Filed 3/16/23 P. v. Sult CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B316176
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. A527551)
JAMES EDWARD SULT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rob B. Villeza, Judge. Reversed.
Jonathan E. Demson, 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, and Idan Ivri, Marc A. Kohm, and
Nikhil Cooper, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant James Edward Sult (defendant) pled guilty to
the second degree murder of Michael Lambdin (Lambdin) in
1982. Nearly 40 years later, defendant petitioned for
resentencing under Penal Code section 1172.6 (former Penal
Code section 1170.95).1 Relying on the transcript of defendant’s
preliminary hearing, the trial court denied the petition based on
its finding that the prosecution had proven beyond a reasonable
doubt that defendant was a major participant in the underlying
felony who acted with reckless indifference to human life. We
consider whether substantial evidence supports this finding,
focusing on the reckless indifference element.
I. BACKGROUND
Defendant and co-defendants Ronald St. Pierre (St. Pierre),
Fernando Zamora (Zamora), and Abel Salgado (Salgado) were
charged with murder and assault with a deadly weapon in 1981.
Salgado fatally stabbed victim Lambdin, and defendant was
charged on an aiding and abetting theory of liability. In 1982,
after the prosecution presented its case-in-chief at trial,
defendant opted to plead guilty to second degree murder. The
trial court sentenced him to 15 years to life in state prison.
Defendant filed a petition for resentencing under section
1172.6 in 2019. The original sentencing judge had retired by
then. The matter was assigned to another trial court and that
court summarily denied defendant’s petition because it believed,
wrongly, that section 1172.6 was unconstitutional. We reversed
(People v. Sult (May 21, 2020, No. B301288) [nonpub. opn.]), and
1
Undesignated statutory references that follow are to the
Penal Code.
2
the trial court on remand, with a new judge presiding, issued an
order to show cause and held a hearing on defendant’s petition.
Neither the prosecution nor defendant, who was
represented by counsel, presented new evidence at the hearing.
Instead, and by apparent consent of both sides, the record before
the trial court consisted of transcripts of defendant’s preliminary
hearing and plea and sentencing hearing, the information and
abstract of judgment, and documents relating to defendant’s
previous appeal. A reporter’s transcript of the prosecution’s case-
in-chief at trial could not be located.
A. The Preliminary Hearing Transcript
The preliminary hearing for defendant, St. Pierre, Zamora,
and Salgado was held over four days. (Defendant was ultimately
tried with another co-defendant, Randy Johnson (Johnson).) The
trial court heard testimony from four witnesses at the
preliminary hearing: Raul Arias (Raul), Kenneth Stauffer
(Stauffer), Kevin Sackett (Sackett), and West Covina Police
Department detective Lee Rossman.
Raul is the older brother of Barbarao “Bubba” Arias. Raul
testified that on June 18, 1981, Bubba approached him at his
father’s house to discuss a plan to “rip off” Lambdin, who sold
drugs from his house. Bubba told Raul he had met “some
characters” the night before and “talked about doing a rip,” but
“he was afraid that these guys were going to double cross him or
something” and he wanted Raul to talk to them and “see what
was going on.”
Defendant, Johnson, St. Pierre, and Salgado were waiting
outside, and Raul went to talk to them. Johnson told Raul they
3
did not want any more people involved, and Raul said he was
“[t]here just on Bubba’s behalf.”
Once Zamora joined the group outside Raul’s father’s
house, everyone relocated to a school near Lambdin’s house.
Johnson bragged about his martial arts skills and his ability to
“t[ie] people up” quickly. Raul testified he “mentioned to not only
Johnson but the guys that were standing there that, ‘You better
not have any guns or weapons.’” Johnson replied, “‘No, we don’t
need weapons. We have got black belt Jones here’” (referring to
himself).2 Defendant was part of the group participating in this
conversation, and the men stood “[t]wo, three feet away from
each other.” Raul testified he made his comment about weapons
“to all of them in general” but only Johnson responded.
According to Raul, the plan was for Bubba to enter
Lambdin’s house first, and “if it wasn’t cool he was just going to
buy . . . dope and go home.” A few minutes after Bubba “took off
walking around the block,” defendant, Johnson, and Salgado
followed. A couple minutes after that, Raul walked to Lambdin’s
house to check on Bubba. When he was across the street, he
heard someone screaming. “A lot of people were out there” and
he “heard a lot of people [saying], ‘Call the police. Call the
police.’” Bubba came out and told Raul “it didn’t go down right,”
somebody “brought out a knife,” and Lambdin seemed hurt.
Stauffer and Sackett were inside Lambdin’s house when
Bubba arrived around 9:00 p.m. Stauffer was friends with
2
When asked whether he heard defendant say no weapons
were needed, Raul indicated “Johnson was doing all the talking”
and he “really [could not] say” whether defendant made similar
comments.
4
Lambdin and testified that Lambdin had sold drugs for several
years. Sackett spent several hours at Lambdin’s house that day
and saw people buying drugs “come and go” with “quite a bit of
frequency.” There were eight or nine people in the house when
Sackett arrived around 3:00 p.m. Stauffer testified that he,
Lambdin, and Sackett were the only ones in the house when
Bubba arrived and “just started talking with everybody”; Sackett
testified one additional person was there at that time. According
to Stauffer, about 10 to 15 minutes after Bubba showed up, three
men “forced their way inside the house” and “grabbed” Lambdin.
Sackett saw the men “wrestle” Lambdin and “thr[o]w him”
against a speaker system. Sackett fled when one of the men—not
among the three grappling with Lambdin—threatened him with
a switchblade knife. Stauffer was stabbed in the forehead and
arm as he ran out of the house.
When Stauffer made it outside, he had someone call the
police. Sackett testified that Bubba ran out of the house before
him and also yelled for someone to call the police. Sackett then
returned to the house and stood near Lambdin, who asked for a
towel and told others to hide drugs and paraphernalia in his
garage.
The parties at the preliminary hearing stipulated Lambdin
died of stab wounds to the chest and multiple lacerations. Police
found one knife in Lambdin’s home. Sackett testified this was
not the switchblade with which he was threatened.
Detective Rossman related statements by defendant and
his co-defendants during his preliminary hearing testimony. The
detective testified defendant told him “the plan was for
Bubba . . . to go inside the location, and after approximately ten
minutes he, . . . Johnson, and [Salgado] were supposed to go
5
inside the location, tie the victim up, and take his money and his
narcotics.” Defendant told Detective Rossman that “Bubba had
told him that [Lambdin] was five foot four and very slight of
build,” but Detective Rossman testified Lambdin was “quite a bit
larger” than defendant.
Defendant told Detective Rossman he was first through the
door of Lambdin’s house. He grabbed Lambdin and slammed him
into a speaker unit on the wall of the living room and wrestled
him to the floor. Defendant “banged” Lambdin’s head on the
floor. Lambdin “continued to struggle” as defendant restrained
his upper body and Salgado restrained his lower body. After “a
few minutes,” defendant “looked down and [Lambdin] was saying,
‘Help, help’ and [defendant] saw a big hole and a patch of blood
escaping from [Lambdin’s] body.” Defendant told Detective
Rossman “that [Salgado] was the one that had the knife.”
Defendant said he too was stabbed during the struggle and
suffered a three and half inch cut on his back.
Detective Rossman’s testimony regarding statements made
by Salgado and St. Pierre was admitted only as to those two co-
defendants. Salgado told Detective Rossman he had a knife when
he entered Lambdin’s house and, when he saw “that the victim
had a knife in [defendant’s] back,” he “went over and grabbed
that knife and then stabbed the victim.” St. Pierre told Detective
Rossman that he drove defendant back to St. Pierre’s apartment
after the incident, where they were subsequently joined by some
of the other men involved in the robbery. After they “cleaned up,”
the men went to a park to drink beer.
6
B. The Plea and Sentencing Hearing Transcript
Defendant and Johnson were tried together. At a hearing
in April 1982, the trial court expressed its understanding “at this
stage of the proceedings that each of [them were] desirous of
withdrawing [their] previously entered pleas of not guilty and
entering a plea of guilty to the charge of murder . . . in the second
degree.” Finding there was a factual basis for defendant and
Johnson’s guilty pleas, the trial court remarked that it had
“heard all of the prosecution case in this matter by way of the
testimony and documentary evidence which was introduced,” and
“the evidence did not sustain a finding that [defendant] or
[Johnson] personally murdered—committed the murder, but,
clearly, the evidence, at least as of this juncture, [did] sustain a
finding that they are guilty on the theory of aiders and abettors
or guilty as participants, aiders—either principals or aiders and
abettors in a robbery-murder situation.”
Defendant and Johnson were sentenced at the same
hearing. The trial court imposed a sentence of 15 years to life in
prison and made the following remarks “for the benefit of the
Community Release Board”: “[I]t’s the Court’s view that a
minimum sentence at the level of the Department of Corrections
should be imposed, as far as each defendant, for the following
reasons. [¶] First of all, I think the evidence clearly established,
in the Court’s view, that while the death of Mr.
Lambd[i]n, . . . was a natural consequence of the activity which
took place in that house, I think it’s fairly clear that none of the
participants, particularly these two defendants, contemplated
that death at the time that they first went in there. I think the
view was that Mr. Lambd[i]n would be subdued and the property
and/or narcotics would be taken from him, but not that he would
7
be killed as a result of that activity or that taking. [¶] So that I
think that’s a factor in mitigation. I am considering their age—
[Johnson] is 21 years of age, [defendant] 23 years of age—neither
individual appears to be sophisticated in the context of long time
or long term criminal activity. [¶] [Defendant], as reflected in
the pre-plea probation report, has little prior history of
criminality, and none involving—or at least nothing substantial
involving any crimes of violence. [¶] . . . [¶] Both defendants
when arrested freely and comprehensively admitted their
involvement in this particular case. Both defendants made full
and complete statements, implicating not only themselves, but
crime partners who were involved, which the Court feels is
another circumstance in mitigation. [¶] Neither defendant was
the person who actually did the stabbing in this matter. It’s clear
from the evidence that [Salgado], who is still facing charges in
this matter, was the person who did the stabbing. [¶] And lastly,
I think, also, significantly, one of the co-defendants in this
matter, . . . [¶] . . . [¶] [Bubba,] by his own testimony, was the
person who more or less organized the entire incident which led
to the victim’s death, and was a very substantial moving force in
getting the robbery planned. [¶] . . . [¶] Further, although this is
a very—this was a very violent crime, in the sense that a person
was dead or did die as a result of the activity, and I don’t want to
minimize that death, neither of these defendants appear to be a
violent personality. I view the entire crime as situational in
nature, and for that reason, also, would recommend to the
Department of Corrections that each defendant be housed in
either a minimum or medium security facility.”
8
C. The Trial Court’s Ruling on Defendant’s Petition for
Resentencing
In a written order, the court on remand found defendant
ineligible for resentencing under section 1172.6 because, in the
court’s view, he was a major participant in the underlying felony
who acted with reckless indifference to human life.3 As to the
major participant element, the trial court found defendant
“actively participat[ed] in every stage of [the] robbery,” from
planning to pinning Lambdin to the floor. As to whether
defendant acted with reckless indifference to human life, the trial
court’s analysis focused on five factors discussed in People v.
Clark (2016) 63 Cal.4th 522 (Clark).
Discussing whether defendant was “ignorant of the knives
at the robbery,” the trial court stated that Raul “could not
confirm whether defendant heard or knew of Johnson’s
statement” that no weapons would be used in the robbery. The
court also went further and suggested there was evidence
defendant saw Salgado had a knife before the fatal stabbing. In
the trial court’s words: “Whether defendant was aware of a plan
to bring knives, the evidence supports the conclusion that once he
and Salgado wrestled with Lambdin on the floor, he saw Salgado
with the knife when he pinned Lambdin’s upper body to the floor.
In addition to Salgado, at least one other man had brandished a
knife in his hand, then used it to attack two other occupants
(Sackett and Stauffer . . . ). Rather than prevent the knife
3
The trial court did not make a finding as to whether
defendant was guilty of murder under an implied malice theory
or as a direct aider and abettor because the prosecution did not
assert either theory in its response to defendant’s petition.
9
attacks, defendant viciously beat and restrained Lambdin, while
Salgado fatally stabbed him.” The trial court emphasized that
“[a]lthough there is no evidence that defendant . . . was armed,
the evidence strongly suggests that he knew in advance or saw
Salgado and possibly a second confederate with a knife when they
confronted the house occupants.”
Discussing whether defendant was “present at the scene of
the killing,” the trial court emphasized he “was not only
present . . . , he pinned Lambdin’s upper body while Salgado
stabbed him.”
The trial court further determined that defendant had no
“reason to trust his cohorts to be peaceable” because “the plan
clearly contemplated the use of violence to subdue the house
occupants” and “at least one of the men [i.e., Bubba] said that he
was ‘afraid’ of the other men involved in the robbery.”
Finally, the trial court found defendant did not “take steps
to limit the duration and extent of interaction with innocents so
as to minimize risk.” To the contrary, the trial court determined
“[t]he robbery was not planned for a low-traffic moment,” but “9
p.m.[,] when residents are usually home.” Moreover, in the
court’s view, defendant “and two others rushed into the house
even though there were multiple occupants inside, strongly
suggesting that confronting people inside the house was part of
the plan.” The court suggested this was an aggravating factor
because defendant “could have [instead] knocked on the door and
waited for someone to answer” and “demanded drugs and money
before resorting to violence.” Relatedly, the trial court found
defendant did not “make efforts to minimize the risks of violence
during the robbery” because the planned robbery was “inherently
dangerous,” defendant violently tackled Lambdin, defendant “did
10
nothing to prevent Salgado from stabbing Lambdin,” and
“[r]ather than render[ing] aid to Lambdin . . . , defendant and his
confederates left the residence and went to the park to drink
beer.”
II. DISCUSSION
Defendant’s primary argument on appeal is that he is
entitled to relief under section 1172.6 based on the initial trial
judge’s remarks during the sentencing hearing. According to
defendant, these statements either constitute a finding that he
did not act with reckless indifference to human life or else
represent a view of the evidence to which the section 1172.6 court
should have deferred—particularly in light of the missing trial
transcript. We need not resolve these contentions because no
substantial evidence supports the section 1172.6 court’s finding
that the prosecution proved beyond a reasonable doubt that
defendant acted with reckless indifference to human life.
The preliminary hearing transcript, which is really the only
evidence on which the prosecution relied, is insufficient evidence
that defendant was aware the planned robbery—in which he and
several other men, having sent an advance scout to ensure the
coast was clear, were to outnumber and manually overpower
their victim—carried a grave risk of death. Indeed, several of the
section 1172.6 court’s key factual determinations to the contrary
cannot be reconciled with the transcript of the preliminary
hearing. The trial court’s finding, for instance, that defendant
may not have heard Johnson’s statement regarding weapons is
inconsistent with Raul’s testimony. The trial court’s suggestion
that defendant—who was first through the door and immediately
locked in a struggle with Lambdin—must have seen that at least
11
one of the men behind him was armed is speculation, not
inference. There is also no evidence regarding defendants’
knowledge of any of his confederates’ propensity for lethal
violence. Although, as a general matter, robbing a drug dealer at
home presents serious risks of violence, that risk does not satisfy
the reckless indifference threshold in this case where there was
an advance admonition not to use weapons and defendant and his
confederates attempted to reduce the risk by sending Bubba in
ahead to ensure things were “cool.”
A. Legal Framework
1. Section 1172.6
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, 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.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added [former]
section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief. [Citation.]” (People v. Lewis (2021) 11
Cal.5th 952, 959.)
If the trial court determines a prima facie showing for relief
has been made, the trial court must issue an order to show cause.
(§ 1172.6, subd. (c).) The trial court must ordinarily hold an
evidentiary hearing at which the prosecution bears the burden to
prove beyond a reasonable doubt that the defendant is guilty of
12
murder under amended section 188 or 189 as amended by Senate
Bill 1437. (§ 1172.6, subd. (d)(3).) “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.” (§ 1172.6, subd. (d)(3).)
The Evidence Code governs at the evidentiary hearing,
“except that the court may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed. . . . However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless
the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens.”4
(§ 1172.6, 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.”
(Ibid.)
On appeal from the denial of a petition for resentencing
under section 1172.6, we review the trial court’s factual findings
for substantial evidence. (People v. Clements (2022) 75
4
Section 872, subdivision (b) permits a court to make a
probable cause finding at a preliminary hearing based on
testimony of a qualified law enforcement officer relating the
statements of declarants made out of court and offered for the
truth of the matter asserted.
13
Cal.App.5th 276, 298; People v. Owens (2022) 78 Cal.App.5th
1015, 1022.)
2. The major participation and reckless
indifference to human life standards
The major participation and reckless indifference to human
life standards are derived from the high court’s opinion in Tison
v. Arizona (1987) 481 U.S. 137 (Tison). (In re Scoggins (2020) 9
Cal.5th 667, 674-675 (Scoggins).) California’s felony murder
special circumstance statute incorporates the standards, and this
statute is cross-referenced in amended section 189’s provision
that defendants who were neither actual killers nor acted with
the intent to kill may 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 Section 190.2.” (§ 189, subd. (e)(3); People v. Strong (2022) 13
Cal.5th 698, 703 (Strong) [section 1172.6 “repurposes preexisting
law governing felony-murder special-circumstance findings”].)
Until recently, “neither the United States Supreme Court
nor California courts offered much guidance about the major
participant or reckless indifference standards . . . .” (Strong,
supra, 13 Cal.5th at 705.) Our Supreme Court “first undertook to
provide that guidance in [People v.] Banks [(2015) 61 Cal.4th 788
(Banks)].” (Ibid.) In Banks, the Court considered whether
substantial evidence supported a felony murder special
circumstance finding where the defendant served as the getaway
driver in a marijuana dispensary robbery in which a security
guard was killed. (Banks, supra, at 794-795.) The Court set
forth a non-exhaustive list of considerations relevant to
determining whether a defendant was a major participant and
14
emphasized that “[r]eckless indifference to human life ‘requires
the defendant be “subjectively aware that his or her participation
in the felony involved a grave risk of death.”’ [Citations.]” (Id. at
807.) The Court further emphasized that “knowledge of the
possible risk of death inherent in certain felonies (like armed
robbery)” does not constitute reckless indifference to human life.
(Id. at 809.) “Awareness of no more than the foreseeable risk of
death inherent in any armed crime is insufficient; only knowingly
creating a ‘grave risk of death’ satisfies” the standard. (Id. at
808.)
One year later, in Clark, supra, our Supreme Court
reaffirmed the Banks standard for major participation under
section 190.2, subdivision (d) and discussed the reckless
indifference to human life standard in greater detail. The Court
stated, as a general matter, that this element generally
“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.”
(Clark, supra, 63 Cal.4th at 617.) The Court then set forth a non-
exhaustive list of “case-specific factors that [it] and other state
appellate courts have considered in upholding a determination of
reckless indifference to human life . . . .” (Id. at 617-618.) The
factors include (1) the defendant’s awareness that a gun will be
used, whether the defendant personally used a gun (even if not to
kill the victim), and the number of guns used; (2) the defendant’s
physical proximity to the murder and, relatedly, opportunities to
restrain the killer or aid the victim; (3) the duration of the felony;
(4) the defendant’s knowledge “of factors bearing on a cohort’s
likelihood of killing”; and (5) the defendant’s efforts to minimize
15
the risk of violence during the felony.5 (Id. at 618-622; see also
Scoggins, supra, 9 Cal.5th at 677 [“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”’”].)
B. Substantial Evidence Does Not Support the Section
1172.6 Court’s Conclusion that Defendant Exhibited
Reckless Indifference to Human Life
Assuming the record supports the trial court’s conclusion
that defendant was a major participant in the robbery of
Lambdin, it does not support the finding that he acted with
reckless indifference to human life. Like the trial court, we
analyze the issue based on the factors discussed in Clark and
Scoggins. As we now discuss, the “totality of the circumstances”
(Scoggins, supra, 9 Cal.5th at 677) does not support the section
5
Because the defendant in Clark acted as the (abortive)
getaway driver in the armed robbery of a retail store during
which an employee’s mother was shot and killed, the Court
framed its discussion around “cases involving nonshooter aiders
and abettors to commercial armed robbery felony murders.”
(Clark, supra, 63 Cal.4th at 618.)
16
1172.6 court’s finding that the prosecution proved defendant
acted with reckless indifference to human life.
1. Whether defendant was aware Salgado or any
other confederate was armed
The section 1172.6 court acknowledged there was
“testimony from a witness [Raul] during the preliminary hearing
that Johnson told him that no weapons would be needed for the
robbery,” but the court disregarded this testimony because it
believed Raul did not “confirm whether defendant heard or knew
of Johnson’s statement.” The preliminary hearing transcript,
however, reveals defendant was part of the group conversation
during which Raul and Johnson’s statements were made,6 the
men conversing stood two or three feet apart, and Raul testified
he addressed his comments about weapons “to all of them in
general.” Although Raul “really [could not] say” whether
defendant himself gave assurances similar to those given by
Johnson, the circumstances still strongly indicate the opposite of
what the section 1172.6 court found, i.e., that defendant (and,
perhaps just as important, the other co-defendants) must have
heard the comments discouraging the use of weapons.7
6
As recounted earlier in our recitation of the pertinent
background, Raul testified he “mentioned to not only Johnson but
the guys that were standing there that, ‘You better not have any
guns or weapons.’” Johnson replied, “‘No, we don’t need weapons.
We have got black belt Jones here.’”
7
Bubba’s statement in the immediate aftermath of the
robbery—that “it didn’t go down right”—can also be understood
as buttressing the conclusion that the use of weapons was not
planned.
17
The section 1172.6 court’s ruling also concludes that “once
[defendant] and Salgado wrestled with Lambdin on the floor, he
saw Salgado with the knife when he pinned Lambdin’s upper
body to the floor.” To the extent that the court determined
defendant saw the knife before Salgado stabbed Lambdin, the
finding is not supported by substantial evidence. Defendant
certainly did not admit to seeing Salgado stab Lambdin,8 and
defendant’s statement to Detective Rossman “that [Salgado] was
the one that had the knife” does not imply that he saw the knife
before Salgado stabbed Lambdin. In addition, because defendant
was first through the door and immediately started grappling
with Lambdin, it cannot be assumed (as the section 1172.6 court
did) that defendant was then aware someone stabbed Stauffer or
threatened Sackett with a switchblade. Furthermore, insofar as
one would credit Salgado’s statement to Detective Rossman that
he stabbed Lambdin when he saw that Lambdin “had a knife in
[defendant’s] back,” this tends to undercut any speculation that
defendant (who was trying to restrain Lambdin’s upper body)
would have been facing Salgado (who was trying to restrain
Lambdin’s lower body) and seen a knife.
In our view, and contrary to the section 1172.6 court’s
reading of the preliminary hearing transcript, there is no non-
speculative evidence that defendant knew any of his confederates
were armed before Salgado stabbed Lambdin. Defendant was
part of the conversation when Johnson assured Raul the group
was unarmed and they expressly planned to tie Lambdin up (not
8
According to Detective Rossman, defendant said “he looked
down and [Lambdin] was saying, ‘Help, help’ and [defendant] saw
a big hole and a patch of blood escaping from [Lambdin’s] body.”
18
kill him). Further, with Bubba going in first to make sure things
were “cool,” defendant had reason to believe he and the other
men would be able to manually subdue a victim Bubba had
described as short and slight. (Banks, supra, 61 Cal.4th at 811
[no reckless indifference where there was no evidence the
defendant had advance knowledge of a need to meet resistance to
a robbery with lethal force].) Defendant was not personally
armed, and, as we shall discuss in more detail, there is no
evidence that he should have suspected Johnson’s assurances to
Raul were false. Indeed, with respect to this factor, defendant is
certainly no more culpable than the defendant in Clark, who did
not act with reckless indifference to human life despite expecting
an accomplice to use an unloaded gun in a robbery. (Clark,
supra, 63 Cal.4th at 613.)
2. Defendant’s proximity to the murder and
opportunity to restrain Salgado or aid Lambdin
“Proximity to the murder and the events leading up to it
may be particularly significant where . . . the murder is a
culmination or a foreseeable result of several intermediate steps,
or where the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal
force. In such cases, ‘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. . . . [Moreover,] the defendant’s
presence gives him an opportunity to act as a restraining
influence on murderous cohorts. If the defendant fails to act as a
restraining influence, then the defendant is arguably more at
fault for the resulting murders.’ [Citation.]” (Clark, supra, 63
Cal.4th at 619.)
19
Presence at the scene of a murder is often a significant
factor counseling in favor of a reckless indifference to life finding.
In this case, however, there is no evidence that defendant’s
intimate proximity to the murder afforded him an opportunity to
observe and anticipate Salgado’s actions. There was no
testimony that defendant, Salgado, or Lambdin said anything
prior to Salgado stabbing Lambdin and, as we have already
discussed, there is no basis to infer that defendant saw Salgado
produce a knife before the fatal stabbing. (See, e.g., People v.
Keel (2022) 84 Cal.App.5th 546, 560 [the defendant did not have
“a meaningful opportunity to restrain [his confederate] or
intervene before he shot [the victim]” where, among other things,
the “decision to shoot was apparently made . . . quickly in
response to [the a robbery victim’s] unexpected resistance and
efforts to flee”]; In re McDowell (2020) 55 Cal.App.5th 999, 1014
(McDowell) [“A defendant is more culpable when he does nothing
to avoid violence despite having time to reflect and consider his
options”]; Scoggins, supra, 9 Cal.5th at 679 [the defendant lacked
control over his confederates’ actions “given how quickly the
shooting occurred”].)
Defendant’s failure to render or summon aid is also not
substantially probative of his frame of mind because multiple
people—including one of his accomplices—ran out of the house
yelling for help and neighbors “came rushing to the house
because they heard [Lambdin] screaming.” (McDowell, supra, 55
Cal.App.5th at 1014 [holding that the defendant’s “flight [did] not
cut one way or the other given the possibility that [witnesses]
would summon aid, which in fact they did”]; Clark, supra, 63
Cal.4th at 620 [emphasizing that, “unlike in [Tison], [the]
20
defendant would have known that help in the form of police
intervention was arriving”].)
The trial court’s suggestion that defendant “demonstrated a
callous indifference to Lambdin’s fatal injuries” by “[leaving] the
residence and [going] to the park to drink beer” is based on
Detective Rossman’s testimony regarding statements by St.
Pierre that was admitted only against St. Pierre and should not
have been considered. (§ 1172.6, subd. (d)(3) [“[H]earsay evidence
that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule”].) In any event, nothing in St.
Pierre’s statement to Detective Rossman implies the drinking
was celebratory or otherwise probative of a reckless indifference
to human life.
3. Duration of the robbery
As our Supreme Court explained in Clark, “[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. The duration of the interaction between
victims and perpetrators is therefore one consideration in
assessing whether a defendant was recklessly indifferent to
human life.” (Clark, supra, 63 Cal.4th at 620.) Clark cites Tison,
in which the defendants “‘guarded the victims at gunpoint while
[the group of perpetrators] considered what next to do,’” to
illustrate the principle. (Ibid.)
The trial court made no finding as to the amount of time
defendant and his confederates who entered Lambdin’s home
21
after Bubba spent inside. Stauffer testified he was out of the
house and yelling for help “within 45 seconds.” Sackett testified
he was out of the house (behind Bubba, who was yelling for help)
within “about ten seconds.” Defendant told Detective Rossman
he struggled to restrain Lambdin for “a few minutes.” Whatever
the precise duration of the robbery, there is no indication that the
murder was a product of prolonged interaction between
defendant and his confederates and Lambdin.
4. Defendant’s knowledge of factors bearing on
Salgado’s likelihood of killing
“A defendant’s knowledge of factors bearing on a cohort’s
likelihood of killing are significant to the analysis of reckless
indifference to human life. [The] [d]efendant’s knowledge of such
factors may be evident before the felony or may occur during the
felony.” (Clark, supra, 63 Cal.4th at 621.) As we have already
discussed, there is no evidence that defendant observed Salgado
demonstrate a willingness to use lethal force during the robbery
before he stabbed Lambdin. There was also no evidence
regarding Salgado’s prior history of violence (if any) or whether
defendant would have been aware of such history through
personal acquaintance or reputation.9
9
In denying relief, the section 1172.6 court did observe that
“at least one of the men said that he was ‘afraid’ of the other men
involved in the robbery.” That is a seeming misreading of the
preliminary hearing transcript. The court’s statement appears to
refer to Raul’s testimony that Bubba was concerned about being
“double cross[ed]” by his confederates—not that he was afraid
they would deviate from their plan and harm Lambdin or other
witnesses.
22
5. Efforts to minimize risk of violence
In Clark, our Supreme Court emphasized that this factor
was relevant to its analysis “primarily because [the] defendant
was the principal planner and instigator of the robbery.” (Clark,
supra, 63 Cal.4th at 622.) By contrast here, defendant does not
appear to have been “the mastermind” (id. at 612) of the raid on
Lambdin’s house. In any case, the fact that Bubba went to
Lambdin’s house ahead of the rest of the group to make sure
everything was “cool” indicates the group was willing to abandon
the plan if it appeared they would encounter significant
resistance. The fact that Bubba remained in the house for 10 to
15 minutes suggested things were indeed “cool.”
The trial court’s finding that the timing of the robbery
increased the risk of violence because “residents are usually
home” at 9:00 p.m. ignores important context about Lambdin’s
home. Sackett testified there were eight or nine men in the home
when he arrived around 3:00 p.m. and drug buyers were
“com[ing] and go[ing]” with “quite a bit of frequency” during the
day. There were significantly fewer people in the home at the
time of the robbery—none of whom, apart from Lambdin, put up
any resistance—and no one entered during Bubba’s
reconnaissance. Under the circumstances, the timing of the
robbery did not “elevate[ ] the risk to human life beyond those
risks inherent in any armed robbery.” (Clark, supra, 63 Cal.4th
at 623.)
23
DISPOSITION
The order denying defendant’s petition for resentencing is
reversed. The matter is remanded to the trial court with
instructions to vacate defendant’s murder conviction pursuant to
section 1172.6, subdivisions (d) and (e) and to otherwise proceed
as required by those subdivisions.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
24