People v. Harris CA2/7

Filed 5/13/21 P. v. Harris CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B300984

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A625636)
v.

WILLIE HARRIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Patricia J. Ulibarri, 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, Senior
Assistant Attorney General, Charles S. Lee and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
 INTRODUCTION

Willie Harris appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1170.95.1 He contends that the court erred in failing to issue an
order to show cause under section 1170.95, subdivision (c), that
his counsel’s failure to request one constituted ineffective
assistance, and that substantial evidence did not support the
superior court’s finding he was ineligible for relief. We conclude
the court’s error in not issuing an order to show cause under
section 1170.95, subdivision (c), was harmless because the court
nevertheless held an evidentiary hearing, as prescribed by
section 1170.95, subdivision (d), where it found beyond a
reasonable doubt Harris was ineligible for relief. Consequently,
Harris has not demonstrated the requisite prejudice for an
ineffective assistance of counsel claim. We also conclude
substantial evidence supported the superior court’s finding
Harris was ineligible for relief because he was a major
participant who acted with reckless indifference to human life.
Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Harris of First Degree Murder
In 1983 a jury convicted Harris and a codefendant, Jean
Pierre Thomas, of first degree murder in connection with the
(uncharged) robbery and shooting death of Basil Calvert. The
jury found Harris was a principal in the offense and was armed
with a firearm within the meaning of section 12022,
subdivision (a). At sentencing the trial court observed as a

1 Statutory references are to the Penal Code.

2
mitigating factor that Harris “was not the trigger man,” then
sentenced him to a prison term of 25 years to life on the murder
conviction, plus one year for the firearm enhancement.

B. Harris Appeals, and We Affirm
In People v. Harris (1985) 175 Cal.App.3d 944 (Harris I) we
affirmed Harris’s conviction and sentence. In our opinion we
described the facts of the shooting: “On the evening of April 6,
1983, Ms. Mary Jackson was driving . . . eastbound toward her
home at approximately 744 Colden when she heard two shots.
She proceeded in the same direction and within a minute saw two
men running westbound and therefore facing her. These two
men were the defendants, both of whom she had seen before. She
had seen ‘Boo,’ defendant Harris, around the neighborhood too
many times to count. She knew defendant Thomas as ‘Powerful
Pierre’ and had seen him on prior occasions also.” (Id. at
pp. 947-948.)
“Ms. Jackson had also known Basil Calvert, known as Deaf
John, for approximately six months. He was deaf, but he could
speak and read lips. Just after the shooting, she saw him
stepping away from an apartment building and out into the
street. He was staggering and fell face down. When Ms. Jackson
got to the victim, he appeared to be alive, but he closed his eyes
and died. Both his eyeglasses and his hearing aid were missing.”
(Harris I, supra, 175 Cal.App.3d at p. 948.)
“When Ms. Jackson had first seen the defendants, they
were two yards from the victim’s position, already in full stride
running. Defendant Harris had a gun. Three or four men
standing in the area next to a building did not run away.”
(Harris I, supra, 175 Cal.App.3d at p. 948.)
“Earlier that evening between 7:30 and 8 p.m. 19-year-old
Lawrence Bradley had seen defendant Harris, who had said that

3
he was ‘going to do a jack.’ That meant that he was going to rob
people. At about 8 p.m., defendant Thomas came to Delitha
Crain’s house looking for defendant Harris, who was Ms. Crain’s
boyfriend.” (Harris I, supra, 175 Cal.App.3d at p. 948.)
“Later that night Mr. Bradley saw defendant Harris with
someone else on Colden, a great distance away. As Mr. Bradley
was walking down the street, defendant Harris asked whether he
knew a ‘deaf man.’ The deaf man was coming up some stairs as
Mr. Bradley walked past him. Defendant Harris then ‘socked’
the man, whose glasses flew off, and he fell. The deaf man tried
to say something when Mr. Bradley heard two shots and saw
defendant Harris shoot the victim. Mr. Bradley ran, and then the
police arrived. Mr. Bradley did not see the man with defendant
Harris do anything.” (Harris I, supra, 175 Cal.App.3d at p. 948.)
“At the time of trial Robert Stringer, also known as
‘Monster,’ refused to answer most of the questions put to him.
Thereafter Mr. Stringer was impeached with a prior statement
made to Detective Eide on April 27, 1983, in which he indicated
that he had known Boo for about 10 years; that on the night Deaf
John was killed Mr. Stringer was visiting a girlfriend on Colden
and defendant Harris arrived there at 7 o’clock; that he observed
Deaf John by the front of the parking lot when defendant Harris
went up to him and they started talking in sign language; that he
saw Deaf John hand defendant Harris some money; and that
defendant Harris stepped back a couple of steps and shot the
victim.” (Harris I, supra, 175 Cal.App.3d at pp. 948-949.)
“Robert Stringer further stated to the detective that the next day
defendant Harris came by the house and said that he had shot
the victim; that Mr. Stringer told him it was stupid because there
were so many people who saw it; and that defendant Harris
indicated that he did not care as long as ‘nobody snitched.’

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Mr. Stringer also commented that defendant Harris had a
.25 caliber automatic for a year.” (Id. at p. 949.)
“On April 28, 1983, Detective Eide had a conversation with
Robert Stringer at his house, at which time he stated that he saw
the victim in front of 744 West Colden and saw both defendants
go up to him; that the victim talked in sign language and gave
defendant Thomas some money; that at this point defendant
Harris ‘socked Deaf John’ and the victim staggered back; that
defendant Thomas shot the victim twice with what sounded like a
.25 caliber gun; and that both defendants had guns.” (Harris I,
supra, 175 Cal.App.3d at p. 950.) “Mr. Stringer further stated he
knew that both defendants were with the 107th Hoover Crips, a
local gang, and that is why he lied about what he saw. He was
afraid to testify. He did not want their friends coming around
after him and his family. He said that he was telling the truth
because his brothers and family had told him to tell the truth and
not to be afraid. In subsequent conversations Mr. Stringer told
the detective that he was afraid to testify because defendants
would shoot up his mother’s house if he did.” (Ibid.)
“Sometime after the shooting, Delitha Crain returned to
her house. Both defendants approached her, and she said that a
man got killed on Colden. Defendant Harris said to defendant
Thomas, ‘“A man got killed on Colden. A man got killed.”’
Defendant Thomas said, ‘“So,”’ and laughed. She said, ‘“That
ain’t funny. You wouldn’t be laughing if you go to jail.”’ Then
defendant Harris told her that defendant Thomas shot the
victim.” (Harris I, supra, 175 Cal.App.3d at p. 950.)
“After defendant Harris was taken into custody, he stated
to Detective Monica Rhodes of the Los Angeles Police that he
knew who had shot the victim and would make a telephone call to
prove it. Thereafter Detective Rhodes and Detective Eide
overheard and tape-recorded a conversation between defendant

5
Harris and defendant Thomas at which time defendant Harris
said, ‘“They got me down for that man. I talked to the detectives.
Hey, man, check this out. How many times you shoot that
nigger?”’ Defendant Thomas replied, ‘“I think once. I don’t know.
I don’t know. I ain’t talking on the phone.”’ Defendant Harris
then said, ‘“This guy named Pookie say you went and shot the
deaf man. He said I had a Roscoe and shot that man.”’
Defendant Thomas stated, ‘“You know you didn’t do it.”’ He
further stated that he would ‘try to get these niggers not to snitch
and take care of things on the street.’” (Harris I, supra,
175 Cal.App.3d at p. 950.)
“On April 27, Tommie Delores Harris, defendant Harris’
mother, had a conversation with defendant Thomas at her home.
She asked defendant Thomas whether he shot the deaf man, and
he said, ‘“Yes.”’” (Harris I, supra, 175 Cal.App.3d at p. 950.)

C. The Superior Court Denies Harris’s Petition Under
Section 1170.95
In January 2019 Harris filed a petition for resentencing
under section 1170.95, indicating that at trial he was convicted of
first degree murder under the felony murder rule and that he
could not now be convicted because of changes, effective
January 1, 2019, to sections 188 and 189. Finding Harris
“demonstrated a prima facie case that he qualifies for re-
sentencing” under section 1170.95, the superior court appointed
counsel.
The People filed two briefs opposing Harris’s petition, one
arguing section 1170.95 was unconstitutional (a contention the
People have abandoned), the other arguing Harris did not, in any
event, qualify for relief because, in particular, “he was a major
participant in the robbery [of Calvert] and acted with reckless
indifference to human life.” The latter brief, citing section

6
1170.95, subdivision (d), acknowledged that “the People must
prove [Harris’s] ineligibility beyond a reasonable doubt,” and to
establish Harris was a major participant who acted with reckless
indifference to human life, the People’s brief applied factors the
Supreme Court identified as relevant in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark). Three exhibits accompanied the brief: (1) this court’s
opinion in Harris I, supra, 175 Cal.App.3d 944, (2) Harris’s
opening brief in his direct appeal, and (3) the stipulated
testimony of Detective Rhodes and the reporter’s transcript of
Harris’s preliminary hearing in August 1983.
Harris, through counsel, filed two briefs in reply, one
addressing the statute’s constitutionality, the other arguing the
People had “not established proof beyond a reasonable doubt that
[Harris] acted with reckless disregard or indifference for life”
under Banks, Clark, and other cases. The People filed two more
briefs, again arguing that section 1170.95 was unconstitutional
and that Harris was factually ineligible for relief.
On May 1, 2019 the superior court held a hearing on the
petition, which the court continued several times, ultimately to
August 20, 2019. In the meantime, counsel for Harris filed three
exhibits in support of the petition: the transcript of Harris’s
sentencing hearing; excerpts from the trial testimony of Robert
Stringer, Detective Rhodes, and Detective Eide; and the trial
testimony of George Bolduc, a Deputy Medical Examiner in the
Los Angeles County Coroner’s Office, who testified about his
examination of Calvert’s body. Bolduc testified that, although he
found “scrapes” around Calvert’s eyes and nose that were
consistent with falling and hitting pavement, he found no signs
Calvert was punched in the face in the few minutes before he
died.

7
 The superior court began the August 20, 2019 hearing by
stating it was holding “an 1170.95 hearing” because Harris had
made a prima facie case he “was entitled to the hearing.” The
court stated: “It’s my understanding that, if the defendant makes
the prima facie case, that he’s entitled to a hearing, then the
burden then goes to the People to show the court that he is not
entitled to be resentenced under 1170.95.” The People agreed
and argued that, under the Banks and Clark factors, Harris was
a major participant in the crime who acted with reckless
indifference to human life. Counsel for Harris argued that “the
reckless indifference is what’s . . . most important in making the
decision whether or not, under the new law, Mr. Harris is guilty
beyond a reasonable doubt of murder.” And on that point, he
cited Bolduc’s testimony to argue that other witnesses might
have been mistaken in testifying they saw Harris punch Calvert
just before the shooting.
The superior court found Harris was a major participant
who acted with reckless indifference to human life, and on that
basis the court denied the petition. (The court found the
“constitutional issue,” therefore, was “moot.”) Harris timely
appealed.

DISCUSSION

A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4), effective January 1, 2019, eliminated the natural
and probable consequences doctrine as a basis for finding a
defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th
830, 842-843) and significantly limited the felony murder
exception to the malice requirement for murder. (See People v.

8
Rodriguez (2020) 58 Cal.App.5th 227, 236 (Rodriguez), review
granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.) Senate Bill No. 1437 also
authorized, through new section 1170.95, an individual convicted
of felony murder or murder under a natural and probable
consequences theory to petition the court to vacate the conviction
and request resentencing on any remaining counts if he or she
could not have been convicted of murder because of Senate Bill
No. 1437’s changes to the law. (See Gentile, at p. 843.)
If a petition under section 1170.95 contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause: “The court shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply . . . . If the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.”
We have explained that the superior court proceeds under
section 1170.95, subdivision (c) in two steps, “one made before
any briefing to determine whether the petitioner has made a
prima facie showing he or she falls within section 1170.95—that
is, that the petitioner may be eligible for relief—and a second
after briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to relief.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo),
review granted Mar. 18, 2020, S260493; accord, People v. Soto
(2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23, 2020,

9
S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975; but
see People v. Cooper (2020) 54 Cal.App.5th 106, 118 [section
1170.95, subdivision (c), has only one prima facie review before
the court issues an order to show cause], review granted Nov. 10,
2020, S264684.) If the court concludes the petitioner has failed to
make the initial prima facie showing, the court need not appoint
counsel. (Verdugo, at pp. 332-333; but see Cooper, at p. 123 [a
petitioner is entitled to counsel upon filing a facially sufficient
petition that requests counsel be appointed].)
If the court issues an order to show cause, it must hold a
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1170.95, subd. (d)(1); see Rodriguez, supra, 58 Cal.App.5th at
p. 237, review granted.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3); Rodriguez, at
p. 237.) The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence. (See Rodriguez, at
p. 237; People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899,
review granted Aug. 12, 2020, S263219; People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481.)
“The record of conviction includes the reviewing court’s opinion.”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review
granted Mar. 18, 2020, S260598.)

B. The Superior Court’s Error in Not Issuing an Order
To Show Cause Was Harmless
Harris contends that the superior court erred in not issuing
an order to show cause under section 1170.95, subdivision (c),
and that we must therefore remand with directions for the court
to do so. The People concede that the superior court erred in
failing to issue an order to show cause, but argue that the error

10
was harmless because the court held an evidentiary hearing as
prescribed by section 1170.95, subdivision (d), after which the
court denied the petition. We agree with the People the court’s
error was harmless.
The superior court did not comply in every respect with the
procedure prescribed by section 1170.95, subdivision (c). Having
determined Harris made a prima facie case he was “qualifie[d]”
for resentencing under section 1170.95, the court appointed
counsel for him, received briefing from the People and from
Harris, and held an evidentiary hearing, as contemplated by
section 1170.95, subdivision (d), where the court determined the
People proved beyond a reasonable doubt Harris was not eligible
for resentencing.2 Prior to holding that evidentiary hearing, the

2 Harris does not dispute the superior court applied the
beyond-a-reasonable-doubt standard of proof. In his reply brief,
however, he states “it is not at all clear” the court applied that
standard consistent with our decision in Rodriguez, supra,
58 Cal.App.5th 227, review granted (see id. at pp. 243-244 [“it is
the court’s responsibility to act as independent fact finder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189”]) and
points to what he describes as “a silent record” on the issue. To
the extent Harris is arguing the superior court did not apply the
standard of proof consistent with Rodriguez, the argument lacks
merit. First, we do not presume error where the record is silent.
(See People v. Torres (2020) 47 Cal.App.5th 984, 989.) Second,
the record indicates the court applied the standard correctly. The
court repeatedly stated it found Harris was a major participant
who acted with reckless indifference to human life and at no time
mentioned applying, for example, what we referred to (and
rejected) in Rodriguez as “essentially substantial evidence

11
court should have conducted the more nuanced, two-step prima
facie review described in Verdugo, supra, 44 Cal.App.5th 320,
review granted, and issued an order to show cause. Its failure to
do so was error.
We review such an error, however, for prejudice under the
standard of People v. Watson (1956) 46 Cal.2d 818, 836, according
to which a defendant “must demonstrate there is a reasonable
probability that in the absence of the error he or she would have
obtained a more favorable result.” (People v. Lightsey (2012)
54 Cal.4th 668, 699; see ibid. [“[t]ypically, a defendant who has
established error under state law” must meet this standard];
People v. Daniel (2020) 57 Cal.App.5th 666, 676, review granted
Feb. 24, 2021, S266336.)3 Harris has not shown the superior
court’s failure to conduct its prima facie review in two steps or its
failure to issue an order to show cause prejudiced him in any
way. The court found Harris made the prima facie case required
by section 1170.95, subdivision (c), and—after appointing counsel
and receiving briefing in compliance with subdivision (c)—held a
hearing on the petition that complied with subdivision (d), in
particular with its provisions that the prosecution and petitioner
may rely on new or additional evidence outside the record of

standard for appellate review.” (Rodriguez, at p. 238; see id. at
p. 240.)

3 Harris does not argue the superior court’s procedural errors
violated his federal constitutional rights (see People v. Nicolas
(2017) 8 Cal.App.5th 1165, 1179 [the “more stringent” test of
“harmless beyond a reasonable doubt,” under Chapman v.
California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705],
applies “in cases where federal constitutional errors are made”])
or were structural errors not subject to harmless-error analysis
(see People v. Lightsey, supra, 54 Cal.4th at p. 699).

12
conviction and that the prosecution has the burden of proving
beyond a reasonable doubt the petitioner is ineligible for relief.
Attempting to characterize the August 20, 2019 hearing as
the second step in the superior court’s prima facie review of his
petition, Harris argues the court engaged in factfinding that is
impermissible at that stage and deprived him of the opportunity
to introduce evidence he was not a major participant who acted
with reckless indifference to human life. But the record belies
Harris’s characterization of the hearing: The briefs of both
parties in advance of the hearing, the superior court’s comments
at the beginning of the hearing, and the nature of the argument
that followed show that everyone involved understood the court
had completed its prima facie review of the petition and was
proceeding to hold an evidentiary hearing at which the People
had the burden of proving beyond a reasonable doubt Harris was
ineligible for resentencing. Nor has Harris identified any
favorable evidence he was precluded from introducing. He cites
the trial testimony of Bolduc that examining Calvert’s body did
not reveal any indication Calvert was punched, but counsel for
Harris introduced and relied on that evidence at the hearing.
Harris analogizes this case to People v. Drayton, supra,
47 Cal.App.5th 965, but that case is readily distinguishable.
There, the court reversed an order summarily denying a section
1170.95 petition, concluding the superior court erred in finding
the petitioner did not make a prima facie case for relief, and
remanded with directions for the superior court to issue an order
to show cause and hold a hearing under section 1170.95,
subdivision (d). (Drayton, at pp. 968, 972, 981.) Unlike the
defendant in Drayton, Harris was not denied the evidentiary
hearing to which he was entitled under section 1170.95,
subdivision (d). For the same reason, Harris’s reliance on our
decision in People v. Harris (2021) 60 Cal.App.5th 939 (Harris),

13
review granted April 28, 2021, S267802, is equally unavailing.
(See id. at pp. 960-961 [reversing an order denying a petition
under section 1170.95 because an evidentiary hearing was
necessary to determine whether the petitioner was ineligible for
relief].)

C. Harris Has Not Demonstrated He Received Ineffective
Assistance of Counsel
Harris contends his appointed counsel’s failure to “demand”
the superior court issue an order to show cause under section
1170.95, subdivision (c), constituted ineffective assistance. To
establish ineffective assistance of counsel, “‘“a defendant must
show that (1) counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient performance was prejudicial, i.e., there
is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant.”’”
(People v. Rices (2017) 4 Cal.5th 49, 80.) “If a claim of ineffective
assistance of counsel can be determined on the ground of lack of
prejudice, a court need not decide whether counsel’s performance
was deficient.” (In re Crew (2011) 52 Cal.4th 126, 150; see
Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct.
2052, 80 L.Ed.2d 674] [“[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be
followed”].) As discussed, Harris has not shown he was
prejudiced in any way by the superior court’s failure to issue a
formal order to show cause, and thus he has not shown he was
prejudiced by his counsel’s failure to request one. Therefore, he

14
has not demonstrated he received ineffective assistance of
counsel.4

D. Substantial Evidence Supported the Superior Court’s
Finding That Harris Was Ineligible for Relief
Harris also contends substantial evidence did not support
the superior court’s finding he was ineligible for relief under

4 Whether a petitioner has a constitutional right to effective
assistance of counsel in section 1170.95 proceedings is unclear.
Section 1170.95 “is an act of lenity not subject to Sixth
Amendment analysis.” (People v. James (Apr. 27, 2021, A159207)
___ Cal.App.5th ___, ___ [2021 WL 1625015, p. 1]; see People v.
Perez (2020) 54 Cal.App.5th 896, 908, review granted Dec. 9,
2020, S265254; People v. Lopez (2019) 38 Cal.App.5th 1087,
1114-1115, review granted Nov. 13, 2019, S258175.) Once the
petitioner makes a prima facie showing under section 1170.95,
subdivision (c), he or she has a right to court-appointed counsel
(see Verdugo, supra, 44 Cal.App.5th at p. 332, review granted;
People v. Lewis, supra, 43 Cal.App.5th at p. 1140, review
granted), a statutory right that may also be grounded in due
process (see In re Clark (1993) 5 Cal.4th 750, 779-780 [habeas
corpus proceeding]; People v. Shipman (1965) 62 Cal.2d 226, 232
[coram nobis proceeding].) But as the court explained in People v.
Cole (2020) 52 Cal.App.5th 1023, review granted October 14,
2020, S264278, “having a constitutional right to the appointment
of counsel is not the same as having a constitutional right to the
effective assistance of that counsel,” and the “Supreme Court has
steadfastly held that ‘there is no constitutional right to the
effective assistance of counsel’ in state postconviction
proceedings.” (Id. at p. 1032.) Because Harris has not shown his
counsel provided ineffective assistance, we do not decide this
issue.

15
section 1170.95 because he was a major participant who acted
with reckless indifference to human life. His contention lacks
merit.

1. Applicable Law and Standard of Review
Senate Bill No. 1437 “amended the definition of felony
murder in section 189. Under the new law, an accomplice to the
underlying felony who was not the actual killer cannot be
convicted of felony murder unless he or she aided in the murder
with the intent to kill or [was] ‘a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.’” (People v.
Law (2020) 48 Cal.App.5th 811, 815, quoting § 189, subd. (e)(3),
review granted July 8, 2020, S262490.) The new law thus
incorporates “the same requirements for proving the defendant
acted with reckless indifference to human life as a major
participant in one of the identified serious felonies as necessary
for a felony-murder special-circumstance finding under section
190.2, subdivision (d).” (Harris, supra, 60 Cal.App.5th at p. 954,
review granted.) The Supreme Court in Banks, supra, 61 Cal.4th
788 and Clark, supra, 63 Cal.4th 522 clarified “[t]he factors
properly considered in assessing such a felony-murder special-
circumstance finding.” (Harris, at p. 954.)
“In Banks the Supreme Court identified factors courts
should consider in determining whether a defendant was a ‘major
participant’ under section 190.2, subdivision (d): ‘What role did
the defendant have in planning the criminal enterprise that led
to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the

16
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?’” (Harris, supra, 60 Cal.App.5th at pp. 954-955, review
granted.)
“In both Banks and Clark the Court explained that, to
determine whether the defendant acted with reckless
indifference, courts must ‘look to whether a defendant has
“‘knowingly engag[ed] in criminal activities known to carry a
grave risk of death.’”’ [Citation.] Specifically, ‘[t]he 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.’ [Citation.] As further refined in Clark, ‘reckless
indifference’ ‘encompasses both subjective and objective elements.
The subjective element is the defendant’s conscious disregard of
risks known to him or her . . . . [R]ecklessness is also determined
by an objective standard, namely what “a law-abiding person
would observe in the actor’s situation.”’” (Harris, supra,
60 Cal.App.5th at p. 955, review granted.)
“The Supreme Court in Clark set out a series of
considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some obvious
overlap with the major-participant factors specified in Banks).
Among others, was the defendant aware that guns would be used;
did the defendant himself or herself use a gun; did the defendant
have an opportunity to reduce the overall risk of violence during
the felony or to aid the victim; did the defendant know his or her
cohorts were likely to use lethal force? [Citation.] Specifically
with respect to the facts before it, the Clark court emphasized,
‘[W]hile the fact that a robbery involves a gun is a factor beyond
the bare statutory requirements for first degree robbery felony

17
murder, this mere fact, on its own and with nothing more
presented, is not sufficient to support a finding of reckless
indifference to human life for the felony-murder aider and abettor
special circumstance.’” (Harris, supra, 60 Cal.App.5th at p. 955,
review granted.) 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.’” (Clark, supra, 63 Cal.4th p. 618; accord, Banks,
supra, 61 Cal.4th at p. 809.)
We review the superior court’s factual findings under
section 1170.95, subdivision (d), for substantial evidence. (People
v. Gregerson (2021) 202 Cal.App.4th 306, 320, review granted
Apr. 28, 2021, S267624; Rodriguez, supra, 58 Cal.App.5th at
p. 238, review granted; People v. Bascomb, supra, 55 Cal.App.5th
at p. 1087.) “We ‘“examine the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value that would support a rational trier of
fact in finding [the defendant guilty] beyond a reasonable doubt.”’
[Citation.] Our job on review is different from the trial judge’s job
in deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2021) 60 Cal.App.5th 597, 618, review
granted Apr. 28, 2021, S267624.)

2. Analysis
Substantial evidence supported the superior court’s finding
Harris was a major participant in the underlying felony who

18
acted with reckless indifference to human life. First, there is
little question he was a “major participant” in the robbery, an
issue counsel for Harris effectively conceded at the evidentiary
hearing: “I don’t think I can argue reasonably that Mr. Harris
was not a major participant in the crime.” Indeed. The record
amply supports that Harris planned the robbery, chose the
victim, physically took the property from the victim, punched the
victim, and was present on the scene when Thomas shot the
victim. (See Banks, supra, 61 Cal.4th at p. 803.)
Second, substantial evidence concerning the relevant Banks
and Clark factors supported the superior court’s finding Harris
acted with reckless indifference to human life. The major
participant requirement “‘significantly overlap[s]’” the
requirement of reckless indifference to human life, “‘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 p. 615; see ibid. [“‘even in cases
where the fact that the defendant was a major participant in a
felony did not suffice to establish reckless indifference, that fact
would still often provide significant support for such a finding’”].)
As discussed, the extent of Harris’s participation in the crime
here was extremely high.
And evidence relevant to several individual factors further
supported a finding Harris was “‘aware of and willingly involved
in the violent manner in which the particular offense [was]
committed.’” (Harris, supra, 60 Cal.App.5th at p. 955, review
granted, quoting Banks, supra, 61 Cal.4th at p. 801.) The
California Supreme Court in Clark observed that the United
States Supreme Court has “stressed the importance of presence
to culpability.” (Clark, supra, 63 Cal.4th at p. 619.) “‘[T]he
defendant’s presence gives him an opportunity to act as a
restraining influence on murderous cohorts. If the defendant

19
fails to act as a restraining influence, then the defendant is
arguably more at fault for the resulting murders.’” (Ibid.) Harris
was physically present throughout the encounter that resulted in
Calvert’s death, and nothing suggests he did anything to restrain
Thomas from shooting him.
Harris asserts he did not have an opportunity to restrain
Thomas from shooting Calvert because, “once Calvert was
confronted, the shooting happened almost immediately” and “was
a ‘somewhat impulsive’ response by Thomas.” He cites no
evidence to support this assertion, however, and it is difficult to
believe Harris would not have had an opportunity to register an
objection to Thomas’s shooting Calvert. But even if that were so,
Harris could have tended to Calvert after he was shot—the man
was still alive, staggering about—but Harris instead ran away. A
defendant’s failure to render aid to a wounded victim while
present at the scene shows reckless indifference to human life.
(See Clark, supra, 63 Cal.4th at p. 619.)
Harris also brought a gun to the robbery he planned. And
though he may not have used the gun, it is eminently reasonable
to infer he brought it because he was willing to use it if the
robbery required it. (See Clark, supra, 63 Cal.4th at p. 617
[“‘reckless indifference’ . . . encompasses a willingness to kill (or
to assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome
of his actions”].) That Harris was personally armed and
physically present throughout the crime distinguishes him from
felony-murder defendants who lack the requisite reckless
indifference to human life because they “‘simply had awareness
their confederates were armed and armed robberies carried a risk
of death.’” (Id. at p. 618; see People v. Bascomb, supra,
55 Cal.App.5th at p. 1090 [“The defendants who have shown their
culpability was too slight under Banks and Clark ‘are those who

20
were not wielding guns themselves and also not present for the
shooting (either because they were acting as getaway drivers or
because they were involved in the planning of the crime only).’”];
see also People v. Law, supra, 48 Cal.App.5th at p. 825 [“we 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 in section 190.2,
subdivision (d)”], review granted.)
In addition, substantial evidence supported the superior
court’s finding that, far from attempting to reduce the risk that
the robbery would turn violent, Harris escalated that risk by
punching Calvert. Citing the trial testimony of the medical
examiner, Bolduc, Harris argues that whether “Calvert was even
punched is disputed,” But two eyewitnesses, Bradley and
Stringer, testified Harris “socked” Calvert moments before
Thomas shot him. It is the superior court’s role to resolve
contradictions in the evidence and make credibility
determinations, and in that role the superior court here
concluded Harris punched Calvert.
Finally, Harris raises evidentiary objections he did not
raise before the superior court and therefore has forfeited. (See
People v. McKinnon (2011) 52 Cal.4th 610, 638 [“‘[A]s a general
rule, “the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on
appeal.”’”].) Moreover, his primary objection is that it was
improper for the superior court to rely on the factual summary
from our opinion deciding Harris’s direct appeal because that
summary was inadmissible hearsay. We have previously
concluded such reliance is proper, holding that in proceedings
under section 1170.95, as in other postconviction proceedings,
“statements from prior appellate opinions are admissible as

21
reliable hearsay even if they would not be admissible at trial.”
(Harris, supra, 60 Cal.App.5th at pp. 953-954, review granted;
see ibid. [rejecting the argument that “factual statements in an
appellate opinion are inadmissible hearsay and not properly
considered in determining eligibility for relief under section
1170.95”]; Verdugo, supra, 44 Cal.App.5th at p. 333, review
granted [same]; see also People v. Clements, supra,
60 Cal.App.5th at p. 612 [same].)5

DISPOSITION

The superior court’s order denying Harris’s petition under
section 1170.95 is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.

5 Harris’s other objections are that “any reliance on his
opening brief [from his direct appeal] was improper” and that, “to
the extent the court relied on Harris’s preliminary hearing, this
was questionable.” These fail for the additional reason that
Harris cites nothing in the record suggesting the superior court
relied on these documents. Nor have we.

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