People v. Jackson CA2/7

Filed 1/9/23 P. v. Jackson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B316630

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A377082)
v.

MICHAEL EARL JACKSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark Hanasoso, Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael C. Keller and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Forty years ago, when Michael Earl Jackson was 22 years
old, a court convicted him on one count of first degree murder and
two counts of robbery and found true a firearm allegation. The
court sentenced him to a prison term of 25 years to life. We
affirmed Jackson’s convictions. (People v. Jackson (Oct. 15, 1984,
B001322) [nonpub. opn.].)
In 2018 the Legislature enacted Penal Code section
1170.951 (now section 1172.6), which, as amended effective
January 1, 2022, authorizes certain individuals convicted of
murder under the felony-murder rule or murder, attempted
murder, or voluntary manslaughter under the natural and
probable consequences doctrine to petition for resentencing.
Jackson filed a petition for resentencing under section 1172.6,
alleging facts that made him eligible for relief. After finding
Jackson had made a prima facie showing he was entitled to relief,
the superior court issued an order to show cause, held an
evidentiary hearing, and denied the petition. Jackson argues
substantial evidence did not support the court’s finding beyond a
reasonable doubt he acted with reckless indifference to human
life, within the meaning of section 190.2, subdivision (d). We
affirm.

1 Statutory references are to the Penal Code.

2
 FACTUAL AND PROCEDURAL BACKGROUND

A. A Court Convicts Jackson on One Count of Murder
and Two Counts of Robbery
One afternoon in February 1982, while driving a stolen car
with companions nicknamed “Cal,” “Binky,” and “Rossi,” Jackson
began to follow the car in front of him. Binky suggested they
steal the car’s hubcaps, and Cal said he wanted to take the
hydraulics. Jackson followed the car for approximately 25 blocks,
waiting for the car to stop, but when Jackson saw his car was
running low on gasoline, he came up with the idea to “bump” the
car to get the driver to stop. Jackson executed his plan by rear-
ending the car, and the car stopped. The driver, Javier Razo, got
out of the car, and Cal, Binky, and Rossi got out of Jackson’s car.
Cal walked to the rear of Razo’s car, and Binky and Rossi walked
up to the passenger side. Cal had a .22 caliber revolver, Binky
had a .32 or .38 caliber gun (of some unspecified kind), and Rossi
had a .22 or a .32 caliber revolver. Cal fired a shot in the air and
said to Razo, “I am taking your car.” Razo moved closer to Cal
and reached for Cal’s gun. Cal shot Razo in the chest, and Razo
fell into the street.
Razo’s wife, Angelita Razo, got out of the car. Binky
pushed her away and got into Razo’s car through the passenger
side. Cal and Rossi jumped back into Jackson’s car. Binky drove
Razo’s car away from the scene of the shooting, and Jackson
followed.
The four men reconvened at an abandoned church next to
the house of Jackson’s girlfriend. Binky and Cal began to discuss
how much money they hoped to make selling the parts of Razo’s
car. Jackson said, “Man, come on, leave that car alone. If you’re

3
going to do anything to that car, you best get it away from here.”
When Binky began to look through Angelita’s credit cards,
Jackson told him to put all of Angelita’s items in a plastic bag
and get rid of them because, Jackson explained, “you don’t leave
evidence behind, just in case the police might come.” Jackson
decided his companions should take Razo’s car “across town” if
they wanted to strip it. Jackson and Cal went to a nearby liquor
store. When they returned, Binky gave Jackson $15 he found in
Angelita’s purse.
Jackson later learned Razo had died. Jackson asked his
friends to bring his bags to the airport, and Jackson took a flight
to Chicago.
Eight months later, Jackson returned to Los Angeles
because he was trying to “do good.” Arturo Zorrilla, the detective
who investigated the crimes in this case, arrested Jackson and
interviewed him at the police station. After Zorrilla advised him
of his constitutional rights under Miranda v. Arizona (1966) 384
U.S. 436, Jackson signed and dated a Miranda advisement form.
Detective Zorrilla then questioned Jackson about the events in
February 1982, wrote down Jackson’s responses, and read the
responses back to Jackson. Jackson signed “each and every page
after [his] statement was read back to him.”
The People charged Jackson with one count of first degree
murder and two counts of robbery. The People also alleged that
Jackson committed the murder while he was engaged in the
commission of robbery, within the meaning of section 190.2,
subdivision (a)(17), and that a principal was armed with a
firearm in the commission of the robberies, within the meaning of
section 12022, subdivision (a).

4
 At the nonjury trial the trial court reviewed Jackson’s
written statement and the preliminary hearing transcript. The
preliminary hearing transcript included the testimony of
Detective Zorrilla, who described the procedure he followed to
record Jackson’s statement and related what Jackson told him in
the interview. The preliminary hearing transcript also included
the testimony of Angelita, who testified that, when Razo stopped
at a red light, “another car came and crashed into ours from the
back.” Angelita stated Razo put the car in park, got out, and
walked to the rear of his car, toward Jackson’s car. Angelita
testified one of the passengers in Jackson’s car got out and began
to speak with Razo. Angelita said she “saw that it was taking [a]
long [time]” and decided to get out of the car with her baby. She
heard Jackson’s passenger, who had a gun, say a “bad word” to
Razo. Angelita stated she saw a second passenger get out of
Jackson’s car with a “pistol” in his hand, point it at Razo, and
shoot him. Angelita recalled that the shooter, after shooting
Razo, fired a shot into the air. Angelita said that she saw
Jackson’s passengers drive off in Razo’s car and that Jackson
“was laughing” as he followed them in his car.
The court found Jackson guilty of first degree murder but
found not true the special circumstance allegation under section
190.2, subdivision (a)(17).2 The court also found Jackson guilty
on two counts of robbery and found true the firearm allegation

2 At the time of Jackson’s trial, the felony-murder special
circumstance “required an intent to kill.” (People v. Banks (2015)
61 Cal.4th 788, 798; see Carlos v. Superior Court (1983) 35 Cal.3d
131, 135, overruled on another ground in People v. Anderson
(1987) 43 Cal.3d 1104.)

5
under section 12022, subdivision (a). The court sentenced
Jackson to prison for a term of 25 years to life for the murder of
Razo and a concurrent term of five years for the robbery of
Angelita. The court also imposed and stayed execution of a five-
year term for the robbery of Razo, plus one year for the firearm
enhancement.

B. Jackson Files a Petition Under Section 1172.6, and
the Superior Court Denies It
In January 2019 Jackson filed a petition for resentencing
under section 1172.6. Using a preprinted form, Jackson alleged
that he was convicted of first or second degree murder under the
felony-murder rule or the natural and probable consequences
doctrine and that he “could not now be convicted of 1st or 2nd
degree murder because of changes made to Penal Code §§ 188
and 189, effective January 1, 2019.” Jackson alleged that he “was
not a major participant in the felony” and that he “did not act
with reckless indifference to human life during the course of the
crime or felony.”
The People filed an informal response, arguing Jackson
devised the plan to “crack” Razo’s car, knew there were firearms
in the car, was present at the scene of the shooting, “made good
the escape of the actual killer,” accompanied the other
participants to a location where they stripped (or made plans to
strip) the car, and did nothing to prevent the shooting or assist
Razo or his family. The superior court issued an order to show
cause.
At the evidentiary hearing, the court admitted the
transcript of the preliminary hearing, the transcript of the
sentencing hearing, minute orders from the court’s file, Jackson’s

6
1982 statement as recorded by Detective Zorrilla, the probation
officer’s report, and the opinion from Jackson’s direct appeal.3
The prosecutor argued, among other theories, Jackson could still
be convicted of felony murder as a major participant who acted
with reckless indifference to human life under People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).4 Counsel for Jackson questioned the
reliability of Jackson’s statement to Detective Zorrilla and argued
the prosecutor failed to prove beyond a reasonable doubt Jackson
was ineligible for resentencing.
The superior court denied Jackson’s petition. The court
considered each of the factors in Banks, supra, 61 Cal.4th 788
and Clark, supra, 63 Cal.4th 522 and found beyond a reasonable

3 Jackson does not argue the superior court erred in
admitting any of these documents.

4 In Banks, supra, 61 Cal.4th 788 the Supreme Court held
the special circumstance allegation under section 190.2,
subdivision (d), which provides for increased punishment for
certain aiders and abettors of first degree felony murder, requires
that the “defendant must be aware of and willingly involved in
the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Banks, at p. 801.) The Supreme
Court also held the defendant’s “personal involvement must be
substantial” and listed several factors courts should consider in
determining whether a defendant was a “major participant” in
the commission of a crime. (Id. at p. 802.) In Clark, supra,
63 Cal.4th 522 the Supreme Court listed factors to “aid [the]
analysis” of whether the defendant “exhibited ‘reckless
indifference to human life’ within the meaning of section 190.2,
subdivision (d).” (Id., at p. 618.)

7
doubt Jackson could still be convicted of first degree murder
because he “was a major participant in the robbery underlying
the felony murder of Razo and acted with reckless indifference to
human life.” Jackson timely appealed.

DISCUSSION

A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th
830, 842-843) and significantly narrowing the felony-murder
exception to the malice requirement for murder (§§ 188, subd.
(a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698,
707-708; People v. Lewis (2021) 11 Cal.5th 952, 957).5 Section
188, subdivision (a)(3), now prohibits imputing malice based
solely on an individual’s participation in a crime and requires
proof of malice to convict a principal of murder, except under the
revised felony-murder rule in section 189, subdivision (e). The
latter provision requires the People to prove specific facts relating
to the defendant’s individual culpability: The defendant was the
actual killer (§ 189, subd. (e)(1)); the defendant, though not the

5 The Legislature subsequently amended former section
1170.95, subdivision (a), to allow persons convicted of attempted
murder under the natural and probable consequences doctrine to
petition for resentencing. (See People v. Coley (2022)
77 Cal.App.5th 539, 544.) The Legislature later renumbered
section 1170.95 to section 1172.6 without changing the text of the
statute. (See People v. Strong, supra, 13 Cal.5th at p. 708, fn. 2.)

8
actual killer, with the intent to kill assisted in the commission of
the murder (§ 189, subd. (e)(2)); or the defendant was a major
participant in a felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708;
Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the superior court to vacate the
conviction and be resentenced on any remaining counts if he or
she could not now be convicted of murder because of the changes
the Legislature made in 2018 to the definitions of the crime. (See
People v. Strong, supra, 13 Cal.5th at p. 708; People v. Lewis,
supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at
p. 843.) As the Supreme Court clarified in Lewis, and as
amendments to the statute made explicit, if a section 1172.6
petition contains all the required information, the court must
appoint counsel to represent the petitioner if requested. (Lewis,
at pp. 962-963; see § 1172.6, subds. (b)(1)(A), (3).) The prosecutor
must then file a response to the petition, the petitioner may file a
reply, and the court must hold a hearing to determine whether
the petitioner has made a prima facie showing he or she is
entitled to relief. (§ 1172.6, subd. (c).)
Where, as here, the petitioner has made the requisite
prima facie showing he or she is entitled to relief under section
1172.6, the court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).) At that hearing the court may

9
consider evidence “previously admitted at any prior hearing or
trial that is admissible under current law,” including witness
testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the
prosecutor may also offer new or additional evidence. (Ibid.; see
Gentile, supra, 10 Cal.5th at pp. 853-854.)
On appeal from an order denying a petition under section
1172.6, we review the trial court’s factual findings for substantial
evidence. (People v. Richardson (2022) 79 Cal.App.5th 1085,
1090; People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) We
“‘“examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the defendant guilty] beyond a reasonable doubt.’” [Citation.]
Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298; see
Richardson, at p. 1090.) “‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’” (People v. Brooks (2017) 3 Cal.5th 1, 57; see
People v. Nieber (2022) 82 Cal.App.5th 458, 476.)

10
 B. Determining Whether a Defendant Was a Major
Participant and Acted with Reckless Indifference to
Human Life
As discussed, section 189, subdivision (e)(3), provides that a
participant in one of the felonies listed in section 189,
subdivision (a), may be liable for murder if the prosecution proves
he or she “was a major participant in the underlying felony and
acted with reckless indifference to human life,” within the
meaning of section 190.2, subdivision (d). (See People v. Strong,
supra, 13 Cal.5th at p. 708; Gentile, supra, 10 Cal.5th at pp. 842-
843.) The Supreme Court in Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522 “clarified the meaning of the special
circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 676
(Scoggins); see People v. Ramirez, supra, 71 Cal.App.5th at
p. 986.)
Considerations that “may play a role in determining
whether a defendant’s culpability is sufficient” for a finding he or
she was a major participant under section 190.2, subdivision (d),
include: “What role did the defendant have in planning the
criminal enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803,
fn. omitted; see People v. Mitchell (2022) 81 Cal.App.5th 575, 591

11
(Mitchell); People v. Ramirez, supra, 71 Cal.App.5th at p. 986,
fn. 10.)
“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.”’” (Scoggins, supra, 9 Cal.5th at p. 677.)
To determine whether a defendant exhibited reckless
indifference to human life under section 190.2, subdivision (d),
courts consider, among other factors, the following: “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; see Clark, supra, 63 Cal.4th at
pp. 618-623.)
The requirements for finding major participation and
reckless indifference to human life “‘significantly overlap . . . in

12
general, for the greater the defendant’s participation in the felony
murder, the more likely that he acted with reckless indifference
to human life.’” (Clark, supra, 63 Cal.4th at p. 615; see People v.
Owens (2022) 78 Cal.App.5th 1015, 1023.) “No one of these
considerations is necessary, nor is anyone one of them necessarily
sufficient.” (Banks, supra, 61 Cal.4th at p. 803; see Clark, at
p. 618.) “We analyze the totality of circumstances” (Scoggins,
supra, 9 Cal.5th at p. 677; see Mitchell, supra, 81 Cal.App.5th at
p. 592) to determine whether Jackson acted with reckless
indifference to human life.

C. Substantial Evidence Supported the Superior Court’s
Finding Jackson Acted with Reckless Indifference to
Human Life
Jackson does not challenge the superior court’s finding he
was a major participant, within the meaning of section 190.2,
subdivision (d).6 The only issue is whether substantial evidence
supported the court’s finding Jackson acted with reckless
indifference to human life. And substantial evidence supported
that finding.
Virtually all of the factors under Clark, supra, 63 Cal.4th at
pages 618 to 623 supported the court’s finding Jackson acted with

6 In his reply brief, Jackson suggests his actions “were no
more than acts of an ordinary aider and abettor to an armed
robbery.” (See Banks, supra, 61 Cal.4th at p. 802 [“a defendant’s
personal involvement must be substantial, greater than the
actions of an ordinary aider and abettor to an ordinary felony
murder”].) To the extent Jackson may be arguing for the first
time on reply he was not a major participant, he has forfeited the
argument. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218-
1219.)

13
reckless indifference to human life; none supported a contrary
finding. First, as Jackson’s 1982 statement demonstrated, even
before Jackson crashed into Razo’s car, he knew his accomplices
were armed. He identified for Detective Zorrilla the type of guns
Cal, Binky, and Rossi were carrying, from which the superior
court could reasonably infer Jackson knew they were armed
when they got out of his car. By the time Cal fired a warning
shot, Jackson undoubtedly knew not only that Cal had a gun, but
also that he was willing to use it. Jackson, sitting in the driver’s
seat, had a clear view of Cal and Razo, who stood on the driver’s
side of Razo’s car, directly in front of him. (See In re McDowell
(2020) 55 Cal.App.5th 999, 1013 (McDowell) [the first factor for
determining reckless indifference to human life “cut[ ] against”
the defendant because the evidence showed he knew, “no later
than the warning shot,” his accomplice “was both carrying and
willing to fire a gun”].) That his companions ultimately used
more than one firearm to rob Razo and Angelita further
supported the superior court’s finding. (See People v. Bradley
(2021) 65 Cal.App.5th 1022, 1033 [“defendants were aware they
all had firearms and used them during the attempted robbery”];
cf. Clark, supra, 63 Cal.4th at p. 619 [evidence “showed only that
there was one gun at the scene”].)
Second, Jackson was physically present at the scene of the
crime. He had an opportunity to prevent the shooting, and later
an opportunity to come to the aid of Razo; he did neither.
Jackson did not yell out the window or get out of his car to
encourage his confederates to retreat from the escalating
confrontation. Jackson did not intervene after he heard Cal’s
warning shot or Cal’s statement to Razo that he was going to
take his car. And Jackson remained at his post, behind the

14
steering wheel, when Angelita got out of Razo’s car with her
baby. According to Angelita, Razo put his car in park after the
collision, so that Jackson was no more than a few feet from Cal
and Razo and in a prime position to intercede. Jackson, however,
did nothing. (See Mitchell, supra, 81 Cal.App.5th at pp. 592-593
[defendant “could have rejected the planned crime or could have
adjusted the method to take victim welfare into account,” and his
failure to do either supported the finding he acted with reckless
indifference to human life]; McDowell, supra, 55 Cal.App.5th at
p. 1014 [after the defendant’s accomplice fired a warning shot,
“there was a brief but critical opportunity” for the defendant “to
say or do something to deescalate the situation,” but “he
remained silent”]; In re Loza (2017) 10 Cal.App.5th 38, 53
[defendant’s companion “made clear his intent to shoot” by
counting down from five, which afforded the defendant “the time
to observe and react before the murder”]; see also Clark, supra,
63 Cal.4th at p. 619 [“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’”].)
Third, Jackson was callously indifferent to the fact a man
had been shot, in the chest, in front of his wife and child.
Jackson did not call 911, try to get or render aid, or drive Razo to
a hospital. Instead, Jackson laughed as he drove off with his
confederates, leaving Razo to die in the street, and reconvened
with his companions to collect his share of the robberies’
proceeds. And by stealing Razo’s car, Jackson increased the risk
Razo would die from his wounds by depriving Angelita of the
means to take Razo to a hospital. (See In re Loza, supra,

15
10 Cal.App.5th at p. 54 [defendant’s failure to aid the victim after
the shooting and his subsequent flight supported the finding he
acted with reckless indifference to human life].)
Fourth, Jackson knew his confederates were likely to
commit a violent crime and use lethal force. “A defendant’s
knowledge of factors bearing on a cohort’s likelihood of killing”
may be “evident before the felony or may occur during the
felony.” (Clark, supra, 63 Cal.4th at p. 621.) As discussed,
Jackson saw Cal brandish his weapon before shooting Razo. (See
People v. Owens, supra, 78 Cal.App.5th at p. 1024 [“even if
appellant did not know of [his confederate’s] proclivity for
violence before the robbery, it is reasonable the trial court could
have inferred that knowledge became evident to appellant during
the robbery”].) Jackson also knew the specific calibers and kinds
of firearms Cal, Binky, and Rossi carried that day, from which
the superior court could reasonably infer that carrying firearms
was the norm for all four men. During the robberies, Jackson
remained in his car, ready to flee with his companions, and
watched as the violence unfolded. And after the shooting,
Jackson reacted, not with surprise, outrage, panic, or remorse,
but with laughter.
Fifth, Jackson made no effort to minimize the risks of
violence during the robbery. Jackson did not suggest his
companions leave their firearms in the car, nor did he get out of
the car to try to defuse the situation. To the contrary, Jackson
provoked the confrontation with Razo by deliberately crashing
his car into Razo’s car. (Cf. Scoggins, supra, 9 Cal.5th at p. 679
[defendant “had planned for the beating and robbery to be
unarmed”]; Clark, supra, 63 Cal.4th at pp. 621-622 [“there were
not supposed to be any bullets in the gun”].) In addition, even

16
after Angelita got out of the car with her baby, Jackson stayed in
his seat, positioned to make a quick getaway with his friends.
Jackson’s failure to restrain Cal at that point confirms he was not
concerned about the increased danger and risk of death to Razo
and his family. (See In re Harper (2022) 76 Cal.App.5th 450, 466
[although the defendant “may not have had the opportunity to
minimize the risk of violence during the planning stage, he did
nothing to minimize the risk of violence when it became clear the
original plan had unraveled”].)7 In sum, substantial evidence
supported the superior court’s findings that, under the totality of
the circumstances, Jackson consciously disregarded “‘the
significant risk of death’” his actions created and that his conduct
grossly deviated from the standard of conduct of a law-abiding
person. (See Scoggins, supra, 9 Cal.5th at p. 677.)
Jackson asserts there was no evidence “he had the ability
to intervene in time to stop a shooting.” But there was. Unlike
the defendants in other cases who could not have intervened
because they were not present at the scene of the shooting,
Jackson was at the scene, no more than a car’s length away from
Cal and Razo. (Cf. Scoggins, supra, 9 Cal.5th at p. 678

7 The sixth factor, the duration of the robbery, does not
necessarily support or undercut the superior court’s finding
Jackson acted with reckless indifference to human life. (See
Clark, supra, 63 Cal.4th at p. 620 [“Where a victim is held at
gunpoint . . . in the presence of perpetrators for prolonged
periods, ‘there is a greater window of opportunity for violence’
[citation], possibly culminating in murder.”].) It is not clear from
the record how much time elapsed between the traffic collision
and Cal’s fatal shot. The evidence indicates the initial encounter
between Cal and Razo lasted, in Angelita’s words, “a long time,”
but it is not clear when Cal and Binky drew their weapons.

17
[defendant, who remained at a nearby gas station during the
course of the crime, “was not in a position to restrain” the
shooter]; Banks, supra, 61 Cal.4th at p. 807 [defendant “did not
see the shooting happen, did not have reason to know it was
going to happen, and could not do anything to stop the shooting
or render assistance”]; In re Taylor (2019) 34 Cal.App.5th 543,
559 [defendant “could not even see” the shooter’s interaction with
the victim]; In re Bennett (2018) 26 Cal.App.5th 1002, 1025-1026
[defendant “was across the street” and “did not see or know if
anyone was shot or hurt”].) Jackson had the opportunity and
ability to intervene; he just chose not to.
In re Moore (2021) 68 Cal.App.5th 434, cited by Jackson, is
distinguishable. In that case the defendant and his cohorts
planned to steal an unoccupied car in a parking lot. (Id. at
pp. 440-441.) After the group stole the car, one of the defendant’s
companions accosted three people passing through the parking
lot, robbed them at gunpoint, and killed one of them. (Ibid.)
There was no evidence the defendant planned to commit these
additional crimes, and the record suggested there was at least
some distance between the defendant, who sat in the driver’s
seat, and the deadly encounter, which occurred outside on the
passenger’s side of the car. (Ibid.) Here, the evidence showed the
confrontation between Cal and Razo occurred directly in front of
Jackson, on the driver’s side of Razo’s car.
Referring to two cases decided by the United States
Supreme Court, Jackson asserts he “lies closer to the Enmund
end of the spectrum, and not the Tison end.” In Enmund v.
Florida (1982) 458 U.S. 782 [102 S.Ct. 3368] the only evidence
implicating the defendant in two murders during the course of a
robbery was “the inference” he “was the person in the car by the

18
side of the road at the time of the killings, waiting to help the
robbers escape.” (Id. at p. 788.) The United States Supreme
Court held the Eighth Amendment did not allow a court to
impose the death penalty on a defendant “who does not himself
kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed.” (Id. at p. 797.) In Tison v. Arizona
(1987) 481 U.S. 137 [107 S.Ct. 1676] the United States Supreme
Court described two “subsets” of felony murders, one (as in
Enmund) where the defendant is a “minor actor in an armed
robbery, not on the scene, who neither intended to kill nor was
found to have had any culpable mental state,” and the other
where the defendant is “the felony murderer who actually killed,
attempted to kill, or intended to kill.” (Id. at pp. 149-150.) For
the defendants in between those two “poles,” the Supreme Court
stated that “major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.” (Id. at p. 158.)
The Supreme Court in Tison concluded each of the defendants in
that case “was actively involved in every element of the
kidnapping-robbery and was physically present during the entire
sequence of criminal activity culminating in the murder of the
[victims] and the subsequent flight.” (Id. at p. 158.)
Jackson’s substantial involvement in the robberies, his
proximity to the shooting, and his opportunity to reduce the risk
of a fatal shooting made him more like the defendants in Tison
than the defendant in Enmund. As discussed, Jackson provided
direction during key moments of the armed robbery: He
masterminded the plan to cause a traffic collision to force Razo to
stop, which left Razo and his family vulnerable to Jackson’s
armed confederates; he sat in the driver’s seat, ready to facilitate

19
his confederates’ flight, and watched the encounter escalate from
a robbery to a killing without making any effort to intervene;
instead of making an attempt to render aid to Razo, he drove
away laughing and took his companions to a safe location to
discuss splitting up the proceeds of the robberies; and he
instructed his companions on how to properly dispose of the
stolen goods and destroy incriminating evidence. Jackson, “[f]ar
from merely sitting in a car away from the actual scene of the
murders” (Tison, supra, 481 U.S. at p. 158), participated in every
step of the crime and engaged in conduct “‘known to carry a grave
risk of death’” (Scoggins, supra, 9 Cal.5th at p. 676).
Finally, Jackson argues the superior court erroneously
“dismissed [his] youth as bearing on his culpability.” As the court
correctly found, however, Jackson did not introduce any evidence
he lacked the maturity to comprehend the risks of the crimes he
committed. (Cf. People v. Ramirez, supra, 71 Cal.App.5th at
p. 991 [that the defendant “was influenced by peer pressure” and
“was afraid” of the consequences if he did not aid the shooter
“may well have affected his calculation of the risk of death posed
by using the firearm in the carjacking”].) In fact, the record
reflects Jackson demonstrated sophistication and leadership by
formulating the plan to force Razo to stop and instructing his
companions on how to reduce suspicion by law enforcement. And
unlike the defendants in the cases on which he relies (Ramirez, at
p. 975 [15-year-old defendant]; In re Moore, supra, 68 Cal.App.5th
at p. 453 [16-year-old defendant]; People v. Harris (2021)
60 Cal.App.5th 939, 944 [17-year-old defendant]), Jackson was
not a teenager; he was 22 years old. Jackson’s decision to flee the
scene (and later the state) after the crime and his subsequent
interview with Detective Zorrilla showed he was sufficiently

20
mature and aware that he appreciated the risks to human life his
criminal conduct created. (See Mitchell, supra, 81 Cal.App.5th at
p. 595 [“every 18 year old understands bullet wounds require
attention”].) As the superior court stated, “Age alone is
insufficient to negate a mental state.” (See In re Harper, supra,
76 Cal.App.5th at p. 472 [“it is one thing to say petitioner should
eventually be eligible for a parole hearing because he was a
minor at the time of the offense, and quite another to say he did
not have the maturity to have acted with reckless disregard for
human life”].)

DISPOSITION

The order denying Jackson’s petition under section 1172.6
is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

21