People v. Mercado CA5

Filed 11/17/21 P. v. Mercado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F081633
Plaintiff and Respondent,
(Super. Ct. No. CF96571931)
v.

LUIS ANDRE MERCADO, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Timothy A.
Kams, Judge.

Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

*Before Franson, Acting P. J., Peña, J. and Snauffer, J.
 INTRODUCTION
In 1998, defendant Luis Andre Mercado pleaded guilty to first degree murder and
admitted a related personal use of a firearm enhancement allegation after participating in
a robbery of a bar during which an individual was killed. After the passage of Senate Bill
No. 1437 (2017–2018) (Senate Bill 1437), he filed a Penal Code section 1170.95 petition
for resentencing. (Undesignated statutory references are to the Penal Code.) The People
opposed the petition, and the court concluded defendant had established a prima facie
showing of entitlement to relief. The court then held an evidentiary hearing after which it
denied defendant’s petition, concluding the evidence established he was a major
participant in the crime who acted with reckless indifference to human life. On appeal,
defendant argues insufficient evidence supports the trial court’s conclusion.
We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, defendant pleaded guilty to first degree murder. He also admitted to
having personally used a firearm during the commission of the crime within the meaning
of section 12022.5, subdivision (a). Pursuant to the plea bargain, the court dismissed a
charge of second degree burglary (count Two) and two special circumstance allegations
pursuant to section 190.2, subdivision (a)(17)(A) and (G) that alleged the murder was
committed during the commission of a robbery and burglary. Defendant received a
stipulated term of 35 years to life imprisonment. In his plea form, defendant stated his
plea was based on the following facts: “I participated in a robbery during which someone
was killed. (I did not kill the person.) I personally used a gun during the perpetration of
the robbery.”
Petition for Resentencing
In 2019, defendant petitioned the court for resentencing pursuant to section
1170.95 using a preprinted form. He checked boxes stating a charging document had
been filed against him allowing the prosecution to proceed under a felony-murder theory

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or the natural and probable consequences doctrine; he pled guilty or no contest to first or
second degree murder in lieu of going to trial because he believed he could have been
convicted of first or second degree murder at trial pursuant to the felony-murder rule or
the natural and probable consequences doctrine; and he could not now be convicted of
murder in light of changes made to sections 188 and 189, effective January 1, 2019
(pursuant to Senate Bill 1437). He also checked a box stating he was convicted of first
degree murder but could not now be convicted because he was not the actual killer, he
did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or
assist the actual killer in the commission of murder in the first degree, and he was not a
major participant in the felony or did not act with reckless indifference to human life
during the course of the crime or felony. He asked the court to appoint him counsel
during the resentencing process.
The People responded to the petition, arguing defendant was not entitled to relief
because the facts of the case established he was a major participant in the underlying
robbery who acted with reckless indifference to human life. They argued defendant was
“an integral participant in the armed robbery and his act of firing into the ceiling when
many patrons were present, and while he was standing over the body of the victim,
evidenced a reckless indifference to human life.” In support of the “major participant”
element, the People argued defendant knew his confederates had a reputation for
committing robberies and it could be inferred he was directly involved in planning the
robbery and he persuaded the getaway driver to assist. They further asserted defendant
“physically entered the saloon, was armed with a firearm, and actually discharged it
during the robbery.” Additionally, “his placement at the entrance of the saloon prevented
anyone from leaving and kept the path clear for he and his co-participants to easily
escape.” The People argued the same facts also established defendant acted with reckless
indifference to human life, particularly his act of “discharging his weapon in a crowded
bar.” They asserted the fatal shooting occurred at the beginning of the robbery at which

3.
point defendant would have reason to believe his confederates were likely to use lethal
force again to accomplish the robbery, but he still did not leave and instead remained at
the door while his co-perpetrator retrieved the cash drawer. They filed a separate
submission identifying the documents they believed formed the record of conviction,
including the information, the preliminary hearing transcript, defendant’s plea form, the
hearing on defendant’s change of plea, the probation officer’s report, the sentencing
transcript, defendant’s opening brief on appeal, and our court’s opinion affirming the
judgment.
After the parties submitted briefing on the petition, the court found defendant
established a prima facie case for relief. Accordingly, the court issued an order to show
cause and set the petition for an evidentiary hearing.
At the hearing, the People presented live testimony from retired detective Robert
Schiotis, who had investigated the offense underlying defendant’s conviction. Schiotis
testified that in August 1996, there was a robbery and shooting at a bar. The bar was
open when the shooting occurred and there were approximately 30 to 40 people present.
The police located the owner of the getaway car, Frank Gonzales, and interviewed him.
The police also eventually identified defendant and interviewed him twice. During the
second interview, defendant discussed the incident.
Defendant stated, on the day of the robbery, he was “wasted” and with his friend
Frank Gonzales when he received a text from someone he knew as “Big Eddie,” later
identified as Nathanial Bernal, who asked if defendant wanted to make some money.
Defendant replied “yes,” and he and Gonzales went to pick up Bernal and another male,
Ray Bracamonte. Bernal then directed Gonzales to drive to a bar. Defendant, Bernal,
and Bracamonte each had guns and put on masks. According to defendant, Bernal and
Bracamonte instructed him to keep the people down when they went into the bar. Bernal
and Bracamonte went in first and defendant heard shots fired; he then entered last. Upon
entering, defendant saw the victim on the floor bleeding from the chest. Defendant

4.
stepped over the victim and shot his gun one time into the ceiling after entering. He saw
Bernal jump over the bar and retrieve the cash register drawer. Then, they all ran out
back to the car where Gonzales was waiting. They drove some distance, stopped the car,
and ran. Defendant believed Bernal was somehow involved with the Bulldog gang.
The court ultimately denied defendant’s petition for resentencing, concluding the
evidence established, beyond a reasonable doubt, that defendant was a major participant
in the underlying robbery resulting in death, and he acted with reckless indifference to
human life. The court highlighted the following facts in support of its conclusion:
defendant arranged for Gonzales to drive the night of the robbery and he introduced
Gonzales to codefendants Bernal and Bracamonte; defendant conspired with his
codefendants to commit a robbery; defendant, Bernal, and Bracamonte were all armed
with guns, wearing face masks, and they all went into the bar to rob it during business
hours; all three individuals fired their guns inside the crowded bar; defendant covered
patrons “with his gun at the ready” while Bernal jumped over the bar and grabbed the
cash register drawer; defendant’s position near the exit prevented anyone from leaving
and also kept the path clear for the robbers’ escape; defendant entered last after Bernal
shot the victim; he stepped over the victim and made no effort to help him; instead, he
fired his gun “making sure none of the certainly terrified patrons could render aid to the
victim.” The court noted the other codefendants both fired their guns before defendant
entered the bar. Nevertheless, defendant “did not hesitate, did not turn around and flee.
He followed them in, stepped over the bleeding victim, fired his own gun, and covered
the bar patrons while Bernal went to the cash register and took the money.” Defendant
showed reckless indifference to human life “[b]y firing his gun in a crowded room,”
standing over the victim who lay bleeding on the floor and failing to render aid, and by
keeping other patrons at the bar from rendering aid by keeping his weapon drawn.

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 DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the
court’s denial.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Section 1170.95 permits those “convicted of felony murder or murder under a
natural and probable consequences theory [to] file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts ….”1 (Id., subd. (a).) An offender may file a petition under section
1170.95 where all three of the following conditions are met:

“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder following
a trial or accepted a plea offer in lieu of a trial at which the petitioner could
be convicted for first degree or second degree murder[;] [¶] [and] (3) The

1The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021–2022 Reg. Sess.).) The amendments are not yet effective
(Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our analysis. We quote
from the version of section 1170.95 presently in effect.

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 petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
2. Standard of Review
On appeal from a denial of relief following an evidentiary hearing under section
1170.95, subdivision (d), we review the trial court’s factual findings for substantial
evidence. (See People v. Clements (2021) 60 Cal.App.5th 597, 618, review granted
Apr. 28, 2021, S267624; accord, People v. Lopez (2020) 56 Cal.App.5th 936, 954,
[substantial evidence standard of review applies to postjudgment orders involving judicial
factfinding], review granted Feb. 10, 2021, S265974; People v. Rodriguez (2020) 58
Cal.App.5th 227, 238 [same], review granted Mar. 10, 2021, S266652.) Under that
familiar standard, “‘we review 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—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt’” under section 188 as amended. (People
v. Morales (2020) 10 Cal.5th 76, 88; Clements, supra, at p. 618.) To that end, we
presume the existence of every fact the court as fact finder could reasonably deduce from
the evidence in support of the court’s order. (People v. Beck and Cruz (2019) 8 Cal.5th
548, 626.)

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3. Applicable Law
Section 190.2 “identifies the circumstances under which murderers and
accomplices can be punished by death or life imprisonment without parole.… For
defendants who did not kill and lacked intent to kill, section 190.2, subdivision (d)
permits such punishment only if they acted ‘with reckless indifference to human life and
as a major participant’ [in] a qualifying felony like robbery.” (People v. Douglas (2020)
56 Cal.App.5th 1, 7; accord, In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).) By
incorporating this requirement, section 190.2 codified the holdings of Enmund v. Florida
(1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison),
bringing California law “into conformity with prevailing Eighth Amendment doctrine.”
(In re Ramirez (2019) 32 Cal.App.5th 384, 393; see People v. Clark (2016) 63 Cal.4th
522, 609; People v. Estrada (1995) 11 Cal.4th 568, 575; In re McDowell (2020) 55
Cal.App.5th 999, 1004–1005.) Section 190.2 thereby requires courts to “examine the
defendant’s personal role in the crimes leading to the victim’s death and weigh the
defendant’s individual responsibility for the loss of life, not just his or her vicarious
responsibility for the underlying crime.” (People v. Banks (2015) 61 Cal.4th 788, 801
(Banks).)
Enmund held the death penalty could not constitutionally be imposed on a robbery
getaway driver who was a minor participant in the crime, was not present when the
murder was committed, and had no intent to kill or any culpable mental state. (Enmund,
supra, 458 U.S. at pp. 784, 798, 801; accord, Scoggins, supra, 9 Cal.5th at p. 675.)
Tison, in contrast, did not preclude imposition of the death penalty for two
defendants, brothers who helped their father and his cellmate—both convicted
murderers—escape from prison. (Tison, supra, 481 U.S. at pp. 139, 151–152.) The
brothers locked up the prison guards and armed the two prisoners during the escape. (Id.
at p. 139.) A few days later, the group got a flat tire. (Ibid.) One of the brothers flagged
down a passing car for help. (Id. at pp. 139–140.) The group then kidnapped at gunpoint

8.
the family of four that was in the car, robbed them, and drove them into the desert. (Id. at
p. 140.) The sons stood by while the father and cellmate shot the victims repeatedly. (Id.
at p. 141.) The perpetrators left the family—which included a toddler and a teenager—to
die in the desert, and drove off in the family’s car. (Id. at p. 141.) Tison held the Eighth
Amendment does not prohibit imposition of the death penalty on a nonkiller who lacked
the intent to kill, but whose “participation [in the crime] is major and whose mental state
is one of reckless indifference to the value of human life.” (Id. at p. 152, see id. at pp.
157–158.)
Enmund and Tison helped define the constitutional limits for punishing
accomplices to felony murder and establish a “‘spectrum of culpability,’” with felony
murderers who “‘actually killed, attempted to kill, or intended to kill’” at one end, and
minor actors who were not present on the scene and neither intended to kill nor had any
culpable mental state at the other. (Scoggins, supra, 9 Cal.5th at p. 675; see Banks,
supra, 61 Cal.4th at pp. 794, 800; In re Loza (2017) 10 Cal.App.5th 38, 46.)
“Somewhere between them, at conduct less egregious than the Tisons’ but more culpable
than … Enmund’s, lies the constitutional minimum” required for the imposition of a
sentence of death or life without the possibility of parole. (Banks, at p. 802.) Tison and
Enmund did not establish a ceiling or a floor for determining when an aider and abettor is
eligible for such a sentence, however. (In re Miller (2017) 14 Cal.App.5th 960, 974, fn.
4; In re Bennett (2018) 26 Cal.App.5th 1002, 1014, fn. 4.) The fact a particular defendant
appears more culpable than Enmund does not automatically make him death eligible;
conversely, neither must a defendant be as culpable as the Tison brothers in order for
section 190.2, subdivision (d) to apply. The question is one of degree. (In re Miller,
supra, at p. 974, fn. 4; In re Bennett, supra, at p. 1014, fn. 4.)
In Banks and Clark, our state Supreme Court clarified the meaning of the “major
participant” and “reckless indifference to human life” requirements. Banks considered
“under what circumstances an accomplice who lacks the intent to kill may qualify as a

9.
major participant[.]” (Banks, supra, 61 Cal.4th at p. 794.) The court listed various
factors that should be considered in making that determination: “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 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?” (Id. at p. 803, fn. omitted.)
Banks found insufficient evidence to show the defendant there—a getaway driver
for an armed robbery—was a major participant who acted with reckless indifference.
(Banks, supra, 61 Cal.4th at pp. 804–808.) No evidence established his role in planning
the robbery or procuring the weapons; during the robbery and murder he was absent from
the scene, sitting in a car and waiting; and no evidence showed he had any role in
instigating the shooting, or could have prevented it. (Id. at p. 805.) He was “no more
than a getaway driver,” like Enmund. (Ibid.)
The following year, in Clark, the court addressed the “reckless indifference”
determination. (Clark, supra, 63 Cal.4th at pp. 614–618.) Reckless indifference to
human life may be “‘implicit in knowingly engaging in criminal activities known to carry
a grave risk of death.’ [Citation.]” (Clark, at p. 616, quoting Tison, supra, 481 U.S. at p.
157.) It “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.” (Clark, at p. 617.) Reckless indifference to human life has both a
subjective and an objective component. (Scoggins, supra, 9 Cal.5th at p. 677.)
Subjectively, “‘the defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,’ and he or she must consciously
disregard ‘the significant risk of death his or her actions create.’” (Ibid., quoting Banks,

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supra, 61 Cal.4th at p. 801; accord, Clark, at p. 617.) Objectively, “‘“[t]he risk [of death]
must be of such a nature and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him [or her], its disregard involves a
gross deviation from the standard of conduct that a law-abiding person would observe in
the actors situation.”’” (Ibid.; see Clark, at p. 617.) The fact a robbery involved a gun or
carried a risk of death is insufficient, by itself, to support a finding of reckless
indifference. (Clark, at pp. 617–618; see Scoggins, supra, 9 Cal.5th at p. 677 [“‘the fact
a participant [or planner of] an armed robbery could anticipate lethal force might be used’
is not sufficient to establish reckless indifference to human life”].)
Clark, like Banks, listed various factors to be considered when determining
whether a defendant acted with reckless indifference: “Did the defendant use or know
that a gun would be used during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she have the opportunity to
restrain the crime or aid the victim? What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the defendant’s knowledge of his
or her confederate’s propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence during the felony?”
(Scoggins, supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark, supra, 63 Cal.4th
at pp. 618–623].)
Based on these factors, Clark concluded the defendant there did not act with
reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 623.) The Clark
defendant was the “mastermind” who planned and organized a computer store robbery,
and waited across from the store’s parking lot when the fatal shooting occurred. (Id. at
pp. 612, 619.) His plan called for the robbery to take place after the store closed, when
there would be fewer people present, for any remaining employees to be handcuffed, and
for the use of a single, unloaded gun. (Id. at pp. 620–622.) However, during the robbery
the mother of one of the employees—who had come to pick him up from work—entered

11.
the store, surprising the robbers, and the defendant’s accomplice shot her. (Id. at p. 539.)
As police cars arrived, the defendant fled the scene, leaving the shooter behind. (Id. at p.
537.) Clark concluded the defendant—who was not armed, was not physically present in
the store when the shooting occurred, did not have the intent to kill, and attempted to
minimize the likelihood of violence by timing the robbery for a time when fewer people
would be present and use of an unloaded gun—did not act with reckless indifference to
human life. (Id. at pp. 611, 618–623; Scoggins, supra, 9 Cal.5th at p. 676.)
More recently, our Supreme Court considered the reckless indifference inquiry in
Scoggins, supra, 9 Cal.5th 667. Scoggins found an insufficient showing of reckless
indifference where the defendant planned an unarmed assault and robbery in which one
of his accomplices deviated from the contemplated plan and unexpectedly killed the
victim. (Id. at pp. 671–672.) There, the defendant was swindled by the victim in the
purchase of three television sets. (Id. at p. 671.) In response, the defendant recruited two
close friends to ambush the victim, “‘beat the shit’” out of him, and get the defendant’s
money back, while the defendant waited at a nearby gas station. (Id. at pp. 671, 678.)
When the victim arrived, one of the friends pulled out a gun and shot him. (Id. at p. 672.)
In concluding the evidence was insufficient to establish the defendant acted with reckless
indifference, the Scoggins court considered that he was not present at the scene of the
murder, was not in a position to restrain the shooter, did not know a gun would be used or
that the victim would be killed, he attempted to minimize the risk of death by ordering
the assault to occur in a public place in broad daylight, and he acted ambiguously after
the shooting. (Id. at pp. 677–683.)
After the passage of Senate Bill 1437, section 189, subdivision (e)(3) now
provides that a participant in a robbery where a death occurs may be liable for murder if
the person was “a major participant in the [robbery] and acted with reckless indifference
to human life, as described in subdivision (d) of Section 190.2.” Because the factors
articulated by the California Supreme Court in Banks, Clark, and Scoggins construe the

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language in section 190.2, subdivision (d), which the Legislature incorporated into
section 189, subdivision (e), these factors apply when determining a defendant’s
eligibility for relief under section 1170.95 as a person convicted of felony murder. (See
In re Taylor (2019) 34 Cal.App.5th 543, 561 [“the standard under section 189,
subdivision (e)(3) for holding such a defendant liable for felony murder is the same as the
standard for a special circumstance under section 190.2(d), as the former provision
expressly incorporates the latter”]; see generally People v. Gutierrez-Salazar (2019) 38
Cal.App.5th 411, 419 [because “[t]he language of the special circumstance tracks the
language of Senate Bill 1437 and the new felony-murder statutes,” a jury’s true finding
on § 190.2, subd. (d) renders a § 1170.95 petitioner ineligible for relief]; accord, People
v. Jones (2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854.) Thus,
we look to these factors in reviewing for substantial evidence a court’s finding that a
defendant was a major participant who acted with reckless indifference to human life.
4. Analysis
Defendant contends the court erred in denying his petition because substantial
evidence did not support a finding he was a major participant in the attempted robbery or
that he acted with reckless indifference to human life. He argues he had a minimal role in
planning the robbery. Defendant asserts, though he had his own gun, he did not supply
any of his codefendants with guns nor did he pick the bar to rob. There was also no
evidence he knew of prior violent acts committed by Bernal. He contends, with regard to
the underlying offense, he did not know “anyone had been shot until he walked in the
door and saw the victim on the ground.” He also argues the evidence only established he
participated in an armed robbery, which was insufficient on its own to establish he acted
with reckless indifference to human life. We conclude substantial evidence supports the
trial court’s finding defendant was a major participant in the underlying felony who acted
with reckless indifference to human life.

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 First, our inquiry turns to whether defendant qualified as a major participant in the
underlying felony. (Banks, supra, 61 Cal.4th at p. 803 [factors to consider in determining
whether defendant was major participant include: “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 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? No one of these considerations is necessary, nor is any one
of them necessarily sufficient” (fn. omitted)]; accord, Clark, supra, 63 Cal.4th at p. 611.)
Here, there was some evidence defendant was involved in planning the armed
robbery. Defendant was armed with a gun when he and Gonzales picked up Bernal and
Bracamonte to “make some money.” He, Bernal, and Bracamonte donned masks and
agreed Bernal and Bracamonte would enter the bar first and defendant would follow.
Defendant planned to keep the other bar patrons down while wielding his loaded weapon
so his coparticipants could complete the robbery. Additionally, defendant supplied his
own weapon, which he actually shot during the incident, though he did not supply
weapons to Bernal and Bracamonte. There was also evidence defendant should have
anticipated the armed robbery to be particularly dangerous given that all three
perpetrators were armed with guns and they were attempting to rob the bar while it was
open and full of people. Furthermore, though there was no evidence defendant was
present in the bar when Bernal shot the victim, defendant admitted he entered the bar
right after hearing gunshots. He continued to actively participate in the armed robbery
despite knowing shots had been fired and after seeing the dying victim lying on the floor.
Indeed, by defendant’s own admission, he stepped over the bleeding victim and
proceeded to wield and shoot his gun inside the front door while Bernal completed the

14.
robbery. Defendant made no attempt to aid the victim and, by standing at the front door
and intimidating the other customers to remain on the ground, defendant’s actions also
prevented anyone else from rendering aid to the victim or from escaping. Defendant also
made no effort to restrain Bernal or Bracamonte either before or after the shooting
occurred. Rather, he continued to assist them in completing the robbery. Once the
robbery was complete, defendant ran with his confederates to the car and they drove
away from the scene. We conclude this record sufficiently established defendant acted as
a major participant in the underlying felony. (See People v. Bascomb (2020) 55
Cal.App.5th 1077, 1089 [defendant acted as major participant who acted with reckless
indifference to human life by instigating robbery and entering home armed and then
using his weapon to keep other victims at bay throughout duration of robbery].)
We next turn to whether there is substantial evidence in the record before us to
support the trial court’s conclusion defendant acted with reckless indifference to human
life. We conclude there is.
Notably, “factors demonstrating [defendant’s] role as a major participant are
highly relevant to the analysis of whether he acted with reckless indifference.” (In re
Loza, supra, 10 Cal.App.5th at p. 52.) Thus, the foregoing analysis is relevant to our
inquiry into whether the evidence sufficiently established defendant acted with reckless
indifference to human life.
It is true the California Supreme Court has held participation in an armed robbery
and subjective awareness of the risk of death inherent in an armed crime is insufficient on
its own to establish a defendant acted with reckless indifference to human life. (Banks,
supra, 61 Cal.4th at pp. 807–808.) But, here, the specific circumstances of the offense
paired with defendant’s conduct provide substantial evidence to support the trial court’s
conclusion defendant acted with reckless indifference to human life.
Defendant’s actions after Bernal shot the victim are particularly relevant to the
reckless indifference analysis in this case. (See Scoggins, supra, 9 Cal.5th at p. 679 [“A

15.
defendant’s actions after the shooting may also bear on the defendant’s mental state”].)
This is not a situation in which “different inferences may be drawn from the
circumstances” such that defendant’s actions after the shooting “may not be very
probative of his mental state.” (Ibid.) Rather, the trial court could reasonably have
interpreted defendant’s actions after the shooting as indicative of his mental state.
Here, though defendant denied being present inside the bar when Bernal issued the
fatal shot, there was evidence defendant entered the bar right after; he stepped over the
victim who he saw was bleeding from the chest; and then defendant shot his own gun in
the crowded bar. He did nothing to aid the victim; instead, he used his gun to ensure the
other bar patrons stayed down, thereby preventing anyone else from rendering aid to the
victim. (See Clark, supra, 63 Cal.4th at p. 619 [a defendant’s “failure to provide aid
while present at the scene” may be relevant].) He then helped his cohort complete the
robbery and escape after the shooting occurred. (See People v. Douglas, supra, 56
Cal.App.5th at pp. 4, 10–11 [no evidence shooting came as a surprise and, after seeing
store clerk “‘on the floor shaking’” from a gunshot wound, the defendant “‘went outside
to look around,’” returned to the store, stole money from the cash register, “then emptied
[the clerk’s] pockets while the clerk lay on the ground with blood pooling around his
head”]; People v. Medina (2016) 245 Cal.App.4th 778, 792 [that one defendant “helped
[his cohort] escape and had no concern for the shooting victim” and other defendant
heard shooting, returned to help his confederates, and “made no effort to determine if
anyone was injured or to offer aid” supported special circumstance findings]; People v.
Bustos (1994) 23 Cal.App.4th 1747, 1754 [that “[the defendant] fled together with his
accomplices and the robbery loot, leaving the victim to die” evidenced he was a major
participant who acted with reckless indifference to human life]; accord, Tison, supra, 481
U.S. at pp. 151–152 [defendants acted with reckless indifference to human life by making
no attempt to assist victims before, during or after shooting, but instead choosing to assist
killers in their continuing criminal endeavors]; cf. In re Ramirez, supra, 32 Cal.App.5th

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at pp. 405–406 [no evidence of petitioner’s conduct from which it could reasonably be
inferred he harbored a willingness to kill or anticipated the potential for loss of human
life beyond that usually accompanying an armed robbery].) Such evidence supports the
trial court’s finding defendant acted with reckless indifference to human life.
Additionally, other evidence also supports the trial court’s conclusion defendant
acted with the requisite mental state. As discussed, defendant knew guns would be used
in the robbery and he was armed with his own loaded gun before entering the bar, which
was open for business when the robbery occurred. Defendant did nothing to minimize
the risk of violence during the robbery. To the contrary, he entered the crowded bar after
hearing shooting and proceeded to shoot his own weapon while inside and he used his
gun to intimidate the other bar patrons while Bernal completed the robbery. (See Clark,
supra, 63 Cal.4th at p. 618 [noting a defendant’s use of a firearm, even if he did not kill
the victim, can be significant to reckless indifference analysis] cf. In re Ramirez, supra,
32 Cal.App.5th at p. 404 [defendant supplied guns used in attempted robbery and murder
but there was no evidence any criminal conduct was contemplated at that time].) There
was also no evidence he tried to talk his coparticipants out of engaging in violence during
the crime.
We agree there was no evidence defendant knew of Bernal’s or Bracamonte’s
propensity for violence before he agreed to participate in the armed robbery. But there
was evidence defendant heard gunshots before entering the bar and then saw the shooting
victim lying on the ground—at which point he was well aware of the potential for
additional violence—and he proceeded to actively participate in the robbery anyway.
And, while there was not specific evidence of the duration of the interaction, there was
evidence of a window of opportunity for violence given that the defendants robbed a
crowded bar while it was open and the plan was to hold the patrons at gunpoint while the
robbery occurred. (See People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant had
to be aware of risk of resistance to armed invasion]; cf. Clark, supra, 63 Cal.4th at pp.

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620–621 [robbery was planned for after closing time so period of interaction between
perpetrators and victims was designed to be limited].)
Defendant also points to In re Moore (2021) 68 Cal.App.5th 434 (Moore) in which
the court held a defendant’s youth at the time of his offenses is a relevant factor in the
reckless indifference analysis. (Id. at pp. 453–454.) In that case, the court held the
evidence was insufficient to establish the defendant, Moore, acted with reckless
indifference to human life. (Id. at pp. 451–452.) Moore sat in the car while his
codefendant committed an armed robbery during which the codefendant shot the victim.
(Id. at p. 452.) Although Moore was aware his codefendant had a gun, Moore did not use
a gun or supply the gun to his codefendant. (Ibid.) He sat in the car while the robbery
occurred and drove away from the scene with his codefendant immediately afterward.
(Ibid.) The Moore court held, even if the evidence of Moore’s role in planning the
robbery, his failure to aid the victims, and his laughter with his confederates after the
shooting could support a finding of reckless indifference for an adult, such evidence was
insufficient to establish Moore, who was 16 at the time of the shooting, acted with the
requisite mental state. (Id. at p. 453.) Rather, considering the totality of the
circumstances, including Moore’s youth at the time of the offenses, the Moore court
concluded “no rational trier of fact could find that Moore acted with reckless indifference
to human life.” (Id. at p. 455.)
The facts of the present case are markedly different from Moore. Here, defendant
actively participated in the underlying robbery. He was armed with a gun he shot and
wielded inside the bar, using it to keep the other bar patrons at bay while his confederate
completed the robbery. He was 19 at the time of the crimes. While this is young enough
that the law recognizes it may reduce culpability in some circumstances, defendant was
not a minor at the time of the offenses. (See, e.g., § 3051, subds. (a)(1), (b) [allowing
youth offender parole hearings for those under 25 “at the time of the controlling
offense”].) And he points to no evidence showing that his youth, or other personal

18.
characteristics, diminished his ability to appreciate the danger created by his conduct.
Indeed, he joined Bernal and Bracamonte as armed backup after hearing shooting in the
bar, and then shot his own weapon in the crowded bar after seeing the dying victim lying
on the ground. (See People v. Medina, supra, 245 Cal.App.4th at p. 793.) Even
considering defendant’s age at the time of the offenses as a relevant factor in the reckless
indifference analysis, the totality of the circumstances in this case supports the trial
court’s conclusion defendant acted with reckless indifference to human life; that is,
defendant was “aware of and willingly involved in the violent manner in which the
particular offense [was] committed.” (Banks, supra, 61 Cal.4th at p. 801.) Accordingly,
viewing the totality of the evidence in the light most favorable to the trial court’s
judgment, we conclude there was sufficient evidence to support the trial court’s denial of
defendant’s petition for resentencing. (See Clark, supra, 63 Cal.4th at pp. 622–623.)
DISPOSITION
The court’s order denying defendant’s section 1170.95 petition for resentencing is
affirmed.

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