Filed 10/7/26 P. v. Finister CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B347322
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA104526)
v.
DASHAUN FINISTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dashaun Finister (defendant)
appeals from the order denying his petition for vacatur of his
murder conviction and resentencing following an evidentiary
hearing pursuant to Penal Code1 section 1172.6, subdivision (d).
The trial court found the prosecution had met its burden to show
beyond a reasonable doubt that defendant was not entitled to
resentencing. Defendant contends the order should be reversed
because the court’s findings are not supported by substantial
evidence. We find no merit in defendant’s contentions and affirm
the trial court’s order.
BACKGROUND
I. Statement of facts
On January 31, 2008, the unoccupied home of Luz Gonzalez
was burglarized. Among the many items taken from the home
were a television set and three firearms, including a .45-caliber
Para Ordnance semiautomatic pistol, loaded with Winchester
bullets.
On the morning of February 1, 2008, Steve Harvey
returned to the back unit of his duplex in Compton2 after
dropping off his son at school. Harvey parked his SUV with large
chrome rims and a DVD player in the driveway and went inside
where his cousin, Larry Fulton, was waiting for him in the living
room. Harvey left the “wood door” open, leaving only the screen
1 Unless otherwise designated, all further statutory
references are to the Penal Code.
2 Harvey’s home is “about a block [or two] away” from the
Gonzalez home and accessible by means of a “foot bridge that
allows just foot traffic … to go from one side of the wash to the
other.”
2
door closed. As Harvey and Fulton prepared to play a video
game, defendant and Michael Harris, burst through the screen
door brandishing weapons and shouting “Give us all your
money[!] It’s a stick up[!] It’s not a game[!] Give us the
money[!]”
Defendant stood directly in front of Harvey, who positively
identified him as carrying a black 9-millimeter or .45-caliber
handgun. Harvey said he had money in his bedroom. Defendant
and Harris “put the guns to the back of both [victims’] heads,”
and the group walked to Harvey’s bedroom. Harvey gave the
gunmen several hundred dollars from his dresser, but defendant
and Harris seemed dissatisfied—“they needed at least $1,000”—
and “reiterated that it’s not a game” and said they would “blow
[their] fuck’in heads off” and promised to do so “on the hood cuz.”
At that point, Fulton offered $100 from his wallet, but that still
was “not enough” and the men continued threatening to “blow
[the victims’] heads off.”
Defendant and Harris directed Harvey and Fulton into the
narrow hallway, grumbling about the money and discussing
“what they were going to do with [Harvey and Fulton].” Nervous,
Harvey was getting “a little fidgety,” causing defendant and
Harris to “talk[] crazy to [him].” Fulton tried to reassure the men
that Harvey was “just scared” and “he [did]n’t have any
weapons.” Defendant and Harris ordered the victims to get on
their knees and put their hands on the back of their heads.
Fulton complied, but “in a state of shock,” Harvey hesitated.
Harvey and Fulton were “shoulder to shoulder” with
Harvey standing to the right of Fulton. Defendant stood
approximately six to 10 feet in front of them near the couch.
Harris stood “directly behind” or to the right of Harvey.
3
Defendant and Harris argued about “what they were going
to do with [Harvey and Fulton].” One suggested they “just make
them run with us.” The other said, “No. Fuck that” and Harvey
heard two shots.3 When the shots were fired, Fulton was on his
knees with his hands interlaced behind his head; Harvey was
crouching and in the process of kneeling with his hands up.
Fulton was struck in the back of the head. Harvey was
shot in the left inner thigh, and the bullet came out his “left hip
or buttocks area below the belt line.” Defendant and Harris
“immediately ran out the front door.” Harvey estimated the
entire incident lasted approximately one-and-a-half to three
minutes.
Fulton suffered a fatal bullet wound that entered the back
of his head and travelled “left to right, back to front and
[downward],” and perforated his right lung. Investigators
recovered three .45-caliber shell casings all stamped with “the
same type ammunition and manufacturer,” “Winchester .45
auto.” One of the casings was found “right by the couch … in
front of the television,” and two others were found in the hallway.
Examination of the three cartridge casings revealed they were
fired from the same .45-caliber weapon and could have been fired
from a Para Ordnance .45-caliber semiautomatic firearm.
3 Harvey did not know which gunman said what and, at
trial, he was not sure who fired the shots. At the preliminary
hearing, Harvey testified that he had “seen … the first shot
[fired] was in front of me” and confirmed defendant was standing
in front of him when he saw the gun go off. When pressed on
cross-examination, Harvey confirmed he was looking at
defendant’s gun at the time the shot went off, but he did not
remember seeing “the flash” from the gun. Harvey agreed he
could not be sure the person behind him did not fire the shots.
4
Domenique Lewis met defendant and Harris a few months
before the murder. Lewis lived in an apartment with Madalion
Bradley, Harris’s girlfriend. The day before the murder,
defendant and Harris visited Lewis’s apartment. They talked
about a burglary they had just committed and brought a
television set and other items they had taken from the home.
A few days after the murder, Lewis again saw defendant
and Harris, whom she overhead talking about shooting someone.
Specifically, defendant and Harris were talking about a “house
lick” they had just done and someone said one of the two victims
was resisting and “[defendant] took the gun and shot him.” Upon
hearing this, Lewis confronted defendant saying, “Why [did] you
have to kill them? Why [didn’t you just] shoot them in the
knees?” Lewis said in response defendant and Harris “just put
their head[s] down because what [Lewis] was saying was true.”4
Lewis asked defendant why he told anyone about the shooting
and defendant said, “Well, what am I going to do?” Lewis was
arrested for receiving stolen property after taking items from the
Gonzalez burglary.
At the time she was arrested, Lewis spoke to police
regarding what she knew about the Fulton murder. After
speaking to police, Lewis left town because she was being
threatened and was scared. To secure her presence at trial,
Lewis was arrested and in custody at the time she gave her
testimony. While in custody, she spoke to a defense investigator,
whom she told she had lied to police or she told police what “they
4 On cross-examination, Lewis said her question was
directed to defendant and only defendant put his head down. On
redirect examination, Lewis acknowledged telling police that both
men put their heads down.
5
wanted to hear so that she could get out of [custody].” At trial,
she admitted to saying what police wanted to hear about the
murder—as long as it was true—to get out of custody.
II. Procedural background
In 2009, defendant was convicted by jury of one count of
murder (§ 187, subd. (a); count 1) and one count of attempted
murder (§§ 664/187, subd. (a); count 2). As to count 1, the jury
found true the special circumstance allegations that he
committed the murder during a robbery and burglary (§ 190.2,
subd. (a)(17)). The jury further found a principal personally and
intentionally used and discharged a firearm within the meaning
of section 12022.53, subdivisions (c), (d), and (e)(1), and that the
offense was committed for the benefit of a criminal street gang as
provided for in section 186.22, subdivision (b)(1)(A). As to count
2, the jury found the attempted murder was premeditated,
willful, and deliberate; a principal personally and intentionally
used and discharged a firearm and caused great bodily injury
within the meaning of section 12022.53, subdivisions (b), (c), (d),
(e) and (e)(1); and the attempted murder was committed for the
benefit of a criminal street gang within the meaning of section
186.22, subdivision (b)(1)(A).
After his sentence was modified on direct appeal, defendant
was sentenced to life without the possibility of parole on count 1,
and life with the possibility of parole after seven years on count 2.
This court otherwise affirmed the judgment on direct appeal.
(See People v. Finister (Jan. 20, 2011, B218414) [nonpub. opn.]
(Finister).)
In 2021, defendant filed in pro. per. a petition for writ of
habeas corpus requesting relief under section 1172.6, which was
treated as an 1172.6 petition. The People filed a response and a
6
supplemental response. The court denied the petition at the
prima facie stage. On appeal, we reversed the trial court’s denial
because “the record of conviction does not conclusively refute as a
matter of law the allegation that defendant could not now be
convicted of murder” and remanded to the trial court to hold an
evidentiary hearing pursuant to section 1172.6, subdivision (d).
(People v. Finister (July 26, 2023, B325841) [nonpub. opn.].)
On February 23, 2024, the People filed in the trial court an
evidentiary hearing brief. On July 17, 2024, defense counsel filed
an “order to show cause brief” on behalf of defendant. (Boldface
omitted.)
On December 13, 2024, the trial court held a hearing on the
petition, noting it had considered the parties’ filings. During the
hearing, the prosecutor newly assigned to the case noted his
disagreement with the previous prosecutor’s argument regarding
evidence of defendant’s role as the actual killer. Specifically, he
said, the “argument that was made that [defendant] was the
actual shooter … is pretty scant…. It seems to me that [Harris]
was more likely the actual shooter.” The court expressed
disagreement but ultimately the People opined, “we should
consider the major participant theory just in an abundance of
caution,” and also noted the importance of assessing defendant’s
youthfulness. In order to allow the parties to fully brief the
issues related to the People’s new position, the court continued
the hearing.
On February 7, 2025, the People filed supplemental
briefing addressing defendant’s youthfulness. On April 2, 2025,
defense counsel filed a second supplemental brief in support of
the petition. In it, counsel argued defendant was not the actual
killer, was not a direct aider and abettor, and was not a major
7
participant who acted with reckless indifference to human life
under the standards set forth in Banks5 and Clark6. Counsel also
discussed defendant’s factors of youthfulness relevant to the
court’s analysis. On April 10, 2025, defense counsel filed a
“supplement to [defendant’s] second supplemental” brief, which
included a social history report prepared by Dr. Johnny H. Wen.
On May 16, 2025, the court ruled on defendant’s petition.
The court noted it “reviewed the relevant trial transcripts,” jury
instructions, as well as the parties’ arguments from prior
hearings. The court found the People met their burden of proving
the defendant guilty of first degree murder as both the actual
killer and/or a major participant who acted with reckless
indifference to human life. When conducting its analysis
regarding the latter, the court considered defendant’s “relative
impulsivity” and “whether or not he was vulnerable to peer
pressure.” The court denied the petition.
Defendant timely appealed.
DISCUSSION
I. Applicable law and standard of review
A defendant is eligible for resentencing under section
1172.6 if he or she could not have been convicted of murder under
the definition of murder as amended by Senate Bill No. 1437
(2017–2018 Reg. Sess.). (See People v. Lewis (2021) 11 Cal.5th
952, 957.) Prior to 2019, at the time of defendant’s trial, when an
accomplice killed another during an inherently dangerous felony
such as robbery, an aider and abettor of the robbery could be
5 People v. Banks (2015) 61 Cal.4th 788 (Banks).
6 People v. Clark (2016) 63 Cal.4th 522 (Clark).
8
convicted of murder without a showing of intent to kill or implied
malice. (People v. Strong (2022) 13 Cal.5th 698, 704, 707.)
Senate Bill No. 1437 amended section 189, subdivision (e) to limit
felony-murder liability to actual killers, aiders and abettors with
the intent to kill, or major participants in the underlying felony
who acted with reckless indifference to human life as described in
section 190.2, the statute defining the felony-murder special
circumstance. (Strong, at pp. 707–708.) When the Legislature
amended section 189, subdivision (e)(3), it “imported the actus
reus and mens rea requirements from the special circumstance
statute. ‘It is undisputed that when Senate Bill [No.] 1437
amended Penal Code section 189 to incorporate major
participation and reckless indifference requirements, it codified
the understanding of those requirements elucidated in Banks and
Clark.’” (People v. Emanuel (2025) 17 Cal.5th 867, 883
(Emanuel).) Accordingly, the Supreme Court has instructed that
we are to be “guided in this case by [the court’s] pronouncements
in Banks and Clark, and [its] application of their requirements in
[In re] Scoggins [(2020) 9 Cal.5th 667, 677].” (Ibid.)
A. Standard of review
Once a defendant has made a prima facie showing of
eligibility for relief, an evidentiary hearing is to be conducted
pursuant to section 1172.6, subdivision (d). “[T]he burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, … that the petitioner is ineligible for resentencing.”
(§ 1172.6, subd. (d)(3); see id., subd. (c).) The trial court sits as an
independent fact finder (People v. Vargas (2022) 84 Cal.App.5th
943, 951) and must “‘review all the relevant evidence, evaluate
and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard ….’” (People
9
v. Oliver (2023) 90 Cal.App.5th 466, 480.) On appeal from the
denial of a petition after hearing, our task is to determine
whether any rational trier of fact could have made the same
determination beyond a reasonable doubt. (Vargas, supra, at
p. 951.) We defer to the trial court’s resolution of evidentiary
conflicts and credibility determinations. (People v. Clements
(2022) 75 Cal.App.5th 276, 298.)
We apply the substantial evidence standard of review. (See
People v. Sifuentes (2022) 83 Cal.App.5th 217, 233–234.) Under
the usual substantial evidence standard, “we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the [trier of fact] might have
drawn from the circumstantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 396.) “The standard is deferential, but the
evidence in support of the judgment must be reasonable, credible,
and of solid value; ‘a mere possibility’ or ‘[s]peculation is not
substantial evidence’ [citation].” (People v. Brooks (2017) 3
Cal.5th 1, 120.) “[B]ecause ‘we must begin with the presumption
that the evidence … was sufficient,’ it is defendant, as the
appellant, who ‘bears the burden of convincing us otherwise.’”
(People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal
on a substantial evidence ground “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conclusion of the trier of
fact].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
10
II. Substantial evidence supports the trial court’s
finding defendant was the actual killer
Defendant contends the evidence does not establish he was
the actual killer and avers the “court erred because the physical
evidence and the testimony of Steve Harvey did not support
Ms. Lewis’[s] claims about statements she purportedly
overheard.” Defendant asserts Lewis’s statement is unreliable
because (1) she did not witness the events; (2) she had motive to
lie for Harris, her friend’s boyfriend; (3) she was convicted of
receiving stolen property from the Gonzalez burglary; (4) she
“admitted that the police intimidated her,” and she “changed her
story … to [help] herself”; and (5) she fled to avoid testifying.
A. Court’s relevant findings
The court found the People “met their burden of proving
that the defendant … is guilty” as the actual shooter. The court
acknowledged that, based on Harvey’s testimony, a “reasonable”
argument could be made that Harris was the shooter; however,
the court found when looking at Harvey’s entire testimony,
alongside the other evidence—including Lewis’s testimony, which
the court credited—it established defendant was the actual
shooter.
B. Analysis
Substantial evidence supports the court’s finding defendant
was the actual killer. Initially, we point to this court’s opinion on
direct appeal:
“We conclude that the jury could infer from the evidence
that Finister was the shooter. At trial, Lewis confirmed that she
told detectives that Finister shot Fulton. She testified that she
confronted Finister and asked him why he had to shoot the
victim. … At one point, Lewis testified: ‘I said that as far as
11
either one of them just coming out saying, “Yeah, I killed them”
… I never heard that come out they mouth.’ Lewis’s testimony
that both defendants hung their heads came immediately after
she testified that she asked Finister ‘Why did you tell anybody?’
He responded, ‘Well, what am I going to do?’ Moreover, in closing
argument, the prosecutor argued that Finister shot Fulton in the
head and Harvey in the leg.” (People v. Finister, supra,
B218414.)
During the preliminary hearing, admitted as part of the
record of conviction, Harvey said he saw defendant’s gun “go off,”
and that “at least one of the shots came from [defendant].” On
cross-examination, Harvey testified he was crouching, looking at
the gun, and saying “don’t shoot,” when the shooter fired his
weapon. When asked, Harvey acknowledged he did not
remember seeing a flash from defendant’s gun and, as a result,
“it could have been” the person behind him that fired his weapon.
The physical evidence further supports the trial court’s
finding. Ballistic testing established all three .45-caliber casings
recovered from the scene were fired from the same weapon. One
casing was found near the couch, close to where defendant was
standing at the time the shots were fired. Because all three
shots, including the fatal shot to Fulton and the shot that struck
Harvey, were fired from the same gun, the trial court could
reasonably infer that whoever fired from that position, fired all
three shots.
Defendant contends Lewis’s testimony was unreliable. We
disagree. First, while true she did not witness the shooting, she
testified regarding events she did witness—the conversation
between defendant and Harris about the “house lick” and
shooting.
12
Second, to the extent Lewis expressed any reluctance to
discuss the murder with police, she testified she had been
threatened and was scared. There is no evidence to suggest she
was motivated to falsely name defendant to protect Harris, her
friend’s boyfriend. Instead, she testified she knew both defendant
and Harris for the same period of time and they both stayed at
the apartment she shared with her friend. Third, we find no
merit to the contention that Lewis’s testimony was unreliable
because she was convicted of receiving the stolen property from
the Gonzalez burglary. Defendant offers no explanation why this
should make her unreliable.
Fourth, Lewis did not “admit[] that the police intimidated
her and that she changed her story multiple times to try to get
herself out of custody.” According to the defense investigator,
who took “rough notes” during the interview, Lewis said “she was
not truthful” to police and “she wanted to tell the police anything
that they wanted to hear so she could get out of there.” She did
not mention being intimidated by police, only that she got the
idea to tell them what they wanted to hear when Lewis
“overheard” them say, “We’ll play ball if she wants to play ball.”
At trial, she testified she told police what they wanted to hear—
the truth—regarding the shooting, as opposed to refusing to
answer their questions. Fifth, and finally, Lewis’s fleeing to
avoid testifying speaks more to her fear of testifying about what
she knew rather than her unreliability in pointing the finger at
defendant as the shooter.
Defendant contends the court erred in crediting Lewis’s
testimony because it indicated one of the men offered resistance
during the robbery. Defendant points to Harvey’s testimony that
he and Fulton, “followed all orders” and did not have weapons or
13
disobey the men. However, Harvey testified he hesitated, was “a
little fidgety” and put his hands in front of his face. When the
men “started talking crazy to [Harvey],” Fulton had to reassure
them that Harvey was “just scared.” The question here is not
whether Harvey or Fulton in fact offered resistance; it is whether
defendant believed one or both of them were resisting and said so
to Lewis afterward. A reasonable inference from Lewis’s
testimony is that defendant did, in fact, believe one of the men
was resisting and decided to shoot them. Substantial evidence
supports the trial court’s finding defendant was the actual killer.
III. Substantial evidence supports the trial court’s
finding defendant was a major participant who acted
with reckless indifference to human life7
Defendant contends the trial court erred in finding he
“‘acted with reckless indifference to human life’ based on his
participation in the armed robberies” and, instead, he was
involved in nothing more than a “ ‘garden variety’ robbery.”
Defendant alleges the trial court’s findings were based on
“speculation” rather than substantial evidence. We disagree and
find substantial evidence supports the trial court’s findings that
defendant was a major participant who acted with reckless
indifference to human life under the standards articulated in
Banks and Clark.
A. The trial court’s findings
In making its rulings, the court discussed its duty to
consider whether defendant was a major participant who acted
7 Because defendant agrees he was a major participant in the
underlying felonies, we only address the trial court’s finding that
defendant acted with reckless indifference to human life
pursuant to section 189, subdivision (e)(3).
14
with reckless indifference to human life using the factors
provided by Banks and Clark. The court also acknowledged its
duty to consider defendant’s youthfulness at the time of the
offense.8
Pursuant to Banks, the court found the following. First,
while the exact roles in planning are unknown, the court found
this was “not a crime of opportunity.” Instead, this offense
occurred “in the back house, away from the front street”
suggesting defendant and Harris may have known the house had
property or money that they needed. The court also noted the
specific goal of $1,000. Second, both men were armed with guns
apparently obtained from the Gonzalez burglary the preceding
day. Third, defendant was aware of the dangers of this offense
given his lengthy juvenile record and the testimony presented
through law enforcement that “if you’re getting ready to commit a
serious crime, it makes sense that you would bring or have with
you someone who would be dependable and reliable.” As such,
defendant and Harris “committed this crime knowing that they
can count on each other and you only do that if you actually know
each other.” Fourth, the court found defendant was present at
the scene throughout; and, fifth, defendant failed to render aid,
fled the scene with Harris, and both men used the proceeds of the
robbery in the days that followed.
Turning to the Clark factors, the court found the following.
First, both men were armed with guns, one of the guns was fired,
and at least one of the weapons was obtained from the Gonzalez
burglary. Next, defendant was present, failed to intervene, or
8 Defendant does not assert the court failed to properly
address his youthfulness.
15
render aid. Instead, during the entire offense, “both victims were
subjected to being terrorized and repeatedly being threatened
with guns to their head, compelling them to give them more
money.” Finally, the court reiterated its finding that defendant
had “knowledge of [the] likelihood that [Harris] could kill”
because “you won’t bring someone who you know you can’t count
on to a crime as serious as this.”
B. Banks and Clark factors
The reckless indifference requirement was first articulated
in Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v.
Florida (1982) 458 U.S. 782 (Enmund) in relation to the
imposition of the death penalty. In Banks and Clark, the
California Supreme Court “endeavored to elucidate the contours
of the major participant and reckless indifference standards.”
(Emanuel, supra, 17 Cal.5th at p. 882.) The court clarified the
definitions of major participant and reckless indifference to
human life and suggested relevant considerations for the trier of
fact in making that determination. The court made clear, “[n]o
one of these considerations is necessary, nor is any one of them
necessarily sufficient” (Banks, supra, 61 Cal.4th at p. 803); what
matters is the totality of the circumstances (In re Scoggins,
supra, 9 Cal.5th at p. 677 (Scoggins)).
The factors used to determine whether a defendant was a
major participant include the following: (1) the role played by the
defendant in planning the underlying crime; (2) the role the
defendant had in supplying or using a lethal weapon; (3) the
awareness of the defendant of the particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants; (4) the defendant’s presence at
the scene of the killing; and (5) the defendant’s action after lethal
16
force was used. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra,
61 Cal.4th at p. 803; see Scoggins, supra, 9 Cal.5th at p. 677.)
With regard to reckless indifference to human life, Banks
explained it as that situation where a defendant is engaging in a
felony known to carry a grave risk of death while “‘“subjectively
aware that his or her participation in the felony involved a grave
risk of death.”’” (Banks, supra, 61 Cal.4th at pp. 801, 807.) Thus,
“felony murderers …, who simply had awareness their
confederates were armed and armed robberies carried a risk of
death, lack the requisite reckless indifference to human life” (id.
at p. 809) because “only knowingly creating a ‘grave risk of death’
satisfies the constitutional minimum” (id. at p. 808) articulated
by the United States Supreme Court in Tison, supra, 481 U.S. at
page 158 and Enmund, supra, 458 U.S. at page 798.
In Scoggins, our Supreme Court reiterated “‘[t]he
defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,’ and he or
she must consciously disregard ‘the significant risk of death his
or her actions create.’” (Scoggins, supra, 9 Cal.5th at p. 677.) To
guide our determination, the court gleaned factors from Banks
and Clark regarding whether the defendant was subjectively
aware that her participation involved a grave risk of death. As
relevant here, factors to consider in determining whether the
defendant was subjectively aware that his participation in the
underlying felony involved a grave risk of death are (1) the
defendant’s awareness that a gun would be used during the
robbery; (2) the number of weapons ultimately used; (3) the
defendant’s physical presence at the crime; (4) the opportunity, if
any, to restrain the crime or aid the victim; (5) the duration of the
interaction between the perpetrators and the victims; (6) the
17
defendant’s knowledge of his confederate’s propensity for
violence; and (7) any efforts the defendant made to minimize the
risks of violence during the robbery. (Scoggins, supra, 9 Cal.5th
at p. 677, citing Clark, supra, 63 Cal.4th at pp. 618–623.)
The major participant and reckless indifference factors
significantly overlap. (Clark, supra, 63 Cal.4th at p. 615.) Thus,
although defendant has conceded that substantial evidence
supports the trial court’s finding he was a major participant in
the robbery, we consider all relevant factors from both categories
to determine whether substantial evidence supports the court’s
finding that he acted with reckless indifference to human life.
C. Analysis
As an initial matter, relying exclusively on Banks,
defendant concludes the robbery in this case was nothing more
than a “‘garden-variety’ armed robbery” and as such he cannot be
found to have acted with reckless indifference to human life.
However, in Clark, our Supreme Court explained that “[a]
robbery in which the only factor supporting reckless indifference
to human life is the fact of the use of a gun is what we meant by
‘a garden-variety armed robbery’ in Banks ….” (Clark, supra, 63
Cal.4th at p. 617, fn. 74.) For example, in In re Taylor (2019) 34
Cal.App.5th 543, 558 (Taylor), the target of a planned late-night
crime was a closed liquor store with just one employee present.
There, the court found the evidence was insufficient to show the
defendant knew his accomplice was armed or might become
violent. Furthermore, the defendant was the getaway driver who
never left his car, could not see the shooting, did not supply the
gun, and left the scene only when he saw help was coming. (Id.
at pp. 557–560.) Thus, the evidence established Taylor thought
18
he was assisting nothing more than an “unarmed snatch-and-
grab.” (Id. at p. 556.)
The robbery here is distinguishable from the “garden
variety” robbery in Taylor. The evidence at trial established
defendant took part in supplying the weapon(s) used; he was
armed and used his weapon during the offense; he was present
throughout the entire endeavor, threatened to shoot the men, and
held a gun to the back of their heads; he made no effort to
intervene; and he fled the scene immediately after the shooting,
failing to render aid or call for help. Thus, we reject defendant’s
contention.
We now turn to the question of whether defendant acted
with reckless indifference to human life. We find, considering the
totality of the evidence viewed in the light most favorable to the
prosecution, substantial evidence supports the trial court’s
finding that defendant was a major participant who acted with a
reckless disregard for human life. To the extent defendant
contends Lewis’s testimony conflicts with other witness accounts,
we defer to the trial court’s resolution of credibility issues.
(People v. Clements, supra, 75 Cal.App.5th at p. 298.) The trial
court was entitled to credit Lewis’s testimony.
1. Defendant’s awareness weapons would be used
and how many weapons were ultimately used
Defendant contends being armed does not prove a higher
degree of culpability than participation in a “‘garden variety’
robbery” and argues only Harris fired his weapon. He also
contends “being armed is not sufficient to prove willingness to
kill.” Assuming, for purposes of this discussion defendant did not
fire his weapon, we disagree.
19
Defendant was not only armed, but he also used his firearm
throughout the offense. (See People v. Carrasco (2006) 137
Cal.App.4th 1050, 1059 [“Personal use of a firearm may be found
where the defendant intentionally displayed a firearm in a
menacing manner in order to facilitate the commission of an
underlying crime.”].) From the moment the men burst through
Harvey’s front door until they fled, they used their weapons to
threaten the victims and obtain their compliance. Throughout
the encounter, they each pressed their weapons to the back of
Fulton’s and Harvey’s heads while threatening to “blow [their]
fuck’in heads off.” Defendant’s use of his firearm demonstrates
his willingness to engage in lethal violence, just as he promised to
do “on the hood.” This factor does not weigh in defendant’s favor.
2. Defendant’s presence at the scene and
opportunity to restrain the violence or render
aid
A “‘defendant’s presence allows him to observe his cohorts
so that it is fair to conclude that he shared in their actions and
mental state…. [Moreover,] the defendant’s presence gives him
an opportunity to act as a restraining influence on murderous
cohorts. If the defendant fails to act as a restraining influence,
then the defendant is arguably more at fault for the resulting
murders.’” (Clark, supra, 63 Cal.4th at p. 619.)
Here, unlike those in Clark and Banks, defendant was
physically present and an active participant throughout the
burglary, robbery, and shooting. As the men discussed what to
do, defendant could have encouraged Harris to leave and/or
demonstrate his own unwillingness to participate further by
leaving. (See Emanuel, supra, 17 Cal.5th at p. 891 [the
defendant “attempted to act as a restraining influence” when he
20
said “‘let’s go’” and began to walk away before the shooting,
demonstrating an unwillingness to engage in further violence].)
He did not. Thus, “‘[f]ar from merely sitting in a car away from
the actual scene of the murders acting as the getaway driver to a
robbery, [defendant] was actively involved in every element of the
[burglary-robbery] and was physically present during the entire
sequence of criminal activity culminating in the murder of
[Fulton] and the subsequent flight.’” (Banks, supra, 61 Cal.4th at
p. 802, citing Tison, supra, 481 U.S. at p. 158.)
Defendant contends the court erred in finding he did not
render aid and instead, defendant posits, he “argued against
harming [the men].” Not so. The record contains no evidence
that either man “argued against harming [the victims].” Instead,
the record establishes one of the men suggested “just make them
run with us.” We do not interpret kidnapping the victims as an
act of mercy.
3. The duration of the interaction
This offense was not lengthy—one and a half to three
minutes. As such, the length itself did not increase the risk of
danger to human life. However, we again find Emanuel
instructive. There, the defendant and his cohort were planning
to rob a marijuana dealer of his drugs. When the victim refused
to give over the drugs, Emanuel began to walk away and told his
cohort, “let’s go, but he wouldn’t come on,” and instead Emanuel’s
cohort shot the victim. (Emanuel, supra, at pp. 878−879.) In that
case, while the court estimated the overall offense was between
nine to 14 minutes based on the time between final text messages
between the victim and assailants and calls to 911, it seems the
actual interaction between the victim and the shooter was likely
much shorter, giving Emanuel very little time to restrain the
21
violence of his cohort. Here, like Emanuel, defendant could have
encouraged Harris to just leave the victims or walk away. He did
not. Instead, defendant continued to threaten the victims while
pointing his gun at them.
4. Defendant’s knowledge of Harris’s propensity
for violence
Defendant contends “the fact that [he] pointed his gun at
the victims … does not establish that [he] was subjectively aware
… that co-defendant Harris was willing to shoot [the victims].”
Under this factor, defendant’s knowledge of Harris’s likelihood of
killing “may be evident before the felony or may occur during the
felony.” (Clark, supra, 63 Cal.4th at p. 621, italics added.) We
agree there is little direct evidence of defendant’s subjective
awareness of Harris’s “propensity for violence” prior to this
offense. However, even absent prior knowledge, the
circumstances of the offense itself gave defendant ample notice of
Harris’s willingness to kill before the fatal shots were fired.
The day before the murder, defendant and Harris
committed a residential burglary of an unoccupied home, during
which they took three firearms, including the murder weapon
used in this case. The next morning, rather than seeking out
another unoccupied target, the men chose to storm into an
obviously occupied home with guns already drawn.9 Harvey’s
home was within walking distance of the Gonzelez home,
supporting a reasonable inference the men knew the area in
advance and when armed with firearms, consciously chose to
escalate their conduct in a single day.
9 Harvey’s SUV with large chrome rims was in the driveway
and only the screen door was closed so you “could see right in.”
22
The escalation continued, becoming unmistakable during
the offense itself. Once inside, defendant and Harris pressed
their guns to the back of the victims’ heads and repeatedly
threatened to “blow [the victims’] fuck’in heads off” and swore to
do so “on the hood.” By the time the fatal shots were fired,
defendant had witnessed Harris participate in an armed
burglary, enter an occupied residence with his gun drawn, and
personally join in threats to kill two compliant victims. Whatever
defendant’s knowledge was of Harris before that morning,
Harris’s willingness to kill had become apparent well before the
shooting began.
The evidence also demonstrated Harris and Finister had
known each other for at least a few months and were both
members of the Acacia Block Crips, a gang whose “primary
activities” include murder and robbery. Though common gang
membership on its own does not establish a “[defendant’s]
knowledge of his cohorts’ likelihood of killing” (In re Ramirez
(2019) 32 Cal.App.5th 384, 405; see also Banks, supra, at
pp. 810−811), it is properly considered, together with the events
of the offense itself, in evaluating the nature of the men’s
relationship and their mutual awareness of each other’s
propensities toward violence.
Thus, considering the totality of the evidence, this factor
weighs against defendant.
5. Defendant’s effort to minimize the risk of
violence
Substantial evidence supports the conclusion defendant did
nothing to minimize the risk of violence during this offense. As
noted previously, defendant never suggested he and Harris leave
the home, leave the victims, or end the offense. Instead,
23
assuming he was not the shooter, while trying to decide the next
move, he suggested they take the victims with them. Kidnapping
the victims does not restrain an offense or minimize the risk of
violence. (See Clark, supra, 63 Cal.4th at p. 620 [“Where a victim
is held at gunpoint, kidnapped, or otherwise restrained in the
presence of perpetrators for prolonged periods, ‘there is a greater
window of opportunity for violence’ [citation] ….”].)
All the evidence points to the perpetrators’ willingness to
do whatever it took to reach their goal of obtaining $1,000. In the
Gonzalez burglary, they entered the unoccupied home through a
window using a chair. The next day, intensifying their modus
operandi, the men entered an obviously occupied home—an
inherently more dangerous endeavor. (See § 667.5, subd. (c)(21)
[defining burglary of an occupied residence as a violent felony];
see also People v. Singleton (2007) 155 Cal.App.4th 1332.) With
their guns drawn, they then issued demands and told the victims,
“It’s not a game[!]” As Harvey and Fulton attempted to comply,
defendant and Harris continued to express their willingness to
kill the victims. It is also notable the offense was committed
during the day, and the perpetrators did not attempt to hide their
faces or otherwise make themselves unidentifiable to the victims.
Nothing about this offense demonstrated any effort to
minimize the risk of death to the victims.
6. Defendant’s actions after the shooting
Defendant’s postoffense conduct also supports the court’s
ruling. Immediately following the use of deadly force, defendant
and Harris fled—no offer of aid to the victims or calls for help. In
the days following the shooting, defendant continued to associate
with Harris, spent the proceeds of the robbery, and talked about
the offense among friends.
24
When viewing the totality of the circumstances, we find
substantial evidence supports the trial court’s finding, beyond a
reasonable doubt, defendant was the actual killer in the shooting
death of Fulton. Alternatively, substantial evidence supports the
court’s finding he was a major participant in the underlying
offenses who acted with reckless indifference to human life.
Defendant was not a peripheral participant who was surprised by
unexpected violence. He was an integral part of the criminal
enterprise from start to finish. Accordingly, under the standards
articulated in Banks and Clark, as well as Scoggins, defendant is
ineligible for resentencing pursuant to section 1172.6.
DISPOSITION
The order is affirmed.
CHAVEZ, J.
We concur:
LUI, P. J.
GOORVITCH, J.
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