People v. Wilson CA2/1

Filed 4/28/21 P. v. Wilson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B307536

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A923178)
v.

VAN OTIS WILSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Nicole C. Bershon, Judge. Affirmed.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Eric J. Kohm, Deputy Attorneys
General, for Plaintiff and Respondent.
____________________________
 In 1988, petitioner Van Otis Wilson and several
confederates robbed a courier who picked up money from Wilson’s
codefendant, Joevone Elster’s, former employer. Wilson and
Leslie Holget drove away in the courier’s vehicle, and the courier
followed him in an off-duty police officer’s vehicle. In the ensuing
chase, Holget shot and killed the off-duty police officer. A jury
convicted Wilson of robbery and murder.
In January 2019, Wilson petitioned for resentencing
pursuant to Penal Code1 section 1170.95. After a hearing, at
which no party presented new evidence, the trial court denied
Wilson’s resentencing petition. The trial court concluded that
Wilson was a major participant in the underlying felony who
acted with reckless disregard for human life. As a result, Wilson
was not eligible for resentencing.
On appeal, Wilson argues that the trial court erred in
denying his petition for resentencing because the trial court
did not provide him with a jury trial on his resentencing petition
and because the trial court applied the wrong standard of proof at
the resentencing hearing. We conclude that Wilson was not
entitled to a jury trial and that even if we assume the trial court
applied the wrong standard of proof, Wilson demonstrates no
prejudice. We reject Wilson’s argument that applying the
purported incorrect standard resulted in structural error. We
affirm the order denying Wilson’s resentencing petition.

1 Undesignated statutory citations are to the Penal Code.

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 BACKGROUND

1. Conviction and sentence
In 1989, a jury convicted Wilson of the murder of George
Aguilar. The jury found it to be murder in the first degree. The
jury also found that a principal used a handgun within the
meaning of section 12022, subdivision (a).
The jury also convicted Wilson of the second degree robbery
of Masih Madani. The jury found that a principal used a firearm
within the meaning of section 12022, subdivision (a). The jury
also found that Wilson personally used a firearm.
Following the judgment of conviction, the trial court
sentenced Wilson to a seven-year determinate term and a
26-year-to-life indeterminate term.

2. Direct appeal
In his direct appeal from the judgment of conviction, this
court described the facts as follows:
“In January 1988, defendant Elster was hired as a
cashier at a Shell gasoline station . . . .” (People v. Elster et al.
(May 6, 1992, B047207) [nonpub. opn.] (Elster).) “At that time,
defendant Elster learned the owner’s brother, Masih Madani [the
robbery victim], collected the station’s receipts every morning and
took them to the bank.” (Elster, supra, B047207, at p. 2.) “At
some point before March 28, 1988, defendant Elster solicited the
participation of Lamont Wade (Wade) in a robbery; he [Elster]
also asked a neighbor to contact Leslie Holget (Holget).” (Ibid.)
On March 28, 1988, Wade, Elster and Wilson parked across
the street from the Shell Station to wait for Madani. (Elster,
supra, B047207, at p. 3.) Elster and Wilson again waited for the
courier on March 29. (Ibid.) “On March 30, 1988, this trio again

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took up an observation post behind the Shell station with the
intent of robbing the courier.” (Ibid.) “For some reason, the trio
did not attempt a robbery on this occasion.” (Id. at p. 4.) Wade
then decided that he did not want to participate in the planned
robbery.
On March 31, 1988, Holget drove Elster and Carr to a
location near the gas station, and “Elster explained that he used
to work at the Shell station; the courier should arrive at
approximately 8:00 a.m. in a blue Acura, after which they
would rob him in the parking lot. Holget was armed with a
.44 Magnum; Carr, with a .25 caliber handgun. Approximately
20 minutes after arriving at the . . . parking lot [near the Shell
station], this group met . . . Wilson and [Terrence] Gross who
arrived in” another vehicle. (Elster, supra, B047207, at pp. 4–5.)
Wilson drove Gross and Wilson carried a .38 caliber handgun.
“The courier collected $1,912.59 in cash, as well as some
checks; these items had been placed in a cloth bag which the
courier in turn placed in the rear area of his 1986 Acura Integra.
He then left the station . . . Elster directed his companions to
follow the Acura, stating they would rob it on the street. It was
decided the group would place one automobile in front of the
Acura and one behind it when it stopped at a traffic signal, at
which point they would rob the courier. Thereafter, they would
abandon the Acura a few blocks from the site of the robbery. . . .”
(Elster, supra, B047207, at p. 5.)
When the courier stopped at a traffic signal, “Wilson and
Holget stepped out of their automobiles and walked toward the
Acura, displaying handguns.” (Elster, supra, B047207, at p. 6.)
Wilson ordered the courier out of the Acura and Wilson and
Holget drove away in the Acura. An off-duty Inglewood Police

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Sergeant George Aguilar pursued the Acura with the courier.
Aguilar was able to pull alongside the Acura and “shouted several
times that he was a police officer. In response, shots were fired
from the Acura.” (Id. at p. 7.) Aguilar later died from gunshot
injuries.
When apprehended, Wilson waived his constitutional rights
and gave a statement. “He admitted participating in the robbery
of the courier, explaining his participation had been solicited by
defendant Elster.” (Elster, supra, B047207, at p. 9.) Wilson said
when Aguilar’s automobile pulled alongside the Acura, Holget
was driving, Wilson “told Holget the driver was pointing a .45
caliber gun at them. Holget then fired his .44 Magnum at the”
automobile Aguilar was driving. (Id. at p. 9.)
At his trial, Wilson admitted to participating in the
robbery. He admitted that he pointed his .38 caliber revolver at
the courier and demanded money. “He then ordered the courier
out of the Acura, after which he saw Holget enter the Acura’s
driver’s seat. Since Gross then was driving away in . . . Wilson’s
automobile, . . . Wilson got into the Acura with Holget.” (Elster,
supra, B047207, at p. 13.)
“Wilson then climbed into the back seat and began looking
for the money in the Acura’s hatchback area. He assumed they
had completed the robbery successfully; he did not pay attention
to Holget’s driving since he was engrossed in putting the money
in his pockets and socks. As they stopped at a traffic signal to
make a left turn, . . . Wilson noticed a black Trans Am turning
into their lane. He saw that the driver was pointing a .45 caliber
automatic at them; as he ducked, he so informed Holget. . . .
Wilson then heard rapid gunfire coming from inside the Acura.

5
Shortly thereafter, Holget stopped in someone’s driveway.”
(Elster, supra, B047207, at p. 13.)

3. Wilson’s trial testimony
Wilson testified to the following during his trial. On
March 29 and March 30, 1988, Wilson went to observe the gas
station to “monitor” the gas station. Wilson was waiting for
Madani. On the day of the robbery, March 31, Wilson drove
himself and Terrance Gross to a location near the gas station.
Wilson had a .38 chrome revolver that he had purchased two
days earlier. Wilson learned that Holget and Carr also would
participate in the robbery. Gross told Wilson that both Carr and
Holget had guns and that “it might be more easier if we decide to
do it together.” After debating if there would be enough money
from the robbery for all of the participants, Wilson “decided I will
participate in the robbery . . . .” Wilson and his confederates then
waited about 30 minutes for Madani. When Madani took longer
than Wilson suspected, Wilson almost aborted the robbery. Carr
then proposed that the group rob Madani on the street and
everyone agreed.
Wilson pulled in front of Madani’s car so it could not
proceed. Wilson’s confederates stopped behind Madani so that
Madani could not retreat backwards. Wilson “proceeded to get
out of [his] car to rob Madani.” Wilson “drew [his] .38 revolver
from [his] waistband, pointed [it] at Madani and ordered him out
[of] the car.” When Wilson exited his car he asked Madani
“where the money [was].” Wilson testified that he had four
rounds in his revolver. Wilson testified that he loaded it “for
intimidation.” When Wilson’s counsel asked, “Would you have
shot anybody,” Wilson responded, “No, I wouldn’t.”

6
 Holget entered Madani’s car sitting in the driver seat.
Wilson saw Gross drive his [Wilson’s] car away and “jumped in
[Modani’s] car with Holget.” Wilson went to the back of the car to
take the money. Wilson put the money in his pocket and in his
socks.
Wilson saw a man pointing a gun at the car in which he
was a passenger. Wilson ducked and said, “ ‘[S]omebody next to
us [is] pointing a gun at us.’ ” Holget then shot Aguilar multiple
times. Wilson panicked and dropped his gun during the shooting.
Wilson retrieved the gun but then dropped it when he was
jumping over fences trying to evade detection. Later, as he
continued to try to avoid detection, Wilson put money in his anus.
Wilson estimated that the shooting occurred a mile and a
half or two miles from where the robbery occurred. He estimated
that the shooting occurred approximately two minutes after the
robbery.
Wilson testified, “[M]y intention [was]—to rob Madani.”
Wilson did not discuss with his confederates “how you were going
to do it” or “how much money you were going to get.”

4. Jury instructions in Wilson’s 1989 trial
The trial court instructed the jury on the definition of
aiding and abetting. The court instructed the jury that: “If a
human being is killed by any one of several persons engaged in
the commission or attempted commission of the crime of robbery,
all persons, who either directly and actively commit the act
constituting such crime, or who with knowledge of the unlawful
purpose of the perpetrator of the crime and with the intent or
purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate
by act or advice its commission, are guilty of murder of the first

7
degree, whether the killing is intentional, unintentional, or
accidental.”
The trial court also instructed the jury that “conspiracy is
an agreement between two or more persons with the specific
intent to agree to commit a public offense such as robbery, and
with the further specific intent to commit such offense, followed
by an overt act . . . .” The court further instructed the jury: “A
member of a conspiracy is not only guilty of the particular crime
that to [his] knowledge [his] confederates are contemplating
committing, but is also liable for the natural and probable
consequences of any act of a co-conspirator to further the object of
the conspiracy, even though such act was not intended as a part
of the original plan . . . .”
The court instructed the jury that it had to determine
whether the murder “was a natural and probable consequence of
the originally contemplated criminal objective of the conspiracy.”
The court instructed the jury that “[i]f a number of persons
conspire together to commit robbery, and if the life of another
person is taken by one or more of them in furtherance of the
common design, and if such killing is done to further that
common purpose or is an ordinary and probable result of the
pursuit of that purpose, all of the co-conspirators are deemed in
law to be equally guilty of murder of the first degree, whether the
killing is intentional, unintentional, or accidental.”
The trial court instructed the jury that “[e]very person who
unlawfully kills a [human being] [during the commission or
attempted commission of robbery] is guilty of the crime of
murder . . . .” “The unlawful killing of a human being, whether
intentional, unintentional or accidental, which occurs [during the
commission or attempted commission of the crime] of robbery is

8
murder of the first degree when the perpetrator had the specific
intent to commit such crime. [¶] The specific intent to commit
robbery and the commission or attempted commission of such
crime must be proved beyond a reasonable doubt.”
The trial court did not instruct the jury that it had to
determine whether Wilson was a major participant who acted
with reckless indifference to human life.

5. Evidentiary hearing on Wilson’s section 1170.95
petition
Over 30 years after his trial, Wilson petitioned for
resentencing. The trial court found a prima facie case, and
issued an order to show cause and held a hearing on
Wilson’s petition. Wilson was represented by counsel at the
section 1170.95, subdivision (d) hearing. No witnesses testified.
In its tentative opinion, the trial court described Wilson as
the “ring leader. He was involved at every single step of this
process. He planned it and then when it didn’t go right they
revised their plan.” The trial court also noted that Wilson
pointed his gun at Madani.
The prosecutor argued that Wilson was a major participant
who acted with reckless indifference to human life. Wilson’s
counsel argued that the key issue was whether Wilson acted with
reckless indifference. Counsel contended that no shots were fired
in Madani’s presence. The shooting did not occur until Wilson
and his confederates fled from the robbery, and Wilson did not
personally shoot Aguilar. Counsel emphasized that Wilson did
not tell Holget to shoot Aguilar. Counsel argued that Wilson’s
“mens rea at the moment . . . . doesn’t rise to reckless indifference
on the part of Mr. Wilson at the moment that he saw Aguilar

9
waiving a gun, and at the moment that, the split second later
that Holget shot . . . .”

6. Trial court’s ruling
The trial court denied Wilson’s petition for resentencing.
Initially, the trial court stated that it had to look at “what kind of
robbery were you planning and what was your role.” The court
stated that three people “purposely ensured, A, that their guns
were loaded, B, they committed a carjacking in broad daylight in
the middle of a busy street. Your client actually pointed a loaded
weapon at, you know, Madani’s head, and that in and of itself
posed a grave risk of death, pointing a loaded weapon at
someone’s head.”
The trial court then focused on the language of the statute,
explaining: “The statute on 1170.95(a)(3) says the showing that I
have to evaluate is whether you could not be, it doesn’t say could
not have been, it says could not be convicted of first or second-
degree murder, and then it says because of changes to section 188
or 189 made effective January 1st, 2019. That’s the language of
the statute I’m left with. And the interpretation of that statute is
not were you convicted or weren’t you convicted, but if the law at
the time is the way the law is now could you have been convicted.
Well, actually could you. I mean it kind of looks now, it’s almost
like if we had a trial today, given the facts we have, given the law
that we have, could you be convicted of the charge. And I believe
under the reckless indifference and major participant . . .
standard that still . . . applies to murder charges, you could be for
all the reasons I said . . . .”
Next, the trial court stated that Wilson “pointed a loaded
weapon at someone who [he] carjacked in broad daylight. Your
car drove in front of them to block their path. You pointed a

10
loaded weapon at somebody’s head. Your colleague who came
with you had a loaded gun. You at least knew that that person
had a loaded gun and that somebody else had a loaded gun. You
then proceeded to drive recklessly—you were a passenger—
through the street, and unfortunately somebody lost their life,
and after that no aid was rendered to the person and you kept the
proceeds of the incident until you were arrested.”
The court further stated, “I’m looking at the facts that were
proved at trial, and based on those facts, given the law that we
have today, could you be—could you not have been convicted.
And I believe you could be under the major participant [who
acted with] reckless indifference.”
At the end of its ruling, the court stated, “I want to be very
clear in the language that I think that I need to find and both
parties will correct me. I have found that the People have proved
beyond a reasonable doubt that the petitioner is ineligible for
resentencing pursuant to Penal Code section 1170.95(d)(3).”
Neither the prosecutor nor defense counsel asked the court “to
find anything else.”
Wilson timely appealed.

DISCUSSION
On appeal, Wilson argues that he was entitled to a jury
trial on his resentencing petition. Wilson argues that even if he
was not entitled to a jury trial, then the trial court erred because
it did not evaluate the evidence under the beyond a reasonable
doubt standard of proof as a fact finder. Wilson further argues
that this purported error was structural. We disagree and
conclude that Wilson was not entitled to a jury trial, any
purported error in not considering the evidence as a fact finder

11
was not structural, and Wilson has failed to demonstrate that
any such error was prejudicial.

A. Background
“Senate Bill 1437 ‘amend[ed] the felony murder rule and
the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018,
ch. 1015, § l, subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830,
842.) “Senate Bill 1437 creates a specific mechanism for
retroactive application of its ameliorative provisions.
Section 1170.95 lays out a process for a person convicted of felony
murder or murder under a natural and probable consequences
theory to seek vacatur of his or her conviction and resentencing.
First, the person must file a petition with the trial court that
sentenced the petitioner declaring, among other things, that the
petitioner ‘could not be convicted of first or second degree murder
because of changes to Section 188 or 189.’ (§ 1170.95,
subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) Then, the trial court
must ‘review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of th[e] section.’ (§ 1170.95, subd. (c).) If so, the trial
court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder conviction and to
resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).) ‘The prosecutor and the
petitioner may rely on the record of conviction or offer new or

12
additional evidence to meet their respective burdens.’ [Citation.]”
(Gentile, supra, at p. 853.)
Under new subdivision (e) of section 189, “[a] participant in
the perpetration or attempted perpetration of a felony listed in
subdivision (a) [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 . . . .”
(§ 189, subd. (e), italics added.) The language is similar to the
felony murder special circumstance statute. (People v. Douglas
(2020) 56 Cal.App.5th 1, 7 (Douglas).)
As noted, the trial court concluded that Wilson was a major
participant in the underlying felony and acted with reckless
indifference to human life.

B. Wilson Demonstrates No Prejudicial Error at the
Section 1170.95 Hearing
Wilson correctly notes the split of authority on what
standard governs the trial court’s review at a section 1170.95,
subdivision (d) hearing. People v. Duke (2020) 55 Cal.App.5th
113, review granted January 13, 2021, S265309 announced that
the trial court must determine “beyond a reasonable doubt that
the defendant could still have been convicted of murder under the
new law—in other words, that a reasonable jury could find the
defendant guilty of murder with the requisite mental state for
that degree of murder.” (Duke, at p. 123.) Duke further held that
this standard “is essentially identical to the standard of

13
substantial evidence, in which the reviewing court asks
‘ “whether, on the entire record, a rational trier of fact could find
the defendant guilty beyond a reasonable doubt. . . . [¶] . . .”
[Citation.]’ [Citation.]” (Ibid.)
Other courts have rejected Duke’s holding that at a
section 1170.95, subdivision (d) hearing, the trial court applies a
standard akin to review for substantial evidence. For example,
our colleagues in Division Seven of this court reasoned in
People v. Rodriguez (2020) 58 Cal.App.5th 227, review granted
March 10, 2021, S266652 (Rodriguez), that the trial court acts as
an “independent fact finder and determine[s] whether the
evidence establishes a petitioner would be guilty of murder under
amended sections 188 and 189 and is thus ineligible for
resentencing under section 1170.95, subdivision (d)(3).”
(Rodriguez, at pp. 243–244, review granted; see also People v.
Duchine (2021) 60 Cal.App.5th 798, 813 [following Rodriguez];
People v. Clements (2021) 60 Cal.App.5th 597, 615 [“[T]he plain
text of the statute requires the trial judge to sit as a fact finder,
not as a quasi-appellate court.”]; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974
[disagreeing with Duke].)
Wilson argues that because Rodriguez is the correct
standard, the trial court erred in not applying it. The People
argue that Duke is the correct standard, and even if Rodriguez
applies, the trial court did act as a fact finder in finding that
Wilson was ineligible for relief under section 1170.95. We
conclude that whether one follows Duke or Rodriguez, no
reasonable trier of fact could conclude that Wilson was not a
major participant who acted with reckless indifference to human
life. Wilson offered no additional evidence at the section 1170.95

14
hearing and even with the assistance of counsel in the trial court
and on appeal, he advances no viable theory under which a
reasonable trier of fact could conclude that he was not a major
participant who acted with reckless indifference to human life.

1. Wilson was a major participant in the
underlying felony
The following question underlies the determination of
whether a defendant is a major participant: Was “the
defendant’s participation ‘in criminal activities known to carry a
grave risk of death’ [citation] . . . sufficiently significant to be
considered ‘major’ [citation]?” (People v. Banks (2015) 61 Cal.4th
788, 803.)
Here, Wilson’s own trial testimony demonstrates that he
was a major participant. Wilson testified that he purchased a
firearm prior to the robbery, and took a revolver containing four
rounds to the robbery. Prior to the robbery, Wilson learned that
Holget and Carr also had guns. Wilson cut off Madani’s vehicle,
threatened Madani with a loaded gun, and ordered Madani out of
his car. Wilson testified that he “drew [his] .38 revolver from
[his] waistband, pointed at Madani and ordered him out [of] the
car.” Wilson then entered Madani’s vehicle and drove off with
Holget. The jury concluded that Wilson personally used a
firearm in the commission of the robbery. According to his own
testimony, Wilson was “willingly involved in the violent manner
in which” the robbery was committed. (People v. Bascomb (2020)
55 Cal.App.5th 1077, 1089 (Bascomb).)
In the trial court, Wilson essentially conceded that he was a
major participant, and his counsel focused only on whether
Wilson acted with reckless indifference to human life. On appeal,
Wilson does not challenge the finding that he was a major

15
participant. We conclude as a matter of law, based on Wilson’s
own undisputed trial testimony, that he was a major participant.
In the words of Wilson’s counsel at the section 1170.95 hearing,
Wilson “had a principal and ongoing role in organizing and
planning the robbery of Mr. Madani, and he was the actual lead
robber.”

2. Wilson acted with reckless indifference to
human life
Reckless indifference to human life requires consideration
of “a defendant’s subjective awareness of the grave risk to human
life created by his or her participation in the underlying felony.”
(People v. Estrada (1995) 11 Cal.4th 568, 578.) “To act with a
reckless indifference to human life, ‘ “The defendant must be
aware of and willingly involved in the violent manner in which
the particular offense is committed, demonstrating reckless
indifference to the significant risk of death his or her actions
create.” ’ ” (Bascomb, supra, 55 Cal.App.5th at p. 1087.) On the
other hand, “knowledge of the possible risk of death inherent in
certain felonies like armed robbery does not satisfy the reckless
indifference standard.” (Id. at p. 1088.) “[T]here is significant
overlap between being a major participant and having a reckless
indifference to human life.” (In re Bennett (2018) 26 Cal.App.5th
1002, 1022.)
Courts have identified the following factors to determine
whether a defendant acted with reckless indifference to human
life: “[T]he defendant’s knowledge of weapons, and the use and
number of weapons; the defendant’s proximity to the crime and
opportunity to stop the killing or aid the victim; the duration of
the offense conduct, that is, ‘whether a murder came at the end of
a prolonged period of restraint of the victims by defendant’; the

16
defendant’s awareness his or her confederate was likely to kill;
and the defendant’s efforts to minimize the possibility of violence
during the crime.” (In re Miller (2017) 14 Cal.App.5th 960, 973,
citing People v. Clark (2016) 63 Cal.4th 522, 618–623 (Clark).)
Applying these factors to the undisputed evidence shows
Wilson acted with reckless indifference to human life. He was
actively involved and physically present during the entire
sequence of events leading to Aguilar’s murder. Wilson armed
himself and knew that Holget was armed. Wilson testified that
he “drew [his] .38 revolver from [his] waistband, pointed at
Madani and ordered him out [of] the car.” Wilson testified that
his gun was loaded with four bullets. Holget also drew a gun on
the courier. By using their weapons, Wilson and Holget were
able to enter Madani’s car and drive away in it.
About two minutes after they robbed Madani, Wilson saw
Aguilar, who identified himself as a police officer although the
evidence was not clear whether Wilson heard that identification.
Knowing, however, that Holget had a gun, Wilson then warned
Holget that Aguilar was pointing a gun at their car. Instead of
attempting to de-escalate this volatile scenario, Wilson hid in the
back of the car stuffing the proceeds of the robbery in his socks
and pockets. Once more, instead of helping Aguilar after Holget
shot him, Wilson ran away and dropped his gun as he attempted
to avoid detection. He then put money in his anus. Even if
arguendo Wilson were not aware of Holget’s propensity to
violence, there was no evidence that Wilson took any steps to
minimize the possibility of violence during the entire sequence of
criminal events.
The evidence supports only the conclusion that Wilson
acted with reckless indifference to human life. (In re McDowell

17
(2020) 55 Cal.App.5th 999, 1015 [defendant acted with reckless
indifference to human life when he “armed himself with a knife,
planned and carried out a crime with obvious risks of lethal
violence, and was present at the scene but took no steps to
prevent the killing”]; Douglas, supra, 56 Cal.App.5th at p. 11
[ringleader who deliberately created risks to human life, took no
steps to reduce them, and expressed no remorse acted with
reckless indifference to human life]; People v. Law (2020)
48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490
[defendant involved in violent robbery who used gun to threaten
victims and was at the scene of the shooting but did not stop
accomplice or help victim acted with reckless indifference to
human life].)
Wilson cites no legal authority supporting his view that he
did not act with reckless indifference to human life, and we are
unaware of any. As the Bascomb court observed: “ ‘[W]e are not
aware of a single case that concludes a defendant who personally
committed a robbery, used a gun, and was present for the
shooting did not meet the standard’ of culpability required to”
show reckless indifference to human life. (Bascomb, supra,
55 Cal.App.5th at p. 1090.) Wilson also fails to analyze the issue
in accordance with the appellate guidance set forth above for
evaluating whether a defendant acted with reckless indifference
to human life.
Instead, his sole argument is based on an unsupported
characterization of the evidence. Wilson argues, without any
citation to the record: “The decision to kill was made on the spur
of the moment by Holget and appellant had no opportunity to
prevent it. . . . In his trial testimony, appellant denied having any
contingent plan to use force against anyone.” In his reply brief,

18
Wilson states, again without citation to the record, “Officer
Aguilar’s sudden appearance was certainly not part of the plan,
and marginally foreseeable.”
No evidence supports Wilson’s claim that he and his
confederates—three of whom were also armed—planned to
refrain from using force against anyone and that Holget merely
acted on his own in shooting Aguilar. The record does not
support Wilson’s assertion that appellant “denied any contingent
plan to use force against anyone.” Wilson and his confederates
may have arguendo overlooked the possibility of an innocent
bystander assisting Madani, but no evidence supports the
conclusion that they eschewed or attempted to minimize any such
potential force either to effectuate the robbery or to ensure their
escape. The method of the robbery also increased the likelihood
of danger because Wilson and his confederates stopped traffic,
essentially guaranteeing the presence of bystanders. Although
the confederates may not have planned for an off-duty police
officer to be present, this is not a case in which Wilson and his
confederates planned to minimize the risk to human life such as
by carrying unloaded weapons. (Cf. Clark, supra, 63 Cal.4th at
pp. 619–622 [finding insufficient evidence to show a defendant
acted with reckless disregard for human life when the defendant
planned for a robbery to occur after a store was closed and to use
an unloaded gun].) There is simply no support for Wilson’s
argument that Holget acted contrary to a predetermined plan,
nor any suggestion that Wilson eschewed violence when he
directed an armed Holget towards Aguilar while Wilson was
stuffing the robbery proceeds in his clothing.
In sum, even if Wilson could demonstrate that the trial
court applied the wrong standard of proof—an issue we need not

19
decide—he demonstrates no prejudice under any standard from
that assumed error. Wilson offers no theory to support the
conclusion that he was not a major participant. Wilson’s only
theory to support the conclusion that he did not act with reckless
indifference to human life is devoid of support in the record.
Because no reasonable trier of fact could conclude that Wilson
was not a major participant in the underlying felony who acted
with reckless indifference to human life, the trial court properly
denied his petition for resentencing.

C. Even Assuming Arguendo the Trial Court Applied
the Incorrect Standard, the Error Was Not
Structural
We now turn to Wilson’s argument that on appeal, he
did not have to demonstrate prejudice because the trial court’s
failure to apply the correct standard constituted structural error.
“Structural defects requiring automatic reversal of a
criminal conviction typically involve basic protections without
which ‘ “a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.” ’
[Citations.] These include total deprivation of the right to
counsel, denial of the right of self-representation, trial before a
judge who is not impartial, unlawful exclusion of members of the
defendant’s race from a grand jury, and denial of the right to a
public trial.” (In re James F. (2008) 42 Cal.4th 901, 914, italics
added.)
The concept of structural error does not apply here because
a section 1170.95 hearing is not a criminal trial. Accordingly,
there is no basis to conclude that “ ‘ “a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt

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or innocence . . . .” ’ ” (In re James F., supra, 42 Cal.4th at p. 914;
Cf. People v. Tarkington (2020) 49 Cal.App.5th 892, 896, review
granted Aug. 12, 2020, S263219 [rejecting argument that the
failure to appoint counsel prior to summarily denying section
1170.95 petition was structural error].)
Our high court’s opinion in People v. Mil (2012) 53 Cal.4th
400 (Mil), a first degree murder case, is instructive in its holding
that the failure to instruct the jury on elements of a special
circumstances finding was not structural error and thus subject
to review for harmless error.2 There the trial court erred when:
“[T]he jury was not instructed that a nonkiller . . . must (1) have
personally had the intent to kill or (2) have been a major
participant in the commission of the burglary or robbery and
have acted with reckless indifference to human life.” (Mil, at
p. 409.) Mil nonetheless held that the error was not structural.
In doing so, Mil observed that an error is structural only in
a “ ‘very limited class of cases’ ” when it affects the framework in
which the trial proceeds. (Mil, supra, 53 Cal.4th at p. 410.) It
gave as examples of structural error “the complete denial of
counsel, a biased decision maker, racial discrimination in jury
selection, denial of self-representation at trial, denial of a public
trial, and a defective reasonable-doubt instruction.” (Ibid.) In
addressing whether more than one omitted element in
instructing the jury was structural error, Mil stated, “The critical
inquiry, in our view, is not the number of omitted elements but
the nature of the issues removed from the jury’s consideration.
Where the effect of the omission can be ‘quantitatively assessed’

2 Our high court concluded that the instructional error
was not harmless in that case. (Mil, supra, 53 Cal.4th at pp. 405,
419.)

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in the context of the entire record (and does not otherwise
qualify as structural error), the failure to instruct on one or more
elements is mere ‘ “trial error” ’ and thus amenable to harmless
error review.” (Id. at pp. 413–414.)
Wilson states that “[i]f there was room for application of a
harmless error standard in this context, it would be in the limited
instance where the record on appeal conclusively established the
mental state of reckless indifference.” As set forth in the
preceding section of our Discussion, this is just such a case and
thus the effect of any error in applying Duke instead of Rodriguez
can easily be “ ‘quantitatively assessed.’ ” (Mil, supra, 53 Cal.4th
at p. 413.)

D. Wilson Was Not Entitled to a Jury Trial on His
Resentencing Petition
Wilson argues that murder based on being a major
participant in a crime and acting with reckless indifference to life
is a “ ‘new’ form of murder” that did not exist prior to enactment
of Senate Bill No. 1437. He reasons from this proposition, that
(1) section 1437 is not merely “a sentencing provision; and (2) he
is entitled to a jury trial to determine whether he should be
resentenced under a theory that he acted as a major participant
in the underlying robbery with reckless indifference to human
life. Wilson relies on the principle that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.”
(Alleyne v. United States (2013) 570 U.S. 99, 103, citing
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).)
Our sister court in Lopez, supra, has rejected this argument
explaining: “Section 1170.95 petitioners are not criminal
defendants charged anew with murder and constitutionally

22
entitled to a jury trial. Instead, they stand convicted of murder,
their convictions are final, and they can constitutionally be
punished for murder despite the ameliorative changes to the law
of murder enacted by Senate Bill No. 1437. [Citations.]
Accordingly, ‘the sentence-[vacatur and] modification proceedings
authorized by [section 1170.95] are not constitutionally
compelled. . . . Rather, [section 1170.95] represents a [legislative]
act of lenity . . . . [¶] Viewed that way, proceedings under
[section 1170.95] do not implicate the Sixth Amendment right to
have essential facts found by a jury beyond a reasonable doubt.’ ”
(56 Cal.App.5th at pp. 957–958, review granted.)
Lopez further reasoned: “[A] factual finding that results in
ineligibility for section 1170.95 relief does not increase the
penalty for a crime. ‘[I]t simply leaves the original sentence
intact.’ [Citation.] Accordingly, Apprendi is not implicated and
‘the Sixth Amendment does not prohibit trial courts from relying
on facts not found by a jury in determining’ section 1170.95
eligibility.” (Lopez, supra, 56 Cal.App.5th at p. 958, review
granted.)
We agree with Lopez. We reject Wilson’s argument that he
was entitled to a jury trial and his related argument that
Apprendi and its progeny prohibit the trial court from relying on
facts not found by a jury. (Accord, People v. Anthony (2019)
32 Cal.App.5th 1102, 1156–1157 [“[T]he retroactive relief they
are afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’
Sixth Amendment rights.”]; Rodriguez, supra, 58 Cal.App.5th at
p. 243, review granted.)

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 Finally, with no citation to any authority, Wilson “submits”
that there is an equal protection violation because persons tried
under the new law are entitled to a jury trial and he is not.
Wilson has forfeited this argument by failing to cite to authority
supporting it. (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th
1, 38 [“appellants forfeit this point by failing to present any legal
authority”].)

DISPOSITION
The order denying Van Otis Wilson’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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