People v. Logan CA2/7

Filed 6/22/21 P. v. Logan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B304591

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A638508)
v.

GREGORY LOGAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Reversed and
remanded with directions.
John P. Dwyer, 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, Scott A. Taryle, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
__________________________

Gregory Logan, convicted in 1990 of first degree murder
and second degree robbery, appeals the superior court’s order,
made following an evidentiary hearing, denying his petition for
resentencing under Penal Code section 1170.951 after finding he
could still be convicted of murder notwithstanding the changes to
accomplice liability for murder effected by Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437).
Logan argues it is unclear whether the court applied the correct
standard of proof (that is, that the People must prove every
element of liability for murder under the amended statutes
beyond a reasonable doubt, as this court held in People v.
Rodriguez (2020) 58 Cal.App.5th 227, 230, review granted
March 10, 2021, S266652 (Rodriguez)) and, in any event, the
court failed to find he had acted during the robbery with reckless
indifference to human life within the meaning of People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), as now required to be convicted of felony
murder. We reverse and remand for a new evidentiary hearing
at which the superior court is to apply the beyond a reasonable
doubt standard of proof and make express findings as to the
required elements for a felony-murder conviction pursuant to
section 189, subdivision (e)(3).

1 Statutory references are to this code.

2
 FACTUAL AND PROCEDURAL BACKGROUND
1. Logan’s Trials, Conviction and Appeal
a. The charges
Logan was charged together with Randolph Hawkins in an
amended information filed in March 1989 with first degree
murder (§ 187, subd. (a)) with a felony-murder special-
circumstance allegation (§ 190.2, subd. (a)(17)), kidnapping
(§ 207, subd. (a)), kidnapping for robbery (§ 209, subd. (a)) and
second degree robbery (§ 211). It was specially alleged Logan and
Hawkins had personally used a firearm while committing the
offenses (§12022.5) and Logan had a prior serious felony
conviction (§ 667, subd. (a)). The court severed the trial of the two
defendants.2
At Logan’s first trial the court granted Logan’s motion for
judgment of acquittal on the kidnapping and kidnapping for
robbery charges. After closing argument a juror notified the
court she had received an anonymous threatening telephone call
in the middle of the night. The court declared a mistrial. The
People and Logan thereafter agreed to a court trial based on the
transcripts and evidence presented at Logan’s first trial. The
People agreed to dismiss the kidnapping-murder special-
circumstance allegation and to amend the firearm enhancement
to principal-armed (§ 12022, subd. (a)), rather than personal use.

2 Hawkins had been charged with an unrelated murder, and
the court believed it would be unduly prejudicial to try Logan
together with Hawkins. Hawkins was convicted on all charges
after a jury trial and sentenced to an indeterminate state prison
term of life without parole.

3
 b. The evidence at trial
According to the testimony of Willie Hearod, he, Hawkins
and Logan walked to the Hoover Plaza Hotel at West 81st Street
and South Hoover Street on the evening of September 24, 1986.
Hearod stayed to play cards; Hawkins and Logan left. About
30 minutes later Hawkins and Logan returned with a 1984
Cadillac El Dorado that belonged to the murder victim, Raymond
Curtis.
Hawkins asked Hearod to go with them to commit
robberies in Santa Monica; Hearod declined. Hearod asked
where Hawkins and Logan got the car. Logan explained that he
and Hawkins were near 81st Street and Figueroa when they saw
a man walking toward the car. Hawkins, who wanted to steal the
car, pulled out a gun, told the man to freeze and then put him in
the trunk of the Cadillac. Hawkins and Logan drove back to the
Hoover Plaza Hotel to get Hearod.
When Hearod said the police would be looking for the car,
Hawkins responded that would not happen because the owner
was in the trunk. Hawkins and Logan again left, but returned a
short while later. Hearod asked about the man in the trunk;
Hawkins said, “A dead man can’t testify in court for kidnapping.”
Hawkins then told Hearod they had driven to 95th Street where
Logan let Curtis out of the car to allow him to walk away.
Hawkins thought Logan was being stupid, chased after Curtis
and shot him multiple times. During the conversation Logan
said he also shot at their victim, but Hawkins called him a liar
and said he saw Logan “shoot in the air.”
In a police interview following his arrest on September 25,
1986, the transcript of which was admitted into evidence, Logan
generally corroborated Hearod’s testimony. According to Logan,

4
around 8:00 or 9:00 p.m. on September 24, 1986, while he and
Hawkins were walking on 81st Street, they saw a car with
blinking lights. Hawkins wanted to steal the car. Hawkins and
Logan ran toward Curtis, who was walking near the car;
Hawkins drew his gun; and Curtis dropped the keys, which
Logan picked up. Logan then began looking inside the car.
Hawkins wanted to leave and put Curtis in the trunk so he could
not notify the police. After the men returned to the hotel, they
moved Curtis to the back seat of the car. Logan understood they
were going to drop Curtis off some place. When they let Curtis
out of the car near the freeway, Logan told him to walk away.
Curtis started to run; and Hawkins ran after him, shooting
Curtis several times as he did. Hawkins and Logan then
returned to the Hoover Plaza Hotel before driving to Santa
Monica to attempt additional robberies.
Around 1:00 a.m. on September 25, 1986 a security officer
at a hospital undergoing reconstruction at West 95th Street and
South Broadway heard four gunshots. A short while later he saw
a man staggering in pain. The security officer called the police
emergency number. Los Angeles Police Officer Herbert Maples
and his partner responded to the call. Maples found Curtis dead,
leaning against a lamp post. A medical examiner from the Los
Angeles County Coroner’s Office determined Curtis had been shot
four times in the back; two of the gunshot wounds were fatal.
c. The court’s ruling, sentence and appeal
The trial court found Logan guilty of “first degree felony-
murder as alleged in Count I as an aider and abettor. The court
finds that the robbery was still in progress while the victim was
still being held by Defendant and Mr. Hawkins. The temporary
stop at the Hoover Plaza Hotel was not sufficient to terminate the

5
continuing robbery. The court further finds the enhancement for
principal armed with a firearm to be true, also finds Defendant
guilty of robbery, second degree, as charged in Count IV.”
The court sentenced Logan to an indeterminate state
prison term of 26 years to life. We affirmed the judgment after
Logan’s appointed counsel filed an opening brief raising no issues
pursuant to People v. Wende (1979) 25 Cal.3d 436. (People v.
Logan (July 15, 1992, B051646) [nonpub. opn.].)
2. Logan’s Petition for Resentencing
On January 7, 2019 Logan, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Logan checked several boxes on the printed form
petition establishing his eligibility for resentencing relief,
including the boxes stating he had been convicted under the
felony-murder rule and could not now be convicted of first or
second degree murder because of changes made to sections 188
and 189 by Senate Bill 1437.
The court appointed counsel to represent Logan. The
People filed an opposition to the petition contending section
1170.95 was unconstitutional and a second opposition arguing
Logan was ineligible for resentencing because he was a major
participant in the underlying robbery and kidnapping and had
acted with reckless indifference to human life. With the second
opposition the prosecutor submitted transcripts of witness
testimony from Logan’s 1990 trial and a transcript of Logan’s
police interview. Logan filed a reply memorandum, responding to

6
both the constitutional arguments and the contention he was
ineligible for resentencing.3
Although the court did not formally issue an order to show
cause, it scheduled an evidentiary hearing that, after several
continuances, was held on January 29, 2020. Logan was present
at the hearing with his appointed counsel.
3. The Evidentiary Hearing and the Court’s Ruling
At the outset of the hearing the court stated it had
reviewed all the transcripts from Logan’s initial jury trial and
other material from the record of conviction that had been
submitted by the parties, including Logan’s police interview.4
The prosecutor summarized the evidence in general and then in
the context of the five factors identified in Banks, supra,
61 Cal.4th 788 for determining whether a defendant, found guilty
of the felony-murder special circumstance, had been a major
participant in the underlying felony.5 Based on that review, she

3 The superior court did not address the prosecutor’s
constitutional arguments, and the Attorney General does not
contend section 1170.95 is invalid.
4 Judge Patrick Connolly heard Logan’s petition for
resentencing. Judge Madge S. Watai, who had presided at
Logan’s second trial and his sentencing hearing, left the
Los Angeles Superior Court in the mid-1990’s. (See § 1170.95,
subd. (b)(1) [the petition should be heard by the judge who
originally sentenced the petitioner, if available].)
5 In Banks the Supreme Court identified five factors courts
should consider in determining whether a defendant was a major
participant within the meaning of 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

7
argued Logan not only was a major participant in the robbery of
Curtis but also had acted with reckless indifference to human life
during the course of the crime: “From the People’s point of view,
it’s just not reasonable, Your Honor, that the victim of a robbery
and a carjacking would be put in the trunk and left to tell the
story later. As soon as he got in that car, his fate was sealed.”6
For his part, Logan’s counsel mentioned in passing the
terms “major participant” or “reckless indifference,”7 but did not
address the factors identified in Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522, instead emphasizing the general

awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803,
fn. omitted.)
6 After completing her analysis of Logan’s role as a major
participant in the robbery, the prosecutor explained, “I think to
show the reckless indifference to human life, I would be going to
over the same facts that I covered in whether he was a major
participant.” The court simply responded, “All right.”
7 Responding to the prosecutor’s discussion of Logan’s actions
later in the morning after Curtis’s murder, Logan’s counsel
argued the court should “narrowly focus on what his conduct was
when the car was taken, when the victim was put in the trunk,
and when the victim was murdered. And I do not believe that his
actions right then and there amount to acting as a major
participant in the robbery, acting with reckless indifference to
human life. It is Randolph Hawkins who decide[d] to assassinate
Mr. Curtis in cold blood.”

8
purpose of Senate Bill 1437: “According to Mr. Hearod’s
testimony, Mr. Hawkins thought Gregory Logan would let him
go—let the victim go, I’m saying, because he’s stupid and he could
not abide by that. Randolph Hawkins made the decision to
execute Mr. Curtis, and Randolph Hawkins shot the man. . . .
Under the changes in our law, the hard man who acts as the real
deal is the one who gets punished for murder. The patsy who
goes along for the ride should be punished as an accessory. I
believe that the evidence in this case overwhelmingly shows that
Gregory Logan participated in the robbery, but not more than
that. He is not guilty of murder.”
After counsel completed their arguments, the court
proceeded to go through its view of the evidence in light of the
Banks factors. As to Logan’s role in planning the crime, the court
stated, “What I have before me is that they both were active
participants . . . before the robbery and after it. Before the
murder and then after the murder, they wanted to do more
robberies. So to say that Mr. Logan was not integral to that
planning would be false.” With respect to supplying the lethal
weapon, the court said, “I think that the evidence in this case
does not make it clear as to who supplied the weapon, although I
believe that the inference is pretty clear that it was
Mr. Hawkins. . . . And it’s clear to this court that Mr. Hawkins
did this execution. . . . It is also clear to this court that at the
time of the murder itself, that Mr. Logan fired a shot. He was
armed. And I think that the belief there were two weapons is
reasonable.”
“As far as awareness posed of the dangerousness of the
actions, Mr. Logan was present for this victim being placed in the
trunk of a vehicle. . . . I don’t believe for one second, regardless of

9
whether or not Mr. Logan wanted to let him go, that he doesn’t
know what they are doing at that time. . . . Regardless of
whether or not he’s let out . . . Hawkins knows what’s going on,
but I think so does Mr. Logan. But Logan fires a shot. Whether
it’s up in the air, whether it’s to scare this individual, whether it’s
at him, it’s not clear. I tend to believe—and I’m making the
record—that it would be up in the air.”
As to the fourth Banks factor, which the court described as
whether Logan was able to prevent or facilitate what occurred,
the court stated, “I don’t know if Mr. Logan could have prevented
it. I think that Mr. Hawkins was a bad ass, and I don’t think
that Mr. Hawkins would have allowed anyone to intervene at
that point. But I don’t believe for one second that Mr. Logan
tried to intervene nor was that his intent.” Finally, as to Logan’s
actions after the murder, the court noted that Hawkins and
Logan went back to the Hoover Plaza and still tried to recruit
assistance for additional robberies in Santa Monica.
The court concluded with its ruling, “Based on everything
I’ve stated, the transcripts that I’ve looked at and the arguments
of the attorneys, the court does find that Mr. Logan was a major
participant. The court is going to deny the motion to dismiss at
this time. . . . [F]or the reasons that I’ve stated, him having the
gun and going out there and firing first, his actions both before
and after, as such, pursuant to Banks and the factors that they
have given for guidance, I don’t believe that there is any way to
find Mr. Logan other than a major participant.”
The court’s minute order, in addition to detailing the items
that had been admitted into evidence, simply stated, “The court
has made a determination that the defendant was a major

10
participant and is not eligible for the relief sought. [¶]
Resentencing is denied.”
Logan filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 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, 838-839
(Gentile)) and significantly narrowed the felony-murder exception
to the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see Rodriguez, supra, 58 Cal.App.5th at p. 236, review
granted; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.)
Senate Bill 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
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Gentile, at p. 859.)
If the petition contains the information required by
section 1170.95, subdivision (b), and the court, following the
procedures detailed in section 1170.95, subdivision (c),
determines the petitioner has made a prima facie showing that
he or she is entitled to relief, “the court shall issue an order to
show cause.” (§1170.95, subd. (c); see People v. Verdugo (2020)
44 Cal.App.5th 320, 328 (Verdugo), review granted Mar. 18, 2020,
S260493 [describing two-step process under section 1170.95,
subdivision (c)]; see also People v. DeHuff (2021) 63 Cal.App.5th
428, 435-436 [same]; People v. York (2020) 54 Cal.App.5th 250,

11
262, review granted Nov. 18, 2020, S264954 [same]; People v.
Soto (2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23,
2020, S263939 [same]; but see People v. Cooper (2020) 54
Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684
[section 1170.95, subdivision (c), contemplates only one prima
facie review before an order to show cause issues].)
Once the order to show cause issues, the court must hold an
evidentiary hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327, review granted.) At the
hearing the prosecution has the burden of proving beyond a
reasonable doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).) The prosecutor and petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Prosecutor’s Burden of Proof: Criminal Liability for
Murder Beyond a Reasonable Doubt
Section 1170.95, subdivision (d)(3), provides, at the
evidentiary hearing to determine whether the petitioner is
entitled to relief, “the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” In Rodriguez, supra, 58 Cal.App.5th
227, 238-239, review granted, we held this language requires the
prosecutor to prove beyond a reasonable doubt each element of
first or second degree murder under current law to establish a

12
petitioner’s ineligibility for resentencing. (Accord, People v.
Fortman (2021) 64 Cal.App.5th 217, 224-225; People v. Duchine
(2021) 60 Cal.App.5th 798, 814; People v. Clements (2021)
60 Cal.App.5th 597, 603, review granted Apr. 28, 2021, S267624;
People v. Lopez (2020) 56 Cal.App.5th 936 (Lopez), review granted
Feb. 10, 2021, S265974.) Once the petitioner has made a
prima facie showing of eligibility for relief, we concluded, “[I]t 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 is thus
ineligible for resentencing under section 1170.95,
subdivision (d)(3).” (Rodriguez, at pp. 243-244.)
Our opinion in Rodriguez, supra, 58 Cal.App.5th 227,
review granted, considered the statutory language and legislative
history of Senate Bill 1437 and, based on that analysis, expressly
disagreed with the contrary view set forth in People v. Duke
(2020) 55 Cal.App.5th 113, review granted January 13, 2021,
S265309, which held the prosecutor must only prove a reasonable
jury could find the defendant guilty of murder with the requisite
mental state—the substantial evidence standard of proof. (See
Rodriguez, at pp. 240-242.) Unless we receive different
instructions from the Supreme Court, we adhere to the holding in
Rodriguez.8

8 In granting review in People v. Rodriguez, S266652, the
Supreme Court ordered further action deferred pending
consideration and disposition of the related issue in People v.
Duke, S265309. In Duke the Supreme Court limited the issue to
be briefed and argued to the following: “Can the People meet
their burden of establishing a petitioner’s ineligibility for
resentencing under . . . section 1170.95, subdivision (d)(3) by
presenting substantial evidence of the petitioner’s liability for

13
 3. Remand Is Necessary for the Superior Court To Use the
Proper Standard of Proof and To Make Findings on All
Required Elements of the New Felony-murder Rule
a. The proper standard of proof
The section 1170.95, subdivision (d), evidentiary hearing in
this case was held on January 29, 2020, prior to any published
decision discussing the nature of the prosecutor’s burden of proof
under section 1170.95, subdivision (d)(3)—that is, whether the
prosecutor is obligated to prove beyond a reasonable doubt each
element of the crime of murder as now defined, as we held in
Rodriguez, supra, 58 Cal.App.5th 227, review granted; only that
substantial evidence would support such a finding, as the court
held in People v. Duke, supra, 55 Cal.App.5th 113, review
granted; or that the petitioner is ineligible for relief based on
some other hybrid or different standard.9 Neither party
addressed that issue during argument or in the briefs submitted
to the superior court. And the court, which acknowledged this
was the first formal evidentiary hearing it had conducted
pursuant to section 1170.95, subdivision (d), never articulated the
standard of proof it was applying. As discussed, in its oral ruling
the court simply stated, “[T]he court does find that Mr. Logan

murder under . . . sections 188 and 189 as amended by Senate
Bill No. 1437 (Stats. 2018, ch. 1015), or must the People prove
every element of liability for murder under the amended statutes
beyond a reasonable doubt?”
9 People v. Duke, supra, 55 Cal.App.5th 113, review granted,
the first published case considering the issue was decided on
September 28, 2020. Lopez, supra, 56 Cal.App.5th 936, review
granted, disagreeing with Duke was filed October 30, 2020. Our
decision in Rodriguez, supra, 58 Cal.App.5th 227, review granted,
was filed December 7, 2020.

14
was a major participant. . . . I don’t believe that there is any way
to find Mr. Logan other than a major participant.”
Emphasizing the general presumption a trial court is
aware of and followed governing law does not apply when “the
law in question was unclear or uncertain when the lower court
acted” (People v. Jeffers (1987) 43 Cal.3d 984, 1000), and the lack
of a clear statement by the superior court that it used the beyond
a reasonable doubt standard of proof, Logan urges us to reverse
the order denying his petition and remand for a new evidentiary
hearing using the proper standard.
The Attorney General concedes the superior court did not
articulate the standard of proof it was applying but argues any
error was harmless because its denial of Logan’s petition was
proper under People v. Duke, supra, 55 Cal.App.5th 113, review
granted. Under that standard, the Attorney General explains,
the court must find the petitioner ineligible if any rational jury
could find him or her guilty beyond a reasonable doubt, rather
than requiring the judge at the section 1170.95, subdivision (d)(3)
hearing, acting as an independent factfinder, to so find. As
discussed, we have held Duke was wrongly decided and adhere to
the view we expressed in Rodriguez, supra, 58 Cal.App.5th 227,
review granted.
The Attorney General alternatively argues, even if our
decision in Rodriguez and that of the court of appeal in Lopez,
supra, 56 Cal.App.5th 936, review granted, are correct, “the trial
court’s analysis was sufficiently broad to encompass the
standard” set forth in those decisions. By way of explanation the
Attorney General states, “Given that the trial court detailed each
and every portion of the record [as it related to the Banks
factors], there is no question that its ultimate conclusion that

15
appellant was a major participant who acted with reckless
indifference to life satisfies the Lopez and Rodriguez standards
that the court must act as an independent trier of fact.”
The problem with the superior court’s ruling, however, is
not that the court did not make findings; it certainly did. But
beyond a reasonable doubt is nowhere mentioned in the court’s
oral ruling, which covers seven pages in the reporter’s transcript,
or its written minute order; and the Attorney General does not
suggest the court actually employed that standard.10 Although
the Attorney General contends the court would have reached the
same conclusion concerning Logan’s ineligibility for relief if it had
articulated and used the Lopez/Rodriguez standard, he does not
argue the record establishes Logan’s ineligibility as a matter of
law, nor could he since the superior court effectively rejected any
such claim when it found a prima facie case had been established
and set the matter for an evidentiary hearing. Under these
circumstances, a remand for the court to expressly determine
Logan’s eligibility for relief under the proper standard of proof is
necessary.
b. Reckless indifference to human life
Section 189, subdivision (e), which permits a felony-murder
conviction only when specified facts relating to the defendant’s
individual culpability have been proved, incorporates in
subdivision (e)(3) the same requirements as necessary for a felony-

10 Several of the court’s intermediate findings belie any
contention it was applying something akin to the beyond a
reasonable doubt standard. For example, the court stated, “I
think that the belief that there were two weapons is reasonable,”
and “Hawkins knows what’s going on, but I think so does
Mr. Logan.”

16
murder special-circumstance finding: “The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”
As explained in Clark, supra, 63 Cal.4th at page 615, the
“major participant” element is the actus reus of the felony-murder
special-circumstance requirement; and the “reckless indifference”
element is the mens rea requirement. Although the two
requirements often overlap, they are separate; and both must be
proved. (Ibid.; see Banks, supra, 61 Cal.4th at p. 810, fn. 9 [a
major participant in an armed robbery that results in a death does
not necessary exhibit reckless indifference to human life].)
Reckless indifference, the Supreme Court said in Clark,
“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.’” (Clark, at p. 617.) The Clark
Court set out a series of factors, similar in some respects, but
nonetheless distinct from the Banks major participant factors, to
assess whether a participant in an underlying felony had acted
with reckless indifference to human life. (Id. at pp. 618-622.)
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 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.” (Id. at p. 617.)

17
 The superior court found Logan was a major participant in
the Curtis robbery, but made no finding that he had acted with
reckless indifference to human life during the commission of the
crime. Logan argues that omission requires reversal and a
remand for a new evidentiary hearing. In response the Attorney
General notes both parties referred to reckless indifference in their
briefs and oral argument; cites the presumption a trial court is
aware of and follows the applicable law (see In re Julian R. (2009)
47 Cal.4th 487, 499); and argues, viewed in context, “it appears
that the court’s use of the phrase ‘major participant’ (an issue not
even in dispute) was intended as a shorthand reference to the
overall requirement for felony murder, i.e., that appellant was a
major participant who acted with reckless indifference to human
life.”
Positing an implied finding on one of the two elements at
issue in the resentencing proceedings may be appropriate in some
circumstances, but seems unjustified here where the parties and
the court focused on Banks, supra, 61 Cal.4th 788, and the factors
identified in that case for evaluating a major participant finding,
and neither the parties nor the court discussed Clark, supra,
63 Cal.4th 522, and its identification of factors relevant to the
reckless indifference element of a felony-murder special-
circumstance finding. Indeed, although the prosecutor and
Logan’s counsel made brief references to reckless indifference, the
court never mentioned that element of the new felony-murder rule
during the evidentiary hearing.
Because the failure to specify and apply the proper
reasonable doubt standard of proof requires reversal of the order
denying Logan’s petition and a remand for a new evidentiary
hearing, we need not decide whether, standing alone, the court’s

18
failure to specifically find that Logan had acted with reckless
indifference to human life would also require a new hearing. On
remand, however, the superior court must make express findings
on both required elements for liability under the felony-murder
rule.
DISPOSITION
The order denying Logan’s section 1170.95 petition is
reversed, and the cause remanded for a new evidentiary hearing
at which the superior court is to apply the beyond a reasonable
doubt standard of proof and make express findings as to the
required elements for a felony-murder conviction pursuant to
section 189, subdivision (e)(3).

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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