People v. Keel

Filed 10/21/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079181

Plaintiff and Respondent,

v. (Super. Ct. No. FSB051307)

DAVION KEEL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino,
Cara D. Hutson, Judge. Reversed and remanded with instructions.
Kimberley J. Grove, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General,
for Plaintiff and Respondent.
 I
INTRODUCTION
In 2005, fifteen-year-old Davion Keel and eighteen-year-old Ariel
Bolton held Barry Knight at gunpoint and robbed him of twenty dollars on
the streets of San Bernardino. One of them shot and killed Knight when he
resisted the robbery and tried to flee. Keel and Bolton were both prosecuted
in adult criminal court and convicted of first degree murder in connection
with Knight’s death.
More than a decade later, Keel filed a petition to vacate his murder
conviction and to be resentenced under Penal Code section 1172.6 based on
recent legislative changes to our state’s murder laws. (Further undesignated

statutory references are to the Penal Code.)1 The trial court denied the
petition for resentencing, finding Keel was not entitled to relief because he
remained liable for Knight’s murder under a still-valid theory of liability—to
wit, he was a major participant in the underlying robbery and he acted with
reckless indifference to human life.
Keel appeals the order denying his petition for resentencing. He
argues the evidence was insufficient to support the trial court’s finding that
he was a major participant in the underlying robbery who acted with reckless
indifference to human life. In the alternative, he contends the court applied
an incorrect legal standard when it adjudicated his petition for resentencing.
We agree with Keel’s first argument, which renders it unnecessary for
us to reach his second argument. Because there was insufficient evidence to

1 At the time Keel filed his petition for resentencing, section 1170.95
governed the resentencing of murder convictions. Effective June 30, 2022,
section 1170.95 was renumbered to section 1172.6, with no change in text
(Stats. 2022, ch. 58, § 10). We will refer to the statute in its renumbered
form.
2
support the trial court’s determination, we reverse the order denying Keel’s
resentencing petition and remand the matter to the trial court with directions
to grant Keel’s resentencing petition and vacate his murder conviction.
Further, we conclude Proposition 57, the Public Safety and
Rehabilitation Act of 2016 (Cal. Const., art. I, § 32), and Senate Bill 1391
(2017–2018 Reg. Sess.) will apply retroactively to Keel once his petition for
resentencing is granted and his murder conviction is vacated. Therefore, on
remand, we instruct the trial court to transfer the matter to the juvenile
court for resentencing in accordance with these measures.
II
BACKGROUND
A. Procedural History
In 2008, a jury convicted Keel of the first degree murder of Knight
(§§ 187, subd. (a), 189). Keel was sentenced to 25 years to life in prison. Our
court affirmed the conviction on direct appeal. (People v. Bolton (Oct. 8, 2009,
D055691) [nonpub. opn.].) The Supreme Court denied review on January 13,
2010.
In 2019, Keel filed a petition to vacate his murder conviction and to be
resentenced based on legislative amendments that significantly curtailed the
scope of our state’s felony-murder rule. He alleged he could not be convicted
of murder if he were tried for the crime today because: (1) he was not the
actual killer; (2) he did not aid and abet the actual killer with the intent to
kill; and (3) he was not a major participant in the underlying robbery and he
did not act with reckless indifference to human life.
The trial court initially declared the resentencing statute,
section 1172.6, unconstitutional, and it struck the resentencing petition for
that reason. However, on appeal, our court concluded section 1172.6 is

3
constitutional. (People v. Keel (May 21, 2020, D075827) [nonpub. opn.].)
Thus, we reversed the order striking the petition and remanded the matter
for further proceedings. (Ibid.) On remand, the trial court found that Keel
made a prima facia showing of entitlement to relief and set the matter for an
evidentiary hearing.
B. Prosecution Evidence
The prosecution made three alternative claims why Keel could still be
convicted of murder, notwithstanding the legislative changes to our state’s
felony-murder rule: (1) he was the actual killer; (2) he aided and abetted the
actual killer with the intent to kill; or (3) he was a major participant in the
robbery and he acted with reckless indifference to human life. To support
these arguments, the prosecution submitted the information charging Keel
with Knight’s murder; reporter’s transcripts from the murder trial showing
the testimony of several percipient witnesses; the jury instructions and
verdicts from the murder trial; and our opinion affirming Keel’s conviction.
The prosecution’s evidence told the following story.
Early one morning, Barry Knight and Deantre Conner were walking
the streets of downtown San Bernardino looking for drugs. They encountered
fifteen-year-old Keel and eighteen-year-old Bolton, both of whom Conner
believed were members of the East Side Crips street gang. Knight and
Conner approached Keel and Bolton in the hope of buying drugs.
Knight said that he and Conner had twenty dollars to buy drugs.
Bolton asked which one of them had the money and Knight said he had it. At
some point, Keel and Bolton both produced firearms and held them at their
sides. Keel was armed with a silver revolver and Bolton was armed with a
black MAC-10 semiautomatic firearm.

4
 According to Conner, Keel mentioned “two previous confrontations”
that had taken place between Conner and Keel. The details of these
confrontations are not entirely clear from the record. However, Conner
testified that Keel went through his pockets and performed a “shake down” of
him during the prior encounters. After referencing these prior encounters,
Keel accused Conner of “shit” talking and said, “he could really take [Conner]
out right now if he wanted to.” But he did not. Instead, he told Conner to
“leave” and “get out of here.”
Conner started to walk away when he overheard Keel and Bolton tell
Knight to empty his pockets. Conner turned around and saw Bolton conduct
a pat down search of Knight. He also saw Keel and Bolton point their guns
at Knight. While this was going on, Knight said that all he had was twenty
dollars. Conner continued walking and told Knight to give Keel and Bolton
what they wanted—i.e., to give them the twenty dollars.
Before Conner reached the end of the city block, he heard four or five
gunshots behind him. He did not see who fired the shots, but he saw Knight
running away and heard him say, “Oh my God. Oh my God.” Keel and Bolton
fled in a different direction.
A bystander about a block away saw Keel point his gun at Knight and
identified him as the shooter, although his view of Bolton was obstructed and
he did not see flashes from the muzzle of Keel’s gun. A second bystander on a
balcony about 100 feet from the shooting reported that he saw Keel push
Knight during the encounter. However, he identified Bolton as the shooter.
Law enforcement later recovered several .9 millimeter shell casings
from the crime scene. The shell casings came from the same firearm and the
firing pin impressions were consistent with a MAC-10 firearm—the gun that
Bolton was carrying.

5
 Conner and one of the bystanders followed Knight and caught up with
him at a nearby motel. A police sergeant arrived soon after and found Knight
lying on the ground. Knight died from a single gunshot wound to the chest.
About twelve hours after the shooting, police officers in a marked
vehicle observed Keel and a few other persons loitering in a shopping center
near the crime scene. They pulled into the shopping center and the loiterers
fled. Keel ran into a nearby business and tried to hide his revolver in a trash
can, but he was apprehended and the officers recovered the revolver. It was
not loaded. Law enforcement later learned the revolver had been used by a
gang member to commit a different murder a few weeks earlier.
C. Defense Evidence
Keel testified at the evidentiary hearing. He was 15 years old when he
and Bolton robbed Knight at gunpoint. At the time, he was an associate—but
not a member—of the East Side Crips street gang. As a young gang
associate, he sold drugs and alerted older gang members when police were in
the area.
Keel testified he met Bolton when he was six or seven years old. Keel
lived with one of Bolton’s family members and Bolton sometimes came to the
house for a day or two at a time. Keel moved out of the home after a year or a
year and a half, and Bolton moved away as well, so Keel did not see Bolton
again until about two weeks before Knight’s killing. He testified Bolton was
in the same gang as him and Bolton’s family members were “real killers,” but
Bolton did not have a reputation as a menace or a killer.
Keel admitted he had a gun with him the morning of the shooting. He
testified an older gang member gave him the gun and told him to throw it in
a lake, but he kept it instead. According to Keel, the gun was not loaded.

6
 Keel testified that Bolton came to him the morning of the shooting and
asked him to “hit the block,” meaning he wanted to hang out on the street,
wait for “older homies,” and possibly sell drugs. Keel agreed to “hit the block”
with Bolton. He knew Bolton was armed with a firearm, but he denied
knowing the firearm was loaded.
When Keel and Bolton encountered Knight and Conner, Bolton asked
who had the money and Knight said he had the money. Keel testified that
Bolton and Knight stepped aside at that point while he and Conner remained
where they were.
Keel testified he looked over and saw that Bolton had his gun pulled
out, which “shocked” and “surprised” him. By then, he knew Bolton was
robbing Knight. Keel pulled out his firearm, reminded Conner about an
“incident” from a few weeks earlier, and told him to walk away. Meanwhile,
Bolton searched Knight, tried to grab a money bag from him, and then shot
him as he resisted. Keel said he was “shocked,” “scared,” and “surprised”
when Bolton fired his gun. Keel testified he did not think Knight had even
been shot because he was able to run away from the scene of the robbery.
The defense also submitted a transcript of the trial testimony from a
witness who was incarcerated in the same cell block as Bolton. According to
the witness, Bolton said he “shot a dude when he was running,” and he took
twenty dollars from him. Bolton also asked the witness to kill both Conner
and the bystander who had identified Bolton as the shooter.
D. The Denial of the Petition for Resentencing
At the conclusion of the evidentiary hearing, the court found there was
“no credible evidence” that Keel shot Knight. Although one bystander
identified Keel as the shooter, the court found the bystander’s credibility on
this issue was “dubious at best.” Therefore, the court rejected the

7
prosecution’s theory that Keel was ineligible for resentencing because he was
the actual killer.
However, the court opined that it faced a far more “difficult” decision
with regard to whether Keel was a major participant in the robbery who
acted with reckless indifference to human life. The court acknowledged, on
the one hand, that Keel was “a mere 15 years old” at the time of the robbery,
“the decision to rob was made quickly,” and the events culminating in the
shooting “unfold[ed] rather quickly”—factors that would seem to indicate that
Keel was not a major participant and/or did not act with reckless indifference
to human life. The court noted, on the other hand, that Keel pulled out a
firearm and pointed it at Knight during the robbery, which suggested he was
a major participant who acted with the mental state of reckless indifference.
After articulating these competing factors, the court ultimately found
Keel was a major participant in the underlying robbery and he acted with
reckless indifference to human life. Based on these findings, the court denied
Keel’s petition for resentencing.
III
DISCUSSION
A. Senate Bill 1437
“In 2017, the Legislature adopted a concurrent resolution declaring a
need to reform the state’s homicide law ‘to more equitably sentence offenders
in accordance with their involvement in the crime.’ [Citation.] The next
year, the Legislature followed through with Senate Bill 1437, which made
significant changes to the scope of murder liability for those who were neither
the actual killers nor intended to kill anyone, including certain individuals
formerly subject to punishment on a felony-murder theory.” (People v. Strong
(2022) 13 Cal.5th 698, 707 (Strong).)

8
 “As relevant here, Senate Bill 1437 significantly limited the scope of
the felony-murder rule to effectuate the Legislature’s declared intent ‘to
ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’
[Citations.] Penal Code section 189, as amended, now limits liability under a
felony-murder theory principally to ‘actual killer[s]’ (Pen. Code, § 189,
subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet ‘the actual
killer in the commission of murder in the first degree’ (id., subd. (e)(2)).
Defendants who were neither actual killers nor acted with the intent to kill
can be held liable for murder only if they were ‘major participant[s] in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of [Penal Code] Section 190.2’ — that is, the
statute defining the felony-murder special circumstance. (Id., § 189,
subd. (e)(3).)” (Strong, supra, 13 Cal.5th at p. 708.)
“Senate Bill 1437 also created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended. [Citations.] Under newly enacted section 1172.6, the process
begins with the filing of a petition containing a declaration that all
requirements for eligibility are met (id., subd. (b)(1)(A)), including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder
because of changes to [Penal Code] Section 188 or 189 made effective January
1, 2019,’ the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).”
(Strong, supra, 13 Cal.5th at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition ‘to determine whether the petitioner has made a prima facie case for

9
relief.’ [Citations.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. [Citations.] If, instead, the defendant has made a
prima facie showing of entitlement to relief, ‘the court shall issue an order to
show cause.’ ” (Strong, supra, 13 Cal.5th at p. 708.)
Unless the parties stipulate that the defendant is eligible for
resentencing, the court must “hold an evidentiary hearing at which the
prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder’ under state law as
amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).)” (Strong, supra, 13
Cal.5th at p. 709.) At the hearing, the court may consider previously-
admitted evidence, so long as it remains “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.” (§ 1172.6, subd. (d)(3).) The parties
“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.” (Ibid.)
B. Substantial Evidence Did Not Support the Trial Court’s Finding That
Keel Acted with Reckless Indifference to Human Life
The trial court found Keel was ineligible for resentencing because he
remained “guilty of murder,” notwithstanding the Legislature’s curtailing of
our state’s felony-murder rule. (§ 1172.6, subd. (d)(3).) In particular, it found
he could still be convicted of first-degree felony murder because he was a

10
major participant in the underlying robbery and he acted with reckless
indifference to human life. (See § 189, subd. (e)(3).)
Keel argues there was insufficient evidence to support the court’s major
participation and reckless indifference findings. To assess whether sufficient
evidence supported these findings, we apply the substantial evidence
standard of review. (People v. Nieber (2022) 82 Cal.App.5th 458; People v.
Garrison (2021) 73 Cal.App.5th 735, 747.) “Under this standard, ‘ “we review
the entire record in the light most favorable to the [challenged order] to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” [Citation.] We
determine “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” ’ ” (Nieber, at p. 476.)
To borrow a phrase from the trial court, the evidence in this case
required the court to make a “difficult decision.” Some considerations pointed
to one outcome, while other considerations arguably pointed to the opposite
outcome. Further, we are mindful that the substantial evidence standard of
review is a deferential one, which often results in an affirmance of the
judgment or order rendered by the trial court. Nonetheless, on the record
before us, we cannot discern sufficient evidence to support the trial court’s
determination that 15-year-old Davion Keel acted with the requisite mental

11
state of reckless indifference to human life. For that reason, the order

denying the petition for resentencing must be reversed.2
1. Reckless Indifference Standard
Under the current version of our state’s murder laws, a non-killer may
be convicted of first-degree felony murder if he or she: (1) was a major
participant in a statutorily-enumerated felony in which a death occurs, and
(2) acted with reckless indifference to human life. (§ 189, subd. (e)(3).)
“Reckless indifference to human life has a subjective and an objective
element. [Citation.] As to the subjective element, ‘[t]he defendant must be
aware of and willingly involved in the violent manner in which the particular
offense is committed,’ and he or she must consciously disregard ‘the
significant risk of death his or her actions create.’ [Citations.] As to the
objective element, ‘ “[t]he risk [of death] must be of such a nature and degree
that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in the
actor’s situation.” ’ [Citation.] ‘Awareness of no more than the foreseeable
risk of death inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life; ‘only knowingly creating a ‘grave risk of
death” ’ satisfies the statutory requirement. [Citation.] Notably, ‘the fact a
participant [or planner of] an armed robbery could anticipate lethal force

2 Because the evidence was insufficient to support a finding that Keel
acted with reckless indifference to human life, we do not assess Keel’s claim
that there was not enough evidence to prove he was a major participant in
the underlying robbery. We also do not reach Keel’s contention that the trial
court applied the wrong legal standard when it adjudicated his petition for
resentencing.
12
might be used’ is not sufficient to establish reckless indifference to human
life.” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).)
In People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court
provided important guidance on the meaning of reckless indifference to
human life. According to Clark, reckless indifference to human life
“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.) Clark set forth a non-exhaustive
list of factors pertinent to decide whether a defendant acts with reckless
indifference to human life, including the defendant’s use of, or awareness of,
the presence of a weapon or weapons; the defendant’s physical presence at
the crime scene and opportunity to restrain confederates or aid victims; the
duration of the crime; the defendant’s knowledge of any threat the
confederates might represent; and efforts taken by the defendant to minimize
risks. (Id. at pp. 618–623.) “ ‘[N]o one of these considerations is necessary,

nor is any one of them necessarily sufficient.’ ”3 (Id. at p. 618.)
Since Clark, courts have discerned an additional factor that may be
relevant to the reckless indifference analysis—the defendant’s youth. “It is
well recognized that ‘[c]hildren “generally are less mature and responsible
than adults” ’ and ‘ “often lack the experience, perspective, and judgment to

3 Clark articulated these factors while interpreting section 190.2, the
special-circumstance statute. That statute makes a defendant eligible for
death or life in prison without the possibility of parole if he or she is a “major
participant” in an enumerated felony resulting in death, and he or she acts
“with reckless indifference to human life.” (§ 190.2, subd. (d).) When the
Legislature enacted Senate Bill 1437, it incorporated these same elements
into section 189. (Strong, supra, 63 Cal.4th at p. 274.) In doing so, it
“codified the understanding of those requirements” as elucidated in Clark
and People v. Banks (2015) 61 Cal.4th 788 (Banks). (Strong, at p. 710.)
13
recognize and avoid choices that could be detrimental to them” ....’ [Citation.]
As a result, ‘[t]he law has historically reflected the same assumption that
children characteristically lack the capacity to exercise mature judgment and
possess only an incomplete ability to understand the world around them.’
[Citation.] This is so ‘even where a “reasonable person” standard otherwise
applies ....’ ” (In re Moore (2021) 68 Cal.App.5th 434, 453 (Moore).)
We agree youth can be a relevant consideration—potentially an
important one, depending on the facts of the case—bearing on whether a
juvenile defendant acted with reckless indifference to human life. (See People
v. Ramirez (2021) 71 Cal.App.5th 970, 990–991 (Ramirez) [reversing order
denying petition to resentence murder conviction, in part, because
petitioner’s “youth at the time of the shooting greatly diminishe[d] any
inference he acted with reckless disregard for human life”]; Moore, supra, 68
Cal.App.5th at pp. 454, 455 [vacating robbery-murder special circumstance
finding based, in part, on petitioner’s “youth at the time of his offenses”]; see
also In re Harper (2022) 76 Cal.App.5th 450, 466, fn. 8 [“youth would appear
to be an obvious consideration when determining whether a defendant acted
with reckless indifference to human life”]; accord People v. Harris (2021) 60
Cal.App.5th 939, 960 [defendant’s youth was relevant to whether he was a
major participant in underlying felony].)
2. Application
Viewing the appellate record in the light most favorable to the order
denying Keel’s petition for resentencing, we conclude substantial evidence did
not support the trial court’s finding of reckless indifference to human life, as
that statutory term has been interpreted in Clark and subsequent case law.
The first Clark factor—the defendant’s use of, or awareness of, the
presence of a weapon or weapons—only slightly supported the trial court’s

14
finding of reckless indifference. (Clark, supra, 63 Cal.4th at pp. 618–619.) It
was undisputed that Keel carried a revolver during the encounter with
Knight and he knew Bolton had a firearm as well. Further, there was some
disputed testimony that Keel pointed his revolver at Knight during the
robbery. This evidence would seem to suggest Keel was culpable.
On the other hand, there was no evidence that Keel provided Bolton
with his firearm. There was no evidence that Keel instructed Bolton to fire
his weapon either. (See Ramirez, supra, 71 Cal.App.5th at pp. 975, 988
[juvenile defendant did not act with reckless indifference to human life, in
part, because he did not provide murder weapon or instruct his confederate to
shoot].) For his part, Keel testified that he did not learn that Bolton had a
firearm until after they had already left to “hit the block.” Keel also denied
any prior knowledge that Bolton’s gun had bullets in it. There was no
evidence to the contrary, and the People do not argue on appeal that Keel
knew Bolton’s gun was loaded with ammunition.
Further, there was no direct evidence that Keel’s revolver was loaded.
Indeed, the evidence in the record suggests otherwise. When law
enforcement recovered Keel’s revolver the day of the shooting, there were no
bullets in it. Keel’s possession of a possibly-unloaded revolver, and his
awareness that Bolton had a firearm, do not give rise to a particularly strong

inference of culpability.4 (See 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.”].)

4 The trial court opined that it was “not convinced” Keel’s revolver was
unloaded because it had been used by a different gang member to perpetrate
a homicide two weeks earlier. In our view, it is unreasonable to infer that a
firearm was loaded based solely on the fact that a different person fired a
bullet from the firearm two weeks earlier.
15
 The second Clark factor—the defendant’s presence at the crime scene
and opportunity to restrain confederates or aid victims—is neutral. On the
one hand, Keel was present at the scene of the shooting, which allowed him
to observe Bolton’s actions and ostensibly gave him at least some chance to
act as a moderating force. Regrettably, Keel did not do so.
However, as the trial court explained, “[t]he decision to rob was made
quickly,” and Bolton’s decision to shoot was apparently made even more
quickly in response to Knight’s unexpected resistance and efforts to flee.
Given the spontaneity of the robbery in general, and of Bolton’s conduct in
particular, we are not persuaded Keel had a meaningful opportunity to
restrain Bolton or intervene before he shot Knight. (See Scoggins, supra, 9
Cal.5th at p. 679 [petitioner lacked control over his confederates’ actions,
“given how quickly the shooting occurred”]; Moore, supra, 68 Cal.App.5th at
p. 452 [“The short duration of the robbery and the sudden and unprovoked
nature of the shooting” reinforced the conclusion that petitioner could not
restrain his confederate’s actions].)
The third Clark factor—the duration of the crime—significantly
reduces Keel’s culpability. In Clark, the Supreme Court explained that
“[w]here 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.) Thus, in assessing a defendant’s mental
state, “[c]ourts have looked to whether a murder came at the end of a
prolonged period of restraint of the victims by defendant.” (Ibid.)
Here, there was no evidence the robbery was prearranged. By all
accounts, the encounter was unexpected and unplanned. In fact, Keel and
Conner both testified that Knight initiated the encounter—not Keel or

16
Bolton. As the trial court observed, this was “a quick crime of opportunity,”
and Keel had “no idea” it would happen.
Further, events unfurled in rapid succession once the encounter began.
According to Conner, the two sides had a brief exchange during which Bolton
asked who had the drug money and Keel told Conner to walk away. As
Conner walked away, Bolton conducted a pat down and Knight resisted.
According to Conner, he had not even walked to the end of the city block
before shots erupted. This “evidence tended to show that the shooting was a
‘somewhat impulsive’ response to the victim’s unexpected resistance, as
opposed to the culmination of a prolonged interaction that increased the
opportunity for violence.” (In re Taylor (2019) 34 Cal.App.5th 543, 558; see
also Scoggins, supra, 9 Cal.5th at p. 681 [third Clark “factor [did] not weigh
in favor of finding that [petitioner] exhibited reckless indifference to human
life” because the confederate and the victim “had only a brief conversation
before [the confederate] pulled out a gun and shot” the victim].)
The fourth Clark factor—the defendant’s knowledge of any threat his
confederate might represent—also reduces Keel’s culpability. There was no
evidence that Bolton exhibited any previous violent tendencies or had a
reputation for violence. Nor was there any evidence that Keel had knowledge
of any possible violent behaviors or tendencies on Bolton’s part. Keel was the
only witness who testified about his relationship with Bolton, and he stated
he had not seen Keel for many years until just two weeks before the shooting.
Further, he testified that Bolton did not have a reputation as a menace or a
killer. The paucity of evidence that Bolton had a propensity to commit
violent acts, as well as the lack of evidence that Keel was aware of any such
propensity, undermines the notion that Keel acted with reckless indifference

17
to human life.5 (Clark, supra, 63 Cal.4th at p. 621 [petitioner did not act
with reckless indifference to human life, in part, because “no evidence was
presented at trial that [the confederate] was known to have a propensity for
violence, let alone evidence indicating that defendant was aware of such a
propensity”]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025 [finding
“ ‘significant’ ” the lack of evidence that the petitioner knew of his
confederates’ “violent propensities”].)
Neither party addresses the fifth Clark factor—that is, the defendant’s
efforts to minimize risks—at any length. (Clark, supra, 63 Cal.4th at
pp. 621–622.) Keel surely escalated the risk of violence when he pulled out
his revolver. But he arguably minimized the risk of violence by telling
Conner—a potential victim who could have been hurt during the encounter—
to leave the scene.
In addition to the factors enumerated in Clark, Keel’s youth bears
significantly on his culpability. Keel was a mere 15 years old when Bolton
shot Knight. “[T]he ‘ “hallmark features” ’ of youth include ‘ “immaturity,
impetuosity, and failure to appreciate risks and consequences.” ’ [Citations.]
‘ “[T]he background and mental and emotional development of a youthful
defendant [must] be duly considered” in assessing his culpability.’ [Citation.]
‘[T]hey “are more vulnerable or susceptible to ... outside pressures” than

5 The People contend Keel was “no stranger to his accomplice or the
criminal activities of his gang.” (fn. omitted.) To the extent the People
suggest Keel should have been aware of Bolton’s violent tendencies based
solely on his association with the East Coast Crips street gang, we are not
persuaded. The Supreme Court has “caution[ed] against relying too heavily
on gang membership where there is no evidence the defendant or his
confederates ‘had ever participated in shootings, murder, or attempted
murder.’ ” (Ramirez, supra, 71 Cal.App.5th at p. 990 [quoting Banks, supra,
61 Cal.4th at pp. 810–811], italics added.) As noted, there was no evidence
Bolton personally participated in violent acts prior to the shooting.
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adults ....’ ” (Ramirez, supra, 71 Cal.App.5th at p. 991.) Keel’s “youth at the
time of the shooting greatly diminishes any inference he acted with reckless
disregard for human life” during the armed robbery. (Id. at p. 990.)
Further, there was evidence suggesting Keel’s youth may have
rendered him especially vulnerable to outside pressures. Keel associated
with the East Side Crips street gang when he was just six or seven years old.
He received a moniker (“Baby Ready”) at the tender age of six from a gang
member that, in Keel’s words, he considered to be a “father figure.”
According to Keel, there was an expectation among gang members that
younger gang associates would “instantly go do” their bidding. Given this
expectation, it is reasonable to infer Keel would have felt pressure to “hit the
block” and go along with the robbery instigated by Bolton—a fellow gang
associate who was three years Keel’s senior.
In sum, the evidence showed 15-year-old Davion Keel participated in a
crime of opportunity in which a death occurred. The crime was unplanned,
spontaneous, and short in duration. There was no direct evidence that Keel
carried a loaded weapon during the crime. There was no evidence that he
knew his confederate’s weapon was loaded. There also was no evidence that
Keel supplied his confederate with a weapon or instructed him to use one.
There was no evidence that his confederate had a propensity or reputation for
violence, let alone that Keel was aware of such violent tendencies. Further,
when these tragic events unfurled, Keel was a 15-year-old minor—a member
of a class of persons who, in general, “ ‘have a “ ‘lack of maturity and an
underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity,
and heedless risk-taking.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1375,
quoting Miller v. Alabama (2012) 567 U.S. 460, 471.)

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 On this record, we cannot conclude that Keel “ ‘knowingly creat[ed] a
“grave risk of death,” ’ ” such that he may be found to have acted with
reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 683.)
Because there was insufficient evidence that Keel acted with reckless
indifference to human life, the prosecution failed to carry its burden of
proving, beyond a reasonable doubt, that Keel remains “guilty of murder”
under our state’s current murder laws. (§ 1172.6, subd. (d)(3).) The petition
for resentencing must therefore be granted.
C. The Case Must Be Transferred to the Juvenile Court for Resentencing
Keel argues his case must be transferred on remand to the juvenile
court pursuant to Proposition 57 and Senate Bill 1391. We agree.
Keel perpetrated the robbery at issue in 2005. At the time, “in specified
circumstances, prosecutors were permitted, and sometimes required, to file
charges against a juvenile directly in criminal court, where the juvenile
would be treated as an adult.” (People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 305 (Lara).) Consistent with the laws that were in effect, Keel
was tried for Knight’s murder in adult criminal court.
In 2016, California voters approved Proposition 57, which “requires
prosecutors to commence all cases involving a minor in juvenile court.”
(O.G. v. Superior Court (2021) 11 Cal.5th 82, 87 (O.G.); see Lara, supra, 4
Cal.5th at p. 303 [Proposition 57 “prohibits prosecutors from charging
juveniles with crimes directly in adult court”].) Although the measure
required charges against minors to be filed in juvenile court, it still granted
prosecutors some discretion to seek transfers to adult criminal court for 14
and 15-year old defendants who were accused of specified serious or violent
offenses. (O.G., at p. 89 [citing former Welf. & Inst. Code, § 707, subd. (a)(1),
as amended by Prop. 57, § 4.2].)

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 In 2018, the Legislature enacted Senate Bill 1391, which “eliminat[ed]
the transfer of juveniles accused of committing crimes when they are 14 or 15
years old, unless they are first apprehended after the end of juvenile court
jurisdiction.” (O.G., supra, 11 Cal.5th at p. 89.) Thus, as general matter,
“individuals who were under 16 years of age when they committed any
criminal violation … may no longer be transferred to adult/criminal court at
all.” (People v. Castillero (2019) 33 Cal.App.5th 393, 399.)
“The possibility of being treated as a juvenile in juvenile court—where
rehabilitation is the goal—rather than being tried and sentenced as an adult
can result in dramatically different and more lenient treatment.” (Lara,
supra, 4 Cal.5th at p. 303.) By giving a neutral judge the power to decide
whether a case will be heard in juvenile court, rather than vesting such
authority with a district attorney charged with the duty to act as a zealous
advocate, Proposition 57 “ameliorated the possible punishment for a class of
persons, namely juveniles.” (Id. at p. 308.) Because the measure was an
ameliorative change to the criminal law, courts have inferred the voters
intended it “ ‘to extend as broadly as possible.’ ” (Id. at p. 309.) Thus,
Proposition 57 retroactively “applies to all juveniles charged directly in adult
court whose judgment was not final at the time it was enacted.” (Id. at
pp. 303–304; see People v. Hwang (2021) 60 Cal.App.5th 358, 365 (Hwang)
[“if defendant’s judgment was not final when Proposition 57 was enacted, he
is entitled to the retroactive application of that proposition”].)
“Senate Bill 1391 is likewise an ameliorative change to the criminal
justice system that emphasizes rehabilitation over punishment and serves
the broader purpose of decarceration.” (O.G., supra, 11 Cal.5th at p. 101.)
“Like Proposition 57, Senate Bill 1391 focuses on rehabilitation by increasing
the number of juveniles adjudicated in juvenile court and decreasing the

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number of juveniles tried in criminal court.” (Ibid.; see Hwang, supra, 60
Cal.App.5th at p. 365 [“Senate Bill [ ] 1391 effectively broadens the
ameliorative benefit of Proposition 57 to 14- and 15-year-olds by prohibiting
prosecuting attorneys from moving to transfer individuals who commit
certain offenses when they were 14 or 15 years old to adult court”].) Similar
to Proposition 57, Senate Bill 1391 “applies retroactively to defendants whose
judgments are not yet final.” (Hwang, at p. 365; see People v. Superior Court
(I.R.) (2019) 38 Cal.App.5th 383, 392–393 [Senate Bill 1393 applies
retroactively to juveniles with nonfinal judgments].)
The question remains whether Proposition 57 and Senate Bill 1391 will
apply retroactively to Keel, who was just 15 years old when the robbery
occurred, but whose judgment became final in 2010 (before Proposition 57 or
Senate Bill 1391 went into effect). Keel argues they will apply retroactively
to him. The People do not contend otherwise—a telling silence. We agree
with Keel the measures apply retroactively to him because his judgment will
no longer be final once the trial court vacates his murder conviction.
Under section 1172.6, a defendant who succeeds on a resentencing
petition is entitled to “vacat[ur] [of] the murder … conviction and to recall [of]
the sentence and resentenc[ing] … on any remaining counts in the same
manner as if the petitioner had not previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.” (§ 1172.6,
subd. (d)(1); see also id., subd. (d)(3) [“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.”].) Thus, on remand, Keel will be
entitled to vacatur of his murder conviction, recall of his sentence, and
resentencing as though he had not previously been sentenced.

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 In short, Keel’s judgment will no longer be final once the trial court
grants his petition for resentencing and vacates his murder conviction.
Because it will no longer be final, Keel will be entitled to the retroactive
application of Proposition 57 and Senate Bill 1391. (Ramirez, supra, 71
Cal.App.5th at pp. 996–1000 [Proposition 57 and Senate Bill 1391 applied
retroactively to petitioner who obtained vacatur of first degree murder
conviction and resentencing under section 1172.6, even though petitioner’s
judgment was previously final]; see People v. Padilla (2022) 13 Cal.5th 152,
158 [Proposition 57 applied retroactively during resentencing of petitioner
whose previously-final sentence was vacated in habeas corpus proceeding].)
Those measures generally preclude the transfer of any individuals who
were 15 years of age or younger when they committed a crime. Keel was 15
years of age when he perpetrated the robbery of Knight. Thus, on remand,
the matter must be transferred to juvenile court, which “shall treat [Keel’s]
remaining conviction[] as [a] juvenile adjudication[] and impose an
appropriate disposition.” (Ramirez, supra, 71 Cal.App.5th at p. 1000.)

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 IV
DISPOSITION
The order denying Keel’s petition for resentencing is reversed. The
matter is remanded to the trial court with instructions to grant the petition
for resentencing, vacate Keel’s murder conviction, and transfer the matter to
the juvenile court. The juvenile court is instructed to treat Keel’s remaining
conviction as a juvenile adjudication and to impose an appropriate
disposition.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.

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