Filed 8/12/22 P. v. Chadwick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed in part, reversed in part, and remanded with directions.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant Alfred Clarence Chadwick.

Law Office of Stein and Markus, Andrew M. Stein, Joseph A. Markus, and Brentford Ferreira for Defendant and Appellant Tracy Carson, Jr.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Acting Senior Assistant Attorney General, and A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

In 2006, three men — petitioners Alfred Clarence Chadwick and Tracy Carson, Jr., plus an accomplice — robbed a bank. Just as they were leaving, the police arrived; a pursuit followed. Chadwick drove the getaway vehicle, a Chevy Tahoe, some 70 to 80 miles an hour, in both commercial and residential areas that had speed limits of 30 miles an hour. He ran two stop signs. When he ran a third stop sign, the Tahoe hit two other cars and then a tree, causing the death of the accomplice. As a result, petitioners were convicted of first degree felony murder and other crimes.

In 2019, petitioners sought relief under former Penal Code section 1170.95[1] (Stats. 2018, ch. 1015, § 4).[2] Former section 1170.95 required a trial court to vacate a murder conviction if the petitioner would no longer be guilty of murder under current law, after statutory amendments limiting the application of the felony murder doctrine. The trial court denied their petitions. It found that petitioners were guilty of second degree murder under current law, because they acted with implied malice; thus, it found, at least implicitly, that they were not guilty of first degree felony murder under current law. Nevertheless, it ruled that they were not entitled to have their first degree murder convictions vacated as long as they were still guilty of murder of any kind — even second degree murder.

In this appeal, petitioners contend that the trial court erred by refusing to reduce their convictions to second degree murder. Carson also contends that there was insufficient evidence that he acted with implied malice to support a second degree murder conviction.

We need not decide whether the trial court erred by refusing to reduce the convictions to second degree murder, for two reasons.[3]

As to Chadwick, the driver, the trial court erred by finding him not guilty of first degree felony murder under current law, because he was the actual killer; thus, even assuming it denied his petition for an erroneous reason, the error was harmless.

As to Carson, the passenger, we agree that there was insufficient evidence that he acted with implied malice. Thus, he stands not guilty of either first or second degree murder under current law, and his murder conviction must be vacated.

I

STATEMENT OF FACTS

The evidence that the trial court considered consisted of: (1) our opinion in petitioners’ direct appeal,[4] and (2) the reporter’s transcript in petitioners’ direct appeal.[5] It showed the following.

On November 29, 2006, around noon, petitioners and their accomplice Michael Gaspar robbed a bank on Florida Avenue in Hemet.

The robbers “acted [as if] they would kill [the victims] if [they] didn’t comply with their orders.” They were not visibly armed; however, several of the victims believed they had guns, based on “the tone and the situation.” The robbers told everyone to get down on the floor, adding, “[W]e don’t want anybody to get shot.”

Chadwick had a Nextel “chirp” phone, which functioned like a walkie-talkie. He got a call saying “the cops were coming.”[6] A minute later, the robbers made the four bank employees and the customers go inside the vault.

One police officer arrived, got off his motorcycle, climbed over a wall, and entered the bank parking lot. When the robbers exited the bank, he pointed his gun at them and ordered them to stop, but they did not comply. They got into a Chevy Tahoe, which drove away “at a high rate of speed.”

Multiple police cars joined in a pursuit. The Tahoe was going 70 to 80 miles an hour “most of the time.” The speed limit was 30 miles an hour throughout.

First, the Tahoe went east on Florida, Hemet’s “main thoroughfare.” Florida was “very busy with heavy traffic.” The Tahoe “was alternating from lane to lane at a high rate of speed.”

Then the Tahoe turned south on Gilbert Street, into a residential area. It went past an elementary school that was in session. It ran two stop signs.

Finally, while going 50 to 60 miles an hour, the Tahoe ran a third stop sign at Gilbert and Johnston Avenue. It hit a Dodge — which caught fire — then sideswiped a Pontiac, then hit a tree head-on.

Chadwick was in the driver’s seat. His left hip was injured.

Carson was ejected from the Tahoe. He got up and ran but was captured within minutes. His face was bloody and both of his arms were broken.

Gaspar, in the back seat, had a 10 or 12-inch gash in his scalp; a flap of skin was drooping forward, and his skull was visible.

At a hospital, Gaspar was found to have a fractured vertebra and a torn vertebral artery. The torn artery caused a stroke, which left him conscious but unable to move, to speak, or to breathe on his own. He was on a ventilator until January 2007, when doctors inserted a breathing tube through an incision in his neck and a feeding tube through an incision in his abdomen. These treatments made him susceptible to infection.

In April 2007, Gaspar was transferred to a skilled nursing facility. While there, he caught pneumonia. As a result, in May 2007, a little more than five months after the robbery, he died. An expert forensic pathologist testified that the crash was the cause of death, “without any efficient intervening cause or contributing cause . . . .” He had looked to see if there was any malpractice. He found, however, that “nothing happened from . . . when the injury took place up until his death that intervened or actually caused the death itself apart from the accident[.]”

II

STATEMENT OF THE CASE

In 2010, a jury found petitioners guilty of first degree murder (§ 187, subd. (a)), four counts of second degree robbery (§ 211), five counts of false imprisonment (§ 236), and reckless evading (Veh. Code, § 2800.2). The only theory of first degree murder on which the jury was instructed was felony murder. (CALCRIM Nos. 540A, 549.) However, it was also instructed on second degree implied malice murder. (CALCRIM No. 520.) Petitioners were each sentenced to 30 years 8 months to life in prison.

They appealed. We affirmed (although we directed the trial court to amend the abstracts of judgment). (People v. Carson (Mar. 29, 2012, E052953) [nonpub. opn.].)

In 2019, petitioners filed petitions for resentencing pursuant to then-newly enacted section 1170.95. Counsel was appointed for them. The trial court issued orders to show cause and set a hearing on the petitions. The case was assigned to the same judge who had presided over the trial.

After a hearing, the trial court denied both petitions. It found beyond a reasonable doubt that both petitioners were guilty of second degree murder based on implied malice:

“The evidence was overwhelming with respect to implied-malice murder. . . . The felony murder rule, there was some evidence . . . . But the Court believed that the stronger case was implied[ ]malice.” “The confederates . . . got into a large SUV, and then . . . unleashed hell on the streets of Riverside County. The driving was reckless, showed complete indifference for human life, showed a willful and wanton disregard for human life . . . . [Both petitioners’] intent was to escape and make sure that they weren’t going to get caught or apprehended by law enforcement at any and all costs, even if it meant the death of anyone, including one of the confederates.” “[T]he moment they left that bank, they unleashed violence and indifference to human life . . . .”

Counsel for petitioners asked the trial court to reduce the conviction to second degree murder. The trial court responded, “And I think we’re going to have to do that, [prosecutor]?” The prosecutor disagreed; he argued that, as long as petitioners were guilty of murder of some kind, they were not eligible for any relief. The trial court therefore requested further briefing on this issue.

After a further hearing, the trial court once again denied the petitions. It agreed with the prosecution that the first degree murder conviction could stand as long as petitioners were guilty of either first or second degree murder.

III

LEGAL BACKGROUND: SB 1437

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437, among other things, amended section 189 so as to provide that the felony murder rule (§ 189, subd. (a)) applies to a person only if:

“(1) The person was the actual killer.

“(2) The person was not the actual killer, but, 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.

“(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .

“[(4) T]he victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.” (§ 189, subds. (e), (f), italics added.)

SB 1437 also enacted former section 1170.95, which allowed a person who had been convicted of murder under a felony-murder theory, but who “could not be convicted of first or second degree murder” under SB 1437, to petition to have the conviction vacated. (Former § 1170.95, subd. (a).) If the underlying felony was not charged, the conviction was reduced to the underlying felony, and the petitioner had to be resentenced. (Former § 1170.95, subd. (e).) The petitioner also had to be resentenced on any remaining counts. (Former § 1170.95, subd. (d)(3).)[7]

Petitioners do not dispute that they were major participants in the underlying bank robbery.

“Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, ‘[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’ [Citations.] As to the objective element, ‘“[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”’ [Citation.] ‘Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating a “grave risk of death”’ satisfies the statutory requirement. [Citation.]” (In re Scoggins (2020) 9 Cal.5th 667, 677.)

IV

APPLICATION TO CHADWICK, THE DRIVER

Chadwick contends that, because the trial court found that he was guilty of second degree murder on an implied malice theory, it erred by refusing to reduce his conviction to second degree murder.

The trial court should have found Chadwick guilty of first degree felony murder, because he was the actual killer.[8] “The actual killer is the person who personally kills the victim . . . .” (People v. Garcia (2020) 46 Cal.App.5th 123, 152 (Garcia).) It is not enough that a person is the proximate cause of death. For example, in Garcia, the victim’s face was covered with duct tape, causing him to die of suffocation; defendant Austin claimed that he merely handed the duct tape to an accomplice, who placed it on the victim’s face. (Id. at pp. 134, 136-137, 141.) The court held that it was error for the trial court to instruct and for the prosecutor to argue that Austin was the actual killer as long as he proximately caused the death. (Id. at pp. 151-155.) Rather, “actual killer” status required the “actual infliction of harm to the victim” by the defendant. (Id. at p. 153.)

Here, Chadwick personally and actually inflicted harm to the victim by crashing the Tahoe into two cars and a tree. That harm caused the victim’s death. “Actual killer” status does not require the intent to kill. (People v. Pock (1993) 19 Cal.App.4th 1263, 1274.) Moreover, the use of the Tahoe as an instrumentality does not affect Chadwick’s “actual killer” status any more than would the use of a knife or a gun.

At oral argument, Chadwick’s counsel maintained that Chadwick was not the actual killer (or at least that we should remand for a hearing on that point) because the chain of causation was unduly attenuated. “A defendant’s conduct is the proximate cause of a victim’s death where ‘the death was a reasonably foreseeable, natural and probable consequence of the defendant’s act, rather than a remote consequence that is so insignificant or theoretical that it cannot properly be regarded as a substantial factor in bringing about the death.’ [Citation.]” (People v. Skiff (2021) 59 Cal.App.5th 571, 580-581.) The jury here was so instructed. (CALCRIM No. 240; see also CALCRIM No. 540A a [direct perpetrator is guilty on a felony murder theory if, among other things, “[w]hile committing robbery, the defendant did an act that caused death of another person . . . .”].) Thus, necessarily, the jury found that Chadwick proximately caused the death. This finding is supported by substantial evidence.

This is not a case in which someone else inflicted potentially fatal injuries. (Cf. People v. Flores (2022) 76 Cal.App.5th 974, 991 [evidence that, after accomplice shot and beat the victim, defendant may have run over the victim twice while leaving the scene did not establish that defendant was actual killer as a matter of law].) Admittedly, in closing argument, both petitioners’ counsel argued that the cause of death was an inadequately cleaned breathing tube (or at least that there was a reasonable doubt on this point). But the jury rejected this argument, and evidently so did the trial court.

As the actual killer, Chadwick was categorically ineligible for resentencing. (People v. Garrison (2021) 73 Cal.App.5th 735, 743.) Under SB 1437, he could still be convicted of first-degree murder on a felony murder theory, regardless of whether he acted either with reckless indifference to life or with conscious disregard. (§§ 188, subd. (a)(3), 189, subd. (e)(1).) The trial court’s finding that he was guilty of second degree murder because he acted with conscious disregard was simply irrelevant.

Even though the trial court implicitly acquitted Chadwick of first degree murder, we can properly disregard that acquittal. “An evidentiary hearing under [former] section 1170.95 . . . does not implicate double jeopardy because [former] section 1170.95 ‘involves a resentencing procedure, not a new prosecution.’ [Citation.]” (People v. Hernandez (2021) 60 Cal.App.5th 94, 111.)

Thus, even assuming the trial court erred by refusing to reduce Chadwick’s conviction to second degree murder, the error was harmless. He properly stands convicted of first degree murder under current law.

V

APPLICATION TO CARSON, THE PASSENGER

Carson, too, contends that, because the trial court found that he was guilty of second degree murder on an implied malice theory, it erred by refusing to reduce his conviction to second degree murder. Unlike Chadwick, however, he also contends that there was insufficient evidence that he was guilty of second degree murder at all.

A. Sufficiency of the Evidence.

“‘We often address claims of insufficient evidence, and the standard of review is settled. “A reviewing court faced with such a claim determines ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ [Citation.]” (People v. Flinner (2020) 10 Cal.5th 686, 748.)

Second degree murder requires either express malice, defined as an intent to kill, or implied malice (§§ 187, subd. (a), 188, subd. (a); People v. Beltran (2013) 56 Cal.4th 935, 941-942), defined as the “‘intent to do an act dangerous to human life with conscious disregard of its danger.’ [Citation.]” (People v. Landry (2016) 2 Cal.5th 52, 96.)

A person “acts with implied malice only when acting with an awareness of endangering human life.” (People v. Knoller (2007) 41 Cal.4th 139, 153.) “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 296-297.)

Significantly, Chadwick does not contend that there was insufficient evidence that he was guilty of second degree murder. There was sufficient evidence as to him because he was the driver. “[A] pattern of reckless driving immediately prior to a fatal accident may be indicative of [implied] malice.” (People v. Ricardi (1990) 221 Cal.App.3d 249, 260, fn. 5; e.g., People v. Moore (2010) 187 Cal.App.4th 937, 940-942 [“Moore drove 70 miles per hour in a 35-mile-per-hour zone, crossed into the opposing traffic lane, caused oncoming drivers to avoid him, ran a red light and struck a car in the intersection without even attempting to apply his brakes.”].)

Carson, however, was not the driver. He was guilty of second degree murder, if at all, only as an aider and abettor.

“[A]iding and abetting implied malice murder is a valid theory of liability for second degree murder. [Citations.]” (People v. Glukhoy (2022) 77 Cal.App.5th 576, 588, review granted Jul. 27, 2022 (S274792).)

“To be culpable as a direct aider and abettor of implied malice murder, the accomplice ‘must, by words or conduct, aid the commission of the life-endangering act.’ [Citation.] . . .

“‘The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’ [Citations.]” (People v. Glukhoy, supra, 77 Cal.App.5th at p. 588.)

“‘Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility. [Citation.] Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. [Citation.]’ [Citation.] Along with presence at the scene of the crime and failure to prevent it, ‘companionship’ and ‘conduct before and after the offense,’ including ‘flight,’ are relevant to the [trier of fact]’s determination as to whether a defendant aided and abetted in the commission of the crime. [Citation.]” (People v. Lara (2017) 9 Cal.App.5th 296, 322.)

Here, there is no evidence of what went on inside the Tahoe. Thus, there is no evidence that, while inside, Carson did anything to aid or encourage Chadwick in driving with conscious disregard. For all we know, he may have been begging and pleading with Chadwick to slow down or stop.

The trial court relied on the fact that Carson intended to escape. Certainly he got into the Tahoe with the intent to escape. Moreover, after the crash — despite having two broken arms — he got up and tried to run away. However, that falls short of showing that he subjectively appreciated the risk to human life when he performed an act of aiding and abetting.

Admittedly, it is a reasonable inference that, when Carson got into the Tahoe, he intended that Chadwick attempt to escape from the police. At that point, however, there was only one police officer visibly present, and he was on foot; his motorcycle was behind a wall.[9] Thus, while Carson surely knew more police were coming, a pursuit did not seem imminent.

At most, Carson may have expected that, at some point, Chadwick might drive fast, evasively, and even in violation of traffic laws. However, this falls short of showing that he was subjectively aware of a danger to human life. Awareness of a danger to safety or a risk of great bodily injury was not enough. (People v. Knoller, supra, 41 Cal.4th at pp. 143, 153-156.) “A person might be willing to risk causing minor injuries while attempting to evade police, yet might very well not be willing to risk causing serious injury or death.” (People v. Calderon (2005) 129 Cal.App.4th 1301, 1310.) Thus, there was no evidence that Carson got into the Tahoe with the subjective appreciation that this would mean endangering human life.

The fact that Carson ran from the scene of the crash also showed that he intended to escape from the police. It says nothing, however, about the way he intended Chadwick to drive, or, a fortiori, about whether he was subjectively aware that the way he intended Chadwick to drive would endanger human life.

The People ask us to infer, from the fact that Carson “jointly partook” in the bank robbery, that he also “jointly partook” in the reckless driving. As the People conceded below, however, “The use of intimidation and menace rather than weapons during the robbery is a factor suggesting Carson and Chadwick were not indifferent to life when they set out to rob the bank.” There is no evidence that the robbery, as originally planned, included being interrupted by the police and thus having to make a hasty getaway — much less that the getaway would endanger human life. As far as the evidence shows, it was Chadwick who made the on-the-spot decision to drive more than double the speed limit and to run multiple stop signs in order to evade the police.

The People argue, “Appellant Carson was seated in the passenger seat next to appellant Chadwick, and yet nothing suggested that he sought to reduce the danger to life posed by the vehicle chase.” This inverts the burden of proof. It was up to the People to prove that he did not seek to reduce the danger to life. (See former § 1170.95, subd. (d)(3).)

Although we believe our reasoning is sound, we have found no analogous California cases. Hence, we turn to out-of-state cases.

In English v. United States (D.C. 2011) 25 A.3d 46 (English), English was the driver in a drive-by shooting. During the ensuing police pursuit, he drove as fast as 95 miles an hour. He then stopped his car, and his passengers, including Anderson, got out and ran. (Id. at p. 48.) English and Anderson were both found guilty of, among other things, assault with a deadly weapon and reckless evading under the law of the District of Columbia. (Id. at p. 47 & 47, fn. 1.)

The appellate court held that there was insufficient evidence that Anderson aided and abetted reckless evading. (English, supra, 25 A.3d at pp. 51-54.) It explained: “Anderson’s presence in the car while English was ‘driving like a bat out of hell,’ and Anderson’s subsequent flight on foot, undoubtedly show that he did not want to be apprehended, and the jury could fairly so find. Missing, however, is any evidence that Anderson took any concrete action to assist English in escaping from the police. This is not a case, for example, in which ‘there appears to be some indication in the record before us that [Anderson] may have urged or directed the driver to take evasive action.’ [Citation.]” (Id. at p. 53, fn. omitted.)

It is instructive to contrast English with Abney v. State (2019) 306 Ga. 448 (Abney). Significantly, there, the relevant crime was fleeing or attempting to elude a police officer; it did not require that the flight be conducted recklessly or in any other particular manner. (Abney, at p. 451; see Ga. Code Ann., § 40-6-395, subd. (a).) Hampton and Abney shot and killed three victims. The next day, as Hampton was driving and Abney was his passenger, a police officer tried to stop the car. Hampton sped away, pursued by the officer. Hampton suggested that Abney get out and run; Abney agreed. Hampton then stopped his car, and both he and Abney ran away. (Abney, supra, 306 Ga. at p. 450.)

The appellate court held that there was sufficient evidence that Abney aided and abetted the relevant crime. (Abney, supra, 306 Ga. at pp. 451-452.) “[T]the evidence showed that Abney fled on foot after Hampton led the police on a chase and stopped the Ford Explorer. . . . From this evidence, along with evidence that Hampton and Abney worked in concert to kill the three victims and Abney’s affirmative response to Hampton’s suggestion during the police chase that Abney get out and run, the jury was authorized to conclude that Abney was a party to the crime of fleeing or attempting to elude a police officer. [Citations.]” (Ibid.)

We acknowledge that here, unlike in English and Abney, the passenger had already formed the intent to evade the police before getting into the vehicle. Nevertheless, this is not a meaningful distinction. Like the evidence in Abney, it helps to show that the passenger aided and abetted with the intent that the driver evade the police. But also, like the evidence in English, it fails to show that the passenger aided and abetted with the intent that the driver evade the police recklessly.

In the trial court, the prosecution argued that “there’s an additional indication of Mr. Carson’s intent, and that was that he was not wearing a seatbelt, which is why he was flung from the vehicle. If he was in the car pointing out the dangerousness of the driving and trying to halt it, he would not have been prepared to flee, continue his flight. He would have been strapped in for safety, upset at his comrade.”

The trial court did not rely on this reasoning. Moreover, the People do not reiterate this argument on appeal, and wisely so. The logic goes in the exact opposite direction: As Carson did not bother to fasten his seatbelt, evidently he was not subjectively aware that he — or, by extension, his accomplices — were at risk of injury, much less death.

The bottom line is that, if we were to hold that there was sufficient evidence of conscious disregard in this case, then virtually every participant in a felony that ends in a police pursuit would be guilty of murder if someone dies during the pursuit. This is stretching conscious disregard so far as to resemble the repealed version of felony murder.

We therefore conclude that there was insufficient evidence that Carson acted with conscious disregard for life; therefore, there was insufficient evidence that he could still be found guilty of second degree murder under SB 1437.

B. Collateral Estoppel.

The jury found Carson, as well as Chadwick, guilty of reckless evading. (Veh. Code, § 2800.2.) We question whether this conviction was supported by substantial evidence.[10] Nevertheless, Carson is collaterally estopped to relitigate the finding that he aided and abetted this crime. (See People v. Jones (2020) 56 Cal.App.5th 474, 482 [true finding on special circumstance conclusively established reckless indifference to human life], review granted Jan. 27, 2021, S265854.)

Even so, this finding does not establish that Carson acted with conscious disregard of human life. A jury’s finding of willful and wanton disregard for the safety of persons or property does not necessarily imply a finding of implied malice. (People v. Lewis (2006) 139 Cal.App.4th 874, 891-893; People v. Calderon, supra, 129 Cal.App.4th at p. 1308.)

Regarding the crime of reckless evading, the trial court instructed, “A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, (2) and he or she intentionally ignores that risk.” (CALCRIM No. 2181.) It also instructed that an aider and abettor must (among other things) “kn[o]w that the perpetrator intend[s] to commit the crime . . . .” (CALCRIM No. 401.)[11]

Thus, the jury merely found that Carson was aware that his actions presented a substantial and unjustifiable risk of harm. This falls short of actual appreciation of the risk to human life. (See People v. Watson, supra, 30 Cal.3d at pp. 296-297.)

C. Conclusion.

In sum, even assuming the trial court erred by refusing to reduce Carson’s conviction to second degree murder, the error was harmless. The trial court found him not guilty of first degree murder, and there was insufficient evidence that he was guilty of second degree murder under current law. It follows that he is entitled to resentencing.

VI

DISPOSITION

With respect to Chadwick, the order appealed from is affirmed.

With respect to Carson, the order appealed from is reversed. On remand, the trial court must vacate Carson’s conviction for first degree murder and resentence him on the remaining counts. (Former § 1170.95, subds. (d)(1), (d)(3).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.

[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10).

[3] This issue is surprisingly difficult. The language of former section 1170.95 seems to support the trial court’s ruling. Petitioners argue, however, that the trial court’s reading of the statute is absurd: It allows them to be punished for first degree murder, despite its finding that, under current law, they are guilty only of second degree murder. They also argue that it violates the legislative intent behind former section 1170.95.

[4] Section 1170.95 was amended, effective January 1, 2022, so as to provide that “[t]he court may . . . consider the procedural history of the case recited in any prior appellate opinion.” (Former § 1170.95, subd. (d)(3), Stats. 2021, ch. 551, § 2, italics added.) Thus, it now prohibits consideration of the facts of the case recited in any prior appellate opinion. (People v. Clements (2022) 75 Cal.App.5th 276, 292.)

Petitioners do not object to our consideration of the facts stated in our prior opinion. In any event, those same facts are also shown by the reporter’s transcript.

[5] Chadwick gave a Mirandized statement, which was audio recorded and played at trial. It was not introduced in connection with the petitions for resentencing, so it is not in our record.

[6] It is not clear how the police were alerted. One bank employee had a silent alarm at her desk, but she did not use it. Some of the victims called 911, but only after they were already in the vault.

When the robbers first arrived, one of the bank employees was on the phone with another bank employee, outside the office; she said, “Oh, my God. I think we’re being robbed.” Possibly the person she was talking to called the police.

[7] SB 1437 also abrogated the natural and probable consequences doctrine, as applied to murder (§ 188, subd. (a)(3)), and allowed persons convicted of murder on a natural and probable consequences theory to petition to vacate the conviction. (Former § 1170.95, subd. (a).)

Here, the jury was not instructed on the natural and probable consequences doctrine. Petitioners were convicted of first degree murder exclusively on a felony murder theory.

[8] In opposition to Chadwick’s petitions, the prosecution argued (among other things) that he was the actual killer.

[9] There was a second police unit in the northwest driveway of the bank, but it does not appear that the robbers could have seen it; they left the bank by the south door and ran south to the Tahoe.

[10] The conviction was necessarily on a theory of direct aiding and abetting. As already mentioned (see fn. 9, ante), the jury was not instructed on the natural and probable consequences theory of aiding and abetting. (Cf. People v. Weddington (2016) 246 Cal.App.4th 468, 486-488 [where driver and passengers were all fleeing police after burglary, passengers could be guilty of reckless evading under the natural and probable consequences doctrine].)

[11] The trial court further instructed that the “wanton disregard for safety” requirement could be met by “causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point.” (CALCRIM No. 2181.) However, the jury could not have found Carson guilty on either basis, because there was no evidence that he knew that Chadwick would either cause property damage or commit three or more point count violations. Indeed, the trial court did not even instruct on which traffic violations carry a point count.