Filed 7/1/26 P. v. Nowden CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084177, D084743
Plaintiff and Respondent, (Super. Ct. No. SCD143117)
v.
ORDER MODIYING OPINION
TERRANCE LAMONT NOWDEN, AND DENYING REHEARING
Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed in these cases on June 11, 2026 be
modified as follows:
1. On page 2, the last sentence of the “Introduction” is modified so the
sentence reads:
We find no prejudicial error in the court’s orders and affirm.
2. On page 8, under the sub-section B “Trial Court’s Ruling After
Evidentiary Hearing,” the sole sentence in the first paragraph is
modified so the sentence reads:
In denying Nowden’s section 1172.6 petition, the trial court applied
the factors identified in Banks and Clark and incorporated in former
CALCRIM 540B.
3. On page 15, first full paragraph, commencing with “Nowden” and
ending at the top paragraph of page 16 with “(Jones, supra,
86 Cal.App.5th at p. 1092.)” is replaced and modified to read as
follows:
Nowden also contends the denial of his section 1172.6 petition
was erroneous because the trial court failed to consider his youth at
the time of the crimes as a factor in its reckless indifference
analysis. As we shall explain, under the circumstances here, we
presume the court properly considered this factor. And, even if we
could find the court erred by failing to adequately consider Nowden’s
youth, any error was harmless.
Since at least 2021, with the decisions in People v. Harris
(2021) 60 Cal.App.5th 939, 960 (Harris) and In re Moore (2021)
68 Cal.App.5th 434, 453 (Moore), courts have recognized that a
defendant’s youth at the time of the felony victim’s death is relevant
to the reckless indifference analysis.1 (See Emanuel, supra,
17 Cal.5th at p. 885, fn. 6; Moore, at p. 453 [“It is well recognized
that children generally are less mature and responsible than adults
and often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them. As a
result, the law has historically reflected the same assumption that
children characteristically lack the capacity to exercise mature
1 In light of the recognition that a defendant’s youth is a relevant factor
in determining whether he or she formed the requisite reckless indifference,
as of September 2023, California’s model jury instruction on first degree
felony murder was revised to specify the defendant’s age as one of the factors
a trier of fact should consider when making a determination on the element
of reckless indifference. (CALCRIM No. 540B.)
2
judgment and possess only an incomplete ability to understand the
world around them.” (cleaned up.)].)
After Harris and Moore, courts of appeal have held it to be
error where a trial court has failed to consider the defendant’s youth
before denying resentencing under former section 1170.95, even if
the defendant was not a juvenile at the time of the crime, but only
where the denial was made before or soon after Harris and Moore
provided guidance on the relevance of the defendant’s youth and
defense counsel did not highlight the issue for the court. (See People
v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093 (Jones) [20-year-old
defendant]; People v. Oliver (2023) 90 Cal.App.5th 466, 488–489
(Oliver) [23-year-old defendant].) We do not have those
circumstances here.
In this case, the trial court issued its denial order in March
2024, several years after Moore and Harris were decided. Further
still, defense counsel did argue that Nowden’s youth negated his
ability to form the requisite reckless disregard for human life in the
trial court. Crucially, the trial court expressly stated it was
applying the factors enumerated in former CALCRIM No. 540B,
which, as applied by the court, included consideration of “[o]ther
factors.”2 And, by the time of the court’s hearing and decision on
Nowden’s section 1172.6 petition, courts had established that a
defendant’s youth, even if not a juvenile, is a relevant factor to be
included in the reckless indifference analysis. (Harris, supra,
60 Cal.App.5th at p. 960; Moore, supra, 68 Cal.App.5th at p. 453;
Jones, 86 Cal.App.5th at pp. 1091–1093; Oliver, supra,
90 Cal.App.5th at p. 488.) Thus, the consideration of a defendant’s
age necessarily would fall under “other factors.” Under these
2 Because the trial court stated it was applying the “current” instruction,
in our original opinion, we mistakenly found the trial court relied on
CALCRIM No. 540B as it was revised in September 2023, six months before
the court issued its decision denying Nowden’s section 1172.6 petition. As
mentioned, this version expressly enumerates the defendant’s age as a factor
to be considered in the court’s analysis. Nowden’s petition for rehearing
clarified which version of CALCRIM No. 540B the court applied here. But as
we explain, this does not change our disposition.
3
circumstances, we have no reason to deviate from the normal
presumption that the trial court followed the law and duly
considered the evidence. (Cf. Oliver, at p. 487 [observing that “[t]he
Jones court determined that, given the recentness of Harris and
Moore, it could not assume that the trial court had followed the law
and considered Jone’s youth in its Banks and Clark analysis”].)
But even if we could find the trial court erred by failing to
expressly consider Nowden’s age in its reckless indifference analysis,
as in Oliver, “any such error in this regard is harmless under the
specific circumstances of this case.” (Oliver, supra, 90 Cal.App.5th
at p. 489.) We apply the standard under People v. Watson (1956)
46 Cal.2d 818 to determine “whether it is reasonably probable that a
result more favorable to [Nowden] would have been reached absent
the failure to consider his youth.” (People v. Jimenez (2024)
103 Cal.App.5th 994, 1007; Oliver, at p. 489, fn. 8 [applying the state
law standard of prejudice under Watson].)
The relevant factors present here are like those the court
relied on in Oliver to find harmless error. First, like the defendant
in Oliver, Nowden was 23 years old when he committed the instant
crimes. (Oliver, supra, 90 Cal.App.5th at p. 489.) This is materially
older than the 16- and 17-year-old juvenile defendants in Moore and
Harris, and the 20-year-old defendant in Jones. (Moore, supra,
68 Cal.App.5th at p. 454; Harris, supra, 60 Cal.App.5th at p. 944;
Jones, supra, 86 Cal.App.5th at p. 1092.) And “[p]resumably, the
presumption of immaturity weakens as [Nowden] approaches 26.”
(Oliver, at p. 489.) Second, as in Oliver, there is no evidence in the
record that Nowden’s conduct was motivated by either of the factors
relevant to the brain development of youthful offenders, i.e., relative
impulsivity and vulnerability to peer pressure. (Ibid.) “[W]e are not
here presented with a situation where a youthful offender was swept
up in circumstances beyond his or her control that led to an
unintended death.” (Ibid.) Rather, as we have explained, Nowden
voluntarily and actively participated in these crimes with the
knowledge of the grave risk of danger. (Ibid.) And there is no
evidence in the record that his conduct resulted from peer pressure
or an inability to decline to participate in the crimes. (Id. at
pp. 489–490.)
4
We recognize Oliver is potentially distinguishable in one way.
There, the defendant had “nothing remarkable in his childhood.”
(Oliver, supra, 90 Cal.App.5th at p. 490.) In contrast, during his
section 1172.1 proceedings, Nowden presented evidence that he
suffered a traumatic upbringing. Even assuming we can consider
this evidence when reviewing the trial court’s denial of Nowden’s
section 1172.6 petition, it does not change our conclusion. There is
no evidence that Nowden’s upbringing played any role in his
decision to commit these crimes, or that he suffered any abuse as a
child that would directly correlate to his commission of these
offenses. And there is no basis to find that Nowden’s history of
childhood trauma outweighed the evidence we have discussed
showing he voluntarily participated in a sophisticated criminal plan
despite knowing the grave risk of danger to the victims.
When viewing the record as a whole, we cannot find it
“reasonably probable that a result more favorable to [Nowden]
would have been reached” had the trial court more fully considered
his age at the time of the crimes. (See Oliver, supra, 90 Cal.App.5th
at pp. 489–490, fn. 8.)
4. Footnote 6 on page 17 is renumbered to footnote 8, which will
require renumbering of all subsequent footnotes.
5. On page 16, under the subheading “3. Due Process and Youth
Factor,” the paragraph, commencing with “Last” and ending with
“fails” is replaced and modified to read as follows:
Last, Nowden argues the trial court’s denial of his
section 1172.6 petition violated due process because it was not
supported by substantial evidence. He supports this argument with
authority suggesting the trial court was required to “follow its own
laws,” “properly exercise [its] legal authority, and adhere[ ] to the
statutorily mandated procedures and standards for resentencing.”
The principle at the heart of the authority that Nowden relies on is
that an individual cannot be arbitrarily deprived of a protected
liberty interest. (See, e.g., Hicks v. Okla.(1980) 447 U.S. 343, 346;
Wilson v. Superior Court of Los Angeles County (1978) 21 Cal.3d
816, 823.) As we have explained, substantial evidence supports the
court’s order and, to the extent there was any trial court error, it
was harmless. Under these circumstances, Nowden has not shown
5
the trial court’s denial of his section 1172.6 petition was so arbitrary
as to violate due process.
There is no change in the judgment.
The petition for rehearing is denied.
MCCONNELL, P. J.
Copies to: All parties
6
Filed 6/11/26 P. v. Nowden CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084177, D084743
Plaintiff and Respondent, (Super. Ct. No. SCD143117)
v.
TERRANCE LAMONT NOWDEN,
Defendant and Appellant.
CONSOLIDATED APPEALS from orders of the Superior Court of
San Diego County, Melinda J. Lasater, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Robin Urbanski, Donald Ostertag, and Laura Baggett, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
Terrance Lamont Nowden was convicted in 2000 of first degree murder
with special circumstances arising from a home invasion he committed with
two other men. He now appeals from the trial court’s orders denying his
requests for resentencing under Penal Code3 sections 1172.6 and 1172.1. We
find no error in the court’s orders and affirm.
BACKGROUND
I.
Conviction Offenses and Trial Evidence
In 2000, a jury convicted Nowden of first degree murder (§ 187,
subd. (a)) under an aiding and abetting theory with the special circumstances
that the murder was committed during an attempted robbery and burglary
(§ 190.2, subd. (a)(17)(A) & (G)). The jury also convicted Nowden of
residential burglary (§§ 459 & 460), two counts of attempted first degree
robbery (§§ 664/211, 212.5, subd. (a), 213, subd. (b)), and assault by means
likely to produce great bodily injury (§ 245, subd. (a)(1)). He was sentenced to
life in prison without the possibility of parole plus four years.
In 2001, we affirmed the judgment. (People v. Nowden (Dec. 31, 2001,
D036964) [nonpub. opn.].) The following summary of the trial evidence
underlying Nowden’s convictions is taken from that opinion.4
3 Further unspecified statutory references are to the Penal Code.
Nowden separately appealed from both orders in appeal numbers D084177
and D084743. We granted the People’s unopposed motion to consolidate the
two appeals under D084177.
4 Both parties’ statements of facts are taken from the record of the direct
appeal in D036964, admitted as exhibits at the evidentiary hearing in the
trial court. We granted Nowden’s unopposed request for judicial notice of the
record on appeal in case no. D036964. Accordingly, we deny his motion to
augment the record with the same record from appeal no. D036964 as
unnecessary.
2
“Jose and Isabel Sedano lived on Skyline Drive with their children,
Delores, 10, and Eduardo, 5. On the evening of November 24, 1998, after the
Sedano family had gone to bed, three or four African-American men broke
into the house. Isabel was awakened by loud noises and dogs barking. While
Jose remained asleep, Isabel got up and went to the window. Suddenly, the
bedroom door was kicked open, which woke up Jose. Two men entered the
bedroom, one brandishing a gun. A third man stood by the door. The man
with the gun pointed it at Isabel and asked: ‘Where is the clavo?’ ‘Clavo’ is
slang for drugs in Spanish; its literal translation is nails. Isabel said there
were no drugs.
“The third man went to the room shared by Delores and Eduardo. Jose
pleaded for the children to be left alone. The man with the gun hit Jose on
the forehead with the gun, forcing him to the ground. The man with the gun
also struck Isabel on the head and face with the butt of the gun. The other
man in the master bedroom tied Isabel’s hands behind her back and put
black plumber’s tape over her eyes and nose. She asked the intruders to
uncover her nose and leave it open; one of them complied, but then taped her
mouth. The intruders bound Jose’s hands behind his back and wrapped tape
around his head. Jose’s nose and mouth were completely covered by several
layers of tape.
“The intruder who went into Delores’s bedroom asked her where the
clavo was. Delores, thinking the man wanted nails, took him to the garage
and handed him some nails. The man threw down the nails and took her
back to the house. At one point, Delores needed to go to the bathroom. The
man stood in the doorway of the bathroom with his back to Delores. At
another point, Delores was choked and lost consciousness. She was also
sprayed in her eyes and on her face with WD-40.
3
“The intruders ransacked the house. Before they left, one of the
intruders covered Isabel’s nose with tape and said to her: ‘Hasta la vista,
lady.’ Isabel was able to breathe because she had moistened the tape over
her mouth with her tongue and the tape had not stuck to her mouth.
“After the intruders left, Delores removed some of the tape from her
mother’s face and telephoned 911. When police arrived, Isabel was bleeding
but alive. Jose was dead from asphyxia by smothering. Isabel suffered
lacerations to the top of her head, the back of her head and under her chin.
Doctors stapled the wound on the top of her head and sutured the other
wounds. Isabel also had a black eye. While Delores was at the hospital,
doctors noticed the bruises on her face turning more purple and blue, her
head becoming more swollen and petechiae (small, dot-like hemorrhages) on
her face. The emergency room doctor said petechiae are caused when a
significant amount of force is applied to a person’s neck. Delores was
admitted to the hospital.
“The intruders sprayed WD-40 on surfaces throughout the house,
apparently to destroy any fingerprints they left. However, crime scene
investigators were able to lift numerous fingerprints. A latent print
examiner identified a print on a disposable glove found on the floor in the
garage and prints found on the doorway of Delores’s bathroom as Nowden’s
fingerprints.”
4
II.
Proceedings on Petitions for Resentencing
In January 2019, Nowden filed a petition for resentencing under former
section 1170.95 (now section 1172.6),5 asserting he could not now be
convicted of first degree murder under recent changes to sections 188 and 189
because he was not the actual killer, did not have intent to kill, and was not a
major participant in the felony or did not act with reckless indifference to
human life. The trial court denied the petition, finding the jury’s true
findings on the special circumstances rendered him ineligible for
resentencing as a matter of law. We reversed and remanded to the trial court
for reconsideration after concluding its summary denial was improper.
(People v. Nowden (Oct. 9, 2020, D075767) [nonpub. opn.].)6
The California Supreme Court then granted the People’s petition for
review and held the matter pending its decisions in People v. Strong (2022)
13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
After the matter was transferred back to this court following issuance of
Strong and Lewis, we held the trial court erred by finding Nowden failed to
meet his prima facie burden based solely on the special circumstances
finding. We thus remanded the matter to the superior court for further
proceedings pursuant to section 1172.6. (People v. Nowden (Jan. 3, 2023,
D075767) [nonpub. opn.].)
5 Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10)
renumbered section 1170.95 to 1172.6, effective June 30, 2022.
6 On our own motion, we also take judicial notice of our files in appeal
no. D075767. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
5
After extensive briefing and submission of exhibits by the parties, the
trial court held an evidentiary hearing on Nowden’s section 1172.6 petition in
February 2024. The parties did not present any new evidence and instead
relied on the record that was before this court on Nowden’s direct appeal from
his convictions. In March 2024, the court denied the petition. It determined
the People had proven beyond a reasonable doubt that Nowden was guilty of
felony murder as a major participant who acted with reckless indifference to
human life.
Nowden subsequently invited the trial court to vacate his first degree
murder conviction and resentence him on the lesser included offense of
second degree murder pursuant to sections 1172.1 and 1385. In August 2024,
the trial court declined Nowden’s invitation to recall and resentence him,
finding it was not in the interest of justice.
Nowden has appealed both orders denying his request for resentencing
under sections 1172.6 and 1172.1. As mentioned, we granted the People’s
motion to consolidate both appeals.
DISCUSSION
I.
No Error in Denial of the Section 1172.6 Petition
Nowden contends the trial court erred in denying his section 1172.6
petition because there was no substantial evidence to support that he was a
major participant in the underlying felony and acted with reckless
indifference to human life. He also asserts the denial of his petition violates
his right to due process. We reject both contentions and find no error.
A. Felony Murder and Resentencing Under Amended Law
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), which “significantly limited the scope of the
6
felony-murder rule to effectuate the Legislature’s declared intent ‘to ensure
that murder liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’ ”
(Strong, supra, 13 Cal.5th at pp. 707–708.) The amended law “limits liability
under a felony-murder theory principally to ‘actual killer[s]’ ([§] 189,
subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet ‘the actual
killer in the commission of murder in the first degree’ (id., subd. (e)(2)).”
(Strong, at p. 708.) “Defendants who were neither actual killers nor acted
with the intent to kill can be held liable for murder only if they were ‘major
participant[s] in the underlying felony and acted with reckless indifference to
human life.’ ” (Ibid.)
Our Supreme Court has identified factors that are to be considered in
determining whether an individual was a major participant in a felony who
acted with reckless indifference to human life. The following nonexclusive
factors are used to determine whether a defendant was a major participant in
the felonies that resulted in death: (1) the defendant’s role in planning the
criminal enterprise that led to one or more deaths; (2) the defendant’s role in
supplying or using lethal weapons; (3) 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; (4) whether the defendant
was present at the scene of the killing, in a position to facilitate or prevent
the actual murder, or play a particular role in the death; and (5) the
defendant’s conduct after lethal force was used. (People v. Banks (2015)
61 Cal.4th 788, 799–803 (Banks).) The following nonexclusive factors are
used to determine whether the defendant acted with reckless indifference:
(1) the defendant’s use of or awareness of the presence of a weapon or
7
weapons; (2) the defendant’s physical presence at the scene and opportunity
to restrain confederates or aid the victim; (3) the duration of the crime;
(4) the defendant’s knowledge of any threat the confederates might represent;
and (5) the defendant’s efforts to minimize the risks. (People v. Clark (2016)
63 Cal.4th 522, 618–623 (Clark).)
Senate Bill 1437 also created a procedural mechanism for those
convicted under the former law to seek relief following the amendments.
(Strong, supra, 13 Cal.5th at p. 708; former § 1170.95, now § 1172.6.) Such
defendants may file a petition declaring “that ‘[t]he petitioner could not
presently be convicted of murder . . . because of [the] changes to . . . [s]ection
188 or 189.’ ” (Strong, at p. 708.) If the trial court determines the petition
establishes a prima facie case for relief, it issues an order to show cause and
the matter proceeds to an evidentiary hearing at which the prosecution bears
the burden of proving beyond a reasonable doubt that the petitioner is guilty
of murder under the law as amended by Senate Bill 1437. (§ 1172.6,
subds. (c), (d)(3); Strong, at pp. 708, 709.) If the prosecution fails to sustain
its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, must be vacated and the petitioner
must be resentenced on the remaining charges. (§ 1172.6, subd. (d)(3).)
B. Trial Court’s Ruling After Evidentiary Hearing
In denying Nowden’s section 1172.6 petition, the trial court applied the
factors identified in Banks and Clark and incorporated in CALCRIM 540B.
First, the court found the Banks factors weighed in favor of finding
Nowden was a major participant in the burglary and attempted robbery at
the Sedano home. The court explained the first two factors (planning of the
crime and supply and use of a weapon) were neutral because there was no
relevant evidence as to these factors. As to the third factor (knowledge of the
8
dangers posed by the crime, the weapons used, and the past conduct of the
participants), the court found Nowden intended to commit the crimes with
the goal of stealing drugs by force or fear, he expected deadly force to be used,
and he knew a gun was present. As to the fourth factor (facilitation of or
ability to prevent the death), the court found that despite Nowden’s
knowledge of the violent encounter he did not leave and did not allow Delores
to escape or intervene in the assault of her parents, actions that might have
prompted the other men to flee. Neither did Nowden anonymously call for
help nor encourage the other men to stop the crimes and leave the home. As
to the last and fifth factor (the assailant’s actions after the death), the court
highlighted the facts that Nowden made no effort to check on the victims and
showed no remorse or concern for them.
The court then turned to the Clark factors to determine whether
Nowden acted with reckless indifference to human life. As to the first Clark
factor (use of a weapon or awareness that a weapon was present), the court
found Nowden knew a gun and tape were being brought to commit the crime.
The court also found the second factor (physical presence at the scene and
opportunity to restrain confederates or aid the victim) weighed against
Nowden. It explained Nowden either saw Jose taped and bloody or
“purposely avoided looking in to see their condition but simply continued to
participate in the crimes.” As to the third factor (duration of the crime), the
court found the crimes did not occur quickly but, instead, lasted some 20
minutes, enough time to create a great risk of harm. As to the fourth factor
(knowledge of any threat the other assailants represented), the court found
Nowden knew a gun and tape were being brought to commit the crime, he
and the other men were prepared to engage in a violent home invasion, and,
while the men assaulted Jose and Isabel, Nowden “knew their plight.” Last,
9
the trial court found the fifth factor (efforts to minimize the risks) weighed
against Nowden because he facilitated the crimes, guarded the bathroom
door with Delores inside so she could not escape or aid her parents, and failed
to intervene in the killing or call for help.
Based on the evidence, the trial court found that Nowden would still be
guilty beyond a reasonable doubt of first degree murder under current felony
murder law because he was a major participant who acted with reckless
indifference to human life.
C. Analysis
We review a challenge to the trial court’s denial of resentencing under
section 1172.6 for substantial evidence. (People v. Emanuel (2025) 17 Cal.5th
867, 885 (Emanuel).) Under this standard, we “examine the record
independently for substantial evidence—that is, evidence which is
reasonable, credible, and of solid value that would support a finding beyond a
reasonable doubt.” (Banks, supra, 61 Cal.4th at p. 804 [cleaned up].) “We
review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the [trier of
fact] could reasonably have deduced from the evidence. Conflicts and even
testimony that is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.” (People v. Zamudio (2008) 43 Cal.4th
327, 357 (Zamudio) [cleaned up].) We do not reweigh the evidence or
reevaluate a witness’s credibility; we look for substantial evidence. (People v.
Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg); People v. Manibusan (2013)
58 Cal.4th 40, 87.) “The same standard governs in cases where the
10
prosecution relies primarily on circumstantial evidence.”7 (Zamudio, at
p. 357; Clark, supra, 63 Cal.4th at p. 610.) We will affirm the order unless
“upon no hypothesis whatever is there sufficient substantial evidence to
support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
1. Major Participant
Nowden groups the major participant factors together and challenges
the sufficiency of the evidence supporting these factors. Doing so, he argues
the fingerprint evidence is the only evidence that he took any part in the
crimes, and the trial court’s inferences from this evidence was the result of
improper speculation. He is mistaken. The record and all reasonable
inferences from the circumstantial evidence support the trial court’s
determination that Nowden was a major participant in the crimes. (People v.
Grant (2020) 57 Cal.App.5th 323, 330 [“ ‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that
evidence.’ ”].)
Because the trial court found the first two Banks major participant
factors to be neutral, we only consider Nowden’s claims that the evidence is
insufficient to support adverse findings on the third through fifth factors, i.e.
Nowden’s awareness of the particular dangers posed by the nature of the
crime, the weapons used, or past conduct of the other participants; whether
he was present at the scene of the killing, in a position to facilitate or prevent
7 Nowden acknowledges the courts of appeal have applied the
substantial evidence standard to the review of a trial court order denying a
section 1172.6 petition but, because the California Supreme Court has not
designated the applicable standard in such cases, he invites us to reconsider
the issue. We decline to do so but note that, for the reasons we shall explain,
the result here would be the same even if we were to apply de novo review.
11
the actual murder, or played a particular role in the death; and his conduct
after lethal force was used.
The evidence supports the trial court’s finding that Nowden knew of
the dangers posed by the crimes, even if there is no evidence he had specific
knowledge that weapons were to be used before the crimes began.
Specifically, the men broke through the door of an occupied home to rob
individuals they mistakenly believed were drug dealers of their contraband.
Thus, Nowden and the others must have expected a brazen confrontation
with criminals who would have a motive to protect themselves and the
purported drugs that formed their livelihood. And as the crimes unfolded,
Nowden became aware the other men violently confronted Jose and Isabel in
their room. (See People v. Montanez (2023) 91 Cal.App.5th 245, 272–274
(Montanez) [evidence supported third Banks factor where, among other
evidence, “[t]he warning signs that the crimes posed a serious risk of danger
to the victims accumulated as the crimes unfolded over the course of the
approximately 23 minutes”].)
As to Nowden’s physical presence at the scene and his opportunity to
restrain the other men or aid Jose, Nowden suggests there were four
assailants, and he was the unidentified fourth man who was not near the
bedroom where the others assaulted Jose and Isabel. But the evidence
supports a contrary finding. Although Delores told the 911 operator after the
crimes that there were three or four men, she testified at trial there were just
three men and the weight of the evidence supports her trial testimony. And,
if Nowden did not enter the bedroom where the other two men murdered
Jose, this means he was the man who stood outside the bedroom door. In
addition, there is no doubt he was the man who guarded the bathroom door
while Delores was inside, as his fingerprints were recovered from the area of
12
the door. From these locations inside the home, Nowden would have heard
the other men confronting Jose and Isabel and Isabel’s screams for help,
which Delores heard clearly from her bedroom down the hall. Rather than
entering the room to stop the assault or assist the victims, Nowden facilitated
the murder by ensuring Delores was unable to intervene on her parents’
behalf, or escape to seek help when she came out of her room to use the
bathroom. (See People v. Nieber (2022) 82 Cal.App.5th 458, 476–477 (Nieber)
[evidence supported fourth Banks factor where, at a minimum, defendant
was present when home invasion committed and assisted in the crimes of
burglary and robbery, he was present when violence was used against
victims, and DNA tied him to the scene].)
Last, the evidence regarding Nowden’s conduct after the murder
supports the trial court’s finding that he was a major participant. He did not
check on Jose and Isabel or call for help upon his retreat from the home.
(See Montanez, supra, 91 Cal.App.5th at p. 280 [fifth Banks factor weighed
against defendant where he was close enough to victim to have reason to
know he was in mortal danger but did not turn back to check on him]; see
also Nieber, supra, 82 Cal.App.5th at p. 477 [evidence supported fifth Banks
factor where, “[n]ot only did [the defendant] not render aid to the murder
victim, but he also left behind [victims], still bound with their faces
covered”].)
2. Reckless Indifference to Human Life
Nowden also challenges the sufficiency of the evidence that he acted
with reckless indifference to human life, by largely analogizing his case to
others where the felony murder finding was vacated, minimizing the evidence
against him, and dismissing the trial court’s findings as speculation. To the
extent he makes a proper challenge to the Clark factors, he relies on a
13
conclusory general assertion that “no evidence” supported them. We
therefore reject any challenge as undeveloped. (People v. Stanley (1995)
10 Cal.4th 764, 793.) Nevertheless, for the same reasons we find the
evidence sufficient to support the court’s findings on the Banks major
participant factors, we also find the evidence supports the court’s findings as
to each of the Clark factors.
As to the first Clark factor, it is reasonable to infer from the record that
Nowden knew of the gun, plastic handcuffs, and/or tape the men carried with
them to commit the crimes. Although the “mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to establish
reckless indifference to human life” (Clark, supra, 63 Cal.4th at p. 618), the
combination of crime tools carried by the assailants into a home where they
intended to commit a home invasion supports a finding that Nowden knew
violence was to be used against the victims. As to the second factor, Nowden
was close enough to the bedroom where Jose was assaulted so that he either
saw him taped and bloody or, as the trial court explained, “purposely avoided
looking in to see their condition.” From such proximity, he could have
attempted to stop the other men from assaulting Jose or rendered aid. (See
Clark, at p. 619 [failure to act as a restraining influence supports a finding of
greater fault for the resulting death].) As to the Clark factor related to
duration of the crime, the invasion of the Sedano home lasted some 20
minutes, long enough to “increase the risk of resistance, conflict, and
violence.” (Emanuel, supra, 17 Cal.5th at p. 886.) And, as to the fourth and
fifth Clark factors, the evidence shows that, even if Nowden did not know
when he entered the home that the other men posed a threat to the victims,
he heard the violent confrontation with Jose and Isabel, as well as Isabel’s
resulting calls for help. By this point, he knew his cohort’s were likely to kill
14
but did nothing to minimize the risks. (See Clark, at p. 621 [knowledge of an
accomplice’s propensity to kill may arise during the felony].)
Nowden also contends the denial of his section 1172.6 petition was
erroneous because the trial court failed to consider his youth at the time of
the crimes as a factor in its reckless indifference analysis. However, the
record shows the court did, in fact, consider this factor.
Since at least 2021, courts have recognized that a defendant’s youth at
the time of the felony victim’s death is relevant to the reckless indifference
analysis. (See Emanuel, supra, 17 Cal.5th at p. 885, fn. 6; People v. Harris
(2021) 60 Cal.App.5th 939, 960 (Harris); In re Moore (2021) 68 Cal.App.5th
434, 453 (Moore) [“It is well recognized that children generally are less
mature and responsible than adults and often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them. As a result, the law has historically reflected the same
assumption that children characteristically lack the capacity to exercise
mature judgment and possess only an incomplete ability to understand the
world around them.” (cleaned up.)].) In light of the recognition that a
defendant’s youth is a relevant factor in determining whether he or she
formed the requisite reckless indifference, California’s model jury instruction
on first degree felony murder enumerates the defendant’s age as one of the
factors a trier of fact should consider when making a determination on the
element of reckless indifference. (CALCRIM No. 540B.)
After Harris and Moore, courts of appeal have held it to be error where
a trial court has failed to consider the defendant’s youth before denying
resentencing under former section 1170.95, but only where the denial was
made before or soon after Harris and Moore provided guidance on the
relevance of the defendant’s youth and defense counsel did not highlight the
15
issue for the court. (See People v. Jones (2022) 86 Cal.App.5th 1076, 1091–
1093 (Jones); People v. Oliver (2023) 90 Cal.App.5th 466, 488 (Oliver).) We do
not have those circumstances here. In this case, the trial court issued its
denial order in March 2024, years after Moore and Harris were decided.
Further still, defense counsel argued that Nowden’s youth negated his ability
to form the requisite reckless disregard for human life in the trial court.
Crucially, the trial court expressly stated it was applying the factors
enumerated in CALCRIM No. 540B, which include consideration of the
defendant’s age. Under these circumstances, we have no reason to deviate
from the normal presumption that the trial court followed the law and “duly
considered the evidence.” (Jones, supra, 86 Cal.App.5th at p. 1092.)
3. Due Process and Youth Factor
Last, Nowden argues the trial court’s denial of his section 1172.6
petition violated due process because it was not supported by substantial
evidence. Because we conclude substantial evidence supports the court’s
order, Nowden’s due process argument necessarily fails.
II.
No Error in Denying Resentencing Under Section 1172.1
A. Trial Court’s Ruling
Upon denying Nowden’s section 1172.6 petition, the trial court set a
new hearing to consider whether section 1385 permitted it to strike the
special circumstance allegations. In response, Nowden invited the court to
vacate his conviction for first degree murder and resentence him on the lesser
included offense of second degree murder under section 1172.1, effectively
disposing of the special circumstance allegations. At the hearing on the
16
section 1172.1 petition, the court and the parties agreed Nowden had filed
the motion at the invitation of the court.8
The trial court denied Nowden’s section 1172.1 petition. The court
found it could not modify Nowden’s sentence by reducing his term of
imprisonment under section 1172.1, subdivisions (a)(1) and (a)(3)(A), because
the motion was made more than 120 days after his commitment and none of
the applicable sentencing laws had been changed. It then considered
whether to vacate Nowden’s first degree murder conviction and resentence
him on a charge of second degree murder pursuant to section 1172.1,
subdivision (a)(3)(B) and found such relief was not in the interest of justice.
In doing so, the court stated that it “weigh[ed] all the factors” and expressly
discussed in its written order Nowden’s traumatic childhood, the role his
childhood played in developing “who [he] was at the time of the murder,” his
transformation while in prison, the “horrendous” facts of the underlying
offense, and the vulnerability of the victim.
8 The People argue Nowden’s appeal should be dismissed to the extent he
challenges the trial court’s ruling on resentencing under section 1172.1. The
People contend the trial court’s ruling does not amount to an appealable
order because it was issued in response to Nowden’s own request for relief
under section 1172.1, which is not permitted under the statute and, thus, the
trial court was under no obligation to address Nowden’s motion at all. (See
People v. Brinson (2025) 112 Cal.App.5th 1040, 1049 [defendant requesting
relief under section 1172.1 “does not have a substantial right at stake, and
the trial court’s decision on that request is not appealable”].) But as both the
trial court and the People acknowledged, the court had invited the section
1172.1 motion. For this reason, we decline to dismiss this claim and instead
resolve it on the merits.
17
B. Relevant Legal Principles
“Section 1172.1 provides authority for a trial court to recall the
sentences of incarcerated defendants and resentence them under certain
circumstances. It is a statutory exception to the general rule that once a
judgment is rendered and execution of the sentence has begun, the trial court
does not have jurisdiction to vacate or modify the sentence.” (People v.
Wilson (2025) 109 Cal.App.5th 198, 201 [cleaned up].) Relevant here, a trial
court “may, on its own motion, within 120 days of the date of commitment or
at any time if the applicable sentencing laws at the time of original
sentencing are subsequently changed by new statutory authority or case
law . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously
been sentenced.” (§ 1172.1, subd. (a)(1).) In doing so, the court may, in the
interest of justice, “[v]acate the defendant’s conviction and impose judgment
on any necessarily included lesser offense or lesser related offense, whether
or not that offense was charged in the original pleading, with the concurrence
of the defendant, and then resentence the defendant to a reduced term of
imprisonment.” (Id., subd. (a)(3)(B).)
The resentencing court must “apply the sentencing rules of the Judicial
Council and apply any changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to promote
uniformity of sentencing.” (§ 1172.1, subd. (a)(2).) It must also “consider
postconviction factors, including, but not limited to, the disciplinary record
and record of rehabilitation of the defendant while incarcerated, evidence
that reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and evidence that
reflects that circumstances have changed since the original sentencing so
18
that continued incarceration is no longer in the interest of justice.” (Id.,
subd. (a)(5).) In addition, the court shall consider evidence “the defendant
has experienced psychological, physical, or childhood trauma, . . . or if the
defendant is a youth or was a youth as defined under subdivision (b) of
Section 1016.7 at the time of the commission of the offense, and whether
those circumstances were a contributing factor in the commission of the
offense.” (Ibid.)
We review a trial court’s decision whether to recall and resentence a
defendant on its own motion pursuant to section 1172.1, subdivision (a) for
abuse of discretion. (People v. Craig (2026) 117 Cal.App.5th 1165, 1175;
People v. Olea (2025) 115 Cal.App.5th 889, 902–903 (Olea).) “To establish an
abuse of discretion, a defendant must establish the court ‘act[ed] while
unaware of the scope of its discretion” [citation], “considered impermissible
factors” [citation], or made a choice “so irrational or arbitrary that no
reasonable person could agree with it” [citation].” (Olea, at pp. 902–903.)
C. Analysis
Nowden challenges the factual support for the trial court’s order
denying relief under section 1172.1. Specifically, he argues the evidence,
which was comprised only of his fingerprints found near the bathroom, did
not support the trial court’s finding as to how large a role he played in the
crimes. But, as we explained with respect to Nowden’s section 1172.6
petition, the trial court relied on both the fingerprint evidence, trial
testimony, and reasonable inferences flowing from this evidence to determine
the extent to which he participated in the crimes. And, as we found this
evidence sufficient to support the trial court’s finding that Nowden was a
major participant in the crimes, we also find it sufficient to support the
court’s finding that the facts of the crimes committed here, and Nowden’s role
19
in committing them, weighed against eligibility for resentencing under
section 1172.1.
Contrary to Nowden’s argument, the trial court did not fail to consider
any of the applicable factors, including whether his current age and the
amount of time served diminished his risk of future violence, or his youth at
the time of the offense. Although the court did not elaborate on each of the
applicable factors, it stated it “weigh[ed] all the factors,” and it fairly
addressed the factors Nowden highlights, albeit not with great elaboration.
Specifically, the court considered Nowden’s “time in prison,” during which,
the court noted, he “had an amazing transformation into a very productive
responsible inmate.” The court could not have undertaken an analysis of this
factor without considering the age Nowden had attained while in prison and
the amount of time he had served. In addition, the court stated it considered
how Nowden’s traumatic childhood “played a part in the development of who
[he] was at the time of the murder,” (italics added) a consideration that
necessarily would have included his youth and immaturity.
We further note that the record supports the trial court’s weighing of
the relevant factors here. As the court recognized, Nowden has made
commendable gains and has aged and matured during his many years of
incarceration. In addition, he experienced a traumatic childhood, which
would have influenced how he behaved when he committed these crimes in
his youth. Nevertheless, the trial court’s conclusion that these factors do not
outweigh Nowden’s significant role in facilitating these egregious crimes and
his failure to act to prevent Jose’s death despite being in a position to do so,
was not so irrational or arbitrary as to amount to an abuse of discretion.9
9 Because we affirm the court’s denial of relief under section 1172.1, we
20
Because we find the trial court properly exercised its discretion when it
denied Nowden resentencing under section 1172.1, we further reject his
argument that the trial court violated his federal due process rights by failing
to properly exercise its discretion.
III.
Nowden’s Section 3051 Argument Is Not Properly Before Us in this Appeal
Under section 3051, “most persons incarcerated for a crime committed
between ages 18 and 25 are entitled to a parole hearing during the 15th,
20th, or 25th year of their incarceration.” (People v. Hardin (2024) 15 Cal.5th
834, 838 (Hardin).) But “[t]he statute excludes . . . offenders who are serving
sentences of life in prison without the possibility of parole for a crime
committed after the age of 18.” (Id. at pp. 838–839.) In Hardin, the
California Supreme Court found section 3051 did not violate equal protection
on its face by excluding offenders with a life without parole sentence for
murder with special circumstances while providing youth offender parole
hearings to other murderers who received an indeterminate life sentence.
(Id. at pp. 858–864.) Nevertheless, the court left open the possibility that
offenders might be able to bring as-applied equal protection challenges to
section 3051. (Id. at pp. 839, 862, 864.)
After Nowden’s resentencing hearing in the trial court, the First
Appellate District considered just the type of as-applied equal protection
challenge contemplated by Hardin. In People v. Briscoe (2024) 105
Cal.App.5th 479 (Briscoe), the court found section 3051 violated equal
protection as applied to exclude from parole consideration a youth offender
do not address the parties’ arguments about whether section 1385 impacted
the trial court’s authority to vacate Nowden’s first degree murder conviction
under section 1172.1.
21
“sentenced for special circumstance murder under section 190.2,
subdivision (d)—which applies to nonkiller participants in specified felony
offenses during which a murder occurred—while including those convicted of
nonspecial circumstance first degree felony murder for the same specified
felony offenses per the exact same standard under section 189,
subdivision (e)(3).” (Briscoe, at pp. 485, 490–494.)
Relying on Briscoe, Nowden argues he should be entitled to a youth
offender parole hearing under section 3051, and the provision of that statute
rendering him ineligible for such a hearing due to his life without parole
sentence violates equal protection as applied to him. But Nowden never
requested a youth offender parole hearing under section 3051 in the trial
court. Nor did he argue to the trial court during the proceedings on his
resentencing matters that he should be eligible for a youth offender parole
hearing. Nowden relies on his arguments in the trial court that section
190.2’s mandatory life without parole sentence violates equal protection. But
this equal protection argument had nothing to do with a youth offender
parole hearing under section 3051.
Because Nowden never raised the issue of a youth offender parole
hearing in the trial court, there is no trial court order on the issue. And
absent an appealable order, we have no jurisdiction to review the issue on
appeal. (People v. Vaesau (2023) 94 Cal.App.5th 132, 143 [“Absent an
appealable order, an appellate court lacks jurisdiction to consider an
appeal.”].) Even if we could conclude the trial court’s orders on the
resentencing petitions were sufficient to support Nowden’s appeal on the
issue of a youth offender parole hearing, his equal protection argument here
would be forfeited because he did not raise it in the trial court. (See People v.
Fruits (2016) 247 Cal.App.4th 188, 208 [“a party cannot argue on appeal that
22
the trial court erred in failing to conduct an analysis it was not asked to
conduct”]; People v. Fuiava (2012) 53 Cal.4th 622, 655, [“A defendant
ordinarily cannot obtain appellate relief based upon grounds that the trial
court might have addressed had the defendant availed him or herself of the
opportunity to bring them to that court’s attention”].)10
DISPOSITION
The orders are affirmed.
10 We recognize Nowden could not have raised an argument directly
premised on the analysis in Briscoe during his resentencing proceedings in
the trial court because Briscoe was decided after the court denied his
resentencing petitions. Nevertheless, Hardin was decided before Nowden’s
resentencing proceedings and left open the possibility for an as-applied equal
protection challenge. In fact, Nowden’s counsel acknowledged Hardin in his
briefing in the trial court and appeared to make a conscious choice not to
bring such an as-applied equal protection challenge there.
We further recognize that application of the forfeiture rule is
discretionary (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7) and an
exception to the rule exists where the claimed error is “capable of correction
without reference to the particular sentencing record developed in the trial
court,” and is a pure question of law “easily remediable on appeal by
modification of the condition” (id. at pp. 887, 888). Nowden’s equal protection
claim falls outside this exception, as it is an as-applied context-driven claim
rather than one raising purely a question of law and is not “capable of
correction without reference to the particular sentencing record developed in
the trial court[.]” (Id. at p. 887.) The principle of judicial restraint also
counsels against entertaining Nowden’s constitutional attack at this
juncture. (See Santa Clara County Local Transportation Authority v.
Guardino (1995) 11 Cal.4th 220, 230–231, quoting Lyng v. Northwest Indian
Cemetery Protective Ass’n (1988) 485 U.S. 439, 445 [“ ‘A fundamental and
longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding
them.’ ”].)
Nothing in our decision precludes Nowden from filing in the trial court
a motion for a youth offender parole hearing under section 3051 and/or a
motion for a proceeding pursuant to People v. Franklin (2016) 63 Cal.4th 261.
23
DO, J.
WE CONCUR:
MCCONNELL, P. J.
KELETY, J.
24