Filed 6/30/26 P. v. Sison CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084734
Plaintiff and Respondent, (Super. Ct. No. SCE239548)
v.
JEFFERSON SISON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Roderick Ward Shelton, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and
Respondent.
Jefferson Sison appeals from an order denying his petition for
resentencing pursuant to Penal Code section 1172.61 after an evidentiary
hearing. Sison asserts that we should independently review the petition
under a de novo standard of review, and, regardless, that there was
1 Further unspecified statutory references are to the Penal Code.
insufficient evidence to support the trial court’s finding beyond a reasonable
doubt that he was a major participant in the underlying felony offense who
acted with reckless indifference to human life. We decline to depart from the
generally accepted standard of review and conclude that substantial evidence
supports the trial court’s findings. We therefore affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
In 2005, a jury convicted Sison on one count each of carjacking,
attempted carjacking, and first degree murder in violation of section 187,
subdivision (a).2 As to the murder conviction, the jury made true findings
that it was committed during the commission of a robbery within the
meaning of section 190.2, subdivision (a)(17) and that Sison was a principal
in the offense and vicariously liable for the use of a handgun, within the
meaning of section 12022, subdivision (a)(1).
Sison was tried along with codefendant Robbie Martin. The jury found
Martin guilty of the same primary crimes: carjacking, attempted carjacking,
and murder. The trial court sentenced both Sison and Martin to an
indeterminate term of life without the possibility of parole and also sentenced
Sison to a determinate term of 23 years, six months.
Sison filed a petition for resentencing under section 1172.6, which the
trial court summarily denied based on the special circumstance findings at
trial. Following the California Supreme Court’s decision in People v. Strong
(2022) 13 Cal.5th 698 (Strong), this court reversed the trial court’s order
summarily denying the petition, and remanded the matter to the trial court
2 This court reversed the carjacking conviction on direct appeal. We
discuss the evidence regarding the attempted carjacking ante, insofar as it
relates to Sison’s state of mind with respect to the murder.
2
for further proceedings, to determine whether Sison had made a prima facie
showing entitling him to an evidentiary hearing. On remand, the People
agreed that Sison had made a prima facie showing, and the trial court issued
an order to show cause why resentencing should not be granted.
The trial court held an evidentiary hearing on the order to show cause
on August 22, 2024. The trial court entered the trial records into evidence
and stated that it had reviewed the trial transcripts in their entirety.
Neither party offered any additional evidence. After hearing argument, the
trial court found beyond a reasonable doubt that Sison remained guilty of
murder under the current state of the law, and therefore denied the motion
for resentencing.
B. Evidence Presented at Trial in 2004
As noted, Sison relied entirely on the trial records from 2004 to support
his section 1172.6 petition. Each of the parties has provided detailed
summaries of the evidence presented at trial in their briefing on appeal. In
providing our own summary herein, we focus on the evidence most relevant
to Sison’s petition for resentencing and the factors enumerated in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark). (See also, People v. Montanez (2023) 91 Cal.App.5th 245, fn. 7
(Montanez) [“Because this appeal requires us to apply the substantial
evidence standard of review, we state the facts in the light most favorable to
the prosecution as the party that prevailed in the superior court”].) Like the
trial court, we have reviewed the original transcripts, and particularly those
portions cited by the parties in their briefing.
1. Attempted Carjacking on March 4, 2004
Joseph DeBenedetti worked with Sison and Martin at a casino. In the
spring of 2004, DeBenedetti introduced his friend, Benjamin King, to Martin
over the phone. King was employed as a certified physical trainer at the time
3
and Martin had an interest in buying steroids. A day or two before March 4,
2004, King let Martin know that he had obtained some steroids.
On March 4, King told Martin he could come pick up the steroids at the
gym, where King was working. Martin suggested that they meet partway
between the gym and Martin’s house instead. At first, the meeting was going
to be right after King got off work, around 6:00 or 7:00 in the evening, but
Martin kept pushing back the time. Eventually, Martin asked King to come
to his house in Spring Valley.
King arrived at the location at approximately 8:30 p.m. He was alone.
King sat in his truck with the motor running. He waited about five minutes
and then saw two men approaching from the rear of the vehicle. King later
identified the men as Martin and Sison, but at the time he had only spoken to
Martin over the phone and did not know Sison.
Martin approached the passenger side of the truck, while Sison hung
back. Martin tapped on the window and King motioned for him to get into
the truck. Martin stepped back and pulled a bandana over his face. He
opened the passenger door, pointed a gun at King, and told him to get out of
the car. King reached down to release the emergency brake. At that point,
Sison opened the driver side door and tried to “pistol whip” King. The gun hit
King’s cheek and King stepped on the gas. As the car was taking off, both
men fired their guns. Martin shot first from the passenger side, close enough
that King felt the concussion from the gun, and then Sison shot his gun a
second later.
King drove home. He did not call the police that night, but he did call
the following evening. The police asked King to look at two photographic
lineups about one month later. King identified Sison in one of the lineups.
When shown the other lineup, King noted that Martin looked like the other
4
shooter, but thinner. He then chose a different picture, next to Martin’s. He
later identified Martin as the second shooter in court, and stated that the
photos the police showed him were poor quality.
2. Discussion of Other Carjackings
Martin told “outrageous” stories at the casino. In December 2003,
Martin told DeBenedetti and another employee at the casino about another
carjacking in which Martin and his “partner” had held two individuals at
gunpoint before stealing their car. Sison was present for part of the
conversation and seemed to acknowledge that he was the other participant.
Martin was “brazen” about telling others at the casino that he had rims,
stereos, and other items for sale.
3. Murder of Francisco Luna on April 8, 2004
a. Prosecution Evidence
Thomas DiFrancesco also worked at the casino with Martin and Sison.
On the afternoon of April 8, 2004, Martin asked DiFrancesco if he wanted to
purchase a gun, or if he knew anyone who wanted to purchase a gun.
DiFrancesco told Martin that he did not and did not know anyone who
wanted to buy a gun. They also talked about other things that Martin wished
to sell. At around 10:30 p.m., Martin invited DiFrancesco to come over to his
house. DiFrancesco drove to Martin’s house in his truck. He arrived around
11:00 p.m. Martin, Sison, and third individual named Frankie Luna, who
DiFrancesco did not previously know, were there, standing around on the
sidewalk in front of the house.
Martin had previously told DiFrancesco to say, “I forgot it” when he
arrived. DiFrancesco did not know what Martin meant, but Martin said it
did not matter, just to say it. When he got there, Martin said, “did you bring
it?” DiFrancesco forgot about the earlier conversation and said, “Bring
what?” DiFrancesco subsequently learned that Luna was interested in
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purchasing the gun. About 10 to 15 minutes after DiFrancesco arrived, Luna
went to his car to get something. Sison pulled a gun out from his waistband
and handed it to Martin. Sison told Martin, “Here, you do it.”
Luna wanted to make sure the gun worked properly so they decided to
drive towards the border, to find a place where they could fire the gun.
DiFrancesco drove Sison, and Martin went in Luna’s vehicle. Luna was
driving a black Lexus that he had purchased just a few weeks before. It had
20 inch chrome rims and various other aftermarket upgrades, including a
stereo system and a DVD video system.
DiFrancesco followed Martin south towards the border. During the car
ride, Sison spoke to Martin on the phone. Sison said something to Martin
along the lines of, “Why don’t I just choke him?”
Martin eventually stopped, and both cars parked on a side street, in
front of some houses. DiFrancesco did not recognize the area. All four men
got out of the vehicles and started walking down the street. DiFrancesco
believed that they were going somewhere to test fire the gun that Luna was
interested in buying. They went down some stairs at the end of the street
and into a riverbed. The group walked about 20 yards along the riverbed.
Sison was 10 to 15 yards ahead, and DiFrancesco, Martin, and Luna walked
together.
Martin broke from the group and walked up the side of an
embankment. DiFrancesco thought that Martin was going to urinate in the
bushes. As Martin stood on the top of the embankment, Sison went into the
bushes along the side of the riverbed, as if he were also going to urinate.
Martin turned around, mumbled something, and fired the gun towards Luna.
Luna turned to run, and Martin shot him in the back. Luna ran and
screamed, “I’ll hook you up. Please don’t do this to me.” But Martin
6
continued to chase after him while shooting. DiFrancesco estimated Martin
shot seven to nine times. Meanwhile, Sison came out of the bushes and also
started running after Martin, as he was chasing Luna.
DiFrancesco crouched down. He glanced up for a “split second” and it
looked like Martin and Sison were “maybe” pulling Luna’s legs, but after
that, DiFrancesco closed his eyes. After about 30 seconds, he saw Martin
jogging back towards him. Martin put his hand on DiFrancesco’s shoulder,
indicating that he should stay down. About 30 seconds after that, Sison
returned. He was limping and looked like he hurt his ankle. After another
minute, the three started walking back towards the vehicles.
A woman who was sleeping in a house nearby testified that she heard
seven or eight gunshots sometime between midnight and 1:00 a.m. The shots
were broken up; there were several and then a pause, and then several more.
When the three men got back to the vehicles, Martin told Sison to take
Luna’s car and to follow him and DiFrancesco in DiFrancesco’s truck. Martin
got upset because Sison was driving too slowly on the freeway. Martin had
DiFrancesco pull over and Martin switched places with Sison. They went to a
residential street that they referred to as “the spot.” DiFrancesco had not
been there before. Martin and Sison started talking about “stripping” the car
right there but decided not to. Martin told DiFrancesco to go home and
DiFrancesco left. The next day, DiFrancesco helped Martin and Sison find a
different place to strip the car. DiFrancesco watched Martin and Sison strip
the car. Both wore gloves.
The police found Luna’s Lexus, stripped and abandoned in an alley
later that morning. When the police interviewed DiFrancesco a couple of
7
months later, he said that Sison’s truck was already at “the spot” when they
got there.3
Two individuals who were biking in the riverbed discovered Luna’s
body on April 9, 2004. They noticed a big pool of blood and saw some drag
marks in the area. They also noticed bullet casings around the blood and saw
a piece of carpet in the bushes. One of the bikers attempted to lift a piece of
the carpet and they discovered there was a body under it. They then left the
area and called the police. A homicide detective who arrived on the scene
noted several indications that Luna’s body had been dragged, including drag
marks in the area, the way Luna’s clothes had shifted on his body, and that
one of his shoes was missing, and was later found on the ground a few feet
away. An autopsy revealed seven gunshot wounds, including two to the head,
one of which likely caused immediate death.
Employment records indicated that Sison was limping while working at
the casino the next day, April 10, 2004. Sison told his employer that he
sprained his ankle on his time off. Sison left work early due to the injury.
Jason McDaniel testified that he had been good friends with Martin
since the sixth grade, and had also known Luna for about six years. Martin
visited McDaniel a couple of days before Luna was murdered. Martin asked
McDaniel about Luna and whether he was “cool.” McDaniel told Martin that
Luna was a “homie.” Martin also asked what type of people Luna hung
around with, whether he was in a gang, and whether Luna carried a gun.
3 At trial, DiFrancesco said that he went home after leaving the spot,
and that he did not have any further contact that evening with Martin or
Sison. Martin said that he drove Sison home.
8
b. Defense Evidence
Martin and Sison each testified in their own defense. Martin admitted
that he stole things from cars, and sometimes stole cars as well, and that
Sison was sometimes involved. Martin said that he had planned to buy
steroids from King, but that he ended up asking Sison and another friend to
meet King. He also said that Luna had asked him about buying a gun and
that he knew that DiFrancesco had one. Martin intended to facilitate the
sale, and take a cut, so they met at Martin’s house. Sison was also there
because he was bringing Martin some stolen radios to sell. There was an
issue with the gun and, at some point, both Martin and Sison left. Luna and
DiFrancesco were still at Martin’s house, discussing the gun. They all
planned to meet up again later that evening, further south, but Martin got
lost and told them he would just meet up with them later. DiFrancesco called
Martin later and said that they had jacked someone and needed a place to
store the car. When Martin met up with them, Sison was driving Luna’s
Lexus.
Sison testified that Martin was always bragging about carjacking
people and “that kind of stuff.” Sison testified that he was with his girlfriend
all evening on the night that Luna was killed, and that he did not know
anything about the shooting until the day he was arrested. Sison said that
Martin called him several times on the night of Luna’s murder, asking him to
come to Martin’s house. Sison did not want to go because he was spending
time with his girlfriend. Later, he called Martin back and Martin said that
he was in National City. Sison went to bed. The next morning, Sison slipped
and hurt his ankle after walking his girlfriend to her car. Later that
morning, Martin called again asking for a place to strip a car. Sison told
Martin that he had sprained his ankle and could not help.
9
Sison’s girlfriend testified and said that she originally told the police
that Sison usually watched wrestling at home on Thursday evenings, but
that she could not remember whether that was the case on the night of the
murder. Later, Sison said, “Well, Don’t you remember we watched
wrestling?” so she told the police that is what they did. At trial, she said she
was trying to remember but really was not sure, and that she could have
been out shopping for Easter. Sison also presented several character
witnesses.
II. DISCUSSION
Sison asserts that this court should review his section 1172.6 petition
for resentencing under a de novo standard of review and that, regardless of
the standard of review, the evidence was insufficient to prove that Sison
could be convicted of murder beyond a reasonable doubt under the current
law. We are not persuaded by either argument.
A. Relevant Legal Principles
In 2018, the Legislature passed Senate Bill 1437 and “made significant
changes to the scope of murder liability for those who were neither the actual
killers nor intended to kill anyone, including certain individuals formerly
subject to punishment on a felony-murder theory.” (Strong, supra, 13 Cal.5th
at p. 707.) “Senate Bill 1437 significantly limited the scope of the felony-
murder rule to effectuate the Legislature’s declared intent ‘to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’ ”
(Id. at pp. 707–708.)
In addition, “Senate Bill 1437 imposed a new requirement that, except
in cases of felony murder, ‘a principal in a crime shall act with malice
aforethought’ to be convicted of murder. (§ 188, subd. (a)(3).) ‘Malice shall
10
not be imputed to a person based solely on his or her participation in a crime.’
(Ibid.) One effect of this requirement was to eliminate liability for murder as
an aider and abettor under the natural and probable consequences doctrine.”
(People v. Curiel (2023) 15 Cal.5th 433, 449.) Thus, as the law now stands,
“[o]utside of the felony-murder rule, ‘a conviction for murder requires that a
person act with malice aforethought. A person’s culpability for murder must
be premised upon that person’s own actions and subjective mens rea.’ ” (Id.
at p. 448.)
In October 2021, the Legislature passed Senate Bill No. 775 amending
section 1172.6 to expand eligibility for resentencing to persons convicted of
attempted murder under the natural and probable consequences doctrine.
(2020−2021 Reg. Sess. ch. 551, § 1.)
Senate Bill 1437 also enacted current section 1172.6, which permits
defendants “convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime”
(§ 1172.6, subd. (a)(1)) to file a petition requesting that their conviction be
vacated on the grounds that they “could not presently be convicted of murder
or attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(3).) If the defendant makes the
requisite prima facie showing, the trial court shall issue an order to show
cause why the relief should not be granted and shall hold an evidentiary
hearing to determine whether to vacate the conviction at issue and
resentence the defendant on any remaining counts. (Id., subds. (c), (d)(1).)
At the evidentiary hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended by the
11
changes to Section 188 or 189 made effective January 1, 2019. The admission
of evidence in the hearing shall be governed by the Evidence Code, except
that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in any prior
appellate opinion. . . . The prosecutor and the petitioner may also offer new
or additional evidence to meet their respective burdens. A finding that there
is substantial evidence to support a conviction for murder, attempted murder,
or manslaughter is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. 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 shall be
resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
B. Standard of Review
Where, as here, the trial court finds that the prosecution has met its
burden to prove beyond a reasonable doubt that the defendant could have
been convicted under the current law, we review the trial court’s factual
findings for substantial evidence. (People v. Henley (2022) 85 Cal.App.5th
1003, 1017 (Henley); People v. Wilson (2023) 90 Cal.App.5th 903, 916
(Wilson).) We review the record in the light most favorable to the judgment,
and consider whether there is sufficient evidence of reasonable, credible, and
solid value from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. (Henley, at p. 1017.)
To the extent that our analysis turns on the application of the facts as
found by the trial court to the law, our review is de novo. (Henley, supra, 85
Cal.App.5th at p. 1017; Wilson, supra, 90 Cal.App.5th at p. 916; Montanez,
supra 91 Cal.App.5th at p. 270.) Thus, “where there is an issue as to whether
12
the trial court misunderstood the elements of the applicable offense, the case
presents a question of law which we review independently.” (People v. Reyes
(2023) 14 Cal.5th 981, 988.) At the same time, we presume the trial court
was aware of and followed applicable law unless the record affirmatively
demonstrates error. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
Sison acknowledges that “substantial evidence review has been the
norm to this point,” but nonetheless asks this court to independently review
the denial of his section 1172.6 petition, contending that independent review
is appropriate when the court’s decision is based upon a cold record with no
live testimony or new evidence. We decline the invitation to depart from the
long line of cases that have found substantial evidence to be the correct
standard of review. (See, e.g., Henley, supra, 85 Cal.App.5th at p. 1017;
Wilson, supra, 90 Cal.App.5th at p. 916; Montanez, supra, 91 Cal.App.5th at
p. 251, fn. 7; People v. Werntz (2023) 90 Cal.App.5th 1093, 1109–1110
[rejecting de novo standard of review and applying substantial evidence];
People v. Clements (2022) 75 Cal.App.5th 276, 298 [clarifying that it is not
enough for the trial court to determine that substantial evidence supports the
conviction, but that “[w]e review the trial judge’s factfinding for substantial
evidence.”]; People v. Underwood (2024) 99 Cal.App.5th 303, 313 [rejecting
appellant’s request to “review the evidence independently rather than for
substantial evidence”].)
While we agree that critical interests are at stake in these cases, it is
ultimately the trial court’s role to sit as the trier of fact in determining
whether the People have met their burden under section 1172.6, subdivision
(d)(3). (People v. Schell (2022) 84 Cal.App.5th 437, 442.) “Accordingly, ‘we
review the evidence in the light most favorable to the prosecution and
13
presume in support of the judgment the existence of every fact the [trier of
fact] could reasonably have deduced from the evidence.’ ” (Ibid.)
C. Substantial Evidence Supports the Trial Court’s Ruling
It is undisputed that Sison was not the actual killer of Luna. Under
the current state of the law, to be guilty of murder based on his involvement
in the underlying robbery, the evidence must demonstrate that Sison was a
major participant in the underlying felony who acted with reckless
indifference to human life, as described in section 190.2, subdivision (d). (See
§ 189, subd. (e)(3); Strong, supra, 13 Cal.5th at pp. 707–708.) Following
Strong, we apply the factors set forth in Banks and Clark when
considering whether Sison meets the requirements of section 190.2,
subdivision, (d). (See Strong, supra, 13 Cal.5th at pp. 707–708.)
When considering the mental aspect of Sison’s culpability, we
consider whether he “ ‘ “knowingly engag[ed] in criminal activities known to
carry a grave risk of death.” ’ ” (Banks, supra, 61 Cal.4th at p. 801.) The
evidence must demonstrate that Sison 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.” (Ibid.) But “participation in an armed robbery, without
more, does not involve ‘engaging in criminal activities known to carry a grave
risk of death.’ ” (Id. at p. 805.)
In Banks, the California Supreme Court set forth the following list of
factors to be considered in determining whether a defendant was a “major”
participant: (1) their role in planning the crime that led to the death(s);
(2) their role in supplying or using lethal weapons; (3) their awareness of
“particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants”; (4) whether they were
14
present at the scene of the killing and in a position to facilitate or prevent the
murder; and (5) their actions following the use of lethal force. (Banks, supra,
61 Cal.4th at p. 803.) The court emphasized that no one factor is dispositive.
(Ibid.)
In Clark, the court endorsed the Banks factors and sought to further
define the second element of “reckless indifference to human life.” (Clark,
supra, 63 Cal.4th at p. 611.) In doing so, the court set forth another list of
interrelated factors: (1) the defendant’s “knowledge of weapons, and use and
number of weapons”; (2) the defendant’s “physical presence at the crime and
opportunities to restrain the crime and/or aid the victim”; (3) the “duration of
the felony”; (4) the “defendant’s knowledge of cohort’s likelihood of killing”;
and (5) the “defendant’s efforts to minimize the risks of the violence during
the felony.” (Id. at pp. 618–621, capitalization omitted.) As the court
explained, the major participant and reckless indifference requirements “
‘significantly overlap . . . , for the greater the defendant’s participation in the
felony murder, the more likely [the defendant] acted with reckless
indifference to human life.’ ” (Id. at pp. 614–615.)
The trial court focused on these factors in making its ruling on Sison’s
petition, and, based on the totality of circumstances, concluded that the
People did prove beyond a reasonable doubt that Sison was a major
participant who acted with reckless indifference to human life under section
189, subdivision (e)(3). Substantial evidence supports the trial court’s ruling.
Beginning with the Banks factors, there was evidence that Sison had a
role in planning the crime; that he supplied the gun that was used to kill
Luna; that he knew Martin had a propensity for violence, particularly during
the course of a carjacking or robbery; that he was present during the murder;
and that rather than seeking help after Luna was shot, he helped Martin
15
drag Luna’s body along the riverbed. (See Banks, supra, 61 Cal.4th at
p. 803.)
DiFrancesco testified that, shortly before the murder, while Luna went
to his car to get something, Sison pulled a gun out from his waistband,
handed it to Martin, and said, “Here, you do it.” Sison asserts the statement,
“Here, you do it” could have been a reference to Martin selling the gun.
While that is a possible interpretation if considered outside the context of the
remaining evidence, the trial court was entitled to consider all the evidence
and make a reasonable inference as to the meaning of Sison’s statement, just
as a jury would have been entitled to do at trial.
Additional evidence indicated that Martin had asked a mutual friend
about Luna days before the murder; that Martin and Sison had a history of
committing carjackings together, and that one or both of them had used
violence before; that Luna had recently purchased a car with a number of
after-market upgrades; that they led Luna to a remote area; that Sison
suggested on the way there that he could just choke Luna; and that Sison had
a car waiting at “the spot” where they took Luna’s car. All of this led to
reasonable inferences that Martin and Sison planned to rob Luna, and that
Sison had reason to believe that Martin might use violence, including
shooting the gun, in connection with the robbery.
Sison asserts there was “no evidence” that he participated in the
planning of the robbery or that he knew that Martin planned to murder
Luna, and thus no evidence that he could have prevented it. “As we have
described on many occasions, intent to kill often must be inferred from
circumstantial evidence surrounding the crime.” (People v. Canizales (2019)
7 Cal.5th 591, 606.) Here, as we have explained, there was substantial
evidence suggesting Sison was aware of at least some elements of the plan to
16
rob Luna, that he handed Martin the murder weapon, and that he discussed
the crime with Martin on the way to the riverbed. Sison argues further that
there was no evidence that he was armed during the robbery; but of course
that is because he had already handed the murder weapon to Martin.
On the other hand, there was no evidence that Sison was surprised by
the shooting or upset that it had occurred. Sison testified that he was not
present at all, but the trial court found that testimony was not credible.
Other evidence, including physical evidence at the scene, suggests that Sison
ran after Luna when Martin began shooting, and that Sison helped drag
Luna’s body after the murder. While we acknowledge that it is entirely
feasible that Sison did not expect Martin to shoot in that moment, there is
also no evidence that, knowing that Martin had a gun, Sison attempted to
stop Martin, either in the moment, or before they entered the riverbed.
Sison relies on In re Taylor (2019) 34 Cal.App.5th 543, but Taylor is not
instructive here. As the court there noted, “Taylor was parked on the street
near where the killing occurred, he never got out of the car and had no
opportunity to prevent the shooting. Indeed, it appears that Taylor could not
even see [the killer’s] interaction with [the victim]. Rather, Taylor’s primary
role was to be the getaway driver.” (Id. at p. 559.) Moreover, Taylor did not
supply the murder weapon, and it was unclear whether he was aware the
shooter even had a gun. (Id. at p. 557.) As we have explained, here there
was evidence that Sison was present throughout the evening, and that he
handed Martin the murder weapon and stated, “Here, you do it.”
Turning to the Clark factors, we first consider whether Sison had
knowledge that Martin intended to use a weapon during the robbery. As we
have already discussed, there was evidence from which a reasonable fact
finder could infer that Sison not only knew, but encouraged Martin, stating,
17
“Here, you do it.” Again, Sison argues that he did not use a weapon himself,
and that the shooting occurred suddenly, without warning. In doing so, he
ignores the fact that he handed Martin the gun and that the two had a
history of violent carjackings, including a very recent incident in which one or
both fired a gun at the victim.
Sison asserts “there was nothing he could have done to prevent the
killing.” Not so. At a minimum, Sison could have refrained from handing the
murder weapon to Martin. Moreover, once Martin started firing, Sison could
have told him to stop. Instead, he ran after Luna, who was pleading for his
life, and then helped drag his body to a more remote location. Sison asserts
the gunshot wound to the head likely caused instant death, such that he
could not have rendered aid, but he neglects to acknowledge that Luna was
running and pleading after the first set of shots were fired, suggesting that
the fatal wound came later.
Next, regarding the duration of the felony, Sison asserts the shooting
was unexpected, but fails to address the events leading up to the shooting.
Before the shooting occurred, Sison handed Martin a gun, and the group
convinced Luna to go with them to a remote location in a dark riverbed at
night. During the car ride, Sison spoke with Martin on the phone and said
something along the lines of, “Why don’t I just choke him?” These facts both
extend the duration and suggest that Sison was involved in the planning
and/or aware of Martin’s plans. Rather than trying to reduce the risk, Sison
handed him a gun and continued to discuss the plan.
Sison asserts it is “pure speculation” to infer anything regarding the
meaning of the phone call that DiFrancesco overheard, but notably provides
no authority to support that position. Fact finders are permitted to weigh the
evidence and make reasonable inferences. Regardless of the context in which
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the testimony was elicited, it remains that DiFrancesco testified that Sison
said something like, “Why don’t I just choke him?” while speaking to Martin
on the phone. Sison asserts it “makes no sense” for him and Martin to speak
about killing Luna while Luna was sitting next to Martin in the other car,
but of course it was Sison, alone in the car with DiFrancesco, that made the
incriminating comment, not Martin. Moreover, Sison offers no other
explanation for the comment, asserting instead that he simply was not there.
Considering the totality of evidence, and each of the Banks and Clark
factors, we conclude that there is substantial evidence to support the trial
court’s finding that Sison was a major participant that acted with reckless
indifference to human life. (See Banks, supra, 61 Cal.4th at p. 803; Clark,
supra, 63 Cal.4th at pp. 614–615.)
III. DISPOSITION
The order is affirmed.
KELETY, J.
WE CONCUR:
MCCONNELL, P. J.
CASTILLO, J.
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