People v. Grajeda CA2/4

Filed 3/25/22 P. v. Grajeda CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B309112

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A019866)
v.

DANIEL G. GRAJEDA,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Gary J. Ferrari, Judge. Affirmed.
Verna Wefald, 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, Assistant
Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Daniel Grajeda appeals the denial of his petition
for resentencing under Penal Code section 1170.95.1 He contends
the trial court erred in concluding that he was a major
participant and acted with reckless indifference during an armed
robbery that turned deadly. We conclude that substantial
evidence supports the trial court’s decision and affirm.
FACTS AND PROCEDURAL HISTORY2
The Crime
Prosecution Evidence
At 9:00 p.m. on March 28, 1979, appellant called Alfred
Armijo to discuss buying heroin. Armijo was asleep at the time,
but his girlfriend, Debbie, answered the phone and invited
appellant to come over. Appellant and another man, John
Stinson, arrived at Armijo’s home at 10:00 p.m. Debbie answered
the door but would not allow appellant to come in until Stinson
returned to the car.
As Debbie opened the door, Armijo awoke and ran to the
door. Appellant, who had one foot in the doorway, drew a gun
and pointed it at Armijo and Debbie as they tried to close the
door. Appellant said, “Stand back. This is a holdup,” and called
Stinson for help. Stinson arrived at the door with his own gun,
and he and appellant forced their way into the living room. A
struggle ensued. Appellant fired his gun once and said, “Give up
the dope right now.”

1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The facts and procedural history of appellant’s crime are
drawn from our opinion in appellant’s direct appeal, People v.
Grajeda (Apr. 8, 1983, 2d Crim. No. 41516) [nonpub. opn.].

2
 Later—it is unclear how much later—appellant and
Stinson led Armijo and Debbie into the street at gunpoint.
Several neighbors, including Armijo’s brother, Steve, came out to
see what was happening. Steve, who knew appellant, asked him
why he was doing this. Appellant replied, “All we want is the
dope. That’s all.” Appellant then said, “Let’s go. The police are
coming.” Stinson then said, “Should I shoot him? Should I shoot
him?” Appellant did not reply. Stinson, who was holding onto
Armijo, shot and killed him. Appellant and Stinson then ran to a
car and drove away.
Defense Evidence
Appellant testified that he and another person, whom he
refused to identify but said was not Stinson, went to Armijo’s
house to trade some guns for heroin. Appellant only wanted to
buy drugs, not commit a robbery. When Debbie let appellant into
the house, Armijo “freaked out” and jumped on appellant.
Appellant’s gun went off during the ensuing struggle.
Appellant’s unnamed companion then “crashed in the door”
and joined the fight. Later—again, it is unclear how much later—
appellant, his companion, Armijo, and Debbie all went outside to
go to Steve’s house across the street, where they planned to look
for heroin. Appellant heard a gunshot from his companion and
saw Armijo “laid out.” Appellant and his companion then jumped
into their car and fled.
Charges and Conviction
Appellant and Stinson were charged with murder (§ 187),
burglary (§ 459), attempted robbery (§§ 211, 664), and assault by
means of force likely to produce great bodily injury (§ 245). The
information further alleged the special circumstance that the
murder was committed during the commission or attempted

3
commission of a robbery (§ 190.2, subd. (a)(17)), and that
appellant and Stinson each personally used a handgun while
committing all four crimes (§ 12022.5).
Appellant and Stinson were tried separately. At
appellant’s first trial, the jury found him guilty of assault by
means of force likely to produce great bodily injury and found the
related gun enhancement true. The jury hung on the remaining
counts and allegations, and mistrial of those counts and
allegations was declared. At appellant’s second trial, the jury
found him guilty of first degree murder, burglary, and attempted
robbery, and found the gun enhancements true. The jury did not
find the special circumstance allegation true.
The court sentenced appellant to 25 years to life for the
murder and a consecutive collective term of four years, four
months for the other crimes.
Direct Appeal
On direct appeal, appellant challenged the trial court’s
refusal to instruct on second degree murder, voluntary
manslaughter, and involuntary manslaughter. In rejecting this
challenge, we stated: “The jury was instructed concerning first
degree felony murder and first degree felony murder based upon
aiding and abetting. The prosecution of the case was based on
evidence that [Armijo] was killed by appellant’s companion
during the attempted commission of a robbery and hence was
first degree murder under the felony-murder rule. [¶] . . . [¶]
Under the People’s theory of the case, appellant was guilty of first
degree murder under the felony-murder rule or no crime at all.
The prosecution’s evidence showed that appellant and Stinson
went to the home of Debbie and [Armijo] with the intent to rob
them of their drugs. During the attempted robbery, [Armijo] was

4
murdered by Stinson. If the jury accepted the defense theory of
the case that no robbery was intended or attempted, then the
felony-murder rule would not apply and appellant would not be
guilty of murder in any degree. The prosecution did not proceed
on any theory other than felony murder. There was no evidence
presented in the case on which the jury could have returned a
verdict of second degree murder or manslaughter.” (People v.
Grajeda (Apr. 8, 1983, 2d Crim. No. 41516) [nonpub. opn.].
We also rejected appellant’s contention that the murder
weapon should have been suppressed. In our discussion of that
issue, we listed the facts asserted in the affidavit supporting the
search warrant of Stinson’s parents’ home, where the weapon
was found two days after the incident. Those facts included
appellant’s arrest with Stinson at Stinson’s apartment shortly
after the murder; statements appellant made in the presence of a
confidential informant, including identifying the murder weapon
as a .357 Magnum and expressing disbelief that the police failed
to recover it at the time of the arrests (it was “hidden” under a
bandana in Stinson’s dining room); witness descriptions of the
gun; and Stinson’s mother cleaning out Stinson’s apartment two
days after the arrest. (People v. Grajeda (Apr. 8, 1983, 2d Crim.
No. 41516) [nonpub. opn.].)
We affirmed the judgment of conviction. (See People v.
Grajeda (Apr. 8, 1983, 2d Crim. No. 41516) [nonpub. opn.].
Resentencing Petition
Petition and Briefing
On March 12, 2019, appellant filed a form petition for
resentencing under section 1170.95. The trial court appointed
counsel for appellant and directed the prosecution to respond to
appellant’s petition.

5
 In its opposition, the prosecution argued that appellant was
ineligible for relief under section 1170.95 because he was a major
participant who acted with reckless indifference to human life
under the relevant case law, including People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark). Citing our appellate opinion, which it attached as an
exhibit,3 the prosecution argued that appellant’s role in the crime
“place[d] him high on the culpability spectrum” because he
planned and initiated the robbery, used a loaded firearm as a
“show of force” during the struggle to enter Armijo’s home, was
present at the scene when Armijo was killed, ignored Stinson’s
query about whether Stinson should shoot Armijo, and fled the
scene immediately without rendering aid to Armijo.
In his reply, appellant argued that he was not a major
participant under Banks and did not act with reckless
indifference under Clark because there was no evidence of
planning; there was no evidence that appellant supplied the
firearms, which appellant conceded he used and fired; there was
no evidence of increased risk to human life or knowledge that

3 The prosecution also attached transcripts of appellant’s
sentencing hearing and a 2003 parole board decision denying
appellant’s request for parole. The sentencing transcript includes
a brief exchange in which appellant’s counsel disputed the
probation report’s allegation that appellant was affiliated with a
gang; no gang allegations were included in the information or
tried at trial. The trial court stated that it would not consider the
alleged gang affiliation when sentencing appellant. The
relevance of the parole board hearing is unclear; it details
discipline and convictions appellant suffered in prison, as well as
alleged gang affiliation, but does not shed light on the underlying
crime or convictions.

6
Stinson was inclined to use excessive violence; appellant
attempted to abandon the crime before Stinson fired the fatal
shot; appellant made clear he only intended to rob, not kill, and
there was no evidence he heard what Stinson said; and he and
Stinson left Debbie to assist Armijo. Appellant also pointed to
the jury’s rejection of the robbery-murder special circumstance.
Hearing
The court heard appellant’s petition on October 26, 2020.
The prosecutor largely conceded that appellant made a prima
facie showing of eligibility for relief and asserted that he was
“okay with the court going into a full blown O.S.C. hearing.”
Appellant’s counsel raised no objection. The court noted that the
prosecutor bore the burden of proving beyond a reasonable doubt
that appellant was ineligible. However, it allowed appellant’s
counsel to argue first and to have the “last word.” Neither side
presented evidence beyond that attached to the briefs.
Appellant’s counsel conceded that appellant “was probably
involved in some way in the planning” of the offense, given that
appellant “made the phone call that set the robbery up.”
However, he argued there was no evidence that appellant
provided the guns, which “were in Mr. Stinson’s possession” after
the crime. Counsel also asserted there was no evidence that
appellant knew Stinson was violent, or heard Stinson ask,
“Should I shoot him?” Counsel argued that appellant was “trying
to abandon the crime” when Stinson asked about shooting
Armijo, and Stinson shot so quickly that there was nothing
appellant could have done to prevent the incident. In response to
questions from the court, appellant’s counsel acknowledged that
appellant brought a gun with him to the scene, and discharged
the gun during the scuffle at the door. Counsel characterized

7
appellant’s shot as either “a warning shot to stop the victim from
resisting,” or “an accidental discharge during the struggle,” and
emphasized that appellant did not attempt to hurt Armijo or
Debbie after that point.
The prosecutor agreed that appellant had at least some role
in planning the crime. He also characterized appellant as the
“leader” during the crime: “he was the one in charge and Stinson
was there to assist him.” The prosecutor pointed to Stinson’s
query about whether to shoot Armijo, and argued that appellant
“basically gave the green light to Stinson to shoot and kill the
victim” by remaining silent rather than telling Stinson not to
shoot. The prosecutor also argued that appellant should have
known through “common sense” that the armed robbery would be
dangerous, particularly where the intended target was a drug
dealer at a drug house who was “likely going to be armed with a
weapon as well.” The prosecutor added that appellant was
“committing a crime with a fellow gang member, which . . . adds
to the awareness of the petitioner knowing that the crime was
dangerous.” The prosecutor also suggested that appellant’s
conviction for assault showed that he discharged the firearm
intentionally, and pointed out that he fled with Stinson rather
than aiding Armijo.
The prosecutor asserted that the duration of the crime
evinced reckless indifference, as Armijo and Debbie were “held at
gunpoint for a substantial period of time.” The prosecutor
conceded there was “no direct evidence” that appellant and
Stinson previously committed a crime together, but again
asserted that “they were gang members of the same gang.” The
prosecutor also argued that appellant “had to have known” that
Stinson was capable of murder when Stinson explicitly inquired

8
about shooting Armijo, but appellant nevertheless failed to take
steps to prevent the shooting. The prosecutor further argued that
appellant “didn’t do anything to minimize the risk during the
felony,” and instead heightened it by bringing a loaded weapon
and failing to respond to Stinson.
In response to the prosecutor’s argument, appellant’s
counsel disputed that the target of the robbery—a drug dealer—
made the crime more dangerous than other armed robberies.
Counsel asserted that Armijo was a “lower level dealer” who
“started an assault” on appellant as soon as appellant came to the
door. Counsel also disputed that appellant was the leader,
arguing, “we don’t know if Mr. Stinson’s inquiry as to whether he
should shoot was asking for a second opinion or was just, you
know, a spontaneous statement . . . .” Counsel further argued
that appellant might not have heard Stinson, pointing out that
they were outside, in the presence of multiple people, and that
appellant was having a conversation with Steve when Stinson
made the inquiry. Additionally, counsel challenged the assertion
that the crime was of substantial duration; he contended that
appellant and Stinson led Armijo and Debbie into the street
“within a few seconds” of appellant’s gunshot, which the
neighbors heard and came outside to investigate.
Ruling
In a written ruling issued November 2, 2020, the court
denied the petition. It concluded the prosecution met its burden
of proving beyond a reasonable doubt that appellant was a major
participant who acted with reckless indifference.
The court first concluded that appellant was a major
participant in the crime. It found that appellant played a
substantial role in planning the crime, as he initiated the

9
incident by calling Armijo, went to Armijo’s home with Stinson
while Armijo was asleep, and forced his way into the residence.
The court also found that appellant brought a loaded firearm to
the residence, pointed it at Armijo and Debbie, and fired the
weapon inside the home. In considering appellant’s awareness of
the danger posed by the crime, the court reiterated that appellant
went to Armijo’s house at night, armed, and accompanied by an
armed companion. It also noted, “there was a reference to gang
membership in the transcript.” The court found that appellant
was present when the shooting occurred, and “did nothing to
prevent the murder or assist the victim such as saying NO to the
question asked by the codefendant.” The court also found that
appellant fled with Stinson immediately following the shooting
and did not render aid to Armijo.
The court also concluded that appellant acted with reckless
indifference to human life during the crime. It found that
appellant used his weapon to force his way into the victims’
home, fired his weapon inside, and then led the victims into the
street, where he remained for the duration of the incident. The
court noted that “no evidence was adduced that Petitioner made
any effort to limit the duration of the interaction between the
parties nor minimize the risk thereto.” The court considered
whether appellant had “reason to trust his cohorts to be
peaceable,” a question it answered by finding that appellant and
Stinson were both armed, and “both were apparently gang
members.” Finally, the court reiterated that appellant “remained
mute” rather than tell Stinson not to shoot Armijo, and “did
absolutely nothing to save the life of the victim.”

10
 DISCUSSION
Senate Bill 1437 and Section 1170.95
Senate Bill No. 1437 (Stats. 2018, ch. 1015; SB 1437)
eliminated natural and probable consequences liability for aiders
and abettors of murder and restricted the scope of the felony
murder rule by amending sections 188, subdivision (a)(3) and
189, subdivision (e).4 (People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis)). Section 188, subdivision (a)(3) now bars the imputation
of malice to a person who has merely participated in a crime,
while section 189, subdivision (e) allows felony murder liability
only when a 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.” (§ 189, subd.
(e)(3).)
SB 1437 also added section 1170.95, creating a procedure
for people previously convicted under one of the now-barred
theories to file a petition seeking resentencing. (Lewis, supra, 11
Cal.5th at p. 957.) A facially adequate petition entitles a
petitioner to the appointment of counsel and a response from the
prosecution. (§ 1170.95, subds. (b)(1), (c); Lewis, supra, 11
Cal.5th at p. 970.) The trial court then holds a hearing to
determine if the petitioner made a prima facie case for relief.
(§ 1170.95, subd. (c).) If so, the court must issue an order to show
cause (the O.S.C. to which the prosecution here referred) why

4 Senate Bill No. 775 (Stats. 2021, ch. 551), effective January
1, 2022, “[c]larifies that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the
natural and probable consequences doctrine are permitted the
same relief as those persons convicted of murder under the same
theories.”

11
relief should not be granted. (Ibid.; Lewis, supra, 11 Cal.5th at p.
971.) At the show cause hearing, the prosecution must prove
beyond a reasonable doubt that the petitioner is guilty of murder,
attempted murder, or manslaughter under amended sections 188
and 189. (§ 1170.95, subd. (d)(3).) Both the prosecution and the
petitioner are permitted to “offer new or additional evidence.”
(Ibid.) The trial court acts as an independent factfinder and
determines whether the prosecution has met its burden. (People
v. Ramirez (2021) 71 Cal.App.5th 970, 984 (Ramirez).)
We review the trial court’s factual findings under the
substantial evidence standard. (Ramirez, supra, 71 Cal.App.5th
at p. 985.) We view the record in the light most favorable to the
judgment and determine whether it contains substantial evidence
from which a reasonable trier of fact could find the petitioner
guilty of murder beyond a reasonable doubt. (Ibid.)
Major Participation and Reckless Indifference
The United States Supreme Court has twice considered the
degree of conduct and mental state required to impose the death
penalty on non-killers convicted of murder under a felony murder
theory. These two cases, Enmund v. Florida (1982) 458 U.S. 782
(Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison)
“collectively place conduct on a spectrum, with felony-murder
participants eligible for death only when their involvement is
substantial and they demonstrate a reckless indifference to the
grave risk of death created by their actions.” (Banks, supra, 61
Cal.4th at p. 794.)
Enmund lies at one end of the spectrum. Although
defendant Enmund identified a robbery victim, drove armed
confederates to the victim’s house, acted as a getaway driver, and
helped dispose of the weapons, the Court found him ineligible for

12
the death penalty because he did “‘not himself kill, attempt to
kill, or intend that a killing take place or that lethal force will be
employed.’” (Banks, supra, 61 Cal.4th at p. 799, quoting
Enmund, supra, 458 U.S. at p. 797.) Tison lies at the other.
There, the Supreme Court considered whether the death penalty
could be imposed on two brothers who broke their father and his
cellmate out of prison using numerous weapons and then, in their
ensuing escape, carjacked and robbed a family that their cohorts
ultimately killed. (See Tison, supra, 481 U.S. at pp. 138-142.)
Tison held that the brothers constitutionally could be subject to
the death penalty because their “major participation in the felony
committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement.” (Id. at
p. 158.)
Tison’s holding was directly incorporated into section 190.2,
subdivision (d), which governs special circumstance murder and
was incorporated into section 189, subdivision (e)(3) by SB 1437.
Accordingly, “the standard under section 189, subdivision (e)(3)
for holding . . . a defendant [who was not the actual killer] liable
for felony murder is the same as the standard for finding a
special circumstance under section 190.2(d), as the former
provision expressly incorporates the latter.” (In re Taylor (2019)
34 Cal.App.5th 543, 561.) Death penalty cases interpreting
section 190.2, subdivision (d), including Banks, supra, 61 Cal.4th
788 and Clark, supra, 63 Cal.4th 522, thus control the inquiry
here.
The California Supreme Court has clarified that Enmund
and Tison “establish that a defendant’s personal involvement [in
the crimes] must be substantial, greater than the actions of an
ordinary aider and abettor to an ordinary felony murder such as

13
Earl Enmund.” (Banks, supra, 61 Cal.4th at p. 802.) That is, he
or she must have been a “major participant” in the crime, under
the totality of the circumstances. (Id. at p. 803.) Banks identified
several considerations relevant to the major participant inquiry:
“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 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.) “No
one of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the
ultimate question, whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation]
was sufficiently significant to be considered ‘major.’” (Ibid.)
To determine whether a defendant acted with reckless
indifference to human life, we “look to whether a defendant has
“‘knowingly engag[ed] in criminal activities known to carry a
grave risk of death.’” [Citations.]” (Banks, supra, 61 Cal.4th at p.
801.) “The defendant must be aware of and willingly involved in
the violent manner in which a particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Ibid.) A defendant’s degree of
participation in the crime also can affect the reckless indifference
inquiry; “the greater the defendant’s participation in the felony

14
murder, the more likely that he [or she] acted with reckless
indifference to human life.” (Tison, supra, 481 U.S. at p. 153.)
Although “there are some felonies as to which one could properly
conclude that any major participant necessarily exhibits reckless
indifference to the value of human life,” such as “‘the
manufacture and planting of a live bomb,’” armed robbery is not
among them. (Clark, supra, 63 Cal.4th at p. 615, quoting Banks,
supra, 61 Cal.4th at p. 810, fn. 9.)
In Clark, supra, 63 Cal.4th at pp. 618-622, the California
Supreme Court established a five-factor test for whether a
defendant acted with reckless indifference to human life. As with
the factors relevant to major participation, no one factor is
necessary, nor is any necessarily sufficient. The first factor is the
defendant’s knowledge of weapons, and use and number of
weapons. (Id. at p. 618.) “The mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to
establish reckless indifference to human life.” (Ibid.) However, it
may be “significant” if a defendant personally uses a weapon
during the crime. (Ibid.) The second factor is whether the
defendant was physically present at the crime scene and whether
he or she had opportunities to limit the crime or aid the victim(s).
(Id. at p. 619.) A defendant’s presence may be particularly
significant where “the murder is a culmination or a foreseeable
result of several intermediate steps, or where the participant who
personally commits the murder exhibits behavior tending to
suggest a willingness to use lethal force.” (Ibid.) The third factor
is the duration of the felony; crimes of longer duration present
greater risk of violence and therefore evince more reckless
indifference. (Id. at p. 620.) “Where a victim is held at gunpoint,
kidnapped, or otherwise restrained in the presence of

15
perpetrators for prolonged periods, ‘there is a greater window of
opportunity for violence’ [citation omitted], possibly culminating
in murder.” (Ibid.) The fourth factor is the defendant’s
knowledge of his or her coparticipants’ likelihood of killing. (Id.
at p. 621.) A defendant who knows a coparticipant previously has
used lethal force is more culpable than one unaware of a
coparticipant’s propensity for violence. (Ibid.) The fifth factor is
whether the defendant made any efforts to minimize the risk of
violence. (Ibid.) Such efforts may include planning the crime to
occur at a time or location where bystanders are unlikely to be
present, or using unloaded or minimally loaded firearms. (See id.
at pp. 621-622.)
Both the “magnitude of the objective risk of lethal violence
and a defendant’s subjective awareness of that risk” are relevant
to the reckless indifference inquiry. (Clark, supra, 63 Cal.4th at
p. 623.) “Awareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient” to demonstrate
reckless indifference to human life. Instead, “knowingly creating
a ‘grave risk of death’” is necessary to establish the requisite
mindset. (Banks, supra, 61 Cal.4th at p. 808.) “‘[T]he 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.” (In re Scoggins (2020) 9 Cal.5th 667,
677, quoting Banks, supra, 61 Cal.4th at p. 808 [alteration in
original].) “The defendant must be aware of and willingly
involved in the violent manner in which the particular offense is
committed,” and must then consciously disregard “the significant
risk of death his or her actions create.” (Banks, supra, 61 Cal.4th
at p. 801.)

16
Analysis
Appellant contends that substantial evidence does not
support the court’s findings that he was a major participant who
acted with reckless indifference. We disagree.
Substantial evidence supports the trial court’s conclusion
that appellant was a major participant in the crimes leading to
Armijo’s murder. The first Banks factor is the role the defendant
played in planning the crime. (Banks, supra, 61 Cal.4th at p.
803.) As appellant conceded below and acknowledges here, he set
the crime in motion by calling Armijo and Debbie, then driving to
and forcing his way into their home. This factor points toward
major participation. The next factor, the role the defendant
played in supplying or using lethal weapons (ibid.), points in the
same direction. Appellant brought Stinson with him, and both
men were armed with loaded firearms. Appellant and Stinson
both brandished their guns to gain entry into the home, and
appellant fired his weapon when a scuffle ensued. Both men also
used their weapons to lead Armijo and Debbie into the street,
away from the stash of drugs they purportedly sought.
Regardless of who supplied the weapons, appellant clearly was
aware of their presence and had a role in using them. (Ibid.)
The third Banks factor is the defendant’s awareness of
“particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants.”
(Banks, supra, 61 Cal.4th at p. 803.) Appellant knew Armijo and
Debbie had drugs in their home, and “a home invasion robbery of
a [heroin] dealer” is “not a garden-variety robbery.” (In re
McDowell (2020) 55 Cal.App.5th 999, 1011 (McDowell).) “The
potential for it to turn violent was obvious” (ibid.), given that
appellant knew he and Stinson were both armed with loaded

17
firearms, which they trained on their victims from the moment
they forced their way into the victims’ home. Appellant is correct
that there was no evidence that Stinson had a propensity for
violence, or that appellant was aware of such propensity, but that
is only one part of the awareness inquiry. We also agree with
appellant that the court’s finding that appellant and Stinson
were gang members was “entirely speculative.” Moreover, a
shooter’s gang membership does not demonstrate a propensity to
commit lethal violence. (See Banks, supra, 61 Cal.4th at pp. 810-
811.) Despite the lack of support for this particular finding,
appellant’s overall awareness of the potential for violence is clear
from the record and supports a finding that he was a major
participant.
The fourth and fifth Banks factors also support the finding
that appellant was a major participant. The fourth factor
examines whether the defendant was present at the killing, in a
position to facilitate or prevent the murder, and whether his or
her actions or inaction played a role in the death. (See Banks,
supra, 61 Cal.4th at p. 803.) Even according to his own
testimony, appellant was present when Armijo was shot, and fled
the scene as soon as he saw him “laid out.”5 Appellant claims
there was no evidence that he heard Stinson ask about shooting
Armijo, but presumably other witnesses at the scene did; those
statements would not be in the record otherwise. It is certainly
reasonable to infer that appellant, the person to whom Stinson
most likely would be speaking, also heard him, particularly since

5 Despite this, appellant’s opening brief asserts that “[t]here
was no evidence that appellant was aware that Armijo was badly
injured or even shot,” and “no evidence that appellant could have
done anything to help Armijo after Stinson shot him.”

18
appellant was able to hear Debbie on the telephone and when she
spoke to him at the door. Even if appellant was not in charge, he
certainly could have said “no” to Stinson to at least reduce the
risk that Stinson would shoot. The fifth factor asks what the
defendant did following the use of lethal force. (Banks, supra, 61
Cal.4th at p. 803.) There is no dispute here that appellant fled
the scene with Stinson. He also stayed with Stinson afterward;
both he and Stinson were arrested in Stinson’s apartment, and
appellant knew where the gun was “hidden.” The court did not
err in concluding appellant was a major participant.
Substantial evidence also supports the court’s conclusion
that appellant acted with reckless indifference toward human
life. The first Clark factor considers the defendant’s knowledge
that weapons would be present at the crime, as well as their
number. (Clark, supra, 63 Cal.4th at p. 618.) Here, appellant at
the very least knew that he was carrying a loaded firearm. He
became aware that Stinson had a gun, at the very latest, when
Stinson brandished the weapon to gain entry to the victims’
home. “A defendant’s use of a firearm, even if the defendant does
not kill the victim. . . can be significant to the analysis of reckless
indifference to human life.” (Ibid. (emphasis in original).)
Appellant used his firearm during or proximate to the indoor
struggle with the victims, indicating disregard for their safety.
The second Clark factor, also a Banks factor, is the defendant’s
physical presence at the scene and opportunities to restrain the
crime and aid the victim. (Id. at p. 619.) As discussed above,
appellant was present the entire time, failed to take even the
simple step of answering Stinson’s query, and fled the scene
immediately after the shooting. These facts suggest reckless
indifference toward the victims and their safety.

19
 Moreover, they also dovetail with the third Clark factor,
the duration of the felony, and the fifth, efforts to minimize the
risk of violence. (Clark, supra, 63 Cal.4th at pp. 620, 621-622.)
The record here is silent as to the duration of the felony; we know
only that the crime started at Armijo and Debbie’s front stoop,
moved inside for a time, and then “later” moved into the street,
where several people had gathered. However, despite appellant’s
stated intent to obtain drugs, he and Stinson led the victims
away from their stash, into the street, at gunpoint. Several
neighbors, including Armijo’s brother Steve, came outside;
instead of waving the bystanders away or retreating into the
house, appellant conversed with Steve and placed everyone in the
area in danger by ignoring Stinson’s questions and continuing
brandish a loaded weapon. Unlike the defendant in Clark, who
planned a store robbery after closing time to minimize the risk to
store employees, appellant’s actions increased the risks to the
victims and innocent bystanders at every turn. (See id. at pp.
620-621.) Appellant asserts that the shooting “appeared to be
impulsive,” but Stinson asked at least twice whether he should
shoot before actually doing so. Appellant also asserts that there
was no evidence that he heard Stinson, but we reject that
assertion for the same reasons discussed above.
The final Clark factor is the defendant’s knowledge that his
or her cohort is likely to use lethal force. (Clark, supra, 63
Cal.4th at p. 621.) Such knowledge may be obtained prior to the
crime, or may occur during the felony. (Ibid.) As discussed above
in connection with the similar Banks factor, appellant is correct
that there was no evidence that Stinson had a propensity for
violence, or that appellant was aware of such propensity prior to
the crime. However, once Stinson led Armijo into the street at

20
gunpoint, and continued to train his weapon on Armijo, appellant
should have become aware “that the situation could quickly turn
deadly.” (McDowell, supra, 55 Cal.App.5th at p. 1014.)
This case is analogous to People v. Bascomb (2020) 55
Cal.App.5th 1077 (Bascomb). In Bascomb, defendant Bascomb
and codefendant Blue, both armed with guns, forced their way
into the apartment of marijuana dealer Moser. (Bascomb, supra,
55 Cal.App.5th at p. 1081.) Moser, his girlfriend Hoover, and his
two roommates, Flores and Lind, were all home at the time.
While Hoover watched from the bathroom, Bascomb held Flores
at gunpoint for several minutes; Blue entered Moser’s room and
shot him after a brief struggle. Bascomb and Blue then “quickly
left together.” (Ibid.) Bascomb was found guilty of first degree
murder under a felony murder theory, and later sought
resentencing under section 1170.95. (Id. at pp. 1083-1084.) The
trial court denied the petition after holding a show cause hearing;
it found that Bascomb was a major participant who acted with
reckless indifference. (Id. at p. 1084.)
Division Two of the Fourth District Court of Appeal
affirmed. Given the similarity between the actions of Bascomb
and appellant, the Fourth District’s concise analysis of the Banks
and Clark factors bears repeating here: “Bascomb was willingly
involved in the violent manner in which the robbery took place. . .
. [H]e cooked up a plan to break into the home of a known drug
dealer while they were home and to use force, including firearms,
to steal the dealer’s product. Moreover, Bascomb and Blue not
only pushed their way into the home armed, but they forced one
victim to the ground and used their guns to threaten the
residents and keep them pinned down during the duration of the
robbery. That means Bascomb didn’t just watch without

21
intervening as his accomplice accosted the murder victim in his
bedroom [sic], he used his weapon to keep the other victims at
bay and thereby actively enabled the murder. Nor did he help
the victim once he had been shot, but instead fled. We agree with
the People that this sort of conduct easily meets our state’s
standard for what constitutes being a major participant who
acted with reckless indifference to human life.” (Bascomb, supra,
55 Cal.App.5th at p. 1089.) The court continued, “if [Bascomb
and Blue] had wanted to avoid a confrontation, they could have
done so when someone answered their knock at the door. Instead,
they immediately pushed their way in and forced the person who
answered to the floor. This strongly suggests confronting people
inside the home was part of the plan. As the trial court fairly
concluded under this evidence, ‘[t]his was not a robbery of a
convenience store, or a person on the street in which resistance, if
any, would be slight, and armed resistance likely nonexistent.
This was the planned, armed robbery of a known drug dealer at
his residence.’ This conclusion is amply supported by the record.”
(Id. at p. 1090.) The same is true here.
Like the Bascomb court, “‘we are not aware of a single case
that concludes a defendant who personally committed a robbery,
used a gun, and was present for the shooting did not meet the
standard’ of culpability required to support a felony murder
conviction.” (Bascomb, supra, 55 Cal.App.5th at p. 1090.) At the
very least, none of the cases appellant has cited have granted
section 1170.95 relief on facts similar to those here. The trial
court properly denied appellant’s petition. There is sufficient
evidence in the record to sustain its findings that appellant was a
major participant in the attempted robbery of Armijo and acted
with reckless indifference to human life.

22
 DISPOSITION
The order denying appellant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.

23