People v. Johnson CA2/4

Filed 7/11/23 P. v. Johnson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B320943

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA030918)
v.

LA’MIN JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
 In 1999, a jury convicted appellant La’Min Johnson of
numerous crimes, including one count of first degree murder,
and found true special circumstance allegations that the
murder was committed during the commission of a burglary.
Appellant was sentenced to life imprisonment without the
possibility of parole, plus 19 years.
In 2019, appellant filed a petition for resentencing
under section 1172.6 (former section 1170.95),1 which
provides that persons who were convicted under theories of
felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted
of murder following the enactment of Senate Bill No. 1437
(S.B. 1437), may petition the sentencing court to vacate the
conviction and resentence on any remaining counts. (Stats.
2018, ch. 1015, § 1, subd. (f).)
The trial court denied the petition after an evidentiary
hearing. The court found the prosecution had sustained its
burden of showing beyond a reasonable doubt that appellant
was liable under a still-valid theory of murder, as he was a
major participant in the burglary who acted with reckless
indifference to human life.
We appointed counsel to represent appellant on appeal,
and after examination of the record, counsel filed an opening
brief raising no issues and requesting that we follow the

1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10). We hereafter cite to section 1172.6 for ease of reference.
Undesignated statutory references are to the Penal Code.

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procedures set forth in People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo). Thereafter, appellant filed his own
supplemental brief, in propria persona, raising several
issues. For the reasons set forth below, we affirm the trial
court’s order.

BACKGROUND
A. Procedural Background2
Appellant and his codefendant, Jason Mency, were
charged and tried together, with separate juries, for 88
offenses and various firearm enhancements. (People v.
Johnson (June 18, 2002, B137441) 2002
Cal.App.Unpub.LEXIS 5467, *2-3 [nonpub. opn.] (Johnson).)
On January 19, 1999, appellant’s jury convicted him of
multiple crimes including the attempted murder of
Christopher Ramirez. The jury found true the allegations
that appellant “personally used” a handgun and that a
principal was armed with a handgun in the commission of
the offense. The jury found appellant not guilty of 38 counts
and was unable to reach a verdict on seven counts, including
Count 1 — the special circumstance murder of Marsha Lee
Birch. (Johnson, supra, 2002 Cal.App.Unpub.LEXIS at
p. *3.)

2 We cite to the opinion in appellant’s direct appeal in
summarizing the procedural history of the case, which section 1172.6,
subdivision (d)(3) expressly permits.

3
 On October 25, 1999, after retrial, appellant was found
guilty of additional crimes, including the first degree murder
of Marsha Birch (§ 187, subd. (a)). The jury found true the
special circumstance allegation that the murder was
committed while appellant was aiding and abetting the
commission of a burglary (§ 190.2, subds. (a)(17), (d)), and
further found true that a principal was armed with a firearm
during the commission of the murder (§ 12022, subd. (a)(1).)
Appellant was sentenced to a term of life without the
possibility of parole, plus 19 years.
On direct appeal, appellant argued, among other
things, that there was insufficient evidence to support his
murder and attempted murder convictions. This court
concluded otherwise and affirmed appellant’s convictions in
an unpublished decision. (Johnson, supra, 2002
Cal.App.Unpub.LEXIS at pp. *34-41, 46-50.)
On February 6, 2019, appellant filed a petition for
resentencing under section 1172.6, indicating he had been
convicted of first degree felony murder and alleging he could
not now be convicted based on the statutory changes made
by S.B. 1437. Counsel was appointed, and the trial court
found a prima facie case had been made and issued an order
to show cause on the petition.
On April 27, 2022, the trial court held an evidentiary
hearing. At the hearing, the court allowed appellant to
orally amend his petition to include the attempted murder
conviction (of victim Ramirez) but found he had failed to
make out a prima facie case for relief. The court pointed out

4
the jury found that appellant was the actual shooter; as
such, appellant had not been convicted under (the now
impermissible) natural and probable consequence theory of
liability. Trial counsel for appellant did not object to the
court’s conclusions on this issue.
As to the felony murder conviction concerning victim
Marsha Birch, the parties declined to present new evidence
and, instead, made legal arguments based on the existing
record of conviction, including the transcripts from
appellant’s two criminal trials.3 The court took the matter
under submission to issue a written decision.
On May 13, 2002, after considering argument and the
evidence submitted by the parties, the resentencing court
denied the petition. The court found “the [P]eople have
proven beyond a reasonable doubt that petitioner was a
major participant and acted with reckless indifference to
human life” and he was therefore ineligible for resentencing
under section 1172.6.
Appellant timely appealed.

3 The trial court admitted into evidence a compact disc containing
the trial and clerk’s transcripts of the underlying criminal proceedings.

5
B. Factual Background4
Testimony at both trials demonstrated a close
relationship between appellant and co-defendant Mency. In
our summary below, we set forth uncharged acts admitted
during trial to establish the connection between appellant
and Mency, as well as two crimes (of which they were both
convicted) that took place prior to the Birch murder. The
trial court summarized these incidents in its written
decision, as did the parties in their briefing arguments
before the trial court.

1. Uncharged Acts Involving Appellant and Co-
Defendant Mency
On July 31, 1995, Pasadena police stopped a car driven
by appellant, with Mency in the passenger seat. Inside the
car was a scanner set to frequencies used by the Pasadena
Police Department. Appellant and Mency had shards of
glass on their clothing, and Mency had blood on his forearm,
indicative of involvement in automobile burglaries where
windows were broken. Police also found stereo components,
including stereo faceplates, inside the vehicle.
On January 10, 1996, Pasadena police again stopped a
car driven by appellant, with Mency as a passenger. An

4 In its written decision, the court indicated it had relied on the
reporter’s transcripts from both of appellant’s criminal trials in
rendering its decision on the section 1172.6 petition but did not
consider any evidence pertaining to counts of which appellant was
actually acquitted.

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officer searched the car and found a police scanner, gloves,
screwdrivers, a slim-jim, a black knit cap, and a radio face
plate. Two weapons were also recovered, a nine-millimeter
handgun and a .380 handgun.
From November 1996 through January 1997, Mency’s
uncle, Randolph Cunningham, lived with Mency.
Cunningham saw appellant and Mency together on either a
daily basis or four times a week, late at night at Mency’s
house. Cunningham often saw the men change into dark
clothing and dark ski caps before leaving the house at night.
On one occasion, Cunningham saw them return with a
computer, radios, phones, a television, and a VCR.
On January 2, 1997, at around 11:00 pm or 12:00 a.m.
(a few hours before Birch’s murder, see post), Cunningham
saw appellant and Mency leave the home wearing dark
clothing, dark caps, backpacks, and gloves.

2. Conviction for Crimes Occurring Prior to
Birch Murder
At appellant’s first trial, appellant and Mency were
convicted of charges arising out of the following two
incidents that predated the Birch murder.

a. Polwrek Home Invasion (Counts 51-59)
On September 18, 1996, John Polwrek was asleep in
his Pasadena home when he was awakened by two armed,
male intruders wearing dark clothing, masks, and gloves.

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The men told Polwrek they had disabled the home alarm and
cut the phone lines.
The men used duct tape to tie Polwrek’s hands and
legs. His wife and young children, who were sleeping in
another room, were similarly tied up. When Polwrek told
the assailants to leave his son alone, he was struck on the
head with a gun, causing blood to run down his head. The
house was ransacked after multiple threats and demands for
money. The men stole money, a television, a VCR, a
computer, and a satellite TV control box. The men also stole
the family van. The van was recovered a few hours later in
Altadena. The satellite TV control box was recovered from
appellant’s parents’ home on January 3, 1997.
A jury found that appellant and Mency were the two
men who committed the home invasion, and both were
convicted of multiple counts arising out of the incident. The
jury further found true that Mency personally used a firearm
during the home invasion, but not true that appellant
personally used a firearm during the incident.

b. Attempted Murder of Christopher Ramirez
(Counts 22-27)
On December 22, 1996, Christopher Ramirez was
sitting with friends in his Suburban SUV outside of his
house when he noticed two men walking towards his
mother’s van that was parked in the driveway. Ramirez and
his friends exited the SUV, and Ramirez asked the men

8
what they were doing.5 One man, the shorter of the two,
cocked a nine-millimeter handgun by pulling back the slide
and pointed it in the air. Ramirez ran, and the shorter man
ran after him and shot him in the back of his upper right leg
as he attempted to hop over a fence. Ramirez saw the man
trying to work his weapon, but the gun appeared jammed.
As Ramirez was being chased, the other man
approached the rest of the group and ordered them back into
their SUV, with his weapon pointed at them. The group got
back into the SUV, and the man broke the driver’s side
window with his gun and got into the driver’s seat. The
shorter man returned and climbed into the passenger seat.
The men asked “where are the keys. Where are the fucking
keys?” One of the victims, Michael Bushmeyer (who was
intoxicated) responded, “They’re right there, fool.” One of
the men responded, “[d]on’t call me a fool,” and the shorter
man, who was in the passenger seat, pulled Bushmeyer out
of the SUV and threw him on the ground. While Bushmeyer
was rolled into a fetal position, the shorter man held his gun
near Bushmeyer’s head saying, “Don’t call me a fool,” as
Bushmeyer responded, “I’m sorry. I’m sorry.” Thereafter, a
car came down the street and the suspects ran.
In January 1997, one of the victims, Bernard Krell,
reported that appellant was the person who chased Ramirez

5 When Ramirez saw the men, they had masks on their faces;
however, two victims saw the men before they rolled down their masks
(see fn., 7, post).

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on December 22nd, after Krell saw a news article about
appellant and Mency’s arrest for a series of crimes that
included their photos. At trial, Krell identified appellant as
the person who chased Ramirez and as the person who stood
over Bushmeyer with a gun.6 Mency later admitted he was
involved in the Ramirez incident.7
Appellant and Mency were charged with the attempted
murder of Ramirez, as well as additional counts of vehicular
burglary, attempted carjacking, and false imprisonment
arising out of this incident. Both men were convicted of all
charges, with the exception of a false imprisonment count
regarding victim Pedro Diaz, who testified he ran from the
scene early during the incident. The jury further found true

6 On the night of the shooting, police arrested a man named Leon
Ladmirault near the scene. Krell and Diaz identified Ladmirault as a
suspect. At Ladmirault’s trial, Krell identified Ladmirault as the
person who smashed the car windshield and got into the driver’s seat
while Ramirez was being chased by the other man. Consistent with
Krell, Diaz testified that Ladmirault was one of the two men he saw in
the driveway before Diaz ran from the scene, but not the person who
cocked his gun and chased Ramirez. The parties stipulated
Ladmirault was convicted of attempted murder, attempted carjacking,
assault with a firearm, and false imprisonment related to the
December 22, 1996, incident. However, it was further stipulated that
Ladmirault was not accused of actually firing a gun, and Ladmirault
was tested for GSR and received negative results.
7 In addition to the two men initially spotted walking towards
Ramirez’s mother’s van, there was a third suspect involved in the
Ramirez incident. Two of the victims (Diaz and Bushmeyer) testified
there was a third person across the street, or in the background, acting
as a lookout during the incident.

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that appellant personally used a firearm during the offenses
but found not true that Mency personally used a firearm
during any of the offenses.

3. Murder of Marsha Birch (Count 1, Second Trial)

a. The Shooting
On January 3, 1997, Marsha Birch left for work at
around 5:00 a.m. As she went to her car, she was shot in the
front right shoulder and through the neck, which ultimately
caused her death. Her husband heard two shots and ran
outside and found his wife laying on the sidewalk. Police
found two expended casings and one expended bullet near
Birch’s body. Police also recovered a bullet from Birch’s
clothing while she was at the hospital.
When police arrived, they noticed there was damage to
a blue Honda parked across the street from where Birch was
shot, as the rear passenger window had been broken and
items were scattered inside the vehicle as if it had been
ransacked and burglarized. Alfred Robinson, who lived
across the street from the Birch family and was the owner of
the blue Honda, had parked and locked his vehicle the
previous night, with the window intact. Missing from the
car were a small briefcase, a nine-millimeter Beretta
handgun, an earthquake kit, and a flashlight. The
earthquake kit and small briefcase were found in the bushes
near the driveway at the Birch home.

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 b. Police Arrest Appellant and Co-defendant
Mency
On January 3, 1997, the same morning Birch was
murdered, police were conducting an undercover
surveillance of Mency’s home located on Olive Street in
Monrovia. At 5:14 a.m., two men were seen running toward
Mency’s home. One was taller than the other, and each had
dark clothing. The two men went into the home and five
minutes later came back out and walked up the street.
At 5:19 a.m., the men were seen at a nearby trash can
where one man held the lid while the other leaned inside. A
surveillance officer immediately looked into the trash can
and found Birch’s purse and identification. The purse had a
broken strap.
The two men went back to Mency’s home. The taller of
the two men was identified as Mency. Several minutes later,
they reemerged from the home, and the shorter of the two
men got into a gold Hyundai and drove up the street and
into a gas station. Police followed the man into the gas
station at approximately 5:30 a.m. and subsequently
arrested him. The man was identified as appellant.
Inside appellant’s vehicle, police observed a handheld
scanner on the right front passenger seat, two bolt cutters,
and a pair of gloves. The handheld scanner was marked,
“Property of Jason Mency.” Appellant’s hands were bagged
for gunshot residue (GSR) testing.

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 Police arrested Mency at approximately 6:30 a.m. At
the time of his arrest, Mency was carrying a police scanner
and wore an earplug.

c. Investigation
Police found a swamp cooler at Mency’s house that
contained three handguns: a .45 caliber handgun with a
loaded magazine and two nine-millimeter Beretta handguns
with loaded magazines. One of the nine-millimeter Beretta
handguns was identified as the gun that was taken from
Robinson’s vehicle earlier that morning.8
A firearms expert determined the expended bullet
recovered from Birch at the hospital and the bullet found
near her body were fired from the .45 caliber handgun
recovered from the swamp cooler. The two shell casings
found at the crime scene may have been fired from that same
gun, but the expert could not say for sure.
After his arrest, Mency also had paper bags placed over
his hands. The GSR test for Mency reflected one particle
unique to gunshot residue and three particles consistent
with gunshot residue. The GSR test for appellant showed
two particles unique to gunshot primer residue, four
particles consistent with gunshot residue, and three
particles of spherical lead, which a criminalist opined could
only have come from firing a gun, handling a gun with the

8 The other nine-millimeter firearm was found to have fired a
bullet and a casing found at the Ramirez crime scene.

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particles already on it, or having been in very close
proximity (i.e., less than three 3 feet) when the gun was
fired.

d. Jury Verdicts and Findings Regarding
Appellant and Co-Defendant Jason Mency
At appellant’s first trial, in which he was jointly tried
with Mency, the jury was unable to reach a verdict with
regard to appellant but found Mency guilty of all counts
charged in relation to the Birch murder: (1) first degree
murder of Marsha Birch, with a finding that a principal was
armed during the offense (Count 1), with true special
circumstance findings that the murder was committed
during the commission of a burglary and that it was
committed during the commission of a robbery; (2) robbery of
Marsha Birch (count 2); (3) vehicular burglary of Alfred
Robinson’s vehicle (count 3); and (4) grand theft of the
firearm belonging to Robinson (count 4). Mency was also
found guilty of the crime of armed criminal action (count 11),
meaning the jury found that on January 3, 1997, Mency was
armed with a loaded firearm and harbored the intent to
commit a felony (specifically, either robbery or burglary)
(count 11).
After retrial, appellant was convicted of the first degree
murder of Marsha Birch, and the jury found true the
allegation that a principal was armed during the offense.
The jury also found true the special circumstance allegation
that the murder was committed during the commission of a

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burglary, but found not true the special circumstance
allegation that the murder was committed during the
commission of a robbery. The jury further convicted
appellant of the vehicular burglary (count 3) and grand theft
firearm (count 4), but was unable to reach a verdict on count
2, the robbery of Birch. Finally, the jury found appellant
guilty of armed criminal action (previously count 11,
renumbered as count 5), which, as indicated above, means
the jury found appellant was armed with a loaded firearm on
the day of the Birch murder, with the intent to commit a
felony (robbery or burglary).

DISCUSSION
A. Delgadillo Review
Because the instant appeal is from an order denying
postconviction relief rather than a first appeal of right from
a criminal conviction, defendant is not entitled to our
independent review of the record pursuant to People v.
Wende (1979) 25 Cal.3d 436. (Delgadillo, supra, 14 Cal.5th
at pp. 221-222; People v. Serrano (2012) 211 Cal.App.4th
496, 503 (Serrano)). He is, however, entitled to appellate
consideration of the contentions raised in his supplemental
brief. (See Delgadillo, supra, at p. 221; Serrano, supra, at
p. 503.)
In his supplemental brief, appellant argues the trial
court erred in denying his section 1172.6 petition because
there was insufficient evidence to support the finding he was
a major participant with reckless indifference during the

15
Birch murder. Appellant also renews several claims
previously rejected by this court on direct appeal. For the
reasons explained below, we discern no cognizable or
reversible error.

B. Section 1172.6 and the Petitioning Procedure
Senate Bill No. 1437, which took effect on January 1,
2019, limited accomplice liability under the felony-murder
rule and eliminated the natural and probable consequences
doctrine as it relates to murder to ensure that a person’s
sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th
830, 842-843 (Gentile); see also People v. Lewis (2021) 11
Cal.5th 952, 957, 971 (Lewis).) To that end, and as relevant
here, Senate Bill No. 1437 amended the felony-murder rule
by adding section 189, subdivision (e), which now provides
that a participant in the perpetration of qualifying felonies is
liable for felony murder only if the person: (1) was the actual
killer; (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor; or (3) was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in section 190.2,
subdivision (d). (Gentile, supra, at p. 842.)
Senate Bill No. 1437 also added section 1170.95 (now
section 1172.6), which created a procedure whereby persons
convicted of murder under a now-invalid felony-murder (or
natural and probable consequences) theory may petition to
vacate their convictions and for resentencing. Where, as

16
here, the petitioner has made a prima facie showing of
entitlement to relief, the trial court must issue an order to
show cause and then hold a hearing to determine whether to
vacate the murder conviction and recall the sentence.
(§ 1172.6, subd. (d)(3); (Lewis, supra, 11 Cal.5th at p. 960.)
In making that determination, the prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence. (§ 1172.6, subd. (d)(3); Lewis, at p. 960.)
At the subdivision (d) hearing, the prosecution has the
burden to prove the petitioner’s ineligibility beyond a
reasonable doubt. (§ 1170.95, subd. (d)(3).)
In 2021, the Senate amended section 1172.6 to make
clear that defendants convicted of attempted murder under
the natural and probable consequences doctrine or
manslaughter are also entitled to seek resentencing relief.
(Sen. Bill No. 775 (2021–2022 Reg. Sess.); Stats. 2021, ch.
551, §§ 1–2, eff. Jan. 1, 2022.)

C. Sufficiency of Evidence to Support Denial of
Resentencing for Birch Murder
Appellant contends there was insufficient evidence to
support the trial court’s denial of his section 1172.6 petition
regarding the Birch murder. We disagree.

1. Standard of Review
The trial court’s decision to deny a section 1172.6
petition following an evidentiary hearing will be affirmed if
supported by substantial evidence. (People v. Clements

17
(2022) 75 Cal.App.5th 276, 298; People v. Williams (2020) 57
Cal.App.5th 652, 663-664.) Under that familiar standard,
“we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Westerfield (2019) 6 Cal.5th 632, 713.)

2. The Banks and Clark Factors
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Cark), the California
Supreme Court set forth the factors relevant to determine
whether a defendant is a major participant in a felony who
acted with reckless indifference to life.
The Banks factors, pertaining to major participant
status, include the role the defendant had in planning the
criminal enterprise leading to one or more deaths, his role in
supplying or using lethal weapons, his awareness of the
dangers posed by the nature of the crime (the weapons used
or the past experience of the other participants), whether he
was present at the scene of the killing, whether his actions
or inactions played a particular role in the death, and what
he did after lethal force was used. (Banks, supra, 61 Cal.4th
at p. 803.)
The Clark factors, describing reckless indifference,
include the defendant’s knowledge of weapons used in the
crime, how those weapons were used, the number of weapons

18
used, the defendant’s proximity to the crime, his opportunity
to stop the killing or aid the victim[s], the duration of the
crime, the defendant’s knowledge of the killer’s propensity to
kill, and the defendant’s efforts, if any, to minimize the
possibility of violence during the crime. (Clark, supra, 63
Cal.4th at pp. 616-623.)
No single factor is determinative—or even necessary.
(Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th
at pp. 618, 621-623). Instead, courts are to assess the
totality of a defendant’s culpability within the “spectrum”
established by two United States Supreme Court cases: on
one end, Enmund v. Florida (1982) 458 U.S. 782, in which
defendant was the classic getaway driver for an armed
robbery, and on the other, Tison v. Arizona (1987) 481 U.S.
137 (Tison), in which defendants helped convicted murderers
escape from prison, providing weapons, and stood by as their
confederates debated killing, then killed, an innocent family
of four. (Banks, supra, at pp. 801-803; Clark, supra, at
pp. 632; People v. Strong (2022) 13 Cal.5th 698, 705
[discussing the Tison-Edmund spectrum of culpability].)
At its core, “[r]eckless indifference to human life is
‘implicit in knowingly engaging in criminal activities known
to carry a grave risk of death’” (In re Scoggins (2020) 9
Cal.5th 667, 676, quoting Tison, supra, 481 U.S. at p. 157),
and “encompasses a willingness to kill (or to assist another
in killing) to achieve a distinct aim, even if the [appellant]
does not specifically desire that death as the outcome of his
actions.” (Clark, supra, 63 Cal.4th at p. 617.)

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 3. Analysis

a. Major Participant
In his evidentiary brief below, appellant argued that
“the evidence shows [appellant] was not present at the scene
of the murder on January 3, 1997.” Appellant’s primary
support for this assertion was a written declaration, signed
by Mency in 2003, stating that a man named Sidney
Robinson, and not appellant, committed the vehicular
burglary with him and that Robinson murdered Birch.
Appellant secondarily pointed to trial evidence indicating
that around the time Mency was arrested, Robinson was
arrested down the street from Mency’s house and sought to
flee from police.
Other than claiming that Robinson, not he, committed
the burglary with Mency, appellant provided no other
argument on the “major participant” requirement and
instead conceded that if appellant was with Mency, then
“there is no issue [appellant] was a major participant” and
that the “front and center issue is whether [appellant] acted
in reckless indifference to human life.”
At the evidentiary hearing on appellant’s section
1172.6 petition, counsel informed the court he was
withdrawing Mency’s declaration from consideration and
would solely rely on the evidence presented at trial.9 In light

9 In his appeal, appellant does not refer to the declaration in his
supplemental brief either.

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of the trial evidence and the jury’s findings that appellant
committed the burglary with Mency, the court reasonably
found that appellant was a major participant in the
underlying vehicular burglary that formed the basis for
appellant’s murder conviction. (People v. Williams (2020)
57 Cal.App.5th 652, 559-664 [a resentencing hearing under
section 1170.95 is not a trial de novo]; see also People v.
Farfan (2021) 71 Cal.App.5th 942, 947 [section 1172.6
petition does not afford litigants retrial on issues already
previously determined by jury under settled law]; cf.
People v. Zamudio (2008) 43 Cal.4th 327, 357 [noting that
conflicts in evidence subject to “justifiable suspicion” do not
justify the reversal of a judgment as it is for the trier of fact
to determine the truth or falsity of facts upon which a
determination depends].)

2. Reckless Indifference to Human Life
Applying the factors from Clark, supra, 63 Cal.4th at
p. 522, and considering the totality of the circumstances, we
conclude the record demonstrates petitioner acted with
reckless disregard for human life.
First, the major participant and reckless indifference
elements “‘significantly overlap’” (Clark, supra, 63 Cal.4th
at p. 615, quoting Tison, supra, 481 U.S. at p. 153), and
therefore a defendant’s status as a major participant in the
underlying felony will “often provide significant support for
[] a [reckless indifference] finding.” (Tison, supra, at p. 158,
fn. 12.) This is so because a defendant’s “[p]roximity to the

21
murder and the events leading up to it” may allow him to
observe another participant’s willingness to use lethal force
and, absent the defendant’s intervention, suggest that he
shared in his cohort’s actions and mental state. (Clark,
supra, at p. 619; Tison, supra, at p. 158.)
Second, substantial evidence review permits
reasonable inferences to be drawn from circumstantial
evidence. (People v. Sinclair (1974) 36 Cal.App.3d 891, 898-
899; see also People v. Manibusan (2013) 58 Cal.4th 40, 87
[noting that “‘[e]vidence of a defendant’s state of mind is
almost inevitably circumstantial, but circumstantial
evidence is as sufficient as direct evidence to support a
conviction’”].)
Here, appellant and Mency were involved in multiple
theft related offenses in which they employed violence. In
September 1996, appellant and Mency invaded the Polwrek
residence, and Mency used his firearm to strike John
Polwrek, causing him to bleed. Appellant did not stop or
deter Mency from engaging in that type of violent conduct,
but instead continued with the burglary and helped tie up
Polwrek’s wife and children, including their six-year-old son.
In late December 1996 (and only two weeks before Birch’s
murder), appellant fired a weapon at Christopher Ramirez
and most likely would have continued to fire at Ramirez, but
for his gun jamming. Thereafter, appellant threatened
Michael Bushmeyer, holding the gun near his head.
On the day of Birch’s murder, January 2, 1997,
appellant (as the jury found) was armed with a loaded

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firearm, with the intent to commit a felony. The evidence
further indicates that appellant, if not the actual shooter,
was at the very least within three feet from the shooting and
did nothing to stop the murder or aid the victim after she
had been shot. Instead, appellant immediately left with
Mency (as he was not present when Birch’s husband came
out of the home), and both men were seen returning to
Mency’s house minutes after the murder and disposing of
evidence. (People v. Williams, supra, 57 Cal.App.5th at
p. 664 [upholding denial of resentencing petition where
evidence showed that even if appellant was not the shooter,
he handled the gun before or after the murder and did
nothing to render aid to victim or call for assistance]; see
also People v. Douglas (2020) 56 Cal.App.5th 1, 10
[defendant “displayed no interest in moderating violence or
in aiding his bloody and suffering victim” and “expressed no
surprise or remorse when death was the result”].)
As the trial court reasonably found, the confrontation
with Birch, her broken purse strap, and firing of multiple
shots, are all consistent with the behavior of both appellant
and Mency during prior burglaries or attempted burglaries,
wherein one or the other used weapons when confronted or
resisted by victims. (People v. Zamudio, supra, 43 Cal.4th at
pp. 357-358 [substantial evidence review requires courts to
“presume . . . the existence of every fact the [trial court]
could reasonably have deduced from the evidence”].)
Even if the circumstances might also be reasonably
reconciled with a contrary finding, substantial evidence

23
review does not permit reversal. (People v. Rodriguez (1999)
20 Cal.4th 1, 11.) Only where “‘upon no hypothesis whatever
is there sufficient substantial evidence to support’” the
judgment is reversal warranted. (People v. Bolin (1998) 18
Cal.4th 297, 331.) Appellant cannot meet that standard, and
we must therefore affirm the trial court’s denial of his
resentencing petition.

D. Other Claims
In his supplemental brief, appellant renews several
claims we rejected in his direct appeal: (1) the jury was
unduly prejudiced by the admission of three uncharged prior
detentions (Johnson, supra, 2002 Cal.App.Unpub.LEXIS at
pp. *4-11); (2) the trial court erroneously excluded
impeachment evidence proffered in relation to witness
Randolph Cunningham (id. at pp. *15-20); (3) there was
insufficient evidence to support his convictions in “counts 51-
59, the Polwrek crimes” (id. at pp. *50-52); and (4) there was
insufficient evidence to support his convictions in “counts 22
through 27 involving Christopher Ramirez & friends” (Id. at
pp. * 45-50). Appellant’s challenges directed at his original
trial, however, are not cognizable in this section 1172.6
appeal. (See People v. Farfan, supra, 71 Cal.App.5th at
p. 947 [“The mere filing of a [prior Penal Code] section
1170.95 petition does not afford the petitioner a new
opportunity to raise claims of trial error or attack the
sufficiency of the evidence supporting the jury’s findings”].)

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 In addition to having considered the issues raised in
appellant’s supplemental brief, we have also independently
examined the entire record and found no arguable issues in
this section 1172.6 appeal.10 (Smith v. Robbins (2000) 528
U.S. 259, 278-279; Delgadillo, supra, 14 Cal.5th at pp. 232-
233.)

10 Because the notice provided to defendant in this case was
“suboptimal” under Delgadillo, we exercised our discretion to
independently review the record. (Delgadillo, supra, 14 Cal.5th at
pp. 232-233.)

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

MORI, J.

We concur:

CURREY, P. J.

ZUKIN, J.

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