People v. Sims CA2/5

Filed 4/3/23 P. v. Sims CA2/5

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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B315624

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA046081)
v.

RASHIED SIMS et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles
County, Lisa B. Lench, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant Rashied Sims.
Elizabeth Richardson-Royer, under appointment by the
Court of Appeal, for Defendant and Appellant Byone Woods III.
Christine Aros, under appointment by the Court of Appeal,
for Defendant and Appellant John Thomas Horton.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
 Three defendants – Byone Woods III, Rashied Sims, and
John Horton – killed victim Gary Gibson in the course of robbing
him. Woods was the actual shooter; Sims and Horton were
prosecuted on a felony-murder theory. Sims and Horton went to
trial and were convicted of first degree murder. Woods then
pleaded guilty to second degree murder. Decades later, all three
defendants filed petitions for resentencing under Penal Code
section 1172.6.1 After an evidentiary hearing, the trial court
denied all three petitions. Woods’s petition was denied on the
ground that he was the actual killer; Sims’s and Horton’s were
denied because they were major participants in the robbery who
acted with reckless indifference to life.
All three defendants appeal. Sims and Horton challenge
the sufficiency of the evidence that they acted with reckless
indifference, and raise multiple evidentiary issues. Woods joins
his codefendants’ evidentiary arguments, but his main assertion
on appeal is that denying his petition on the theory that he was
the actual shooter, when he had pleaded guilty to only second
degree murder, constitutes a violation of double jeopardy
principles. We affirm.

1 The statute was originally number 1170.95; it was
renumbered effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
We use the current numbering. Unless otherwise indicated, all
undesignated statutory references are to the Penal Code.

2
 FACTUAL AND PROCEDURAL BACKGROUND
1. Proceedings Involving Guilt
A. The Underlying Crime2
On September 11, 1991, victim Gibson and his girlfriend
Robin Steiner spent the evening at the Mustang Motel. They left
around 11:00 p.m., and went to Gibson’s car in the parking lot.
Gibson’s car had previously been backed into a spot near their
room. Gibson unlocked the passenger door for Steiner. As she
entered the car, she saw defendants’ vehicle, which had been
pulling out of the parking lot, back up, and park in front of
Gibson’s car, preventing them from driving away. Gibson told
Steiner to get in the car and lock it. He started around the front
of his car to the driver’s side, but did not get there in time.
Defendant Woods exited the back seat of defendants’
vehicle and approached Gibson.3 After a brief exchange of words,
which Steiner could not hear, Woods pointed a gun at Gibson’s
forehead. At this point, Horton (who had been in the driver’s
seat) and Sims (the front passenger) also exited the defendants’
car.
Sims went to where Woods was standing, with the gun still
pointed at Gibson’s head. Horton came over to the driver’s side of
Gibson’s car and told Steiner to unlock the door. She refused. He
then joined the other two defendants facing Gibson. While Woods

2 One of the issues on appeal is whether the trial court erred
in the sources on which it relied for the facts of the case. We take
our discussion of the facts from the testimony elicited at the trial
of defendants Sims and Horton.

3 Steiner did not positively identify the three defendants at
trial. However, as we later explain, there is no real issue as to
their identity.

3
continued to keep Gibson at gunpoint, Sims and Horton took his
belongings. One of them snatched two gold chains from Gibson’s
neck. Gibson turned out his pockets and Sims and Horton both
reached for the contents.
Woods then turned his attention to Steiner, who was still
locked in Gibson’s car. Woods came around to Steiner’s door and
told her to open it. She screamed and told him “No.” He jiggled
the handle. Then, Woods pointed the gun at the passenger-side
window, toward Steiner’s head. She screamed again.
Gibson, in an obvious effort to protect Steiner, rushed
Woods and pushed him to the side of Gibson’s car. The two went
down, struggling. Sims then came over and intervened,
separating the men. Steiner, the only eyewitness to the crime
who testified at trial, did not see exactly what Sims did to
separate them. On the night of the murder, Steiner made a
statement to police, in which she said that Sims had pushed
defendant Woods away from Gibson. She testified the same way
at the preliminary hearing. At trial, however, she testified that
this was a mistake, and that she thought Sims had pushed
Gibson off of defendant Woods. Ultimately, on redirect, she
testified, “I didn’t really see who he pulled up.”
In any event, once Sims had separated Woods and Gibson,
Woods walked back to the front of Gibson’s car. Woods appeared
angry and was pacing back and forth between the two cars.
Gibson charged Woods again. Woods held the gun in the
air so Gibson could not get it. Woods then pushed Gibson off of
him, and shot Gibson. Gibson grabbed his chest and turned to
run. Woods shot him a second time. Woods then turned to face
Steiner. She ducked under the dashboard of Gibson’s car.

4
 The three defendants ran back into their car and drove off,
tires squealing. Steiner got out of Gibson’s car and found Gibson
slumped over at the motel office window, holding his chest and
asking the motel employee to call the police. Gibson fell, and died
minutes later.
B. Defendants’ Immediate Interaction with Police
As it happened, two LAPD officers were patrolling the area
near the motel in an unmarked vehicle. They heard the gunshot
and saw Gibson running. They also saw defendants’ car
accelerating “pretty rapidly” away, and driving through a couple
stop signs. They performed a traffic stop on the vehicle. The
three defendants gave police their names, but had no
identification.4
Although Horton had no identification, police felt a wallet
in his pocket when they patted him down. Upon opening the
wallet, police discovered a number of items in the name of Gary
Gibson. Horton offered an explanation: he had borrowed the car
from his relative, Linda Binion; he had put on a jacket he found
in the backseat of the car; when the wallet kept falling out of the
jacket pocket, he put it in his own pocket.
Police then asked defendants if they would mind driving to
the nearest pay phone so the police could verify their story; they
agreed. Horton dialed Binion and handed the phone to the
officer. Binion agreed that the wallet could have belonged to one
of her boyfriends. When asked if she had a boyfriend named
Gary, she said that she did. When asked Gary’s last name, she
said she did not know. Satisfied, police returned the wallet to
Horton and released defendants.

4 The officers identified defendants Sims and Horton at trial,
and one officer identified Woods at the preliminary hearing.

5
 The officers returned to the motel and found other officers
investigating the crime scene. When they learned the victim’s
name was Gary Gibson, they went in search of defendants’ car,
but could not find it. However, the police still had Linda Binion’s
name and telephone number, from which they began their
attempts to locate defendants.
C. Horton’s Inculpatory Statement Admitted at Trial
Horton was arrested in December 1991. He was
interviewed by peace officer Maria Betancourt.5 Horton’s
statement was admitted at trial only as to him. He admitted that
he had borrowed the car from Binion, and was driving it in the
motel parking lot when he saw a couple exiting and noticed the
man was wearing gold chains. He said he approached the man,
pushed him, went into his pockets, got back into the car and sped
away. He admitted he was then stopped by police officers who let
him go. He indicated that he did not pull the trigger and had not
intended to kill anyone. According to Betancourt, “He said it
should have never happened if he wasn’t trying to be a hero or he
wasn’t trying to fight us, nothing would have happened.”
D. Conviction, Woods’s Plea, and Appeal
Following a March 1992 preliminary hearing, all
defendants were charged by information with the murder (§ 187)
and robbery (§ 211) of Gibson, and assault with a firearm (§ 245,
subd. (a)(2)) on Steiner.6 It was alleged, with respect to all three

5 Betancourt was Horton’s parole officer, but this fact was
sanitized at trial.

6 A felony-murder special circumstance was alleged, but later
dismissed. Various prior conviction enhancements were also
alleged.

6
defendants, that a principal was armed with a firearm (§ 12022,
subd. (a)(1)); and, as to Woods only, that he personally used a
firearm (§ 12022.5).
The matter proceeded to trial against Sims and Horton
only. Woods had been diagnosed with undifferentiated
schizophrenia and was not then competent to stand trial.
At trial, Steiner was the only witness to testify to the facts
of the robbery and murder.
Both Horton and Sims were convicted as charged.
Including a prior serious felony enhancement (§ 667, subd. (a)),
they were each sentenced to 35 years to life in prison.7 Sims and
Horton appealed.
In February 1994, following Sims and Horton’s trial (but
before their appeal was resolved), Woods reached a negotiated
plea agreement. He pleaded guilty to second degree murder and
admitted the principal-armed allegation, in return for a sentence
of 16 years to life in prison. Counsel stipulated to a factual basis
for the plea, which the court found to exist, although neither
court nor counsel indicated where the facts establishing the
factual basis were found.
On July 17, 1995, a different division of this court affirmed
the convictions of Horton and Sims. (People v. Horton (July 17,
1995, B081132) [nonpub. opn.].)

7 The sentence consisted of the high term of 4 years on the
assault, plus 5 years for the prior, plus 1 year for the principal-
armed enhancement, consecutive to 25 years to life for the
murder.

7
2. Proceedings On the Section 1172.6 Petitions
A. Sims and Horton’s First Petitions and Appeal
“Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015; Senate Bill 1437) eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule. (Pen.
Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended
by . . . Senate Bill 1437.)” (People v. Lewis (2021) 11 Cal.5th 952,
957.) Specifically, under the new law, an aider and abettor
cannot be convicted of felony murder unless the defendant acted
with the intent to kill or was a major participant who acted with
reckless indifference to human life. Senate Bill 1437 also added
section 1172.6 to the Penal Code, which creates a procedure for
convicted murderers who could not be found guilty under the law
as amended to retroactively seek relief.
In 2019, defendants Sims and Horton, but not Woods, filed
petitions for resentencing under section 1172.6. The district
attorney opposed the petitions, arguing that Sims and Horton
were ineligible for relief on the basis that they had been major
participants in the underlying crime who had acted with reckless
indifference to life.
The trial court summarily denied both petitions. On
appeal, the Attorney General conceded that Horton and Sims had
established a prima facie case for relief, and were entitled to the
issuance of an order to show cause and a hearing. We agreed and
reversed. (People v. Horton (Feb. 11, 2021, B303337) [nonpub.
opn.]; People v. Sims (Feb. 11, 2021, B302109) [nonpub. opn.].)
We take judicial notice of the record in Sims’s appeal.

8
 B. Woods’s 1172.6 Petition and the Hearing for All Three
Defendants
On remand, the trial court set the matter for hearing on the
Sims and Horton petitions, and the parties filed additional
briefing. By this time, Woods had also filed a petition for relief
under section 1172.6. The trial court issued an order to show
cause and set a joint hearing on whether any of the three
defendants were entitled to relief.
The parties disagreed about what evidence would be
admissible at the entitlement hearing. Sims argued that the trial
court should consider the facts as set forth in the 1995 opinion
affirming his and Horton’s convictions. Sims also sought to rely
on that portion of Steiner’s testimony from the preliminary
hearing in which she testified that Sims had pulled defendant
Woods off Gibson, excerpts from her trial testimony on that point,
and her statement to police on the same issue. Horton, for his
part, questioned whether due process permitted reopening the
evidence at all. As for Woods, he would eventually argue (at the
entitlement hearing) that the trial court could not consider as
against him the evidence at the trial of his codefendants, nor the
appellate court opinion affirming their convictions, as he was not
a party to those proceedings. He believed only the evidence at his
preliminary hearing was admissible as to him. The prosecutor
did not object to the use of the 1995 opinion or the preliminary
hearing transcript.
The prosecutor sought to rely on statements the defendants
had made at their parole hearings. He also sought admission of
Woods’s recorded interview with police from the night of his
arrest, a month after the murder. The prosecutor wanted to
admit Woods’s interview not only for its substance, but also

9
because it reflected Woods’s troubled mental state.8 This was to
support the prosecution’s argument that “providing a loaded
firearm to a mentally impaired individual so that he can commit
an armed robbery clearly shows a conscious disregard for human
life.”
The prosecutor then filed an additional brief in which,
although he did not formally seek to admit evidence from the
parole hearings, he “note[d]” certain facts from them.9
Ultimately, the trial court would only consider one of those facts:
At a parole hearing in 2020, Sims said that he was the one who
had given Woods the gun.
C. Trial Court’s Ruling Denying the Petitions
After further briefing and a hearing – at which no live
testimony was offered – the trial court denied the petitions.10

8 The appellate record contains a video of Woods’s
October 10, 1991 interview, in which he is obviously impaired,
although the cause of the impairment is unclear. In his
interview, Woods attempts to minimize his involvement, at first
claiming Horton started the robbery and Sims joined it, shooting
Gibson, before Woods even got out of the car. When told that a
witness saw him with the gun, he said that Sims gave him the
gun, but he held it for only a few seconds. Woods was adamant
that Horton tackled Gibson and Sims shot him.

9 At the time, District Attorney policy was that parole board
hearing transcripts would not be offered into evidence at section
1172.6 hearings.

10 At the hearing, Horton’s counsel posited yet another view of
the facts. Specifically, he represented there were two scuffles. In
the first one, Horton (not Sims) pulled Woods off Gibson. In the
second, Gibson succeeded in knocking the gun out of Woods’s

10
 First, the court stated that it took the facts from the 1995
Court of Appeal opinion affirming Sims’s and Horton’s
convictions, although – in light of Woods’s argument that he was
not a party to that appeal – the court also indicated reliance on
the preliminary hearing testimony, and noted relevant
differences between the two.11 The court also considered the
statement from Sims’s parole hearing as an admissible
declaration against interest.
Turning to the merits, the court found Woods was the
actual shooter, so no relief was available to him under section
1172.6.
The court next turned to Horton. First, the court found
Horton was a major participant in the robbery – as the driver, he
blocked Gibson’s car from escaping, and he was stopped by police
with Gibson’s wallet in his pocket. Next, the court considered

hands. Sims picked up the gun, pushed Woods off Gibson, and
shot Gibson. Counsel explained the source of this story was, “an
inconsistent record and from speaking with my client.” The
hearing was Horton’s opportunity to testify to this view of the
facts, if he so desired. Counsel’s argument is not evidence.

11 Specifically, the court noted the only “major inconsistency”
between the trial and the preliminary hearing was Woods’s post-
arrest statement in which he stated that Sims was the shooter.
The court rejected that evidence in favor of Steiner’s testimony
that Woods was the shooter. It does not appear there was any
inconsistency. Woods’s post-arrest statement was not part of the
preliminary hearing or trial testimony (although it was part of
the prosecution’s briefing on the order to show cause). The only
evidence on the identity of the shooter – at both the preliminary
hearing and the trial – was Steiner’s testimony that it was
Woods.

11
whether Horton had acted with reckless indifference to human
life, and concluded that he did. The court particularly relied on
the fact that Horton was aware that Gibson was resisting the
crime, but Horton did nothing to de-escalate the violence. Nor
did he render aid to Gibson after the shooting, but fled. Indeed,
when stopped by police, he could have alerted them to the
presence of the bleeding victim back at the motel, but instead
wasted their time by lying about the source of Gibson’s wallet.
The result was the same as to Sims. He was a major
participant in the robbery because he helped surround the victim
when Woods held him at gunpoint and participated in removing
the victim’s property. As to reckless indifference, the court first
noted that Sims admitted in his second parole hearing that he
gave the gun to Woods. But even without that statement, the
court found Sims acted with reckless indifference. Specifically,
Sims did nothing to prevent the shooting during the robbery. The
court was not impressed with Sims’s argument that he had
attempted to stop the violence by separating Woods and Gibson
when they struggled on the ground. “The court is unconvinced
that separating the two wrestling men is evidence of an attempt
to prevent violence. In fact, it gave defendant Woods an easier
time at shooting Mr. Gibson. Had defendant Sims done
something to attempt to remove the gun from defendant
Woods’[s] possession, the court would be more convinced of the
motive behind Sims’[s] actions. As it stands, the fact does not
carry the weight suggested by counsel.”
All three defendants filed timely notices of appeal.
DISCUSSION
On appeal, Sims and Horton both argue the trial court
erred in: (1) considering the facts from the prior appellate

12
opinion; (2) considering the preliminary hearing transcript;
(3) considering the parole hearing transcripts; and (4) finding
that substantial evidence supported the court’s conclusion they
acted with reckless indifference to human life. Woods similarly
argues the court erred in relying on the facts from the prior
appellate opinion and his codefendants’ parole hearings, and also
argues (5) the court’s ruling violated principles of double
jeopardy, in that his plea agreement resulted in an implied
acquittal of first degree murder, and the court’s finding that he
was the shooter was the equivalent of a finding that he
committed first degree murder.
1. Any Error in Considering the Facts from the Prior
Appellate Opinion was Harmless
As the argument of defendant Woods is somewhat different
from that of Sims and Horton, we consider him separately in our
discussion.
A. Sims and Horton
Prior to the entitlement hearing, Sims repeatedly argued
that the trial court should consider the facts from the prior
appellate opinion. On appeal, he argues the court’s acceptance of
this argument was error. Sims’s change in position was caused
by a change in the law. At the time of the hearing, subdivision
(d)(3) of section 1172.6 did not specifically identify the evidence
that could be used at an entitlement hearing, and it was thought
that the record of conviction, including any prior appellate
opinion, could be used. (See People v. Clements (2022)
75 Cal.App.5th 276, 283 (Clements).) Senate Bill No. 775 (2021-
2022 Reg. Sess.), effective January 1, 2022, amended the statute
to set forth limitations on the evidence, providing, “The
admission of evidence in the hearing shall be governed by the

13
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 court
may also consider the procedural history of the case recited in any
prior appellate opinion.” (Stats. 2021, ch. 551 (S.B. 775), italics
added.) This “specificity indicates the Legislature has decided
trial judges should not rely on the factual summaries contained
in prior appellate decisions when a section [1172.6] petition
reaches the stage of a full-fledged evidentiary hearing.”
(Clements, supra, 75 Cal.App.5th at p. 292.)
We agree that, under the law as the Legislature has
amended it, it was error for the trial court to rely on the facts as
set forth in the prior appellate opinion. The court was required to
rely on the trial (and any other admissible) testimony instead.
But this is not the end of the analysis. A judgment or decision
shall not be reversed based on the erroneous admission of
evidence unless the error resulted in a miscarriage of justice.
(Evid. Code, § 353, subd. (b); People v. Owens (2022)
78 Cal.App.5th 1015, 1027 (Owens).) It is also true that,
although defendants are permitted to join in the arguments in
each other’s briefs, they each still individually have the burden to
establish they were prejudiced by any trial court error. (People v.
Nilsson (2015) 242 Cal.App.4th 1, 12, fn. 2.)
Here, Sims and Horton have failed to meet this burden.
Indeed, they have not even tried. It is apparent that, at the
section 1172.6 hearing, the defendants had the opportunity to
offer whatever evidence they felt was persuasive, and did so.
Sims, for example, relied on the same Court of Appeal opinion,
favorable excerpts from the preliminary hearing transcript,

14
favorable excerpts from the trial testimony, and Steiner’s
recorded interview with police. He now seeks to capitalize on the
change in the law by arguing that the trial court should not have
relied on the Court of Appeal opinion, but fails to demonstrate
any prejudice arising from the court having done so, given the
indisputable fact that he took advantage of the opportunity to
supplement the Court of Appeal opinion with facts from within
(and without) the record that he felt were advantageous to him.12
Sims and Horton have pointed to no fact on which the trial
court relied from the Court of Appeal opinion which was not also
found in the testimony at trial. Having reviewed the trial court’s
factual summary, the Court of Appeal opinion, and the trial
transcript ourselves, we have found none. The reason for this is
apparent: Steiner was the sole witness to the facts of the crime;
the officers were the only witnesses to the police stop. The prior
appellate opinion, like our own review of the facts, was limited to
the testimony of these witnesses. While, in light of Senate Bill
775, the trial court’s consideration of the factual summary from
the appellate opinion was erroneous, it was not prejudicial.
B. Woods
Woods argues that it is not entirely clear whether the trial
court relied on the Court of Appeal’s factual summary as to him,
or whether it accepted his argument that it could rely only on the
preliminary hearing, as that was the only proceeding to which he

12 We are not here relying on the doctrine of invited error to
reject defendants’ argument, although it is true that both Sims
and Horton invited the trial court to rely on the facts from the
Court of Appeal opinion. But our review of the record leaves us
with the conclusion that Sims and Horton relied on the Court of
Appeal factual summary because it was an accurate summary of
the testimony at trial.

15
was a party. (See People v. Flores (2022) 76 Cal.App.5th 974,
978, 988 [appellate opinion in codefendant’s case is not part of the
record of conviction of defendant who pleaded no contest and did
not proceed to trial].) Our view of the trial court’s ruling is that it
considered the distinction irrelevant, and we agree.
The trial court denied Woods’s petition on the basis that he
was the shooter. It is true that Steiner’s identification of Woods
at the preliminary hearing was less than positive, stating only
that he looked like the shooter. But one of the officers who
stopped the defendants’ car fleeing from the scene positively
identified defendants as the three men in it, limiting the shooter
to one of those three. When the universe of potential shooters is
restricted to the three defendants, Steiner’s testimony that
Woods looked like the shooter has much more significance.
Moreover, when the police stopped the car, Woods was sitting in
the back seat – the seat from which, according to Steiner, the
shooter came. Steiner’s physical description of the men
eliminated the possibility that Sims had been the shooter but
switched seats with Woods after the shooting.13
In short, the evidence at the preliminary hearing was that
Woods was the shooter, just like the evidence at the trial, and the
factual description in the prior Court of Appeal opinion. Woods
has failed to demonstrate prejudice.

13 Steiner described the front passenger as having a shoulder-
length jheri curl hairstyle, while the back seat shooter had
medium hair. When the police stopped the car, Sims, the front
passenger, had the jheri curl.

16
2. Sims’s and Horton’s Contention Regarding the
Preliminary Hearing Transcript Also Fails
Sims and Horton next argue the trial court erred in
considering the preliminary hearing transcript against them.
But there is no absolute statutory prohibition against considering
the preliminary hearing transcript at a section 1172.6
entitlement hearing. Indeed, as amended by Senate Bill 775, the
statute provides, “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, . . . . However,
hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of [s]ection 872 shall be excluded from
the hearing as hearsay, unless the evidence is admissible
pursuant to another exception to the hearsay rule.” (§ 1172.6,
subd. (d)(3); italics added.) The first quoted sentence explicitly
permits the admission of evidence admitted at a prior hearing –
on its face that appears to include a preliminary hearing. The
second quoted sentence excludes only preliminary hearing
evidence admitted under section 872, subdivision (b) – a section
permitting law enforcement officers to testify to hearsay at a
preliminary hearing – which did not occur in defendants’
preliminary hearing. Taken together, the plain language of these
sentences appears to permit the preliminary hearing testimony
relied upon by the trial court in this case.
We need not reach the issue, however, as, even if there
were error, Sims and Horton again cannot demonstrate prejudice.
Steiner’s testimony at the preliminary hearing and trial was
largely consistent. To the extent it differed on the point of which
person Sims pulled off the other during the struggle, Sims sought

17
to place both versions before the court at the section 1172.6
hearing. Indeed, Sims’s briefing on the issue favored Steiner’s
preliminary hearing testimony over her trial testimony.
3. There Was No Error in Considering a Single
Statement from One of Sims’s Parole Hearings
All three defendants argue, at length, that the trial court
erred in considering statements from Sims’s and Horton’s parole
hearings. While the court, as a legal matter, found the
statements admissible, the court’s statement of its ruling actually
relied only on a single statement from Sims’s second parole
hearing: that he gave the gun to Woods.
Preliminarily, the trial court only used the statement
against Sims. It was therefore an admission of a party opponent,
and not inadmissible hearsay. (Evid. Code, § 1220.) Sims’s main
argument is that a judicially-created rule of use immunity from
People v. Coleman (1975) 13 Cal.3d 867 (Coleman) should be
extended to the admission of parole hearing statements
subsequently offered at a section 1172.6 entitlement hearing. In
Coleman, our Supreme Court was faced with the situation of a
defendant held to answer on criminal charges being subjected to
a probation revocation hearing prior to his criminal trial. The
defendant argued he was forced to forego his opportunity to
defend himself at the revocation hearing in order to avoid
incriminating himself at his pending trial. (Coleman, at p. 871.)
The high court concluded that the prosecution should not be
“encouraged to schedule revocation hearings in advance of trial
as a matter of course by being allowed to use at trial the
testimony of the defendant at a prior probation revocation
hearing.” (Id. at p. 889.) In order to disincentivize the
prosecution from this conduct, the court declared a judicial

18
immunity rule, “that henceforth upon timely objection the
testimony of a probationer at a probation revocation hearing held
prior to the disposition of criminal charges arising out of the
alleged violation of the conditions of his probation, and any
evidence derived from such testimony, is inadmissible against the
probationer during subsequent proceedings on the related
criminal charges” except for impeachment or rebuttal. (Ibid.)
Sims is not the first person to argue the Coleman
exclusionary rule should be extended to statements from parole
hearings at subsequent section 1172.6 entitlement hearings.
Courts have repeatedly rejected the extension – based on the
fundamental differences between probation revocation and parole
hearings – and we agree.14 (Mitchell, supra, 81 Cal.App.5th at
p. 588; People v. Anderson (2022) 78 Cal.App.5th 81, 89–93;
People v. Myles (2021) 69 Cal.App.5th 688, 704–706 (Myles).)
In any event, even if the trial court erred in admitting the
evidence, we would review the error under People v. Watson
(1956) 46 Cal.2d 818, 836, for whether it is reasonably probable
the defendant would have received a more favorable result in the
absence of the error. (Myles, supra, 69 Cal.App.5th at pp. 706–
707.) Here, the trial court expressly stated that it would have
found Sims was a major participant acting with reckless

14 We also agree with the position – proffered by the district
attorney and Sims’s counsel at the admissibility hearing – that
trial courts possess the authority to determine whether the
circumstances of a defendant’s statement at a parole eligibility
hearing indicate it was made only to make a show of accepting
responsibility and might not have been true. (People v. Mitchell
(2022) 81 Cal.App.5th 575, 590 (Mitchell).) Sims does not argue
that his specific admission that he provided the gun to Woods
falls within this rule.

19
indifference to human life even in the absence of this evidence.
Any error was therefore not prejudicial as to the sole defendant
against whom the evidence was used.
4. There Was Sufficient Evidence Sims and Horton
Acted With Reckless Indifference
We now reach the heart of this appeal. In Senate Bill 1437,
the Legislature narrowed the scope of the felony-murder rule
and, by section 1172.6, provided a path for resentencing for
defendants previously convicted of felony murder who could not
have been convicted under the new law. “Resentencing is
available under the new law if the defendant neither killed nor
intended to kill and was not ‘a major participant in the
underlying felony [who] acted with reckless indifference to
human life, as described in subdivision (d) of [Penal Code]
[s]ection 190.2.’ [Citations.] This provision repurposes
preexisting law governing felony-murder special-circumstance
findings — the findings a jury makes in felony-murder cases to
determine whether the defendant may be sentenced to death or
life without possibility of parole (Pen. Code, § 190.2, subd. (d)) —
to define eligibility for sentencing relief.” (People v. Strong (2022)
13 Cal.5th 698, 703.) This, in turn, requires an evaluation of
whether the defendant’s conduct met the standards of major
participation and reckless indifference discussed in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). (Strong, at pp. 713–714.) Here, the
parties’ dispute is over reckless indifference only.15

15 Sims concedes the evidence establishes his major
participation. Horton does not expressly concede the issue, but
argues insufficient evidence of only reckless indifference.

20
 Before we detail the Banks and Clark factors and the
evidence of Sims’s and Horton’s reckless indifference, we first
address our standard of review.
A. Standard of Review
Section 1172.6, subdivision (d)(3), as amended by Senate
Bill 775, 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 . . . .” We review the trial court’s
findings for substantial evidence, viewing the evidence in the
light most favorable to the prosecution and presuming in favor of
the judgment every fact the trial court reasonably could have
deduced from the evidence. We resolve neither credibility issues
nor evidentiary conflicts. (Owens, supra, 78 Cal.App.5th at
p. 1022.)
By supplemental brief on appeal, Sims argues that our
standard of review in this matter instead should be independent
review. “ ‘[U]nder independent review, an appellate court
exercises its independent judgment to determine whether the
facts satisfy the rule of law.’ [Citation.] When courts engage in
independent review, they should be mindful that ‘ “[i]ndependent
review is not the equivalent of de novo review . . . .” ’ [Citation.]
An appellate court may not simply second-guess factual findings
that are based on the trial court’s own observations.” (People v.
Vivar (2021) 11 Cal.5th 510, 527.) In independent review, the
appellate court still accords deference to trial court
determinations based on credibility of witnesses it has heard and
observed. This is distinguished from substantial evidence review,
which is not merely deferential to trial court credibility

21
determinations, but bound by them, if they are adequately
supported. (Id. at p. 527 & fn. 6.) In Vivar, the California
Supreme Court held that independent review applied in an
appeal from a trial court’s decision on a statutory motion to
vacate a conviction arising from a plea that was invalid due to
prejudicial error affecting the defendant’s ability to meaningfully
understand the immigration consequences. (§ 1473.7, subd.
(a)(1).) The court applied independent review for multiple
reasons, only one of which was that the evidence on such a
motion was likely to be documentary. (Vivar, supra, at pp. 524–
528.)
The differences between Vivar and the present case
notwithstanding, Sims reasons that, because the only evidence at
his hearing was documentary, we are in as good a position as the
trial court to evaluate it. We should, therefore, apply
independent review. But Vivar itself expressed that it was
limited to the particular statutory motion at issue and was not
intended to alter the usual deferential standard of review of trial
court factual determinations. (Vivar, supra, 11 Cal.5th at p. 528,
fn. 7 [“Nothing we say here disturbs a familiar postulate: when
reviewing a ruling under the substantial evidence standard, ‘an
appellate court should defer to the factual determinations made
by the trial court,’ regardless of ‘whether the trial court’s ruling[s
are based] on oral testimony or declarations.’ [Citations.]”.)
Cases post-Vivar agree that Vivar does not apply to section
1172.6 entitlement hearings.16 (Mitchell, supra, 81 Cal.App.5th
at pp. 590–591; Clements, supra, 75 Cal.App.5th at p. 301.)

16 Alternatively, Sims argues that our substantial evidence
review should grant no deference to trial court factual findings
based purely on a review of documentary evidence. In his

22
 B. The Law of Reckless Indifference
Although defendants do not challenge the finding they were
major participants, we set out the factors related to major
participants as there is some overlap with reckless indifference.
(Clark, supra, 63 Cal.4th at p. 615.) “ ‘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.’ ” ’ [Citation.] ‘Among the relevant factors in
determining this question, [the California Supreme Court has]
set forth the following: “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

appellate briefing, Sims – no less than three times – purports to
quote from Flores v. Nature’s Best Distribution, LLC (2016)
7 Cal.App.5th 1, as stating, on page 9, “when a court resolves a
factual issue purely based on its interpretation of documents, we
also apply a nondeferential standard of review.” That quote does
not appear in Flores, on page 9 or anywhere. Flores states only,
“The ‘ “ ‘interpretation of a written document where extrinsic
evidence is unnecessary is a question of law for independent
review by the Court of Appeal. [Citations.]’ ” ’ [Citation.] We
therefore review this issue de novo.” (Flores, supra,
7 Cal.App.5th at p. 9.) Flores’s routine statement of the law of
contract interpretation provides no support for the proposition
that substantial evidence review of a trial court’s factual
determination becomes nondeferential in a criminal case founded
on documentary evidence.

23
facilitate or prevent the actual murder, and did his or her own
actions or inactions play a particular role in the death? What did
the defendant do after lethal force was used?” ’ ” (People v. Jones
(2022) 86 Cal.App.5th 1076, 1087 (Jones).)
“As to whether the defendant acted with reckless
indifference to human life, there is ‘ “significant[ ] overlap” ’ with
the major participant analysis. [Citation.] Other factors relevant
in determining whether the defendant acted with reckless
indifference to human life include: ‘(1) Knowledge of weapons,
and use and number of weapons’; ‘(2) Physical presence at the
crime and opportunities to restrain the crime and/or aid the
victim’; ‘(3) Duration of the felony’; ‘(4) Defendant’s knowledge of
cohort’s likelihood of killing’; and ‘(5) Defendant’s efforts to
minimize the risks of violence during the felony.’ ” (Jones, supra,
86 Cal.App.5th at p. 1087.)
“Reckless indifference to human life ‘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.’ [Citation.] As to its
subjective element, ‘[t]he defendant must be aware of and
willingly involved in the violent manner in which the particular
offense is committed’ and consciously disregard ‘the significant
risk of death his or her actions create.’ [Citation.] As to its
objective element, ‘[t]he risk [of death] must be of such a nature
and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.’
[Citation.] ‘ “Awareness of no more than the foreseeable risk of
death inherent in any [violent felony] is insufficient” to establish

24
reckless indifference to human life; “only knowingly creating a
‘grave risk of death’ ” satisfies the statutory requirement.
[Citation.] Notably, “the fact a participant [or planner of] an
armed robbery could anticipate lethal force might be used” is not
sufficient to establish reckless indifference to human life.’ ”
(Jones, supra, 86 Cal.App.5th at pp. 1087–1088.)
“In reviewing the trial court’s findings, we analyze the
totality of the circumstances. [Citation.]” (Owens, supra,
78 Cal.App.5th at p. 1023.) No single factor is necessary, or is
any one of them necessarily sufficient, to uphold a finding of
reckless indifference. (Id. at p. 1024.)
C. Horton
As we have explained, although Horton does not challenge
that he was a major participant, there is significant overlap
between the analysis for “major participant” and that for
“reckless indifference.” Horton’s major participation in the crime
demonstrates that he was present at the time the robbery turned
into a murder. Not only that, he set the crime in motion – he was
the one who drove the car in front of Gibson’s car to prevent their
escape. Thereafter, he exited the car once Woods had Gibson at
gunpoint; he participated in taking Gibson’s belongings while
Woods had a gun pointed at Gibson; he drove from the scene after
Woods shot Gibson; and he lied to police after he was stopped
when, for all he knew, Gibson was bleeding to death and could
still be helped.
Of the other facts supporting reckless indifference,
significantly, Horton’s presence meant that he had the
opportunity to intervene when matters turned violent. After his
arrest, Horton admitted his involvement to Officer Betancourt,
and told her that he had not intended to kill anyone. He said

25
Gibson would not have been killed if he “wasn’t trying to be a
hero or he wasn’t trying to fight us.” But the fact is, Gibson did
try fight the robbers when they turned their attentions toward
Steiner. Once Gibson ran at Woods and struggled with him on
the ground, defendants were aware that they were facing a victim
who would not simply stand by while they attempted to reach his
girlfriend – Gibson would fight back to save her. After Sims
separated Woods and Gibson, Woods, gun in hand, angrily paced
back and forth between the two cars. At this point, Horton’s
failure to take action was sufficient to establish reckless
indifference. The defendants had successfully robbed Gibson –
they had his wallet and chains. Horton knew that Steiner was
locked in Gibson’s car, was not going to intervene, and that
Gibson would defend her. Horton could have encouraged his
fellow perpetrators to escape with their takings. He could have
gone back into the car and prepared to leave; he could have even
moved the car himself, giving the victims an opportunity to drive
safely away. But by doing nothing when he knew of an impasse
between his angry, frustrated armed co-perpetrator and a victim
willing to fight back, he acted with reckless indifference to
Gibson’s life.
D. Sims
The analysis as to Sims is similar. He has conceded he was
a major participant, and he was; he gave the gun to Woods and
helped take Gibson’s property while Woods held him at gunpoint.
Sims makes much of the fact that he separated Gibson and
Woods when Gibson charged Woods – particularly relying on
evidence that he had pulled Woods off Gibson, rather than the
other way around. The trial court did not expressly resolve the
issue and may have found that Steiner’s testimony was

26
inconsistent because she could not actually see that portion of the
struggle. But this much is true: whether Sims pulled Gibson off
Woods or Woods off Gibson, Sims separated the fighting men and
left the gun in the hands of Woods, who was then pacing angrily.
Remember, it was Sims who had given his gun to Woods. There
is no evidence that he demanded, or even asked, Woods to return
his gun to him. There is no evidence that he even told Woods to
calm down, or attempted to end the crime at that point. The
crime had evolved beyond a standard armed robbery due to the
victim’s willingness to fight back, but Sims did nothing to de-
escalate the increased risk of a shooting.17 (Compare In re Miller
(2017) 14 Cal.App.5th 960, 966–967 [finding insufficient evidence
of reckless indifference when defendant was not present at the
scene and there was no evidence he knew lethal force was
appreciably more likely than that inherent in a “garden-variety”
armed robbery].)
5. Woods’s Double Jeopardy Claim is Meritless
Woods did not go to trial with Horton and Sims. At the
time of the trial, Woods had been found not competent to stand
trial. When his competence was restored, he entered a plea to
second degree murder. Woods argues that acceptance of this plea

17 Sims argues “There is no evidence [he] knew Gibson was
inherently more likely to put up such heightened resistance as
would create a grave risk of death. Nor was this the objective
state of things such that [Sims] should be charged with such
knowledge.” But this very much was the objective state of things
after Gibson put up that very resistance. Sims’s argument might
be more persuasive if Woods had shot Gibson the moment Gibson
first rushed him. But Sims knew Gibson would resist during the
time he separated the two men, and, crucially, after the two were
separated and Woods was pacing between the two cars.

27
constituted an implied acquittal of first degree murder.
Therefore, he argues, his section 1172.6 petition could not be
denied on the basis that he was the actual killer, because that
would mean he was guilty of first degree murder, a crime of
which he had been impliedly acquitted. The trial court ruling
constituted double jeopardy.
There are any number of reasons why this claim fails, the
simplest being that there is no constitutional right against double
jeopardy in section 1172.6 proceedings. (Mitchell, supra,
81 Cal.App.5th at p. 589; Myles, supra, 69 Cal.App.5th at p. 704.)
We also observe that, from the preliminary hearing
onward, the prosecution always proceeded on the basis that
Woods was the actual killer. Whether the prosecution agreed to a
plea of second degree murder as an act of leniency because Woods
was willing to admit responsibility, to avoid putting Steiner
through a second trial, due to Woods’s diminished mental
capacity, or for other reasons, Woods was convicted of second-
degree murder as the actual killer. Following denial of his
section 1172.6 petition, he remains convicted of second degree
murder as the actual killer. There is no change in the conviction
and no double jeopardy.

28
 DISPOSITION
The orders denying defendants’ section 1172.6 petitions are
affirmed.

RUBIN, P. J.
WE CONCUR:

MOOR, J.

KIM, J.

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