P. v. Olayo CA6

Filed 10/2/26 P. v. Olayo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052353
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. BB304492)

v.

DAVID ARMARO OLAYO,

Defendant and Appellant.

Defendant David Armaro Olayo planned and participated in a residential burglary
during which a companion killed a 77-year-old woman. Defendant was convicted by jury
of first degree felony murder, robbery, and burglary, with various sentencing
enhancements, and was sentenced to 25 years to life. Defendant petitioned for
resentencing under former Penal Code section 1170.95 (since renumbered to Penal Code
section 1172.6 without substantive change). After an evidentiary hearing, the trial court
denied the petition, finding that defendant was a major participant who acted with
reckless indifference to human life. Defendant now appeals that denial, contending the
evidence is insufficient to support the order. For the reasons explained here, we will
affirm the order.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by amended information with first degree murder (Pen.
Code, § 187; count 1), robbery (Pen. Code, §§ 211, 212.5; count 2), and residential
burglary (Pen. Code, §§ 459, 460, subd. (a); count 3). (Unspecified statutory references
are to the Penal Code.) It was also alleged that defendant committed robbery in an
inhabited dwelling while acting in concert with two or more persons (§ 213,
subd. (a)(1)(A)), that a victim was present in the residence during the commission of
burglary (§ 667.5, subd. (c)(21)), and that defendant knew or reasonably should have
known that the victim was 65 years old or older (§ 667.9, subd. (a).) After the jury found
defendant guilty on all counts in 2005, the trial court sentenced him to 25 years to life on
count 1 and stayed sentences on counts 2 and 3 pursuant to section 654. The judgment
was affirmed on direct appeal. (People v. Olayo (Oct. 31, 2006, H029202 [nonpub.
opn.].)
We take the following factual summary from the later opinion in case
No. H047230, defendant’s successful challenge to the denial of his resentencing petition
at the prima facie stage.1 “Eighty-three-year-old Desire Telmont lived with 77-year-old
Doris Condon for 32 years in her house on Jardin Drive in Mountain View. On
October 25, 2003, he left the house between 9:00 and 10:00 a.m. to run some errands and
Condon stayed home. Telmont expected the gardeners to arrive around 2:00 p.m., but
when he arrived home around 1:35 p.m. they were already there working in the front
yard. He entered the house through the side door and did not see Condon where he
expected to find her. He saw some of his things out of place in his bedroom and his
closet and drawers open. He then found Condon lying in a pool of blood in the living
room with one of his gray sweatshirts wrapped around her neck. He called 911.
“At 1:43 p.m. on October 25, 2003, Mountain View firefighter paramedics
responded to a call from the Jardin Drive residence regarding a possible fall victim.
When they arrived they found Condon lying face down on the carpet in the living room.
Although there was a lot of blood on the carpet, Condon was conscious and was able to
respond when the paramedics talked to her. They moved a couple of items in the room in
order to attend to her, including a sweatshirt that was near her head. They turned her
over onto her back and found that she was bleeding from the nose and ears, that she had a

1
Based on our review of the trial transcripts, we find the opinion in People v.
Olayo (Apr. 20, 2021, H047230) to be an accurate summary of evidence admitted at trial.
We therefore quote its recitation of the facts here.

2
large hematoma on her forehead, and that her eyes were swollen shut. Telmont told the
paramedics that articles in the house had been moved and were not in their usual location.
The paramedics contacted the police. Condon was taken by ambulance to the hospital
within 10 minutes.
“Mountain View police officers responded to the residence. They found a blood-
spattered gray sweatshirt in the living room. A desk in Condon’s bedroom had been
ransacked, a chair had been overturned, a safe was toppled over, and there was a section
of an orange and a shoulder bag on the floor. The wallet attached to the shoulder bag was
missing, and Telmont testified that Condon usually kept $300 to $500 in that wallet. The
safe was locked, which was unusual, and still contained the personal papers, stocks, cash,
and gold and silver coins that were kept there. A jewelry box on top of Condon’s dresser
appeared undisturbed, a cup containing dollar bills was left on top of the desk, and an
envelope containing $3,600 was still in the desk. Officers also found orange peels near
the street outside the residence.”
“Condon was in critical condition when she arrived at the hospital. She had a
skull fracture, bilateral frontal contusions, subdural hemorrhaging, a neck fracture, two
rib fractures, and multiple facial fractures. She was originally lucid and communicative
but was nonresponsive the following day. She eventually fell into a vegetative state. On
November 28, 2003, Carol Brainerd, Condon’s daughter, decided to withdraw life
support because the attending doctors agreed that Condon would not have any quality of
life and Condon had left written instructions stating that she did not wish to have life
support extend her life. The pathologist who performed the autopsy determined that the
cause of Condon’s death was complications of blunt force injuries of the head and neck.
“Andres Arellano had been doing gardening work every Saturday for Condon and
Telmont for several years before October 25, 2003. He would usually arrive at 2:00 p.m.,
but on Saturday, October 25, 2003, he arrived around 1:00 p.m. with his helper. As he
arrived he saw a man he did not recognize standing in the doorway of the home next to
the garage and looking from side to side. He also saw a second man walking down the
sidewalk eating something. Both men then went inside the home. Arellano worked on

3
the front and back yards and did not hear anything unusual. While he was using the
blower in the front yard the second man passed him after leaving the house by the same
door he had entered. The man walked over to a third man who was waiting by a car, and
then both of them got in the car. They made a U-turn and drove past Arellano as they
left. Arellano never saw the first man leave the house or get into the car, nor did he see
Telmont arrive home. He saw Telmont’s truck parked on the street shortly before the
paramedics arrived. At trial Arellano identified [defendant] as the second man, a picture
of Enrique Chavez as the first man, and a picture of Jose Sosa as the third man.
“Lilia Olayo, [defendant’s] sister, had been Condon and Telmont’s house cleaner
for a few years, and came every other Thursday. She always brought a helper with her
and [defendant] helped her for about a year. Condon was always at home when Olayo
arrived and Telmont testified that he saw [defendant] at the house six to eight times prior
to October 25, 2003.
“Following Condon’s death, officers received information from citizen informants
that led to the investigation and arrest of [defendant], Enrique Chavez and Jose Sosa.
Chavez was arrested on December 3, 2003, Sosa was arrested on December 6, 2003, and
petitioner was arrested on December 7, 2003. Officers videotaped their December 7,
2003 interview of defendant, and DVDs of the videotape were admitted into evidence.
“After [defendant] was read his Miranda rights and said that he understood them,
he told the officers that he had cleaned Condon and Telmont’s house with his sister.
Then, one day when he and his friend, Chavez, were drinking beer, Chavez told
[defendant] that if he showed Chavez a place where they could steal, Chavez would give
him some money. Because he was drunk, [defendant] took Chavez to Condon’s house.
Chavez’s friend, Sosa, drove them, but Chavez told Sosa only that Chavez was going to
get some money that was owed him. Chavez told [defendant] to wait outside. Chavez
got out of the car and went inside and [defendant] stayed outside. After [defendant]
heard Condon screaming, he looked inside. He saw Condon down on the floor, bleeding
from the mouth and trying to get up, and Chavez in another room. [Defendant] called out
for Chavez but he did not answer. [Defendant] was frightened so he left; he did not try to

4
help Condon. When the gardeners came he went inside. Chavez was pulling on a heavy
safe. [Defendant] grabbed a wallet from inside a purse in the bedroom and went back to
the car. Sosa asked him what they were doing. When [defendant] said that Chavez came
to burglarize the house, Sosa said that if he had been aware beforehand he would have
participated more. Chavez stayed in the house for a while then came out, running.
Chavez told [defendant] that Condon had confronted him, that he had beaten and kicked
her, and that he had left his shirt behind. Chavez had taken some one dollar bills and
there were about two hundred dollars in the wallet [defendant] had taken. They divided
up the money and [defendant] got about $70.
“[Defendant] said that he was telling the officers the truth because they knew that
Chavez was the one who hurt Condon, and that they only wanted to know who took him
to the house. He said that he wanted to tell Condon’s daughters that he was at the house
and that he went inside and participated in the stealing, but that he did not know what was
going to happen to Condon. He said that he would like to ask for their forgiveness for
having taken Chavez there. He wrote a one-page letter expressing remorse and
requesting forgiveness.
“Shortly after his interview, officers placed [defendant] in the same interview
room with Chavez, and the two of them were alone for about 30 minutes. During their
conversation, which was videotaped, [defendant] said that during his police interview
‘that job came up’ and that the ‘old lady died I think.’ [Defendant] also said that the
police had shown him photos of Chavez and Sosa, and that they knew about the wallet.
“On November 30, 2003, Brainerd found a black T-shirt in Condon’s bedroom
that did not belong to Condon. She turned the T-shirt over to the police. A criminalist at
the county crime lab determined that Condon was the source of the blood stains found on
the T-shirt. The criminalist also determined that DNA from both Chavez and Condon
were on the T-shirt. The orange section found in Condon’s bedroom and the orange peels
found outside her home were also tested for DNA. A criminalist eliminated Enrique
Chavez as a source of the DNA found on the orange peels and the orange section, but

5
determined that [defendant] was the source of the DNA found on one of the orange peels,
and was included as a possible contributor of the DNA found on four other orange peels.”
A. PETITION FOR RESENTENCING
In 2019, defendant petitioned for resentencing under what is now section 1172.6,
and that petition was denied at the prima facie stage. A different panel of this court
reversed the denial and remanded the matter for an evidentiary hearing under
section 1172.6, subdivision (d)(3). (People v. Olayo (Apr. 20, 2021, H047230 [nonpub.
opn.].) At the evidentiary hearing in 2024, the prosecution introduced the reporter’s
transcripts from defendant’s trial, and defendant introduced testimony from two
psychologists regarding his youth and intellectual disabilities at the time he committed
the offenses.
Dr. Rahn Minagawa tested defendant and concluded that based on defendant’s low
IQ (between 64 and 66) he suffered from significant intellectual impairment, including
intellectual developmental disorder of mild severity (formerly referred to as mild mental
retardation) and other specified neurodevelopmental disorder with congenital factors.
Dr. Minagawa opined that defendant’s ability to process information quickly and to make
informed decisions in the presence of his peers and in emotionally charged situations—
including his ability to predict the impact of injuries on other people—would have been
impaired by his incomplete brain development, his lower level of intellectual functioning,
and his alcohol and marijuana use disorders.
Dr. Ines Monguio also evaluated defendant, diagnosed him as suffering from a
neurodevelopmental disorder and opined that at the time of the offenses, he was
functioning at an intellectually deficient level and would have had a poor understanding
of social norms and expectations. Based on intelligence testing, she also determined that
defendant was mildly intellectually disabled. Dr. Monguio concluded that defendant
would have great difficulty predicting the consequences of his actions and his ability to
accurately assess and predict the consequences of his actions would likely not be very
good.

6
B. TRIAL COURT DECISION
The trial court denied the resentencing petition by written order. The court
identified the following facts in support of its finding that defendant was a major
participant under People v. Banks (2015) 61 Cal.4th 788 (Banks).2 Defendant played a
substantial role in planning and participating in the burglary that resulted in the robbery
and murder of Condon. It was defendant’s idea to target Condon’s home, which he knew
from helping his sister clean the house in the past. Defendant led Chavez there after
Chavez claimed he would get defendant money if defendant showed him a place to break
in. Defendant initially served as a look-out while Chavez entered Condon’s home, then
he went inside and stole items after Chavez had beaten Condon unconscious.
The trial court found that several aspects of defendant’s plan and conduct elevated
the risk to human life beyond what is inherent in any residential burglary: Defendant
chose to go to with two others to break into a home on a Saturday afternoon (when
residents would likely be home), and he knew the residents were elderly. Based on
Dr. Minagawa’s testimony that defendant stated he had seen Chavez fight with and leave
someone bleeding in the street, defendant also knew of Chavez’s violent propensity.
During the crime, defendant became fully aware of Chavez’s capability of using lethal
force after seeing what Chavez had done to Condon.
The trial court found defendant was in a position to prevent Condon’s death, and
that his failure to help her contributed to her death. The court cited the police photos of
Condon’s injuries in determining that her visible condition would have put any
reasonable person on notice that she had suffered life-threatening injuries requiring

2
The following factors are relevant to the major participant analysis:
(1) defendant’s role in planning the criminal enterprise leading to the death;
(2) defendant’s role in supplying or using lethal weapons; (3) defendant’s awareness of
any particular dangers posed by the nature of the crime, weapons used, or past experience
or conduct of co-participants; (4) defendant’s presence at the scene and actions (or
inaction) that contributed to the death; (5) a defendant’s ability to prevent or facilitate the
killing; and (6) a defendant’s actions after lethal force was used. (Banks, supra,
61 Cal.4th at p. 803.) No one factor is required, nor is any one necessarily sufficient.
(Ibid.)

7
immediate medical care. (The court noted that after seeing Condon’s injuries for the first
time, defendant was frightened and retreated outside, and if he “had left the scene at this
point, the court would not find that he was recklessly indifferent to human life.”) But
instead of helping Condon, defendant ignored her, proceeded to locate her purse in a
bedroom to steal her wallet, and then left her for dead. The court found that by not
alerting neighbors, gardeners on site, or calling 911, his inaction delayed potentially
lifesaving medical intervention.
The court also found that defendant’s failure to protect Condon resulted in
Chavez’s second assault (in which he stomped on her and attempted to strangle her) on
his way out of the house. The court found that defendant knowingly ignored the risk that
Chavez would attack Condon a second time when left alone with Chavez. Defendant told
police that he was frightened after seeing what Chavez had done to Condon and admitted
he was worried about her condition, but it did not occur to him to help her because he
feared being implicated in the assault. Even after defendant became aware of Condon’s
grave condition in the hospital, he did not contact police. Instead, he continued to
conceal his knowledge about the crime and the identity of Condon’s attacker.
The court identified the following facts in support of its finding that defendant
acted with reckless indifference to human life under People v. Clark (2016)
63 Cal.4th 522 (Clark). First, the court acknowledged there was no weapons evidence,
no evidence defendant knew that Chavez planned for violence to occur, and no evidence
that Chavez had previously used lethal force. But the court reiterated its finding that
defendant’s plan (i.e., a Saturday afternoon burglary where elderly residents were likely
to be home, failing to check if anyone was home, and entering the home through an
unlocked door suggesting someone was indeed home) elevated the risk to human life
beyond the risks inherent in a residential burglary. Although there was no evidence that
defendant knew beforehand that Chavez intended to assault anyone, the trial court
concluded that defendant “certainly figured it out during perpetration of the felony.” The
court found that defendant was in a position to anticipate the potential for loss of human

8
life during a burglary lasting long enough that defendant could have engaged in efforts to
minimize the violence and injuries to the innocent victim.
Regarding defendant’s proximity and opportunity to restrain Chavez or aid
Condon, the trial court repeated its finding that defendant was present during the entire
events and could have stopped Chavez or helped Condon. Defendant heard Condon’s
screams when Chavez assaulted her the first time, but did not attempt to intervene or
render aid. Nor did defendant recognize the beating of Condon as not part of the plan or
attempt to separate himself from Chavez. Instead, defendant took advantage of Condon’s
condition to enter her house and steal her purse. And upon seeing that Chavez was
capable of using lethal force, defendant did nothing to protect Condon from another
possible assault when he left for the getaway car. After Chavez told defendant he had
attacked Condon a second time on his way out, defendant knew no form of help was
coming for Condon. The court found those actions were inconsistent with someone who
was surprised by or rejected the violent turn of events.
With respect to the length of the criminal activity, the court found that the crime
“was a prolonged burglary that became a robbery.” Although the precise duration was
never established, the court noted that by the time gardeners arrived at 1:00 p.m., Chavez
had already assaulted the victim. Once defendant went inside the house, he had ample
time to leave and return, locate the victim’s purse in the bedroom and steal her wallet,
refuse to help Chavez move the safe, and urge that they leave because the gardeners were
outside. Meanwhile, the gardeners had enough time to trim and blow the front and back
of Condon’s house. The trial court found defendant must have recognized that the length
of time extended the window of opportunity for Chavez to perpetrate violence against
Condon, particularly because he saw that Chavez had already resorted to extreme
violence to execute their plan.
The court found defendant’s youth and mental limitations were not significant
mitigating factors because defendant was not an immature or impulsive teenager who did
not fully appreciate the risks and consequences of his actions. Rather, he was a young
adult who at age 20 had a job, supported a wife and child, paid his rent on time, owned a

9
car and managed the responsibilities of adulthood. Nor was there evidence that defendant
was scared, pressured or manipulated by Chavez or otherwise influenced by peer pressure
because of his young adult age, inexperience, adolescent brain, or low IQ.
Defendant acted independently during the events by refusing Chavez’s request to
help take the safe and telling Chavez that it was time to leave, which the court viewed as
significant because it demonstrated defendant making independent decisions in an
emotionally charged situation that tends to negatively impact cognitive control or
capacity. The court concluded that defendant likewise could have stopped participating
in the burglary and robbery once he saw the violence Chavez was capable of.
Defendant’s actions showed he was well aware of the particular dangers posed by the
nature of the crime and the beating of the elderly victim, and he admitted he was
“ ‘worried for the lady’ ” but still chose to take a calculated risk to continue with the plan
to steal from her and not provide any aid despite her obviously grave condition. He
knowingly created a grave risk of death by taking no action to help her, and then leaving
her alone with Chavez again.
Similarly, the trial court found that defendant’s statements to police about his
mental state and conduct proved beyond reasonable doubt that he was not so impaired by
mental disabilities that he could not act with reckless indifference or conscious disregard
to human life. The court found no persuasive evidence from the circumstances of the
crime itself to support the proposition that defendant had a less culpable mental state at
the time of the crime because of his young adult age, inexperience, adolescent brain, or
low IQ. The trial court identified several examples where defendant’s experts agreed that
defendant’s actions showed he was capable of executive functioning consistent with goal-
directed conduct, planning, problem solving and executing tasks, as well as assessing
risks and appreciating consequences. Finally, the court noted there was no evidence that
alcohol or other substance use played any role in impairing defendant’s cognitive
abilities, judgment or decision-making during the crime.

10
II. DISCUSSION
Defendant “acknowledges that the evidence tended to prove that he helped to plan
the burglary and therefore the evidence was arguably sufficient to support the trial court’s
major participant finding.” We accept defendant’s concession that substantial evidence
supports the trial court’s finding that defendant took an active role in planning and
participating in the burglary and robbery that led to Condon’s death. However, defendant
contends there was “no evidence whatsoever” to support all but one of the Clark factors,
including elements of the trial court’s major participant analysis that overlap with its
reckless indifference finding. (See In re Loza (2017) 10 Cal.App.5th 38, 52 (Loza)
[Banks factors significantly overlap with and are highly relevant to the reckless
indifference analysis]; Clark, supra, 63 Cal.4th at p. 615 [The greater the defendant’s
participation in the felony murder, the more likely that he acted with reckless indifference
to human life.].)
A. LEGAL PRINCIPLES AND STANDARD OF REVIEW
We review the trial court’s findings after a section 1172.6, subdivision (d)(3),
evidentiary hearing for substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981,
988.) We presume the existence of every fact that can be reasonably deduced from the
evidence, and we do not revisit credibility issues or resolve evidentiary conflicts. (People
v. Owens (2022) 78 Cal.App.5th 1015, 1022.) Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that evidence.
(People v. Brooks (2017) 3 Cal.5th 1, 57.) Before we may set aside a trial court’s order,
it must be clear that upon no hypothesis whatever is there sufficient substantial evidence
to support it. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
The culpable mental state of “reckless indifference to life” is one in which the
defendant knowingly engages in criminal activities known to carry a grave risk of death.
(People v. Estrada (1995) 11 Cal.4th 568, 577.) “The defendant must be aware of and
willingly involved in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or her actions
create.” (Banks, supra, 61 Cal.4th at p. 801.) “[I]t encompasses a willingness to kill (or

11
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.” (Clark, supra, 63 Cal.4th at
p. 617.) Reckless indifference to human life has subjective and objective elements. (In
re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) A defendant must be subjectively
aware of and willingly involved in the violent manner in which the particular offense is
committed, and must consciously disregard the significant risk of death his or her actions
create. (Ibid.) And the risk of death must be objectively such that, considering the nature
and purpose of the defendant’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the same situation. (Ibid.)
The Supreme Court has identified the following factors as relevant to the reckless
indifference analysis: (1) defendant’s knowledge of the presence of a weapon, the
number of weapons, and defendant’s use of a weapon; (2) defendant’s physical presence
at the crime and opportunity to prevent the crime or help the victim; (3) the duration of
the felony; (4) defendant’s knowledge of any accomplice’s likelihood to kill; and
(5) defendant’s efforts to minimize the risk of violence during the felony. (Clark, supra,
63 Cal.4th at pp. 618–622.) No one factor is necessary, nor is any one necessarily
sufficient. (Id. at p. 618.) We agree with courts concluding that a defendant’s youth at
the time of the offense can also be a relevant factor in determining reckless indifference
to human life. (In re Moore (2021) 68 Cal.App.5th 434, 454; People v. Jones (2022)
86 Cal.App.5th 1076, 1093.)
B. SUBSTANTIAL EVIDENCE SUPPORTS THE RECKLESS INDIFFERENCE FINDING
1. The Banks Factors Support the Reckless Indifference Finding
Defendant argues that some of the Banks factors do not support the trial court’s
reckless indifference finding because there was no evidence of weapons, a plan to kill,
awareness that the victim was likely to be killed, awareness that Chavez was likely to use
lethal force, or a likely violent response by the victims. We acknowledge that the
absence of such evidence may in some cases militate against findings of major
participation or reckless indifference. But residential burglary necessarily creates a high

12
risk of violence if the victim is home or returns home during the crime. (People v.
Weaver (1984) 161 Cal.App.3d 119, 127.) Defendant’s plan raised that already high risk
by targeting a known residence on a Saturday afternoon when the elderly residents were
very likely to be at home. The risk of a violent confrontation with the residents was
compounded by defendant’s and Chavez’s failure to investigate whether anyone was
home before Chavez walked through an unlocked door. Unsurprisingly, that plan
resulted in Chavez immediately assaulting Condon upon entering the house.
2. The Clark Factors Support the Reckless Indifference Finding
a. Defendant Had the Opportunity to Prevent the Crime or Render Aid
The second Clark factor addresses defendant’s presence during the crime. We are
unpersuaded by defendant’s argument that the reckless indifference finding is
undermined by the fact that he was not inside the house during Chavez’s assaults on
Condon and therefore had no opportunity to restrain Chavez. Although there was no
evidence that defendant could have physically restrained or prevented Chavez’s initial
assault on Condon, the reckless indifference analysis encompasses a failure to intervene,
render assistance, or act as restraining influence at other times during the underlying
crime. (See Scoggins, supra, 9 Cal.5th at p. 678, discussing Tison v Arizona (1987)
481 U.S. 137, 139–141 [using the phrase “restrain the crime” in reference to the murder
itself, not the crimes of kidnapping and robbery that were already in progress]; People v.
Garcia (2020) 46 Cal.App.5th 123, 147–148 [over a 40-minute period robbery victim
was seen “being bound and beaten” but the defendant “did not restrain the actions of his
accomplices or check on the condition of his victims as he went about ransacking the
house”]; Loza, supra, 10 Cal.App.5th at p. 54 [failure to intervene when killer “counted
down” while threatening to shoot two store clerks]; People v. Smith (2005)
135 Cal.App.4th 914, 921, 927 [failure to intervene “during the many tumultuous
minutes” that passed as killer repeatedly assaulted victim], overruled on another ground
as recognized in People v. Garcia (2008) 168 Cal.App.4th 261.) Thus, a defendant’s
“[p]roximity to the murder and the events leading up to it may be particularly significant
where […] murder is a culmination or a foreseeable result of several intermediate steps,

13
or where the participant who personally commits the murder exhibits behavior tending to
suggest a willingness to use lethal force.” (Clark, supra, 63 Cal.4th at p. 619.)
Here, there was substantial evidence that defendant’s presence gave him an
opportunity to act as a restraining influence on Chavez after the initial assault on Condon.
Defendant immediately saw that Chavez was willing and capable of lethal violence and
that Condon was badly injured. At that early point, Condon’s injuries and Chavez’s
behavior made Condon’s death foreseeable, yet defendant took no steps to prevent that
result by either helping Condon or restraining Chavez from inflicting further harm. We
reject defendant’s subsidiary argument that his failure to help Condon should be excused
for lack of evidence that she would have survived the severe initial beating even if he had
called 911. For purposes of the reckless indifference analysis, evidence of Condon’s
actual chances of survival is less relevant than evidence of defendant’s knowledge and
actions upon seeing that Condon was severely injured urgently needed medical attention.
Evidence of an attempt to help or protect her it would tend to show that defendant was
not recklessly indifferent to the possibility of her death. But given defendant’s presence
and conduct in the home while ignoring how badly Condon was injured, it is fair to
conclude that he shared in Chavez’s actions and mental state. (Clark, supra,
63 Cal.4th at p. 619.)
Defendant relies on In re Taylor (2019) 34 Cal.App.5th 543, 559 and Dickens v.
Ryan (9th Cir. 2014) 740 F.3d 1302, 1343 to argue that he had no realistic opportunity to
help Condon. But the defendant in Taylor was primarily a getaway driver in a liquor
store robbery who never got out of the car and had no direct involvement in the shooting.
The Taylor court found that although he did not attempt to help the victim after he
learned she was shot, there was no evidence that he appreciated how badly she was
wounded, and it appeared the defendant knew that help had already arrived before he left
the scene. (Taylor, at p. 559.) And Dickens affirmed the Arizona Supreme Court’s
determination that the defendant exhibited a reckless indifference to human life by
planning an armed robbery with a teenager from a treatment center for violent juveniles
where the defendant had worked, and after seeing the shootings from his car, choosing to

14
aid his accomplice get away rather than aid the victims. (Dickens, at p. 1314.) Defendant
cites to the dissenting opinion in Dickens, which took issue with the strength of the
evidence of the defendant’s knowledge that his accomplice had shot the victims.
(Dickens, at pp. 1343–1344.) Here, defendant was close by when Chavez assaulted
Condon, he heard her screams, immediately saw her injuries, and had ample time to assist
her after the first assault, as well as after learning that Chavez had assaulted her a second
time.
We likewise reject defendant’s attempt to minimize his failure to help Condon by
arguing that he didn’t call 911 because he didn’t believe she was seriously injured, as she
was lying face down, still breathing, moving and crying. He offered a similar excuse in
his interview with police. But at other points in his police interview defendant
acknowledged how badly Chavez had beaten Condon. He said he heard her screams and
after she went silent he looked inside and saw her down on the ground, bleeding from her
mouth onto the carpet, moaning and crying while she struggled to lift her head off of the
ground. He said that he thought she couldn’t get up because Chavez had beaten her too
much, and he became frightened when he later saw her “just lying there without moving”.
The trial court apparently credited defendant’s statements to the interviewing officers
about immediately recognizing how badly Condon was injured and needed medical
assistance, rather than the self-serving statements he also made in the interview. “[I]t 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. [Reviewing
courts] resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence.” (Zamudio, supra, 43 Cal.4th at p. 357.)
b. Duration of the Crime
“Courts have looked to whether a murder came at the end of a prolonged period
of restraint of the victims by defendant.” (Clark, supra, 63 Cal.4th at p. 620.) “Where a
victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of
perpetrators for prolonged periods, ‘there is a greater window of opportunity for
violence.’ ” (Ibid.) Defendant argues this factor does not apply because Chavez

15
unexpectedly assaulted Condon immediately at the beginning of the robbery and not at
the end of a prolonged period of restraint. But defendant ignores the evidence that
Chavez assaulted Condon a second time as he left her house, defendant failed to make
any effort to prevent that attack, and defendant also failed to summon help after Chavez
told him of the second assault. Although we acknowledge that Condon was not literally
restrained during the robbery, there was no need do so while she was lying face down,
apparently unconscious after the first assault. By defendant’s own estimate, he and
Chavez were in Condon’s home for between 30 and 35 minutes before the unexpected
arrival of gardeners prompted them to leave. There is evidence suggesting that the
duration of the crime contributed to Condon’s death. Had it been shorter, Condon might
have regained consciousness after defendant and Chavez left the scene. But because they
were there for at least half an hour, Condon regained consciousness which prompted
Chavez to stomp on and strangle her as he left the house.
c. Defendant’s Knowledge of Likely Lethality
The likelihood of a coparticipant using lethal force may become evident as the
events unfold. (Clark, supra, 63 Cal.4th at p. 621.) Defendant minimizes the
significance of the second assault on Condon in arguing that he only became fully aware
of Chavez’s willingness to use lethal force during the commission of the crime. The trial
court’s conclusion as to defendant’s awareness properly rests on substantial evidence that
he immediately learned Chavez was willing to use lethal force as soon as he saw how
badly Chavez had beaten Condon upon entering the house. Yet even with that
knowledge, defendant continued to participate in the crime he had planned.
3. Defendant’s Youth and Intellectual Disabilities
The trial court found no evidence that defendant’s youth, low IQ or learning
disabilities caused him in this instance to act impulsively or because of peer pressure.
(See People v. Oliver (2023) 90 Cal.App.5th 466, 489 [differences in brain development
among youthful offenders, in contrast to adult counterparts, show two areas of
divergence: (1) relative impulsivity and (2) vulnerability to peer pressure].) We reject
defendant’s cursory argument that the evidence tending to prove he subjectively acted

16
with reckless indifference to human life is “unsubstantial” and “is made even weaker
considering his youth, low IQ, and neurodevelopmental disorder.” Defendant points to
no specific evidence contradicting the trial court’s thorough review of evidence showing
that he was not scared, manipulated or tricked by Chavez; that his youth did not cause
him to act rashly, impetuously or without regard to consequences; and that his conduct
before, during and after the crime showed he was capable of planning, deception,
manipulation and appreciating the risk of death from his actions or failure to act.
III. DISPOSITION
The order denying resentencing is affirmed.

17
____________________________________
Grover, J.

I CONCUR:

____________________________
Greenwood, P. J.

I CONCUR IN THE JUDGMENT ONLY:

____________________________
Lie, J.

H052353
People v. Olayo

18