Filed 4/5/22 P. v. Sabbath CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.

Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Charles Oscar Sabbath, previously convicted of first degree murder, first degree robbery and first degree residential burglary, and serving two consecutive 25-years-to-life prison terms, appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1170.95 (Petition).[1] He acknowledges he was a major participant in the underlying robbery which led to two people being killed, but contends the trial court erred in finding he acted with a reckless indifference to human life, rendering him ineligible for resentencing. We disagree. At the evidentiary hearing concerning the Petition, the trial court considered all the testimony from defendant’s trial, including the testimony defendant gave in his own defense. Notwithstanding defendant’s version of the events, which the court did not find credible, the testimony supplies substantial evidence from which the trial court could have concluded, beyond a reasonable doubt, defendant harbored a reckless indifference to human life. Accordingly, defendant was not entitled to resentencing and we affirm the postjudgement order.

FACTS AND PROCEDURAL BACKGROUND

In 1989, Ricardo Stubbs, a marijuana dealer, and Suzanne Rivera were found dead in their apartment, bound and shot in the head execution style. The apartment was ransacked and many pieces of personal property were missing. When the bodies were found, Stubbs’ pockets were empty even though he was known to carry large sums of cash. Police also located a footprint and fingerprints which were later identified as belonging to one of defendant’s friends, John Jordan.

Police found the missing property in three different locations. A video cassette recorder, a camera, jewelry and some weapons were found at Jordan’s apartment. Cash was found in a safe at defendant’s residence, along with two sets of handcuffs and a black 9mm handgun which could have been the one used to kill the victims. Lastly, stereo equipment and more weapons were found in Stubbs’ truck which was parked at a 7-Eleven store near defendant’s residence. Evidence later revealed defendant kept the truck in his backyard for one week prior to moving it to the 7-Eleven parking lot on the day he was arrested.

Defendant was arrested and charged with two counts of murder (§ 187, subd. (a)), first degree residential burglary (§§ 460.1, 461.1, 495), and two counts of first degree robbery (§§ 211, 212.5, subd. (a), 213.3, subd. (a)(1)). The information further alleged the following special circumstances: multiple murders (§ 190.2, subd. (a)(3)), murder during the commission of a robbery (§ 190.2, subd. (a)(17)(i)), and murder during the commission of a burglary (§ 190.2, subd. (a)(17)(vii)).

Evidence at Trial

Law enforcement officers testified the victims were found in a bedroom, with their hands and ankles separately tied together with duct tape. A pillow and a large Ziploc bag were found nearby; both had holes in them and what appeared to be gunshot residue on them. An autopsy revealed each victim died of a gunshot wound to the brain. Rivera suffered an additional gunshot wound to her chest.

Defendant’s acquaintance, Charles Johnson, testified defendant told him two times he was going to kill Stubbs. The first time, defendant said the reason was because Stubbs owed him money. The second time, defendant was with Jordan and they showed Johnson a couple of loaded guns, including a black handgun. In the same bag as one of the guns was duct tape which defendant said he was going to use to tie up Stubbs and “his wife.”

Another acquaintance of defendant, Daryl Grace, also testified about a statement defendant made prior to the murders. He confirmed he was present on the first occasion mentioned by Johnson, and relayed defendant, in seeming reference to Stubbs, said he was “going to get that mother fucker.”

After presenting evidence to raise questions about the credibility of Johnson and Grace, to implicate Jordan in the killings and to rebut the claimed threats to kill Stubbs, defendant testified in his own defense. He said he met Stubbs while living at a motel roughly five years earlier and came to learn he sold marijuana. After defendant bought marijuana from him one time, Stubbs purportedly stole about $1,600 from defendant. Thereafter, defendant could not locate Stubbs, so he just let the matter go, figuring there was nothing he could do about it.

About a month before the murders, defendant found out through Johnson where Stubbs lived and his phone number. Defendant asked Johnson if he would go with him to get his money back from Stubbs, but Johnson refused because he was afraid. Johnson told defendant Stubbs always carried a loaded gun and he was afraid Stubbs “might shoot him for bringing [defendant] up there.” Defendant called Stubbs, demanded the money from years before, and arranged a meeting with him; Stubbs did not show up.

As to the night of the killings, defendant explained he and Jordan were in Stubbs’ neighborhood and he decided they would see if he was home. Defendant had a 9mm gun in his car and Jordan asked if he planned to take it in case Stubbs tried to shoot them. Even though defendant stated he did not believe Stubbs would shoot him, Jordan said he thought defendant should take it. Jordan took the gun out of the car, defendant told him to put it back because he did not want to take it with them, and defendant walked toward Stubbs’ apartment while Jordan “act[ed] like he was putting it back.”

As they reached the front door of the apartment, defendant saw Stubbs and Rivera, as well as piles of money and marijuana, through the “wide open” door. Defendant asked Stubbs why he was avoiding him, in response to which Stubbs stood up and Rivera tried to hide the money. Stubbs, who defendant noticed had a pistol in his waistband, told defendant he did not have enough to pay him back yet. Meanwhile, both defendant and Jordan had stepped inside. Jordan walked over to a table and picked up some marijuana; Stubbs argued with him; Stubbs’ pistol fell to the floor and Jordan ended up on top of him on the floor. Defendant told Stubbs he just wanted his $5,000 and he would go home.

Jordan focused on Stubbs’ guns. Holding Stubbs’ loaded pistol, Jordan told Stubbs and Rivera to sit on the couch. He told them he wanted Stubbs’ guns and asked where he kept them. Stubbs stood up as Jordan walked to the back bedroom. Jordan grabbed handcuffs he saw nearby and put them on Stubbs’ wrists. When Jordan returned from the back room with a duffel bag full of guns, Rivera jumped at him, leading him to handcuff her hands with cuffs he purportedly found in the back room.

Defendant told Stubbs he would take his truck as collateral until the money debt was paid; Stubbs appeared to reluctantly agree. Right as they were about to leave the apartment, Jordan decided to take Stubbs and Rivera to the back bedroom and replace the handcuffs with duct tape. Defendant said the duct tape came from one of the other bedrooms. He further conveyed he remained near the front door while Jordan went to the back room; he could not see what was occurring, but he heard all three individuals joking and laughing.

After a trip down to Stubbs’ truck with some of the guns, defendant left in Stubbs’ truck and Jordan left in defendant’s car. While on the freeway headed to defendant’s house, Jordan flashed his lights so defendant would pull over. When they did, he asked defendant if he could borrow his car to go pick up his girlfriend from work. Defendant agreed and that was the last time he saw Jordan that night.

Defendant testified he learned of the murders on the day of his arrest when a friend called him saying police arrested Jordan for double homicide. He still had Stubbs’ truck, so he loaded Stubbs’ guns back into the truck, along with stereo equipment he found in it, and drove it to the 7-Eleven parking lot. After police arrested him, they discovered $2,090 in a safe at defendant’s house. Defendant claimed it was from the sale of puppies, though he eventually admitted to creating false receipts to bolster the claim.

On cross-examination, defendant admitted he took Jordan with him to Stubbs’ apartment because he knew Jordan was the kind of person who “would just try to beat [Stubbs’] up” if he tried to do anything. He also testified: (1) he knew ahead of time Jordan wanted Stubbs’ guns; (2) he saw his 9mm gun in Jordan’s waistband no later than a couple minutes after entering Stubbs’ apartment; (3) he and Jordan were in Stubbs’ apartment for about one hour to one hour and a half; and (4) he looked for and cleaned his 9mm gun on the morning of the day he was arrested.

Jury Verdict and Sentencing

The jury found defendant guilt of two counts of first degree murder, two counts of first degree robbery and one count of first degree burglary. It found not true all the special circumstance allegations. The trial court sentenced defendant to two consecutive 25-years-to-life terms on the murder counts and stayed the sentence on the remainder of the counts pursuant to section 654. Defendant appealed, and another panel of this court affirmed the conviction in an unpublished opinion. (People v. Sabbath (June 25, 1991, G010147) [nonpub. opn.].)

Defendant’s Petition for Resentencing

In January 2019, defendant filed a petition for resentencing pursuant to section 1170.95. After some initial briefing by the parties and court hearings, the trial court found appellant made a prima facie showing of entitlement to relief and issued an order to show cause. The parties submitted further briefing, relying on documents from the record of conviction as well as submitted trial transcripts.

The court heard the matter, reviewed the trial transcripts in their entirety and ultimately denied defendant’s petition. It concluded the totality of the evidence demonstrated beyond a reasonable doubt defendant was a major participant in the murders and acted with reckless indifference to human life. In briefly explaining its reasoning, the court stated it went through defendant’s testimony three or four times and found his version of the events was not credible.

Defendant timely appealed.

DISCUSSION

Defendant contends the trial court’s denial of his petition was erroneous because there was insufficient evidence to support its finding he acted with a reckless indifference to human life, which was the only ground on which his conviction could be sustained under the circumstances. A thorough review of the record, including complete transcripts from defendant’s trial, reveals otherwise. Substantial evidence supports the trial court’s conclusion defendant acted with the requisite reckless indifference to human life and the court properly denied defendant’s petition.

Senate Bill No. 1437

Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It accomplished that purpose by substantively amending sections 188 and 189 and adding section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).)

Under section 188, subdivision (a)(3), as amended, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” And under section 189, as amended, to be liable for murder based on participation in a specified felony or attempted felony, a person must fall into one of the following categories: (1) the actual killer; (2) although not the actual killer, a person who intended to kill and assisted the actual killer in the commission of first degree murder; or (3) a major participant in the underlying felony who acted with reckless indifference to human life. (Id., subd. (e)(1)-(3).)

Persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing or to have the conviction vacated.[2] (§ 1170.95, subd. (a); Lewis, supra, 11 Cal.5th at p. 959.) The process begins by the offender filing a petition with the sentencing court, which the court reviews for facial sufficiency of eligibility for relief. (§ 1170.95, subd. (b)(2); Lewis, at p. 967.) If so satisfied, the court must, inter alia, appoint counsel for the petitioner, if requested, and determine based on written briefing and readily ascertainable information whether the petitioner is ineligible for relief as a matter of law. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at p. 966, 970-971.) Assuming such ineligibility is not shown, the court must issue an order to show cause and thereafter hold a full hearing on the issue of entitlement. (§ 1170.95, subds. (c) & (d)(1); Lewis, at p. 960.)

Here, the trial court issued an order to show cause and received evidence and argument from the parties concerning defendant’s entitlement to resentencing. It was undisputed, as it is on appeal, the jury implicitly concluded defendant was not the actual killer and did not possess an intent to kill.[3] Thus, entitlement hinged on whether defendant was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e)(3).)

On appeal, defendant does not challenge the trial court’s finding he was a major participant in the underlying armed robbery. Rather, he takes issue with the court’s concurrent finding he acted with reckless indifference to human life.

Standard of Review

“By allowing new evidence and providing for an evidentiary hearing, the Legislature plainly intended that the issues concerning whether the defendant was guilty under theories of murder not previously or necessarily decided would be resolved anew, through a factfinding process affording a degree of due process to the petitioner.” (People v. Duchine (2021) 60 Cal.App.5th 798, 813 (Duchine).) Thus, at an evidentiary hearing, on a petition for resentencing, the trial court acts as an independent fact finder, making credibility determinations and weighing the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg); Duchine, supra, at p. 815.) As recently clarified by the Legislature, the prosecution bears the burden of “prov[ing], beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to [s]ection 188 or 189 made effective January 1, 2019.”[4] (§ 1170.95, subd. (d)(3).)

We review the trial court’s findings for substantial evidence. “[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt . . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence.” (Lindberg, supra, 45 Cal.4th at p. 27; see also People v. Williams (2020) 57 Cal.App.5th 652, 663.)

Reckless Indifference to Human Life, General Principles

Although the “reckless indifference to human life” standard has existed for some time in the special circumstances murder setting, the terminology is not defined by statute. A series of more recent Supreme Court cases— In re Scoggins (2020) 9 Cal.5th 667 (Scoggins); People v. Clark (2016) 63 Cal.4th 522 (Clark); People v. Banks (2015) 61 Cal.4th 788 (Banks) — lends clarification to its scope, particularly in situations involving a robbery.[5]

“In Banks, the California Supreme Court described the spectrum of culpability of people involved in murders that occur during the commission of underlying felonies. Courts often refer to this spectrum as the Tison-Enmund spectrum because it derives from the U.S. Supreme Court cases Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, and Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368. ‘At one extreme [are] . . . minor actor[s] in an armed robbery, not on the scene, who neither intended to kill nor [were] found to have had any culpable mental state.’ [Citation.] ‘At the other extreme [are] actual killers and those who attempted or intended to kill.’” (Bascomb, supra, 55 Cal.App.5th at p. 1088.) In the middle is a gray area of people who fall “‘into neither of these neat categories.’” (Banks, supra, 61 Cal.4th at p. 800.)

The mens rea of acting with reckless indifference to human life has a subjective component and an objective one. (Bennett, supra, 26 Cal.App.5th at pp. 1021-1022; Scoggins, supra, 9 Cal.5th at p. 677.) Subjectively, “[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 “‘appreciate[] that [his or her] acts were likely to result in the taking of innocent life.’” (Banks, supra, 61 Cal.4th at pp. 801-802.) Objectively, defendant’s actions must demonstrate a “reckless indifference to the significant risk of death his or her actions create” (id. at p. 801), which means the indifference must “‘involve[] a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation”’ (Scoggins, supra, 9 Cal.5th at p. 677). “Reckless indifference requires ‘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.’” (Bascomb, supra, 55 Cal.App.5th at p. 1087.) It is “‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’” (Clark, supra, 63 Cal.4th at p. 616.)

Banks provided a nonexclusive list of factors to assist in determining whether a person was a major participant in the underlying felony—factors which it later clarified may be relevant to the reckless indifference analysis because the two “requirements significantly overlap.” (Clark, supra, 63 Cal.4th at pp. 614-615.) They include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) “No one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.)

Noting that a “garden-variety” armed robbery—i.e., a robbery committed using a gun (Clark, supra, 63 Cal.4th at p. 617, fn. 74)—does not, alone, demonstrate reckless indifference (Banks, supra, 61 Cal.4th at p. 805), the Supreme Court concluded there was insufficient evidence to show the Banks defendant acted with the requisite mental state (id. at p. 807). Although there was evidence he knew he was participating in the armed robbery of a marijuana dispensary, there was no evidence he was aware his actions would involve a grave risk of death. (Id. at p. 807.) He dropped off his three accomplices near the dispensary, remained in the car away from the scene and acted as the getaway driver when he received a signal from the others as they fled. (Id. at pp. 804-805.) The killing which took place was not planned; rather, it occurred spontaneously when the victim security guard presented unexpected armed resistance to the robbery. (Id. at p. 807.) Further, there was no evidence any of the perpetrators previously participated in shootings, murders, attempted murders or any other violent crime. (Id. at pp. 805, 810-811.)

Roughly one year later, in Clark, the Supreme Court applied and elaborated on the reckless indifference analysis articulated in Banks. Clark involved the attempted robbery of an Orange County computer store, during which the appealing defendant’s accomplice shot and killed the mother of a store employee who arrived at the store to pick up her son. (Clark, supra, 63 Cal.4th at pp. 536-537.) The appellant “was the mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime.” (Id. at p. 612.) However, at the time of the shooting, he was not at the store. (Id. at p. 619.) He drove to the scene shortly after the shooting and fled when he saw the victim on the ground, the police approaching, and his accomplice fleeing. (Id. at p. 620.)

In concluding there was insufficient evidence to support an inference the appellant was recklessly indifferent to human life, the court described aspects of the attempted robbery which shed light on the objective and subjective components of the analysis. Among other things, it explained: (1) the appellant planned the robbery, but attempted to minimize violence by planning it for after the store closed and incorporating use of an unloaded gun; (2) the appellant did not have a gun and did not direct his accomplices to kill; (3) he was not at the scene when the unplanned killing occurred and there was no evidence he had an opportunity to act as a restraining influence; (4) although the planned duration of the robbery was substantial, it was scheduled to take place when not many people would be present and anyone present was to be locked in a room away from the activity; and (5) there was no evidence the shooter had a propensity for violence. (Clark, supra, 63 Cal.4th at pp. 618-622.)

Most recently, the Supreme Court applied the Banks/Clark factors in Scoggins. There, the appealing defendant planned an unarmed revenge attack on a person he believed defrauded him in a private television sale. (Scoggins, supra, 9 Cal.5th at p. 671.) The plan was for his accomplices to use a ruse to schedule a meeting with the person whom they would “‘beat the shit’ out of” to get the appellant’s money back. (Ibid.) Unbeknownst to the appellant, one of the accomplices brought a loaded gun to the meeting and ended up killing the target. (Id. at pp. 671-672.)

The following facts led the court to conclude the evidence was insufficient to demonstrate a reckless indifference to human life: (1) the appellant’s plan did not include a weapon or the use of lethal force, and he had no reason to suspect his accomplices would deviate from the plan; (2) he was not present at the scene when the killing occurred and it was unclear whether he could see the encounter from his position at a nearby gas station; (3) the entire encounter with the victim lasted between a few seconds and five minutes; (4) there was no evidence the accomplices were prone to violence or that the appellant had such knowledge; and (5) the appellant went to the scene after the shooting took place, and although he could not provide further assistance to the victim because law enforcement was already called, he remained at the crime scene to provide a statement to police. (Scoggins, supra, 9 Cal.5th at pp. 677-683.)

Application

Applying these factors, and deferring to the trial court’s credibility evaluations, we conclude the trial court’s conclusion concerning defendant’s reckless indifference to human life is supported by substantial evidence.

To begin, and as defendant concedes, defendant was a major participant in the underlying robbery. (Clark, supra, 63 Cal.4th at pp. 614-615 [extent of defendant’s participation is relevant to reckless indifference analysis].) Indeed, the evidence showed he was the mastermind behind it all. He recruited Jordan to go with him, he knew his 9mm handgun was in Jordan’s possession throughout the robbery, he self-admittedly spent roughly one to one and a half hours in Stubbs’ apartment with Jordan, and he left with Stubbs’ truck, guns, stereo equipment and cash. “Generally, the greater the defendant’s participation in the felony murder, the more likely he or she acted with reckless indifference to human life.” (People v. Garcia (2020) 46 Cal.App.5th 123, 147.)

Regarding weapons, there is no evidence defendant was armed while in Stubbs’ apartment. However, his own testimony revealed that no later than a few minutes after entering the apartment he knew Jordan had defendant’s 9mm handgun. Shortly thereafter, he also saw Jordan take Stubbs’ handgun when it fell to the floor while Jordan and Stubbs argued.

We recognize knowledge of weapons, alone, is insufficient to demonstrate reckless indifference. (Clark, supra, 63 Cal.4th at pp. 617-618; Banks, supra, 61 Cal.4th at p. 809z.) But the evidence in this case did not simply show a “garden variety” armed robbery. Rather, it showed defendant planned the nighttime home invasion robbery knowing Stubbs was a drug dealer who had an arsenal of weapons and always carried a loaded one on his person. Put simply, the planned robbery necessarily carried a particularly high risk of lethal violence. (In re McDowell (2020) 55 Cal.App.5th 999, 1013 (McDowell) [armed home invasion robbery of drug dealer posed obvious risk of lethal violence evidencing reckless indifference to human life]; see also Bascomb, supra, 55 Cal.App.5th at pp. 1089-1090 [planned armed robbery of drug dealer at his home is factor showing reckless indifference]; In re Taylor (2019) 34 Cal.App.5th 543, 557 (Taylor) [grave risk of death is created by armed robbery plan “that elevate[s] the risk to human life beyond those risks inherent in any armed robbery”].)

The duration of the robbery is another factor to consider. (Scoggins, supra, 9 Cal.5th at p. 680.) Defendant estimated he and Jordan were inside Stubbs’ apartment for about one to one and a half hours. This contrasts sharply with cases finding insufficient evidence of reckless indifference. (See, e.g., id. at p. 681 [interaction lasted between and few seconds and five minutes]; Clark, supra, 63 Cal.4th at pp. 620-621 [period of interaction between perpetrators and victims designed to be limited]; In re Moore (2021) 68 Cal.App.5th 434, 452 (Moore) [robbery was sudden and of short duration]; Taylor, supra, 34 Cal.App.5th at p. 558 [snatch-and-grab robbery was short in duration]; Bennett, supra, 26 Cal.App.5th at p. 1024 [robbery lasted a few minutes].) As the Supreme Court has explained, “Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, ‘there is a greater window of opportunity for violence’ [citation], possibly culminating in murder.” (Clark, supra, 63 Cal.4th at p. 620.) Such was the case here.

Evidence concerning defendant’s presence at the scene when the murders took place (Scoggins, supra, 9 Cal.5th at p. 678) is arguably more ambiguous, but nonetheless extant. On one hand, defendant testified the victims were still alive when he and Jordan left the apartment and Jordan must have returned by himself to kill them after parting with defendant on the freeway. Based on that testimony, his counsel argued to the jury he could not be found guilty of first degree murder. But the trial court did not find defendant credible. And neither did the jury, as evidenced by its guilty verdict on the two first degree murder counts. While no direct evidence placed defendant at the scene of the murders when they occurred, circumstantial evidence suggested the victims were killed before defendant and Jordan left the apartment.[6]

This brings us to the final two Banks/Clark factors: defendant’s knowledge of his cohort’s likelihood of killing and defendant’s efforts to minimize the risks of violence during the robbery. (Scoggins, supra, 9 Cal.5th at pp. 681-682.) Regarding the former, there was no evidence Jordan previously used or attempted to use lethal force. However, there was evidence defendant witnessed an altercation at work between Jordan and his boss during which Jordan threatened to kill his boss. In addition, evidence showed defendant knew Jordan wanted to steal guns from Stubbs, including an AK-47, and Jordan suggested they take a loaded firearm into the apartment in case Stubbs got violent.

As for defendant’s actions during the robbery, defendant testified he told Jordan he did not want to bring a gun into the apartment and he tried to get Jordan to leave after gathering the guns, some cash and the keys to Stubbs’ truck. But, even if accepted as true (which the trial court appeared not to do), it was undisputed defendant, at minimum, stood by without protest while Jordan (1) got into a physical confrontation with Stubbs; (2) picked up Stubbs’ loaded handgun when it fell to the floor and kept it in his possession; and (3) handcuffed the victims’ hands and later used duct tape to bind their feet and hands. Further, there was a significant amount of time inside the apartment for which defendant’s actions went unaccounted. There is no indication he took steps during that time to minimize the risk of violence in spite of knowing Jordan’s propensity for violence. (See, e.g., In re Parrish (2020) 58 Cal.App.5th 539, 544 [although defendant “had the opportunity . . . to restrain [his] murderous partners and to help the victim[,]” he “did not take these opportunities”]; McDowell, supra, 55 Cal.App.5th at p. 1014 [“there was a brief but critical opportunity for [defendant] to say or do something to deescalate the situation,” but instead “he remained silent”].)

Viewing the above circumstances and the situation as a whole, substantial evidence supports the trial court’s conclusion defendant acted with reckless indifference to human life. Defendant’s role and the events that transpired are a far cry from the cases in which, for example, the defendant simply acted as a getaway driver during a relatively short duration grab-and-go armed robbery with no knowledge of the possibility of escalated violence. (See, e.g., Scoggins, supra, 9 Cal.5th at pp. 673 [defendant planned unarmed robbery during which he remained away from scene and accomplices deviated from plan with no advanced warning]; Clark, supra, 63 Cal.4th at pp. 536-537 [defendant planned robbery with no knowledge of possible violence and acted as getaway driver when called to scene by accomplices]; Banks, supra, 61 Cal.4th at p. 794 [defendant’s culpability was as getaway driver for armed robbery in which there was no advanced knowledge of probability of escalated violence]; In re Miller (2017) 14 Cal.App.5th 960, 965 [defendant played role of “spotter” who selected robbery target and was not at scene of robbery/murder]; Bennett, supra, 26 Cal.App.5th at p. 1019 [defendant helped plan robbery but was not at scene when events took place]; Taylor, supra, 34 Cal.App.5th at p. 559 [defendant acted as getaway driver, was not at scene of the murder and had no involvement in shooting].) It is not our role to second guess the court’s credibility judgments or reweigh the evidence. (See People v. Rodriguez (2021) 66 Cal.App.5th 749, 766.) And the possibility a different trier of fact might come to a different conclusion is insufficient to invalidate the trial court’s decision. (Ibid.)

DISPOSITION

The postjudgment order is affirmed.

MARKS, J.*

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

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

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

[2] The Legislature recently enacted an amendment to section 1170.95, which took effect on January 1, 2022. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) § 2.) Among other things, Senate Bill No. 775 extends section 1170.95’s application to persons convicted of murder under any theory through which malice is imputed based solely on a person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter. Because defendant’s appeal of the order denying resentencing was not final as of the effective date of Senate Bill 775, he is entitled to any benefits the new statute may provide and our analysis accounts for those matters. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

[3] Consistent with then applicable law, the jury was instructed that to find any of the special circumstance allegations true, it necessarily needed to find defendant either was the actual killer or possessed an intent to kill.

[4] The statutory amendments clarifying the burden of proof went into effect January 1, 2022, well after the evidentiary hearing in this case. We requested further briefing from the parties concerning the matter and both agree the trial court applied the correct beyond a reasonable doubt standard in this case notwithstanding the lack of clarity extant at the time of the hearing.

[5] Because the factors articulated by the California Supreme Court in Banks, Clark, and Scoggins construe the language in section 190.2, subdivision (d), which the Legislature incorporated into section 189, subdivision (e), these factors apply when determining a defendant’s eligibility for relief under section 1170.95 as a person convicted of felony murder. (See People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087-1091 (Bascomb) [applying factors in felony murder case on appeal regarding resentencing pursuant to section 1170.95]; In re Bennett (2018) 26 Cal.App.5th 1002, 1018, fn. 5 (Bennett) [applying factors in life without parole case].)

[6] Even if we were to assume arguendo defendant was not present at the time of the murders, “‘physical presence is not invariably a prerequisite to demonstrating reckless indifference to human life.’” (Scoggins, supra, 9 Cal.5th at p. 679.)