Filed 10/6/26 P. v. Ornelas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B347240
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A558640)
v.
EDWARD ORNELAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Carter, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.
Edward Ornelas appeals from the denial of his petition for resentencing
under Penal Code section 1172.6.1 We affirm.
In 1979, Ornelas and codefendant Ricardo Guzman robbed a bar. Both
men were armed with handguns during the robbery. After a bar patron hit
Ornelas with a pool cue, Guzman fatally shot the patron. Ornelas was
convicted of murder, robbery, and personal use of a firearm.
In 2019, Ornelas petitioned for resentencing. He argued that he was
not the shooter and did not act as a major participant or with reckless
indifference to human life during the robbery. The trial court denied the
petition following an evidentiary hearing.
On appeal, Ornelas does not challenge the finding that he was a major
participant in the robbery. He argues only that his participation in a “garden
variety” armed robbery was insufficient to show that he acted with reckless
indifference to human life. We disagree.
The record contains evidence that Ornelas planned the robbery, armed
himself, and threatened to shoot the bar employees and patrons if they
resisted. Considering all relevant factors and examining the totality of the
evidence, the trial court had before it substantial evidence from which it
could reasonably conclude that the People had proven beyond a reasonable
doubt that Ornelas acted with reckless indifference to human life. Thus, the
trial court did not err in denying the petition for resentencing.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL BACKGROUND
The trial transcripts in this case were destroyed after ten years. (See
Gov. Code, § 69955, subd. (e).) Both parties and the trial court relied on the
preliminary hearing transcript for the purposes of the evidentiary hearing.2
I. Preliminary Hearing Evidence
A. Prior Attempted Robbery
The People presented evidence that Ornelas attempted another armed
robbery less than three weeks prior to the charged incident. An employee
testified that on April 12, 1979, he was working at a liquor store when
Ornelas came in. Ornelas approached the employee, who was behind the
counter. Ornelas said “this is it,” and pointed a gun at the employee. The
employee hit the gun barrel with his hand and knocked Ornelas’s arm
upward. The gun discharged toward the ceiling. The employee then grabbed
the gun away from Ornelas. He detained Ornelas and called the police.
Ornelas was charged with attempted robbery and using a firearm in
commission of the offense. While released on bail, Ornelas committed the
crimes charged here. He later pled guilty to the attempted robbery and
admitted the firearm use allegation.
B. Charged Incident—Robbery and Murder
The owner of the B&A Shack bar in Monrovia testified that he was
working at the bar around 1:00 a.m. on April 29, 1979. He was helping out
the bartender when he saw Ornelas and Guzman walk in the bar’s back door.
The bartender testified that Ornelas ordered two beers from him, but did not
2 The trial court also relied on transcripts from two parole hearings, as
well as hearing transcripts from an attempted armed robbery Ornelas
committed shortly before this incident. Both parties relied on this evidence
in their appellate briefs. We grant Ornelas’s unopposed request to augment
the record with these transcripts.
3
pay. Both the owner and bartender saw Ornelas standing near the cash
register with a gun in his hand. Ornelas told the men two to three times to
“get down on the floor and not to press any buttons or he would shoot.” They
complied.
Guzman went to the cash register and took the cash. He too was
holding a gun. He repeated the same admonition not to press any buttons or
he would shoot. The owner and bartender stayed on the floor until they
heard a scuffle near the pool table and heard something hit the wall. A few
seconds later, they heard a gunshot. The owner saw Ornelas leaving through
the back door.
Linda S.3 testified that she was sitting at a table at the bar with some
friends. Her stepfather, Joe Venegas, was shooting pool. Linda S. saw a man
standing by the restroom holding a gun. She saw the owner on the floor and
a second man heading from the bar area toward the back door. Venegas
swung at Ornelas with a pool cue, breaking the cue. As Venegas started to
walk away, Linda S. saw Guzman cock his gun against his leg and shoot
Venegas once in the back. Both assailants left through the back door.
Venegas died from the gunshot wound.
Several employees from Patti’s Patio, a nearby bar, testified to seeing
Guzman and Ornelas come into their bar about an hour before the shooting.
The two men stood inside Patti’s Patio for a few minutes and then left.
Guzman and Ornelas returned to Patti’s Patio about a half hour later, looked
around, and left again. The shooting occurred about ten minutes later.
3 We refer to Linda S. by first name and last initial to protect her
privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
4
II. Parole Hearing Evidence
At his parole hearing in June 2021, Ornelas testified that he and
Guzman were heroin users. He said that they were sick from not using
heroin on the day of the incident. They went to Guzman’s sister’s house and
Ornelas “made a decision to rob the bar next door” for drug money and to
bring Guzman with him. Both Ornelas and Guzman were armed. Ornelas
stated that he ordered Venegas to the floor, but they got into a verbal
“commotion.” Venegas, who was “too big” for Ornelas, tried to hit him with a
pool cue. Venegas then “got the better” of Ornelas and threw him to the floor.
At that point, Guzman shot Venegas. Ornelas thought Guzman did so to stop
the fight or allow them to get away.
PROCEDURAL HISTORY
I. Conviction and Sentence
Following a joint trial, the jury convicted Ornelas and Guzman of first
degree murder (§ 187, subd. (a)) and robbery (§ 211). The jury further found
true that both defendants used a firearm (§ 12022.5) and that Guzman
committed the murder while engaged in the commission of the robbery
(§ 190.2, subd. (a)(17)).
The trial court sentenced Ornelas to 25 years to life for the murder,
plus two years for the firearm use enhancement. The court imposed and
stayed the sentence on the robbery.
Division One of this district affirmed the convictions on direct appeal.
(People v. Guzman (Mar. 2, 1982, 37048) [nonpub. opn.].)
5
II. Section 1172.6 Proceedings
In 2019, Ornelas filed a petition for resentencing under section 1172.6.4
He contended that he could not now be convicted of murder because he was
not the actual killer, was not a major participant in the felony and did not act
with reckless indifference to human life during the course of the felony. The
court appointed counsel for Ornelas and the parties filed briefs. In opposition
to the petition, the People submitted the transcripts from the preliminary
hearing and two parole board hearings, as well as the preliminary hearing
and plea hearing in Ornelas’s prior case. The People argued that Ornelas
was ineligible for relief because he was a major participant in the robbery
and acted with reckless indifference to human life.
The court held an evidentiary hearing on May 13, 2025. Following
argument, the court took the matter under submission, indicating it would
consider the transcripts in the record.
The trial court denied the petition at a hearing on June 18, 2025.5 The
court detailed its factual findings weighing against resentencing. It noted
that Ornelas engaged in an attempted armed robbery of a liquor store a few
weeks prior to the bar shooting, during which his gun was fired after he
4 At the time, the statute was numbered section 1170.95. Effective June
30, 2022, the Legislature renumbered section 1170.95 to section 1172.6
without substantive changes. (Stats. 2022, ch. 58, § 10.) We refer to the
statute as section 1172.6.
5 The minute order from June 18, 2025 states that the court found
Ornelas had not made a prima facie showing for relief. However, based on
the record, including the reporter’s transcripts, it is clear that the court held
an evidentiary hearing and subsequently found that the prosecution
established beyond a reasonable doubt that Ornelas was ineligible for
resentencing, as required by section 1172.6, subdivision (d). The parties
agree that the court’s ruling followed an evidentiary hearing.
6
encountered resistance from an employee. Relying on the parole hearing
transcript, the court observed that Ornelas admitted planning the bar
robbery with Guzman and knew that they would both be armed. The court
also found that during the robbery, the two men “worked in conjunction with
one another,” including by issuing similar threats to the bar occupants.
Ornelas also “had knowledge that there may be resistance” to the robbery
because it occurred when there were several people present in the bar.
Additionally, the court found that the robbery was not spontaneous and “took
some period of time,” while Ornelas and Guzman ordered people to the
ground and then took the cash from the register.
Based on the evidence of planning and the prior attempted robbery, the
trial court found that Ornelas “knew that there was a strong possibility that
there would be resistance, there were patrons in the establishment…. That’s
why they went in with guns. That’s why they threatened, and they made
their intent very clear, that if there was resistance, then someone would be
shot or killed, and that’s exactly what happened.” The court further found
that, despite knowing there was a strong possibility of violence, Ornelas “did
not say anything or do anything to keep the shooting from happening.”
Having weighed the evidence, the court found beyond a reasonable doubt that
Ornelas was a major participant acting with reckless indifference to human
life “by planning this robbery with guns, threatening everyone, letting
everyone know that if there was resistance, they would be shot and killed,
and then when there was resistance, it actually happened.”
Ornelas appealed.
DISCUSSION
On appeal, Ornelas does not challenge the trial court’s finding that he
was a major participant in the robbery. Rather, he argues there was
insufficient evidence to show that he acted with reckless indifference to
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human life. We conclude that substantial evidence supports the trial court’s
determination.
I. Governing Law
The Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(SB 1437) “‘to more equitably sentence offenders in accordance with their
involvement in homicides.’” (People v. Curiel (2023) 15 Cal.5th 433, 448.) SB
1437 “‘amend[ed] 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 the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.’” (Ibid.; see § 189, subd. (e)(1)-
(3).) Under this framework, a “person’s culpability for murder must be
premised upon that person’s own actions and subjective mens rea.” (Stats.
2018, ch. 1015, § 1, subd. (g).)
Section 1172.6 provides “a procedural mechanism for defendants who
could not be convicted of murder under the amended laws to seek retroactive
relief.” (People v. Rodriguez (2024) 103 Cal.App.5th 451, 457.) If a petitioner
makes a prima facie showing for relief, the trial court must issue an order to
show cause for an evidentiary hearing. (§ 1172.6, subds. (c), (d).)
At the evidentiary hearing, the prosecution bears the burden “to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder” under current law. (§ 1172.6, subds. (c), (d)(3).) “In
addition to evidence admitted in the petitioner’s prior trial, both ‘[t]he
prosecutor and the petitioner may also offer new or additional evidence to
meet their respective burdens.’ [Citation.] ‘If the prosecution fails to sustain
its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and the petitioner
8
shall be resentenced on the remaining charges.’” (People v. Wilson (2023) 14
Cal.5th 839, 869, quoting § 1172.6, subd. (d)(3).)
We review the trial court’s factual findings following an evidentiary
hearing for substantial evidence. (People v. Cody (2023) 92 Cal.App.5th 87,
111.) We “review the whole record to determine whether any rational trier of
fact could have found” beyond a reasonable doubt that the defendant was
ineligible for resentencing. (People v. Zamudio (2008) 43 Cal.4th 327, 357
(Zamudio); see also People v. Williams (2020) 57 Cal.App.5th 652, 663.) The
record must disclose substantial evidence to support this finding—“i.e.,
evidence that is reasonable, credible, and of solid value.” (Zamudio, supra, at
p. 357.) “In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the [order] the
existence of every fact the [superior court] could reasonably have deduced
from the evidence.” (People v. Williams, supra, 57 Cal.App.5th at p. 663,
quoting Zamudio, supra, at p. 357.)
II. Analysis
It is undisputed that Ornelas was not the actual shooter. Instead, he
was convicted of first degree murder under a felony murder theory based on
his participation in the robbery. Ornelas also does not dispute that he was a
major participant in the robbery. Therefore, as relevant to this appeal, to
sustain his murder conviction under section 1172.6, the prosecution had to
prove beyond a reasonable doubt that Ornelas acted with reckless
indifference to human life during the commission of the crime. (§ 1172.6,
subd. (d)(3).)
“Reckless indifference to human life is ‘implicit in knowingly engaging
in criminal activities known to carry a grave risk of death.’” (In re Scoggins
(2020) 9 Cal.5th 667, 676 (Scoggins).) It “encompasses a willingness to kill
9
(or to assist another in killing) to achieve a distinct aim, even if the defendant
does not desire that death as the outcome of his actions.” (People v. Clark
(2016) 63 Cal.4th 522, 617 (Clark).) Reckless indifference to human life has
both subjective and objective components. (Ibid.) “The subjective element is
the defendant’s conscious disregard of risks known to him or her.” (Ibid.; see
also Scoggins, supra, at p. 677 [defendant “must consciously disregard ‘the
significant risk of death his or her actions create’”].) As to the objective
element, “‘[t]he risk must be of such a nature and degree that, considering
the nature and purpose of the actor’s conduct and the circumstances known
to him [or her], its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor’s situation.’”
(Scoggins, supra, at p. 677.) As our Supreme Court recently explained,
“‘“[a]wareness of no more than the foreseeable risk of death inherent in any
[violent felony] is insufficient” to establish reckless indifference to human life;
“only knowingly creating a ‘grave risk of death’” satisfies the statutory
requirement.’” (People v. Emanuel (2025) 17 Cal.5th 867, 884 (Emanuel).)
Thus, “participation in a ‘garden-variety armed robbery,’ i.e., one in which
the only factor supporting a reckless indifference finding is that a participant
was armed with a gun, is insufficient without more to establish reckless
indifference.” (Ibid.)
Whether a defendant acted with reckless indifference to human life
depends on the totality of the circumstances. (Scoggins, supra, 9 Cal.5th at p.
677.) In Clark, the Supreme Court set forth a “nonexhaustive list of
considerations relevant to this determination, including use of or awareness
of the presence of a weapon or weapons, physical presence at the scene and
opportunity to restrain confederates or aid victims, the duration of the crime,
knowledge of any threat the confederates might represent, and efforts taken
10
to minimize risks.” (Emanuel, supra, 17 Cal.5th at p. 884, quoting People v.
Strong (2022) 13 Cal.5th 698, 706; see also Clark, supra, 63 Cal.4th at pp.
618–623.)
None of these considerations is necessary, nor is any necessarily
sufficient, to establish reckless indifference. (Clark, supra, 63 Cal.4th at p.
618.) Ultimately, the determination of whether a defendant acted with
reckless indifference to human life is a “‘fact-intensive, individualized
inquiry’ into where a defendant’s conduct falls on the spectrum of
culpability.’” (Emanuel, supra, 17 Cal.5th at p. 883, quoting Scoggins, supra,
9 Cal.5th at p. 683.)
Applying these factors, and viewing the totality of the circumstances,
we conclude the record contains sufficient evidence from which the trial court
could conclude beyond a reasonable doubt that Ornelas acted with reckless
indifference to human life. We examine the factors in turn.
The first factor looks at the defendant’s use and awareness of weapons
during the crime. Crucially, Ornelas has admitted not only that he and
Guzman were both armed during the robbery, but that he planned the
robbery in advance and knew he and Guzman would both be carrying guns.
He also used that gun to expressly threaten the occupants of the bar to force
their compliance. Ornelas also attempted an armed robbery just a few weeks
prior, in which he used a gun that discharged during a scuffle with the
intended victim.
Ornelas contends that his conduct demonstrates only participation in a
“garden variety” armed robbery and highlights that he did not fire his
weapon during the incident. This argument ignores the substantial evidence
of Ornelas’s own conduct beyond simply participating in a robbery in which a
confederate was armed. Indeed, none of the cases he cites found in favor of a
11
defendant who personally wielded a firearm during the underlying felony.
(See Scoggins, supra, 9 Cal.5th at p. 677 [“Scoggins did not use a gun, nor did
he know that a gun would be used during the felony”]; Clark, supra, 63
Cal.4th at p. 618 [only gun at the scene was not carried by defendant]; In re
Taylor (2019) 34 Cal.App.5th 543, 559 [defendant’s “primary role” was
getaway driver and evidence was inconclusive whether he knew codefendant
was armed]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025 [defendant “was
across the street in the parking lot when the shooting took place”].) To the
contrary, “[a] defendant’s use of a firearm, even if the defendant does not kill
the victim ..., can be significant to the analysis of reckless indifference to
human life.” (Clark, supra, 63 Cal.4th at p. 618.) As one appellate court put
it, “‘we are not aware of a single case that concludes a defendant who
personally committed a robbery, used a gun, and was present for the shooting
did not meet the standard’ of culpability required to support a felony-murder
conviction.” (People v. Bascomb (2020) 55 Cal.App.5th 1077, 1090; see also
Clark, supra, 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’”].) Based on the evidence presented, this factor weighs heavily in
favor of the trial court’s finding that Ornelas was “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.” (People v. Banks (2015) 61 Cal.4th 788, 801.)
The second factor, Ornelas’s physical proximity to the murder and the
events leading up to it, also weighs in favor of the court's finding that he
acted with reckless indifference to human life. “Proximity to the murder and
the events leading up to it may be particularly significant where ... the
murder is a culmination or a foreseeable result of several intermediate steps,
12
or where the participant who personally commits the murder exhibits
behavior tending to suggest a willingness to use lethal force. In such cases,
‘the defendant’s presence allows him to observe his cohorts so that it is fair to
conclude that he shared in their actions and mental state.... [Moreover,] the
defendant’s presence gives him an opportunity to act as a restraining
influence on murderous cohorts. If the defendant fails to act as a restraining
influence, then the defendant is arguably more at fault for the resulting
murders.’” (Clark, supra, 63 Cal.4th at p. 619.) Many of the cases Ornelas
cites involve a defendant who was not present for the shooting or the events
leading up to it. (See id. at p. 618; In re Taylor, supra, 34 Cal.App.5th at p.
559; In re Bennett, supra, 26 Cal.App.5th at p. 1025.) In contrast, Ornelas
was present with Guzman for the entire sequence of events starting with the
plan to rob the bar, the decision for both men to bring guns, both men
pointing those guns at the occupants of the bar and repeatedly threatening to
shoot if anyone resisted, the physical fight with Venegas, and the ultimate
shooting. As such, far from acting as a restraining influence on Guzman, the
court could reasonably conclude that Ornelas engaged in the escalation of
events culminating in Venegas’s murder.
The third factor is the duration of the felony, particularly the duration
of the interaction between victims and perpetrators; more prolonged incidents
provide “‘a greater window of opportunity for violence.’” (Clark, supra, 63
Cal.4th at p. 620.) Although the evidence suggests that the robbery took at
least several minutes, while the perpetrators ordered the victims to the floor
and retrieved the money, the entire encounter was not lengthy and the
escalation of the incident from the fight with Venegas to his shooting was
reportedly a matter of seconds. Thus, we find that the factor regarding the
duration of the crime “is neutral in this case; it did nothing to heighten the
13
risk of violence beyond that inherent in the robbery itself.” (Emanuel, supra,
17 Cal.5th at p. 886 [finding factor neutral where duration of the crime was
less than 12 minutes and the victim was shot during a brief struggle].)
The trial court made no findings regarding the fourth factor—Ornelas’s
awareness of Guzman’s propensity for violence or likelihood of killing a
victim. We do not see substantial evidence in the record supporting the
application of this factor here.
Finally, the fifth factor is the defendant’s efforts while planning to
minimize the risk of violence during the felony. (See Emanuel, supra, 17
Cal.5th at p. 889 [discussing circumstances where “trier of fact might
reasonably conclude that the objective risk of violence posed by the crime and
reasonably anticipated by the perpetrator is graver than the risk of violence
inherent in any violent felony”].) Ornelas planned a robbery involving the
use of weapons. As the trial court noted, just a few weeks prior, he had
attempted an armed robbery that resulted in the discharge of his gun when
the victim resisted. In response, Ornelas planned the bar robbery to include
two assailants and two guns, with repeated and overt threats of violence.
The evidence shows no attempt by Ornelas to minimize the risk of violence.
(See id. at p. 887 [the fact that the planned crime did not involve use of
weapons is “by itself, a significant step towards minimizing the likelihood
that the plan would result in a ‘grave risk of death’”]; see also Scoggins,
supra, 9 Cal.5th at p. 683 [same].)
Moreover, there was evidence suggesting that Guzman and Ornelas
were casing the bar, both from the vantage point of a neighboring
establishment and when they first entered the bar and ordered drinks. They
then chose to conduct the robbery while multiple employees and patrons were
present, thus increasing the risk of violence. (See People v. Owens (2022) 78
14
Cal.App.5th 1015, 1024 [“the plan to commit the robbery ... during normal
business hours when customers would likely be present, posed obvious and
extreme risks of lethal violence”].) As such, there was substantial evidence to
support the court’s finding that this factor weighed in favor of finding
reckless indifference to human life.
Considering the totality of the evidence, we conclude that a rational
trier of fact could have found beyond a reasonable doubt that Ornelas acted
with reckless disregard for human life. Thus, we affirm the trial court’s
denial of his petition for resentencing.6
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
DAUM, J.
We concur:
MORI, Acting P. J.
TAMZARIAN, J.
6 We need not reach respondent’s alternative argument that Ornelas
could be convicted for aiding and abetting implied malice murder.
15