Filed 9/24/26 P. v. Session CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086344
v. (Super.Ct.No. FVI023867)
JEROME CORNELL SESSION, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Albert Hsueh,
Judge. Affirmed.
Steven Schorr, 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, Michael T. Murphy and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Jerome Cornell Session, the Defendant, appeals from an order denying his petition
for resentencing pursuant to Penal Code1 section 1172.6, following an evidentiary
hearing. In 2006, Defendant and his co-perpetrator, Shamar Thornton, robbed a 7-Eleven
convenience store. At the inception of the robbery, Defendant was unaware that Thornton
brought a firearm, until Thornton pulled out the firearm upon entering the store, but
Defendant decided to continue. After forcing the store clerk (the victim) to empty the
cash registers, Defendant ushered the victim into a storeroom where he was about to
strike the victim with his fist when Thornton opened fire, striking Defendant in the arm
and killing the victim. Both Defendant and Thornton then left the store and split the
proceeds of the robbery. Defendant was convicted of first degree murder, along with a
special circumstance finding that he was engaged in the commission of robbery when the
murder was committed, as well as second degree robbery, and was sentenced to prison for
life without the possibility of parole (LWOP).
Multiple postjudgment proceedings have been initiated by Defendant, first
challenging his conviction and the special circumstance finding on direct appeal, and
later, following the enactment of Senate Bill No. 1437, seeking resentencing. The current
appeal is from the denial of his resentencing petition pursuant to section 1172.6 following
an evidentiary hearing. Defendant argues that there was insufficient evidence to support
the trial court’s finding that he was a major participant acting in reckless indifference to
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
human life, pursuant to the holdings of People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark). We affirm.
BACKGROUND
A. Factual History of Crime
We take the facts of the crime from pages 3 through 7 the original opinion on
direct appeal, People v. Session, filed on February 9, 2011, E049939, a nonpublished
opinion.
“Shortly before 1:00 a.m. on March 21, 2006, two Black males, later identified as
Thornton and Session, walked into the 7-Eleven store on the corner of Highway 18 and
Apple Valley Road near Apple Valley. Thornton and Session forced Gould, the store
clerk, to give them all the money that was in the store's two cash registers, a total of $62.
They then forced Gould into a back storage room, where Thornton shot and killed him.
The robbery was captured on store surveillance cameras, but the murder of Gould in the
back storage room was not. The surveillance videos, which were played for the jury,
showed Thornton and Session forcing Gould to open the store’s two cash registers, with
Thornton pointing a gun at Gould. The videos also showed the two men forcing Gould
toward the back of the store, out of the range of the surveillance cameras. Gould was
found dead in the back storage room. He had been shot 9 to 10 times with a nine
millimeter semiautomatic handgun and died at the scene.
“On March 25, two days after surveillance videos and still photographs of the
suspects were released to the media, Thornton was taken into custody and Session turned
3
himself in. That same day, Session waived his Miranda[2] rights and spoke to detectives,
both individually and in a joint interview with Thornton. Session's individual interview
and joint interview with Thornton were recorded on DVD and admitted into evidence at
Session's trial.
“During the interviews, Session told detectives that he and Thornton were driving
around in Session’s car shortly before the robbery and were talking about the fact they
needed money. Thornton needed money to help his girlfriend move, and Session had lost
his job and owed money on his car. Around 40 minutes before the robbery, they stopped
at another store and Thornton purchased gloves for the two of them. They later drove by
the 7-Eleven store and decided to rob it when they saw that no one was in the store.
Session parked his car behind the 7-Eleven store. When Session and Thornton
entered the store, the clerk was in the first aisle, sweeping with a broom. Thornton
walked up to the clerk while Session was in another aisle, and Session overheard the
clerk say something like, “okay, okay, I’m gonna go get it . . . .” At that point, Session
looked down the first aisle and saw that Thornton had a gun and was pointing it at the
clerk.
“Session claimed he did not know Thornton had a gun until he saw him pointing it
at the clerk. He thought they were going to commit a robbery using their ‘hands.’
Session admitted, however, that he had previously heard of Thornton having guns. He
2 Miranda v. Arizona (1966) 384 U.S. 436.
4
also said he could have left the store when he saw Thornton pointing a gun at the clerk,
but he decided to continue with the robbery.
“Session admitted he then grabbed the clerk by the back of his shirt and took him
to the store’s two cash registers. There, the clerk took the cash out as directed, and
Session put the cash in his pocket. Thornton then began asking the clerk where the
surveillance tape was. The clerk said he did not have access to the tape. The owner of
the store testified that the computer on which the surveillance videos were recorded was
in a locked office in the store which the store clerks could not access.
“Session forced the clerk to the back storage room, and Thornton followed.
Session claimed he intended ‘to just take [Gould] to the back, probably just sock on him a
couple times, just so [he and Thornton could] get enough time to get away or somethin’
like that.’ In the storage room, Session pushed Gould against a wall and heard a gunshot
as he raised his hand to hit Gould. He claimed the first shot grazed his arm. He walked
out of the room after he heard the first shot, then he heard ‘[a]t least’ seven more shots.
He and Thornton then ran out of the store. Inside Session’s car, Session and Thornton
split the money they had stolen, and Session complained he had been hit with a bullet.
Thornton told Session he was sorry Session had been hit and, if they got caught, he
(Thornton) would take the ‘rap’ for what had happened.
“Session admitted Gould was ‘very cooperative’ and, on the way to the storage
room, was pleading with Session and Thornton not to hurt him. After they left the store,
Session dropped Thornton off in ‘the flats,’ then went to a friend's house. Video
surveillance tapes from another 7-Eleven store on Bear Valley Road showed Session in
5
that store shortly after 2:00 a.m., purchasing a 40-ounce beer and cigars. Session
admitted he was at the other 7-Eleven store shortly after the robbery.
“Immediately after their joint interview, Session and Thornton spoke with each
other. They were friendly toward each other, and Session showed no signs of animosity
toward Thornton for his having shot and killed Gould. They talked about where the
police had been looking for them and who had given information to the police concerning
their whereabouts. Session also indicated he had turned himself in because others had
been ‘runnin’ their mouth[s].”
B. Procedural History
Following his conviction, Defendant appealed, challenging the trial court’s failure
to give CALCRIM No. 703 relating to the special circumstance finding, and the
imposition of a $10,000 parole revocation restitution fine. (People v. Session, supra,
E049939 (Session I).) We affirmed the murder and robbery convictions but reversed the
special circumstance finding and remanded the matter for further proceedings and
resentencing. (Ibid.) On remand and retrial of the special circumstance allegation, the
jury again returned a true finding, and Defendant was resentenced to a term of LWOP.3
Defendant again appealed. (People v. Session (Sept. 14, 2012, E053942) [nonpub. opn.]
(Session II).) We affirmed the special circumstances finding because other instructions
amply covered that issue. (Session II, supra, E053942.) The Supreme Court denied
3 On resentencing, the parole revocation restitution fine pursuant to section
1202.45 was not imposed.
6
review of that decision. (People v. Session, filed Nov. 20, 2012, S205774 [2012 Cal.
LEXIS 11250].)
On June 17, 2019, following the enactment of section 1170.95, Defendant filed a
petition for resentencing. The trial court summarily denied the petition on August 28,
2020, and Defendant appealed that ruling. On appeal, we affirmed the trial court’s
finding Defendant was ineligible for relief due to the special circumstances finding.
(People v. Session (Sept. 8, 2021, E075808) [nonpub. opn.].) Defendant petitioned for
review, and on November 17, 2021, the California Supreme Court granted review,
deferring further action pending disposition of a related issue in the then pending People
v. Strong, S266606. (People v. Session (Nov. 17, 2021, S271219) [2021 Cal. LEXIS
8082].)
On October 26, 2022, the California Supreme Court transferred the matter to the
appellate court “with directions to vacate its decision and reconsider in light of People v.
Strong (2022) 13 Cal.5th 698.” (People v. Session, filed Oct. 26, 2022, S271219 [2022
Cal. LEXIS 6508].) Thereafter, this court reversed and remanded the matter to the
superior court for further proceedings. (People v. Session (Nov. 22, 2022, E075808)
[nonpub. opn.] (Session III).)
On remand, the People agreed that an order to show cause should be issued. The
court received exhibits admitted in the original guilt trial along with transcripts of the
original trial proceedings, as well as the proceedings related to the retrial of the special
circumstances, along with briefing by the parties.
7
On June 13, 2025, after considering transcripts of the trial proceedings as well as
the exhibits admitted into evidence, which included video of the incident and the
Defendant’s visit to a separate convenience store after the robbery and murder, and
transcripts of the two interviews of the Defendant, one of which was a joint interview
with co-perpetrator Thornton, in addition to the briefs and oral argument of the parties,
the court denied the resentencing petition. In making its ruling, the court went through
all of the evidence considered. It then turned to the question of whether Defendant was a
major participant, acting with reckless indifference to human life, within the meaning of
making the findings on the record upon analyzing the factors set forth in Banks, supra, 61
Cal.4th 788 and Clark, supra, 63 Cal.4th 522:
“[THE COURT:] All right. As to the analysis for major participant, under
a major participant theory, the involvement must be substantial and demonstrate
reckless indifference to a grave risk of death, greater than actions of an ordinary
aider and abettor to an ordinary felony murder.
“There are multiple factors to consider. What role did the defendant have
in planning the criminal enterprise? What role did the defendant have in supplying
or using weapons? What awareness did the defendant have of the dangers posed
by the nature of the crime? Past experiences with other participants? Perhaps if
other participants had been known to use weapons? Was the defendant present at
the scene of the killing? Did his actions or inaction play a role? What did the
defendant do after lethal force was used? And this is under the Banks case which
is referred to in both motions.
8
“None of the—these are not elements. They are factors.· None are
necessary but all of these should be weighed.
“In looking at these factors, Mr. Session was involved in the planning of the
robbery.· He admitted the robbery was planned, that they both needed money,
needed to find a store to rob.
“Next factor, defendant was not armed but Mr. Thornton was armed;
however, Mr. Session admitted that he could have walked out when he first saw
the gun but decided not to.
“Also by the evidence within this case, the video evidence and within the
transcripts, it is clear that Mr. Thornton immediately—well, first drew the weapon
immediately after walking in and Mr. Session continued on with the process
thereafter when he was aware that a firearm was involved in this case. And Mr.
Session led the victim to the cash registers, both of them, and continued to lead
them into the back room.
“In the next factor, defendant, Mr. Session, said in his interview, ‘I saw the
gun and I decided to go through with it.’
“Mr. Session was present at the time of the killing. He was shoulder to
shoulder with Mr. Thornton. He was steering the victim into this cramped back
room and sharing the space with his co-defendant.
“Following the incident, Mr. Session went to a different 7-Eleven,
purchased Swisher Sweets and drinks, alcohol.
9
“After the killing, he calmly walked away. There was immediate flight and
they divided up the proceeds of the robbery evenly. He dropped off Mr. Thornton
and then proceeded to go purchase alcohol and blunts.
“He failed to get any sort of help. This shows an acceptance of the killing.
He failed to do anything to assist the victim. And then when the victim—first
when the victim begged for his life and begged for mercy nothing was done. Then
when the victim was shot multiple times and screaming in pain, Mr. Session did
nothing to assist, did nothing to render aid, did nothing to call the authorities,
anything in that vein at all.
“The probation report refers—or makes some reference that Mr. Session
was laughing and joking at the second 7-Eleven upon hearing that a different 7-
Eleven in town had been robbed, which indicates some degree of—well, indicates
that while he was aware of the other 7-Eleven being robbed, he simply laughed it
off and joked.
“As far as reckless indifference, the Clark case lays out various factors.
The greater the participation in the felony murder, the more likely the defendant
acted with reckless indifference and knowingly engaged in the criminal activities
known to carry a great risk of death. They must show is a willingness to kill or
assist another in killing to achieve a distinct aim neither if that is not the end
desire.
“There are multiple factors laid out. Whether the defendant had
knowledge, weapons were being used, how many firearms were used, whether
10
defendant was present at the crime, opportunity to restrain the crime or aid the
victim, the duration of the interaction between the perpetrators of the felony and
victims, the defendant’s knowledge of the shooter’s likelihood of killing, whether
defendants took steps—defendant took steps to minimize the risk of violence, and
defendant's youthfulness.
“Again, these are not elements. They are all factors. And these factors do
overlap with the factors previously described.
“Analysis of the factors I previously stated also generally can apply. These
ones, some of the highlights of the arguments from the People, Mr. Session
knowingly assisted his armed accomplice into the back room disregarding a life
threatening risk. Mr. Session stated, ‘I could have walked out but decided we
would go through with this.’ Mr. Session continued on with the robbery after
seeing Mr. Thornton pull out the gun upon entering the store. He held the victim
by the collar as they went to both cash registers with the firearm being pointed at
the victim. Mr. Session is clearly the one leading around the victim to the—from
the aisles to the registers then to the back room.
“The Court is considering the various factors and evidence of the trial and
case here. Mr. Session's presence, his flight, his failure to take any steps to
prevent this from occurring and failure to assist or render any sort of aid or contact
authorities or medical after the shooting, and Mr. Session’s conduct before, during,
and after the incident.
11
“Mr. Session was present at the scene, acted in coordination with Mr.
Thornton, blocked the door, grabbed the victim, moved the victim, pulled him to
the back room. All of this occurring—almost all of this occurring after Mr.
Thornton displayed the firearm. Both suspects entered together, escorted the clerk
to the back, the same two left and fled. It establishes companionship. And Mr.
Session was there when at least the first shot was fired. These are not the actions
of someone caught off guard.
“Based on all of the above, and an analysis within the various factors, the
Court is convinced beyond a reasonable doubt that petitioner was a major
participant in the underlying felony and acted with reckless indifference to human
life.
“Petitioner’s request for relief under Penal Code 1172.6 is denied.”
DISCUSSION
Defendant argues that the evidence was insufficient to sustain his murder
conviction on a theory he was a major participant who acted with reckless indifference to
human life in the commission of a felony. Specifically, Defendant argues that the
evidence “did not establish that [his] role in the underlying felony differed from that of a
typical accomplice to armed robbery crimes or that he knowingly disregarded a grave risk
of death created by his conduct.” We disagree.
a. Standards of Review
“At an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3), the trial
court sits as an independent fact finder and determines whether the People have
12
established the defendant’s guilt beyond a reasonable doubt.” (People v. Gudiel (2024)
107 Cal.App.5th 848, 858.) “On appeal from the denial of a section 1172.6 petition after
an evidentiary hearing, we review the superior court’s factual findings for substantial
evidence and the court’s application of the law to those facts de novo.” (People v. Hill
(2024) 100 Cal.App.5th 1055, 1066, citing People v. Wilson (2023) 90 Cal.App.5th 903,
916.)
“Upon a challenge to the sufficiency of evidence for a jury finding, ‘ “ ‘ “we
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt,” ’ ” ’ ” and we presume every fact in support of the judgment
the trier of fact could have reasonably deduced from the evidence. (People v. Rivera
(2019) 7 Cal.5th 306, 323-324; see Clark, supra, 63 Cal.4th at p. 610.) “We must accept
factual inferences in favor of the trial court’s ruling.” (People v. Zamudio (2008)
43 Cal.4th 327, 342, 346, fn.7, 357; People v. Mitchell (2022) 81 Cal.App.5th 575, 591.)
After reviewing the whole record, we “ ‘determine whether any rational trier of
fact could have found the essential elements of the crime . . . beyond a reasonable
doubt.’ ” (People v. Montanez (2023) 91 Cal.App.5th 245, 270.)
b. General Legal Principles Governing Resentencing Petitions Pursuant to
Section 1172.6
Relevant to this appeal are Senate Bill No. 1437’s (2017–2018 Reg. Sess.) (Stats.
2018, ch. 1015) amendments to the felony-murder rule. Senate Bill No. 1437 amended
13
sections 188 and 189 of the Penal Code to “ ‘eliminate[] natural and probable
consequences liability for murder as it applies to aiding and abetting, and [to] limit[] the
scope of the felony-murder rule.’ ” (People v. Lee (2023) 95 Cal.App.5th 1164, 1173.)
Prior to the amendment, a defendant who committed a statutorily enumerated felony such
as robbery could be convicted of murder for a killing during the felony without further
examination of their mental state. (People v. Garcia (2022) 82 Cal.App.5th 956, 964-965
(Garcia).)
After the enactment of Senate Bill No. 1437, however, “ ‘[a] participant in the
perpetration or attempted perpetration of [an enumerated felony, including robbery] 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. [¶] [or] (3) The
person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.’ (§ 189,
subd. (e)(1)-(3).)” (Garcia, supra, 82 Cal.App.5th at p. 965.)
The legislative changes “significantly narrowed the scope of the felony-murder
rule” and “created a path to relief for defendants who had previously been convicted of
murder on a felony-murder theory but who could not have been convicted under the new
law.” (People v. Strong, supra, 13 Cal.5th at p. 703; People v. Lopez-Barraza (2025) 110
Cal.App.5th 1227, 1237; see People v. Morris (2026) 19 Cal.5th 671, 682 (Morris).)
These changes were intended “ ‘to ensure that murder liability is not imposed on a person
14
who is not the actual killer, and 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.’ ”
(People v. Lopez (2026) 19 Cal.5th 639, 660 (italics added); see People v. Emanuel
(2025) 17 Cal.5th 867, 875 (Emanuel).)
Pursuant to Senate Bill No. 1437, and in addition to the changes to sections 188
and 189, the Legislature added section 1170.95, now 1172.6, which provides a procedure
for convicted murderers who could not be convicted under the law as amended to
retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 952, 959, citing People v.
Gentile (2020) 10 Cal.5th 830, 843.) “After a defendant files a petition alleging
entitlement to relief and makes a prima facie showing of such entitlement (§ 1172.6,
subds. (a) & (b)(1)(A)), ‘then the court must in most cases convene an evidentiary
hearing where the People bear the burden of establishing beyond a reasonable doubt that
the defendant is guilty of the pertinent crime under the new, narrower definitions.
(§ 1172.6, subds. (c) & (d).)’ ” (People v. Zavala (2024) 105 Cal.App.5th 366, 373.)
At the evidentiary hearing, the court may consider “ ‘evidence previously admitted
at any prior hearing or trial’ that is admissible under current law, as well as ‘new or
additional evidence’ that is admissible under current law. (§ 1172.6, subd. (d)(3).) If the
People ‘fail to sustain [their] burden of proof’ at the evidentiary hearing, then the
conviction must be ‘vacated’ and the defendant resentenced. (§ 1172.6, subd. (d)(3).)”
(People v. Duran (2022) 84 Cal.App.5th 920, 927.)
15
c. Whether Substantial Evidence Supports the Resentencing Court’s Findings
in Light of Banks and Clark
Because the People stipulated to the prima facie finding, and because the
Defendant did not object to the evidence proffered at the hearing (which included the
transcripts of the original trial and the interviews, along with exhibits from the original
trial including video footage), the gravamen of Defendant’s argument is a challenge to the
court’s findings, pursuant to Banks and Clark, that Defendant was a major participant and
that he acted with reckless indifference to human life.4
In presenting his arguments, Defendant addresses each of the factors suggested by
Banks and Clark as though each was an essential element to be established in order to
find him liable as the nonkiller under the felony-murder doctrine. However, no single
Banks or Clark factor is determinative—or even necessary. (Banks, supra, 61 Cal.4th at
p. 803; Clark, supra, 63 Cal.4th at pp. 618, 621-623.) Instead, courts are required to
assess the totality of a defendant’s culpability within a “spectrum” established by two
United States Supreme Court cases. On one end is Enmund v. Florida (1982) 458 U.S.
782 (Enmund), in which the defendant was the classic getaway driver who was a “ ‘minor
actor in an armed robbery, not on the scene, who neither intended to kill nor was found to
have had any culpable mental state.’ ” (Banks, at p. 800.) On the other end of the
spectrum is Tison v. Arizona (1987) 481 U.S. 137 (Tison), in which the defendants helped
4 Insofar as the prosecution argued that Defendant was still liable for murder under
section 189, subdivision (e)(3), as a major participant acting with reckless indifference to
human life, we do not need to concern ourselves with whether Defendant directly aided
in the lethal act. (Morris, supra, 19 Cal.5th at p. 683.)
16
convicted murderers escape from prison, provided weapons, and stood by as their
confederates debated killing, then killed, an innocent family of four. (Banks, at pp. 801-
803; People v. Strong, supra, 13 Cal.5th at p. 705 [discussing the Tison-Edmund
spectrum of culpability].)
While the United States Supreme Court and the California Supreme Court have
embraced the factors forming the spectrum on which a defendant’s conduct is measured,
the decisions have emphasized that the factors are not elements and that “[n]o one of
these considerations is necessary, nor is any one of them necessarily sufficient. All may
be weighed in determining the ultimate question, whether the defendant’s participation
‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently
significant to be considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.)
Instead, determining whether a defendant acted as a major participant depends on
the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802; see People v. Oliver
(2023) 90 Cal.App.5th 466, 478 (Oliver).) Although we will address Defendant’s
individual points, our ultimate determination is grounded in the question of whether there
is substantial evidence, based on the totality of the circumstances, to support the trial
court’s finding that Defendant was a major participant acting with reckless indifference to
human life.
i. Major Participant
In Banks, the Supreme Court acknowledged that the term “major participant” was
borrowed directly from Tison, supra, 481 U.S. at p. 158, fn. 12. (Banks, supra, 61
Cal.4th at p. 798.) The Banks decision notes that case law has not provided a clear,
17
technical definition of the term, pointing instead to a spectrum of conduct ranging from
the unwitting getaway driver who has no knowledge of the killer’s plan or intent, and the
direct aider and abettor in a felony murder. (Banks, at pp. 794, 802-803, 805, 806.)
Following Banks and its United States Supreme Court’s antecedents, in deciding
whether a defendant was a major participant in a special circumstance felony murder, we
consider the following nonexclusive factors: “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? No one of these considerations is necessary, nor is any one of
them necessarily sufficient.” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; accord,
Clark, supra, 63 Cal.4th at p. 611.)
All of the factors may be weighed in determining the ultimate question, whether
the defendant’s participation “ ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Banks, supra, 61
Cal.4th at p. 803, citing Tison, supra, 481 U.S. at pp. 152, 157; Kennedy v. Louisiana
(2008) 554 U.S. 407, 421.)
Defendant acknowledges he was involved in the planning of the robbery, but
emphasizes on appeal that his participation was limited, and that his conduct during the
18
robbery did not differ from that of a typical accomplice to armed robbery crimes, denying
that he knowingly disregarded a grave risk of death created by his conduct. Defendant
also argues that the trial court misapplied this factor because his participation in the
planning activity was neither “ ‘crucial’ ” nor instrumental. Contrary to Defendant’s
implication, the list of facts suggested by Banks was not intended to be an exclusive list
of essential elements, without proof of all of which, the finding of major participation
must fail. As the authorities have repeatedly stated, no one consideration is necessary,
nor is any one of them necessarily sufficient. (Banks, supra, 61 Cal.4th at p. 803.)
Defendant devotes extensive discussion to certain factors mentioned in Banks and
Clark as supportive of an inference his participation was minor and that those factors (not
cited by the court) negate other factors relied upon by the court, we do not need to
address these arguments in great depth. They do not pertain to the correctness of the
judgment in light of the totality of the circumstances and the findings that the court made,
which are supported by the record. We do not review what the court might have
considered because the Banks and Clark factors are “points on a spectrum” and not a
checklist of factors that must be found in every case. Defendant filed briefing in the trial
court supporting his arguments that he was not a major participant, which the trial court
considered, so we can only conclude that these arguments were rejected in light of the
trial record and the exhibits, which were admitted into evidence without objection.
Specifically with respect to the planning activities, in addition to those cases
referring to extreme evidence of planning (see In re Bennett (2018) 26 Cal.App.5th 1002,
1019-1020 [crucial]), it has been held that mere presence during the planning was
19
sufficient to support the planning factor. (Oliver, supra, 90 Cal.App.5th at p. 483.)
Defendant does not deny he was present at the planning of the robbery, and that he
participated in the planning activity, whether his participation was crucial or not. There is
substantial evidence to support the court’s finding that Defendant was actively engaged in
the planning of the robbery, and the fact that in another case, decided by a different court,
based on other facts, a different result occurred, is not the standard for review.
Defendant argues that the tragic outcome of the robbery differentiated this case
from the “typical convenience store robbery,” such that Defendant’s “individual
responsibility” must be measured by his own actions, which were essentially no different
from those of a typical accomplice to an armed robbery. This also is not the bar,
particularly in light of the fact that not all armed robberies involve killing the victim.
Instead, we must determine whether the Defendant’s participation, considered in light of
the Banks “spectrum,” was sufficiently significant to be considered “major.” (Banks,
supra, 61 Cal.4th at p. 803, citing Tison, supra, 481 U.S. at p. 157)
Defendant has also attempted to rebut the finding he was a major participant by
arguing that “Major participation requires more than active participation in the underlying
felony or the conduct leading up to the murder,” implying, by this incomplete quotation
that his conduct must be found to have been particularly egregious to be considered a
major participant. We observe that the omitted portion of the sentence cited by
Defendant, which originated with Banks, continues by adding, “such as Earl Enmund.”
(Banks, supra, 61 Cal.4th at p. 802, referring to Enmund, supra, 458 U.S. 782.)
20
The court in Banks went on to explain, “The defendants’ actions in [Tison], supra,
481 U.S. 137, and [Enmund], supra, 458 U.S. 782, represent points on a continuum.
(Tison, at pp. 149-151.) Somewhere between them, at conduct less egregious than the
Tisons’ but more culpable than Earl Enmund’s, lies the constitutional minimum for death
eligibility. Because the Supreme Court found it unnecessary to ‘precisely delineate the
particular types of conduct and states of mind warranting imposition of the death penalty’
[citation], it follows that a jury presented with this question must consider the totality of
the circumstances.” (Banks, supra, 61 Cal.4th at p. 802.)
Enmund was not present at the robbery or the killing; he was in a car parked by
the side of the road near the farmhouse at the time of the killings, waiting to help the
robbers and killers to escape. (Enmund, supra, 458 U.S. at p. 784.) The contrast between
Enmund’s level of participation and that of Defendant’s is the difference between
passively aiding and abetting a crime and actively or directly aiding and abetting.
While Defendant may not have known Thornton was armed before they entered
the store, Defendant admitted knowing that Thornton frequently carried guns, and that
Defendant became aware that Thornton had pulled out a gun immediately after entering
the convenience store. Nevertheless, Defendant decided to carry on with the robbery
when he could have withdrawn from the crime. By forcing the victim to hand over the
cash from the two registers while Thornton followed behind using the firearm as a threat,
the risk of death was increased exponentially, and Defendant was aware of that danger.
Later, after forcing the victim into the storeroom, out of view of the security cameras, as
the victim pled for mercy, Defendant shoved the victim “real hard” against a wall,
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intending at that point to strike the victim in the head with his fist as Thornton opened
fire.
Aware of the danger posed by Thornton’s use of the firearm and being present at
all stages of the robbery leading up to the shooting, Defendant was in a position to
prevent the murder but did not. Instead, his actions, which spoke louder than any words,
showed he intended to complete the robbery no matter what the danger or cost to the
victim. Defendant was not some unwitting getaway driver, unaware of the risk of death.
Under Banks, the determination of whether a person is a major participant is made
by identifying the point on the participation spectrum at which his or her conduct lies. It
is safe to say that Defendant’s conduct does not fall near the Enmund point on the
spectrum. The trial court assiduously cited and applied the factors relevant to
Defendant’s status as a major participant and referred to the evidence supporting each
finding. The court’s factual findings are supported by substantial evidence in the record.
ii. Reckless Indifference to Human Life
Defendant argues the evidence fails to meet the requirements for “reckless
indifference to human life,” because the record does not show he personally took any
actions reflecting a willingness to kill to accomplish the robbery. We disagree.
The requirements of major participation and reckless indifference overlap, such
that the greater the defendant’s participation in the felony murder, the more likely that he
acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 615, citing
Tison, supra, 481 U.S. at p. 153.) Many of the decisions, including Banks and Clark,
analyze the reckless indifference requirement in the context of the felony-murder special
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circumstances finding with respect to an aider and abettor to the felony murder. (§ 190.2,
subd. (d).)
“Reckless indifference to human life ‘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.’ [Citation.] As to its
subjective element, ‘[t]he defendant must be aware of and willingly involved in the
violent manner in which the particular offense is committed’ and consciously disregard
‘the significant risk of death his or her actions create.’ [Citation.] As to its objective
element, ‘[t]he risk [of death] 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.’ [Citation.] ‘ “Awareness 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. [Citation.] Notably, “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.’ ” (People v. Jones (2022) 86 Cal.App.5th
1076, 1087-1088, quoting In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins), as well as
Clark, supra, 63 Cal.4th at p. 617, and Banks, supra, 61 Cal.4th at p. 801.)
“Clark listed factors to consider when determining whether the defendant acted
with reckless indifference: ‘Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used? Was the defendant
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physically present at the crime? Did he . . . have the opportunity to restrain the crime or
aid the victim[s]? What was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the felony?’ ” (People v.
Grandberry (2025) 116 Cal.App.5th 934, 949, citing Scoggins, supra, 9 Cal.5th at p. 677,
and Clark, supra, 63 Cal.4th at pp. 618-623.)
The degree of risk to human life is crucial to the analysis because the possibility of
bloodshed is inherent in the commission of any violent felony, such that one who
perpetrates or attempts to perpetrate such a crime may well anticipate “ ‘the use of lethal
force as a possibility.’ ” (Emanuel, supra, 17 Cal.5th at p. 884, citing Scoggins, supra,
9 Cal.5th at p. 682; Tison, supra, 481 U.S. at p. 151.) The Supreme Court has thus made
clear that 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.” (Emanuel, at
p. 884 (italics added), citing People v. Strong, supra, 13 Cal.5th at p. 719, in turn quoting
Banks, supra, 61 Cal.4th at p. 802 & Clark, supra, 63 Cal.4th at p. 617, fn. 74.) This
holding of Emanuel does not apply where there are, in addition to the finding that a
participant was armed with a gun, additional factors to be considered in assessing the
level of a defendant’s conduct on the Banks-Clark spectrum.
Defendant argues that a defendant’s knowledge that confederates are armed is
insufficient alone to show a reckless indifference to human life, citing People v. Medina
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(2016) 245 Cal.App.4th 778, 791, and that because there was no evidence showing
Defendant had a specific, personal awareness that the nature of the underlying crime
posed a particular danger that would create a grave risk of death, the short duration of the
robbery indicates the killing was a more impulsive response by Thornton that Defendant
could not prevent. Defendant also argues that the fact he was present but failed to assist
the victim did not support the inference Defendant acted with reckless indifference when
considered in light of the relatively brief duration of the events, the absence of evidence
Defendant knew Thornton had a gun or was likely to use it to kill the victim, and
Defendant’s statements he intended to knock the victim out when he ushered him into the
back room and fled after the shooting because he was wounded and in shock. We
disagree.
In a similar factual context, the reviewing court in Oliver, affirmed a finding of
reckless indifference to human life based on the record facts. In that case, the trial court
considered that the defendant “knew [the co-perpetrator] was armed with a lethal weapon
that he intended to carry with him during the robbery/burglary; [defendant] knew a single
lethal weapon was involved, was likely to be used, and was used during the crimes;
[defendant] had the opportunity to either stop the killing or assist [the victim] and did
nothing to minimize the possibility of violence; and [defendant] was aware that [co-
perpetrator] had stated he intended to kill [the victim] if he was alone. Based on these
findings, the court concluded beyond a reasonable doubt that [defendant] acted with
reckless indifference to human life.” (Oliver, supra, 90 Cal.App.5th at pp. 481-482.)
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While Defendant relies heavily on his lack of knowledge that Thornton would fire
the gun to kill the victim, his reaction when he saw Thornton pull out the firearm
suggests he was aware of the likelihood the gun would be used for something more lethal
than the threat of force to carry out the robbery. Certainly, Defendant knew that
producing the firearm did not lessen the likelihood of lethal force, especially when one
considers there were two robbers confronting a single unarmed store clerk and Defendant
was aware of Thornton having guns. Additionally, the fact that Defendant acknowledges
he had deliberately decided to follow through with the robbery after seeing the firearm
immediately after entering the store shows he was aware of the risk.
Thus, this case is distinguishable from one where “the only factor supporting a
reckless indifference finding is that a participant was armed with a gun.” (Emanuel,
supra, 17 Cal.5th at p. 884, italics added.) In the present case, there was much more
evidence pointing to Defendant’s reckless indifference, which moved the needle toward
the Tison end of the spectrum, in addition to the absence of a rule requiring that all of the
factors set out in Clark, supra, 63 Cal.4th 522 must be present in every case.
While Defendant was not the shooter and was not armed with a firearm, he was
subjectively aware his participation involved a grave risk of death because he knew
Thornton was using a firearm5 as Defendant forcibly led the victim to both of the cash
5 When Thornton pulled out the gun and pointed it at the victim, Thorton used it.
In the context of firearm use enhancements, it has long been held that “use” of a firearm
does not require firing it. “Although the use of a firearm connotes something more than a
bare potential for use, there need not be conduct which actually produces harm but only
conduct which produces a fear of harm or force by means or display of a firearm in
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registers to steal the cash, facilitated by that gun use and pushed the victim into the
storeroom. Defendant also was present during the robbery, unlike Enmund who was
parked away from the crime scene as the robbery-murder unfolded, and was in a position
to stop Thornton or, at a minimum, to aid the victim. Instead, he used his share of the
paltry proceeds to purchase beer and cigars after the crime.
Further, Defendant was not passive in directing violence to the victim: Defendant
himself used physical force, grabbing the victim by the collar to force the victim to open
the cash registers. Defendant shoved the victim “real hard” against a wall of the
storeroom and then was about to strike the victim with his fist in the head, intending to hit
the victim hard enough to knock the victim out with his fist, so Defendant and Thornton
could make their getaway. Defendant made no effort to impede or even discourage
Thornton’s act of shooting, leaving the storeroom after being grazed by one of Thornton’s
bullets, but not leaving the store until Thornton had finished shooting.
In any event, the presence or absence of a firearm is but one factor, and the
absence of this factor is not dispositive of a finding of reckless indifference to human life.
In reviewing the sufficiency of the evidence, we do not reweigh the evidence or
judge the credibility of witnesses. (Grandberry, supra, 116 Cal.App.5th at p. 946; People
v. Cody (2023) 92 Cal.App.5th 87, 112-113.) Defendant’s decision to proceed with the
robbery after Thornton pulled out his firearm ratified Thornton’s escalation of the
aiding the commission of one of the specified felonies.” (People v. Masbruch (1996) 13
Cal.4th 1001, 1007, citing People v. Chambers (1972) 7 Cal.3d 666, 672-673; see People
v. Jones (2021) 65 Cal.App.5th 1, 7-8.)
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inherent danger of the robbery as soon as the two entered the convenience store. But
equally importantly, Defendant’s acts of physically forcing the victim into the storeroom,
shoving the victim against the wall “real hard” and preparing to strike blows with his fist
to the victim’s head to knock him out so Defendant and Thornton could escape, then
running out of the store, splitting the spoils of the robbery, and heading to another
convenience store where he purchased snacks and cavalierly kidded with the clerk,
supports a finding he acted with reckless indifference to human life.
The court’s findings are supported by the record and justify the denial of relief.
DISPOSITION
The order denying the section 1172.6 resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
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