People v. Martin CA4/2

Filed 8/16/23 P. v. Martin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078496

v. (Super.Ct.No. CR14997)

MICHAEL ANTOINE MARTIN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed.

Jennifer A. Gambale, by appointment of the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Anthony Da

Silva, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

In 1977, defendant and appellant Michael Antoine Martin participated in multiple

robberies. During one of these robberies, defendant’s coparticipant, David Benard

(Benard), discovered that their victim was employed as a correctional officer and shot the

victim. Defendant was convicted of murder on a felony murder theory as a result of this

incident and sentenced to life in prison for the murder conviction.

In 2019, defendant filed a petition for resentencing pursuant to Penal Code1

section 1172.6.2 The trial court issued an order to show cause, considered evidence

submitted by the parties, and denied the petition after concluding that the evidence

showed beyond a reasonable doubt that defendant is guilty of murder under the current

state of the law as a major participant in the robbery who acted with reckless disregard

for human life.

Defendant appeals, arguing (1) the trial court erred by considering his sworn

parole hearing testimony as evidence; (2) there was insufficient evidence to support the

trial court’s finding that defendant was a major participant who acted with reckless

disregard for human life; and (3) the trial court erred by failing to consider defendant’s

1 Undesignated statutory references are to the Penal Code.

2 Defendant brought his petition under former section 1170.95, which was

renumbered as section 1172.6 without substantive change on June 30, 2022. (Stats. 2022,
ch. 58, § 10.) As such, we refer to the statute by its current number throughout this
opinion whenever possible.

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youth as a factor in making its findings. We disagree with each of these contentions and

affirm the order.

II. FACTS & PROCEDURAL HISTORY

A. Background

In 1977, defendant participated in a series of armed robberies. One of these

robberies resulted in the death of the victim on August 21. Defendant was charged with

murder (count 1; § 187, subd. (a)) and robbery (count 2; § 211) arising out of the August

21 incident. A jury convicted defendant on both counts, and defendant was sentenced to

life in state prison with the possibility of parole for the murder conviction.3

In 2019, defendant filed a petition for resentencing pursuant to section 1172.6, and

the trial court issued an order to show cause on the petition in December 2020. Among

other items, the prosecution submitted the following documentary evidence in response to

the order to show cause: (1) the record of defendant’s trial on the issue of guilt; (2) the

record of defendant’s trial on the issue of sanity; and (3) a parole hearing statement given

by defendant in 2012.

3 The same jury also convicted defendant of attempted murder (count 4; §§ 187,

subd. (a), 664) and three additional counts of robbery (counts 5, 6, 7; § 211) arising from
different incidents. Defendant’s sentence also included a determinate term of 12 years in
state prison as a result of these additional convictions.

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B. Summary of Relevant Trial Evidence4

1. Physical Evidence

On August 24, 1977, the murder victim’s body was discovered on a hillside along

a remote road in Riverside County. The victim was lying face down with his arms

outstretched, a pool of blood around his head, and a spent shotgun shell near his feet.

The victim had been reported missing since August 21.

On August 24, 1977, Benard and an associate, Michael Atkinson (Atkinson), were

arrested by sheriff’s deputies in Los Angeles County. Benard and Atkinson were

traveling in the same vehicle at the time. A sawed-off shotgun and sawed-off rifle were

discovered in the vehicle. The shotgun was later determined to be the weapon that fired

the expended shotgun shell discovered near the victim’s body.

On August 25, 1977, defendant and two friends were arrested by police in the City

of Long Beach. At the time, defendant and his friends were found together in the

victim’s vehicle. The victim’s watch, a revolver, and a box of shotgun shells were found

in their possession. The shotgun shells were later determined to be of the same type used

to kill the victim.

4 Defendant’s trial involved multiple offenses unrelated to his conviction for

murder (count 1) and robbery (count 2) arising out of the incident on August 21, 1977.
Because defendant challenges only the sufficiency of the evidence with respect to the
trial court’s finding that he was a major participant who acted with reckless disregard for
human life with respect to the August 21 incident, we summarize only the evidence
relevant to this finding.

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 2. Testimony of Defendant’s Friend

One of the friends arrested with defendant testified under a grant of immunity. He

first saw defendant driving the victim’s vehicle on the evening of August 21, 1977.5

Initially, defendant represented to his friends that the vehicle belonged to defendant’s

girlfriend.

Prior to their arrest, defendant gave the friend a watch, which defendant removed

from an attaché case where defendant also stored a revolver. Defendant mentioned that

the friend was “ ‘wearing a dead man’s watch’ ” and used this reference at least four or

five times to refer to the watch. When the friend told defendant to stop joking, defendant

responded that he was “ ‘serious.’ ” The friend stated that defendant would provide

alternating explanations that “[defendant’s] partner and him . . . killed a dude and left him

in the hills” or “[defendant’s] partner shot a dude and left him in the hills.”

The friend recalled that, as law enforcement approached them prior to their arrest,

defendant initially appeared to overreact and stated that he should “bust.” The friend

explained that “bust” was slang for “shoot.” Because his friends did not believe they had

done anything wrong, they convinced defendant not to shoot at the police.

5 The witness testified that he first saw defendant driving the vehicle on the

Sunday before his arrest, which would have been August 21, 1977. The exact date was
reaffirmed during this same witness’s testimony during defendant’s trial on the issue of
sanity.

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 3. Testimony of Defendant’s Cellmate

A cellmate confined with defendant in the county jail testified that he had a

conversation with defendant regarding the August 21, 1977 incident. Defendant told the

cellmate that he and Benard parked a vehicle on the side of a road and raised the hood of

the vehicle. The victim drove up in a separate vehicle and stopped to offer assistance.

Benard led the victim up a nearby hill while defendant searched the victim’s vehicle, but

he returned alone and told defendant he had shot the victim. Defendant told the cellmate

that after Benard killed the victim, Benard expressed a desire to seek out and kill the

victim’s family, but defendant dissuaded Benard from doing so.

4. Testimony of Truck Driver

A truck driver testified that at approximately 6:15 a.m. on August 21, 1977, he

was driving down a remote stretch of road in Riverside County on his way to work. He

saw two vehicles parked along the side of the road near the location that the victim’s

body was later discovered. One of the vehicles had emergency flashing lights engaged.

The truck driver stopped his vehicle to offer assistance but drove away because he could

not see any individuals near the vehicles.

5. Testimony of David Benard

Benard was called to testify as a defense witness. He had already been tried

separately and convicted of first degree murder, and he admitted to killing the victim on

August 21, 1977.

According to Benard, in the early morning of August 21, 1977, he and defendant

had been smoking phencyclidine (PCP) for some time when the two began to discuss a

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plan to commit a robbery. Benard proposed that the two men park a vehicle on the side

of a remote road, act as if the vehicle had stalled, and rob any individual who stopped to

offer assistance. Defendant agreed to participate and initially appeared eager to do so,

but he became hesitant over time. Benard and defendant drove together in a vehicle to a

remote area, parked the vehicle along the side of the road, and raised the hood of the

vehicle to suggest the vehicle was experiencing a mechanical problem. Benard stood

next to the vehicle, while defendant hid behind a nearby boulder.

Eventually, the victim drove by in a separate vehicle, pulled to the side of the road,

and offered to help Benard. As the victim approached Benard, Benard pulled out a gun,

and stated, “ ‘This is a robbery.’ ” Benard riffled through the victim’s wallet while

defendant removed a watch from the victim’s wrist. During this time, Benard discovered

an identification card that indicated the victim was employed as an officer with the

Department of Corrections. Benard reacted emotionally to the discovery, told defendant

to take the victim’s watch and vehicle, and told defendant “to take off and meet me at my

parents’ house.” Benard believed that defendant left the scene at this point.

After defendant left the scene, Benard walked the victim up a nearby hill, shot the

victim in the head, returned to the vehicle he had initially driven to the scene, and drove

away. Benard insisted that he never told anyone he had killed the victim. Instead, when

Benard finally saw defendant again, Benard told defendant that he hit the victim in the

head.

On cross-examination, Benard admitted he had previously given a different

version of the murder when speaking with a defense expert retained in his separate trial.

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In a prior version of events, Benard conveyed that all of his criminal associates

participated in the planning of crimes, stating that they would “ ‘all put in [their] own

ideas,’ ” and further stating that each coparticipant would “elaborate on it and figure out

the best moves” to accomplish the crime. Benard also previously admitted that, during

the August 21 incident, he initially held a revolver when searching the victim while

defendant held the victim at gunpoint with a shotgun. In this prior version of events,

Benard became enraged upon discovering the victim was employed as a correctional

officer and ordered the victim to walk up a nearby hill. After the victim complied,

defendant expressed to Benard that the two men should leave; but they instead traded

guns and defendant left on his own.

The prosecutor also attempted to impeach Benard with prior statements made to

Atkinson. Benard was asked whether he had confessed to Atkinson that he expressly told

defendant of his intent to kill the victim before defendant left the scene. In response,

Benard repeatedly refused to answer the question, stating, “I don’t want to go into that,”

and later equivocated by stating that he was uncertain of the specific words he used when

describing the incident to Atkinson.

6. Testimony of Atkinson

Atkinson testified that he was a criminal associate of both defendant and Benard.

He participated with defendant and Benard in planning two robberies that occurred prior

to the events of August 21. All three men were armed with firearms during these

robberies, and defendant supplied Atkinson with a firearm for this purpose. Atkinson

8
confirmed that during one of these robberies, defendant pointed a firearm at one of the

victims and fired into the victim’s vehicle.

Atkinson also testified in rebuttal to Benard’s testimony. He testified that he had a

conversation with Benard following the events of August 21, 1977. During this

conversation, Benard stated that while committing a robbery with defendant, Benard

discovered that the victim was employed as a correctional officer, commented to

defendant that he held a disdain for correctional officers, and told defendant, “ ‘I’m going

to kill [the victim].’ ” Benard then stated that he sent defendant away from the scene.

7. Testimony of Benard’s Defense Expert

A clinical researcher testified that he was retained as a defense expert in Benard’s

separate trial and conducted an interview of Benard in preparation for that case.6 In this

interview, Benard stated that after discovering the victim’s identity, both Benard and

defendant walked the victim up a hill with the intent to tie up the victim. However, the

two men could not find any rope and, at some point, defendant walked away and Benard

proceeded to shoot the victim. At the time of the interview, Benard claimed to have

consumed a large quantity of drugs immediately prior to the murder and appeared to be

having great difficulty recalling the events of the murder with precision.

6 The same clinical researcher was also called as a defense witness in defendant’s

case for the purpose of providing expert testimony on the effects of PCP use on mental
capacity and behavior.

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 8. Evidence of Prior Robberies

Defendant’s trial involved charges related to at least two robberies committed in

August 1977, prior to the robbery and murder of August 21.

A victim testified that during the first robbery, he was driving his vehicle on the

freeway and was hit from behind by a second vehicle. When the victim pulled to the side

of the road, defendant and Benard exited the second vehicle, brandished firearms, and

ordered the victim to hand over his wallet. Defendant threatened the victim by stating,

“Do you want to die? Do you want to die?”; ordered Benard to hold the victim at

gunpoint; and instructed Benard to “blow [the victim’s] head off” if the victim moved.

Multiple victims testified that, during the second robbery, they were traveling on

the freeway when their vehicle was hit from behind by a second vehicle. When the

victims pulled their vehicle to the side of the road, defendant and Atkinson exited the

second vehicle, brandished firearms, and ordered the victims to hand over their

possessions. As the defendant and Atkinson were leaving the scene, defendant fired his

gun into the victims’ vehicle, striking the headrest of the seat where one of the victims

was seated.

C. Summary of Defendant’s Parole Hearing Testimony

Defendant testified in a parole suitability hearing in 2012. Defendant admitted

that he staged a highway robbery with Benard by stopping their vehicle on the side of a

road and pretending that the vehicle had broken down. When the victim stopped to offer

assistance, Benard brandished a firearm and took the victim’s possessions. Benard

discovered the victim was employed as a correctional officer when searching the victim’s

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wallet, made a statement that the victim was one of the people who “used to mess with

me in prison,” gave defendant the victim’s watch, and told defendant to take the victim’s

car. Defendant left the scene and did not see Benard again prior to defendant’s arrest.

Defendant believed that he could have prevented the murder if he had stayed, but

he was adamant that he did not know why Benard had asked him to leave and had left the

scene prior to the murder. Defendant was also adamant that Benard never told him

directly of an intent to murder the victim. However, defendant admitted that, looking

back, Benard’s comments suggested the possibility that he intended to kill the victim.

Defendant also admitted that, had Benard asked him to stay and assist with the murder,

defendant would have done so at the time.

Defendant admitted that he and Benard had used the same plan or method to

commit robberies on eight to 10 occasions prior to the murder. Defendant initially

claimed that the two had never shot or killed anyone with their weapons during these

robberies. However, he later admitted he had previously shot at a victim during a

robbery, and further admitted that he had previously witnessed Benard shoot a woman in

the face.

D. Evidentiary Hearing, Findings, and Order on Resentencing Petition

The trial court held an evidentiary hearing on the petition on January 14, 2022.

However, the parties declined to present any further evidence or argument and elected to

submit the matter on the documentary evidence and written arguments that had already

been presented.

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 On January 18, 2022, the trial court issued a written order denying defendant’s

petition for resentencing. Specifically, the trial court found that the evidence presented

for its consideration was “overwhelming that defendant was a major participant in the

robbery of [the murder victim] and that in doing so, [defendant] acted with reckless

disregard for human life.” As such, the trial court concluded that the prosecution had met

its burden to show beyond a reasonable doubt that defendant could be convicted of

murder under the current law and was ineligible for resentencing. Defendant appeals

from the order denying his resentencing petition.

III. DISCUSSION

On appeal, defendant argues that reversal of the trial court’s order denying his

petition for resentencing is required because (1) the trial court relied on parole hearing

testimony that should have been excluded as either compelled or involuntary testimony;

(2) insufficient evidence supports the trial court’s finding that defendant was a major

participant who acted with reckless disregard for human life during the commission of

the August 21 robbery; and (3) the trial court failed to properly consider defendant’s

youth as a factor when making its findings. We conclude that reversal is not required on

any of these grounds.

A. Legal Background

“Our Legislature enacted what is now section 1172.6 and simultaneously amended

sections 188 and 189 in order to eliminate criminal liability for murder, attempted

murder, and manslaughter absent a showing of the defendant’s personal intent . . . .

Now, a conviction for these crimes requires proof that the defendant (1) was the actual

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killer . . . , (2) directly aided and abetted the actual killer while acting with the intent to

kill, or (3) was a major participant in a felony who acted with reckless indifference to the

value of human life.” (People v. Duran (2022) 84 Cal.App.5th 920, 927 (Duran).)

“[S]ection 1172.6 is the statutory mechanism for determining whether to

retroactively vacate a final murder . . . conviction that does not comply with the new,

narrower definitions.” (Duran, supra, 84 Cal.App.5th at p. 927.) “A defendant seeking

relief under section 1172.6 must ‘file a petition’ alleging entitlement to relief along with

‘[a] declaration’ attesting to eligibility for relief. [Citation.] If the defendant ‘makes a

prima facie showing’ of entitlement to relief . . . , then the court must in most cases

convene an evidentiary hearing where the People bear the burden of establishing beyond

a reasonable doubt that the defendant is guilty of the pertinent crime under the new,

narrower definitions.” (Ibid.)

“ ‘The admission of evidence in the hearing shall be governed by the Evidence

Code, 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. . . . The prosecutor and petitioner

may also offer new or additional evidence to meet their respective burdens.’ ” (People v.

Patton (2023) 89 Cal.App.5th 649, 656; Duran, supra, 84 Cal.App.5th at p. 927.)

B. Defendant’s Parole Hearing Testimony Was Admissible

Defendant’s first argument on appeal is that the trial court should have excluded

consideration of his parole hearing testimony. Defendant does not argue that such

13
evidence is prohibited under the Evidence Code,7 but he instead argues that parole

hearing testimony should be excluded as involuntary testimony or, alternatively,

considered compelled testimony subject to the use immunity doctrine. We disagree.

“ ‘The use of coerced confessions, whether true or false, is forbidden because the

method used to extract them offends constitutional principles. [Citation.]’ [Citation.]

An involuntary confession is inadmissible for any purpose . . . .” (People v. Jimenez

(2021) 73 Cal.App.5th 862, 875-876; People v. Sanchez (2019) 7 Cal.5th 14, 50

[“ ‘ “[A]n involuntary confession may not be introduced into evidence at trial.” ’ ”].) A

closely related doctrine is that of use immunity, which is “ ‘immunity from the use of

compelled testimony, as well as evidence derived directly and indirectly therefrom’ ” that

is intended to overcome any claim that compelled testimony violates a witness’s Fifth

Amendment rights. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.) “Whether use

immunity exists and whether a statement is involuntary within the meaning of due

process are questions of law we review de novo.” (Duran, supra, 84 Cal.App.5th at

p. 928.)

In this case, defendant specifically objected to the consideration of his parole

hearing testimony on the ground that it was compelled testimony subject to the use

7 Generally, evidence of a party’s prior statements is admissible “when offered

against the declarant in an action to which he is a party in either his individual or
representative capacity . . . .” (Evid. Code, § 1220; People v. Flinner (2020) 10 Cal.5th
686, 735.)

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immunity doctrine. The trial court overruled the objection, relying on People v. Myles

(2021) 69 Cal.App.5th 688 (Myles).

In Myles, our colleagues in the First District Court of Appeal considered and

rejected the claim that parole hearing testimony should be considered per se involuntary

or that a defendant is entitled to use immunity for such testimony. (Myles, supra,

69 Cal.App.5th at p. 706.) In doing so, the court reasoned that parole hearing testimony

cannot be considered coerced or involuntary per se because a defendant is “not compelled

to file a [section 1172.6] petition, nor testify at [a] parole hearing, nor to participate in [a]

risk assessment interview”; and, “[h]aving chosen to . . . testify truthfully at the parole

hearing, it is not fundamentally unfair to admit that information during a resentencing

proceeding voluntarily initiated by defendant bearing on some of the same issues.”

(Myles, at p. 706.) The Court of Appeal further explained that the use immunity doctrine

does not apply because admission of such evidence at a hearing under section 1172.6

does not implicate a defendant’s Fifth Amendment rights, since a sentence modification

proceeding under the statute is an act of lenity and not a criminal trial. (Myles, at p. 706.)

Defendant contends the trial court erred by following Myles because Myles was

wrongly decided. However, we observe that numerous published decisions by the Court

of Appeal have since endorsed the conclusion reached in Myles. (Duran, supra, 84

Cal.App.5th at pp. 928-932; People v. Mitchell (2022) 81 Cal.App.5th 575, 588-590;

People v. Anderson (2022) 78 Cal.App.5th 81, 88-93.) In our view, the analysis

presented in these cases is sound, and defendant has not directed our attention to any

published decision that has reached a contrary conclusion. Thus, the weight of authority

15
clearly holds that the mere fact that defendant’s sworn statement was given in the context

of a parole hearing does not establish that the statement was involuntary or subject to use

immunity.

Defendant also argues that, even if not categorically inadmissible, the parole

hearing testimony in his specific case should be considered involuntary. We conclude

that the record is inadequate to support this conclusion.

Generally, when faced with a claim of involuntariness, a reviewing court

“ ‘ “ ‘must examine the uncontradicted facts surrounding the making of the statements to

determine independently whether the prosecution met its burden and proved that the

statements were voluntarily given without previous inducement, intimidation or

threat.’ ” ’ ” (People v. McWhorter (2009) 47 Cal.4th 318, 346.) In doing so, we

“ ‘ “ ‘ “accept the version of events which is most favorable to the People, to the extent

that it is supported by the record.” ’ ” ’ ” (Ibid.) However, defendant has not directed our

attention to anything in the record that would permit this court to conclude that his parole

hearing testimony was involuntary.

We observe that “parole cannot be conditioned on admission of guilt to a certain

version of the crime.” (Myles, supra, 69 Cal.App.5th at p. 706; § 5011, subd. (b); Cal.

Code Regs., tit. 15, § 2236.) While a parole hearing offers the candidate for parole the

right to speak on his or her own behalf, there is no requirement or compulsion that he or

she do so, or that he or she admit guilt to a certain version of the crime as a condition of a

parole grant. The right of allocution at a parole hearing cannot, standing alone, support a

conclusion that parole hearing testimony was compelled or involuntary.

16
 Defendant suggests that because he had previously been denied parole on

numerous prior occasions and the presiding commissioner asked defendant to provide his

“ ‘most recent statements concerning the commitment offense,’ ” we should infer that

defendant was induced to provide self-inculpatory testimony. However, the record in this

case does not contain any prior statements offered by defendant at the time of any prior

parole suitability proceedings. Absent a record containing prior parole suitability hearing

statements, it would be speculative for this court to conclude that defendant was

pressured to testify to a certain version of events simply because he had previously been

denied parole on prior occasions. If defendant offered no testimony regarding the

commitment offense in prior hearings or offered testimony that did not materially differ

from that offered in his 2012 parole suitability hearing, there would be no basis to

conclude he was pressured into testifying to any specific version of the crime.

We do not foreclose the possibility that case-specific circumstances may rise to the

level of coercion rendering parole hearing testimony involuntary. We hold only that the

record provided in this case is not sufficient to permit us to reach such a conclusion here.

Because we agree with the weight of authority that parole hearing testimony is not

categorically inadmissible and further conclude that, on this record, defendant has not

shown that his parole hearing testimony was involuntary or coerced, such that it should

have been excluded as inadmissible, we find no error warranting reversal on this basis.

Absent error, we have no occasion to consider the issue of prejudice.

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C. Substantial Evidence Supports the Trial Court’s Findings

Defendant’s second argument on appeal is that the trial court erred in finding he

was a major participant in the August 21, 1977 robbery who acted with reckless disregard

for human life. “A trial court’s factual findings at a section 1172.6, subdivision (d)(3),

hearing are reviewed for substantial evidence.” (People v. Henley (2022) 85 Cal.App.5th

1003, 1017; People v. Nieber (2022) 82 Cal.App.5th 458, 476; People v. Clements (2022)

75 Cal.App.5th 276, 298 [same]; People v. Guiffreda (2023) 87 Cal.App.5th 112, 125

[same].) “Under this standard, ‘ “we review the entire record in the light most favorable

to the judgment to determine whether it contains . . . evidence that is reasonable, credible,

and of solid value . . . from which a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt,” ’ ” and we “ ‘ “presum[e] in support of the judgment

the existence of every fact the trier could reasonably deduce from the evidence.” ’ ”

(Nieber, at p. 476.) We conclude substantial evidence in the record supports the trial

court’s findings in this case.

1. Substantial Evidence Supports a Finding Defendant Was a Major Participant

“To be a major participant, ‘a defendant’s personal involvement must be

substantial, greater than the actions of an ordinary aider and abettor to an ordinary

felony murder . . . .’ [Citation.] ‘The ultimate question pertaining to being a major

participant is “whether the defendant’s participation ‘in criminal activities known to carry

a grave risk of death’ [citation] was sufficiently significant to be considered ‘major.’ ” ’ ”

(People v. Rodriguez (2021) 66 Cal.App.5th 749, 768-769.) “[W]hat is required is that

petitioner was a major participant in a robbery known to carry a grave risk of death, not

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that he was a major participant in the murder.” (People v. Richardson (2022)

79 Cal.App.5th 1085, 1092.) Factors to consider 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? No one of these considerations is necessary, nor is any one

of them necessarily sufficient.’ ” (Rodriguez, at p. 768; People v. Banks (2015)

61 Cal.4th 788, 803.)

Here, the record contains testimony that Benard had previously described his

relationship with criminal associates as very collaborative in planning the methods used

to accomplish any given crime. Further, defendant acknowledged in his parole hearing

testimony that he had previously participated in at least eight to 10 robberies using a

similar plan prior to the August 21, 1977 robbery. This was substantial evidence upon

which the trial court could rely to conclude defendant had a direct role in planning the

August 21 robbery that led to the victim’s death.

The record also contains evidence to support at least one version of the murder in

which defendant supplied Benard with the very weapon used to kill the victim.

Specifically, Benard admitted on cross-examination that he had previously conveyed that

defendant initially held the victim at gunpoint with a shotgun and that the two men

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switched guns only after they had forced the victim to walk up a nearby hill. The

physical evidence supports this version of the murder, as defendant was arrested while

traveling in the victim’s vehicle but was in the possession of a box of shotgun shells

matching the type used to kill the victim. This was substantial evidence that could

support a reasonable inference that defendant initially wielded the shotgun during the

commission of the robbery and intended to keep the shotgun but decided to provide

Benard with the shotgun in order to facilitate the killing.

Benard directly testified that both he and defendant were armed during the

August 21, 1977 robbery, and defendant confirmed this fact in his parole hearing

testimony. Defendant also testified at his parole hearing that he had previously shot at a

victim during one prior robbery and testified that he had witnessed Benard shoot at a

different victim on a separate occasion. This was substantial evidence upon which the

trial court could rely to conclude defendant was aware that the August 21 robbery

involved the use of deadly weapons and that Benard was willing to inflict deadly force on

a victim.

Benard’s defense expert testified that Benard had previously provided a version of

events in which defendant actively assisted Benard in walking the defendant away from

the road to the location of the murder with the intent to tie up the victim. This version of

the murder is also supported by the testimony of the truck driver, who testified that he

stopped next to two vehicles parked along the side of the road on the morning of the

murder but could not locate any individuals standing near the vehicles, suggesting there

was indeed a period of time in which Benard, defendant, and the victim had all walked

20
away from the vehicles. This was substantial evidence upon which a trier of fact could

rely to conclude that defendant was not only present during the robbery but also present

at the location of the killing.

Atkinson testified that Benard confessed to a version of the murder in which

Benard expressly told defendant of his intent to kill the victim. In his parole hearing

testimony, defendant did not agree that Benard expressly stated an intent to kill the victim

but did acknowledge that Benard’s words at the time suggested the possibility. This was

substantial evidence upon which the trier of fact could rely to conclude that defendant

had actual knowledge of Benard’s intent to kill the victim.

Defendant’s cellmate testified that defendant claimed to have dissuaded Benard

from seeking out and killing the victim’s family after Benard had killed the victim, and a

victim from a prior robbery testified that Benard appeared to be the one taking orders

from defendant. Benard admitted on cross-examination that he had previously given a

version of events in which he and defendant discussed whether to leave after walking the

victim up the hillside but that defendant, instead, decided to give the shotgun to Benard

and leave Benard with the victim. Finally, during defendant’s parole hearing testimony,

defendant acknowledged that there may have been things he could have done to prevent

the murder, but he would have been more inclined to assist with the murder rather than

prevent it at the time.8 This was substantial evidence to support the conclusion that

8 Specifically, defendant was asked: “[I]f your crime partner said, ‘No, stay here

with me. Help me with [the murder].’ [W]ould you have stayed?” Defendant

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defendant was in a position to prevent the actual murder but, instead, acted in a manner to

facilitate rather than prevent the murder.

Given the above, we conclude there is substantial evidence in the record to show

that almost all of the relevant factors weigh in favor of finding defendant was a major

participant in the robbery of August 21, 1977 that resulted in the death of a victim. Even

without defendant’s parole testimony, the substantial evidence compellingly supports the

trial court’s determination that defendant was a major participant in the robbery.

2. Substantial Evidence Supports a Finding Defendant Acted with Reckless

Indifference to Human Life

“To determine whether a defendant acted with reckless indifference to human life,

we ‘look to whether a defendant has “ ‘knowingly engag[ed] in criminal activities known

to carry a grave risk of death.’ ” [Citation.]’ [Citation.] ‘The defendant must be aware

of and willingly involved in the violent manner in which a particular offense is

committed, demonstrating reckless indifference to the significant risk of death his or her

actions create.’ ” (People v. Saibu (2022) 81 Cal.App.5th 709, 739-740.) Factors to

consider include (1) the defendant’s knowledge and use of weapons, and the number of

weapons used in the commission of the crime; (2) the defendant’s physical presence at

the crime scene such that he or she had opportunities to limit the crime or aid the victim;

(3) the duration of the felony; (4) the defendant’s knowledge of his or her coparticipants’

responded: “Probably at that time, I think I would have . . . . Yeah, I would have to say I
probably would.”

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likelihood of killing; and (5) whether defendant made any efforts to minimize the risk of

violence. (People v. Clark (2016) 63 Cal.4th 522, 618-622 (Clark); Saibu, at p. 740.)

There is “significant overlap” between the element of being a major participant and

having reckless indifference to human life (In re Bennett (2018) 26 Cal.App.5th 1002,

1015 (Bennett)) and, as we explain, much of the same evidence leads us to conclude that

the trial court’s finding that defendant acted with reckless indifference to human life is

also supported by substantial evidence.

As we have already detailed, there was substantial evidence in the record to show:

(1) defendant knew Benard was armed with a firearm at the time of the August 21, 1977

robbery; (2) defendant may have deliberately given Benard the shotgun in an effort to

facilitate the murder; and (3) defendant was present during the robbery but also assisted

Benard with taking the victim to the location of the murder. Thus, substantial evidence

supports a conclusion that the first two Clark factors weigh in favor of finding defendant

acted with reckless indifference.

We have also already detailed that there was substantial evidence in the record to

show: (1) defendant had personally witnessed Benard shoot directly at a robbery victim

on at least one prior occasion; (2) Benard expressly or impliedly told defendant of his

intent to kill the victim; (3) defendant could have been successful in dissuading Benard

from carrying out the killing; and (4) defendant assisted Benard in guiding the victim

away from the public road and provided Benard with the shotgun used to kill the victim,

instead of seeking to prevent the murder. A trier of fact could reasonably deduce from

this evidence that defendant had knowledge that Benard was likely going to kill the

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victim and took efforts to facilitate the killing instead of minimizing the risk of violence

in support of the last two Clark factors.

We acknowledge that there was little evidence in the record to suggest the exact

duration of the robbery or the length of time between the robbery and the killing,

rendering the third Clark factor neutral. However, because we conclude that substantial

evidence would support a finding that the majority of Clark factors weigh in favor of

finding defendant acted with reckless indifference to human life, we find no error in the

trial court’s finding on this issue. Again, even without defendant’s parole hearing

testimony, substantial evidence supports the trial court’s determination that defendant

acted with reckless indifference to human life.

D. The Record Does Not Suggest the Trial Court Failed To Consider Evidence of a

Relevant Factor

Finally, defendant argues in supplemental briefing that reversal and remand is

required because the trial court failed to consider defendant’s youthfulness as a relevant

factor in determining whether defendant was a major participant who acted with reckless

disregard. We agree with defendant that under In re Moore (2021) 68 Cal.App.5th 434, a

defendant’s “ ‘youthfulness’ ” or maturity is one of the many factors that the trial court

should consider in making a finding that defendant was a major participant who acted

with reckless indifference to human life. (Id. at pp. 453-454.) However, we conclude

that the record in this case is inadequate to show that the trial court failed to consider this

factor.

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 “As a general rule[,] ‘ “a trial court is presumed to have been aware of and [to

have] followed the applicable law.” ’ ” (People v. Bryant, Smith and Wheeler (2014)

60 Cal.4th 335, 398.) It is true that in this case, the trial court’s written order does not

expressly mention defendant’s youth. However, as our Supreme Court has repeatedly

explained, “[t]he trial court’s mere failure to mention expressly all evidence presented in

mitigation . . . does not mean the trial court ignored or overlooked such evidence, but

simply indicates that the court did not consider such evidence to have appreciable

mitigating weight.” (People v. Samayoa (1997) 15 Cal.4th 795, 860; People v. Tully

(2012) 54 Cal.4th 952, 1063-1064 [same].) This reasoning is particularly applicable here,

where defendant’s age is disclosed in the record, but neither party raised youth as a

particularly relevant factor in their arguments before the trial court. Importantly, we note

that defendant’s age was contained in the psychological reports found in the record,

which the trial court considered in assessing defendant’s mental capacity.

Defendant urges us to follow the approach taken in People v. Jones (2022)

86 Cal.App.5th 1076 (Jones), arguing that his case is “virtually identical” to the

circumstances presented in Jones. In Jones, the Court of Appeal reversed the denial of a

resentencing petition after the defendant expressly argued before the trial court that

youthfulness should be considered a relevant factor in making any factual findings, but

the trial court failed to mention the defendant’s age or maturity level in providing a

detailed explanation of its reasons for denying the petition. (Id. at p. 1091.) The Court of

Appeal concluded that because “Moore—the case holding squarely that a defendant’s

youth is one relevant factor—was not issued until months” after the trial court’s order

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denying the defendant’s petition, it would be “in the interest of justice” for “the trial court

to have a meaningful opportunity to consider [the defendant’s] youth as part of the

totality of the circumstances.” (Id. at pp. 1092-1093.)

However, even Jones acknowledges that under the prevailing rule, a reviewing

court should presume the trial court followed the law and duly considered any evidence

presented to it. (Jones, supra, 86 Cal.App.5th at p. 1092.) And in our view, the

procedural history of this case does not trigger the exception recognized in Jones. The

evidentiary hearing and order denying defendant’s petition in this case both occurred in

January 2022. By this time, People v. Harris (2021) 60 Cal.App.5th 939—one of the

first published authorities to suggest youthfulness as a relevant factor—had been

published authority for nearly a year, and Moore—the case squarely holding that a

defendant’s youth is a relevant factor—had been published authority for months. Thus,

unlike in Jones, there is no basis to assume that the parties or the trial court in this case

were unaware of the relevant law at the time defendant’s resentencing petition was heard

and denied.

Because the law on the issue was reasonably established at the time of the

evidentiary hearing and order on defendant’s petition for resentencing, we presume the

trial court was aware of and followed the applicable law, absent some indication in the

record to the contrary. A silent record is not adequate for this court to conclude the trial

court ignored evidence or misapplied the relevant law, and we decline to find error on

this basis. In the absence of error, we need not consider the issue of prejudice.

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 IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

RAMIREZ
P. J.

MENETREZ
J.

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