People v. Underwood

Filed 1/30/24
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A162356
v.
O’NEAL UNDERWOOD, (Contra Costa County
Super. Ct. No. 5-034681-7)
Defendant and Appellant.

O’Neal Underwood appeals from an order denying his petition for
resentencing under former Penal Code section 1170.95 (now § 1172.6).1
In the first hour of New Year’s Day, 1987, Underwood and an
accomplice mugged a pedestrian on Cutting Boulevard in Richmond. During
the mugging, Underwood’s accomplice stabbed the victim, who died from his
wounds. A jury found Underwood guilty of first degree murder and robbery,
and he was sentenced to 25 years to life in prison.
Decades after Underwood was convicted, the Legislature amended the
murder statutes so that felony murder liability for persons who were not
actual killers is now limited to (1) “those who, ‘with the intent to kill,’ aid or
abet ‘the actual killer in the commission of murder in the first degree’ ” and

1 Undesignated statutory references are to the Penal Code. Underwood
filed his petition under a version of section 1170.95 that was subsequently
amended and then renumbered as section 1172.6. (See People v. Guiffreda
(2023) 87 Cal.App.5th 112, 117, fn. 1 (Guiffreda).)

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(2) those who satisfy the felony murder special circumstance, that is, they
“were ‘major participant[s] in the underlying felony and acted with reckless
indifference to human life.’ ”2 (People v. Strong (2022) 13 Cal.5th 698, 708
(Strong), quoting § 189, subd. (e)(2) and (3); see § 188, subd. (a)(3).) The
Legislature also provided a resentencing procedure for those who had been
convicted of murder under the former law to seek retroactive relief under the
new law. (Strong, supra, 13 Cal.5th at p. 708; see § 1172.6.)
Underwood petitioned for resentencing under the new law. After an
evidentiary hearing, the trial court denied the petition, finding Underwood
was ineligible for relief because (1) he aided and abetted murder with intent
to kill and (2) he was a major participant in the underlying robbery and acted
with reckless indifference to human life.
On appeal, Underwood contends the trial court applied the wrong
standard of proof and the prosecution’s evidence does not prove he is guilty of
first degree murder under current law. He also argues his attendance at the
evidentiary hearing by speakerphone and without a means of confidentially
communicating with his counsel violated his constitutional and statutory
rights.
We agree with Underwood that the prosecution failed to prove he is
guilty of first degree murder under current law because no substantial
evidence supports a finding that he intended to kill or acted with reckless

2 When a special circumstance is found under section 190.2, the penalty

is death or life in prison without the possibility of parole. (§ 190.2, subd. (a).)
Thus, felony murder liability is now limited to murders that are death
eligible. (People v. Wilkins (2021) 68 Cal.App.5th 153, 165.) In other words,
a defendant can only be held liable for first degree felony murder when the
evidence establishes the defendant’s own “actions and mental state are
sufficiently egregious to potentially warrant [the death] penalty.” (Strong,
supra, 13 Cal.5th at p. 704.)

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indifference for human life. Accordingly, we reverse and remand with
instructions to vacate the murder conviction and to resentence Underwood in
accordance with section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
Underwood’s Murder Conviction
In 1987, the Contra Costa County District Attorney filed an
information charging Underwood with the murder of Albert Vinson (§ 187;
count 1) and robbery of Vinson (§ 211; count 2) and alleging he personally
used a deadly weapon, a knife, in the commission of both offenses (§ 12022,
subd. (b)).
In 1988, a jury found Underwood guilty of first degree murder and
robbery but found the deadly weapon allegation not true. Underwood filed a
successful petition for writ of habeas corpus based on instructional error, and
he was retried in 1992. Again, a jury found him guilty of first degree murder
and robbery. The trial court sentenced him to 25 years to life in prison for
the murder and three years for the robbery, with the three-year term stayed
pursuant to section 654. In 1994, this court affirmed the judgment. (People
v. Underwood (Mar. 25, 1994, A060027) [nonpub. opn.].)
1992 Trial Evidence
At the second trial in 1992, the prosecution presented, among other
evidence, testimony from three eyewitnesses to the robbery and murder,
evidence of the victim’s injuries, and Underwood’s statements to the police.
We describe the evidence in some detail because the trial court relied on the
transcript of this trial at the resentencing hearing.

3
 Mary French3
On New Year’s Eve in 1986, Mary French attended a late evening
service at Mount Olive Missionary Baptist Church on Cutting Boulevard in
Richmond. Shortly after midnight on January 1, 1987, she was in the church
parking lot. Another church member, John Marion, was going to give her a
ride home, and French was sitting in Marion’s truck with his daughter
waiting for him.
While sitting in the truck, French noticed something unusual across
the street. A man was walking, and two young men approached him from
behind and “pushed him over” in the shrubbery. French described the two
young men as Black, one lighter-skinned and the other darker-skinned.4 The
victim was on the ground, and the two young men “were straddling” him,
with “one on each side.” One of the young men said to the other, “Get that
wallet.”5
French testified the young men “were over the victim” with their hands
“going in a motion up and down.” She demonstrated with her right hand in a
fist and agreed with the prosecutor that it was “like in a stabbing motion.”

3 At the second trial, the parties agreed that French’s testimony from

the preliminary hearing and first trial could be introduced in lieu of live
testimony, and the testimony was read to the jury.
4 As will be seen, Underwood admitted to the police that he was present

at the robbery and murder, but he said it was his friend Fermin Williams
who stabbed the victim. Defendant’s cousin—who saw defendant and
Williams together just before midnight on New Year’s Eve, 1986—testified
that Williams was “light skinned” and lighter skinned than defendant.
Another witness also testified Williams was noticeably lighter skinned than
defendant.
5 French testified in direct examination that the lighter-skinned young

men said, “Get that wallet,” but in cross-examination, she testified, “You
couldn’t tell who it was from the voices.”

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Both assailants made the “same motion,” which French also described as like
“hitting.” She heard one of them say, “ ‘N***r, give me your wallet, or else.
Give me this money, or I’ll kill you.’ ”
John Marion and another church member, Willie McNeal, came out to
the church parking lot, and French told them, “[D]ial 911, somebody is either
getting mugged or murdered.” The assailants were “still tussling” with the
victim when Marion hollered, “Hey, what’s going on over there.” The two
young men then walked away from the victim. French saw that the lighter-
skinned man had a wallet in his hand.
French estimated about five or six minutes, “[o]r maybe less,” passed
from the time she first noticed the men across the street to when Marion and
McNeal came out of the church. At trial, she identified Underwood as the
darker-skinned assailant. At the earlier preliminary hearing, however, she
could not identify Underwood as one of the assailants.
John Marion
John Marion was a church deacon. After the New Year’s Eve service,
Marion’s 15-year-old daughter and his friend, French, went to his truck and
waited, while Marion and Willie McNeal, another deacon, secured the church.
When Marion went out to his truck, either French or his daughter
directed his attention across the street and, at the same time, he heard a
commotion. At first, Marion “thought it was . . . just a horseplaying thing.”
Then Marion heard a threat; he testified it was something like, “N***r, you
better have some money or I’m going to shoot you, too.”6 After Marion heard

6 On January 1, 1987, however, Marion told the police he heard one of

the men say, “N***r, if you don’t have any money, I’m going to stab you.” The
officer who interviewed him testified that Marion did not mention anything
about “shooting” on the day of the murder.

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the threat, he yelled, “Hey, what is going on over there,” or words to that
effect, and the two young men ran away. They left together, side by side.
Marion described one of the assailants as Black with dark skin and the
other as “light brown.” The darker-skinned assailant “was standing at all
times,” and Marion saw him make “like a stomping motion,” although Marion
could not say he stomped on the victim. Marion saw the lighter-skinned
assailant in a kneeling or squatting position “to the victim’s right side,” but
Marion could not remember what he was doing with his hands.7 Marion
thought the darker-skinned man made the threat, but he could not remember
exactly. Everything happened “in the blink of an eye.”
Willie McNeal
Willie McNeal and Marion secured the building after the New Year’s
Eve service. When McNeal arrived in the parking lot, Marion pointed out
three men across the street. According to McNeal, the men were standing,
and then it seemed like all three “kind of stumbled down [to the ground] at
one time.” They were “struggling.” McNeal watched the three men for about
a minute or minute and a half before two of them got up and walked away.
McNeal did not hear the men say anything.
Vinson’s Autopsy
The victim, Albert Vinson, was taken from the scene by ambulance and
died on the way to the hospital. The forensic pathologist who autopsied
Vinson’s body found multiple cuts or incisions on the left hand, which were
“very characteristic of defensive type wounds.” He also noted abrasion on the
left hand, and abrasion in the region of the right hip. Vinson suffered a

7 The officer who interviewed Marion the day of the robbery and

murder testified that Marion “indicated he observed both of them striking . . .
the victim, and appeared that they were going through his clothing.”

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three-inch stab wound to the right thigh, a two to two-and-a-half inch stab
wound to the right calf, and another stab wound to the left back around the
shoulder blade. The cause of death was the stab wound to the back, which
resulted in an accumulation of blood in the left chest cavity and some collapse
of the left lung. The pathologist estimated the knife would have been at least
three-and-a-half inches long and about an inch or two wide. He did not note
any bruising in the head area.
Underwood’s Statements to the Police
About two weeks after the robbery and murder, Underwood turned
himself in, and Sergeant Michael Shipp interviewed him. Underwood told
Shipp that on New Year’s Eve, he was waiting at a bus stop for his girlfriend
when Fermin Williams came by. He referred to Williams as his “partner.”
Williams said, “Let’s go kick it,” and Underwood thought this meant they
would “go get high.”
Underwood told Shipp he did not plan to rob the victim and Williams
“did the stabbing.” He told Shipp that he and Williams walked past the
victim on Cutting and Williams said he was going to rob him. Underwood
“tried to get [Williams] not to rob him. But [Williams] went back and
approached the victim.” Underwood told Shipp that, during the robbery, he
was standing on the victim’s left side and Williams was on the victim’s right.
Underwood claimed he tried to help the victim; Williams said something like,
“Man, I’m going to kill this mother fucker, I’m gonna kill him,” and, at that
point, Underwood “reached down to stop [Williams] and stumbled.”
Underwood reported that, when he stumbled, he fell on his knees and “when
he looked up[,] . . . he had blood on his hands.”
Underwood said Williams gave him the victim’s wallet and told him to
go through it. Underwood “indicated that it was a surprise to him when he

7
saw the knife in [Williams]’s hands. That as they were walking[, Williams]
had indicated that he was going to rob the guy. And then when he was being
stabbed, that’s when [Underwood] realized that [Williams] had a knife in his
hand.”
2016 Parole Hearing
At his parole consideration hearing in November 2016, Underwood was
asked to explain his role in the murder. Underwood testified he ran into
Williams, they had a few drinks, and he was going to take Williams to his
motel room where he was living. He continued, “[W]e decided we wanted to
make a few dollars, saw Mr. [Vinson]. . . . [W]e let him pass. We went back
and got him, pushed him down in the bushes. A struggle incurred, and I took
his wallet. Next thing I know, I had blood on my hands, and we fled.”
Underwood described the crime as “just a random act.” He testified he had
not committed a robbery with Williams before this incident, and he and
Williams did not talk about what they were going to do, such as what their
roles would be, before they robbed Vinson. He maintained that he did not
know Williams had a knife and that he did not see Williams stab Vinson. In
his risk assessment interview, Underwood said he had no intention of
harming the victim and he would not have participated had he known what
Williams was willing to do.
Underwood estimated 20 minutes passed from the time he and
Williams first saw the victim to when they fled. They were “struggling [with
the victim] about five or ten minutes.”
Petition for Resentencing
Underwood filed a petition for resentencing under former section
1170.95. The trial court issued an order to show cause and set the matter for
an evidentiary hearing. The parties submitted briefs, and the prosecution

8
provided the transcripts from the 1988 and 1992 trials and the parole hearing
transcript from November 2016.
At the evidentiary hearing, the parties relied on the submitted
documents and did not present any new testimony or evidence. The trial
court heard argument and took the matter under submission. Two days
later, the trial court issued an order denying the petition for resentencing.
DISCUSSION
A. Burden of Proof at the Evidentiary Hearing
Underwood contends the trial court committed reversible error by
failing to apply the beyond-a-reasonable-doubt standard in ruling on his
resentencing petition.
When the trial court ruled on Underwood’s petition, there was a split of
authority on how a court was to decide a petition for resentencing at the
evidentiary hearing stage. At that time, the statute governing petitions for
resentencing provided that, if a petitioner made “a prima facie showing that
he or she is entitled to relief,” the petitioner’s murder conviction was to be
vacated unless the prosecution proved, “beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Former § 1170.95, subds. (c), (d)(3),
as added by Stats. 2018, ch. 1015, § 4.) Some appellate courts had
interpreted the statute to mean a trial court deciding a petition at the
evidentiary hearing stage was to act as a “quasi-appellate court,” that is, the
court would review the record to determine whether there was substantial
evidence to support a finding that the petitioner was guilty of murder under
current law; other appellate courts had held the trial court was to act as an
independent factfinder, meaning the court would assess the evidence to
decide whether it was convinced the defendant was guilty of murder beyond a
reasonable doubt under current law. (People v. Clements (2022) 75

9
Cal.App.5th 276, 293–295 (Clements) [describing the split of authority and
citing cases].)
Recognizing this split, the trial court in this case sided with the
authority holding that the resentencing procedure called for substantial
evidence review only, as the prosecution had urged. It is now without dispute
that the trial court was incorrect on this point. After the trial court issued its
decision, the Legislature amended the statute governing petitions for
resentencing, resolving the split by “requiring the trial court, acting as an
independent factfinder, to determine beyond a reasonable doubt whether
defendant is guilty of murder under a valid theory of murder.” (People v.
Garrison (2021) 73 Cal.App.5th 735, 745; see Stats. 2021, ch. 551, § 1 [the
amendments “[r]eaffirm[] that the proper burden of proof at a resentencing
hearing under this section is proof beyond a reasonable doubt”].)8
This does not end our inquiry, however, because the trial court here
purported to find in the alternative that Underwood was guilty of first degree
murder under current law beyond a reasonable doubt. (See, e.g., Clements,
supra, 75 Cal.App.5th at pp. 297–298 [where the trial court incorrectly
applied substantial evidence review in deciding a resentencing petition but
also found, in the alternative, that the petitioner “was in fact guilty” of

8 The operative statute now provides, “At the hearing to determine

whether the petitioner is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019. . . . 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), italics added.)

10
murder, the appellate court did not reverse based on the initial error; it
reviewed the alternative finding].)
In its written decision, the trial court discussed the evidence and found
the prosecution proved “beyond a reasonable doubt” that Underwood was
guilty of first degree murder because he “had the intent to kill and actively
assisted the killer in the commission of the murder” and because he “is guilty
as a major participant who acted with reckless indifference.”
Underwood argues we should not rely on this alternative finding
because the trial court did not truly act as an independent factfinder. In
support of this argument, Underwood points out that the trial court
sometimes referred to inferences that “could” be made by a reasonable trier of
fact (rather than inferences the court actually made), and this sounds like the
reasoning of a quasi-appellate court engaged in substantial evidence review.
But the trial court also found, “the evidence proves beyond a reasonable doubt
that defendant with intent to kill, aided and abetted Williams in the murder
of Vinson” (italics added), and it wrote, “the court finds beyond a reasonable
doubt that defendant is guilty as major participant who acted with reckless
indifference.” (Italics added.)
We take the trial court at its word that, acting as an independent
factfinder, it reached the conclusion that Underwood is guilty of first degree
murder under a viable theory of murder liability. We do not read the trial
court’s references to what a reasonable trier of fact could infer as
demonstrating the court was improperly engaged in substantial evidence
review. Instead, we understand them as the court explaining its reasons for
making its own findings. Underwood’s claim that the court applied the
wrong standard of proof in its alternative finding is therefore unavailing.

11
B. Sufficiency of the Evidence
We next turn to the question of the sufficiency of the evidence to
support the trial court’s denial of the petition to resentence. It is here that
we conclude the trial court erred. There is no dispute that Underwood was
not the actual killer. Thus, the trial court could find Underwood guilty of
first degree felony murder based on the robbery of Vinson only if the
prosecution proved beyond a reasonable doubt either that he, “with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited, requested,
or assisted the actual killer in the commission of murder in the first degree”
(§ 189(e)(2)) or that he “was a major participant in the underlying felony and
acted with reckless indifference to human life” ((§ 189(e)(3)).
Underwood contends the prosecution failed to show he intended to kill
or acted with reckless indifference to human life. We agree.
1. Standard of Review
Underwood asks us to review the evidence independently rather than
for substantial evidence. Underwood argues we need not defer to the trial
court’s factual findings, first, because the trial court failed to act as an
independent fact finder and, second, because the court’s findings are based on
a cold record, not live testimony and associated credibility determinations.
As we have just described, we have already considered Underwood’s first
reason and found it lacking.
As to Underwood’s second reason, his argument is based on People v.
Vivar (2021) 11 Cal.5th 510. However, appellate courts that have considered
this argument have uniformly rejected it, and we agree with their analysis.
(See, e.g., People v. Njoku (2023) 95 Cal.App.5th 27, 43; People v. Werntz
(2023) 90 Cal.App.5th 1093, 1110, review granted August 9, 2023, S280278;
People v. Oliver (2023) 90 Cal.App.5th 466, 480; People v. Sifuentes (2022) 83

12
Cal.App.5th 217, 232–233; People v. Mitchell (2022) 81 Cal.App.5th 575, 591;
Clements, supra, 75 Cal.App.5th at p. 301.) For example, Division Four of
our court distinguished Vivar, explaining the trial court’s decision on review
in that case involved predominantly legal questions, whereas a trial court’s
decision denying a petition under section 1172.6 following an evidentiary
hearing is predominantly a question of fact. (Sifuentes, at pp. 232–233.)
Where the trial court’s decision on review is predominantly a question of fact,
the appellate court reviews the record for substantial evidence. (Id. at p. 233,
citing People v. Perez (2018) 4 Cal.5th 1055, 1066.)
In our case, whether Underwood aided and abetted his confederate
with an intent to kill or with reckless indifference to human life are
predominantly questions of fact. Accordingly, we review the trial court’s
factual findings for substantial evidence. (Clements, supra, 75 Cal.App.5th at
p. 301.) “We ‘ “examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a reasonable
doubt.” ’ ” (Id. at p. 298.) We review the whole record, “not just the evidence
favorable to the respondent[,] to determine if the evidence supporting the
verdict is substantial in light of other facts.” (People v. Holt (1997) 15 Cal.4th
619, 667.)
2. Intent to Kill
The trial court found “defendant had the intent to kill and actively
assisted the killer in the commission of the murder.”
In reaching its finding, the court relied on evidence that Williams
threatened the victim, “give me the wallet or I’ll kill you.” The court cited
this threat as showing that Underwood therefore “knew Williams was going

13
to use a knife to kill the victim.” (Italics added.) We do not believe this is a
reasonable inference in light of other facts. Here, it is undisputed that
Underwood and Williams intended to rob Vinson, and robbery, by definition,
involves taking personal property “by means of force or fear.” (§ 211.) As
Underwood argues, “orders to hand over property under threats are inherent
in a robbery and do not show that all participants know the perpetrator
intends to kill.” (Cf. In re Joe R. (1980) 27 Cal.3d 496, 507–508 [a defendant’s
conditional threats to a robbery victim to follow a confederate’s order “or ‘he’ll
kill you’ ” were found to be “directed toward safe completion of the underlying
felony,” and not “intentional and malicious acts, in addition to the underlying
robbery”].)
In this case, there is no evidence that Williams and Underwood had
any motive other than to obtain money when they targeted Vinson and
pushed him off the sidewalk; nothing suggests either of them knew the victim
or held any animus toward him. Nor is there any evidence that Underwood
knew Williams had a weapon when Underwood decided to rob the victim.
Under these circumstances, it is not reasonable to infer that Underwood
would know his confederate actually intended to kill their robbery victim—
and not merely steal from him—upon hearing a conditional threat such as
“give me the wallet or I’ll kill you.” (Italics added.)
The trial court also asserted, “According to Underwood’s own
admission, he knew Williams’s intent was to kill the victim when he
continued to hit him thereby further assisting to immobilize the victim.” But
the court cited no record evidence for this assertion, and no evidence supports
a finding that Underwood continued to hit the victim after becoming aware
that Williams intended to kill him. The trial testimony shows Underwood
reportedly told Sergeant Shipp that Williams said something like, “Man, I’m

14
going to kill this mother fucker, I’m gonna kill him,” and Underwood claimed
he tried to stop Williams. The trial court did not believe that Underwood
tried to stop Williams, a credibility determination it was, of course, free to
make. However, this does not mean the court could simply assume that,
after hearing Williams say this, Underwood “continued to hit” the victim
when no evidence suggests that Underwood continued to hit the victim after
such a threat was made.9
Attempting to justify the trial court’s finding, the Attorney General
asserts that, after Underwood heard Williams’s threat to kill Vinson,
Underwood “had time to process such a threat and act.” He cites
Underwood’s estimate at his parole hearing 30 years later that the struggle
with the victim lasted “about five or ten minutes.” But Underwood did not
say he struggled with the victim after Williams said he was going to kill the
victim. The Attorney General also notes that “William used the knife for
more than one quick stab” as the autopsy showed “three stab wounds, in
addition to multiple defensive cuts to Vinson’s fingers.” This, he argues,
shows “[t]here was plenty of time to process and act, and certainly enough
time to form an intent to aid and abet Williams in the murder.” While it is
possible to form an intent to kill very quickly, we fail to see how it reasonably
may be inferred from the prosecution’s evidence that Underwood himself

9 Eyewitnesses French and Marion heard only a conditional threat,

which, as we have discussed, would not have put Underwood on notice that
Williams actually intended to kill the victim. Further, there is scant evidence
from which it reasonably could be inferred that Underwood “continued to hit”
the victim at any time. The pathologist noticed no evidence of bruising
around the victim’s head and neck, and, other than the stab wounds, the only
noted injuries on the victim’s body were abrasions on his left hand and right
hip. Thus, no physical evidence supports a finding the victim was repeatedly
hit by Underwood in addition to being stabbed by Williams.

15
formed an intent to kill in the brief span of time between when he may have
realized his confederate might kill (and not merely steal from) the victim and
when his confederate fatally stabbed the victim. In other words, even
assuming it could be inferred that Underwood at some point realized
Williams intended to kill, the circumstances do not support a reasonable
inference that he shared that murderous intent. (See In re Lopez (2023) 14
Cal.5th 562, 585 [“ ‘the aider and abettor must know and share the
murderous intent of the actual perpetrator’ ”].)
Nor does any other evidence cited by the trial court or the Attorney
General show Underwood harbored an intent to kill. The trial court noted
that Underwood and Williams were together prior to, during, and after the
robbery and murder and found that their “actions were coordinated when the
encountered Vinson on Cutting Boulevard.” Their coordination certainly
demonstrates a shared intent to rob Vinson, but it does not support a
reasonable inference that Underwood intended to kill him.
In short, we find no evidence that is reasonable, credible, and of solid
value supporting a finding that Underwood, with intent to kill, assisted
Williams in the commission of murder in the first degree.
3. Reckless Indifference to Human Life
The trial court also found Underwood guilty of first degree murder
under section 189(e)(3), which permits felony murder liability when “[t]he
person was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section
190.2.” This, too, was error.
a. Legal Principles
The phrases “major participant” and “reckless indifference to human
life” are taken “from United States Supreme Court precedent concerning the

16
permissible scope of capital punishment for felony murder.” (Strong, supra,
13 Cal.5th at p. 705.) Consequently, our interpretation of the phrases is
guided by case law “delineat[ing] the limits on capital punishment for felony
murder under the Eighth Amendment of the federal Constitution.” (Ibid.)
Our high court has explained 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.’ ” ’ ” (People v. Banks (2015) 61
Cal.4th 788, 807, some italics added.) “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 constitutional
minimum.” (Id. at p. 808.) Planning and participating in an armed robbery,
“without more, does not establish reckless indifference to human life.” (In re
Scoggins (2020) 9 Cal.5th 667, 682 (Scoggins).) We have further observed
that “the ‘reckless indifference to life’ necessary for death penalty eligibility
[and, by extension, felony murder liability under section 189(e)(3),] requires
subjective awareness of a higher degree of risk than the ‘conscious disregard
for human life’ required for conviction of second degree murder based on
implied malice.” (People v. Johnson (2016) 243 Cal.App.4th 1247, 1285.)
“Examples [of reckless indifference to human life] include ‘the person
who tortures another not caring whether the victim lives or dies, or the
robber who shoots someone in the course of the robbery, utterly indifferent to
the fact that the desire to rob may have the unintended consequence of
killing the victim as well as taking the victim’s property.’ [Citation.]
Reckless indifference ‘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.’ ” (Scoggins, supra, 9 Cal.5th
at pp. 676–677.)

17
 Determining whether a defendant had the mental state required to find
reckless indifference to human life depends on “the totality of the
circumstances.” (Scoggins, supra, 9 Cal.5th at p. 677.) Relevant
considerations include (1) “use of or awareness of the presence of a weapon or
weapons,” (2) “physical presence at the scene and opportunity to restrain
confederates or aid victims,” (3) “the duration of the crime,” (4) “knowledge of
any threat the confederates might represent,” and (5) “efforts taken to
minimize risks.” (Strong, supra, 13 Cal.5th at p. 706, citing People v. Clark
(2016) 63 Cal.4th 522, 618-623 (Clark).)
b. Application
Viewing the record in the light most favorable to the trial court’s order
and considering the totality of the circumstances, we conclude substantial
evidence does not support a finding that Underwood acted with reckless
indifference to human life such that his own “actions and mental state are
sufficiently egregious to potentially warrant [the death] penalty.” (Strong,
supra, 13 Cal.5th at p. 704; see fn. 2, above.)
First, no evidence shows Underwood knew Williams had a knife when
Underwood decided to rob a pedestrian with him, and Underwood himself
was unarmed. (See Guiffreda, supra, 87 Cal.App.5th at p. 126 [where the
defendant did not use a weapon and there was no “evidence that she knew a
weapon of any kind would be used during the robbery,” “this factor weighs
heavily in favor of finding [the defendant] did not act with reckless
indifference”]; Scoggins, supra, 9 Cal.5th at p. 677 [consideration of weapon
use did not weigh in favor of finding reckless indifference where the
defendant “did not use a gun, nor did he know that a gun would be used
during the felony”].)

18
 Second, the duration of the interaction between the perpetrators and
the victim was brief; only a few minutes passed from the time Underwood
and Williams approached Vinson to when they fled. (See Guiffreda, supra, 87
Cal.App.5th at pp. 127–128 [where the entire interaction between the
perpetrators and the victims lasted less than ten minutes and the robbery
appeared to be a “spontaneous crime of opportunity,” the duration factor
weighed against finding that the defendant exhibited reckless indifference to
human life]; Scoggins, supra, 9 Cal.5th at p. 681 [an interaction lasting
“three to five minutes” did not weigh in favor of finding reckless indifference]
People v. Keel (2022) 84 Cal.App.5th 546, 560–561 (Keel) [where the events
unfolded rapidly and the evidence suggested the defendant’s confederate shot
the victim in a somewhat impulsive response to resistance, the duration
factor “significantly reduces [the defendant]’s culpability”].)10
Third, nothing suggests Underwood knew Williams had a propensity
for violence or was likely to use lethal force before the robbery. There was no
evidence, for example, that Underwood “knew [Williams] had any violent past
convictions or had committed violent crimes.” (Guiffreda, supra, 87

10 The facts of Guiffreda, Scoggins, and Keel contrast with

circumstances in which the duration of the interaction between the
perpetrators of the felony and the victims would tend to show reckless
indifference. For example, where the defendants “kidnapped and guarded
the victims at gunpoint while their father decided whether to kill the
victims,” these facts may suggest reckless indifference to human life.
(Scoggins, supra, 9 Cal.5th at p. 680, describing the facts of Tison v. Arizona
(1987) 481 U.S. 137 (Tison).) Our high court has observed, “Where a victim is
held at gunpoint, kidnapped, or otherwise restrained in the presence of
perpetrators for prolonged periods, ‘there is a greater window of opportunity
for violence’ [citation], possibly culminating in murder.” (Clark, supra, 63
Cal.4th at p. 620, italics added.) The brief time during which Underwood and
Williams struggled with the victim does not constitute a prolonged period in
this analysis.

19
Cal.App.5th at p. 128.) Thus, the fact that he undertook a robbery with
Williams does not show Underwood subjectively appreciated that his own
participation in the robbery was “likely to result in the taking of innocent
life.” (Cf. Tison, supra, 481 U.S. at pp. 151–152, italics added [where, among
other things, the defendants supplied firearms to two convicted murderers,
the facts “support[ed] a finding that they both subjectively appreciated that
their acts were likely to result in the taking of innocent life”].)
Fourth, it appears Underwood intended only to overpower the victim
and take his wallet, not to participate in an armed robbery. “ ‘[T]he need to
minimize the risk of violence when planning an unarmed [robbery] is less
pressing than the need to minimize the risk of violence when planning an
armed robbery.’ ” (Scoggins, supra, 9 Cal.5th at p. 683 [where the record
contained no “ ‘indication the defendant planned a beating involving the use
of weapons,’ ” that fact was “ ‘by itself, a significant step towards minimizing
the likelihood that the plan would result in a “grave risk of death” ’ ”].)
All of these considerations militate against a finding that Underwood
acted with reckless indifference to human life.
Balanced against these considerations is Underwood’s presence at the
murder. This fact bears on his culpability but is not dispositive. In Keel,
supra, 84 Cal.App.5th at pages 553–554, for example, the defendant and a
confederate robbed a victim at gunpoint, and the confederate shot the victim
in defendant’s presence. The Court of Appeal found this to be a “neutral”
factor in the analysis of whether substantial evidence supported a finding of
reckless indifference to human life: “On the one hand, [the defendant] was
present at the scene of the shooting, which allowed him to observe [his
confederate]’s actions and ostensibly gave him at least some chance to act as
a moderating force,” but, on the other hand, “ ‘[t]he decision to rob was made

20
quickly,’ and [the confederate]’s decision to shoot was apparently made even
more quickly in response to [the victim]’s unexpected resistance and efforts to
flee.” (Id. at p. 560.) Under these circumstances, the court was “not
persuaded [the defendant] had a meaningful opportunity to restrain [his
confederate] or intervene before” his confederate shot the victim. (Ibid.)
Similarly, in People v. Ramirez (2021) 71 Cal.App.5th 970, 979, (Ramirez) the
defendant was present during an attempted carjacking in which his
accomplice shot and killed the victim. The reviewing court, however, found
no substantial evidence of reckless indifference to human life where the
defendant did not have “a meaningful opportunity to intervene” and “the
rapid pace of the crime d[id] not support a finding of reckless indifference.”
(Id. at p. 989.)
In contrast to Keel and Ramirez, Tison illustrates when a defendant’s
presence at the scene of a killing would support a finding of reckless
indifference to human life. “The defendants in Tison were physically present
during the entire sequence of events that resulted in the victims’ deaths.
(Tison, supra, 481 U.S. at p. 158.) The Tison brothers flagged down the car
containing the victims, kidnapped and robbed them, guarded them while
their father decided what to do, and eventually watched their father shoot
the victims. (Id. at pp. 139–141.) During that time, the defendants knew
that their father was debating whether to kill the victims and had ample
opportunity to restrain the crime and aid the victims. (Id. at p. 140.) Because
the defendants did neither, the high court reasoned, they exhibited reckless
indifference to human life.” (Scoggins, supra, 9 Cal.5th at p. 678, italics
added.) Significantly, the Tison brothers “were physically present at the
scene where a long sequence of events culminated in murder.” (Id. at p. 679,
italics added.)

21
 Here, Underwood was not present for a long sequence of events that
culminated in murder. The mugging and stabbing unfolded within a few
minutes—in a “blink of an eye” according to Marion—making this case more
like Keel and Ramirez than Tison. Given the short duration of the crime, it
cannot be said that Underwood had ample opportunity to restrain Williams
from stabbing the victim. And, as we have discussed, the evidence does not
support an inference that Underwood knew Williams was going to stab the
victim and then continued to hit the victim.
In arguing there is sufficient evidence of reckless indifference, the
Attorney General relies on People v. Smith (2005) 135 Cal.App.4th 914, 927,
overruled on another ground as recognized in In re Bennett (2018) 26
Cal.App.5th 1002, 1018, but the case is distinguishable. In Smith, the
physical evidence showed the victim was “beaten severely” in the head and
face, “she suffered 27 knife wounds,” “[h]er head had been slammed against
the wall, leaving a hole in the drywall,” an electrical cord from a broken
steam iron was wrapped around her neck, and blood was found in several
places in her motel room. (Id. at p. 919.) The appellate court found that,
even if the defendant remained outside the motel room while his accomplice
killed the victim, he could have “gained a ‘subjective awareness of a grave
risk to human life’ during the many tumultuous minutes it would have taken
for [the victim] to be stabbed and slashed 27 times, beaten repeatedly in the
face with a steam iron, and had her head slammed through the wall.” (Id. at
p. 927.) The killing in the present case is not comparable; Vinson suffered
three stab wounds, and there is no evidence that he was beaten or strangled.
On this record, it cannot reasonably be inferred that Underwood gained

22
subjective awareness of a grave risk to human life between the time Williams
started to stab the victim and when he inflicted the fatal wound.11
Considering the totality of the circumstances, the evidence shows
Underwood participated in a crime of opportunity that was spontaneous and
happened quickly. (See, e.g., Guiffreda, supra, 87 Cal.App.5th at p. 128 [“the
robbery appears to have been a purely spontaneous crime of opportunity
committed simply because [the victim] was walking around the motel with a
bank envelope sticking out of his back pocket”]; Keel, supra, 84 Cal.App.5th
at p. 562 [the robbery was “a crime of opportunity” that was “unplanned,
spontaneous, and short in duration”].) But no substantial evidence supports
a finding that he acted with reckless indifference to human life.
4. Conclusion
The record lacks substantial evidence supporting a finding either that
Underwood had intent to kill or that he acted with reckless indifference to
human life. The prosecution, therefore, failed to meet its burden to prove,
beyond a reasonable doubt, that Underwood is guilty of murder under current
law, and Underwood is entitled to resentencing relief. (§ 1172.6, subd. (d)(3);
see Keel, supra, 84 Cal.App.5th at p. 563 [where no substantial evidence
showed reckless indifference to human life, “the prosecution failed to carry its

11 Moreover, People v. Smith was decided before the California Supreme

Court “substantially clarified the law governing” the evidence required to find
a person was a “major participant” in an underlying felony who acted with
“reckless indifference to human life.” (Strong, supra, 13 Cal.5th at p. 706.) It
is questionable whether Smith would be decided the same way after People v.
Banks, supra, 61 Cal.4th 788, Clark, supra, 63 Cal.4th 522, and Scoggins,
supra, 9 Cal.5th 667. (See Strong, at p. 717 [“[t]here are many petitioners
with pre-Banks and Clark felony-murder special-circumstance findings
[(meaning they were found to have acted with reckless indifference to human
life)] who nevertheless could not be convicted of murder today”].)

23
burden of proving, beyond a reasonable doubt, that [the petitioner] remains
‘guilty of murder’ under our state’s current murder laws,” and the
resentencing petition “must therefore be granted”].)12
DISPOSITION
The order denying Underwood’s petition for resentencing is reversed.
The trial court is directed to vacate Underwood’s murder conviction and
resentence him in accordance with section 1172.6.

12 Underwood’s remaining appellate claim relates to his participation in

the evidentiary hearing. Section 977.2 governs court appearances for
defendants who, like Underwood, are incarcerated in state prison. It
generally permits “all court appearances in superior court, except for the
preliminary hearing and trial, to be conducted by two-way electronic
audiovideo communication between the defendant and the courtroom in lieu
of the physical presence of the defendant in the courtroom.” (§ 977.2, subd.
(a).) The statute further requires the trial court and the Department of
Corrections and Rehabilitation to provide “a confidential telephone line
between the court and the institution for communication between the
defendant’s counsel in court and the defendant at the institution.” (Id. subd.
(c).)
Here, the trial court held the evidentiary hearing while Underwood
listened on speakerphone from prison without a means of confidentially
communicating with his counsel. The Attorney General concedes this
violated Underwood’s statutory right under section 977.2, subdivision (c), to a
confidential telephone line with counsel, but argues there was no prejudice.
Because we conclude Underwood’s resentencing petition must be granted, we
need not resolve this claim. Nonetheless, we observe that the “twin
purposes” of a defendant’s presence at the evidentiary hearing on a section
1172.6 petition are “to potentially offer testimony or evidence upon hearing
the prosecution’s case, and to assist counsel” (People v. Quan (2023) 96
Cal.App.5th 524 [314 Cal.Rptr.3d 618, 628], rehg. den. (Nov. 14, 2023),
review den. (Dec. 27, 2023)), and both of these purposes are frustrated when
an incarcerated defendant is unable to communicate confidentially with his
counsel.

24
 _________________________
Miller, J.

WE CONCUR:

_________________________
Richman, Acting P.J.

_________________________
Markman, J.*

A162356, People v. Underwood

* Judge of the Alameda Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

25
Court: Contra Costa County Superior Court

Trial Judge: Hon. Rebecca C. Hardie

Mary K. McComb, State Public Defender, Loretta Johnson, Deputy State
Public Defender, for Defendant and Appellant

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Arthur P. Beever,
Shirin Oloumi, Deputy Attorneys General, for Plaintiff and Respondent

A162356, People v. Underwood

26