Filed 5/4/21 P. v. Williams CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304345
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA099542)
v.
TIMOTHY THOMAS
WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Stephen A. Marcus, Judge. Affirmed.
Allen G. Weinberg, 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 Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
On August 6, 1996, a jury convicted defendant and
appellant Timothy Thomas Williams of first degree murder (Pen.
Code, § 187, subd. (a); count 1)1 with a robbery-murder special
circumstance finding (§ 190.2, subd. (a)(17)), robbery (§ 211;
count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), and
conspiracy to commit robbery (§ 182, subd. (a)(1); count 13). As to
counts 1 through 3, the jury also found principal firearm use
allegations to be true. (§ 12022, subd. (a)(1).) He was sentenced
to life without the possibility of parole plus 10 years four months.
On direct appeal, we modified defendant’s sentence to strike a
four-month principal armed enhancement attached to count 3
and affirmed the judgment as modified. (People v. Key (Aug. 5,
1998, B105415) [nonpub. opn.], at pp. 4, 31 (Key).) The abstract
of judgment was amended to reflect defendant’s new sentence.
On March 18, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Over the People’s
opposition, the trial court found that defendant had established a
prima facie case and held an evidentiary hearing pursuant to
section 1170.95, subdivision (d). Following the presentation of
evidence and argument, the trial court denied defendant’s
petition, finding that (1) he was a direct aider and abettor who
had the intent to kill, and (2) he was a major participant in the
crimes who acted with reckless indifference to human life.
Defendant timely appealed. On appeal, he argues that the
trial court’s order denying his section 1170.95 petition must be
reversed because (1) the trial court failed to apply the correct
legal standard requiring that the prosecutor prove beyond a
reasonable doubt the elements of murder under the current law;
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
and (2) there is insufficient evidence that he either aided and
abetted with intent to kill or was a major participant who acted
with reckless indifference to human life. We are not convinced by
defendant’s arguments. Accordingly, we affirm the trial court’s
order.
FACTUAL BACKGROUND
“On the morning of July 20, 1994, [Sonja] Key, [defendant],
[Zoelee] Isaac, and one other man entered Home Bank. They
were all armed.[2] Key was wearing a wig. [Defendant], dressed
in what appeared to be a brown United Parcel Service uniform,
approached the bank guard Juan Corona. An argument and
struggle for Corona’s gun ensued. Key walked over to the two
men. She began to struggle with Corona. She said, ‘Get him off
me or I’ll pop him.’ Key shot Corona in the neck, and he
subsequently bled to death. Key ordered everyone in the bank to
the floor. Isaac and the fourth robber brandished their weapons
and demanded money. They demanded that teller Jumpee Sue
Martinez and corporate officer Roy Foster give them money from
the teller drawers. They did so. The robbers took $2,869 in all
from unlocked teller stations and then fled in a stolen hot-wired
van. They abandoned the van and were driven off in a Pontiac.
The van contained wigs and a bucket of soapy water.” (Key,
supra, B105415, at p. 6.)
Approximately two weeks later, defendant, Isaac, and
codefendant Tianay Robinson (Robinson) “were apprehended in a
stolen hot-wired van within 200 feet of a Wells Fargo Bank.”
2 At the hearing on defendant’s section 1170.95 petition, the
parties agreed that the People had conceded at trial that
defendant was one of the first robbers to enter the bank and no
witness ever stated that he was armed.
3
(Key, supra, B105415, at p. 7.) Two other codefendants and Key
were apprehended in a red Pontiac. “Police, who had been
watching defendants’ activities, concluded that they were about
to rob the bank.” (Ibid.) Three of the coconspirators were
wearing wigs, and four “were all wearing heavy makeup. The
police found loaded guns, a laundry basket with plastic trash bag
liners filled with water, wigs, a pillowcase, and a police scanner
and manual in the vehicles. They also found incriminating
evidence in Key’s apartment, from which” most (if not all) of the
coconspirators had exited just prior to driving to the Wells Fargo
Bank. (Ibid.)
PROCEDURAL BACKGROUND
I. Defendant’s section 1170.95 petition
On March 18, 2019, defendant filed a petition for
resentencing and requested that counsel be appointed to
represent him during the resentencing process. The trial court
appointed counsel and requested briefing on the petition.
II. The People’s opposition
On July 19, 2019, the People filed an opposition to
defendant’s petition. The People argued, inter alia, that
defendant was not entitled to relief because both the jury at trial
and the Court of Appeal on direct appeal found that he was a
major participant who acted with reckless indifference to human
life.
According to the People, they were “tasked with proving
beyond a reasonable doubt that the defendant could have been
convicted under a theory of homicide still viable under SB 1437.”
And, they met their burden of demonstrating that defendant was
ineligible for resentencing “beyond a reasonable doubt.” In
support, they pointed out that defendant played a key role in the
4
sophisticated plan to rob the bank. He was dressed in a brown
uniform and immediately attempted to take the security guard’s
gun. He and the “robbery crew” then “took the bank’s money and
fled in a stolen van which contained water to mitigate the powder
packets that may have been triggered.” After they fled the scene,
they switched cars.
The People also asserted that defendant had to have been
aware of the particular danger of his crime given that his role
was to take the security guard by surprise and then take his gun.
And, defendant was in a position to facilitate or prevent the
murder. He was present at the scene of the crime; Key told him
that she was going to kill Corona if someone did not get him off of
her; and he did not intervene or render aid to the dying man.
Attached to the opposition, the People provided the trial
court with a copy of Key, a copy of the jury verdict, and a copy of
the jury instructions given at defendant’s trial.
III. Defendant’s response
Through counsel, defendant responded to the People’s
opposition. Among other things, counsel argued that the People
did not meet their burden to prove beyond a reasonable doubt
that defendant could be convicted today on a theory of accomplice
liability. Specifically, when urging the trial court not to consider
Key, defense counsel asserted that “the appellate court applied a
highly deferential standard and was required to uphold the guilty
verdict if possible—which is a completely different standard than
this Court must apply when deciding whether to issue an OSC
here. Following a guilty verdict, an appellate court reviewing the
conviction must view the record in the light most favorable to the
judgment. The reviewing court does not determine ‘whether it
believes that the evidence at trial establishes guilt beyond a
5
reasonable doubt,’” which “is the opposite of what the Court now
is bound to use in determining whether to issue an OSC.” Citing
subdivision (d)(3) of section 1170.95, defense counsel concluded
that the People bore “the ultimate burden” of proving defendant
ineligible for resentencing “‘beyond a reasonable doubt.’”
Counsel went on to argue why the People had not met their
burden and why the evidence did not support a finding that he
was a major participant who acted with reckless indifference to
human life. He did not offer any additional evidence in support
of his petition.
IV. Hearing on defendant’s petition and trial court order
On January 15, 2020, the trial court determined that
defendant had set forth a prima facie case for relief because the
People had prosecuted him on a felony murder theory. It then
proceeded into a hearing on the petition, pursuant to section
1170.95, subdivision (d).
The parties submitted on their briefs and whatever
materials had been submitted by the parties to the trial court.
Defendant declined an opportunity to testify, no new evidence
was presented, and there was no discussion of the burden of
proof.
After entertaining oral argument, the trial court denied
defendant’s section 1170.95 petition. It stated: “[B]ased on his
conduct during the Home Bank robbery he was a direct aider and
abettor of the robbery who had the intent to kill. [Defendant]
entered the bank in disguise, an afro wig, brownish uniform . . . ,
and the express purpose was to rob the bank. [¶] [Defendant]
struggled with the security guard, Corona, and attempted to
obtain his gun. Co-defendant Key joined in the struggle with
Corona and announced, ‘get him off me or I will pop him.’ She
6
then drew a semiautomatic handgun from under her sweater and
shot Corona. [¶] [Defendant] was part of a sophisticated ring of
robbers who went around robbing banks and many of the
participants in the robbery were armed. . . . [¶] [Defendant]
exhibited intent to kill by engaging in this violent robbery, by
taking on the armed security guard, and by helping Ms. Key, who
eventually shot the security guard.” The trial court added: “You
can also infer these are not amateurs or beginners. I indicated
that [defendant’s] actions trying to take the gun from Corona
facilitated the murder. I guess that goes to the aiding and
abetting.”
Regarding whether defendant acted as a major participant
with reckless disregard for human life, the trial court found:
“[Defendant] is clearly, based on the facts of this case, a major
participant who acted with reckless indifference to life. The
reason that he’s a major participant—these come under all the
case laws of [(People v. Clark (2016) 63 Cal.4th 522, 611 (Clark)],
[In re Bennett (2018) 26 Cal.App.5th 1002], [People v. Banks
(2015) 61 Cal.4th 788 (Banks)], that whole line of cases—he was
present during the bank robbery and was within a few feet next
to the victim when he was shot. This is not [a] Banks situation as
petitioner was not a getaway driver or some distance from the
actual murder.
“Petitioner was part of this well orchestrated and planned
robbery. The bank robbers were armed. The reason I say it’s
‘orchestrated’ is, they had a second getaway car, they had water
to deal with the dye, they exchanged the getaway cars, they were
disguised with wigs, they had soapy water. They had carried out
robberies with a number of people and each played a specific role.
7
“While it is true that this is the first of a series of robberies
that they were involved in, the fact remains that there is some
relationship back to this original robbery, because you can see the
techniques that were used in the subsequent robberies, and they
seem to be all the same.
“This was not a spontaneous robbery; this was a planned
robbery. As I just said, the fact that they committed similar
robberies after the Home Bank robbery confirms the level of
planning by [defendant] and Isaac.[3]
“They had a getaway car. We already said that. They stole
the van six days earlier so the van could not be traced. This is all
evidence of planning. Both [defendant and Isaac], but specifically
[defendant], since we only have [defendant], did nothing to
prevent the shooting nor did he help the victim after he was shot.
[¶] . . . [¶]
“Both defendants acted in reckless indifference to human
life. They both seemed to have some kind of role in the planning
because it was sort of a—it’s almost like a football play where
everybody has to move in unison, all these people who did the
robbery, they had their roles, and they had to fulfill their
respective roles.
“You’re indicating to me he didn’t have a weapon, but the
other defendants did have lethal weapons. Defendant had to
have an awareness of the danger of robbing a bank during
working hours with an armed guard. This is shown
circumstantially by the number of robbers, the fact that they
3 Isaac also filed a petition for resentencing at around the
same time. His petition was adjudicated and denied separately.
His appeal is pending.
8
were armed.” To explain the way it was looking at the fact
pattern, the trial court cited Fernandez v. State (Fla. 1999) 730
So.2d 277 (Fernandez).
The trial court then added: “I also take into—and give a lot
of weight to the fact that when Ms. Key made her announcement
to everybody in the bank, specifically to her co-defendants, that ‘if
this person doesn’t get off me I’m going to pop him,’ and that
there was a struggle going on, that [defendant] did nothing to
minimize or save or help the guard, and that is a major factor for
the court. In my opinion it shows reckless indifference to human
life.
“As you know, the standard is the defendant’s
. . . awareness that his participation in the felony involved a
grave risk of death, and also whether a reasonable person, sort of
an objective standard, would have reached the same conclusion.
“I am denying the petition.”
DISCUSSION
I. Relevant law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973.)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition and then satisfy
two prima facie tests to demonstrate that he potentially qualifies
for relief, thereby meriting an evidentiary hearing. (§ 1170.95,
subd. (c).)
9
At the evidentiary hearing, the parties may rely upon
evidence in the record of conviction or new evidence to
demonstrate whether the petitioner is eligible for resentencing.
(§ 1170.95, subd. (d)(3).) The prosecution bears the burden of
proving, “beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) If the
prosecution cannot meet its burden, and the petitioner prevails,
he is entitled to vacatur of the murder conviction and
resentencing as set forth in section 1170.95, subdivision (e).
II. The trial court properly denied defendant’s petition for
resentencing
The trial court properly denied defendant’s petition for
resentencing because at the evidentiary hearing, the trial court
acted as an independent factfinder and determined, beyond a
reasonable doubt, that defendant is guilty of murder under
current law.4 And, the trial court’s findings that defendant acted
either as a direct aider and abettor with intent or a major
participant with reckless indifference to human life are supported
by substantial evidence.
A. The trial court applied the correct legal standard
Urging us to reverse, defendant argues that the trial court
failed to employ the correct legal standard requiring the
4 In the respondent’s brief, the People argue that we should
affirm the trial court’s order because he was not entitled to an
evidentiary hearing in the first place; according to the People,
defendant was ineligible for section 1170.95 relief as a matter of
law. We need not decide this issue. As set forth below, the
People proved “beyond a reasonable doubt” that defendant was a
direct aider and abettor and a major participant in the crime who
acted with reckless indifference to human life.
10
prosecution to prove beyond a reasonable doubt the elements of
first or second degree murder under current law.
1. The law
There is currently a split of authority as to whether a trial
court may deny a section 1170.95 petition only if it finds the
prosecution has proven, beyond a reasonable doubt, that the
petitioner is guilty of murder under a still-valid theory.
(Compare People v. Duke (2020) 55 Cal.App.5th 113, 123 (Duke),
review granted Jan. 13, 2021, S265309 [holding that the
prosecution need only prove “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 [under
current law]. This is essentially identical to the standard of
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]”] with People v. Lopez (2020) 56
Cal.App.5th 936, 942 (Lopez), review granted Feb. 10, 2021,
S265974 [holding that the plain language of section 1170.95
requires “the prosecutor to prove beyond a reasonable doubt each
element of first or second degree murder under current law in
order to establish ineligibility”]; People v. Rodriguez (2020) 58
Cal.App.5th 227 (Rodriguez), review granted Mar. 10, 2021,
S266652 [reaching same result albeit for a different reason];
People v. Clements (2021) 60 Cal.App.5th 597, 617–618; People v.
Duchine (2021) 60 Cal.App.5th 798, 813–814; People v. Harris
(2021) 60 Cal.App.5th 939, 952; and People v. Hernandez (2021)
60 Cal.App.5th 94, 103.)
11
We find the reasoning in Lopez, Rodriguez, and like cases
persuasive and agree with their conclusion that a trial court must
act as an independent factfinder and determine whether the
prosecution has established beyond a reasonable doubt that the
petitioner is guilty of murder under the law as of January 1,
2019. (See also People v. Gentile (2020) 10 Cal.5th 830, 855
[“section 1170.95 requires the superior court to determine on an
individualized basis, after considering any new or additional
evidence offered by the parties, whether the defendant is entitled
to relief”].)
2. Analysis
Here, the trial court did just that.
Before it held the evidentiary hearing, the People filed an
opposition to defendant’s petition for resentencing,
acknowledging its burden to prove defendant’s ineligibility
“beyond a reasonable doubt.” Defendant’s response reinforced
this standard.
After reviewing these briefs and listening to oral argument,
the trial court found that “based on [defendant’s] conduct during
the Home Bank robbery [defendant] was a direct aider and
abettor of the robbery who had the intent to kill.” Moreover, after
summarizing the facts of the crime, the trial court added that
defendant “exhibited intent to kill by engaging in this violent
robbery, by taking on the armed security guard, and by helping
Ms. Key, who eventually shot the security guard.” The trial court
continued: Defendant “is clearly, based on the facts of this case, a
major participant who acted with reckless indifference to
[human] life [because] he was present during the bank robbery
and was within a few feet next to the victim when he was shot,”
as opposed to acting as a mere getaway driver or in some other
12
minor role. The trial court’s detailed statements of what occurred
indicate that it acted as an independent factfinder.
Defendant complains that the trial court and parties did
not use the phrase “beyond a reasonable doubt” during the
section 1170.95, subdivision (d)(3), hearing. But, as set forth
above, the parties in their briefs filed with the trial court
repeatedly noted that if defendant had set forth a prima facie
case for relief and the matter proceeded to a hearing, the
prosecution had the burden of proving his ineligibility beyond a
reasonable doubt.
In light of these arguments, and the trial court’s comment
that it had “read the materials presented by both sides,” we
disagree with defendant’s assertion that the trial court employed
the incorrect standard of proof.
On appeal, defendant acknowledges that in his response,
defense counsel mentioned the beyond a reasonable doubt
standard, but asserts that the “primary focus” of the response
was to convince the trial court that defendant had set forth a
prima facie case for relief. Not so. As summarized above, defense
counsel asserted that a prima facie case had been established,
and repeatedly argued that the prosecution had to prove
ineligibility beyond a reasonable doubt. Moreover, defense
counsel never suggested that a standard of proof other than
beyond a reasonable doubt applied.
Defendant also asserts that the law regarding the
prosecution’s burden of proof at a section 1170.95, subdivision
(d)(3), hearing was and still is unsettled, and thus it cannot be
presumed that the trial court followed the law. In so arguing,
defendant notes that the trial court commented that it thought
and believed that defendant was a major participant who acted
13
with reckless indifference, not that it so found beyond a
reasonable doubt, as required by Lopez, supra, 56 Cal.App.5th
936 and section 1170.95, subdivision (d)(3). We are not
convinced. Defendant has not demonstrated that the trial court
misunderstood the law, and it is well-established that we
presume that the trial court was aware of and followed the
applicable law. (People v. Coddington (2000) 23 Cal.4th 529,
644–645, overruled in part on other grounds in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069 and superseded by statute on
other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096,
1107, fn. 4; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573
[“Perhaps the most fundamental rule of appellate law is that the
judgment challenged on appeal is presumed correct”]; Evid. Code,
§ 664.) Although Duke, Lopez, Rodriguez, and its progeny had
not yet been issued at the time of the hearing, the trial court’s
ruling indicates that it properly applied the language of section
1170.95, subdivision (d)(3).
Defendant further contends that the trial court must have
applied some standard other than beyond a reasonable doubt
because it discussed a Florida case, Fernandez, supra, 730 So.2d
277. But, the trial court’s reference to Fernandez does not show
that it was applying some standard other than proof beyond a
reasonable doubt. Rather, the trial court referred to the facts in
Fernandez to explain its ruling in this case regarding the
elements of a major participant in a felony murder who acted
with reckless indifference to life.
Finally, the trial court conducted a detailed analysis using
the factors set forth in Banks, supra, 61 Cal.4th 788 to determine
whether defendant was a major participant in the murder and
whether he acted with reckless indifference to life. Given the
14
trial court’s reasoning, the parties’ repeated reference to the
beyond a reasonable doubt standard in their briefs, section
1170.95, subdivision (d)(3)’s language expressly including that
standard, and the presumption that courts know and apply the
law, the trial court here properly applied the law when it denied
defendant’s petition for resentencing.5
B. The trial court’s finding that defendant was a major
participant who acted with reckless indifference to life is
supported by sufficient evidence
Defendant asserts that there is insufficient evidence to
show that he was a major participant who acted with reckless
indifference to life. We reject this claim. There is substantial
evidence that defendant was a major participant in the
underlying robbery and acted with reckless indifference to
human life. (Lopez, supra, 56 Cal.App.5th at pp. 953–954 [even if
the independent factfinder standard applies at the evidentiary
hearing, the standard of review on appeal is that of substantial
evidence].)
1. Relevant law
The special circumstance statute (§ 190.2) contains an
actus reus and a mens rea requirement. (Banks, supra, 61
Cal.4th at p. 798.) With respect to the required conduct, the
defendant must have substantial personal involvement, “greater
than the actions of an ordinary aider and abettor to an ordinary
felony murder.” (Id. at p. 802.) Relevant factors that may be
weighed in determining whether an aider and abettor defendant
5 In light of this conclusion, we need not address defendant’s
contentions that the trial court’s alleged error was structural,
requiring reversal per se, or prejudicial.
15
is a major participant include (1) the role the defendant had in
planning the criminal enterprise that led to the death; (2) the role
the defendant had in supplying or using lethal weapons; (3) the
defendant’s awareness of particular dangers posed by the nature
of the crime, weapons used or past experience or conduct of the
other participants; (4) whether the defendant was present at the
scene of the killing, in a position to facilitate or prevent the
actual murder and whether his or her actions or inactions played
a role in the death; and (5) what the defendant did after lethal
force was used. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra,
61 Cal.4th at p. 803 [no one factor is necessary or
determinative].)
With respect to mens rea, Clark expounded upon the
meaning of “reckless disregard for human life,” and set forth a
similar nonexclusive list of factors to be used in making this
determination, including: (1) the defendant’s knowledge of
weapons used in the crime; (2) how those weapons were used;
(3) the number of weapons used; (4) the defendant’s proximity to
the crime; (5) her opportunity to stop the killing or aid the
victim[s]; (6) the duration of the crime; (7) the defendant’s
knowledge of the killer’s propensity to kill; and (8) the
defendant’s efforts, if any, to minimize the possibility of violence
during the crime. (Clark, supra, 63 Cal.4th at pp. 616–623; see
also In re Scoggins (2020) 9 Cal.5th 667, 676–677 [“[r]eckless
indifference ‘encompasses a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant
does not specifically desire that death as the outcome of his
actions’”].)
16
2. Analysis
Here, as the trial court concluded,6 the evidence establishes
that defendant was a major participant in the crimes,7 and he
acted with reckless indifference to human life. The trial court
found that defendant was part of a “well[-]orchestrated and
planned robbery,” noting the following facts: (1) several of the
robbers were armed; (2) they used a stolen van as the initial
getaway car, which they abandoned and exchanged for a second
getaway car; (3) the robbers, including defendant, used disguises;
(4) the van had been stolen six days prior to the robbery, and
when it was abandoned, it contained wigs and soapy water
typically used by robbers to deal with dye-packs that banks put
in stacks of cash; and (5) each robber played a specific role, with
defendant trying to disarm the security guard.8 (See Key, supra,
B105415, at p. 6.)
Furthermore, less than two weeks after the Home Bank
robbery, defendant was arrested in a hot-wired van within 200
feet of a Wells Fargo Bank with codefendants Robinson and
6 Notably, in reaching this conclusion, the trial court did not
rely upon the misstatement in Key that defendant was armed.
7 Defendant “does not dispute that he was an active
participant.”
8 Defendant concedes that his role was to disarm the
security guard. He claims that he intended to do so without
“resorting to extreme violence and without the use of a gun.”
There is no evidence that this was his intent, and we cannot
reweigh the evidence to support defendant’s contention. (People
v. Nguyen (2015) 61 Cal.4th 1015, 1055–1056.) Furthermore, the
evidence amply supports the trial court’s implicit finding that he
knew that violence could occur.
17
Isaac, and three other codefendants, including Key, were arrested
in a second vehicle. Several codefendants wore wigs and heavy
makeup, and the vehicles contained guns, water, wigs, and a
police scanner. (Key, supra, B105415, at p. 7.) That defendant
was involved in a thwarted second bank robbery using many of
same techniques as the Home Bank robbery supports the
inference that defendant knew of and had a role in planning both
robberies.
The evidence also supported the inferences that defendant
knew that Corona was armed and knew that at least two of his
fellow robbers were armed; thus, as the trial court found,
defendant had to have been aware of “the danger of robbing a
bank during working hours with an armed guard.” From this
evidence, a factfinder could reasonably infer defendant’s
willingness to participate in a killing in order to successfully rob
the bank, even if he did not specifically want someone to die
during the course of the armed robbery. (In re Scoggins, supra, 9
Cal.5th at pp. 676–677.)
Moreover, defendant was present at the scene of the killing.
He was in a position to facilitate or prevent the actual murder of
Corona. In fact, as the trial court found, he initiated the
encounter with Corona, which led to his death, by approaching
him and struggling with Corona over Corona’s gun. Key
approached defendant and Corona as they struggled, and Corona
tried to grab something from Key. Key yelled, “‘Get him off me or
I’ll pop him.’” (Key, supra, B105415, at p. 6.) Defendant could
have stopped struggling with Corona, or he could have stopped
Key from shooting Corona. He did neither.
After Key shot Corona, defendant helped take the money.
(Key, supra, B105415, at p. 6.) He did not assist Corona or call
18
911. (See Clark, supra, 63 Cal.4th at p. 619 [noting that a
defendant present at the scene has the opportunity to assist the
victim]; People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385–
1386, affirmed in People v. Gonzalez (2018) 5 Cal.5th 186; People
v. Proby (1998) 60 Cal.App.4th 922, 929 [defendant saw wounded
victim but did not attempt to assist him or determine whether he
was still alive and then took money from a safe]; compare In re
Scoggins, supra, 9 Cal.5th at p. 678 [the defendant was not
physically present at the crime scene and not in a position to
intervene].)
Taken together, all of this evidence supports the trial
court’s finding that defendant was a major participant who acted
with reckless indifference to life. (Clark, supra, 63 Cal.4th at
pp. 616–623; compare In re Taylor (2019) 34 Cal.App.5th 543,
557–558 [insufficient evidence that the defendant acted with
reckless indifference to human life when he did not have a gun,
he did not supply the shooter with a weapon, it was inconclusive
whether he even knew the shooter had a gun, there was no
evidence that he planned an armed robbery, and there was no
evidence that the robbery was going to become violent].)
Notably, in Key, we rejected Isaac’s claim that there was
insufficient evidence of reckless indifference to life: “Here, the
evidence showed that all of the Home Bank robbers were armed,
not just the shooter. Key announced that she was going to shoot
Corona unless someone ‘got him off her.’ Isaac did nothing to
prevent the shooting. After the shooting, the guard lay on the
floor bleeding to death while the robbers gathered up cash before
departing the bank. Isaac did nothing to come to his aid.” (Key,
supra, B105415, at p. 24.) Defendant joined in this claim, which
we rejected for the same reasons. (Id. at p. 30.)
19
Based on the foregoing, substantial evidence supports the
trial court’s finding that defendant was a major participant who
acted with reckless indifference to life. (Clark, supra, 63 Cal.4th
at p. 611; Banks, supra, 61 Cal.4th at p. 803.)
Defendant asserts that his codefendants’ use of guns, his
failure to prevent the shooting, and his failure to render aid did
not elevate the risk to human life beyond that inherent in a
garden-variety armed robbery. This argument amounts to
nothing more than an impermissible attempt to relitigate the
facts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Because a
rational trier of fact could find beyond a reasonable doubt that
defendant could be convicted as a major participant to the
robbery who acted with reckless indifference to human life, there
is no basis to reverse.
C. Sufficient evidence supports the trial court’s finding
that defendant was an aider and abettor who acted with intent to
kill
Alternatively, defendant argues that insufficient evidence
supports the trial court’s finding that he aided and abetted with
intent to kill.9 Again, we reject this argument because the trial
9 Defendant points out the fact that this theory was not
presented to the jury or argued by the People in opposition to
defendant’s petition. Based upon the appellate record provided to
us, we do not know what was argued to the jury, but we do know
that the jury was instructed on aiding and abetting. In any
event, defendant offers no argument as to why this fact compels
reversal. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012,
1050 [it is the duty of the appellant, not the courts, “‘by argument
and the citation of authorities to show that the claimed error
exists.’ [Citation.]”)
20
court’s finding is supported by substantial evidence. (Lopez,
supra, 56 Cal.App.5th at pp. 953–954.)
1. Relevant law
Guilt as a direct aider and abettor requires: (1) knowledge
of the direct perpetrator’s intent to commit the crime; (2) intent
to assist in committing the crime; and (3) conduct that in fact
assists in committing the crime. (People v. Perez (2005) 35
Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th 1111,
1117.) The defendant must not only know the direct
perpetrator’s intent, he must share that intent. (People v.
Beeman (1984) 35 Cal.3d 547, 560; People v. McCoy, supra, at
p. 1118.)
Senate Bill No. 1437 “did not . . . alter the law regarding
the criminal liability of direct aiders and abettors of murder
because such persons necessarily ‘know and share the murderous
intent of the actual perpetrator.’ [Citations.]” (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted
Mar. 18, 2020, S260598.) “One who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (Ibid.)
Intent to kill for purposes of murder, also known as express
malice, is shown when the assailant either desires the death or
knows to a substantial certainty that death will occur. (§ 188,
subd. (a)(1); People v. Smith (2005) 37 Cal.4th 733, 739 (Smith);
In re M.S. (2019) 32 Cal.App.5th 1177, 1185.) Evidence of
motive, although not required to establish intent to kill, is often
probative of intent to kill. (Smith, supra, 37 Cal.4th at pp. 740–
741.) Intent to kill may be inferred from the defendant’s acts and
the circumstances of the crime. (Ibid.)
21
The mental state required for implied malice murder—
which also suffices to deny a section 1170.95 petition under the
amended section 188 (see People v. Soto (2020) 51 Cal.App.5th
1043, 1057, review granted Sept. 23, 2020, S263939; People v.
Clements, supra, 60 Cal.App.5th at p. 612)—represents a lower
standard than intent to kill. (People v. Swain (1996) 12 Cal.4th
593, 602; People v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [“the
specific intent necessary for conviction of an aider and abettor in
a murder would not be the specific intent to kill, but the intent to
‘encourage and bring about conduct that is criminal’”].) Implied
malice murder requires knowledge that conduct endangers the
life of another and a conscious disregard for life. (People v. Chun
(2009) 45 Cal.4th 1172, 1181.)
Under the direct aiding and abetting theory, an aider and
abettor’s mental state must be at least that required of the direct
perpetrator. “‘To prove that a defendant is an accomplice . . . the
prosecution must show that the defendant acted “with knowledge
of the criminal purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating
commission of, the offense.” [Citation.]’” (People v. McCoy, supra,
25 Cal.4th at p. 1118.) It follows that to aid and abet an implied
malice murder, the direct aider and abettor must intentionally
commit, encourage, or facilitate life-endangering conduct with
knowledge of the perpetrator’s purpose and conscious disregard
for life. (Id. at p. 1118 & fn. 1.)
2. Analysis
Here, as detailed more fully above, the evidence showed
that during the Home Bank robbery, defendant and codefendant
Key struggled with Corona, and Key yelled out to get Corona off
of her, or she would “‘pop’” him. (Key, supra, B105415, at p. 6.)
22
Viewing the evidence in the light most favorable to the judgment,
there was substantial evidence from which the trial court could
conclude that defendant acted with intent to kill as a direct aider
and abettor. Reasonable inferences could be drawn that Key
intended to not just shoot, but kill Corona, and that defendant
knew that she intended to do so. Therefore, the trial court’s
finding that defendant was ineligible for resentencing because he
had the intent to kill was proper.
These same reasons support a finding that defendant acted
with implied malice. That is, the facts detailed above constitute
substantial evidence from which a trier of fact could reasonably
infer that defendant knew that his conduct and the conduct of
Key in struggling with Corona, an armed security guard at a
bank during a robbery of that bank, was life-endangering; that
defendant engaged in that life-endangering conduct; and that
defendant acted in conscious disregard of Corona’s life. Thus, the
trial court’s finding that defendant was ineligible for
resentencing was also supported by substantial evidence that he
acted with implied malice.
23
DISPOSITION
The trial court’s order denying defendant’s section 1170.95
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
24