Filed 7/24/26 P. v. Ross CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B338691

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA120316)
v.

KEITH E. ROSS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Christopher W. Dybwad, Judge. Affirmed.
Laura Grace Schaefer, 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, Roberta L. Davis and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 Defendant Keith E. Ross appeals from the denial of his
resentencing petition under Penal Code1 former section 1170.95,
now numbered 1172.6. Defendant contends substantial evidence
does not support the resentencing court’s finding that he was a
major participant in a robbery and acted with reckless
indifference to human life.
We disagree. The evidence showed defendant planned the
robbery and committed it with a confederate armed with a
submachine gun. Early in the robbery, the confederate fired his
weapon towards one of the victims. Although the shot missed the
victim, the confederate’s conduct put defendant on notice of an
increased risk his confederate would use lethal force. Defendant
took no action to mitigate that risk. Instead, he continued with
the robbery, during which the confederate shot and killed one of
the victims. These circumstances, along with other factors, are
substantial evidence in support of the resentencing court’s
finding of guilt beyond a reasonable doubt.
Accordingly, we affirm.

FACTUAL BACKGROUND
Defendant had two trials — his original trial in 1994, then
a retrial on a special circumstance in 1998.

1. Evidence at first trial
On September 14, 1992, defendant entered a Mills Jewelers
shop in Ventura. Defendant informed a store employee he was a
diamond dealer. Defendant asked about the location of Mills
Jewelers’ main office and where the company’s goods were stored.

1 Unspecified statutory citations are to the Penal Code.

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The employee referred defendant to a trade publication that
listed the main office address.
The next day, defendant and codefendant Gregory Norwood
went to Murray Brown’s house. Defendant or Norwood asked
Brown if they could use his car as a getaway car for a “job”
involving a jewelry mall. Brown recalled it was defendant “doing
the explaining” about the job while Norwood “was doing mostly
the listening.” Defendant said he had cased the location. There
was discussion of obtaining a mail carrier uniform to gain entry
into the building. Brown agreed to lend them his car.
Defendant and Norwood left Brown’s house but returned
the next morning, September 16. Defendant had a shotgun and
what Brown thought might be an “Uzi” submachine gun.
Defendant and Norwood loaded the guns, “playing with them,
working them . . . .” Defendant also had a mail carrier uniform,
which Norwood put on.
Later that afternoon, Mills Jewelers owner Sherman
Kulick and his bookkeeper Dolores Medina were working in the
company’s wholesale office in Culver City. Medina heard the
door buzzer and saw a man in a mail carrier uniform on the
security monitor. At trial, she identified that man as Norwood.
Medina pushed a button that opened the door so Norwood could
come inside. When Norwood entered, Medina saw he was
carrying a gun. Norwood said, “ ‘[O]kay, Sherman, give us
everything you have.’ ”
A second man was standing behind Norwood. Medina
identified him at trial as defendant. Defendant began opening
file cabinets.
Kulick said, “If this is a joke, it’s [in] very bad taste.” ”
Kulick moved towards the back of the office, then said, “ ‘[Y]ou

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guys might as well leave now because I pushed the alarm button
and the police will be here shortly.’ ”
Norwood said, “ ‘[T]his is serious,’ ” and fired his gun.
Medina testified she “saw the fire” going in the direction of
Kulick, although he was not hit.
Defendant approached Medina and ordered her to tell him
where the alarm button was. Medina said she did not know.
Defendant then turned towards Kulick and tried to grab the gold
watch on Kulick’s wrist. There was a struggle as Kulick pulled
his hand away. Defendant gave up the attempt to take the watch
and walked into a room in the back of the office. Norwood
continued to point his gun at Kulick and Medina.
Defendant came out of the back room holding a black
handbag Medina testified belonged to Kulick. Defendant walked
towards the office front door. Kulick said, “ ‘[W]hat are you
doing, what are you doing? Leave my premises.’ ”
As Kulick was telling the robbers to leave, Norwood opened
fire. Medina counted two gunshots. Kulick bent over, and
Medina believed he had been hit in the stomach. Medina saw
defendant opening the front door. Defendant and Norwood exited
and ran away.
Medina testified she never saw Norwood and defendant
speak to each other during the robbery. She said the incident
happened “[v]ery fast.”
Kulick was shot three times, twice in the groin and once in
the thigh. The shots to the groin damaged the femoral artery and
vein; the shot to the thigh did not cause major injury. He died in
the hospital three days later. Police recovered three shell casings
from the crime scene.

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 Norwood’s weapon was identified as a semi-automatic
submachine gun that had been modified to fire in full automatic
mode. This means the weapon would continue to fire as long as
the trigger was held down. It had an ammunition capacity of
31 rounds.

2. Retrial
Medina testified at defendant’s retrial. She testified
Kulick, upon seeing the robbers, said, “ ‘You must be joking,’ ”
then, “ ‘You guys might as well leave now because I already
pressed [the] alarm button and the police will be here shortly.’ ”
Norwood said, “ ‘This is serious,’ ” and fired his gun.
Asked in what direction Norwood fired, Medina testified,
“Well, to the front, you know. I cannot tell you exactly but the
bullets were all over.” Asked if Norwood fired in the air, towards
Medina, or towards the ground, Medina said, “No. As far as I can
see, I was facing him with a gun. I don’t know which, you know,
direction the bullets strike.” Asked if Norwood fired more than
one shot, Medina said, “Well, I hear one. Can be more. But if
you are under this situation, how [can you] tell.”
After Norwood fired, Medina urged Kulick to give the
robbers everything they wanted. Defendant grabbed at Kulick’s
watch. Kulick resisted, and there was a struggle. Kulick’s watch
had “a very strong safety lock” so defendant could not get it off
Kulick’s wrist. Defendant turned to Medina and asked her where
the alarm was, then went into a back room of the office.
Kulick followed defendant asking what defendant was
doing. Defendant came out of the back room holding a purse.
Kulick continued to follow defendant, telling him to give the
purse back. Norwood opened fire, hitting Kulick. Kulick walked
a few steps and collapsed. Defendant and Norwood left.

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 PROCEDURAL BACKGROUND
At defendant’s first trial, the jury convicted him of first
degree murder and second degree robbery. The jury found true a
special circumstance allegation that the murder was committed
during the robbery. The jury found that a principal was armed
with a firearm as to both counts.
On direct appeal we reversed the special circumstance
because of instructional error. On retrial the jury again found
the special circumstance true. Defendant was sentenced to life
without parole plus nine years. We affirmed the judgment.
In 2019, defendant filed a petition for resentencing under
former section 1170.95. The resentencing court denied the
petition at the prima facie stage, and we affirmed. The Supreme
Court granted review and directed us to reconsider our decision
in light of new case authority. We issued a new opinion reversing
the denial of defendant’s petition and instructing the
resentencing court to issue an order to show cause and hold an
evidentiary hearing.
The resentencing court conducted the evidentiary hearing,
at which the only evidence submitted was the record from
defendant’s trial, and our prior appellate opinions for purposes of
procedural history only. Following the hearing, the court invited
the parties to lodge the record from the retrial, and defendant
lodged a reporter’s transcript of Medina’s retrial testimony.
The resentencing court issued a written order denying
defendant’s petition. The court determined defendant was guilty
of murder as a major participant in the robbery who acted with
reckless indifference to human life under the factors set forth in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark).

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 The resentencing court found defendant was a major
participant in the robbery because defendant planned the
robbery; defendant supplied the firearm and mail carrier uniform
used by Norwood; defendant knew the robbery would involve a
loaded firearm; defendant was present at the scene of the killing;
and defendant did not attempt to dissuade Norwood from further
violence after Norwood fired the first shot at Kulick. The court
expressly found Norwood’s first shot did not hit Kulick.
The court found defendant acted with reckless indifference
to human life because defendant provided Norwood with a fully
automatic submachine gun, “a highly dangerous firearm”;
defendant had time and opportunity during the robbery to
restrain Norwood from firing additional shots but did not do so;
and Norwood’s first shot put defendant “on notice of the danger
posed by Norwood.”
Defendant timely appealed.

DISCUSSION

A. Applicable Law

1. Senate Bill No. 1437 and section 1172.6
“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) (Stats. 2018, ch. 1015) amended 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.’
[Citation.]” (People v. Lee (2023) 95 Cal.App.5th 1164, 1173
(Lee).) “[U]nder the felony-murder rule as it existed prior to
Senate Bill No. 1437, a defendant who committed a statutorily
enumerated felony such as robbery could be convicted of murder

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for a killing during the felony without further examination of
their mental state.” (People v. Garcia (2022) 82 Cal.App.5th 956,
964–965.) After 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); see Garcia,
at p. 965.)
Senate Bill No. 1437 also added former section 1170.95,
now numbered section 1172.6, “which creates 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, 957.) “If a petitioner makes a prima facie
showing of relief under section 1172.6 — that is, a showing that
the petitioner was convicted of murder, attempted murder, or
manslaughter under a theory no longer valid under the amended
Penal Code — the resentencing court must issue an order to show
cause for an evidentiary hearing.” (Lee, supra, 95 Cal.App.5th at
p. 1174.)
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” Senate Bill No. 1437. (§ 1172.6,
subd. (d)(3).) In determining whether the prosecution has met its

8
burden, “[t]he trial court acts as an independent fact finder.”
(People v. Rodriguez (2024) 103 Cal.App.5th 451, 457
(Rodriguez).)
We review a resentencing court’s denial order following a
section 1172.6 evidentiary hearing for substantial evidence. (See
People v. Vargas (2022) 84 Cal.App.5th 943, 951.) Under that
standard, “we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence — that is, evidence that is reasonable, credible, and of
solid value — from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v.
Grandberry (2025) 116 Cal.App.5th 934, 946.) “We resolve all
evidentiary conflicts and questions of credibility in favor of the
judgment. [Citation.] We cannot reweigh the evidence or
reassess witness credibility on our own.” (Ibid.)

2. Felony murder as a major participant acting
with reckless indifference to human life
To recap, the resentencing court found defendant was
guilty of murder under current law because he was a major
participant in an enumerated felony in which a killing occurred,
and he acted with reckless indifference to human life. (§ 189,
subd. (e)(3).) In Banks and Clark, our Supreme Court
“endeavored to elucidate the contours of the major participant
and reckless indifference standards.” (People v. Emanuel (2025)
17 Cal.5th 867, 882 (Emanuel).) Those standards originated in
section 190.2, subdivision (d), the felony murder special
circumstance, but the Legislature “imported those standards”
into the felony murder statute through Senate Bill No. 1437.
(Emanuel, at p. 881.)
Banks provided factors to consider in determining whether
a defendant was a major participant. (People v. Strong (2022)

9
13 Cal.5th 698, 705–706 (Strong).) Those factors are: “What role
did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) “No 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’ [citations].”
(Ibid.)
In Clark, our high court explained that reckless
indifference “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.” (Clark, supra, 63 Cal.4th at p. 617.) The Clark factors,
as summarized in a later high court decision, are: “use of or
awareness of the presence of a weapon or weapons, physical
presence at the scene and opportunity to restrain confederates or
aid victims, the duration of the crime, knowledge of any threat
the confederates might represent, and efforts taken to minimize
risks.” (Strong, supra, 13 Cal.5th at p. 706, citing Clark, at
pp. 618–623.) “Because the major participant and reckless
indifference elements often ‘ “significantly overlap” ’ [citation],
this list of factors also overlap[s] with those . . . identified in

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connection with the major participation inquiry in Banks.”
(Strong, at p. 706.)
“ ‘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.” (In re
Scoggins (2020) 9 Cal.5th 667, 677.)

B. Substantial Evidence Supports the Major
Participant/Reckless Indifference Finding
Defendant’s trial record contains substantial evidence
supporting the resentencing court’s findings.

1. Major participant
Starting with the Banks major participant factors, there
was substantial evidence defendant was intimately involved in
planning and preparing for the robbery. He posed as a diamond
merchant to obtain information about the target. He cased the
building. Along with Norwood, he procured a getaway car,
firearms, and a mail carrier uniform to gain entry. Brown
testified defendant did most of the explaining with Norwood
listening, which supports an inference defendant was the
ringleader of the operation.
There was substantial evidence defendant had a significant
role in supplying lethal weapons. Brown said it was defendant
who arrived at Brown’s home with the firearms, and he and
Norwood inspected and loaded them together.
It does not appear there was evidence defendant was aware
of any increased dangers based on the nature of the crime or

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Norwood’s past conduct prior to the crime. There was, however,
substantial evidence to support an inference that defendant was
aware of increased danger because of the weapons used; Norwood
was armed with a submachine gun that could hold 31 rounds and
was modified for fully automatic fire, a “highly dangerous
firearm” as the trial court said.
It is undisputed defendant was at the scene of the killing
and in a position to prevent the murder. Substantial evidence
supports a finding his inaction played a role in the death —
Norwood had demonstrated willingness to use lethal force when
he fired an initial shot in Kulick’s direction, as Medina testified,
but defendant took no action to deescalate the situation or
discourage Norwood from further violence.2
Defendant’s conduct after the killing was to run away. In
Emanuel, our high court observed a defendant fleeing may simply
indicate a desire to avoid arrest, without shedding light on the
defendant’s mental state at the time of the killing. (Emanuel,
supra, 17 Cal.5th at pp. 894–895.) We draw no inference from
defendant’s postkilling conduct one way or the other, nor did the
resentencing court.
On balance, given substantial evidence defendant was
heavily involved in planning and preparing for the robbery,
including obtaining a highly dangerous weapon, and defendant
was at the scene of the killing and aware of the danger Norwood
posed after Norwood’s initial shot in Kulick’s direction, the

2 The Attorney General argues the evidence supports an
inference Norwood’s initial shot hit Kulick in the thigh. The
resentencing court expressly found that first bullet did not strike
Kulick. We assume for purposes of this appeal Norwood’s first
shot did not hit anyone.

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resentencing court reasonably could conclude defendant was a
major participant in the robbery.

2. Reckless indifference
Turning to the Clark reckless indifference factors, there is
no evidence defendant himself used a weapon during the robbery,
but as discussed above, there was substantial evidence he was
aware Norwood was armed with a highly dangerous weapon.
Again, defendant was physically present at the scene and aware
Norwood posed a threat because Norwood fired an initial shot in
Kulick’s direction.
Although the duration of the crime is unclear, there was
time enough after Norwood fired his initial shot for defendant to
struggle with Kulick for Kulick’s watch, question Medina about
the alarm, and go into the backroom to find Kulick’s handbag and
walk it out the front door. There is substantial evidence,
therefore, that defendant had time to try to calm Norwood down,
halt the robbery, or take other action to avoid further violence.
Defendant instead did the opposite, increasing the tension by
struggling with Kulick for the watch, and leaving the armed and
dangerous Norwood with Kulick and Medina while defendant
went into the backroom and then out the front door. In sum,
there was substantial evidence defendant was aware of the
danger Norwood posed yet he took no action to minimize that
danger. The resentencing court reasonably could conclude
defendant acted with reckless indifference to human life.

3. Defendant’s counterarguments
Defendant’s briefing begins with his arguments regarding
reckless indifference. Defendant argues the mere fact he knew a
gun would be used in the robbery does not establish reckless

13
indifference to human life, and the evidence did not support the
resentencing court’s conclusion Norwood’s weapon was highly
dangerous. Neither the resentencing court’s findings nor our
holding are based solely on defendant’s awareness of the weapon
— that is just one factor in the analysis. The evidence the
submachine gun could hold 31 rounds and fire repeatedly so long
as the trigger was held down supports the conclusion it was a
highly dangerous weapon. Although defendant argues the nature
of the weapon did not “enhance[ ] the shooter’s ability to murder
the victim in the particular circumstances of this case,” what
matters for our analysis is defendant had reason to know the
high-capacity, rapid-firing weapon elevated the risk of death or
injury, and he proceeded with the crime despite that risk.
Defendant argues the evidence is unclear whether
defendant supplied the submachine gun. This is not a significant
point. Whether or not defendant supplied the weapon, he was
aware of it and he and Norwood loaded and manipulated the
submachine gun and shotgun together prior to the robbery.
Defendant disputes that he had reason to know Norwood
posed a danger and failed to mitigate that danger. He argues
simply participating in an armed robbery does not demonstrate
reckless indifference, and therefore the fact that he continued the
robbery after Norwood fired the initial shot should not weigh
against him. There is a world of difference between participating
in a robbery with no indication that a perpetrator poses an
increased risk and the instant case, in which Norwood’s initial
shot towards Kulick amply demonstrated he posed an increased
risk, yet defendant continued the robbery disregarding that risk.
Defendant notes that once he obtained Kulick’s handbag he
left the office, with no indication he intended to interact further

14
with Kulick. As explained above, it was defendant’s inaction in
the face of Norwood’s initial shot, including leaving Kulick at
Norwood’s mercy while defendant took the handbag and left the
office, that supports a finding of reckless indifference.
Defendant’s culpability is not based on lethal intent, but on
indifference to the lethal threat posed by Norwood as
demonstrated by Norwood’s initial shot towards Kulick.
Defendant argues Norwood firing the initial shot “did not
make it clear that Norwood intended to use lethal force.”
Defendant contrasts the facts of this case with In re Loza (2017)
10 Cal.App.5th 38, in which the defendant stood by while his
confederate “demanded money from the [store] clerk while
counting down from five and threatening to shoot.” (Id. at p. 53.)
If anything, the facts of the instant case are stronger than in
Loza, because Norwood did not merely threaten to shoot but
actually shot in the direction of Kulick.
Characterizing Norwood’s initial shot as a “warning shot,”
defendant argues Norwood did not “ ‘exhibit[ ] behavior tending
to suggest a willingness to use lethal force’ before committing the
fatal act itself.” Again, Medina testified Norwood fired the initial
shot in Kulick’s direction, which belies defendant’s “warning
shot” characterization. Thus, defendant’s analogy to In re
McDowell (2020) 55 Cal.App.5th 999 (McDowell) in which the
defendant’s confederate fired a warning shot into the floor, is
inapt. (See id. at p. 1005.)3

3 McDowell in fact held there was substantial evidence the
defendant acted with reckless indifference based on factors in
addition to the “warning shot.” (McDowell, supra, 55 Cal.App.5th
at p. 1015.)

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 Defendant cites other cases with purportedly stronger
indications of reckless indifference, such as that the defendants
themselves were armed. Notably, however, defendant fails to cite
any case suggesting that a defendant’s indifference to a
confederate firing a weapon, not as a warning shot but towards a
victim, is insufficient to establish recklessness, particularly when
combined with the factors discussed above.
Defendant quotes Medina’s testimony the incident occurred
“ ‘very fast,’ ” and argues the duration of the crime does not
support a finding of reckless indifference. As we have explained,
there was enough time after Norwood’s initial shot for defendant
to struggle with Kulick, talk to Medina about the alarm, search
the backroom, and walk out the front door. The resentencing
court could infer there was enough time, therefore, for defendant
to take steps to prevent or reduce the risk of further violence.
Defendant argues there was no evidence the robbery posed
a heightened risk of violence, given there were only two unarmed
victims in a building not open to the public. Defendant suggests
the choice to use the mail carrier disguise to gain entry, rather
than force, showed efforts to minimize the violence.
We disagree defendant’s conduct demonstrated an attempt
to minimize violence. Our high court has held that committing
crimes out in public, “ ‘when the possible presence of witnesses
might reasonably be thought to keep [the defendant’s]
accomplices within the bounds of the plan[,]’ tended to minimize
the risk of lethal violence.” (Emanuel, supra, 17 Cal.5th at
p. 887.) In light of that case law, defendant’s choice to commit a
robbery in a nonpublic building out of view of witnesses is not a
mark in his favor. The use of subterfuge rather than force to gain
entry tells us little of defendant’s mental state — he may have

16
simply determined force would not work to gain entry, and
subterfuge was his best option.
Further, as discussed, the choice to use a high-capacity
rapid-fire submachine gun elevated, rather than minimized, the
risk above that of a standard armed robbery. More significant
was Norwood’s actual firing of the weapon towards Kulick. To
the extent defendant was unaware of the heightened risk before
the robbery, Norwood’s shooting towards Kulick put defendant on
clear notice of that risk, and his inaction in the face of that risk
supports a finding of reckless indifference.
Defendant also contests the finding that he was a major
participant. He concedes he participated in planning the robbery,
but argues, as he did in contesting reckless indifference, that the
evidence was weak that he supplied the weapons for the crime.
As we have explained, it is a minor point whether defendant
procured the weapons, because the important fact is he was well
aware of them and their destructive potential. Defendant again
argues the submachine gun was not particularly dangerous
compared to other guns, an argument we have already rejected.
Defendant again argues he did not have an opportunity to
prevent the murder, and we have rejected that argument as well.
Defendant argues his postkilling conduct does not indicate
reckless indifference. As we have stated, neither the
resentencing court nor we have drawn any inferences from
defendant’s postkilling conduct.

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 DISPOSITION
The order denying resentencing is affirmed.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

WEINGART, J.

M. KIM, J.

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