the opportunity
to reduce the risk of violence and aid the victim but failed to do either.
Defendant sat in the back seat of the victim’s car and watched as Mackey
pointed the gun in the direction of one of the victims and it appeared to
defendant as if Mackey “was literally trying to pull the trigger, but the . . .
safety was on.” Defendant did not intervene, instead he got out of the car,
despite thinking “ ‘Mackey was psyching himself up to shoot them.’ ” As he
grabbed the marijuana and ran, defendant heard gunshots but did not stop to
aid the victims or call for help, instead he told Mackey “ ‘that was not called
for,’ ” and he “ ‘[h]oped they weren’t dead.’ ” Nothing in the record suggests
defendant tried to deescalate the violence or help the victims in any way.
In short, the trial court’s finding that defendant acted with reckless
indifference to human life was amply supported by the evidence. On such a
record, we hold any error was harmless because it is not reasonably probable
that absent the error defendant would have achieved a more favorable result.
(People v. Vance, supra, 94 Cal.App.5th at pp. 716–717.)
DISPOSITION
The trial court’s order is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Smiley, J.
A172900, People v. Miller
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