Filed 3/17/22 P. v. Jones CA2/3

Not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed.

Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

INTRODUCTION

In 2012, a jury convicted Ronald Jones of the first degree murder of Annton Berry. At trial, the People prosecuted Jones under a felony-murder theory, arguing he either killed Berry during the commission of a robbery or aided and abetted the actual killer during the commission of a robbery. This court affirmed Jones’s conviction on direct appeal in 2013. (People v. Jones (Sept. 26, 2013, B241140) [nonpub. opn.].)[1]

In 2019, Jones filed a petition to have his conviction vacated under Penal Code[2] section 1170.95, arguing he couldn’t now be convicted of first or second degree murder under sections 188 and 189 as those statutes were amended by Senate Bill No. 1437 (S.B. 1437). After appointing counsel to represent Jones, the court issued an order to show cause and set the matter for an evidentiary hearing. At that hearing, the court found that, while the People didn’t prove beyond a reasonable doubt that Jones was the actual killer, they did prove that he was a major participant in the underlying robbery and acted with reckless indifference to human life. The court denied Jones’s resentencing petition.

Jones appeals, arguing: (1) the court applied the wrong standard of proof when it found he was not entitled to relief under section 1170.95; and (2) insufficient evidence supports the court’s finding that he was a major participant in the underlying robbery and acted with reckless indifference to human life.

After the parties filed their appellate briefs, the California Legislature enacted Senate Bill No. 775 (S.B. 775) (Stats. 2021, ch. 551), which amended section 1170.95 in a number of ways. We asked the parties to file supplemental briefs addressing what effect, if any, the legislation has on the issues in this case. Having received and considered the parties’ supplemental briefs, we affirm the court’s order denying Jones’s resentencing petition.

BACKGROUND

1. The Underlying Robbery and Murder[3]

In late October 2006, Jones asked Arthur and Andre Matthews to help him rob a clothing store in Palmdale. Jones wanted to target the store because he believed only one person would be working there. Arthur and Andre refused to help Jones.

Later that day, Earl Cager, one of the owners of the clothing store, went to the store. When he first drove by, Cager saw a car parked in front of the store that belonged to Berry, one of his employees. When Cager returned to the store a couple of minutes later, Berry’s car was gone. Cager then went inside the store and found Berry’s body lying on the floor. Berry had a black plastic bag over his head. The plastic bag found on Berry’s head was similar to other bags located on a shelf inside the store.

When police arrived, they discovered that Berry had been shot in the head. He had bruises and lacerations on his face and body, as if he had struggled with someone before he was shot. The police recovered five fingerprints from the bag that was placed over Berry’s head, two of which belonged to Jones. The police didn’t find matches for the other fingerprints. The parties stipulated at trial that Berry had been killed by a single gunshot wound to the head.

The police later recovered Berry’s car and several of his belongings on the side of the road not far from the Cager clothing store. Jones’s fingerprints weren’t found on any of those items.

Several days after the shooting, Alfonso Hicks, the Matthews brothers’ uncle, overheard Jones tell someone that he and at least two other people had robbed a clothing store. Jones complained that he didn’t get much money from the robbery. Jones also stated that he “got the wrong man” and that Berry “wasn’t the man that was intended to be killed.” Jones also told Arthur Matthews that he “went in there and … robbed [Berry]” and had to “ ‘wrestle him down,’ ” and that Berry had pleaded for his life.

2. The Charges and Jury Trial

The People charged Jones with murder (§ 187, subd. (a)) and alleged that he used a firearm during the commission of the offense (§ 12022.53, subds. (b)–(d)).

Jones was tried by a jury. At trial, the People pursued Jones’s murder conviction under a felony-murder theory. To that end, the court instructed the jury on two alternative forms of felony murder under which Jones could be convicted: (1) that Jones shot and killed Berry during the robbery of the Cager clothing store; or (2) that during the course of the robbery, which Jones intended to either commit or to aid and abet, an accomplice shot and killed Berry. After deliberations began, the People dismissed the firearm allegations.

The jury found Jones guilty of first degree murder. The court sentenced him to 25 years to life in prison to run consecutively to another prison term he was already serving.

Jones appealed his conviction, which we affirmed in 2013.

3. Jones’s Resentencing Petition

In March 2019, Jones filed a resentencing petition under section 1170.95, alleging he was convicted of first or second degree murder under a theory of felony murder that is now invalid after S.B. 1437 was enacted. The People opposed Jones’s motion, arguing he was ineligible for relief because he was the actual killer or a major participant in the underlying robbery and acted with reckless indifference to human life. In their opposition, the People cited to the clerk’s and reporter’s transcripts from Jones’s jury trial. After appointing counsel for Jones, the court found he made a prima facie showing of eligibility for relief and set the matter for an evidentiary hearing.

In August 2020, the court held a hearing on Jones’s petition. The parties proceeded by argument and didn’t introduce any new or additional evidence. The court denied Jones’s motion and explained its ruling from the bench as follows:

“In reviewing the legal factors, I have reviewed the cases mentioned by counsel, specifically People v. Banks (2015) 61 Cal.4th 788 [(Banks)] and People v. Clark (2016) 63 Cal.4th 522 [(Clark)], and then had analyzed it to the specific facts that came out during this case with the totality of the circumstances as it pertains to your client’s individual involvement.

“I think in terms of the factual context of this case, it is pretty much uncontested that this was a planned robbery of the Cager … clothing store, that the victim in this case was in that store and that the cause of death was a more execution-style cause of death and that a plastic bag was placed over his head and that what killed him was the gunshot wound to his head.

“In terms of the totality with the standard being beyond a reasonable doubt, I don’t find direct evidence beyond a reasonable doubt that would support that your client actually shot the victim. But at minimum, in looking at the jury instructions, in addition to the felony murder robbery instructions under CALCRIM 540(A) and that series, there was also aiding and abetting that was given, and I have analyzed it in terms of whether he was a major participant.

“I note that Arthur Matthews, which was one of the witnesses, testified. The jury had an opportunity to evaluate the credibility. And in terms of any potential role, accomplice testimony instructions were given as to Mr. Matthews.

“With a situation, though, with both his testimony implicating the defendant’s involvement as summarized by the People, fingerprint evidence that clearly at least two of those latent prints were linked to your client and that was the plastic bag that was found over the victim’s head when he was located when he was shot, that he had a definite planning role. He did try to solicit others in terms of the planned robbery and the lack of any clear evidence that there were other people specifically involved. I understand that there was no direct evidence to tie him to the actual shooting, but he was found with a similar type of firearm.

“In terms of his individual participation in terms of whether it involves a grave risk of death, major participation, and reckless disregard for human life, the court finds under the totality that it meets that standard.

“To distinguish something like the Banks case concerned the primary involvement of that particular defendant being a get-away driver in an armed robbery of the medical marijuana dispensary where he was involved with the flight, he was found in a residential street some distance away.

“The Clark case also had a certain level of culpability as a planner and organizer in terms of setting that particular crime in motion, but his actions leading up to the victim’s death were less egregious than this particular defendant. He was clearly involved, for example, in surveillance of the store, studying the employees. The victim’s arrival was somewhat unanticipated in that in terms of what led to the shooting. This particular involvement had a more egregious level of planning based on a combination of not just the circumstantial evidence with the fingerprints but the statements that were elicited from the witnesses that testified in this case.

“So for those reasons, the court finds that the People have met their burden, at minimum that he was a major participant and that his involvement displayed a reckless disregard for human life. And for those reason the defense motion to resentence under [section 1170.95] is denied.”

Jones appeals.

Discussion

Jones raises two primary claims of error on appeal. First, he argues the court applied the wrong standard of proof at the final hearing when it found he was a major participant in the underlying robbery and acted with reckless indifference to human life. Second, Jones contends insufficient evidence supports the court’s finding that he is guilty of murder under current law. As we explain, each of these claims lacks merit.

1. Changes to the Law of Murder and Section 1170.95

S.B. 1437, which took effect on January 1, 2019, “addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722.) The legislation changed the law of murder to ensure a “person’s culpability for murder [is] premised upon that person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

Relevant here, S.B. 1437 limited accomplice liability for murder. Under prior California law, every accomplice to an enumerated felony could be convicted of first degree murder if a death occurred during the commission of that felony—regardless of whether the accused killed or intended to kill. (See People v. Dillon (1983) 34 Cal.3d 441, 462–472.) Similarly, “a defendant who aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted not only of the target crime but also of the resulting murder”—regardless of whether he acted with malice aforethought. (In re R.G. (2019) 35 Cal.App.5th 141, 144.) Now, however, a person may be convicted of murder only if: (1) he was the actual killer; or (2) with the intent to kill, he aided and abetted the actual killer’s commission of murder; or (3) he acted as a “major participant” in a felony listed in section 189 and acted with “reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3; § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)

S.B. 1437 also abolished second degree felony murder. (Stats. 2018, ch. 1015, § 2, amending § 188, subd. (e)(3).) Thus, the felony murder doctrine now applies only to those felonies listed in section 189, subdivision (a), and to accomplices who meet the requirements in section 189, subdivision (e).

In addition to changing the law of murder prospectively, S.B. 1437 gave people who had been convicted of murder under one of the now-invalid theories the opportunity to petition for resentencing under section 1170.95. (Stats. 2018, ch. 1015, § 4.) In relevant part, section 1170.95 provides: “A person convicted of felony murder … may file a petition with the court that sentenced the petitioner to have the petitioner’s murder … conviction vacated and to be resentenced on any remaining counts” if (1) the complaint or information filed against them “allowed the prosecution to proceed under a theory of felony murder”; (2) the petitioner was convicted of murder “following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted” of murder; and (3) the “petitioner could not presently be convicted” of murder “because of changes to Section 188 or 189.” (§ 1170.95, subd. (a).)

If the petitioner files a facially sufficient petition, the court must appoint counsel. (§ 1170.95, subd. (b)(3).) After allowing the parties to file briefs, the court must hold a hearing to “determine whether the petitioner has made a prima facie showing that [he] is entitled to relief.” (Id. at subd. (c).) If the petitioner makes such a showing, the court must “issue an order to show cause” and “hold a hearing to determine whether to vacate the murder … conviction and to recall the sentence.” (Id. at subds. (c) & (d)(1).)

“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 … under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. … The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder … is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)

“If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).)
“The petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged.” (Id. at subd. (e).)

2. The court applied the correct standard of proof to Jones’s resentencing petition.

Jones first contends the court applied the wrong standard of proof when it found he was ineligible for relief at the section 1170.95, subdivision (d) hearing. According to Jones, the court erred by evaluating his entitlement to relief under a “substantial evidence” standard, when section 1170.95, subdivision (d)(3) requires the prosecution to prove beyond a reasonable doubt whether he is guilty of murder under the current versions of section 188 and 189. Whether the court applied the appropriate standard of proof raises an issue of statutory interpretation, which we review de novo. (People v. Clements (2022) 75 Cal.App.5th 276, 293 (Clements).)

After S.B. 1437 was passed, a split developed among the Courts of Appeal about what standard of proof applies to a trial court’s finding whether a petitioner is entitled to relief at the final hearing under section 1170.95. (See Clements, supra, 75 Cal.App.5th at p. 293 [noting decisional split, where some appellate courts have held the beyond a reasonable doubt standard of proof applies at the final hearing, while others have held the trial court need only conduct a substantial evidence review to determine whether the petitioner could still be convicted of murder under current law].) In their original briefs filed before S.B. 775 was enacted, Jones and the People agreed that the court was required to act as an independent fact finder at the final hearing and to determine, in the first instance, whether Jones is guilty beyond a reasonable doubt under a now-valid theory of murder. S.B. 775 has since resolved the standard of proof issue.

Effective January 1, 2022, S.B. 775 amended section 1170.95 to clarify that, “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 … under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3); Stats. 2021, ch. 551.) Eliminating any ambiguity as to whether it was appropriate for trial courts to apply a substantial evidence standard of review in determining whether petitioners are entitled to relief, section 1170.95, subdivision (d)(3) now states, “A finding that there is substantial evidence to support a conviction for murder … is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”

Jones acknowledges that at the final hearing on his petition in this case, the court stated that the standard of proof to establish he is guilty of murder under current law is “beyond a reasonable doubt.” Nevertheless, Jones takes issue with the fact that, in explaining its finding denying his resentencing petition, the court stated that Jones was “clearly involved” in planning the underlying robbery and that the “totality of the circumstances” established that Jones was, “at minimum,” a major participant in the underlying robbery and acted with reckless indifference to human life. Without citing any authority to support his position, Jones contends the court’s use of such phrases—i.e., “totality of the circumstances,” “at minimum,” and “clearly involved”—shows the court applied either a “substantial evidence” standard of review or a “clear and convincing” standard of proof, as opposed to a “beyond a reasonable doubt” standard of proof, when it denied his petition. We disagree.

Nothing in the phrases “totality of the circumstances,” “at minimum,” and “clearly involved” suggest the court applied any particular standard of proof or standard of review. As for the first two phrases, they simply are common terms used to describe the breadth of the evidence or factors that fact finders and reviewing courts consider in reaching a particular finding or conclusion (“totality of the circumstances”) or a baseline for what the evidence establishes under any given standard (“at minimum”). (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 677 [whether a defendant acted with reckless indifference to human life depends on an analysis of the “totality of the circumstances” surrounding the crime]; see also CALCRIM No. 540B [instructs juries to “consider all the evidence” in determining whether the defendant was a major participant and acted with reckless indifference to human life].) Such phrases can be used when applying any of the various standards of proof used by fact finders—i.e., “beyond a reasonable doubt,” “clear and convincing evidence,” or “preponderance of the evidence”—as well as when applying standards of review used by reviewing courts. That is to say, a court’s evaluation of the “totality of the circumstances” pertaining to a particular issue or a court’s determination that certain conduct “at minimum” supports a particular finding or conclusion says nothing about the standard of proof or standard of review the court has applied. And, as for the phrase “clearly involved,” it simply describes the court’s belief there was little or no dispute that Jones had a role in planning the underlying robbery. That phrase doesn’t in any way suggest the court applied a lesser standard of proof in evaluating Jones’s entitlement to relief under section 1170.95.

Aside from taking issue with the court’s use of the phrases we just discussed, Jones points to no other statements made by the court that would suggest it applied the incorrect standard of proof in denying his petition. As we noted above, before it found Jones was guilty of murder under current law, the court correctly stated that the applicable standard of proof was “beyond a reasonable doubt.” The court again acknowledged that standard, when it concluded it did not “find direct evidence beyond a reasonable doubt that would support that [Jones] actually shot the victim.” And, importantly, the court never referenced the substantial evidence standard when it ruled on Jones’s petition. Because the court correctly stated the beyond a reasonable doubt standard of proof applied at the section 1170.95, subdivision (d) hearing, and because we must presume the court’s ruling is correct absent an affirmative showing of error, we reject Jones’s contention that the court applied the wrong standard of proof when it denied his resentencing petition. (People v. Giordano (2007) 42 Cal.4th 644, 666 [“On appeal, we presume that a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ ”].)

3. Substantial evidence supports the court’s finding that Jones was a major participant in the underlying robbery and acted with reckless indifference to human life.

Jones challenges the court’s finding that he was a major participant in the underlying robbery and acted with reckless indifference to human life on three grounds. First, he argues the finding lacks evidentiary support because the People didn’t present any evidence at the final hearing on his petition. Second, he contends that the court erred by relying on, as evidence, facts included in our opinion from Jones’s direct appeal and statements made by the prosecutor in opposing Jones’s petition. And third, Jones argues, even assuming the court relied on admissible evidence, its finding that he was a major participant and acted with reckless indifference to human life is not supported by substantial evidence. We reject each of these arguments.

As to his first argument, Jones points out that although the People cited to the record from his original trial, including the clerk’s and reporter’s transcripts, in their opposition to his resentencing petition, they never asked the court to admit or judicially notice any parts of the trial record at the final hearing on his petition. Since the parties otherwise didn’t submit any new evidence at the final hearing, Jones argues the court’s finding that he is not entitled to relief under section 1170.95 is entirely lacking in evidentiary support. We disagree.

It’s clear from the record of the proceedings on Jones’s resentencing petition that the court considered, and the parties expected the court to consider, evidence and other documents, such as jury instructions, from Jones’s murder trial before it denied Jones’s resentencing petition. This is consistent with the language of section 1170.95 subdivision (d)(3), which allows the trial court to consider at the final hearing on a resentencing petition evidence that was previously admitted at the petitioner’s underlying trial. (See § 1170.95, subd. (d)(3) [“The admission of evidence in the [final] hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed”], italics added; see also Reno, supra, 55 Cal.4th at p. 484 [courts routinely consult prior criminal proceedings irrespective of a formal request from the parties].)

Here, the People cited to the clerk’s and reporter’s transcript from the underlying trial in their opposition to Jones’s resentencing petition. In finding Jones made a prima facie showing of eligibility for relief and issuing an order to show cause under section 1170.95, subdivision (c), the court noted that it “reviewed the court file.” At the final hearing on Jones’s resentencing petition, both the prosecutor and counsel for Jones discussed the trial record, including what evidence was adduced at trial, in arguing their respective positions, and Jones never objected to the court considering the record from his trial when ruling on his petition. The court’s ruling at the final hearing also shows the court reviewed the record from the underlying trial when it found Jones was not entitled to resentencing relief. For instance, the court (1) stated that it applied the Banks and Clark factors to the “specific facts that came out during this case;” (2) noted that it had reviewed the jury instructions from the underlying trial; and (3) discussed one of the witnesses’ testimony and other evidence that was adduced at the trial, such as the fingerprint evidence linking Jones to the robbery and murder.

We also reject Jones’s claim that the court erroneously relied on the statement of facts from our prior appellate opinion and the prosecutor’s statements opposing Jones’s petition when it found Jones was not entitled to resentencing relief. As a threshold matter, these arguments are forfeited because they weren’t raised below. As section 1170.95, subdivision (d)(3) states, the admission of new evidence at a hearing held under that provision is governed by the Evidence Code. Under Evidence Code section 353, a “verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless” there “appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353.) Since Jones never raised any objections below challenging the evidence relied on by the court in denying his resentencing petition, he has forfeited any claim on appeal that the court improperly relied on our prior opinion from Jones’s direct appeal or on any statements the prosecutor made in opposition to Jones’s resentencing petition. (People v. Partida (2005) 37 Cal.4th 428, 434 [“ ‘ “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable’ ”].)

In any event, Jones hasn’t shown the court relied on any improper evidence when it denied his resentencing petition. First, nothing in the record from the proceedings below indicates the court considered our prior opinion when it ruled on Jones’s petition. For instance, the court never mentioned our opinion when it explained its ruling denying Jones’s petition. Likewise, nothing in the record indicates the court treated as evidence the factual summary from the prosecutor’s written opposition to Jones’s petition or any statements the prosecutor made at the final hearing below. While Jones points out that some of the facts the court discussed in its ruling are consistent with those in our prior opinion and the prosecutor’s written opposition, that is hardly surprising. The facts discussed in our prior opinion, the prosecutor’s opposition, and the ruling on Jones’s resentencing petition came from the same source: the record from Jones’s murder trial.

We now turn to whether substantial evidence supports the court’s finding that Jones was a major participant in the underlying robbery and acted with reckless indifference to human life. As we explain, substantial evidence supports that finding.

S.B. 1437 amended section 189’s definition of first degree murder based on a felony-murder theory by incorporating the same requirements for proving a felony-murder special-circumstance finding under section 190.2, subd. (d). Now, to support a murder conviction under a felony-murder theory, the People must prove that the killing was committed in the perpetration of, or attempt to perpetrate, one of several enumerated felonies, including robbery, and that the defendant either: (1) “was the actual killer;” (2) “was not the actual killer, but, with the intent to kill,” aided and abetted the killer in the commission of the murder; or (3) “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.” (§ 189, subds. (a) & (e).)

In Banks and Clark, the California Supreme Court identified various factors to be considered in determining whether a defendant was a major participant in the underlying felony and acted with reckless indifference to human life. (Banks, supra, 61 Cal.4th at p. 803 [discussing major participant factors]; Clark, supra, 63 Cal.4th at pp. 618–623 [discussing reckless indifference factors].) As the court explained, no single consideration is necessary, “ ‘nor is any one of [the factors] necessarily sufficient.’ ” (Clark, at p. 618, quoting Banks, at p. 803.)

The factors for determining whether a defendant was a major participant in the underlying felony include: (1) the role the defendant had in planning the target crime that led to the victim’s death; (2) the role the defendant had in supplying or using lethal weapons; (3) the defendant’s awareness of the particular dangers posed by the nature of the crime, the weapons used, or the past experience or conduct of the other participants; (4) whether the defendant was present at the scene of the killing and, if so, whether he was in a position to facilitate or prevent the death; (5) whether the defendant’s actions or inactions at the scene of the killing played a particular role in the victim’s death; and (6) the defendant’s conduct after lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.)

As for determining whether a defendant acted with “reckless indifference,” courts must look to whether the defendant knowingly engaged in criminal activities known to carry a grave risk of death. (Banks, supra, 61 Cal.4th at p. 801; see also Clark, supra, 63 Cal.4th at pp. 616–617.) “Reckless indifference” “encompasses both subjective and objective elements. The subjective element is the defendant’s conscious disregard of risks known to him or her.” (Clark, at p. 617.) The objective element looks to “what ‘a law-abiding person would observe in the actor’s situation.’ [Citation.]” (Ibid.)

The following factors should be considered in determining whether a defendant acted with reckless indifference to human life: (1) the defendant’s awareness that a gun or other weapon would be used during the target offense; (2) the defendant’s presence at the crime and whether he had an opportunity to prevent the crime or aid the victim; (3) the duration of the felony, including how long the defendant and the victim interacted before the killing; (4) the defendant’s knowledge of the likelihood that his cohorts would use lethal force; and (5) the defendant’s apparent efforts to reduce the risk of violence during the commission of the target offense. (Clark, supra, 63 Cal.4th at pp. 618–623.)

We review the trial court’s factual findings following a section 1170.95, subdivision (d) hearing for substantial evidence. (Clements, supra, 75 Cal.App.5th at p. 298.) We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Accordingly, before we may set aside the court’s order, it must be clear that “ ‘ “upon no hypothesis whatever is there sufficient evidence to support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Substantial evidence supports the court’s finding that Jones was a major participant in the underlying robbery of the clothing store. First, Jones planned the robbery, and he tried to recruit others to help him. Jones told the Matthews brothers that he wanted to rob the clothing store because he knew only one person usually worked there, making it an easy target. Second, there was evidence that Jones participated in the robbery. Jones told Arthur Matthews that he “robbed” Berry, and Jones’s fingerprints were found on the plastic bag placed over Berry’s head. And, consistent with Jones’s statement after the robbery that he had to “wrestle” Berry to the ground, Berry was found with bruises and lacerations on his face and body. Finally, there was evidence that defendant was aware of the dangers posed by committing the robbery. After the robbery, Jones told others that Berry wasn’t “ ‘the man that was intended to be killed.’ ”

Most of these facts also support the court’s finding that Jones acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614–615 [the requirements for establishing a defendant is a major participant and that he acted with reckless indifference to human life often “ ‘significantly overlap …, for the greater the defendant’s participation in the felony murder, the more likely he acted with reckless indifference to human life’ ”].) While law enforcement never recovered the gun used to kill Berry and there was no direct evidence establishing Jones was the person who shot him, the court could infer Jones knew lethal force would be used during the robbery. As we just noted, Jones stated after the robbery that Berry wasn’t who he and his cohorts intended to kill and that they “ ‘got the wrong man.’ ” There also was evidence from which the court reasonably could infer that Jones was present at the scene of the robbery and facilitated Berry’s death. Jones told Arthur Matthews that he wrestled Berry to the ground, and Jones’s fingerprints were found on the bag placed over Berry’s head. (People v. Garcia (2020) 46 Cal.App.5th 123, 148 [“Presence at the scene of the murder is a particularly important aspect of the reckless indifference inquiry.”].) None of the circumstances surrounding the robbery suggest Jones tried to prevent or deescalate the use of violence or otherwise tried to reduce the risk that Berry would be killed.

In short, substantial evidence supports the court’s finding that Jones was a major participant in the underlying robbery and acted with reckless indifference to human life.

DISPOSITION

The order denying Jones’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KIM, J.^*

[1] On our own motion, we take judicial notice of our prior nonpublished opinion in Jones. (Evid. Code, §§ 452, subd. (d) & 459.)

[2] All undesignated statutory references are to the Penal Code.

[3] The summary of the facts and procedural history are taken from our prior opinion and the appellate record in Jones. (See In re Reno (2012) 55 Cal.4th 428, 484 (Reno) [courts in criminal appeals “routinely consult[ ] prior proceedings irrespective of a formal request” for judicial notice].)

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.