Filed 7/10/26 P. v. Reed CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C101335
Plaintiff and Respondent,
(Super. Ct. Nos. 10F05764,
v. 10F05920)
BERNARD KRUNGGERUND REED,
Defendant and Appellant.
In 2012, a jury found defendant Bernard Krunggerund Reed guilty of murder. The
jury also found true robbery-murder special circumstances for the murder. Defendant
petitioned the trial court for resentencing under then-Penal Code section 1170.95.
(Statutory section references that follow are to the Penal Code; effective June 30, 2022,
the Legislature renumbered former section 1170.95 as section 1172.6.) (Stats. 2022,
ch. 58, § 10.) There were no substantive changes to the statute. Although petitioner filed
his petition under former section 1170.95, we cite to section 1172.6 throughout this
opinion. The trial court denied the petition, finding evidence from petitioner’s trial
established petitioner was ineligible for resentencing.
On appeal, defendant argued the trial court erred in conducting a factual analysis
of the special circumstance finding to disqualify him for relief. We disagreed and
affirmed the trial court’s order. (People v. Reed (Dec. 15, 2021, C093055) [nonpub.
opn.].)
1
Our Supreme Court granted review but deferred further action pending the
disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision,
our Supreme Court transferred the case back to us with directions to vacate our decision
and reconsider in light of Strong. We reversed and remanded the case for further
proceedings, concluding the trial court’s denial of the petition was inconsistent with
section 1172.6 and Strong.
On remand, the trial court held an evidentiary hearing and denied defendant’s
petition finding defendant committed felony murder as a major participant who acted
with reckless indifference to human life. Defendant now contends that insufficient
evidence supports the trial court’s finding. We disagree and affirm the trial court’s order
denying the petition.
FACTS AND HISTORY OF THE PROCEEDINGS
Facts
On August 13, 2010, codefendant Kelvin Peterson robbed a pharmacy in North
Highlands. He entered the pharmacy and handed the pharmacy clerk a note that said,
“This is a robbery. Give me all of your money and Oxycontin.” He threatened to shoot
the employees, took money from the cash register, took Oxycontin, and left the
pharmacy. During the robbery one of the pharmacy technicians was armed with a gun
but chose not to use it.
Defendant and Peterson met in August 2010. Defendant testified that he was a
drug dealer and that he and Peterson began communicating with each other about buying
drugs.
On September 2, 2010, defendant and Peterson entered the same pharmacy in
North Highlands that Peterson robbed the month prior. Peterson approached the counter
and handed a note to the pharmacy clerk that read: “Want all 800 Oxycontin. We will
kill you.” Then he pulled up his shirt and displayed a pistol tucked into his waistband.
2
The pharmacy clerk turned around and handed the note to the pharmacist who was
standing behind a shelf in the back area of the pharmacy. Peterson and defendant
simultaneously moved behind the pharmacy counter. Defendant walked to the cash
register, put on gloves, removed money from the opened till, and began to put the money
in his pants pockets.
Meanwhile, Peterson drew his pistol and walked toward the back area. Peterson
became extremely agitated and threatened the pharmacist and a pharmacy technician.
Defendant briefly looked at Peterson as he threatened the employees then continued to
remove money from the cash register.
Peterson pointed his gun at the pharmacy technician who responded, “Put that
down.” Peterson said, “Give me everything” and took the money the employees had put
on the counter. The pharmacist put a partially filled bottle of oxycontin pills on the
counter. Peterson looked at the bottle and pointed his gun at the pharmacist. Peterson
angrily said, “No, no, more. I want more. Imma kill you bitch. I’ll kill you. Go get
more. Where’s it at? Get more. Where they at? Get ‘em all.” Peterson walked toward
the pharmacist pointing his gun at him. The pharmacy technician, thinking Peterson was
going to shoot the pharmacist, pulled a gun and attempted to shoot at Peterson but the
gun did not fire. The pharmacy technician ran, and Peterson gave chase; the two
exchanged gunfire as the pharmacy technician ran out of the pharmacy. Defendant ran
out of the pharmacy once the shooting started. During the shooting, Peterson shot two
pharmacy employees who were caught in the crossfire, killing one and hitting the other in
the foot.
When police arrested Peterson they searched his phone and found a contact
labeled “Cell phone AZ” with defendant’s phone number. Phone records show Peterson
and defendant made over 130 connections from August 30, 2010, to September 8, 2010.
During that time, nearly 100 connections occurred before the approximate time of the
robbery and 35 connections after the robbery. There were also at least four different
3
phone calls or attempted phone calls between defendant and Peterson prior to the
robbery.
In 2012, the People charged defendant with murder (§ 187, subd. (a)) and robbery
(§ 211). The People alleged the murder was committed while defendant was engaged in
the commission of a robbery and that a principal in the offense was armed with a gun.
(§§ 190.2, subd. (a)(17), 12022, subd. (a)(1)).
After trial, the jury found defendant guilty on all counts. The jury also found true
the alleged special circumstance and enhancement.
The trial court sentenced defendant to life in prison without the possibility of
parole on the murder count, stayed the robbery count under section 654, and imposed one
year on the firearm enhancement, for an aggregate sentence of life in prison without the
possibility of parole plus one year.
Procedural History
Defendant appealed and this court affirmed the judgment. (People v. Reed
(Mar. 18, 2015, C071276) [nonpub. opn.] [we take judicial notice of our opinions from
defendant’s prior appeals (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a)].)
In 2019, defendant petitioned for resentencing under section 1172.6 claiming he
was eligible for resentencing because he was “not the actual killer, did not aid or abet the
murder with the intent to kill, and was not a major participant in the felony or act with
reckless indifference to human life.” (People v. Reed (Dec. 15, 2021, C093055) [nonpub.
opn.].) The trial court denied the petition. (Ibid.) Defendant appealed and this court
affirmed the trial court’s denial of defendant’s petition. (Ibid.)
Defendant filed a petition for review and the Supreme Court, following its
decision in Strong, supra, 13 Cal.5th 698, transferred the case back to this court to
reconsider the matter in light of Strong. (People v. Reed (Jan. 13, 2023, C093055)
[nonpub. opn.].) Having reconsidered the case, this court reversed and remanded the case
4
to the trial court with instructions to issue an order to show cause and hold an evidentiary
hearing on appellant’s petition. (Ibid.)
1172.6 Evidentiary Hearing
On remand, the trial court held a hearing. The People presented several videos
showing the crime and submitted the trial transcript, clerk’s transcript, and trial exhibits.
Citing the Banks/Clark factors, the People argued the evidence demonstrated that
defendant was a major participant in the robbery who acted with reckless indifference to
human life.
The trial court found the defendant participated in the planning of the robbery
citing the “numerous phone calls” between the two codefendants prior to the robbery.
The court viewed the codefendants’ behavior in the security video as indicating a
“choreographed plan.” Defendant knew Peterson was armed and likely knew Peterson
used a gun in the previous robbery. The court found it foreseeable that there would be a
shootout because the codefendants returned almost a month later to the same location as
Peterson’s previous armed robbery. The note given to the pharmacy employee also read
“We will kill you,” indicating defendant knew a firearm was available to use, if
necessary. It was “extremely reckless disregard for human life to enter with a firearm
knowing that it is loaded and that you may have to use it, which is, in fact, not only
foreseeable, but came to fruition in this case.”
Defendant was present and actively participated in the robbery by taking money
from the cash register. Defendant and Peterson were only a few feet from each other
during the robbery and the court found defendant could hear Peterson escalate the
situation and threaten the pharmacy employees. Despite his close proximity, defendant
did not attempt to intervene or stop Peterson from using the gun.
The trial court found defendant was aware of the grave risk to human life of
Peterson bringing a firearm because the modus operandi was the same for both robberies.
5
The robbery, although over in a relatively short time, was prolonged. When the shooting
started defendant fled with the money he took from the cash register and did not direct
Peterson to stop. The court also found defendant could have abandoned the robbery once
he saw Peterson display the gun and rejected the argument that defendant abandoned the
crime after the shooting began because his portion of the crime was already completed.
The trial court denied defendant’s petition finding defendant was a major
participant in the robbery and acted with reckless indifference to human life in the
conduct of the robbery.
Defendant appeals.
DISCUSSION
I
Statutory History
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) amended the felony-murder rule to provide, in relevant part: “A participant in
the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a
death occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e).)
Where, as here, the trial court issues an order to show cause and holds an
evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable
doubt that the defendant is guilty of murder under California law as amended by Senate
Bill 1437. (§ 1172.6, subd. (d)(3).) The parties may rely on evidence in the record of
conviction or offer new or additional evidence at the hearing. (Ibid.) The trial court acts
6
as an independent fact finder and determines whether the evidence establishes beyond a
reasonable doubt that the defendant would be guilty of murder under the amended
sections 188 and 189 and, therefore, ineligible for relief under section 1172.6. (People v.
Cody (2023) 92 Cal.App.5th 87, 110.)
II
Standard of Review
Defendant was charged with murder based on a felony-murder theory. Defendant
was not the actual killer; the evidence conclusively established that Peterson shot the
victim. Thus, to affirm the trial court’s order denying defendant’s resentencing petition,
there must be substantial evidence that defendant was a major participant in the attempted
robbery and that he acted with reckless indifference to human life.
We examine “ ‘the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value that would support a rational trier of fact in finding [the
defendant guilty] beyond a reasonable doubt.’ ” (People v. San Nicolas (2004)
34 Cal.4th 614, 657-658.) “We do not reweigh the evidence or revisit credibility issues,
but rather presume in support of the judgment the existence of every fact that could
reasonably be deduced from the evidence.” (People v. Pham (2009) 180 Cal.App.4th
919, 924-925.) “Where the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal.” (People v. Zamudio (2008)
43 Cal.4th 327, 358.)
III
Major Participant and Reckless Indifference to Human Life
The major participation and reckless indifference requirements set forth in section
190.2, subdivision (d), and incorporated into the felony-murder rule by Senate Bill 1437,
7
codify the holding of Tison v. Arizona (1987) 481 U.S. 137 (Tison). Tison and a prior
decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782, collectively place
conduct on a spectrum. (People v. Banks (2015) 61 Cal.4th 788, 794 (Banks).)
At one end of the spectrum is a defendant such as Enmund, who planned and
participated in the crime as the getaway driver in an armed robbery that resulted in the
unplanned murder of the robbery victim and his wife. (Banks, supra, 61 Cal.4th at
p. 799.) At the other end of the spectrum are “actual killers and those who attempted or
intended to kill.” (Id. at p. 800.) In between are defendants like the Tison brothers, who
“helped plan and carry out the escape of two convicted murderers from prison,” including
their father, who “was serving a life sentence for killing a guard in the course of a
previous escape.” (Id. at p. 802.) The Tison brothers brought “a cache of weapons to
prison, arm[ed] both murderers, and [held] at gunpoint guards and visitors alike.” (Ibid.)
During their subsequent escape, they carjacked and kidnapped a family of four, took the
family’s possessions, and the convicted murderers “then killed all four family members.”
(Id. at p. 799.) Although the Tison brothers did not kill or intend to kill, their “ ‘major
participation in the felony committed, combined with reckless indifference to human life,
[was] sufficient to satisfy the Enmund culpability requirement.’ ” (Id. at p. 800.)
To determine whether a defendant was a major participant, the Banks court has
identified the following considerations: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role did the defendant have
in supplying or using lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at the scene of the killing,
in a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death? What did the defendant do after lethal force
was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
8
Elaborating on the reckless indifference requirement, the California Supreme
Court has explained that “ ‘[r]eckless indifference to human life is “implicit in knowingly
engaging in criminal activities known to carry a grave risk of death.” ’ [Citations.]”
(People v. Emanuel (2025) 17 Cal.5th 867, 883 (Emanuel).) It “encompasses a
willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome of his actions.” (People
v. Clark (2016) 63 Cal.4th 522, 617 (Clark).) Recklessness has both a subjective and an
objective component. (Ibid.) Subjectively, the defendant must consciously disregard
risks known to him. (Ibid.) Objectively, recklessness is determined by “what ‘a law-
abiding person would observe in the actor’s situation,’ ” that is, whether defendant's
conduct “ ‘involved a gross deviation from the standard of conduct that a law-abiding
person in the actor’s situation would observe.’ ” (Ibid.) “[P]articipation in a ‘ “garden-
variety armed robbery,” ’ i.e., one in which the only factor supporting a reckless
indifference finding is that a participant was armed with a gun, is insufficient without
more to establish reckless indifference.” (Emanuel, supra, 17 Cal.5th at p. 884; see also
In re Scoggins (2020) 9 Cal.5th 667, 677 [“ ‘the fact a participant [or planner of] an
armed robbery could anticipate lethal force might be used’ is not sufficient to establish
reckless indifference to human life”].)
Acknowledging overlap between the major participant and reckless indifference
elements (Clark, supra, 63 Cal.4th at pp. 614-615), our high court considered a number
of factors in determining whether the evidence is sufficient to establish reckless
indifference: (1) knowledge of weapons, and use and number of weapons; (2) physical
presence at the crime and opportunities to restrain the crime and/or aid the victim; (3)
duration of the crime; (4) the defendant’s knowledge of a cohort’s likelihood of killing;
and (5) the defendant’s efforts to minimize the risks of the violence during the felony.
(Id. at pp. 618-623.)
9
No one of the Banks or Clark factors “is necessary, nor is any one of them
necessarily sufficient” to establish a defendant was a major participant or acted recklessly
indifferent to a grave risk of death during an offense. (Banks, supra, 61 Cal.4th at p. 803;
Clark, supra, 63 Cal.4th at p. 618.)
With the foregoing factors in mind, we conclude the evidence in this case is
sufficient to support the trial court’s holding that defendant was a major participant who
acted with reckless indifference to human life.
Regarding defendant being a major participant, the evidence demonstrates that
defendant participated in the planning of the robbery. Defendant and Peterson
communicated by phone nearly 100 times leading up to the robbery. The trial court could
also have reasonably inferred defendant was involved in the planning from security
footage, which showed both men entering the pharmacy at the same time, walking around
the pharmacy counter on separate sides in a coordinated manner, and defendant taking
money from the cash register while codefendant attempted to get oxycontin pills.
Defendant did not touch any money until he put his gloves on, which evidences planning
and forethought.
Substantial evidence also supports the conclusion that defendant was aware of the
dangers of the crime and Peterson’s use of a gun. It was reasonable for the trial court to
infer defendant knew Peterson previously robbed the same pharmacy because of the
volume of communications between the two prior to the robbery. The note given to the
pharmacy clerk said, “We want all 800 Oxycontin. We will kill you,” which defendant
would have reasonably understood to mean that violence could occur during the robbery.
After both men moved behind the counter, codefendant pulled his gun, pointed it at and
threatened the pharmacy employees, which defendant could see and hear.
Defendant was present for the duration of the robbery and the shooting, and took
money from the cash register. When Peterson escalated the situation defendant did
10
nothing to de-escalate what was happening. During the shooting, defendant ran out of the
store without any attempt to aid those persons who had been injured or killed.
Turning to reckless indifference, defendant likely knew a gun was going to be
used because he was involved in the planning, regardless he saw Peterson brandish the
gun during the robbery. It is reasonable to infer defendant knew there was a likelihood of
violence because the note given to the pharmacy clerk said, “We will kill you,” and
defendant and Peterson returned to the same location of Peterson’s previous armed
robbery only a month earlier.
Although the duration of the robbery was short, defendant was present the entire
time and had the opportunity to restrain the crime after Peterson escalated the situation.
Defendant could have told Peterson to put away the gun when Peterson pointed the gun
and threatened to kill the employees. Rather than minimizing the risk of violence,
however, defendant disregarded Peterson’s actions and continued to focus on the robbery,
removing money from the cash register and putting it into his pockets.
The evidence is certainly sufficient to support the trial court’s ruling that
defendant was a major participant who acted with reckless indifference to human life.
11
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
12