Filed 8/25/26 P. v. Bergman CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B343801

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA078839-02)
v.

KEVIN MICHAEL BERGMAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Corey J. Robins, 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, Idan Irvi and Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
 Defendant and appellant Kevin Michael Bergman
(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. Defendant also contends he was
provided with ineffective assistance of counsel during and after
the hearing. We find no merit in either of defendant’s
contentions and affirm the trial court’s order.

BACKGROUND
I. Trial evidence
A. The events leading to the murder
On April 22, 2008, approximately one month before the
murder of the victim, Dean Modica, defendant accompanied
Modica to the home of Cheryl Maxwell.2 344-345.)~ Modica
demanded money from Maxwell for “Harley” parts, and Maxwell
refused. As Modica and Maxwell argued and Modica attempted
to pry a television from the wall, defendant stood nearby with his
hand on what appeared to be the “butt of a gun” in his pocket.
When a child appeared, defendant urged Modica, “let’s get out of
here,” and the two men left.
On May 17 or 18, 2008, a day or two before the murder,
Modica’s next-door neighbor, Deborah Heniger, overheard a

1 Unless otherwise designated, all further statutory
references are to the Penal Code.
2 We will refer to this as the “Maxwell incident.”

2
“heated conversation” between defendant and Modica, during
which it appeared defendant was assessing the value of Modica’s
belongings. Defendant said to Modica, “Look at this. This seems
to be pretty valuable” or “You know what that’s worth?”
Sounding irritated or upset, Modica replied, “Yeah, yeah, that’s
right. So what?”
Also in the days before the murder, defendant asked Jamey
Pender for a ride to Modica’s house “to collect some debt or to get
something from [Modica].” Talking about Modica, defendant
said, “fuck that guy,” “that guy owes me,” “he’s fucking me
around,” and “I’m gonna tax that guy,” which Pender understood
to mean defendant was saying he would commit robbery. Pender
“[g]ot a bad vibe” and refused to give defendant a ride.
B. The day of the murder: “inventory check” and
plan to “tax” Modica
On May 19, 2008, defendant was at the home of Peggy
Poloai. David Pickett and Joseph Chaaya were also there.
Defendant told Pickett he was angry with Modica about an
earlier incident—the Maxwell incident—in which they had been
involved, and that Modica “owed him something,” and Pickett
should “back [defendant] up.” Poloai overheard defendant ask for
Pickett’s “help to go and tax [Modica].” According to Poloai, “tax”
meant to rob. Poloai knew Modica sold drugs.
Defendant, sounding angry, called his girlfriend, Celeste
Cravey, and demanded she come and get him at Poloai’s house.
Chaaya, who was at Poloai’s house to pick up his friend Pickett,
noticed defendant was “nervous” and heard him say, “This piece
of shit, he owed me money. I want to go get my money back.”
Pickett got in the car with Cravey and defendant, and Chaaya
followed them to Modica’s house in his own car.

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 Upon arrival at Modica’s house, Pickett and defendant
went inside and were shown where Modica kept his drugs, which,
“in retrospect,” Pickett recognized was “casing” or “an inventory
check” of Modica’s supply, kept in a room attached to the garage.
The visit was friendly. Modica gave defendant “a pretty good-
sized amount” of marijuana and possibly some pills, and they left
without incident.
Cravey drove defendant back to Poloai’s house. Defendant
asked for Poloai’s help to sell the marijuana. Poloai was
surprised defendant had so much marijuana to sell and said,
“Didn’t you just leave my house broke? You know, all of a
sudden, you’re right back at my house with all this weed that you
want to sell.” Defendant became “hysterical,” and when Poloai
asked if he was alright, defendant indicated he was not and said,
he “has to go get some bike. He kept going on about some bike.”
Poloai encouraged defendant to calm down and he said, “‘I got to
go. I got to go get this bike [or Harley],’ and he left.”
After leaving Poloai’s, Cravey drove defendant to the home
of Trevor Cooper and Sean Schuck. While inside with Cooper and
Schuck, defendant “was upset” and said he wanted to go back to
Modica’s house. Cooper said, “Let’s go over there and talk to him
about the [Maxwell] incident” and whether Modica “gave
[defendant’s] name to the cops.” Cooper agreed the term “taxing”
could mean “robbing.”
Defendant told Cravey he was worried Modica had given
his name to the police and was going to “snitch” about
defendant’s part in the Maxwell incident. At trial, Cravey
testified she did not recall using the term “tax,” but she
understood defendant’s purpose for returning to Modica’s house
was to take “his dope,” and, although she had told police she

4
drove defendant and the others back to Modica’s house to “steal
the motorcycle,” she did not remember making that statement.
C. The attack and escape
Ten to 15 minutes after arriving at Cooper’s house, Cravey
drove defendant, along with Schuck and Cooper, back to Modica’s
house. Upon arrival, they noticed someone out in front of the
house. Defendant said, “We can’t stop here,” and told Cravey to
drive around for a few minutes. As they came back around the
other person was gone and they saw only Modica in front.
Defendant and Schuck greeted Modica and the three men went
inside. Cravey and Cooper stayed in the car. Defendant told
Cooper “to wait a few minutes and then come in” the house.
Several minutes later, Cooper went to the house to see
what was happening. According to Cooper, he heard a
“commotion,” like a struggle. Cooper stepped through the front
doorway and saw defendant and Modica standing up, struggling
with each other with Modica’s back against the wall between the
kitchen and the living room. He saw Schuck “running around.”
From there, Schuck “went over to where [defendant] and
[Modica] were” struggling with each other and jumped or lunged
over defendant’s back side and made a “swinging motion” with
his hand. Cooper could not “say for certain” if he saw a knife in
Schuck’s hand.
After Schuck lunged over defendant, Cooper ran out of the
house, yelling, “Dude stabbed him,” and told Cravey to honk the
horn because he wanted to get out of there. Cravey testified
Cooper was in the house “for a couple minutes” before he came
out screaming.
As a result of the honking, a neighbor came outside.
According to Cravey, she heard a motorcycle start, and when she

5
looked, she saw Schuck open the driveway gate and defendant
emerge on the motorcycle. She saw both men look back toward
the house. Schuck “went back into the backyard, and then came
back out again.” Defendant rode the motorcycle onto the street
and away. Cravey followed. Cooper told her to stop when he saw
Schuck running down the street trying to catch them. Cravey
stopped at the corner and Schuck got in her car.
Cooper testified Schuck ran out the front door and “jumped
in the car,” and after they “heard the motorcycle start up” and
saw defendant “pulling out” of the driveway, they “took off.”3
Cooper told police he saw blood on defendant’s face as he went by
on the motorcycle; Cooper later testified he did not remember
that specifically, but he did recall seeing blood on defendant.
When Cravey reached the freeway, Cooper handed her a pair of
brass knuckles to throw out the car window.
In rebuttal, the People introduced Cooper’s June 30, 2008
recorded interview with Detective Patrick O’Dowd. During the
interview, Cooper said defendant asked Cooper to go with
defendant to Modica’s house because Modica owed defendant
money. Defendant asked Cooper to come along to act as “backup”
given his reputation for being a “pretty good fighter,” “pretty good
with his hands,” and “an all-around tough guy.”4 Cooper told

3 When asked if it was possible Schuck got in the car at some
point after Cravey had already pulled away from the house,
Cooper said, “It’s possible.”
4 Cooper did not remember telling police that defendant
asked Cooper to go with him to collect a debt from Modica or that
Cooper had a reputation for- being a “good person to have as
backup.”

6
police that once he and Schuck were back in Cravey’s car, he saw
defendant ride by on Modica’s motorcycle with blood on his face.
D. The neighbors and discovery of the body
Heniger, Modica’s next-door neighbor, heard what sounded
like “things being moved around violently” in the back of Modica’s
home. As she walked out her front door, she saw defendant ride
away on Modica’s motorcycle. Heniger expressed fear about
appearing in court and was reluctant to identify defendant.
However, during a photographic six-pack lineup, Heniger
identified defendant as “look[ing] like the guy [she] saw backing
[Modica’s] Harley down the driveway” and the guy she saw
“talking to [Modica] earlier that day and possibly the day before.”
After seeing defendant leave on Modica’s motorcycle,
Heniger summoned Carmen Grimes, Modica’s neighbor on the
other side, and they went to Modica’s home. The driveway gate,
front door, and security door—all ordinarily kept locked—were
open, and the dogs were loose. Grimes testified that Heniger
secured the dogs, closed the gate, and went to close the front
door, but ran back screaming that something was wrong with
Modica and there was blood. When Heniger saw Modica, he
raised his hand and then it fell. Grimes called 911.
E. The scene
When police and paramedics arrived, Modica was
unresponsive with “blood all over his face, chest, legs,
everywhere.” Modica’s home suggested a “violent” room-to-room
struggle had taken place. There was blood in the living room, the
kitchen, and into a bedroom. The doorjamb from the kitchen to
the bedroom was bloody and damaged, as though something had
run into it, and a human hair was found in the broken wood.

7
 Blood found on the refrigerator indicated an injury there,
and blood drops covered the kitchen floor. Modica’s body was
found in the living room, just outside the doorway to the kitchen.
Also in the kitchen was “a nylon pistol/gun holster,” and in the
living room there was the “female portion of a snap or a clasp
with a snap-on portion of … some type of nylon material,” which
appeared to be “the other side of [the] holster.”
There was also blood on the floor in the rear of the house,
where a door in the bedroom led to the driveway and a small
room in the garage. There was a significant amount of blood on
the rear door to the garage. Blood was also found “on some
different items out in the garage on the ground,” including
shipping boxes that were scattered on the driveway, and a box
cutter and pair of scissors were found in the garage.
A bloody unspent nine-millimeter bullet was found on the
bedroom floor, but no gun or other ammunition was found. No
money, wallet5 or any evidence of drugs was found on the
property. Police found a letter to Modica from law enforcement
inquiring about the Maxwell incident. Though the keys to the
motorcycle were found near Modica’s body, the motorcycle was
capable of being started without a key.
Examination of Modica’s body showed multiple scratches
on his face, arms, and chest consistent with blunt force injuries
and two stab wounds to the upper back—one piercing the right
shoulder blade and the other the left shoulder blade—which had
pierced the victim’s lungs. There were small superficial cuts and

5 After leaving Modica’s house, Schuck used Modica’s driver’s
license and credit card to purchase gas for Cravey and others.

8
scratches on Modica’s arms and two cuts on his right lower leg
that were classified as defensive wounds.
Based on his injuries, Modica could have survived for as
little as a few minutes and up to an hour.
F. The motorcycle
At defendant’s request, once everyone had left Modica’s
home, Cravey drove herself, Schuck, and Cooper to James
Fletcher’s house. Once at Fletcher’s house, defendant put
Modica’s motorcycle in the garage, got into Cravey’s car, and they
then dropped off Schuck and Cooper.
Cravey and defendant went on to another friend’s house.
While there, defendant was making phone calls, looking for a
buyer for the motorcycle. Cravey noticed defendant had specks of
blood on his hand(s) and face. Defendant seemed to take pride in
the blood and would not wash it off. After being there a few
hours, Cravey drove defendant back to Fletcher’s house to pick up
the motorcycle.
That evening, defendant sold the motorcycle to Tim Doby
for $400. The motorcycle was worth approximately $10,000. The
next day, when Doby learned that Modica had been murdered
and the motorcycle was stolen, he left the motorcycle near a
police station.
When examined, the motorcycle had specks of blood on the
headlight area, front wheel brake covers, motor, and ignition. It
appeared to be “some type of cast-off” or like the motorcycle was
“near the vicinity where blood [was] obviously flowing.”
G. The postoffense actions
After Cravey took defendant to Fletcher’s to pick up the
motorcycle, defendant instructed Cravey to follow him. Initially
she complied for a time but eventually decided she “wanted to get

9
away from him” and stopped following him. Cravey was “scared
to death” and checked into a motel near her home. She called her
ex-husband and roommate, Timothy Adle, to come take her home.
Adle did so, but when they got to Cravey’s home, defendant was
there with another man. Defendant “flipped [Cravey] off” and,
because Adle was afraid of defendant, he dropped Cravey off and
left.
Poloai saw defendant at approximately 9:00 or 10:00 on the
night of the murder. Poloai, who by then knew what had
happened to Modica, shook her head at defendant. Appearing
upset at Poloai, defendant said, “Is it like that?,” to which Poloai
said, “Yeah, it’s like that.”
At some point that evening, defendant, Cravey, Cooper, and
Cooper’s girlfriend went to the motel room Cravey had rented.
Defendant or Cooper suggested Cravey report her car stolen.
Though Cravey agreed, she did not do so.
After staying the night with defendant, Cravey left early
the next morning and stayed away from defendant for about
three weeks. During that time, defendant looked for her and left
angry and threatening voicemails and text messages. In one
voicemail the morning after the murder, defendant said, “You
better watch it. ’Cuz you might just be n-next mother fucker who
comes up missin’.” A day or so after the murder, defendant came
to Cravey’s front door. Not wanting to see defendant, Adle went
out the back door to the alley and encountered Schuck, who held
a knife and said, “[defendant] wants to talk to you.” Adle drove
off instead.
Cravey’s car, which had been left at the motel, had its tires
slashed and was set on fire by Schuck with the help of defendant.

10
When Cravey asked defendant if he cut her tires, he said, “I
didn’t have the knife. I had a gun.”
A recorded phone call between defendant and Cravey,
placed two days before the preliminary hearing, was played for
the jury. The call revealed defendant’s efforts to influence
Cravey’s testimony. After Cravey told defendant she had been
subpoenaed to testify, defendant instructed her to speak to his
defense investigator about “how to answer certain questions” “so
it doesn’t incriminate [him].” Cravey said she would tell the
truth.
H. Pickett’s jail call
While in county jail, Pickett placed a phone call to Jennifer
Rastorfer, which was recorded and played for the jury. Pickett
asked Rastorfer to recall when he, defendant and Chaaya “went
by to do that one thing.” He told Rastorfer that Schuck, the guy
he met after going to Modica’s house, was also in county jail and
Pickett learned Schuck was “fightin’ murder.” Pickett explained
to Rastorfer that Schuck and defendant went back to Modica’s
house “to finish what [defendant] and [Pickett] had started.”
Pickett opined if he “hadn’t jumped in the car with [Chaaya], [he]
woulda been in this deep.”
II. Evidence presented at the section 1172.6 evidentiary
hearing
At the hearing, the parties stipulated defendant was not
the actual killer.
A. Defendant’s hearing testimony
Prior to the murder, defendant had known Modica for 10
years. In exchange for payment, defendant agreed to help
Modica collect a debt from Maxwell’s husband on the condition no
children would be involved. Once at Maxwell’s house, defendant

11
was present as Modica and Maxwell argued and Modica
attempted to take a television off Maxwell’s wall. During the
encounter, a child appeared, and defendant made Modica leave.
Defendant testified the first visit to Modica’s house
happened the day before the murder.6 Defendant said Pickett7
gave him a ride to Modica’s and “did some kind of transaction” for
pills. That visit ended “fine,” with Modica handing defendant “a
pound of some [low quality] weed” that “nobody would want” and
saying, “Here. You want to make a couple bucks?”
Just before the murder on May 19, defendant called Modica
and asked him to come by and talk about the money defendant
believed Modica owed him for the Maxwell incident. Defendant
wanted to ask for the money “because [Modica] kept giving [him]
the runaround,” and defendant wanted to find out “how much
longer” Modica would take to pay him. Defendant asked Cravey
to drive him to Modica’s and asked Cooper to come along.
Defendant did not really know Schuck and did not want Schuck
to go with them to Modica’s, but Cooper “insisted.”
When they arrived at Modica’s house, defendant asked
Cooper to come inside with him because defendant knew Modica
“had firearms,” but Cooper refused. Cooper told defendant to
take Schuck with him, and after indicating he simply would go
alone, Schuck “came walking up.” When Modica asked who
defendant had with him, defendant vouched for Schuck, and they
all went inside the house. Modica and defendant sat on the

6 At trial the testimony was this first visit with Pickett was
the same day as the murder.
7 Defendant was not sure this friend’s name was “David
Pickett.”

12
couch, and defendant asked Modica for the money he was owed.
Defendant noticed Modica became “frustrated” and questioned
why he would owe defendant anything. Then defendant noticed
Modica became “very agitated” and was looking behind
defendant. Defendant turned to see Schuck “walking around”
looking at Modica’s house “seeing what he had.”
Modica got up, but defendant pushed him back down on the
couch. Modica said, “what the fuck?” and “jumped back up.”
Defendant then pushed him “out of [his] face for a second time.”
Just then, Schuck “lunged over [defendant’s] back … making a
stabbing motion,” though defendant “did not see a knife at that
time.” Defendant was not aware that Schuck brought a knife or
from where he got a knife.
Defendant “pushed [him]self in between” Modica and
Schuck, and Modica kicked “his feet up,” knocking Schuck’s knife
to the living room floor. Defendant pulled out his nine-millimeter
gun, pointed it at the back of Schuck’s head, and warned, “Stop,
stop. That’s enough, that’s enough.” Schuck did not stop.
Defendant chambered a bullet, dislodging a live round from the
chamber. Defendant did not know where the bullet landed.
Schuck “backed up,” and defendant “kicked the knife away,”
released the clip from his gun and put the gun and clip in his
pockets. Schuck and Modica kept fighting, and Modica chased
Schuck yelling at him to “get the fuck out.” Schuck “took off
down the hallway and [Modica] went after him.”
Defendant ran to the front door looking for Cooper, but
seeing neither him nor Cravey’s car waiting outside, defendant
ran back through the house toward the yard where the
motorcycle was kept. Knowing the motorcycle would start
without a key, defendant started the engine and backed it out

13
toward Modica’s gate with no helmet. Schuck “reappeared,” and
opened the gate for defendant. Defendant did not see Modica
anywhere. Schuck tried to get on the motorcycle, but defendant
drove off without him. Defendant saw Schuck run back inside
the house and still did not see Cravey’s car. After an unknown
number of minutes, Cravey’s car with Schuck and Cooper inside
“reappeared behind [him].” Defendant left the motorcycle at
Fletcher’s house.
Defendant was afraid of Schuck and knew Schuck was “a
very violent person.” Defendant “[a]bsolutely” did not intend to
rob Modica; defendant only wanted Modica to “voluntarily give”
defendant what he believed he was owed. Defendant insisted he
only took the motorcycle because he panicked, not because he
intended to steal it. Defendant knew Modica to keep “a sawed-off
single shot shotgun … under the couch” and believed he also had
“an AK-47 assault rifle.” Defendant was not afraid of Modica but
he “knew he was armed and he was a violent person.” During the
incident, defendant never noticed Modica was injured and never
saw any blood at the scene. Defendant never saw Cooper come to
the door during the incident. Defendant never told anyone that
he “intended to tax” Modica. Defendant “continued to associate
with Sean S[c]huck for a considerable time after the murder.”
B. Detective McMahon’s testimony
Detective McMahon testified he conducted a recorded
interview with defendant about a month after the offense.
During the interview, defendant told McMahon that he saw
Cooper come inside Modica’s house during the attack. Defendant
said when he saw Modica get stabbed, “[defendant] got sprayed
with blood” on his face and his hands. Defendant said he was
surprised Modica became “a little upset” when defendant asked

14
for money. Defendant never told police that he “protested or
asked [Schuck] not to go” inside Modica’s home with him.
C. Defendant’s June 27, 2008 police interview
At defendant’s request, the transcript of his full police
interview was admitted at the evidentiary hearing. The
interview, which was not discussed at defendant’s trial, revealed
that defendant gave several versions of the events.
In his first account, defendant said that Modica was his
friend and he went to pick up money. Schuck followed him into
the house. Modica became angry when defendant asked him for
money in Modica’s home. When defendant put his hands up to
encourage Modica to “relax,” Schuck jumped over defendant and
“stabbed [Modica] one time that [defendant] saw.” Defendant
blacked out and could not clearly recall what followed. He heard
honking, but when he looked outside, Cravey’s car was gone.
Leaving Schuck behind, defendant left on Modica’s motorcycle,
because he “didn’t want to get stabbed.”
As the interview continued, defendant elaborated. He said
he was just “supposed to run in and out” of Modica’s house, and
he planned to go in alone. Giving further details of the stabbing,
defendant said Modica seemed upset and stood up from the
couch, defendant put his hands up as if to say, “wait a minute”
and that is when Schuck “flew over [defendant’s] shoulder” and
made “one stab, [the] first stab mark” to Modica’s shoulder.
Modica had no opportunity to defend himself, and defendant
could not intervene. Modica cried out, and an “overspray of some
blood … hit [defendant’s] face” and “somehow [he] had some on
[his] hands.” Defendant indicated he could no longer see because
he “blacked out,” however, he was aware that Cooper came to the
front door “real quick” and “tried to stop it,” assuring police

15
Cooper “wouldn’t be helping [Schuck] that’s for sure.” Cooper
turned and ran out. Scared, defendant also ran to the front door,
heard honking, and saw “they were already gone” and “the car
pull[ed] away.” Rather than run away through the front door,
defendant ran back through the house to the rear yard, hopped
on the motorcycle, and managed to start it without the keys. As
he was trying to get the motorcycle down the driveway, he saw
Schuck “peek[] his head out” the back door and “make[] eye
contact with [defendant],” he heard him saying something, but he
could not understand him over the motorcycle engine. Defendant
left on Modica’s motorcycle.
In a third version, defendant told police Modica was
unarmed and the attack by Schuck began after only about two
minutes. Defendant did not try to stop the attack because it was
“too violent” and he “didn’t want to be the one catching the
blade.” Defendant recalled seeing Cooper come to the door and
running over to Schuck “saying [Schuck], stop.” He heard the car
horn, ran to the front door and saw Cravey drive off. He chose to
take the motorcycle instead of running out because he “didn’t
want to attract attention” and feared Schuck would kill him next.
Defendant conceded he had to run past the attack in order to
reach the motorcycle but chose “not to look.” Defendant opened
the gate on his own and rode away. He was scared of Schuck and
remained scared of Schuck after the incident. Before he learned
Modica died, defendant planned on returning the motorcycle.
Defendant made further admissions. Despite previously
denying having been at Modica’s house buying “weed” earlier
that day, defendant admitted Modica had given defendant “weed”
during the prior visit. Defendant described the Maxwell incident
weeks earlier, saying he went with Modica to help him collect

16
money and that Modica tried to take a television. Defendant said
neither he nor Modica had been armed during the Maxwell
incident. Defendant later heard police had contacted Modica
about the Maxwell incident, and when defendant called, Modica
confirmed he had received a letter from law enforcement.
Defendant denied taking Pickett to Modica’s home or selling
Modica’s motorcycle. He admitted that after the murder, he and
Schuck searched for Cravey at her home and at the motel. He
admitted having sent Cravey a text message reading, “Bet you
think I popped your tires,” but denied having damaged her car.
Defendant defined “tax” as taking something from someone
because “they owe somethin’,” but maintained he had never taxed
anyone.
Finally, defendant acknowledged he had “fibbed” during
portions of the interview. He admitted he sold Modica’s
motorcycle for $100 but denied that he went there to steal the
motorcycle.
D. Defendant’s rebuttal testimony
After the interview transcript was received, defendant
again testified. He admitted he lied to police about having a gun.
He routinely carried a gun, including on the day of the murder,
because he regularly used drugs and frequented “drug houses”
where he felt like he needed “protection.” During his police
interview, defendant “tried” to tell the truth but was “highly
under the influence” and did not remember “[a] lot of stuff.”
Defendant reiterated he only pulled out his gun to stop the
fight between Schuck and Modica. He maintained he did not
know Schuck was armed until the knife was knocked onto the
living room floor. He also acknowledged he saw Cooper come to

17
the door during the fight but said Cooper never came into the
house.
III. Procedural background
In 2009, a jury convicted defendant of one count of
first degree murder (§ 187, subd. (a); count 1). The jury found
true the special circumstance allegation that the murder was
committed while defendant was engaged in the commission of
robbery and burglary (§ 190.2, subd. (a)(17)). Defendant was
sentenced to life without the possibility of parole. This court
affirmed the judgment on direct appeal. (See People v. Bergman
(Feb. 23, 2011, B219309) [nonpub. opn.].)
In 2019, defendant filed a petition for resentencing under
former section 1170.95, since renumbered to section 1172.6,
which was summarily denied by the trial court. On appeal, this
court found the trial court erred in summarily denying the
petition based on the pre-Banks8 and pre-Clark9 special
circumstance finding that defendant was a major participant who
acted with reckless indifference to human life. Accordingly, we
remanded the matter to the trial court for an evidentiary
hearing. (People v. Bergman (Oct. 26, 2022, B315257) [nonpub.
opn.].)
In January 2025, the court held evidentiary hearing,
during which defendant and the People admitted additional
evidence. Following argument by the parties, the court took the
matter under submission. In a written ruling the court denied
defendant’s petition.
Defendant timely appealed.

8 People v. Banks (2015) 61 Cal.4th 788 (Banks).
9 People v. Clark (2016) 63 Cal.4th 522 (Clark).

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 DISCUSSION
I. Substantial evidence supports the trial court’s
finding defendant was a major participant who acted
with reckless indifference to human life10
Defendant contends the trial court erred in denying his
petition for resentencing because “insufficient evidence supports
the superior court’s major-participant/reckless indifference
findings.” We find substantial evidence does support the trial
court’s finding 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
The trial court noted in its written ruling that it considered
the petition, “all the exhibits, transcripts, instructions, motions,
oral arguments and testimony[,] including testimony of
[defendant].” The court found “beyond a reasonable doubt that
[defendant] is guilty of first degree murder.” Specifically, the
court found defendant “was a major participant in both felony
burglary and felony robbery and acted with reckless indifference
to human life.”

10 We address only the trial court’s finding that defendant
was a major participant who acted with reckless indifference to
human life. In its ruling, the court also found defendant “was an
active participant who demonstrated an intent to kill.” To the
extent defendant also argues the court used the wrong standard,
“active participant who demonstrated an intent to kill,” or he
could not be found liable as an aider and abettor, we do not
address this claim as we find the record amply supports the
court’s finding defendant acted as a major participant who acted
with reckless indifference to human life.

19
 The court found defendant’s hearing testimony
“minimize[ed] his culpability to be self-serving and not credible.”
The court pointed to various facts in support of its ruling:11 (1)
defendant was armed and went with Schuck, the killer, to rob
Modica in his home; (2) defendant drew his firearm and
discharged a live round “from the chamber as [Schuck] swung a
knife and stabbed the victim”; (3) defendant pushed Modica to the
ground before Schuck stabbed the victim; and (4) defendant
ended up “covered with the victim’s blood.”
B. Eligibility for resentencing
A defendant is eligible for resentencing under section
1172.6 if he 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
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 added 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
added section 189, subdivision (e)(3), it “imported the actus reus
and mens rea requirements from the special circumstance

11 Defendant takes issue with many of these findings. We
address this claim in part II, post.

20
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 Supreme Court’s]
pronouncements in Banks and Clark, and [its] application of their
requirements in [In re] Scoggins [(2020) 9 Cal.5th 667, 677].”
(Ibid.)
C. 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 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. (People v. Vargas,
supra, at p. 951.) We defer to the trial court’s resolution of
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

21
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.)
D. 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

22
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 the 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
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

23
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.)
The court gleaned factors from Banks and Clark to guide our
determination of whether the defendant was subjectively aware
that his 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 offense; (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 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 offense. (Scoggins, supra, 9 Cal.5th at p. 677, citing
Clark, supra, 63 Cal.4th at pp. 618–623.)
E. Major participant
In considering the totality of the evidence viewed in the
light most favorable to the prosecution, we find substantial
evidence supports the trial court’s finding that defendant was a
major participant. To the extent defendant’s hearing testimony
conflicts with other witness accounts and defendant’s own
admissions to police, we defer to the court’s resolution of
credibility issues. (People v. Clements, supra, 75 Cal.App.5th at
p. 298.)
Preliminarily, while we have separated the two elements
for purposes of clarity, “we consider the interrelationship between
the two elements, being a major participant, and having reckless

24
indifference to human life. Tison stated: ‘These requirements
significantly overlap both in this case and in general, for the
greater the defendant’s participation in the felony murder, the
more likely that he acted with reckless indifference to human
life.’” (Clark, supra, 63 Cal.4th at pp. 614–615.)
1. Defendant’s role in planning
First, we accept defendant’s admission that he “set in
motion the chain of events that led to the fatal stabbing” as well
as his concession that he “organized the second trip to Modica’s
home and that he brought Cooper and S[c]huck with him to take
Modica’s motorcycle … or to ‘tax’” him. We add, defendant
expressed anger with Modica regarding the Maxwell incident
and, what he viewed as, Modica’s “snitch[ing]” and his belief
Modica owed him. Before defendant recruited Cooper and Schuck
to go to Modica’s house, he asked Pender to give him a ride to
“tax” Modica, but Pender got a “bad vibe.” Defendant
orchestrated the earlier “inventory check” of Modica’s home with
Pickett, and defendant became “hysterical” afterward, telling
Poloai he had to go “get this bike” or “Harley.”
Upon arrival at Modica’s home for the second visit,
defendant directed Cravey to circle the block because another
individual was present, apparently wanting to ensure Modica
would be alone. He told Cooper to wait in the car and come into
the house after a few minutes. When the offense was complete,
he instructed Cravey to go to Fletcher’s house where he would
hide the motorcycle until he found a buyer. Later, Pickett
confirmed defendant had a larger plan in mind when he told
Rastorfer that defendant and Schuck went back “to finish what
[defendant] and [Pickett] had started.” Thus, the evidence

25
substantially supports a finding defendant orchestrated the
offense from planning to completion.
2. Defendant’s role in supplying or using a lethal
weapon
Second, while there is no evidence he supplied the knife
used to kill Modica, defendant was armed, and the evidence
supports finding he used his loaded firearm during the attack.
Defendant testified he only used the gun to urge Schuck to stop
his attack, and the unspent bullet flew out of the chamber in the
living room when he did so. This claim is belied by the record.
The bullet was not found in the living room; it was found on the
floor in the corner of a bedroom—a place he claims he did not
go—and the bullet was found with blood on it. Moreover, “a
nylon pistol/gun holster” was found in the kitchen and the
“female portion of a snap or a clasp” was found in the living room;
suggesting a struggle over the firearm took place. This factor
does not weigh in defendant’s favor. (See In re McDowell (2020)
55 Cal.App.5th 999, 1011 [defendant was a major participant
where, despite not supplying the murder weapon, he “was himself
armed with, and brandished, a deadly or dangerous weapon”].)
3. Defendant’s awareness of the particular dangers
posed
Third, the evidence supports a finding defendant was
aware of the particular dangers posed by this robbery. Defendant
planned to rob a known drug dealer in his own home—an
inherently dangerous enterprise. Thus, “[t]he potential for it to
turn violent was obvious.” (In re McDowell, supra, 55
Cal.App.5th at p. 1011.) Defendant knew Modica was violent,
kept “a sawed-off single shot shotgun” under the couch, and may
have “an AK-47 assault rifle.” Defendant waited until Modica

26
was alone and took a loaded firearm, along with Schuck and
Cooper, to confront Modica. These actions demonstrate
defendant was prepared to ambush Modica with whatever force
was needed to accomplish his objective. (Ibid. [the defendant’s
decision to arm himself … should be viewed in combination with
the particularly risky crime that he planned and led—a home
invasion robbery of a [drug] dealer”].)
Furthermore, Modica knew defendant and Cooper. If
robbed and left alive, Modica would easily identify his attackers.
This created a powerful motive to eliminate the victim as a
witness. As the court in People v. Grandberry (2025) 116
Cal.App.5th 934, 950–951, observed, the fact that a victim
“mentioned an acquaintance they had in common” with
defendant created heightened risk and motive to eliminate
witnesses. Here, the connection was even more direct than a
common acquaintance; defendant and Modica knew each other
personally. This factor does not weigh in defendant’s favor.
4. Defendant’s presence at the scene
Fourth, defendant’s presence at the scene also does not
weigh in his favor. Unlike the defendant in Banks, who was not
at the scene of the robbery when the murder took place and
apparently knew nothing of what had happened until his cohort
returned to the car (Banks, supra, 61 Cal.4th at p. 805),
defendant was present throughout this entire criminal
enterprise. (See also Scoggins, supra, 9 Cal.5th at p. 678
[“Scoggins was not physically present at the crime scene”]; Clark,
supra, 63 Cal.4th at p. 619 [Clark was waiting in the parking lot
when victim was killed].) We discuss this factor further, post,
with regard to whether defendant acted with reckless
indifference.

27
 5. Defendant’s actions after lethal force was used
Fifth, defendant’s actions after the attack do not aid his
position. As discussed more fully post, after lethal force was used
on Modica, defendant stole the motorcycle as planned. He hid the
motorcycle until a buyer was found, and defendant would not
wash the victim’s blood from his face or hands, appearing proud
of its presence. Finally, defendant remained in close contact with
Schuck “for a considerable time after the murder” and continued
to commit crimes with him in the days following the murder.
This ongoing association with Schuck undercuts defendant’s
claim that Schuck’s violence was unexpected and frightening to
him.
F. Reckless indifference to human life
1. Defendant’s awareness weapons would be used
and the number of weapons ultimately used
As noted, there is no direct evidence defendant knew
Schuck had a knife or he knew Modica would be stabbed.
However, substantial evidence supports finding (1) defendant
waited until Modica was alone to begin the encounter; (2)
defendant expected Modica may be armed with a sawed-off
shotgun or an AK-47 assault rifle; (3) defendant was armed with
a loaded firearm; (4) defendant used the firearm to aid the attack
and a reasonable inference supports finding a struggle took place
over the weapon resulting in the torn firearm holster; and (5)
defendant brought two violent men to aid him during the robbery
of the known drug dealer.
Moreover, the evidence established at least part of the
attack took place in the driveway/garage area where a
“commotion” was heard and police found blood along with two
potential murder weapons (a pair of scissors and a box cutter).

28
This, along with blood found on defendant, on the live bullet
found in the bedroom, and on the motorcycle, lends itself to an
inference that defendant was not only armed with the firearm,
but also was present when blood was being spilled. Finally,
defendant’s flippant text message to Cravey about her slashed
tires stating, “I didn’t have the knife. I had a gun,” appears, at a
minimum, to reflect defendant’s acknowledgement of the distinct
weapons each man carried during the offense—Schuck the knife
and defendant the gun—suggesting familiarity with Schuck’s
weapon of choice rather than surprise. This factor does not favor
defendant.
2. Defendant’s presence at the scene and
opportunity to restrain the violence or aid
Modica
Defendant contends his “ability to facilitate or prevent”
(capitalization & boldface omitted) the murder weighs in his
favor or is “at most” neutral. We disagree. 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.)
Defendant points to Clark, supra, 63 Cal.4th at page 612
and compares his role to the “mastermind who planned and
organized the attempted robbery and who was orchestrating the
events at the scene of the crime” but was found to not have acted
with reckless indifference. Defendant’s reliance on Clark is
misplaced.

29
 In Clark, the defendant orchestrated a burglary of a
computer store at closing time and was not in the store at the
time of the shooting. Instead, Clark “was waiting across the
parking lot for [his cohort] to secure the store” so Clark could
begin “the second phase of the robbery….” (Clark, supra, 63
Cal.4th at pp. 619, 613.) While Clark waited, his cohort was
surprised by the unexpected arrival of the victim and shot and
killed her. (Id. at p. 613.) The court found Clark’s absence from
the scene of the computer store left him with no “opportunity to
observe [his cohort’s] response to [the victim’s] unanticipated
appearance or to intervene to prevent her killing.” (Id. at p. 619.)
Here, unlike Clark, defendant was not simply waiting
nearby but was physically present and an active participant
throughout. Ensuring he was alone, defendant asked Modica, a
drug dealer he describes as “very violent,” for money in his own
home and began wrestling with him once Modica became
“frustrated” over the request. While the two men were grappling,
Schuck attacked.
Even if defendant’s account to police is credited, defendant
did not intervene in Schuck’s attack because it was “too violent”
and he chose “not to look” as he fled out the back on Modica’s
motorcycle. He did not call 911. He did not ask Cooper to call for
help. He did not holler or alert the neighbors. He did not tell
Cravey that Modica was injured. Modica was clinging to life
when his neighbors found him and, according to the medical
examiner, could have survived for several minutes and up to an
hour, meaning any attempt to render aid by defendant could have
helped save Modica.
Defendant acknowledges he “fled rather than stay and help
Mr. Modica,” however, he argues this “is not enough to show

30
reckless indifference to human life.” Relying on Emanuel, supra,
17 Cal.5th at page 891, defendant contends the question “is not
whether the non-killer did enough to try to stop the killing, but
whether the non-killer ‘acted with the requisite mens rea, i.e.,
reckless indifference to human life.’” Therefore, he asserts by
fleeing he did not “knowingly create[] a grave risk of death.” We
disagree.
In Emanuel, our Supreme Court found because the
defendant “attempted to act as a restraining influence” when he
said, “‘let’s go’” and began to walk away before the shooting, he
demonstrated an unwillingness to engage in further violence.
(Emanuel, supra, 17 Cal.5th at p. 891.) Here, other than
defendant’s self-serving statements—he saw no blood, tried to get
in between the two men, used his firearm to stop Schuck, and
only fled on the motorcycle out of fear—there is no evidence
defendant attempted to restrain the violence or fled because of
unanticipated violence.
Instead, the physical evidence—a bloody bullet in the
bedroom, a torn holster in the kitchen and living room, blood on
defendant’s hands and face, blood trails throughout the house,
and blood in the driveway and garage, including on the
motorcycle—is more consistent with defendant’s active armed
participation in the violent, room-to-room assault. It was only
after the attack and once Modica’s head “[w]as not all the way
attached,”12 that defendant, with Schuck’s help, left through the
back gate on the motorcycle.

12 This reference comes from Cravey’s testimony at the
preliminary hearing. The preliminary hearing transcript was
part of the record before the trial court as admitted in the
original clerk’s transcript. As noted, post, defendant also uses

31
 Defendant contends Modica was “alive and ambulatory,
able to run, albeit apparently injured, when [he] left,” and “in an
apparent deviation” from their plan to take the motorcycle,
Schuck ran back inside and, therefore, defendant had no reason
to anticipate further violence. In making this argument,
defendant refers to Cravey’s preliminary hearing testimony that,
as Schuck was opening the gate for defendant, the two men saw
Modica “ran out of the house and his head was hanging” because
it “[w]as not all the way attached” and asserts, when defendant
left on the motorcycle, “Schuck went back inside” and finished the
attack on Modica. Not so.
There is no evidence to suggest any further violence took
place once defendant drove off on the motorcycle. Instead, the
evidence suggests the attack was complete when Schuck helped
defendant make his escape on the motorcycle, and Schuck left the
house at the same time. Cravey testified Schuck opened the gate
for defendant, both men looked back toward the house
(apparently seeing Modica), Schuck “went back into the
backyard, and then came back out again.” This all took place in a
matter of “seconds,” and she saw “both of them come out.” When
defendant drove by on the motorcycle, Cravey “took off” without
Schuck. Schuck was running down the street after them. Cravey
stopped at the corner to allow him to get in the car. Cooper
testified Schuck ran out the front door, “jumped in the car,” the
motorcycle started, defendant drove away, and they followed.
Both versions suggest, if Schuck went back into the house, he
was not in there for any significant amount of time or able to

this testimony in his opening brief to argue Modica was still
“alive and ambulatory” when he left.

32
continue any further attack. Accordingly, there is substantial
evidence to support finding defendant was present from the start
of the attack through its completion.
Finally, defendant argues “‘the presence of other persons
nearby [the neighbors] ma[de] it more likely that [the victim]
would receive aid without’ [his] intervention.” Defendant’s
comparison to the circumstances in Emanuel is not well-taken.
In Emanuel, supra, 17 Cal.5th at page 894, “The shooting
occurred in the afternoon in a residential area adjacent to a
public park. The sound of the gun firing was followed
immediately by screeching tires and the collision of [the victim’s]
truck with a tree. The evidence shows that numerous witnesses
were nearby and heard the commotion, and at least two of them
called 911.” Here, the offense took place by stabbing the victim
inside his home; not by shooting outside next to a park.
Neighbors were only alerted to this offense because Cooper and
Cravey drew their attention by honking the horn, an act not
likely to have been part of defendant’s plan.13
In short, defendant made no attempt to restrain the
violence and remained an active participant from planning
through execution, escape, and beyond. This factor militates in
favor of finding defendant was a major participant who acted
with reckless indifference. (See In re McDowell, supra, 55
Cal.App.5th at p. 1014 [the defendant “was present when the

13 To be sure, the shooting in Emanuel was unplanned,
however, in that case, when things started to go poorly Emanuel
urged his cohort to leave and began to walk away before the
shooting, demonstrating an unwillingness to engage in further
violence. (Emanuel, supra, 17 Cal.5th at p. 891.) Defendant here
did not engage in similar conduct.

33
violence ensued but took no steps to prevent it” by saying or
doing anything to “deescalate the situation”].)
3. The duration of the interaction
Defendant argues the attack on Modica was “relatively
quick[],” as a factor that weighs in his favor. Specifically, he
points to the approximately 10-minute attack on Modica and
compares it to the estimated nine-to-14-minute attack in
Emanuel. The Emanuel court stated, “We do not suggest that a
rapidly unfolding crime may never allow for a finding of reckless
indifference to human life. But where a crime unfolds quickly,
this factor—the failure to restrain a cohort—cannot be said to
weigh in favor of a finding of reckless indifference without some
evidence in the record indicating that the defendant had a
meaningful opportunity to do so.” (Emanuel, supra, 17 Cal.5th at
p. 892, italics added.)
Once again, defendant’s reliance on Emanuel is misplaced.
In Emanuel, the defendant and his cohort were planning to rob a
marijuana dealer of his drugs. When it became clear 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
his cohort shot the victim. (Emanuel, supra, 17 Cal.5th at
pp. 878–879.)
Here, defendant and Schuck did not plan to rob a relative
stranger in public and have things quickly escalate out of control.
Nor was Modica the victim of a quick unexpected shooting where
there was no time to intervene. Instead, he was the subject of a
brutal attack that left blood throughout the house and into the
backyard and garage. He sustained two major stab wounds and
many defensive wounds on his arms and legs, as well as
scratches and abrasions across his face, arms and chest,

34
suggesting he was fighting to survive. Finally, the bedroom was
ransacked, and the door frame was damaged with blood and
human hair in it. That defendant and Schuck made “relatively
quick[]” work of killing Modica, taking his wallet, his motorcycle,
and perhaps drugs (as no “evidence of drugs” was found at
Modica’s home), does not render defendant’s actions less
predictably dangerous. Armed with a gun, defendant had a
meaningful opportunity to restrain the violence that took place.
Therefore, the “quick” nature of this offense does not weigh in
defendant’s favor.
4. Defendant knew of his cohorts’ propensity for
violence
Defendant knew of Schuck’s and Cooper’s propensity for
violence; in fact, that quality is why they were asked to be
present for the robbery. Defendant argues, there was “no
evidence [he] knew of Schuck’s murderous tendencies” and posits
“the fact [he] brought two men with him suggests that if any
violence were contemplated, it was to be, at most, an unarmed
beating, if necessary to deter any violent resistance.” We
disagree. As discussed, defendant knew the situation he was
creating by bringing Schuck and Cooper to Modica’s home that
day. His plan—to rob or confront an armed “violent” drug dealer
about money and “snitching”—was without question a dangerous
operation. As discussed, defendant knew Schuck was a “very
violent person,” and Cooper was good as “backup.” Moreover, as
noted, defendant’s postoffense willingness to continue associating
and committing crimes with Schuck leads to a reasonable
inference that defendant was not surprised by Schuck’s capacity
for violence. Defendant’s claim is not credible.

35
 5. Defendant’s effort to minimize the risk of
violence
Defendant asserts he “brought two men with him … to
quell the likelihood of violence” and “there was nothing in
[defendant’s] plan that ‘elevated the risk to human life beyond
those risks inherent in any armed robbery.’” However, as
discussed, substantial evidence supports finding Schuck and
Cooper were brought because defendant anticipated violence and
the need for “backup,” not to “quell” any violence. Defendant
knew Schuck to be “very violent,” and he also knew Modica to be
armed and “very violent.”
Aside from his self-serving statements, there is no evidence
defendant made any efforts to minimize the risk of violence
during the attack on Modica. He told police he did not help
Modica during the attack because it was “too violent” and he
“didn’t want to be the one catching the blade” and he only fled on
the motorcycle out of fear. However we note Schuck helped
defendant leave by opening the gate for him, riding the same
motorcycle many witnesses heard defendant say he was going to
steal and later sold for a fraction of its value. Defendant testified
at the hearing he pulled his firearm in the living room in an
attempt to stop Schuck’s attack, but the evidence points to a
struggle over the weapon in the living room and kitchen, and the
bloody bullet in the bedroom suggests the firearm was in use well
beyond the living room where defendant claims it was drawn.
Substantial evidence does not support finding defendant made
any effort to minimize the risk of violence during the offense he
planned.
In sum, when viewing the totality of the circumstances, we
find substantial evidence supports the trial court’s finding,

36
beyond a reasonable doubt, defendant was a major participant in
the underlying offenses who acted with reckless indifference to
human life. Defendant was not a peripheral participant who was
caught off guard by unexpected violence, and he did nothing to
restrain the attack he initiated. He was an integral part of the
criminal enterprise from planning, execution, and beyond.
Accordingly, under the standards articulated in Banks and Clark,
as well as Scoggins, defendant is ineligible for resentencing
pursuant to section 1172.6.
II. Defendant’s contentions regarding the court’s
alleged unsupported factual findings fail
Defendant contends five of the trial court’s “keystone
factual findings are unsupported” and, as such, the court abused
its discretion. (Capitalization & boldface omitted.) Specifically,
he asserts the court erred in (1) characterizing the bullet being
discharged from the gun as simultaneous with Schuck’s “stabbing
motion” suggesting coordinated action; (2) stating that defendant
“testified he was demanding money” from Modica rather than
simply asking for money; (3) finding defendant testified that he
pushed Modica to the ground before Schuck stabbed him, also
suggesting coordinated action; (4) stating defendant was “covered
with the victim’s blood”; and (5) stating Schuck took Modica’s
motorcycle.
We need not dwell on these contentions. As respondent
correctly observes, section 1172.6 requires the trial court to
“determine whether the [defendant] is entitled to relief” by
deciding whether the People have proved beyond a reasonable
doubt that defendant is guilty of murder under the law as
amended. (§ 1772.6, subd. (d)(3).) It does not require the court to
make secondary factual findings on particular aspects of the

37
evidence or provide an error-free summary of the record. On
appeal, we review the trial court’s ultimate judgment for
substantial evidence. (See People v. Tessman (2014) 223
Cal.App.4th 1293, 1302; People v. Towner (1968) 259 Cal.App.2d
682, 685 [“The inquiry on appeal is whether, in fact, the decision
of the trial court was correct, not the reasons he may have stated
for making it.”].) The narrow exception recognized in Tessman—
where the court’s comments “unambiguously disclose” that its
basic ruling embodied a misunderstanding of the relevant law
(Tessman, at p. 1303)—is not applicable here. Defendant’s
complaints concern alleged misstatements of the evidence and
reflect no misunderstanding of the legal standards governing the
section 1172.6 hearing or the findings required to find defendant
was a major participant who acted with reckless indifference to
human life.
Moreover, the claimed errors are largely immaterial. First,
as to the motorcycle, the court was mistaken. It was defendant,
not Schuck, who took Modica’s motorcycle. But correcting this
error only strengthens the case against defendant, as it
establishes he took what he went to Modica’s to get and then
personally profited when he sold it later that evening. Second,
regarding the blood, while witnesses described “specks” of blood
on defendant’s face and hands rather than being “covered” in
blood, the difference is one of degree, not substance. Multiple
witnesses, including Cravey, Cooper, and defendant himself in
his police interview, confirmed defendant had the victim’s blood
on him. This helped establish defendant was in close physical
proximity during the violent attack of Modica.
Third, defendant’s issue with the court’s finding that he
“testified he was demanding money from the victim and pushed

38
the victim to the ground” before the stabbing is splitting hairs.
Defendant points out he pushed Modica to the couch, not the
ground, noting they were not outside, and he discussed the
money Modica owed him, rather than “demand[ing] money, as
might occur in a robbery.” Moreover, the court found defendant’s
testimony incredible and the evidence at trial, which established
defendant intended to “tax” Modica, supports finding defendant
demanded money.
Fourth, and last, even if “the court’s contemporaneous
firearm-action finding fails,” there is ample evidence to support
the required finding that defendant coordinated and facilitated
Modica’s death. He conducted an “inventory check” of Modica’s
home earlier in the day; planned the robbery; recruited and
brought with him the “very violent” and “all around tough”
participants; brought a loaded firearm to “tax” a known drug
dealer and take his motorcycle; physically confronted Modica and
pushed him down and wrestled with him; and was present for the
bloody, violent room-to-room attack. Despite mischaracterizing
the exact timing of when defendant drew his gun, it does not
change defendant’s status as a major participant who acted with
reckless disregard for human life.
III. Defendant’s claim of ineffective assistance of counsel
fails
Defendant contends hearing counsel was ineffective for
failing to (1) seek reconsideration of the court’s alleged factual
errors and (2) argue more aggressively that defendant was not a
major participant who acted with reckless indifference to human
life. We disagree.
“[A] defendant has a constitutional right to effective
assistance of counsel at an evidentiary hearing under section

39
1172.6 ….” (People v. Grajeda (2025) 111 Cal.App.5th 829, 838.)
Under a Sixth Amendment claim of ineffective assistance of
counsel, a defendant must show that counsel’s performance fell
below a standard of reasonable competence and that prejudice
resulted. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569
(Anderson).) Prejudice is shown where there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland, supra, at p. 694; see Anderson, supra,
at p. 569.)
Even if we found counsel to have been ineffective, we find
no prejudice. Based on the foregoing analysis and our finding
that substantial evidence supports the court’s finding defendant
was a major participant who acted with reckless indifference to
human life, defendant has failed to establish that, “but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at
p. 694; see Anderson, supra, 25 Cal.4th at p. 569.)

DISPOSITION
The order is affirmed.

CHAVEZ, J.
We concur:

LUI, P. J. RICHARDSON, J.

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