People v. Sloan CA2/5

Filed 3/8/22 P. v. Sloan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B309076

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A970093-02)
v.

MELVIN SLOAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Larry P. Fidler, Judge. Affirmed.
Boyce & Schaefer and Robert E. Boyce, under appointment
by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
 Defendant and appellant Melvin Frezell Sloan appeals the
trial court’s order denying his petition for vacatur of his murder
conviction and resentencing under Senate Bill No. 1437 (Senate
Bill 1437) and Penal Code section 1170.95, 1 following an order to
show cause and hearing pursuant to section 1170.95, subdivision
(d)(3).
On appeal, Sloan argued that: (1) he was entitled to
mandatory resentencing under section 1170.95, subdivision
(d)(2); (2) the trial court erred by denying his petition without
holding a section 1170.95, subdivision (d)(3) hearing; (3) the trial
court erred by employing the substantial evidence standard; (4)
this court should conduct an independent review of the trial
court’s ruling; and (5) there is insufficient evidence in the record
to support the trial court’s ruling. The People challenged all of
Sloan’s contentions.
On October 5, 2021, before the briefing was completed in
this matter, the Governor signed Senate Bill No. 775 (Stats.
2021, ch. 551, §§ 1–2) (Senate Bill 775) which, effective January
1, 2022, amends section 1170.95. We invited the parties to file
supplemental briefing regarding the effect, if any, of Senate Bill
775 on Sloan’s case, in light of the fact that his appeal would still
be pending when the legislation went into effect. (See People v.
Vieira (2005) 35 Cal.4th 264, 306 [“‘[F]or the purpose of
determining the retroactive application of an amendment to a
criminal statute, a judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme
Court has passed’”].)

1 All further
statutory references are to the Penal Code
unless otherwise indicated.

2
 In his supplemental brief, Sloan argues that Senate Bill
775: (1) limits the evidence that a court may consider as part of
the record of conviction to evidence introduced at trial and the
procedural history contained in prior appellate opinions; and (2)
reaffirms that the standard the trial court is to apply is “proof
beyond a reasonable doubt” not “substantial evidence.”
The People respond that, even assuming that Senate Bill
775 applies retroactively to Sloan’s case, the amendments to
section 1170.95 effective January 1, 2022, do not affect the
outcome in this case.
We affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

The Murder2

“On June 1, 1988, at approximately 11:00 p.m., Beverly
Collins’ car was stolen after the ignition was ‘punched’ so that it
could only be operated by use of a screwdriver. . . .
Approximately one and one-half hours later, Mr. Sloan drove Mr.
Richmond, who was seated in the front passenger seat and armed
with a ‘Tech-10 Auto, [which was] similar to a[n] Uzi’ and Mr.
Ryals, who was seated in the rear of the car to the Venice area.
Mr. Richmond claimed they went to the area in order to commit a
robbery. Mr. Sloan drove the recently stolen car to a residence on
Brooks Street in Venice. Mr. Sloan and Mr. Ryals got out of the

2The facts are taken from the Court of Appeal’s
unpublished opinion in People v. Ryals, et al. (Feb. 26, 1993,
B046194) (Ryals) at pages 3 through 4.

3
car and approached the decedent. Mr. Sloan said, ‘Police,’ and
Mr. Ryals said, ‘Yes, we are the police.’ The decedent then began
to walk with Mr. Sloan and Mr. Ryals. Mr. Sloan and Mr. Ryals
‘backed off’ or ‘stepped back’ from the decedent one or two feet.
Mr. Richmond, who was still seated in the car, then suddenly
said, ‘Put your hands up,’ leaned over the roof of the car, and
fired two or three shots. The decedent was struck and died
shortly thereafter. Mr. Ryals and Mr. Sloan then jumped back
into the stolen car. Mr. Sloan drove away at a high rate of speed.
“Within minutes of the shooting of the decedent, Mr. Sloan
drove the stolen car next to an automobile driven by Joseph
Abdullah in which Debbie Fox was a passenger. Mr. Ryals, who
was seated in the backseat, said, ‘Crips, Crips, Crips’ and flashed
gang signs. One of the occupants of the car said, ‘“Die white
boy.”’ A high speed chase ensued and a shot was fired from the
passenger side of Ms. Collins’s stolen automobile into Mr.
Abdullah’s car which punctured the gas tank.
“As the car driven by Mr. Sloan continued to pursue Mr.
Abdullah and Ms. Fox, Santa Monica Police Department
Sergeant Barry Barcroft saw the chase. Sergeant Barcroft began
to pursue the car driven by Mr. Sloan. Sergeant Barcroft lost
sight of the stolen car briefly. When he saw the car again, Mr.
Ryals and Mr. Richmond had jumped from the stolen automobile.
Finally, Mr. Sloan was arrested. In the car, a clip containing live
ammunition which fit the weapon which could have been used to
shoot the decedent was found on the ‘front passenger side of the
vehicle.’ In the rear seat area, a nine millimeter round was
discovered. Mr. Richmond and Mr. Ryals were first detained and
later arrested in a nearby area where they had jumped out of the
stolen car driven by Mr. Sloan during the high speed chase

4
involving Sergeant Barcroft. A[n] Uzi with no clip or rounds in it
was found approximately 50 feet from the site of the initial
detention of Mr. Sloan and Mr. Richmond. Mr. Ryals had a
screwdriver in his pocket.”
After he was arrested, Richmond told the police that he
went to the area to commit a robbery. (Ryals, supra, B046194, at
p. 8.)

Trial

At trial, the prosecutor proceeded on two theories of
liability with respect to the murder: Sloan directly aided and
abetted Richmond in committing murder, or Sloan was guilty of
felony murder based on his participation in an attempted
robbery.
The jury found Sloan guilty of one count of murder (§ 187,
subd. (a) [count 1]), and two counts of attempted murder (§§ 187,
subd. (a)/664 [counts 2 & 3]). It found true the allegations that a
principal was armed with a firearm as to all counts (§ 12022,
subd. (a)(1)).
Sloan was sentenced to 34 years to life in prison.

Direct Appeal

On appeal, the appellate court affirmed the trial court’s
judgment in its entirety.
As relevant here, Sloan first contended that the evidence
was insufficient to support a finding of premeditation and
deliberation or shared criminal intent to kill. The Court of
Appeal disagreed. It explained: “The unique nature of the killing

5
was such as to indicate planning. The evidence was almost
entirely uncontradicted. Although premeditation ‘can occur in a
brief period of time,’ [citation], in the present case there was
overwhelming evidence that the murder was part of a calculated
and planned killing. Evidence of ‘planning activity’ [citation]
included: the theft of Ms. Collins’ automobile thereby making it
more difficult to identify the perpetrators of the crime; false
claims by Mr. Ryals and Mr. Sloan that they were police officers
in an effort to distract the decedent and induce him to comply
with their demands; the fact that just before the shots were fired,
both Mr. Ryals and Mr. Sloan stepped away thereby allowing Mr.
Richmond to fire without exposing his confederates to injury; Mr.
Richmond fired from behind the car which provided him with
both cover and concealment; there was no evidence of provocation
on the part of the decedent which supports the inference that the
attack was the ‘result of a deliberate plan rather than a “rash
explosion of violence”’ [citation]; the decedent was unarmed
[citation]; the trio’s flight after the shooting; and the fact that
immediately after the decedent was shot, an extraordinarily
violent effort was made to deliberately kill Mr. Abdullah. The
foregoing constituted substantial evidence the killing was willful,
deliberate, and premeditated.” (Ryals, supra, B046194, at pp. 5–
6.)
Sloan also appealed the trial court’s ruling admitting
Richmond’s statement to police that he went to the area to
commit a robbery, contending that the statement should have
been excluded as hearsay and that its admission violated Sloan’s
constitutional right to confront witnesses. The Court of Appeal
held that the statement was admissible as a statement against
interest. (Ryals, supra, B046194, at pp. 8–9.)

6
Section 1170.95 Petition

On January 18, 2019, Sloan filed a petition for resentencing
under section 1170.95, utilizing a standard form. 3 The court
appointed counsel.
The prosecution filed a response opposing Sloan’s petition
on January 10, 2020, arguing Sloan directly aided and abetted
the perpetrator in the murder of the victim or, in the alternative,
Sloan was a major participant in the underlying attempted
robbery who acted with reckless indifference to human life. The
prosecution attached the prior opinion of the Court of Appeal.
On April 3, 2020, Sloan filed a supplemental petition, or, in
the alternative, a reply in support of his petition for resentencing.
Sloan argued that: (1) Senate Bill 1437 is constitutional; (2) he
made a prima facie showing of eligibility because he was
convicted under a felony murder theory of liability; (3) he was
entitled to resentencing because there was insufficient evidence
that he committed malice murder or was a direct aider and
abettor; and (4) there was insufficient evidence that he
committed felony murder—i.e. that he was a major participant in
the attempted robbery who acted with reckless disregard for
human life.

3 Although the court did not deny the petition on this basis,
Sloan’s petition was not facially sufficient. Sloan attested that he
had been convicted of first degree felony murder and was not the
actual killer, but he did not deny that he aided and abetted the
perpetrator with intent to kill the victim, and did not deny that
he was a major participant in the attempted robbery who acted
with reckless indifference to human life. He did not attest that
he was convicted under the natural and probable consequences
doctrine.

7
 On August 31, 2020, the trial court issued an order to show
cause why relief should not be granted, and ordered the clerk to
notify the parties to set the matter for hearing. Sloan waived his
right to be present for the hearing.
On the morning of October 15, 2020, the prosecutor filed a
motion requesting that the trial court reconsider its issuance of
the order to show cause on the bases that (1) Sloan had presented
no new evidence and (2) the Court of Appeal had already upheld
Sloan’s murder conviction on a theory of express malice in its
prior opinion. Alternatively, the People argued that the record
showed Sloan was a major participant in the attempted robbery
who acted with reckless disregard for human life.
Later that same morning, the trial court held the hearing
on Sloan’s petition. At the hearing, the trial court stated that it
had read and considered all of the parties’ filings, including the
motion for reconsideration filed by the prosecution that morning.
Defense counsel pointed out that, with respect to new evidence,
Sloan’s reply cited a comment the shooter made to investigating
authorities that he had acted on impulse and that there was no
plan to shoot and kill anyone; the comment, which had been the
subject of a motion in limine, had not been admitted during trial.
Sloan’s counsel then submitted the matter. The prosecutor
requested that he be permitted to lodge a CD of the trial record
contained in the Attorney General’s file. The court granted the
request and directed the prosecutor to mark the CD as Exhibit
1.4 The court stated that it would issue a written decision as
soon as it was able to do so.

4 Exhibit 1 was not included in the record on appeal. This
court issued a letter to the parties on December 13, 2021,
ordering the parties to confer and either: (1) co-ordinate to

8
Trial Court’s Ruling

The trial court denied the petition in a minute order dated
November 4, 2020. We include the entirety of the trial court’s
ruling for clarity here, although it is repetitive of the facts and
procedural history above:
“Facts Including Observations of the Court of
Appeal Taken From the Opinion of the Court of
Appeal

“On June 1, 1988, at approximately 11:00 p.m.,
Beverly Collins’ car was stolen after the ignition was
‘punched’ so that it could only be operated by use of a
screwdriver. . . . Approximately one and one-half
hours later, Mr. Sloan drove Mr. Richmond, who was
seated in the front passenger seat and armed with a
‘Tech-10 Auto, [which was] similar to a[n] Uzi’ and
Mr. Ryals, who was seated in the rear of the car to
the Venice area. Mr. Richmond claimed they went to
the area in order to commit a robbery. Mr. Sloan
drove the recently stolen car to a residence on Brooks
Street in Venice. Mr. Sloan and Mr. Ryals got out of
the car and approached the decedent. Mr. Sloan said,
‘Police,’ and Mr. Ryals said, ‘Yes, we are the police.’

augment the appellate record with the trial court record in Los
Angeles Superior Court, Case No. A970093, or (2) if the trial
court record could not be located, file declarations so stating and
describing their efforts to obtain it. The parties complied, and
our appellate record was augmented to include the trial court
record.

9
The decedent then began to walk with Mr. Sloan and
Mr. Ryals. Mr. Sloan and Mr. Ryals ‘backed off’ or
‘stepped back’ from the decedent one or two feet. Mr.
Richmond, who was still seated in the car, then
suddenly said, ‘Put your hands up,’ leaned over the
roof of the car, and fired two or three shots. The
decedent was struck and died shortly thereafter. Mr.
Ryals and Mr. Sloan then jumped back into the stolen
car. Mr. Sloan drove away at a high rate of speed.
“Within minutes of the shooting of the
decedent, Mr. Sloan drove the stolen car next to an
automobile driven by Joseph Abdullah in which
Debbie Fox was a passenger. Mr. Ryals, who was
seated in the back seat, said, ‘Crips, Crips, Crips’ and
flashed gang signs. One of the occupants of the car
said, ‘“Die white boy.”’ A high speed chase ensued
and a shot was fired from the passenger side of Ms.
Collins’s stolen automobile into Mr. Abdullah’s car
which punctured the gas tank.
“As the car driven by Mr. Sloan continued to
pursue Mr. Abdullah and Ms. Fox, Santa Monica
Police Department Sergeant Barry Barcroft saw the
chase. Sergeant Barcroft began to pursue the car
driven by Mr. Sloan. Sergeant Barcroft lost sight of
the stolen car briefly. When he saw the car again,
Mr. Ryals and Mr. Richmond had jumped from the
stolen automobile. Finally, Mr. Sloan was arrested.
In the car, a clip containing live ammunition which
fit the weapon which could have been used to shoot
the decedent was found on the ‘front passenger side

10
of the vehicle.’ In the rear seat area, a nine
millimeter round was discovered. Mr. Richmond and
Mr. Ryals were first detained and later arrested in a
nearby area where they had jumped out of the stolen
car driven by Mr. Sloan during the high speed chase
involving Sergeant Barcroft. A[n] Uzi with no clip or
rounds in it was found approximately 50 feet from
the site of the initial detention of Mr. Sloan and Mr.
Richmond. Mr. Ryals had a screwdriver in his
pocket.
“The unique nature of the killing was such as to
indicate planning. The evidence was almost entirely
uncontradicted. Although premeditation ‘can occur
in a brief period of time,’ in the present case there
was overwhelming [evidence] that the murder was
part of a calculated and planned killing. Evidence of
‘planning activity’ included: the theft of Ms. Collins’
automobile thereby making it more difficult to
identify the perpetrators of the crime; false claims by
Mr. Ryals and Mr. Sloan that they were police
officers in an effort to distract the decedent and
induce him to comply with their demands; the fact
that just before the shots were fired, both Mr. Ryals
and Mr. Sloan stepped away thereby allowing Mr.
Richmond to fire without exposing his confederates to
injury; Mr. Richmond fired from behind the car which
provided him with both cover and concealment; there
was no evidence of provocation on the part of the
decedent which supports the inference that the
attack was the ‘result of a deliberate plan rather than

11
a “rash explosion of violence”’; the decedent was
unarmed; the trio’s flight after the shooting; and the
fact that immediately after the decedent was shot, an
extraordinarily violent effort was made to
deliberately kill Mr. Abdullah. The foregoing
constituted substantial evidence the killing was
willful, deliberate and premeditated.
“As is relevant to this petition, petitioner was
convicted of first degree murder under one of two
theories:
“1. Aiding and abetting;
“2. Felony murder
“As to aiding and abetting, the evidence shows
and the court of appeal found that petitioner and his
two co-defendants were acting together and in fact,
petitioner and one of his co-defendants, stepped away
from the decedent to allow the other co-defendant to
get a clear shot.
“As to felony murder, the Banks/Clark factors
should be viewed as follows:
“((2015) People v. Banks 61 Cal.4th 788; (2016)
People v. Clark 63 Cal.4th 522)
“Petitioner’s act of stepping out of the way
leads to the conclusion he was aware of the plan to
shoot the victim and knew a gun was going to be
used. For the same reason, petitioner would have
known of the risk and dangers involved in a shooting.
“The petitioner was present and did in fact
facilitate the killing. The petitioner fled the scene

12
 and went looking for a second victim. Petitioner did
nothing to minimize the risk to the victim.
“The People have proved, beyond a reasonable
doubt, that [sic] each element of murder under
current law and that the petitioner was a major
participant in an attempted robbery and acted with
reckless indifference to human life and with the
intent to kill, aided and abetted the actual killer in
the commission of the murder in the first degree.
“The petition is denied.”

Sloan timely appealed.

DISCUSSION

Senate Bill 775 is currently in effect. By its own terms,
section 1170.95 applies to Sloan’s case. (§ 1170.95, subd. (a)
[persons convicted of murder under the felony murder theory of
liability may petition for resentencing].)
Pursuant to amended section 1170.95, an offender must file
a petition in the sentencing court averring that: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or
attempted murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could have

13
been convicted of murder or attempted murder[;] [¶] [and] (3) The
petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also
§ 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state
“[w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court, if
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3).)
The prosecutor shall file a response within 60 days of the service
of the petition, and the petitioner may file a reply within 30 days
of the response. (§ 1170.95, subd. (c).) When briefing has been
completed, “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause. If
the court declines to make an order to show cause, it shall
provide a statement fully setting forth its reasons for doing so.”
(Ibid.) Within 60 days of issuance of the order to show cause, the
trial court shall hold a hearing “to determine whether the
petitioner is entitled to relief.” (§ 1170.95, subd. (d)(1).)
“At the 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 guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. The admission of evidence in the hearing shall be governed

14
by the Evidence Code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless
the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(§ 1170.95, subd. (d)(3).) The trial court acts as the finder of fact
when determining whether the prosecution has met its burden
beyond a reasonable doubt. (Ibid.; People v. Gentile (2020) 10
Cal.5th 830, 855 [“section 1170.95 requires the superior court to
determine on an individualized basis, after considering any new
or additional evidence offered by the parties, whether the
defendant is entitled to relief”].)

15
Sloan is Not Entitled to Relief Under Section 1170.95,
Subdivision (d)(2)

Sloan first contends that he is entitled to relief under
section 1170.95, subdivision (d)(2), which provides, “If there was
a prior finding by a court or jury that the petitioner did not act
with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s
conviction and resentence the petitioner.”5 Sloan argues that the
magistrate’s dismissal of an attempted robbery/murder special
circumstance allegation at the preliminary hearing is a “prior
finding of the court” that entitles him to resentencing under that
section.
Sloan’s argument lacks merit. A magistrate’s dismissal of a
special circumstance allegation at the preliminary hearing stage
is not equivalent to a finding of a court or the jury. The role of a
magistrate is limited by statute. (People v. Uhlemann (1973) 9
Cal.3d 662, 667; §§ 871, 872.) Unlike a finding by a court or the
jury, a magistrate’s dismissal of a charge for insufficient evidence
is not “a valid determination on the merits of the charges against
him.” (Id. at pp. 666–667.) There is no basis for treating the
magistrate’s determination as if it were a court’s finding, and
section 1170.95, subdivision (d)(2), does not require resentencing
on the basis of a magistrate’s dismissal of a charge at a
preliminary hearing. Sloan’s contention fails.

5 Senate Bill 775did not modify this sentence of section
1170.95, subdivision (d)(2), and Sloan did not make any
additional arguments related to this issue in his supplemental
letter brief.

16
The Trial Court Held a Hearing Pursuant to Section
1170.95, Subdivision (d)(3) and Employed the Beyond a
Reasonable Doubt Standard

Sloan next argues that the trial court did not conduct a
hearing as required under section 1170.95, subdivision (d)(3).
Alternatively, Sloan contends that even if the trial court did
conduct a section 1170.95, subdivision (d)(3) hearing, the trial
court failed to act as an independent fact-finder and employ the
correct standard of proof beyond a reasonable doubt in denying
his petition for resentencing. Both arguments are belied by the
record.
The record demonstrates that the trial court held a hearing
pursuant to section 1170.95, subdivision (d)(3). The trial court
appointed counsel, accepted briefing, issued an order to show
cause, and set an evidentiary hearing. Although the prosecutor
filed a motion requesting that the court reconsider its finding
that Sloan made the prima facie showing entitling him to a
hearing, the court did not grant the motion, and did not revisit
the question of Sloan’s prima facie eligibility under section
1170.95, subdivision (c). The court gave the parties the
opportunity to introduce additional evidence and to argue the
matter at the hearing. Sloan’s counsel offered as new or
additional evidence a statement of the shooter, Richmond, that
had not been admitted at trial; in that statement, Richmond told
investigating authorities that he had acted on impulse and that
there was no plan to shoot and kill anyone.
The trial court made an independent ruling. The court
ruled in a detailed written minute order that, as to aiding and
abetting, “the evidence shows” that Sloan acted in concert with

17
the shooter, stepping back to allow him to get a clear shot at the
victim. With respect to felony murder, the trial court analyzed
the facts under the factors set forth in People v. Banks (2015) 61
Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522
(Clark). The court found that Sloan was a major participant in
the attempted robbery and acted with reckless indifference to
human life: Sloan stepped out of the way to give his compatriot a
clear shot at the victim, which the court found proved that Sloan
knew a gun would be used in the robbery and that Sloan was
aware of a plan to shoot the victim. Sloan knew of the dangers
and risks to the victim. Sloan was present and facilitated the
killing. Afterwards, Sloan did nothing to aid the victim, and fled
the scene. The trial court clearly conducted its own independent
analysis of the facts, as the Court of Appeal did not discuss
whether Sloan was a major participant who acted with reckless
indifference in its opinion.
The trial court did not erroneously employ the substantial
evidence standard of proof. The trial court prefaced its ruling by
including “facts and observations,” which it quoted from the
Court of Appeal’s opinion. The reference to “substantial
evidence” was contained in the lengthy quote of the Court of
Appeal’s opinion, not in the trial court’s own ruling on the section
1170.95 petition that followed the recitation of the factual and
procedural history of the case. In its ruling, the trial court relied
on what “the evidence shows” . . . and found “[t]he People have
proved, beyond a reasonable doubt . . . each element of murder
under the current law and that the petitioner was a major
participant in an attempted robbery and acted with reckless
indifference to human life and with the intent to kill, aided and
abetted the actual killer in the commission of the murder.”

18
 In his supplemental letter brief, Sloan argues that section
1170.95, subdivision (d)(3), as amended by Senate Bill 775, limits
consideration of a prior opinion of the Court of Appeal to the
procedural history of the case recited therein. Even assuming
that Sloan’s interpretation of the amendments to section 1170.95,
subdivision (d)(3) is correct, we do not interpret the trial court’s
inclusion of the facts in the prior appellate opinion as an
indication that the court relied on the facts as recited in the
opinion, rather than reviewing the record of the trial (which was
lodged at the hearing) and forming an independent view of the
evidence presented at trial. The trial court’s ruling indicates that
it reviewed “the evidence.” Sloan does not argue that the facts
included in the trial court’s ruling are an inaccurate reflection of
the facts introduced at trial, and our review of the evidence
contained in the trial record does not reveal inaccuracies or
omissions.

This Court Employs the Substantial Evidence Standard
When Reviewing a Trial Court’s Denial of an 1170.95
Petition Following a Hearing Held Pursuant to
Subdivision (d)(3).

Sloan next argues that this court should independently
review the trial court’s ruling. This contention is also without
merit.
The courts of appeal have uniformly held that this court
applies the substantial evidence standard when reviewing a trial
court’s order denying a section 1170.95 petition following a
subdivision (d)(3) hearing. (See People v. Ramirez (2021) 71
Cal.App.5th 970, 985; People v. Bascomb (2020) 55 Cal.App.5th

19
1077, 1087; People v. Williams (2020) 57 Cal.App.5th 652, 663
(Williams).)
Sloan first contends that we should review the trial court’s
ruling independently because the trial court relied on the Court
of Appeal’s opinion and the recitation of the facts contained
therein. As we discussed, post, although the trial court began its
ruling by recounting the Court of Appeal’s opinion and
observations, the court engaged in independent fact-finding when
ruling on Sloan’s petition. The prosecutor lodged the Attorney
General’s file on the case, which included the clerk’s transcript
and reporter’s transcript from Sloan’s trial. Sloan’s assertion
that the trial court relied solely on the Court of Appeal’s opinion
is without merit.
Sloan next contends that we should review the trial court’s
ruling independently, because the court’s inquiry was limited to a
“cold record,” without the benefit of in-person observations. He
argues that under these circumstances the trial court has no
advantage over an appellate court when making factual findings,
and its findings should not be given deference. Our Supreme
Court has held that “even if the trial court is bound by and relies
solely on the record of conviction to determine eligibility, [where]
the question . . . remains a question of fact, [there is] no reason to
withhold the deference generally afforded to such factual
findings.” (People v. Perez (2018) 4 Cal.5th 1055, 1066.)
The cases Sloan cites in support of his “cold record”
argument are readily distinguishable from the case at bar. In
People v. Vivar (2021) 11 Cal.5th 510, 524 (Vivar), our Supreme
Court held that independent review is appropriate when
evaluating issues that are predominantly questions of law,
specifically: whether, in the context of a plea bargain, counsel’s

20
advice regarding the immigration consequences of a plea of no
contest was inadequate and, if so, whether the error was
prejudicial. In People v. Maury (2003) 30 Cal.4th 342 (Maury),
the Supreme Court held that independent review is appropriate
when considering the legal question of whether incriminating
statements are voluntary where the incriminating statement is
tape-recorded and there is no testimony that contradicts the
statement. In Vivar and Maury, the issues decided were legal or
predominantly legal, not factual. In contrast, the questions of
Sloan’s intent and whether he was a major participant in an
attempted robbery who acted with reckless indifference to human
life are determinations of fact.

Substantial Evidence Supports the Trial Court’s Findings

Finally, Sloan argues that the trial court’s findings that
Sloan (1) intended to kill, and (2) was a major participant in the
attempted robbery who acted with reckless indifference to human
life, are not supported by substantial evidence in the record. We
disagree.
“The scope of our review for substantial evidence is well
settled. The test is not whether the People met their burden of
proving beyond a reasonable doubt that [the petitioner] was
ineligible for resentencing, but rather ‘whether any rational trier
of fact could have’ made the same determination, namely that
‘[t]he record . . . disclose[s] . . . evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find [as did the superior court]. [Citation.] In applying this
test, we review the evidence in the light most favorable to the
prosecution and presume in support of the [order] the existence of

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every fact the [superior court] could reasonably have deduced
from the evidence. [Citation.] “Conflicts [in the evidence] . . .
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge . . . to
determine the . . . truth or falsity of the facts upon which a
determination depends. [Citation.]”’ (People v. Zamudio (2008)
43 Cal.4th 327, 357.)” (Williams, supra, 57 Cal.App.5th at p.
663.)

Direct Aider and Abettor/Intent to Kill

Substantial evidence supports the trial court’s finding that
Sloan aided and abetted the murder with intent to kill. Sloan
drove his compatriots to the decedent’s home with Richmond
sitting next to him armed with a “‘Tech-10 Auto, similar to a[n]
Uzi.’” When they reached the decedent’s home, Sloan and Ryals
exited the vehicle and lured the decedent toward the car by
claiming to be police officers. Sloan personally identified himself
as “police.” Sloan and Ryals convinced the victim to walk with
them, and then stepped away from the victim, giving Richmond a
clear shot. As soon as the victim was hit, Sloan and Ryals got
back into the vehicle, and Sloan drove the men away from the
scene. There was no evidence that Sloan tried to stop the
shooting, help the victim, or cease in his facilitation of the
murder. Instead, he helped Richmond and Ryals escape the
scene, and pursued another vehicle in a high speed chase in
which one of the three men shot at the other vehicle. All of the
circumstantial evidence leads to the reasonable inference that
Sloan worked with Richmond and Ryals to ambush the victim
and kill him.

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 Felony Murder

Major Participant

In determining whether the defendant was a major
participant in the underlying felony, “the ultimate question [is]
whether the defendant’s participation ‘in criminal activities
known to carry a grave risk of death’ [citation] was sufficiently
significant to be considered ‘major’ [citations.]” (Banks, supra, 61
Cal.4th at p. 803.) To do so, we consider multiple factors,
including: “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?” (Banks, supra, 61 Cal.4th at p. 803, fn.
omitted.) “No one of these considerations is necessary, nor is any
one of them necessarily sufficient.” (Ibid.)
Substantial evidence supports the trial court’s finding that
Sloan was a major participant in an attempted robbery. It can be
inferred that Sloan was aware that Richmond was armed with a
“‘Tech-10 Auto’” from the fact that Richmond was seated next to
Sloan in the vehicle. Sloan’s subsequent action of stepping back
to give Richmond a clear shot indicates both that he was aware of
the gun and that he knew it would be used. Sloan played a
crucial role in the attempted robbery: he transported Richmond

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and Ryals to the victim’s home, lured the victim by claiming to be
a police officer, and then acted as the getaway driver. He was
present at the scene, and in a position to prevent the murder, but
instead played an active role in bringing about the victim’s death.
If not for Sloan’s actions, the victim would not have been so well-
positioned for Richmond to shoot him. After the victim was shot,
Sloan immediately fled the scene and enabled Ryals and
Richmond’s escape as his passengers. Sloan’s actions indicated
no concern for the victim or for anyone else—he left the scene of
one murder to facilitate a second shooting. Although there was
no evidence presented regarding whether Sloan helped plan the
attempted robbery or supplied Richmond with the “‘Tech-10
Auto,’” these factors do not out-weigh the other abundant
evidence of Sloan’s major participation in the crime.

Reckless Indifference

“‘A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk 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, its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.’
(Model Pen. Code § 2.02, subd. (2)(c).)” (Clark, supra, 63 Cal.4th
at p. 617, fn. omitted.)
In determining whether the defendant exhibited “‘reckless
indifference to human life’ within the meaning of section 190.2,
subdivision (d), . . . we consider the specific facts of [the] case in

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light of some of the case-specific factors that this court and other
state appellate courts have considered in upholding a
determination of reckless indifference to human life in cases
involving nonshooter aiders and abettors to commercial armed
robbery felony murders. . . . ‘[N]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ (Banks,
supra, 61 Cal.4th at p. 803.)” (Clark, supra, 63 Cal.4th at p. 618.)
These factors include: (1) knowledge, use, and number of
weapons; (2) physical presence at the crime and opportunity to
restrain the crime and/or aid the victim; (3) the duration of the
felony; (4) the defendant’s knowledge of the likelihood of killing;
and (5) the defendant’s efforts to minimize the risk of violence
during the felony. (Clark, supra, at pp. 618–622.)
Substantial evidence also supports the trial court’s finding
that Sloan acted with reckless indifference to human life. Many
of the same factors relevant to the major participation inquiry are
relevant here as well. The evidence shows that Sloan was aware
that Richmond was armed. He was present at the scene and
could have potentially aided the victim. Instead, he insured that
the victim was placed in harm’s way by luring him closer to the
vehicle where Richmond waited with the “‘Tech-10 Auto’” and
then stepping aside to allow Richmond to get a good shot. These
actions demonstrate that Sloan knew that the likelihood that the
victim would be killed was high. He made no efforts to minimize
the risk of violence. The only factors that weigh in Sloan’s favor
are that the crime occurred quickly and Richmond was armed
with a single gun, which do not outweigh the factors that militate
against him.

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 DISPOSITION

We affirm the trial court’s order denying Sloan’s petition
for resentencing under section 1170.95.

MOOR, J.

We concur:

BAKER, Acting P.J.

KIM, J.

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