Filed 4/28/22 In re Reese CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re CLARENCE ERVIN REESE, B312440
on Habeas Corpus. (Los Angeles County
Super. Ct. No. BA230274)
PETITION for writ of habeas corpus, Superior Court of Los
Angeles County, George G. Lomeli, Judge. Granted in part.
Nancy J. King, under appointment by the Court of Appeal,
for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 2004, a jury convicted petitioner Clarence Ervin Reese of
first degree felony murder, attempted carjacking, and burglary,
and found felony-murder special circumstance allegations true.
Thereafter, in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), our California
Supreme Court clarified under what circumstances a Penal Code
section 190.21 special circumstance may be found true when the
defendant is not the actual killer. Reese petitioned this court for
a writ of habeas corpus, and we issued an order to show cause.
We now conclude that the evidence was insufficient to prove
Reese acted with reckless indifference to human life, and the
special circumstance findings must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND2
1. People’s evidence
a. The murder
In January 2002, petitioner was 16 years old. Juan
Roberto Saucedo was approximately 20, and went by the
nickname “Negro.” Both Reese and Saucedo were members of the
Culver City gang.
Vuthipong Sanguansukdikosol and his family lived in a Los
Angeles apartment building with a gated garage. On the
afternoon of January 30, 2002, Sanguansukdikosol picked up his
two sons, 11-year-old D. and 12-year-old K., from school and
1
All further undesignated statutory references are to the
Penal Code.
2
At Reese’s request, we have taken judicial notice of the
records in People v. Reese (Mar. 2, 2007, B186147, nonpub.
opinion) and People v. Reese (April 30, 2021, B301473, nonpub.
opn.) (See Evid. Code, §§ 451, 452, 459.)
2
drove them home. He used a remote control to open the garage
gate. The boys saw two males, identified through other evidence
as Reese and Saucedo, standing on the sidewalk outside the
garage, wearing hoods or hats. They entered the garage through
the gate as or after Sanguansukdikosol drove in. D. and K. saw
the youths go to the apartment manager’s van, which was parked
in its usual spot in the garage. K. saw one of the men take
something out of his pocket.
Sanguansukdikosol dropped the boys off at the garage
elevator and told them to go upstairs and call their mother to let
her know he was coming to pick her up. Sanguansukdikosol
began to turn his car around to exit the garage, and the boys took
the garage elevator to the second floor.
Just after riding up the elevator, D. and K. heard a crash.
K. looked out the window and saw the two youths running out of
the garage. He went to the manager’s apartment and told the
manager about the men near the van. The apartment manager,
D., and K., went down to the garage, where the boys discovered
their father lying in the car, which had crashed against the
garage gate. The driver’s side door was closed, but the window
was down. K. tried to talk to his father, but he did not respond.
His seat belt was still on and the car was still running. An
ambulance was summoned for what was initially believed to be a
heart attack. Paramedics discovered Sanguansukdikosol had
been shot.
The People presented evidence demonstrating Reese’s and
Saucedo’s escape route, including the testimony of two
eyewitnesses who observed portions of their flight.
Jose R., Rosemarie A., and Rosemarie’s younger sister were
driving in the area in Jose’s white, two-door, convertible
3
Mustang, with the top down. When Jose stopped the car to drop
Rosemarie and her sister off at their home, Reese and Saucedo
approached the vehicle’s passenger side. Saucedo patted his
pockets and clothing as if to indicate he was unarmed. The
youths then jumped in the car, with Saucedo in the front
passenger seat and Reese in the back. Reese had a sweater
wrapped around his arm, but neither Jose nor Rosemarie could
tell if he was carrying anything under the sweater.
Saucedo demanded that Jose give them a ride for two
blocks, because they had gotten in some trouble. He said he was
looking for one of his homeboys. As Jose drove them away, Reese
lay down in the back seat and asked him to put up the
convertible’s top. Saucedo told Jose where to drive. Jose asked
where the men were from, and Saucedo replied that they were
from the Culver City gang. When Saucedo saw a dark car
nearby, he waved to it and the men exited Jose’s vehicle.
b. The investigation
Sanguansukdikosol was killed by a single gunshot to his
upper abdominal region, causing him to bleed to death. The
trajectory of the wound was consistent with the shooter standing
outside the car and aiming from above.
The victim’s glasses were found on the ground in the
garage. An expended casing found in the garage suggested the
murder weapon was a semiautomatic firearm.
Rosemarie identified Reese as one of the men in a pretrial
photographic lineup, at the preliminary hearing, and at trial.
Jose tentatively identified Reese in court as one of the men with
50 percent certainty. At the preliminary hearing, he testified he
was certain Reese was one of the men.
4
c. Reese’s statement to detectives
Two detectives interviewed Reese on April 12, 2002. The
interview was not recorded, but one of the detectives took
detailed notes. Reese’s account of events was as follows. On the
date of the murder, Reese, Saucedo, and a fellow Culver City
gang member with the nickname “Chubbs,” met up in Culver
City. Reese told detectives he “ran with [Saucedo] a lot,” and had
known him for a couple months. That afternoon, Chubbs drove
Reese and Saucedo to Hollywood in Chubbs’s girlfriend’s black
Honda. On the way to Hollywood the trio stopped at a mall and
Reese purchased a video of the movie “The Fast and the Furious.”
Chubbs then dropped Saucedo and Reese off at the victim’s
garage.
Reese admitted that he and Saucedo were “on a mission” to
steal a vehicle, and intended to take the stolen car back to their
neighborhood. Reese was armed with a screwdriver to use to
steal the car. Saucedo was to act as the lookout. Prior to or
during the drive to Hollywood, Saucedo told Reese that he had a
firearm in the car.
Reese and Saucedo entered the garage and discovered that
some or all of the vehicles parked inside, including a van, had
alarms. Saucedo said they could not be stolen. They then left the
garage, but reentered when the victim drove in.3 Saucedo said
“let’s get another car” or similar words, which Reese understood
to mean Sanguansukdikosol’s vehicle. Reese saw the two
children at the elevator. He believed the victim had noticed him,
3
Some of Reese’s statements alternatively suggested that he
and Saucedo entered the garage only once, when
Sanguansukdikosol opened the gate.
5
and wanted to leave. However, Saucedo instructed him to take
the victim’s car.
Saucedo then approached Sanguansukdikosol with the gun
in his right hand, held down by his leg. At that point, the car was
facing outward toward the gate. Saucedo demanded that
Sanguansukdikosol give him the car. Sanguansukdikosol asked
if Saucedo and Reese lived in the apartments. When Saucedo
demanded that Sanguansukdikosol get out of the car,
Sanguansukdikosol said no, honked the horn, and yelled for the
police. Reese heard a gunshot. Either before or after the shot,
Saucedo unsuccessfully attempted to pull the victim from the car,
and Sanguansukdikosol’s glasses fell off. Reese claimed he
heard, but did not see, the actual shooting. He stated that when
Saucedo fired, he (Reese) was near the garage gate, and was
leaving. Saucedo told Reese to run, and the youths fled from the
garage.
After the shooting Saucedo had the gun in his right hand
and then put it in his waistband; Reese never took possession of
it. Reese described their escape route consistently with the two
eyewitnesses who had observed them fleeing. When they saw the
white convertible, they jumped in, with Reese in the back.
Saucedo gave the driver instructions. When they saw Chubbs’s
car they exited and the group drove back to their neighborhood.
At some point, Reese threw the screwdriver in the trash.
Saucedo, who still had the gun, told him not to talk to anyone
about what had happened. After arriving home, Reese went to a
girl’s house and watched the movie he had purchased.
Reese also gave a written statement to detectives, that
read: “Me and Negro had went into a driveway and I was going
to steal a van with a screwdriver, and me and Negro was
6
confronted by a Chinese-looking man in [a] car. Then we were
going to leave when Negro told me to go. Then I heard a shot and
he said run, then we ran. Negro had the gun, and then it [sic]
says give me the car.”
2. Procedure
A jury convicted Reese of first degree murder (§ 187,
subd. (a)), attempted carjacking (§§ 664, 215, subd. (a)), and first
degree burglary (§ 459). It found true special circumstance
allegations that the murder was committed while Reese was
engaged in the commission of attempted carjacking and burglary.
(§ 190.2, subd. (a)(17)(G), (L).) It also found true allegations that
a principal personally and intentionally used and discharged a
firearm during the offenses, proximately causing the victim’s
death. (§ 12022.53, subds. (b), (c), (d), (e)(1).)4
The trial court exercised its discretion pursuant to section
190.5, subdivision (b), to sentence Reese to 25 years to life in
prison rather than life without parole (LWOP).5 It reasoned that,
although there was “significant and substantial evidence” to
support the verdicts, mitigating factors existed. Reese had
turned 16 only 16 days before the murder; he was not the actual
shooter; he was not “the architect of this plan and plot”; and his
criminal history was nonviolent.
4
Section 12022.53 enhancements apply to a principal only if
a gang enhancement is found true. (§ 12022.53, subd. (e)(1)(A).)
Because the People dismissed the gang enhancement allegations,
the court vacated the jury’s findings on the section 12022.53
allegations.
5
The sentences on the other counts were stayed pursuant to
section 654.
7
In 2007, a different Division of this court affirmed Reese’s
judgment in a nonpublished opinion. (People v. Reese, supra,
B186147.) Among other things, the court concluded that
sufficient evidence supported the first degree murder verdict and
the special circumstance findings. The California Supreme Court
denied review.
On March 8, 2019, Reese filed a section 1170.95 petition in
the superior court, seeking vacation of his murder conviction and
resentencing. He argued that he had been tried on a felony-
murder theory; he was not the actual killer and did not have the
intent to kill; he was not a major participant in the crimes who
acted with reckless indifference to human life; and he could not
now be convicted of murder in light of amendments to sections
188 and 189. The trial court denied the petition. On April 30,
2021, in case No. B301473, a divided panel of this court affirmed
the trial court’s order, reasoning that the jury’s true findings on
the special circumstance allegations made Reese categorially
ineligible for section 1170.95 relief.6 (People v. Reese (Apr. 30,
2021, B301473) [nonpub. opn.].) We noted, however, that if Reese
believed the evidence on the special circumstance findings was
insufficient, his remedy was to bring a petition for writ of habeas
corpus. (See In re Scoggins (2020) 9 Cal.5th 667, 673–674
(Scoggins).) We denied Reese’s petition for rehearing without
6
Our Supreme Court subsequently granted review in case
No. B301473. (July 14, 2021, S269236.) The court deferred
further action pending resolution of People v. Strong (S266606,
review granted Mar. 10, 2021), in which the court is considering
whether a felony-murder special circumstance that predates
Banks and Clark precludes a defendant from making a prima
facie showing of eligibility for section 1170.95 relief.
8
prejudice to his right to file a new section 1170.95 petition,
should he obtain habeas relief.
On May 17, 2021, Reese filed the instant habeas petition.
DISCUSSION
Reese contends that, under Banks and Clark, the evidence
was insufficient to prove he was a major participant in the
underlying felony who acted with reckless indifference to human
life. He seeks vacation of the special circumstance findings,
remand for a hearing pursuant to section 1170.95, and vacation
of his first degree murder conviction.
1. The special circumstance statute, the Enmund-Tison
continuum, and Banks, Clark, and Scoggins
Section 190.2 “identifies the circumstances under which
murderers and accomplices can be punished by death or life
imprisonment without parole.” (People v. Douglas (2020) 56
Cal.App.5th 1, 7.) Participating in a murder during an attempted
carjacking or a burglary are two such circumstances. (§ 190.2,
subd. (a)(17)(G), (L).) “For defendants who did not kill and lacked
the 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.” (Douglas, at p. 7; see Scoggins, supra, 9 Cal.5th at
p. 674.) Section 190.2, subdivision (d) codifies the holdings of
Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v.
Arizona (1987) 481 U.S. 137 (Tison), which brought California
law “into conformity with prevailing Eighth Amendment
doctrine.” (In re Ramirez (2019) 32 Cal.App.5th 384, 393; Banks,
supra, 61 Cal.4th at p. 794.)
Enmund held that the death penalty could not
constitutionally be imposed on an armed robbery getaway driver
9
who was a minor participant in the crime, was not present when
the murder was committed, and had no intent to kill. (Enmund,
supra, 458 U.S. at pp. 798, 801; Scoggins, supra, 9 Cal.5th at
p. 675.)
Tison, in contrast, did not preclude imposition of the death
penalty for two defendants, brothers who had helped their father
and his cellmate—both convicted murderers—escape from prison,
and provided them with guns. (Tison, supra, 481 U.S. at p. 139.)
When the group got a flat tire, one of the brothers flagged down a
passing car for help. The group kidnapped at gunpoint the family
of four that was in the car, robbed them, and drove them into the
desert. The Tisons’ father debated whether to kill the family.
The sons stood by while the father and cellmate shot the victims
repeatedly. 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 pp. 139–141.) 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 pp. 152, 157–158.)
In Banks and Clark, our 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 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
10
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 or acted with reckless indifference. (Banks, supra,
61 Cal.4th at pp. 805, 807–808.) 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.)
In Clark, the court turned its attention to the “reckless
indifference” determination. (Clark, supra, 63 Cal.4th at p. 611.)
Reckless indifference to human life is “ ‘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.” (Id. at p. 617.) Recklessness has both a subjective and
an objective component. Subjectively, the defendant must
consciously disregard risks known to him. Objectively,
recklessness is determined by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” that is, whether defendant’s
11
conduct “ ‘involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would observe.’
[Citation.]” (Ibid.) The fact a robbery involved a gun or carried a
risk of death is insufficient, by itself, to support a finding of
reckless indifference. (Id. at pp. 617–618.)
Clark, like Banks, listed various factors to be considered
when determining whether reckless indifference existed: “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 that the defendant
there did not act with reckless indifference. (Clark, supra, 63
Cal.4th at p. 623.) Although he was the “mastermind” who
planned a computer store robbery during which a victim was shot
and killed, he was not armed, was not physically present in the
store when the shooting occurred, and had attempted to minimize
the likelihood of violence by timing the robbery for a time when
fewer people would be present, and planning on use of an
unloaded gun. (Id. at pp. 612, 618–623.)
Our Supreme Court again considered the reckless
indifference inquiry in Scoggins, supra, 9 Cal.5th 667. Scoggins
found an insufficient showing of reckless indifference where the
12
defendant planned an unarmed assault and robbery, in which one
of his accomplices deviated from the plan and unexpectedly killed
the victim. Scoggins was not present at the scene, was not in a
position to restrain his accomplices, did not know a gun would be
used or plan that the victim would be killed, attempted to
minimize the risk of death by ordering the assault to occur in a
public place in broad daylight, and acted ambiguously after the
shooting. (Id. at pp. 677–683.)
2. Scope of review
A defendant whose special circumstance determination
predated Banks and Clark may challenge the sufficiency of the
evidence of the finding by means of a habeas corpus petition.
(Scoggins, supra, 9 Cal.5th at pp. 673–674.) “Where a decision
clarifies the kind of conduct proscribed by a statute, a defendant
whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct
was not prohibited by the statute’ as construed in the decision.
[Citation.] ‘In such circumstances, it is settled that finality for
purposes of appeal is no bar to relief, and that habeas corpus or
other appropriate extraordinary remedy will lie to rectify the
error[.]’ ” (Ibid.)
“When a defendant seeks habeas corpus relief, the
underlying judgment is presumed valid” (In re Bennett (2018) 26
Cal.App.5th 1002, 1018), and we view the facts favorably to the
prosecution (In re Parrish (2020) 58 Cal.App.5th 539, 541). “In a
habeas corpus challenge to the sufficiency of the evidence to
support a special circumstance finding, the ‘standard of review
. . . is whether, when evidence that is reasonable, credible, and of
solid value is viewed “in the light most favorable to the
prosecution, any rational trier of fact could have found the
13
essential elements of the allegation beyond a reasonable doubt.”
[Citations.] The standard is the same under the state and federal
due process clauses. [Citation.] We presume, in support of the
judgment, the existence of every fact the trier of fact could
reasonably deduce from the evidence, whether direct or
circumstantial.’ ” (In re Bennett, at p. 1018; In re McDowell
(2020) 55 Cal.App.5th 999, 1008.)
Determination of whether the evidence demonstrates
reckless indifference and major participation is a “fact-intensive
and individualized inquiry” (In re Parrish, supra, 58 Cal.App.5th
at p. 542) in which we consider the totality of the circumstances
(Scoggins, supra, 9 Cal.5th at p. 677). The Banks and Clark
factors overlap, and “ ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ ” (Clark,
supra, 63 Cal.4th at pp. 615, 618; Banks, supra, 61 Cal.4th at
p. 803.) Reese “is entitled to habeas corpus relief ‘ “if there is no
material dispute as to the facts relating to his conviction and if it
appears that the statute under which he was convicted did not
prohibit his conduct.” ’ [Citation.]” (Scoggins, at p. 676.)
Because this court’s 2007 opinion was issued without the
benefit of Banks, Clark, and Scoggins, we do not limit our review
to the facts stated in our prior opinion, but consider the entire
record. (In re Taylor (2019) 34 Cal.App.5th 543, 556–557.)
3. Reese’s petition is not procedurally barred
We first address the People’s contention that Reese’s
habeas petition is procedurally barred because of his unjustified
delay in filing it.
A criminal defendant mounting a collateral attack on a
final judgment of conviction must do so in a timely manner, that
is, without substantial delay. (In re Reno (2012) 55 Cal.4th 428,
14
459; In re Taylor, supra, 34 Cal.App.5th at p. 555.) California
law does not set a specific time limit; instead, we apply a general
reasonableness standard to determine timeliness. (In re Reno, at
p. 461.) The “basic issue is whether [the petition] was ‘ “ ‘filed as
promptly as the circumstances allow.’ ” ’ ” (In re Taylor, at
p. 555.) “Substantial delay is measured from the time the
petitioner or his or her counsel knew, or reasonably should have
known, of the information offered in support of the claim and the
legal basis for the claim.” (In re Robbins (1998) 18 Cal.4th 770,
780.) A claim that is substantially delayed will nevertheless be
considered on the merits if the petitioner can demonstrate good
cause for the delay. (Id. at p. 805; In re Reno, at p. 460.)
The People argue that Reese’s judgment was final in 2007.
Banks and Clark were issued on July 9, 2015 and June 27, 2016,
respectively. Reese’s habeas petition was filed on May 17, 2021.
Therefore, the People contend, the delay between—at the very
latest—the Clark decision and the instant petition was
unreasonable. Reese counters that Senate Bill No. 1437 (2018–
2019 Reg. Sess.) (Senate Bill 1437) did not take effect until
January 1, 2019 and, because the law is unsettled regarding
whether a special circumstance may be challenged via a section
1170.95 petition, any delay is justified.
Reese has the better argument. While procedural bars
protect society’s interest in the finality of criminal judgments,
“[t]his purpose loses some of its force in cases, such as
petitioner’s, that may be affected by the Legislature’s enactment
. . . of section 1170.95.” (In re Ramirez, supra, 32 Cal.App.5th at
p. 406, fn. 11.) As a practical matter, Reese’s claim does not arise
solely from Banks and Clark. The function of the special
circumstance findings in Reese’s case was to allow for an LWOP
15
sentence. But, because of Reese’s age, the trial court exercised its
discretion not to impose an LWOP sentence. Instead, it imposed
a term of 25 years to life, the same sentence Reese would have
received even had the special circumstance been found not true.
(See § 190, subd. (a).) Thus, until passage of Senate Bill 1437,
reversal of the special circumstance findings would have had no
effect on Reese’s sentence and no practical effect on his judgment.
Senate Bill 1437 limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (People
v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lewis (2021)
11 Cal.5th 952, 957, 959.) Prior to Senate Bill 1437’s enactment,
under the felony-murder rule “a defendant who intended to
commit a specified felony could be convicted of murder for a
killing during the felony, or attempted felony, without further
examination of his or her mental state.”7 (People v. Lamoureux
(2019) 42 Cal.App.5th 241, 247–248.) Senate Bill 1437 added
section 189, subdivision (e). As amended, “section 189 limits the
first degree felony-murder rule by imposing new requirements for
its application. The statute provides that, unless the victim is a
peace officer killed in the line of duty, a defendant cannot be
liable for first degree felony murder unless the defendant was the
actual killer, acted with intent to kill, or was a major participant
in the underlying felony and acted with reckless indifference to
human life.” (People v. Eynon (2021) 68 Cal.App.5th 967, 974.)
Senate Bill 1437 also added section 1170.95, which created
7
Reese’s case was tried on this theory and his jury was so
instructed.
16
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief if he could no
longer be convicted of murder due to changes to sections 188 and
189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)
Where a court determines in a habeas proceeding that the
evidence was insufficient to prove major participation/reckless
indifference, the defendant is entitled to relief under section
1170.95, subdivision (d)(2). That subdivision imposes “a
mandatory duty on the court to vacate defendant’s sentence and
resentence him whenever there is a prior finding of this court
that the defendant was not a major participant in the underlying
felony and did not act with reckless indifference to human life.”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 932.)
The thrust of Reese’s habeas petition is that, because the
evidence was insufficient to prove he was a major participant who
acted with reckless indifference, he can no longer be convicted of
first degree murder under current law as amended by Senate Bill
1437.8 Only after enactment of Senate Bill 1437 could Reese
have known that Banks and Clark, in combination with newly
enacted section 1170.95, gave rise to a legal basis for the relief he
8
Reese’s petition states that his claims are based on the
record on appeal in both the original case and in the subsequent
appeal of the denial of his section 1170.95 petition. He seeks
reconsideration of his section 1170.95 petition as well as vacation
of the special circumstance findings and his murder conviction,
arguing that because the evidence is insufficient to support the
special circumstance findings, it is also insufficient to support his
murder conviction under current law.
17
seeks. Any delay must therefore be measured from January 1,
2019. (See In re Robbins, supra, 18 Cal.4th at p. 780.)
Reese filed a section 1170.95 petition on March 8, 2019, less
than three months after Senate Bill 1437’s effective date. Thus,
he promptly sought relief under the new law. The instant habeas
petition was not filed until May 17, 2021. But, there is a split of
authority regarding whether a major participant/reckless
indifference finding may be challenged in a section 1170.95
petition, or only in a habeas petition. (See, e.g., People v. Price
(2021) 71 Cal.App.5th 1128, 1146–1147, review granted on
another point on Feb. 9, 2022, S272572.) As noted ante, the issue
is currently being considered by our California Supreme Court.
(People v. Strong, supra, S266606.) Given this unsettled state of
the law, we cannot say Reese unreasonably delayed by initially
choosing to pursue relief via a section 1170.95 petition, rather
than via a habeas petition.
Moreover, a court will consider the merits of a claim
presented after substantial delay even without good cause if it
falls within certain narrow exceptions. Two such exceptions are
relevant here: (1) the petitioner is actually innocent of the crime
or crimes of which he was convicted; and (2) the petitioner was
convicted or sentenced under an invalid statute. (In re Reno,
supra, 55 Cal.4th at p. 460; In re Robbins, supra, 18 Cal.4th at
pp. 780–781.) Reese’s claims are that under current law, he is
actually innocent of the crime of murder, and that the former
felony-murder rule is now invalid.
In sum, the petition is not procedurally barred.
18
4. The evidence was insufficient to establish Reese acted
with reckless indifference to human life
Considering the totality of the circumstances in the light
most favorable to the prosecution, we cannot conclude, given our
Supreme Court’s clarifications in Banks and Clark, that the
evidence was sufficient to show Reese acted with reckless
indifference to human life.9 As we have observed, the Banks and
Clark factors overlap. (Clark, supra, 63 Cal.4th at pp. 614–615.)
Accordingly, we consider both. First, while Reese admittedly
planned to burglarize the garage and steal a car using a
screwdriver, there was no evidence he planned a carjacking.
Instead, the carjacking seems to have been a spontaneous, spur
of the moment deviation from the original scheme by Saucedo,
once the youths discovered the manager’s van—and possibly
other vehicles in the garage—had alarms. As the trial court
opined at sentencing, “I do not believe the defendant was the
architect of this plan and plot. I think the evidence has
established that the defendant was a soldier. He was a
lieutenant.” For purposes of establishing reckless indifference,
there is a significant difference between planning to steal an
unoccupied car, and planning to carjack one occupied by a victim.
The People argue that Reese told detectives he and Saucedo
examined the vehicles in the garage, left the garage, and then
reentered when the victim opened the gate. From this they infer
that the carjacking was not spontaneous. We disagree. The
victim’s children testified that they saw both youths around the
manager’s van after their father drove through the gate,
9
We therefore do not address whether the evidence was
sufficient to prove Reese was a major participant.
19
suggesting that Reese and Saucedo were still attempting to find
an unoccupied vehicle to steal at that point and the carjacking
was an impulsive reaction when that endeavor failed. But, even
if Reese and Saucedo had already determined that the cars in the
garage were not attractive theft targets, and reentered thereafter
to take Sanguansukdikosol’s car, this does not amount to
evidence that Reese, as opposed to Saucedo, planned or instigated
the carjacking.
The evidence regarding weapon use likewise provides little
support for a finding of reckless indifference. Reese was equipped
with a screwdriver, not a gun. While a screwdriver can be used
as a stabbing instrument, no evidence showed that was Reese’s
intention here. His statements to the detectives suggested he
intended to use it to break into a car, and there was no evidence
he attacked or menaced the victim with it. Only one gun—that
wielded by Saucedo—was used, and there was no evidence Reese
supplied it. Nor was there any evidence that Reese instructed
Saucedo to use lethal force. (See People v. Ramirez (2021) 71
Cal.App.5th 970, 988; In re Moore (2021) 68 Cal.App.5th 434, 452
[although defendant was aware that his accomplice had a gun,
defendant did not supply it and did not use a gun himself].)
Certainly, Reese knew Saucedo had a gun; Saucedo told
him so at least by the time they were driving to Hollywood. But
there was no evidence Reese knew Saucedo planned on actually
using it. Indeed, since Reese’s plan was to steal an unoccupied
car, there would have been little reason to expect violence. (See
In re Taylor, supra, 34 Cal.App.5th at pp. 557–558 [even
assuming there was substantial evidence defendant knew his
accomplice was armed, “there is little about [defendant’s] use or
knowledge of firearms that suggests he appreciated the planned
20
robbery posed a heightened risk of death”]; Scoggins, supra, 9
Cal.5th at p. 677 [fact Scoggins did not know his accomplice
would use a gun suggested he was “far less culpable” than the
Tison brothers].) Until moments before the murder, Saucedo did
nothing to indicate he was contemplating using lethal force. (See
Scoggins, at p. 678 [where “ ‘the participant who personally
commits the murder exhibits behavior tending to suggest a
willingness to use lethal force,’ ” the “ ‘ “defendant’s presence
allows him to observe his cohorts so that it is fair to conclude that
he shared in their actions and mental state . . . .” ’ ”].)
And, most significantly, “ ‘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.” ’
(Scoggins, supra, 9 Cal.5th at p. 677; Clark, supra, 63 Cal.4th 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.”]; Banks, supra, 61 Cal.4th at p. 809
[awareness that confederates are armed and armed robberies
carry a risk of death does not by itself demonstrate reckless
indifference]; People v. Ramirez, supra, 71 Cal.App.5th at p. 988
[defendant’s awareness that accomplice had a gun and intended
to use it during a carjacking was not sufficient to prove reckless
indifference]; People v. Bascomb (2020) 55 Cal.App.5th 1077,
1088 [“knowledge of the possible risk of death inherent in certain
felonies like armed robbery does not satisfy the reckless
indifference standard.”]; In re Bennett, supra, 26 Cal.App.5th at
p. 1016.) Thus, even assuming Reese knew Saucedo intended to
commit a carjacking with a gun when they entered or reentered
the garage, this fact does not, by itself, establish the requisite
mental state.
21
Moving to the next factor, there was no evidence Reese
knew Saucedo was prone to violence or was likely to use lethal
force. Reese told detectives he had known Saucedo for a couple
months and “ran with” him a lot. But nothing suggested he and
Saucedo had previously committed crimes together, or that
Saucedo had previously committed a shooting or other violent
offense. The youths were members of the same gang, but there
was no evidence of the gang’s activities and no showing Saucedo
had engaged in gang-related violence. (See Banks, supra, 61
Cal.4th at pp. 810–811 [although some of getaway driver’s
cohorts in armed robbery were gang members, there was no
evidence they had participated in shootings, murder, or
attempted murder]; In re Miller (2017) 14 Cal.App.5th 960, 976
[although defendant and the killer belonged to the same gang
and had committed follow-home robberies together, no evidence
indicated they had ever participated in shootings, murder, or
attempted murder]; In re Taylor, supra, 34 Cal.App.5th at p. 558
[no evidence defendant was aware of his accomplice’s propensity
for violence, despite knowledge of accomplice’s involvement in
illegal activity including drug sales]; In re Ramirez, supra, 32
Cal.App.5th at p. 405.)
The “duration of the crime also counsels against finding
defendant exhibited reckless indifference to human life.” (In re
Miller, supra, 14 Cal.App.5th at p. 975.) “Where a victim is held
at gunpoint, kidnapped, or otherwise restrained in the presence
of perpetrators for prolonged periods, ‘there is a greater window
of opportunity for violence’ [citation] possibly culminating in
murder.” (Clark, supra, 63 Cal.4th at p. 620; Scoggins, supra,
9 Cal.5th at p. 680 [prolonged restraint of the victim can indicate
reckless indifference to human life, because it provides a greater
22
opportunity for violence].) Here, the duration of the incident was
extremely brief. K. testified that only two or three minutes
elapsed between the time he entered the garage elevator until he
heard the crash that indicated the fatal shot had been fired. (See
Scoggins, supra, 9 Cal.5th at p. 681 [fact interaction with victim
lasted only up to five minutes, rather than a prolonged period,
did not weigh in favor of reckless indifference finding].)
Evidence that a defendant had the opportunity to act as a
restraining influence on his murderous cohort, but failed to do so,
provides support for a reckless indifference finding. (See
Scoggins, supra, 9 Cal.5th at p. 678; In re Loza (2017) 10
Cal.App.5th 38, 53–54.) But there is weak evidence Reese had
such an opportunity here. The entire incident transpired rapidly
and the carjacking was a spontaneous deviation from the planned
auto theft. Reese told detectives that, believing that the victim
had seen him, he was near the gate and leaving the garage when
Saucedo approached the victim, holding the gun down by his side.
Reese claimed he did not see the actual shooting and was not by
Saucedo’s side when Saucedo fired the fatal shot. Thus, although
Reese was in close proximity to the shooting, it does not appear
he was close enough, nor was there sufficient time, for him to act
as a meaningful restraining influence. (See People v. Ramirez,
supra, 71 Cal.App.5th at p. 989 [defendant lacked meaningful
opportunity to intervene when he and the shooter were on
opposite sides of the carjack victim’s vehicle, and the attempted
carjacking was quickly executed].)
Clark and other authorities have also considered a
defendant’s efforts to minimize the risks of violence during the
felony. (Clark, supra, 63 Cal.4th at pp. 621–622.) Here, this
factor appears neutral. Reese planned for a car theft, a crime
23
that does not generally involve violence. The carjacking was
carried out on the spur of the moment, by Saucedo. The People
argue that the carjacking transpired in the afternoon, when
children were getting out of school. But the crime occurred in an
apartment garage, not a school parking lot; other than the
victim’s sons, there were no children and no other persons in the
garage when Reese and Saucedo entered. And, Saucedo waited to
commit the carjacking until the children had gotten into the
elevator. The evidence suggests Reese neither took steps to
minimize the risk of violence, nor heighten it.
Two factors provide some support for a finding of reckless
indifference. Courts have relied on a defendant’s failure to aid a
wounded victim as a factor showing reckless indifference. (See
Clark, supra, 63 Cal.4th 619; In re Parrish, supra, 58 Cal.App.5th
at p. 544 [reckless indifference shown in part by fact petitioner
“did not pause . . . to aid or comfort the victim”]; People v.
Douglas, supra, 56 Cal.App.5th at p. 10 [petitioner “displayed no
interest in moderating violence or in aiding his bloody and
suffering victim,” and instead picked his pocket].) Here, Reese
did nothing to aid Sanguansukdikosol. But, this failure is
mitigated somewhat because it is unclear whether Reese knew
Sanguansukdikosol had actually been shot, or how badly he was
hurt. Reese claimed he did not see the actual shooting, and
simply ran on Saucedo’s command. An ambulance was
summoned for Sanguansukdikosol for a heart attack, not a
gunshot wound, indicating the nature of the wound was not
immediately obvious. (See In re Taylor, supra, 34 Cal.App.5th at
p. 559 [failure to assist victim did not support reckless
indifference finding where there was no evidence defendant
appreciated how badly the victim was wounded].) The fact Reese
24
later watched the movie he had purchased is not sufficiently
callous to reliably demonstrate recklessness.
The strongest factor weighing in favor of a reckless
indifference finding is Reese’s presence at the crime scene.
“Presence at the scene of the murder is a particularly important
aspect of the reckless indifference inquiry.” (People v. Garcia
(2020) 46 Cal.App.5th 123, 148; People v. Murillo (2020) 54
Cal.App.5th 160, 172–173, review granted on another ground
Nov. 18, 2020, S264978.) Indeed, in the majority of cases finding
an absence of reckless indifference, the defendant was not
present. (See Murillo, at pp. 172–173 [“In Banks and Clark, and
in other cases in which a court has overturned a special
circumstance finding, the defendant either was not present at the
scene of the killing, or at least was not capable of preventing his
cohort from acting.”].)
However, this factor is not always dispositive. (See People
v. Ramirez, supra, 71 Cal.App.5th at pp. 975, 978, 989
[concluding defendant who was present when accomplice shot the
victim did not act with reckless indifference]; In re Moore, supra,
68 Cal.App.5th at p. 452 [although petitioner saw accomplice rob
and shoot the victim, petitioner was sitting in a stolen car at the
scene and was not close enough to exercise a restraining effect].)
People v. Ramirez is analogous. There, the 15-year-old
defendant and two fellow gang members, Rios and Gallardo, set
out to carjack a victim. Ramirez knew the leader, Rios, was
armed with a gun. (People v. Ramirez, supra, 71 Cal.App.5th at
pp. 977, 979.) When the victim of the carjacking declined to exit
his car at Rios’s command, Rios shot and killed him. Ramirez
admitted to police that he knew Rios was planning the
carjacking. Ramirez also admitted approaching the car and
25
telling the passenger to get out. He had not wanted to
participate in the carjacking but felt he had to or Rios would tell
his fellow gang members and he would be killed. (Id. at pp. 978–
979, 981.) The court reasoned: “Ramirez did not provide the
murder weapon, instruct his confederate to shoot, or know of his
confederate’s propensity toward violence, and the shooting
occurred quickly without Ramirez having a meaningful
opportunity to intervene. Although Ramirez was aware his
confederate had a gun and intended to use it in the carjacking, as
a 15 year old he may well have lacked the experience and
maturity to appreciate the risk that the attempted carjacking
would escalate into a shooting and death, and he was more
susceptible to pressure from his fellow gang members to
participate in the carjacking. Thus, there is not substantial
evidence Ramirez acted with reckless indifference to human life.”
(Id. at p. 975.) Similar circumstances are present here, and
likewise are insufficient to demonstrate reckless indifference.
Finally, as in Ramirez, Reese’s youth weighs against a
finding of reckless indifference. At the time of the murder, Reese
was barely 16 years old, his birthday having occurred only 16
days earlier. Youth was not one of the factors expressly listed by
Banks and Clark, but those opinions did not purport to set forth
an exclusive list. (In re Harper (2022) 76 Cal.App.5th 450, 466–
467.) Several courts have concluded that a defendant’s youth is a
relevant factor in the major participant or reckless indifference
inquiry. In the context of reviewing a denial of a section 1170.95
petition at the prima facie stage, People v. Harris concluded the
evidence did not show, as a matter of law, that the 17-year-old
arson defendant was actually aware of the particular dangers of
throwing firebombs into a residence, “particularly in light of
26
subsequent case law’s recognition of the science relating to
adolescent brain development [citations].” (People v. Harris
(2021) 60 Cal.App.5th 939, 959–960, review granted on another
point Apr. 28, 2021, S267802.)
In In re Moore, supra, 68 Cal.App.5th 434, the court found
age was a determinative factor in the reckless indifference
inquiry. (Id. at pp. 453–454.) There, the petitioner was 16 years
old when the murder was committed. The court concluded that
even if the evidence showing reckless indifference would have
been sufficient for an adult, it did not suffice for the petitioner
due to his age. The court reasoned that children are generally
less mature and responsible than adults, and the law has
historically assumed that they lack the capacity to exercise
mature judgment. Accordingly, the court concluded the
petitioner lacked the experience, perspective, and judgment to
adequately appreciate the risk of death posed by his participation
in a robbery-homicide. (Ibid.)
People v. Ramirez, supra, 71 Cal.App.5th 970, similarly
concluded that a “juvenile’s immaturity and failure to appreciate
the risks and consequences of his or her actions bear directly on
the question whether the juvenile is subjectively ‘ “aware of and
willingly involved in the violent manner in which the particular
offense is committed” ’ and has ‘consciously disregard[ed] “the
significant risk of death his or her actions create.” ’ ” (Id. at
p. 991.) The court pointed out that both the California and
United States Supreme Courts have observed that the hallmark
features of youth include immaturity, impetuosity, and the
failure to appreciate risks and consequences, and juveniles are
more susceptible to peer pressure than adults. (Ibid.) The court
concluded, “Ramirez’s youth at the time of the shooting greatly
27
diminishes any inference he acted with reckless disregard for
human life by participating in the attempted carjacking knowing
Rios was armed.” (Id. at pp. 990–991.)
In In re Harper, the court criticized In re Moore for
suggesting, “with little or no analysis,” that “the defendant’s
youth, by itself, was the decisive factor in determining whether
the defendant acted with reckless disregard for human life.” (In
re Harper, supra, 76 Cal.App.5th at p. 468.) Harper declined to
follow Moore “to the extent it can be read to suggest that youth is,
by itself, a decisive factor whenever the defendant was a minor at
the time of the offense.” (Id. at p. 470.) Assuming, without
deciding, that youth was a factor that might be considered,
Harper concluded it was not dispositive in that case. (Id. at
p. 466.)
We need not weigh in on whether Harper’s criticism of
Moore is warranted. In evaluating the evidence, we must
examine the totality of the circumstances (Scoggins, supra, 9
Cal.5th at p. 677), and it cannot be denied that a defendant’s
youth is potentially relevant to his mental state and his
assessment of the risks involved in a criminal endeavor. Here,
Reese was barely 16 years old when he committed the offenses.
The evidence suggested that 20-year-old Saucedo, who was a
member of the same gang, was the leader and gave the
considerably younger Reese directions: Saucedo told Reese which
cars were undesirable theft targets, and directed Reese to take
the victim’s car. When the duo fled, Saucedo, not Reese, did all
the talking and gave directions to Jose. There was little, if
anything, about the planned vehicle theft and even the carjacking
that would have suggested to a person as young as Reese that the
crimes involved a heightened risk of death. As Ramirez
28
explained, the defendant’s “age may well have affected his
calculation of the risk of death posed by using the firearm in the
carjacking, as well as his willingness to abandon the crime.”
(People v. Ramirez, supra, 71 Cal.App.5th at p. 991.) Accordingly,
Reese’s age cuts against a finding that he was subjectively aware
his actions created a grave risk of death beyond that inherent in
any violent felony.
In sum, viewing the evidence in the light most favorable to
the People and taking into consideration Banks, Clark, Scoggins,
and their progeny, we cannot say the evidence was sufficient to
prove Reese acted with reckless indifference to human life.10
The People argue that Reese’s statements to police were
internally contradictory and self-serving, supporting the
conclusion that he was minimizing his own involvement in the
crimes. They contend that evidence he had a sweater wrapped
around his hand when he entered Jose’s convertible supports an
inference he was hiding the gun, which in turn supports an
inference that he had it because he fired the fatal shot. But
assuming the gun was under the sweater, this is too slender a
reed upon which to base a conclusion that Reese was the shooter.
The only evidence regarding what transpired in the garage after
the children went upstairs came from Reese, and he consistently
10
This Division’s 2007 opinion concluded the evidence was
sufficient to prove Reese acted as a major participant with
reckless indifference, based primarily on the fact Saucedo was
armed with a firearm. But, as we have discussed, our Supreme
Court has since made clear that the mere presence of a firearm—
and, indeed, the foreseeable risk of death in an armed robbery—
is insufficient to prove reckless indifference. (Scoggins, supra, 9
Cal.5th at p. 677; Banks, supra, 61 Cal.4th at p. 808; Clark,
supra, 63 Cal.4th at pp. 617–618.)
29
claimed Saucedo was the shooter. One of the eyewitnesses who
observed Reese and Saucedo running from the scene saw that the
taller man—i.e., Saucedo—had his hand in his pants pocket and
was running clumsily.11 When Reese and Saucedo reached Jose’s
convertible, Saucedo patted his clothing as if to demonstrate he
was unarmed, and Reese had the sweater wrapped around his
arm. From this evidence the jury could perhaps have inferred
that Saucedo gave the gun to Reese to hold during their flight.
But the inference that Reese was therefore the shooter is simply
too speculative to amount to substantial evidence. As the
prosecutor told the jury during opening statement, “you may
never know exactly what happened,” except that “one of the two
of them shot and killed” the victim. The trial court, at
sentencing, stated, “I do not believe the defendant was the
shooter . . . .” Certainly, Reese’s statements to detectives may not
have been entirely truthful. But given that there was no
significant circumstantial evidence contradicting Reese’s claim
that Saucedo was the shooter, the fact he may have been
partially dishonest does not equate to sufficient evidence on this
question.
11
Reese was approximately five foot five inches tall. Saucedo
was approximately six feet tall.
30
DISPOSITION
The petition for writ of habeas corpus is granted in part.
The special circumstance findings are vacated. The matter is
remanded to the trial court for consideration of a new section
1170.95 petition, should Reese file one. Upon consideration of
such a petition, the court is directed to vacate Reese’s murder
conviction pursuant to section 1170.95, subdivision (d)(2), and
resentence him on the attempted carjacking and burglary
convictions in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
31